the night for that is a time for rest 1650. B. S. If a robbery be begun in the day light but is not ended till dark night yet the Hundred where it was done is chargeable for it by the Statute of Winchester 1650. B. S. Fee simple A Feffment made of Lands to one and his Heirs Males is a Fee simple Mich. 23. Car. B. S. For it is not an estate comprised within the Statute of West 2. De donis conditionalibus False Imprisonment An Action of False Imprisonment doth lye against a Baily by the party that is Arrested by him after the Writ is returned by Warrant whereof he was Arrested Hill 23. Car. B. r. For this is all one as if he were Arrested without a Writ for by the return of the Writ the Sheriffs and Bailiffs power are at an end as to that Writ If a procedendo be unduely obtained and the party against whom it is had be thereupon taken and imprisoned an Action of False Imprisonment doth lye by the party Imprisoned against him at whose Suite he is Imprisoned Mich. 24. Car. B. r. Feoffment A Feoffment made of Lands unto a Fem Covert is a good Feoffment in Law untill the husband do disagree to it Hill 23. Car B. r. Q. If the husband do not know of the Feoffment made and after the Feoffment doth dye what the Feoffment shall operate Foundation None hath power to Found a free Chappel but the King Hill 23. Car. B. r. For it is as much as to create a new Tenure The Foundation of a thing may alter the Law as touching that thing Hill 23. Car. B. r. Fiction of Law The Law ought not to be satisfied with Fictions where it may be really satisfied Pasc 24. Car. B. r. Yet in some Cases Fictions of Law are necessary and to be allowed Gavel-kinde IF one take to Wife a Woman Seised of Gavel-kind Lands and the Wife dye without having had any issue of her body by her husband yet the husband shall be Tenant by the courtesie of half of the Lands during the time he continues unmaryed But if he marry he shall forfeit his Tenancy by the courtesie But if he had issue by the Wife if the Wife dye he shall be Tenant by the courtesie of the whole Land and although he do marry he shall not forfeit his Tenancy by the curtesie Mich. 22. Car. B. r. This is by the custome of Kent Guardian A Gardian of an Infant may acknowledge satisfaction upon Record for a Debt which he hath recovered at Law for the Infant Trin. 23. Car. B. r. But it must be a Guardian that is Assigned by the Court to sue for the Insant The Court will Assigne a Gardian to an Infant to sue for him if the Infant do come into Court and desire it of the Court and name the party he desires to have for his Guardian and produce him in Court Trin. 24. Car. B. r. Good Behaviour If one do affront any Court of Justice this is a good cause to bind the party to his Good Behaviour Pasc 24. Car. B. r. For the affronting of justice is a publike misdemeanor and not a private although it be done but to the person of one man as to the Judge of a Court a Justice of peace c. He that doth upon Articles sworne in Court desire the party against whom the Articles are sworne may be bound thereupon to the Good behaviour must express some speciall matter in those Articles for which he ought to be bound to the good behaviour For if the Articles be only generall the good behaviour is not to be granted upon them Mich. 22 Car. B. r. For a generall accusation is no accusation for the incertainty of it Perjury is not an offence for which the party perjured may be bound to the Good behaviour Mich. 22. Car. B. r. But the party may be endicted for it and fined if he be thereupon convicted One was bound to his Good behaviour for affrighting people in the night in their houses by shooting off of Muskets and for the assaulting of one going in the high way Mich. 22 Car. B. r. A woman that is a common scold may be bound unto the Good behaviour Mich. 22. Car. B. r. For she is a common disturber of the publique peace The Good behaviour was granted against one upon an Article sworne against him that he had maliciously pulled down a piece of anothers house Hill 22. Car. B. r. A Justice of Peace ought not to binde any person to the Good behaviour upon a generall accusation made against the party Pasc 23. Car. B. r. One was bound to his Good behaviour for stopping of a Constable from making pursuit after a felon Trin. 23. Car. B. r. For this is a publike offence against the Common-wealth The Good behaviour is not to be granted against one for speaking of words only against one person but it may be granted against one for speaking of words against divers persons at severall times Hill 23. Car. B. r. For that is a generall misbehaviour The Good behaviour was granted against one upon an Article sworne and read against him that he said that he would burn down another mans house Hill 1649. B. S. Heire THe word Heir is nomen collectivum and extends unto all Heirs Trin. 23. Car. B. r. The Heir is favoured at the Common Law for at the Common Law the Ancestor could not convey away his Lands from his Heir at Law upon his death bed without the consent of the Heir Hill 23. Car. B. r. The Law is the preserver of Inheritances Heriott A Heriott is the fruit of a Rent-service Hill 21. Car. B. R. This is to be meant of Heriott service and not of Heriott Custome Habeas Corpus If a Prisoner appear in Court upon a retorne of a Habeas Corpus to remove him hither and there doth appear by the return that there was good cause to commit the prisoner to prison and to detain him there the Court will remand or send him back to the place where he was first committed but if upon the retorne it doth appear that there was no lawfull cause to commit him then the Court will discharge the prisoner but if it be doubtfull to the Court whether he was lawfully committed or not then the Court will bail the prisoner Hill 21. Car. B. r. Trin. 23. Car. B. r. A Habeas Corpus ad respondendum is when any one is imprisoned at the suit of another upon a legall process in the Fleet or any other prison except the Kings Bench prison and a third person would sue that prisoner in this Court and cannot because he is not in custody of the Mareschall of this Court there he may have a Habeas Corpus to remove the prisoner out of the prison where he is into this Court to answer unto his Action here 21. Car. B. r. A Habeas Corpus cum Causa doth remove the body of the party for whom
them from the Barr to consider of their verdict because they are not under seal 28. Apr. 1651. B. S. But all Deeds or writings under seal and given in evidence they may have but nothing which was not given in evidence may they have Conveyance A Conveyance made unto one by his reputed Name although he is not the same person in Law as he is reputed yet is the Conveyance good but if such a Conveyance be made to raise a use then it is not good 28. Apr. 1651. B. S. A Conveyance cannot be fraudulent in part of it and good as to the rest 30. Apr. 1650. B. S. For if it be fraudulent and void in part it is void in all for it cannot be divided If I Covenant to Convey Lands to another I am bound to do it at my own charges except it be otherwise agreed betwixt us Trin. 1651. B. S. Certificate This Court will not make a Rule for a Judg to make a Certificate to them of a matter done before them but if the Judg will do it voluntarily they will receive it Clarke By Roll Chief Justice no Clarke ought to be admitted into the Office of the Custos brevium without the consent of the Lord Chief Justice first obtained and those that are admitted ought to be chosen out of the best of the Clarks in the Upper bench Office 1655. Departure When the Plaintiff doth plead in his Replication a matter which is contrary to that which is admitted in his Declaration this is a Departure from his Plea Mich. 24. Car. B. S. Denison An Alien that is made a Denison by the Kings Letters Patents is thereby enabled to purchase Lands but he is not thereby enabled to inherit the Lands of his ancestors as Heir at Law but as a Purchaser he may injoy Lands of his ancestors Mich. 42. Car. B. S. But if he be Naturalized by Act of Parliament he may inherit them as Heir at Law as well as have them by purchase Delivery It hath been the course to Deliver a Lease of Ejectment to the party to whom the Letter of Attorney is delivered and for the Attorney by vertue of his Letter of Attorney to deliver possession of the Land let by Lease upon his delivery of the Lease Pasc 24. Car. B. r. A Deed cannot be Delivered as an escrow to the party himself to whom the Deed is made Trin. 24. Car. B. r. But it must be delivered to a stranger as an escroe for so soon as it is Delivered to the party to whom it is made it takes effect as a Deed and cannot be an escroe Dower A woman was not Dowable of Tythes before the Statute of 32. H. 8. 24. Car. B. r. A woman is Dowable of a Common appendant but not of a Common in gross Pasc 24. Car. B. r. For Common appendant belongs to Lands and Tenements whereof she was endowable and cannot be severed A woman may be endowed of the profits of an Office or of a Faire or of a Market Pasc 24. Car. B. r. Dower is favoured in Law and as it is favoured in it self so is the party that sues to recover her Dower favoured in her proceedings in Law to recover it as much as in jostice may be permitted Pasc 24. Car. B. r. Difference There is a Difference between the Latine words in dilaté and immediaté and it is more proper to direct a Writ to be retorned in dilate then to direct it to be retorned immediate Hill 23. Car. B. r. For to retorne it in dilate is to retorn it with as much speed as may be and not to use any trifling excuses or delayes to retard the retorn of it but to retorn it immediate is impossible for it will require some convenient time to do it in and as it may fall out longer then is expected Depositions Depositions taken in a Cause depending in Chancery though the Cause be there determined or dismissed may be given in evidence at a tryal at the Barr in a suit depending here between the same parties that sued in the Chancery if the party that deposed to the Interrogatories be dead at the time of the tryal else not but those Witnesses must appear in person in Court and be examined viva voce in the Cause and so it is of Depositions taken in any other Court Mich. 24. Car. B. r. Discretion Where a thing is left to any person to be done according to his Descretion the Law doth intend it must be done with sound Descretion and according to Law And this Court hath power to redress things that are otherwise done notwithstanding they be left to the Descretion of those that do them Trin. 23. Car. B. r. For their Descretion is not properly Discretion but folly or madness Devise A Devise of the profits of Lands for years is a Devise of the Lands themselves for so many years as the profits are Devised Trin. 23. Car. B. r. If a man Deviss his Lands to his children without fayeing more this is but a Devise for life 36. Eliz. B. r. In Dickons and Marshals Case adjudged Hill 23. Car. B. r. A Devise to one of any thing which the Law would have cast upon him although it had not been Devised untohim is a void Devise Mich. 24. Car. B r. For his title to it by Law is his ancient and best title and the Law will adjudge him to take by that An Administrator of a Term cannot Devise it but an Executor of a Term may for an Executor hath a greater interest in his own right then an Administrator hath 1651. B. r. Deodands Deodands that is the Goods and Chattels of which felo de se that is of him that kills himself do belong to the Kings chief Almoner that is he that disposeth of the Kings Alms to distribute them to the poor or to employ them in other pious uses and a discharge given for them to any person that hath such Goods of a felo de se in his possession by the Almoner or his Deputy is a good discharge in Law for them but a discharge given for them by an under-Deputy it no good discharge Trin. 23. Car. B. r. Demurrer If a Demurrer be entred it cannot be waived except both the Plaintiff and Defendant do consent unto it Mich. 22. Car. B. r. Nor then without leave of the Court. A Demurrer may be upon a replication Rejoynder c. as well as upon a Plea Mich. 23. Car. B. r. For all parts of a pleading to issue ought to be according to the Rules of Law and if any part fail the whole is naught If the Court do perceive that a Demurrer is put in onely to put off a tryal or for delaying of the proceedings they will not allow of such a Demurrer nor enjoyn the other party to joyn in the Demurrer but will give Judgement against the party upon his frivolous demurrer Mich. 22. Car. B. r. And 24. Car. B. r. Where there ought to be
which they proceed upon in the Common Pleas. Mich 1649. B. S. Mareschall THe Mareschal of the Mareschalsea of this Court is intended to be alwayes in Court while the Court is sitting 21. Car. B. r. For it is his Office to be alwayes attending upon the Court to execute his Office in relation to the Court upon all occasions that may fall out Monstrance None shall be compelled to shew a thing in pleading which by common intendment they cannot have knowledge of 22. Car. B. r. 38. H. 6. f. 3. Motion to the Court. Monday is a special day for motions in this Court by the ancient course Mich. 22. Car. B. r. Yet motions are made upon any day as the businesses of the Court of the day will permit One ought not to move the Court for a thing against which they have delivered their opinion Trin. 22. Car. B. r. But ought to rest satisfied with the Judgement of the Court. If moneys be upon a motion ordered to be brought into the Court and are accordingly brought in they ought not to be taken out of the Court but upon a motion and rule of the Court made therein Hill 22. Car. B. r. If any thing be moved to the Court upon a Record if the Record upon which the motion is made be not in Court when the motion is made the Court will make no Rule upon such a motion Hill 22. Car. B. r. For the Court will be satisfied by the Record whether the matter of the Record upon which the motion is grounded be so as is suggested by the Councell and will not rest upon suggestions made at the bar If there be divers Rules of the Court made in a Cause and the party intends to move upon these Rules he must produce the Rule that was last made in the Cause and move upon that Pasc 23. Car. B. r. Yet it is necessary also to have all the Rules made in the Cause to satisfie the Court how the Cause stands in Court and how it hath been proceeded in from time to time and how the Rules depend upon one another One party ought not to surprise another by a motion in Court but he ought to move in such convenient time that the other party against whom the motion is made may have time to be heard and to make his Defence Pasc 23. Car. B. r. It is against the Rule of the practice of this Court to move matters in Law upon the last day of any Term except it be where the Case is peremptory or of necessity to be moved then Pasc 23. Car. B. r. Because the other Party cannot have time to make his Defence and that day is also a day appointed for motions One ought not to move the Court for a Rule for a thing to be done which may by the common Rules of practice of this Court be done without moving the Court for it much lesse ought the Court to be moved for the doing of that which is against the common Rules of practice of the Court. 24. Car. B. r. For the Court is not to be troubled with nor the Clyent put to the charge of needless motions nor of motions not to be granted and the former sort of such kinde of motions do savour of ignorance and the latter of too much presumption When a thing questionable between the parties is to be moved to the Court for the setling thereof he that intends to move it must give the adverse party timely notice of the time as near as he can when he will move it Mich. 1650. B. S. And upon what he intends to move that he may be prepared to answer the motion at the time when he moves for the quicker dispatch of businesses If a Rule of Court was grounded upon an Affidavit he that will move the Court to make the Rule void must when he moves produce the Affidavit in Court Hill 1649. 22. Feb. B. S. That the Court may be informed upon what grounds the Rule was made and whether there be cause shewed upon the motion sufficient to induce them to vacate the Rule It is against the course of practice of the Court for any person to make a motion in his own Cause 24. Maii. Pasc 1650. B. S. So said in one Thurston and Masons Case viz. for a Counseller to do it When the Court doth grant a thing to one upon a motion which was in the power of the Court either to grant it or not to grant it the party that hath his motion so granted unto him is by the rules of the Court to pay 12d to the box for it 1650. B. S. Which money is given to the prisoners of the Vpper-bench prison as it is said It is not usual to move for a Trial at the Bar upon the last day of the Term. 2. Julii 1650. B. S. Nor for the Secondary to make a Report nor for a Prehibition nor to vacate a Judgement or such like cases except both parties be in Court and are contented with the motion and prepared to speak in it The three last dayes of the Term if it be not an Issue Term is appointed to hear motions only and not other businesses except they be peremptory or upon other special occasions But if it be not an Issue Term then the two last dayes are only for the hearing of motions 30. Jan. 1650. B. S. The Issue Terms are Hillary Term and Trinity Term and they are so called because though there be Issues joyned in every Term yet not so many by much as in these Termes in regard of the Causes which are to be tried all England over at the Assizes which do follow in the next Vacations after the said Terms viz. the Lent-Assizes and the Summer-Assizes as they are commonly called By Glyn Chief-Justice it is not the custome of the practice of the Common Pleas for a Serjeant at Law to move for a Clark of the Court and afterwards for his Clyent Mich. 1655. B. S. For it seems it is not intended there that he doth move without a Fee for a Clark of the Court and therefore if he should be so heard he would have a double motion at one time which no Court doth allow Manslaughter A grand Jury may finde a Bill of Manslaughter to be Billa vera per infortunium Pasc 23. Car B. r. Mortgage If Lands be Mortgaged to one the interest in Law in these Lands is in the Mortgagee before the forfeiture of them Mich. 23. Car. B. r. For he hath purchased the Lands upon a valuable consideration as the Law will intend and though the Mortgagee may redeem them yet it is not known whether he will do it or no For it is in his power to do it or not to do it and if he do it not then the Estate is absolute in the Mortagee without any other act to be done to passe the Estate Messuage One Messuage cannot be apurtenant unto another Messuage Pasc 24. Car. B. r. For
of Action did first arise Mich. 22. Car. B. r. Transitory Actions ought not to be brought within Corporations for their priviledges do properly and onely extend for the tryal of such Actions the causes whereof do arise within their own jurisdictions Mich. 22. Car. B. r. Either an Action upon the Case or an Action of Detinue at the Election of the Plaintiff may be brought for goods detained from him 22. Car. B. r. An Action of Trover and Conversion is in its nature but an Action upon the Case to recover dammages Mich. 22. Car. B. r. An Action upon the Case doth lye by the Statute against the Court of Admiralty for holding Plea of a matter which is not within their jurisdiction Mich. 22. Car. B. r. Where a promise is made by a Fem Covert or by a Servant for the Husband or the Master the Action for breach of this promise ought to be brought against the Husband or the Master for it is their promise and the Wife and the Servant are but instruments Mich. 22. Car. B. r. An Action upon the Case doth lye against one for speaking such words falsly and maliciously of another as if they were truly spoken of the party he might be punished as a Felon or by some Statute fined or imprisoned Mich. 22. Car. B. r. as for calling him Theef c. There is a difference betwixt bringing of an Action and the laying of Action Mich. 22. Car. B. r. It is cause sufficient to ground an Action upon the Case for one to put another to the trouble and charges to Sue for that which is his own Mich. 22. Car. B. r. The cause for bringing an Action upon the Case for the speaking of words against one is the temporal loss or dammage which may accrew to the party against whom they are spoken by the speaking of them and not the words themselves Mich. 22. Car. B. r. An Action upon the Case doth lye for speaking of words against a man by reason of which he lost his marriage Mich. 22. Car. B. r. An Action upon the Case doth not lie for Arrerages of Rent due upon a Lease for yeers because the Law gives a proper Action for it to wit an Action of Debt Mich. 22. Car. B. r. Upon a promise made upon an insimul computaverunt the party to whom the promise is made may either have an Action of Debt or an Action upon the Case at his Election for the thing which was before in dispute and uncertain is by the account and promise reduced to a certainty Mich. 22. Car. B. r. For a Debt certain referred amongst other things to an Arbitration an Action of Debt doth not lye but an Action upon the Case Mich. 22. Car. B. r. It is not safe to be too particular or over curious in the laying of an Action for it is often times a cause that the Action doth fail Hill 22. Car. B. r. An Action upon the Case lies for calling one Whore in London but this is by the special custome of the City Hill 22. Car. B. r. yet 24. Car. Pasc The Court was divided in opinion in this question whether an Action doth lye or not An Action upon the Case lies for a private nusance but not for a publike Rasc 23. Car. B. r. An Action upon the Case doth lie for scandal or for molestation Pasc 23. Car. B. r. Where a Joynt Action doth lie against divers persons of whom some are known to the Plantiff and the rest are not known unto him the Action may be brought against them that are known by their particular names and against them that are not known generally with a Simul cum aliis c. Pasc 23. Car. B. r. In a tryal upon a Trespas and Ejectment or a Replevin touching the title of the Land in question although the Verdict pass against the Plaintiff yet he may bring a new Action for the same Land for such tryals are not final Pasc 23. Car. B. r. because the Land is not recovered in them but the possession In a Case betwixt one Nichols and Webb in the Common Pleas for calling the Plaintiff being an Atturney at Law Knave a Verdict and judgement was given for him and this judgement being afterwards remoyed by a Writ of Error into this Court the Judgement was affirmed in Trin. 12. Car. Rot. 102. Pasc 23. Car. B. r. An Action brought for Rent or breach of Covenant upon a Lease may be laid either in the County where the Lease was made or in the County where the Lands do lie that are let by the Lease Pasc 23. Car. B. r. Vexatious Actions are not favoured in Law nor by the Court but may be referred to the Master of the Office to consider of them Trin. 23. Car. B. r. A violent intendment may bring one within the compass of an Action Mich. 23. Car. B. r. by Rolle One may in some Case bring an Action at the Common Law for that for which he may also have his remedy in the Eclesiastical Court for the Common Law is to be preferred before the Eclesiastical Law where they stand in equal degree in respect of the matter to be tryed Mich. 23. Car. B. r. By a special custome an Action doth lie in some Cases in which at the Common Law no Action doth lie and so was it adjudged 8. and 13. Car. Mich. 23. Car. B. r. The Kings Charter cannot enable the Pattentee to bring an Action which the Common Law allows not Mich. 23. Car. B. r. If one bring an Action upon the Case for divers words spoken whereof some are Actionable and some of them are not yet the Action lies Trin. 24. Car. B. r. The Husband may bring an Action alone for scandalous words spoken against him and his Wife and recover and yet may afterwards bring another Action for to recover dammages done to his Wife by the speaking of the same words Trin. 24. Car. B. r. for the Husband and Wife are both particularly damnified by the speaking of the words An Action upon the Case doth not lie upon a contract which sounds in the realty Q. if the contract be mixt with other matters which are not in the realty whether it will then lie or no Mich. 24. Car. B. r. If one take out a Latitat within the time limited by the Statute for the limitation of Actions it is a good bringing of the Action in due time and he is not barred by the Statute although he do no declare against the party within the time limited by the Statute Mich. 1649 B. S. An Action of the Case doth lie against one that doth Arrest another without cause Pasc 1650. 6. Maii B. S. One may have an Action upon the Case against a Witness that is served with a Subpoena to appear at a tryal and doth not appear but by the Statute Pasc 1650. B. S. 18. Maii 13. Nov. A Joint Action of the Case doth not lie against two several persons for
it is a litigious title the buying where the Law doth not allow Battery To lay ones hands lightly or gently upon another though he have no occasion so to do is no Battery to ground an Action upon Trin. 24. Car B. r. For the Law will not prosume the party is damnified by it Bill There is difference betwixt an Inland Bill of Exchange and an Outland Bill of Exchange which is made to return moneys beyond the Seas for an Inland Bill is but in nature of a Letter but an Outland Bill is of another nature and more regarded in the eye of the Law 3. July 1650. B. S. Because it is more for the advance of trade Book When Books are delivered to the Judges in causes which are to be argued the Atturnyes that deliver the Books ought to write the number Roll of the Cases to be argued upon the Book otherwise they will not receive them Mich. 22. Car. B. r. That they may know in what yeer and term the causes were entred that they may have recourse to the Records upon any occasion The Books which are to delivered to be the Judges of causes to be argued are to be made at the equal charge of the Plaintiff and the Defendant Pasc 23. Car. B. r. For the Law being doubtful in such Causes which are to be argued whether it be on the Plaintiffs side or on the Defendants the arguing of the Case doth equally concern them and therefore it is reason they should be at an equal charge in bringing the cause to be argued and determined When Books are to be delivered to the Judges in causes which are to be argued the Plaintiff ought to give Books to the Seignior Judges and the Defendant ought to give Books to the puisne Judges Hill 1649. B. S. Courts and their Jurisdiction THe Court of York hath not power to award a Capias in an Action upon the Case by the Statute of 14. H. 7. Hill 21. Car. B. r. Inferior Courts ought not in pleading to shew a thing by implication but they must set it forth expresly and also Surplusage in an inferior Court will make error for they must keep their forms precisely Hill 21. B. r. For if they should be suffered to break their forms it would introduce all barbarism and confusion If a condition of an Obligation for the payment of money do express no place where the mony is to be paid if the Obligee bring an Action of Debt upon this Obligation for non-payment of the money according to the Condition of this Obligation he must make it appear that the money was to be paid within the jurisdiction of the Court where he brings his Action or else the Action is not well laid Hill 21. Car. B. r. The jurisdiction of an inferior Court must be set forth and by what authority it is held whether by Prescription or Letters Patents Hill 21. Car. B. r. For every inferior Court must be held one of those wayes The Court of Admiralty cannot hold Plea of a matter arising from a contract made upon the land though the contract was made concerning things belonging to the Ship Hill 21. Car. B. r. In the yeer of 4 H. 4. there was a petition preferred in the Parliament against the Court of Admiralty for holding of Pleas by the Spiritual Law which they ought not to do but by the Laws of Oleron and so it was held by the House of Commons in Parliament at that time Hill 21. Car. B. r. If goods delivered a Ship-board be embeziled all the Mariners ought to contribute to the satisfaction of the party that lost his goods every one of them particularly according to their proportion by the the Martime Law or custome and the cause is to be tryed in the Court of the Admiralty and in such cases no prohibition ought to be granted Hill 21. Car. B. r. The Court of Admiralty ought not to try whether a fact were done in a place which is comprehended within a League made with a Forraign Prince or whether the place be without or not nor ought to try whether the League were made at the time of the fact done or no. 21. Car. B. r. No Court can set a fine upon any person for such an offence committed by him for which they cannot grant him a pardon for his offence when he hath paid the fine that is so set upon him 21. Car. B. r. 4. H. 7. 5. 21. H. 7. 35. The Court ought Ex officio to take notice of matters contained in the Record of the matter depending before them but they are not tyed to search the Almanack to compute the times of doing of things 21. Car. B. r. An inferior Court ought to Return a Writ directed to them to stop their proceedings although they be not bound to allow the Writ directed to them by giving obedience unto it and in their Return of the Writ they are to shew why they do not allow it but do proceed notwithstanding the Writ directed unto them 22. Car. B. r. That they may not seem to contemn the Authority above them If a Court which hath no jurisdiction of the cause depending in that Court do proceed to Judgment in it the Judgement is good if the Defendant did not plead to the jurisdiction of the Court but admitted it to have jurisdiction of the cause by making his defence 22. Car. B. r. Which was once in his power to allow or disallow as he pleased but not having disallowed it when he might he shall be judged to have allowed the jurisdiction Although one plead in disallowance of the jurisdiction of a Court yet he may afterwards come in and allow the jurisdiction and plead there Mich. 22. Car. B. r. The Court of the Kings Bench is to regulate all the Courts of Law throughout England that they do not exceed their jurisdictions nor alter their forms 22. Car. B. r. In some cases the jurisdiction of the Courts of the Cinque Ports extendeth upon the high Sea Mich. 22. Car. B. r. This Court may commit an Atturney for doing of things against the express Rules of the Court and notice of it 22. Car. B. r. This Court may issue out a Writ to compell one that is elected to the Office of Constable and refuseth to serve to take his oath and to execute his Office Mich. 22. Car. B. r. The superior Courts at Westminster and the inferior Courts elsewhere do differ in their forms in proceeding in many things Mich. 22. Car. B. r. A Court that holts Plea by ventue of Letters Patents ought to proceed according to the course of the Common Law but Courts that are Courts by Custome are not bound to proceed according to the strict Rules of the Common Law but may proceed according to their custome Mich. 22. Car. B. r. So that it be not contrary to Law One may sue in the Kings Bench Court by Original as well as he may by Bill of Midlesex or Writ
of Latitat but the common and most usual way of proceeding is by Bill Mich. 22. Car. B. r. It hath been doubted whether the Marshals Court be a Court nor not because it is not annexed to any Corporation but unto Whitehall which is but a house and so it seems to be but a Court in Gross Mich. 22. Car. B. r. This was questioned when the Court was in being but now that Court is taken away by Stat and the question is out of doors A County Court cannot enquire of dammages arising out of the jurisdiction of it Hill 22. Car. B. r. One ought not to Sue to Bastardise an Issue in the Eclesiastical Court but the tryall lies at the Common Law Pasc 23. Car. B. r. Whether a Wife or not Wife is triable at the Common Law but whether lawfully married or not lawfully married is tryable in the Spiritual Court Pasc 23. Car. B. r. For a marriage is pleaded to be according to the Laws of the holy Church viz. the Eclesiastical Laws and therefore most proper for them to determine whether the marriage were solemnised accordingly Where the principal matter is tryable in the Spiritual Court and there is also a thing incident to this tryal which is tryable at the Common Law yet a Prohibition shall not there be granted Pasc 23. Car. B. r. Quia principale trahit ad se accessorium suum A Recognizance in the Common Pleas is entred specially but a Kecognizance in the Kings Bench is entred generally Pasc 23. Car. B r. In the Universities they hold Pleas by custome and do proceed according to the Rules of the Civil Law Pasc 23. Car. B. r. In the Court of the City of Exeter they proceed in that manner as they do in the Common Pleas but they do not so generally in other inferior Courts Pasc 23. Car. B. r. But in Norwich they proceed as they do at Exeter agreeing with the Common Pleas. The Common Pleas doth not shew at large whence the venne shall come but inferior Courts ought to shew it at large and not with an c. as the Common Pleas doth Pasc 23. Car. B. r. The Court of the publike Exchequer is a mixed Court and doth consist of Law and Equity Pasc 23. Car. B. r. The Pleas side is for matters of Law and the Chequer Chamber for matters of Equity The Court of the Kings Bench is a Court of Eyre in that County wheresoever it sits Trin. 22. Car. B. r. For it is not a fixt Court as the Common Pleas Court is but removeable The Court of the Common Councel of London is not a Court of Record but onely a Court of advice and therefore neither a Writ of Error nor an Attaint doth lie for matters done in that Court Trin 23 Car. B. r. One ought to speak against the jurisdiction of the Court by pleading to it and not by speaking in Arrest of Judgement Mich. 23. Car. B. r. For then it is too late The Palace Court is a Court in the Aire and annexed to no Corporation nor is beneficial to any society of men and from the Tunnel of White hall and twelve miles from thence in compass is called the Palace Court By Rolle Chief Justice Mich. 24. Car. B. r. Now that Court is taken away The Statute of Ieofails doth extend to inferior Courts if the Errors in their proceedings cannot be amended by the comparing of their Papers or such other matters for it is a beneficial Law and to be therefore largely expounded Pasc 24. Car. B. r. A Court cannot be held by Custome and by Letters Patents also for if one have a Court by Custome and he Purchase Letters Patents and holds the Court by them the Custome is extinguished Mich. 24. Car. B. r. This Court hath authority to reform abuses in the behaviour and carriages of all persons whatsoever throughout all England Hill 1649. Feb. 9. B. S. The Parliament cannot take way the jurisdiction of this Court without words in the Negative that is that it shall not do thus or thus 10 Feb. 1650. B. S. This Court is not to be open more then two dayes after the Term for Demurrers and Pleas and but three dayes for Issues Trin. 1651. B. S. All Courts of Record were originally the Kings Mich. 1651. B. S. Corporation If a Corporation do become so poor that it is not able to defray the publike charges which are incident unto it as it is a Corporation it is fit that the Corporation be feised unto the hands of the King Hill 21. Car. For the Corporation becomes useless and dishonourable If a Corporation doth neglect to elect such Officers as they ought to Elect by their Charter or if they make a false Election not warranted by their Charter this is a forfeiture of their Corporation Hill 21. Car. B. r. The Corporation of the City of London is to answer for all particular misdemeanors which are committed within any of the Courts of Justice within the City and for all other general misdemeanors committed within the City Trin. 22. Car. B. r. So I conceive it is of all other Corporations A Body Politick is a creature of the King created by Letters Patents Hill 22. Car. B. r. For though a Corporation may be by prescription yet it shall be intended that such a Corporation did originally derive its Authority by grant from the King Costs and Charges No Costs ought to be paid for the putting off of a tryal where no fault was in the party against whom it is moved for Costs An Attatchment lies against the party that refuseth to pay Costs which are taxed by the Master of the Office 21. Car. B. r. According to the Rule of the Court. If a Juror be withdrawn upon a tryal by the consent of the Plaintiff and the Defendant they shall pay the Costs of the Jury equally between them Trin. 22. Car. B. r. For if one of the parties alone should pay the Costs upon bringing the Issue again to be tryed by the same Jury as the course is so to do it would be a sufficient matter for him that did not joyn in paying the Costs to challeng the Jury for favor to him that did pay the Costs Trin. 22. Car. B. r. If upon a tryal the Plaintiff be forced to be non Suit because his witnesses did not appear he may by Action recover his Costs expended against his witnesses that did not appear Mich. 22. Car. B. r. It is at the Election of the Defendant if the Plaintiff do amend his Declaration either to accept of Costs and to plead or else to refuse Costs and to Imparle unto the next Term and not to plead Mich. 22. Car. B. r. The taxing of Costs is the Act of the Court although they be taxed by the Secondary of the Office Mich. 22. Car. B. r. For the Secondary is but the Officer of the Court and an instrument employed by the Court for such purposes and therefore the Court may
shall be accounted to be given for those things only for which Dammages may be given and the expressing the other things shall be accounted idle and void Trin. 24. Car. B. r. If an Action of Trespass be brought and the Defendant pleads and the Plaintiff joyns issue with the Defendant and after issue joyned he is non-suit he shall pay the Defendant Costs for his false vexation of him by the Stat. of 4. Jac. And upon very good reason For it shall be intended that if he had had good cause of Action against the Defendant that he would not have become non-suit When a judgment is given by default then the Court doth assesse the Dammages and not the Jury Mich. 1649. B. r. For there is no issue tryed If an Action of Trespas be brought against divers persons and some of them plead to issue and others do not and the issue is found for the Plaintiff and Dammages are given as well against those that joyned not in the issue as against them that joyned in the issue these Dammages are well given Mich. 1649. B. S. For the Trespas is found and that the Plaintiff was damnified so much by reason thereof If Dammages be assessed and it is not expressed that they are assessed pro Misis Custagiis this is erroneous for it doth not appear by the Record for what the Dammages are assessed as it ought to do Hill 1649. 31. Jan. B. S. For Records ought to be certain and not ambiguous All Costs are given ex assensu partium that is by the consent of the Plaintiff and the Defendant By Woodward Clarke Hill 1649. 4. Feb. B. S. If the Defendant whose title is concerned in an Ejectione firmae will not defend his title to the Land in question and the verdict do pass against the Plaintiff the ejector may release the Dammages 11. Feb. Hill 1649. B. S. For they do properly belong to hiâ—… One that sues in forma pauperis if the Cause go against him yet he shall pay no Costs if he were admitted to sue in forma pauperis in the suit which passeth against him before the suit began but if he were admitted to sue in sorma pauperis pendente lite that is whilst the fuit depended he shall pay Costs By Rolle Chief Justice who said it had been so antiently held and ruled 16. Nov. 1650. B. S. But Q what Costs whether the Costs of the whole suit or only with relation from the time he commenced his suit to the time he was admitted to sue in Forma pauperis In a Writ of Dowr if the Plaintiff recover and yet doth not desire a Writ of enquiry of Dammages to recover the Dammages the Court may tax the Dammages 5. Feb. 1650. B. S. The Court may encrease the Dammages which are found by the Jury upon a Writ of enquiry of Dammages in an Action of Assault Battery and Wounding if they see cause upon the view of the party that was beaten and wounded Trin. 1651. B. S. This was done in the Case of Davis Plaintiff and the Lord Foliot Defendant The Court will not compell the party that is non-suit in a Cause to pay his Costs upon the non-suit but if the party will not pay them when they are taxed the Court will not suffer him to commence his suit again untill he have paid them Pasc 1652. B. S. After judgment is given in a Cause depending in this Court the Court cannot make a Rule for the payment of the Costs which were expended in prosecuting the suit By Rolle Chief Justice 1655. B. S. For after judgment the parties are out of Court for the Cause is determined Q. No other Costs or Dammages shall be given upon a Recovery in an Action brought upon the Statute of 2º Edw. 6. for not setting forth of Tythes than the Dammages which are expressed in the Statute which is treble dammages 1655. B. S. For the course of the Common Law in such cases is altered by the Statute and it shall be intended that the Plaintiff hath better satisfaction thereby Deputies The Common Law doth in many Cases take notice of Deputies but it doth never take notice of under-Deputies Trin. 23. Car. B. r. As of the under-Sheriff who is but the Sheriffs Deputy sub-Almoner or Deputy-Almoner For in many Cases an Officer may be Law make a Deputy but a Deputy hath no power to depute another under him The King by his speciall Commission may make Deputy Escheators to finde an Office after the death of an Honourable Person Pasc 24. Car. B. r. As of a Duke Earl Marquess Viscount Baron c. Q. Whether in some speciall Case he may not do it after the death of one that is not of the Nobility It seems he may Default Before a verdict is taken by Default the Cryer of the Court doth call the Defendant three times and then if the party do not appear the Plaintiffs Counsell doth pray the verdict may be so entred Hill 21. B. r. Debt An Action of Debt doth lye against the Husband for goods which were delivered as sold unto the Wife because the Law doth intend that they were employed and came to the use of the Husband Hill 21. Car. B. r. And the Husband and Wife are but one person in Law If there be an erroneous judgment given for the Plaintiff in a personal Action in the Common Pleas and thereupon he brings an Action of Debt against the Defendant upon the erroneous Judgement in this Court the Action will well lye here until the Judgement in the Common Pleas be reversed by a Writ of Error 21. Car. B. r. For an erroneous Judgement is not void but voidable But when it is made void by a Writ of Error then there is no ground to support the Action of Debt so that then it cannot be maintained If one do assume upon a consideration moving from I. S. to perform a thing which concerns A. B. and do not perform it I. S. may bring an Action of Debt upon the Assumpsit against him that did so assum upon himself Mich. 22. Car. B. r. For the Action is grounded upon the promise made and the not performing it to I. S. to whom it was made In some Case an Action of Debt will ye though there be no contract betwixt the party that brings the Action and him against whom the Action is brought Mich. 22. Car. B. r. An Action of Debt lies against a Sheriff for moneys which he hath levyed by vertue of a Writ of fieri facias for the party that did recover the moneys for the Law doth create a privity by the fieri facias betwixt the Sheriff and the party that sued out the fieri facias Mich. 22. Car. B. r. If An Action of Debt be to be brought against an Administrator for Rent which was due by the Intestate upon a Contract made betwixt him and the Intestate in his life time the Action must he brought in the County where the Contract
a Messuage is an entire thing of it self and cannot be apurtenant to another thing Non-sute UPon a Trial when the Jury comes in to deliver in their Verdict and the Plaintiff is called to hear the Verdict If he do not appear after he is thrice called by the Crier of the Court he is to be Non-sute and the Non-sute is to be recorded by the Secondary by the direction of the Court at the prayer of the Defendants Councell Hill 21. Car. B. r. When a Plaintiff is Non-sute if he will again proceed in the same Cause he must put in a new Declaration and cannot proceed upon that Declaration whereupon he did proceed in the Cause wherein he became Non-suite 22. Car. B. r. 16. Ap. 1650. B. S. For by his being Non-suit it shall be intended that he had no such cause of Suite as he deelared in and so that declaration is void The King of Spain hath been Non-suit in England Mich. 22. Car. B. r. And this stands with reason for if a foraign Prince will take the benefit of the nationall Laws here he must proceed and stand to the Rules and orders of the Court wherein he prefers his Action If the Plaintiff will not proceed upon his Declaration as he ought to do by the Rules of the Court the Defendant may Non-suit him Mich. 1649. B. S. Although upon a tryal the Plaintiff be called to hear the Verdict and do not appear to hear the Verdict when he is called and thereupon the Court direct the Secondary to record the Non-suite yet if afterwards the Plaintiff do appear before the Non-suite be actually recorded the Court may proceed to take the Verdict Trin. 1651. B. S. For it is not a Non-suit untill it be recorded by the Secondary and then it is made part of the record and is in the nature of a Judgement against the Plaintiff If the Plaintiff be not ready at the tryal with his Record when the Jury is called the Court will call him Non-suit By Rolle Chief Justice 1651. B. S. For it shall be intended he will not proceed in his cause any further Nolle Prosequi A Nolle Prosequi is where there are divers Issues joyned between the Plaintiff and the Defendant and the Plaintiff enters upon the Roll a Nolle Prosequi That is to say that he will not proceed upon one or more of the Issues joyned and yet he may proceed to tryall upon the rest of the Issues Hill 23. Car. B. r. Nusance A Nusance made in a Port or Haven by the sinking of a Ship there ought to be removed by the owner of the Ship and if he do it not he may be endicted for it as for making a Common Nusance 21. Car. B. r. For it is prejudicial to the Commonwealth in hindering of Trade An Action upon the Case ought to be brought against one that makes a private Nusance and he ought not to be endicted for it Pasc 23. Car. B. r. For Endictments ought to be in the Kings name and do presume to be preferred for offences done against the publike A common Nusance may be abated or removed by those persons who are prejudiced by it Pasc 23. Car. B. r. Nomine Poenae A Nomine Poenae for the non-payment of a Rent ought to be legally demanded if the Rent be behind as well as the Rent is to be demanded before the grantee of the Rent can distrain for it 21. Car. B. r. For the Nomine Poenae is of the same nature as the Rent is and is issuing out of the Land out of which the Rent doth issue Notice The Plaintiff and Defendant are both bound at their perill to take notice of the general Rules of practice of this Court but if there be a special particular Rule of Court made for the Plaintiff or for the Defendant he for whom the Rule is made ought to give Notice of this Rule unto the other or else he is not bound generally to take notice of it nor shall be in contempt of the Court although he do not obey it Pasc 24. Car. B. r. Mich. 1649. B. S. For general rules are the general practice of the Court whereof every one must take Notice of that hath to do there but particular rules are made upon particular and extraordinary matters happening in the proceedings upon the motion of one of the parties made to the Court of which the other may be ignorant The Court is bound Ex Osicio to take Notice of all matters which do appear upon the Record depending before them but of matters Dehors viz. to search the Almanack for dayes and to compute times mentioned in the Record they are not bound Ex Oficio to do it 21. Car. B. r. 24. Car. B. r. Q. The Court is not bound to take Notice of the new stile but of the old English stile 21. Car. B. r. For the old is that whereby all accounts in the Common Law are guided and not by the new which is foreign and goes ten dayes before the English stile or account The Plaintiff ought to give the Defendant eight dayes Notice exclusive before he executes his Writ of Enquiry of Dammages or else the Court will quash it although he have executed it and put him to a new Writ of Enquiry upon the motion of the Defendant made to the Court of his want of such Notice and proof thereof by Affidavit Trin. 22 Car. B. R. and Pasc 1652. B. r. Exclusive is meant that the day upon which the Notice is given is not to be one of the eight dayes but the Writ is to be executed upon the ninth day and so long Notice is to be given that the Defendant may have time sufficient to defend himself by his Councel and Witnesses upon the evidence given against him before the Sheriff and the Jury by the Plaintiff The Common Law doth not take Notice of the intentions of the party to do any unlawful Act except it be in case of high treason Trin. 22. Car. B. r. For mans Law is to regulate the words and Actions of men and not the thoughts of which it cannot have conusanse But Gods Law extends to the thoughts This Court is to take Notice of a general Ordinance of Parliament viz. such a one as concerns the Publique but not of a Parliament Ordinance which concerns some particular persons Mich. 24. Car. B. r. Except such particular Ordinance do appear before them by pleading or otherwise If a Declaration be put into the Office although it be not filed yet is the Defendants Atturney bound to take notice of it Mich. 22. Car. B. r. For it is the Duty of the Plaintiffs Atturney onely to put the Declaration into the Officer and the Officer in the Office is to file it and though it be not filed yet may the Defendants Atturney take a Copy of it None is bound by the Law to give Notice to another of that which that other person may otherwise inform himself
satisfaction the Law will not intend that he is damnified and so he hath no Cause of Action When the Court doth order one to plead presently it is to be understood that he shall plead in such convenient time after as the Court shall judge reasonable Mich. 22. Car. B. r. The Defendant may amend his Plea although it be three Terms after it was pleaded if he will pay Costs Mich. 22. Car. B. r. But it must be by leave of the Court because it is against the common Rules of practice Although a Plea do contain divers matters in it upon which an Issue may be taken yet this Plea is not double if the Plea could not have been good without alleadging all those matters in it Mich. 22. Car. B. r. For though the Law doth not allow captious Pleas yet it doth not deny the Defendant to plead all such matters that his Case affords for his just Defence If the Defendant Plead an insufficient Plea and there is a good Issue joyned upon that Plea and a Verdict given upon that Islue for the Defendant the Plaintiff shall not afterwards take advantage of the insufficiency of the Plea Mich. 22. Car. B. r. For it was his own sault to joyn Issue upon it when he might have demurred upon it Where one Pleads Letters of Administration which are granted by such an ordinary whereof the Law doth take notice he may Plead that they were granted unto him debito more but if they be granted by an inferior ordinary of whom the Law doth not take notice of he must Plead that they were granted unto him per ordinarum illius loci Mich. 22. Car. B. r. That the Court may the better Judge whether they be well granted in regard of the power of the ordinary that granted them or not If the Plaintiff do alter his Declaration after the Defendant hath Pleaded to it the Defendant may alter his Plea Mich. 22. Car. B. r. For by the amendment of it it may be so altered in matter that it mâ—y require a different answer from what was formerly Pleaded and in that case if he should not amend his Plea he might be triced for want of a good Plea In an Appeal brought all the Pleadings ought to be in French Mich. 22. Car. B. r. Because the Statute which enacted that all Pleadings should be in Latin extends not to this Action and so the Pleadings therein are to be in French as all Pleadings were before that Statute But now by the late Act they are to be in English Q. Tamen Whether that Act do extend to this Action or onely to such Pleas as were formerly in Latin When the Court doth order that the Defendant shall Plead it is intended that he must Plead an Issuable Plea Mich. 22. Car. B. r. For the rule is made to quicken the Defendant that the Plaintiff be not delayed by his Dilatoriness and if he might Plead a Dilatory Plea and not issueable the rule would be to no purpose The Court will not upon a motion rule the Defendant to Plead peremptorily by a day before the common rules of the Court for Pleading be out but then they will Mich. 22. Car. B. r. For till then it cannot be said that the Defendant hath delayed the Plaintiff If a Scire facias upon a Recognizance be brought against an Infant he cannot Plead Infancy or nonage to it but he must bring his audita querela and set forth his case therein and thereby his age shall be tryed by the Courts inspecting of him and not by a Jury Hill 22. Car. B. r. If the Plaintiff do release his cause of Action to the Defendant yet the Court will not upon a motion stop the Plaintiffs proceedings in the Action but the Defendant must Plead this release Hill 22. Car. B. r. In bar of the Action for the Court cannot take notice of the release upon a motion It is not a good Plea to Plead a Paroll agreement in bar of an agreement made by indenture between the parties Hill 22. Car. B. r. For an agreement by Indenture is a more solemn agreement and of a higher nature then a Paroll agreement and must be discharged by some act of as high a nature as it is A double Plea is such a Plea that one Issue cannot determine all the matter issuable that is contained in it and also where the Defendant is put to a double answer Hill 22. Car. B. r. And such a Plea is not a good Plea If the Defendant do Plead a frivolous Plea to the intent to delay the Plaintiff and to hinder him from going to a tryal the Court will upon the Plaintiffs motion order the Defendant to plead such a Plea as he will stand to or else to accept of a Demurrer from the Plaintiff unto his frivolous Plea Hill 22. Car. B. r. For it is the Justice of the Court to speed the proceedings in Law and to bring suits to determination as soon as with conveniency and Justice to all parties it may be done By the course of practice in the Court of Common Pleas the principle in a Bond may Plead for his Suerty without his leave or knowledge and acknowledge a Judgement upon the Bond but this Court doth judge it hard practice and will not allow it to be don here Pasc 23. Car. B. r. Now it is said they do not allow it there The practice seemed hard in this respect that the Suerty who intended onely to be bound that the principal should pay the Debt should by the falsity of the principal be presently liable to an Execution for the Debt and be enforced to pay it Where the Defendant may plead the general Issue he ought so to Plead that the whole matter in question may come to be tryed Pasc 23. Car. B. r. For else the Plea is not good because it tenders not such an Issue whereupon the cause depending may be determined which every Plea ought to do for to Plead otherwayes is to no purpose If one bring an Action upon a contract it is a good Plea in bar for the Defendant to Plead quod exoneravit se de Contractu Pasc 23. Car. B. r. For it sounds all one as if he had Pleaded that he hath performed the agreement A Concord by Paroll is no good Plea in bar to an Action brought upon a single Bill which is not penall Pasc 23. Car. B. r. For bare words are not of so great force as agreements put in writting Every Plea must be Pleaded either in bar to the Action brought or in abatement of the Writ upon which the Action is framed otherwise it is but a discourse and not a Plea because the Plaintiff cannot take an Issue upon it and therefore if the Plaintiff do demur upon it and his demurrer be adjudged good he shall have Judgement against the Defendant Pasc 23. Car. B. r. Anciently all Pleadings were in French then by the Statute it was Enacted they should be in
suit is not determined and the Court will intend that he will proceed no further and the Defendant is not to be tyed to attend upon his proceedings upon incertain tyes Although the Verdict given be prejudicial to the Plaintiff as he conceives yet he ought to bring in the Postea Pasc 1651. B. S. 13. Maii. For he must abide by the tryal though it may prove prejudicial unto him A Postea is a record of this Court trusted with the Atturney in the cause by the Clerk of the Assize and the Atturney is bound if he be so trusted to deliver it into the Office that the Judgement may be entred by it by the Officer of the Court Trin. 1651. B. S. It is not necessary to annex the Distringas unto the Postea although it is usual so to do Trin. 1651. B. S. Presumption Where the Plaintiff doth declare in an action of Debt for Rent behind due upon an Indenture of Demise for years it shall not be Presumed that there is any other Rent due or Lease made then that upon and for which the Plaintiff doth declare Mich. 22. Car. B. r. For this would be a foreign construction and for which there is no inducement Where divers houses are let to one by one Lease the Court will Presume that the Lessee is in possession of them all if the contrary doth not appear Pasc 24. Car. B. r. For although the Lessee may possibly have passed away his interest in some of them to other persons yet this not appearing to the Court they will not presume it to be so One Court of Justice will not Presume that another Court of Justice will do unjustice except it do plainly appear unto them that it is so Pasc 24. Car. B. r. For each Court ought to have an honourable opinion of the proceedings of another Court Portes The Cinque Ports are not absolutely exclusive of the Common Law so that it may not intermedle in some Cases with the proceedings in their Courts Mich. 22. Car. B. r. For the Common Law is the universal and supreme Judge of the Nation and no place ought to be so priviledged either by custome or charter as totally to be exempted from its jurisdiction for this might cause a failer of Justice in some cases if it should be so A Writ of Error to reverse a Judgement given in the Cinque Ports is to be brought before the Warden and Constable of Dover Mich. 22. Car. B. r. Whether a Certiorari lies to any of the Cinque Ports hath been a question Pasc 23. Car. B. r. Yet a Certiorari was granted out of this Court to remove a Judgement given at Dymchurch in Kent being a limb of one of the Cinque Poots in Rook and Knights case Mich. 22. Car. B. r. Rot. 381. moved by Launcelot Johnson of the Inner Temple Property He that hath the Land that lies on both sides of a High way hath the Property of the soile of the High-way in him although the King hath the priviledge for his people to pass through it at their pleasures for the Law presumes that the way was at the first taken out of the Lands of the party that owes the Lands that lye upon both sides of the way Mich. 22. Car. B. r. By Rolle So that it seems it is called the Kings High-way because of the priviledge that the King hath in it for his people to pass and repass through it and not in respect of any Property he hath in the soile it self He that hath the goods of another person delivered unto him to keep hath a special Property in them by reason of the delivery of them and may maintain an Action against a stranger that shall take them out of his possession although they be not his own proper goods Hill 22. Car. B. S. Because an Action doth lye against him to whom they were first delivered by him that did deliver them if he shall not redeliver them when he is demanded to do it A Legatee of goods hath no Property in the goods bequeathed unto him before they be delivered unto him by the Executor or Administrator Mich. 23. Car. B. r. For the property of them is not altered by the Will The Rector of a Parish Church shall be intended to be the proprietor or owner of the tithes of the Parish if the contrary be not shewed Trin. 24. Car. B. r. Because generally tithes do belong to the Rector although in many places they do not If the Sea or a River shall by violent incursion and breaking forth carry away the soil of one in so great a quantity that he that had the Property in the soile can know where his Land is he shall have it but if his soil or land be insensibly or by little and little wasted by the Sea or the River he must lose his Land Pasc 1650. B. S. 11. Maii. If one to support the credite of a Bankrupt will suffer the Bankrupt to have his goods in his custody and to dispose of the Property of them the Property of the goods shall be accounted to be in the Bankrupt and the other upon a tryal for the Property of them shall be judged to have lost his Property in them Pasc 1651. B. S. 18. Ap. Because by so doing he was a cause in part that others were deceived by the Bankrupt whose credit he supported and therefore he is justly punished Partition A Partition of Lands ought to be made according to the quality and the true value of the Lands and not according to the quantity or equal number of Acres Hill 22. Car. B. r. For the Partition ought to be equal which is so in the latter but may not be so in the division by equality of Acres Payment Payment of money before the day of Payment appointed is in Law a Payment at the day Mich. 22. Car. B. r. For it cannot be in Presumption of Law any prejudice to him to whom the Payment is made to have his money paid before the time In an Action of Debt brought for Rent due upon an Indenture of Demise of Lands the Defendant may plead payment without a Deed and it is a good Plea in Bar of the Action Trin. 24. Car. B. r. Because the Lessee cannot compell the Lessor to make him any discharge by Deed or Writting upon Payment of the Rent If one buy any thing of another he that buyes it must pay the money contracted for to be paid for it before the seller is bound to deliver him the thing sold Pasc 24. Car. For the contract doth imply such a condition in it A Payment of money shall be interpreted to be made according to his intention that payes it and not according to his intention that receives it Mich. 1650. B. S. 22. Nov. For every one ought to interpret the intention of his own act and not another Procedendo If this Court do proceed to try a Custome of London there the Party may move for
contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. Pasc 1648. B. S. For a Traverse is a denyal of a thing and when a thing is answered what need is there of a denyal of it Where there is a Disseisin and a descent alleadged in a Declaration if the Traversing of the Disseisin will make an end of all the matter there the Disseisin is to be Traversed and not the descent that is in such cases where by supposition the party may come to the estate by Disseisin Pase 24. Car. B. r. Where the Defendant hath confessed and avoided all the matter that is contained in the Declaration there he needs not to take a Traverse Pasc 24. Car. B. r. For a confessing and avoiding is a full answer of the matter alleadged and so there needs no Traverse of it Title If there be an Inquisition found by which the King is Intitled unto Lands and the Inquisition is not answered nor Traversed the Lands found in the Inquisition shall be suppossed to be in the hands of the Kings 21. Car. B. r. Because there appears nothing to the contrary to question the Kings Title If one be admitted to traverse an Office this admission of the party to the traverse doth suppose the Title to be in him 21. Car. B. r. If in an Action of Trespass and Ejectment neither the Plaintiff nor the Defendant can make out a good title then the party that hath had the most ancient possession of the Lands in question shall be judged to have the best Title Pasc 23. Car. B. r. Mich. 1649. B. S. For an ancient possession of Lands is a badge of a Title to them In Action of Trespass brought for taking away of goods the Plaintiff needs not set forth his Title to the goods Pasc 23. Car. B. r. For by the bringing of the Action and by the Declaration it is supposed that they were in his possession before the Defendant took them away from him and that possession is Title enough to maintain the Action He that is made Ejector to try the Title of Land is not bound to defend the Title of the Land if he whose Title is truely concerned will not save him harmeless if the tryal shall pass against him but he may confess a Judgement and save himself of the trouble which otherwise may befall him by being made Ejector Mich. 1650. B. S. The Officer of this Court whose title was to be called the Clerk of the Crown is now called and Intitled Coroner and Atturney for the Keepers of the Liberty of England by Authority of Parliament Mich. 1650. 24. Oct. B. S. But now that Title is also altred and he is called Coroner and Atturney for the Lord Protector Tenement A Tenement may be said to be any House Land or other such like thing which is any way held or possessed and it is a word of a very large and ambiguous meaning and therefore not fit to be used to denominate or express any thing which requires a particular description 21. Car. B. r. Tipstaff The Court will not grant an Attatchment against an Officer of the Court for a misdemeanor committed by him as an Officer of the Court but one of the Tipstaffs which are Officers of this Court called by that name by reason of a staff which they carry tipped with silver is to bring him into the Court. 21. Car. B. r. And they are in the nature of Messengers or Pursuivants c. If a Sheriff do commit a misdemeanor in relation to the Court during his Office and afterwards a new Sheriff is elected whereby the old Sheriff is out of his Office the Court may grant a Tipstaff to bring him in to answer the misdemeanor for being out of his Office the Court cannot fine him for his misdemeanor Pasc 24. Car. B. r. A Tipstaff is to be granted for one that is in London or Westminister but if he be in the Country an Attatchment is to be granted and not a Tipstaff Hill 22. Car. B. r. 23. Car. Pasc 1650. For the Tipstaffs are Officers to attend the Court and are not therefore to be sent out of Town Treason An intention of Treason if it can be proved by circumstances is Treason in the eye of the Law Trin. 22. Car. B. r. To shew the odiousness and greatness of the offence of Treason by punishing the very intentions of it which are not punishable in other offences criminal Time Where the Law doth not imply a certain Time for the doing of a thing nor is there any certain time agreed upon between the parties for the doing it there the Law doth allow the party a convenient Time for the doing of it Mich. 22. Car. B. r. To wit such as shall be adjudged reasonable In some cases one hath time during his life for the doing of a thing if he be not hastened to do it by request of the party for whom it is to be done but if he be hastened by request then he is bound to do it in convenient Time after such request made Hill 22. Car. B. r. Trespass An Action of Trespass doth lye for him that hath the possession of goods or of a house or Lands if he be disturbed in his possession Mich. 22. Car. B. r. If goods be taken by the Sheriff in Execution and the goods be rescoued out of his hands an Action of Trespass lies against him that did rescue the goods Hill 22. Car. B. r. viz. By the Sheriff or by the party at whose sute they were taken and the party may be endicted for a rescous also at the sute of King for disturbing the peace and hindring the Execution of the Law One Action of Trespass may be brought for a Trespass committed in Lands which lye in several Towns or Vills Pasc 23. Car. B. r. So that those Vills do lye in one and the same County An Action of Trespass doth lye for a Parson against him that doth take away his Tithes after they are set forth Pasc 23. Car B. r. For after they are set forth the person hath a property in Law in them although the Parson never had an actual possession of them If divers Actions of Trespass be brought for one and the same cause with an intent onely to vex the Defendant if the Court be moved in it and proof thereof made by Affidavit the Court will order the Plaintiff to joyn all his Actions into one Pasc 23. Car. B. r. For the Judges of the Law do not favor unjust vexations of the people If one do carry another with force into the house of a third person he who carries the other by force into the house is the Trespassor unto the third person and not he who is carryed thither by force and so if one do drive my cattel into the ground of a third person he that drives my cattel into the ground is the Trespassor and not I who am owner of
Parliament or other payments Trin. 23. Car. B. r. Tithes The rector of a Church shall be accounted the proprietor of the Tithes of that Parish to which the Church doth belong if the contrary be not shewed Trin. 24. Car. B. r. Tithes of Land which do not lye in an Parish do properly belong to the King Mich. 24. Car. B. r. For that which no Subject can justly claim is the Kings Lands which lye in a Forest and are in the hands of the King are free from paying of Tithes although they do lye within some Parish but if they be disaforested and come into the hands of another they ought to pay Tithes for the not paying of Tithes for them whilst they were in the Kings hands is but an immunity for the time and not an absolute discharge Mich. 24. Car. B. r. Tithes are not due to be paid Jure Divino but per legem terrae so held by the Court agreeing with J. Seldons History of Tithes Mich. 1649 B. S. If Lands paid no Tithes before the Statute of Ed. 6. or but very inconsiderable Tithes and afterwards the Lands for which the Tithes were paid are improved by the owner he shall onely pay the accustomed Tithes paid for them before the improvement of them to wit for the seven last years immediately preceding the improvement but if no Tithes were paid for them before the improvement no Tithes shall be paid for them after the improvement 1650. B. S. Venue and Venire Facias AVenire Facias ought to be de aliquo vicineto that is neighborhood and there if the Writ of Venire do say Venire Facias homines Burgi it is not a good Venire for it ought to be Venire Facias homines de Burgo 21. Car. B. r. Q Differentiam inter of and from If a special Verdict be imperfect in matter of substance there must be a new Venire that there may be a new Verdict found because the ill Verdict doth not give the Court power to Judge of the matter in Law and so it is also if a demurrer upon an evidence be not good By Rolle Mich. 22. Car. B. r. Trin. 23. Car. B. r. Q. A Venire Facias that is filed cannot be altered without the consent of the parties Mich. 22. Car. B. r. For the filing of it doth make it a Record In an Action of Trespass and Ejectment the venue ought to be from the Vill or Hamlet where the Lands in question do lye and if the Lands lye in no Vill or Hamlet the venue ought to be de corpore Comitatus that is from the body of the County Mich. 22. Car. B. r. The Judges may alter the venue from the place whence by the Law it ought otherwise to be if they believe there cannot be an indifferent tryal in the County where the venue was first laid Mich. 22. Car. B. r. By reason of the great power that one party hath in the County or for some other cause Where the venue cannot be from a Vill Hamlet or lieu conus there it may be de corpore comitatus Mich. 22. Car. B. r. For if it might not be so the cause could not be tryed A lieu conus is a Castle Mannor or other notorious place well known and generally taken notice of by those that dwell about it and not a close or Pasture ground or such like place of no repute Mich. 22. Car. B. r. In all cases where there is to be a special Jury there the Venire Facias must be special Mich 22. Car. B. r. For ordinary forms are not applicable to extraordinary cases If the matter to be tryed be within divers places in one and the same County the Venire shall be general but if the matter be in divers Countries there the venire ought to be special Mich. 22. Car. B. r. For the general form of a venire doth not warrant to return a Jury in one cause out of divers Counties but in such cases to prevent the failer of Justice the Court hath power to vary from the old forms Where a certain place cannot be known whence the venue should be the venue is to be de corpore comitatus and so it is where a custom of the County is to be tryed for the custom runs through the whole County Hill 22. Car. B. r. And therefore may be indifferently tryed by Jurors returned from any part of the County A fault in a Venire is helped after a Verdict by the Statute of Jeofailes but where the venire is wholly insufficient it is not helped for the Statute extends not to such venires Hill 22. Car. B. r. After a Plea pleaded and an issue joyned in the cause the Venire cannot be amended except the parties consent to it Hill 22. Car. B. r. Pasc 24. Car. B. r. Trin. 24. Car. B. r. If the venue be laid in a foreign County and the parties proceed to issue in the cause the Court will not change the Venue afterwards although the Defendant would try the issue afterwards by provisoe Pasc 23. Car. B. r. Where the Verdict is imperfect so that Judgement cannot be given upon it there must be a new venire to try the cause de novo Mich. 23. Car. B. r. For the former tryal is to no purpose If a matter in Law be depending undetermined and an issue also joyned in the cause there must be a special venire awarded tam ad tryandum exitum quam c. Hill 23. Car. B. r. It is not necessary to enter the venire facias before the tryal but the Plaintiffs Atturney ought to give a Copy of it unto the Defendants Atturney before the tryal if he desire it and after the tryal it may be entred Pasc 24. Car. B. r. A Venire de vicineto Civitatis is good without naming of the Parish within the City out of which the Jurors are summoned and so was it said to be adjudged in Gavell and Gippoes case 10. Jacob. contrary to the book of 5. H. 5. For a City may have but one Parish in it The party that will move to have the venue changed he must move for it the next Term after the Action is brought Trin. 23. Car. B. r. This Court ought not to change the venue so that by it the cause cannot be tryed within the jurisdiction of the Court Trin. 23. Car. B. r. If the Defendant will move to change the venue he must make oath that the cause of Action if any be did arise in the County where he would have the venue laid and not in the County where the Plaintiff hath laid his Action and the Defendants Atturney or his Clerk must make oath that he received the Plaintiffs Declaration after the precedent Term and not before Trin. 23. Car. B. r. Or else the Court will not change it Where an Action is brought for a real thing which is called a real Action the venue ought to be laid in that County where the thing is