21 Car. Banc. Reg.

A Prohibition was prayed to the Admiralty,Prohibition. to stop procéedings there, upon a Contract be­twéen the parties suggested to be made upon the land within the body of a County, and not upon the high Sea; And the surmise was penned thus. If there was any Contract made betwéen the parties (as the libel sup­poseth) it was made upon the land within the body of a County, and not upon the high Sea. The Court held this suggestion ill,Suggestion. for the uncertainty of it, and ordered that it should be amended and made absolute, viz. That the Contract was made upon the land, &c. And that the words, if there was any Contract made, should be put out, because they made it uncertain whether there was any Contract or no, and so by consequence did destroy the very ground of the surmise.

Barnaby against Goodale,
21 Car. Banc. reg.
Trin. 21 Car. rot. 201.

A Writ of Error was brought to reverse a judgement given in an A­ction upon the Case in the Court at Owse bridge in York, Error upon a Judgement in an action up­on the Caie. and the first Error assigned was in the Process, because it was by summons; where­as the action being an action upon the Case, which is in the nature of a Trespass; the Process should be by Attachment, and Distress infinite, and not by summons. But to this it was answered by Roll Iustice, that since 10 Iacobi this manner of procéeding is no Error,Error. Capias. and that that Court hath no power to award a Capias in an action upon the case by the Statute of 1 [...] H. 7. two other light exceptions were taken to the venire, but not insisted upon. But the main exception was to Iudgement, which was entred thus, Ideo consideratum est per curiam dicti Domini Regis, whereas (as it was objected) it ought to have been, ideo consideratum est per candem [Page 2]Curiam, or per Curiam praedictam. And at the first the Court seemed to encline,Inferiour Courts. that this was a material exception, for these reasons, viz. because inferior Courts ought not to shew things only by implication; but they ought to shew them expresly, and because surplusages in such Courts are ill: And lastly because inferiour Courts ought to kéep themselves strictly to their an­tient forms, and not to vary from them; yet afterward judgement was a firmed except better matter should be shewn, nota.

Masterman.
21 Car. Banc. Reg.

AN action of Debt was brought in an inferiour Court,Error upon a judgement in an action of Deb [...] upon an Obligation. upon an Obli­gation, with a Condition, for the payment of a certain sum of money at a certain time therein expressed; but no place was limited in the condi­tion for the payment thereof. Iudgement was given for the Plaintiff: The Defendant brings a writ of Error in this Court to reverse this Iudge­ment, and assigns for Error; That because there appears no place of pay­ment for the money in the Condition of the Bond; so that by that it cannot appear whether the cause of action lieth within the jurisdiction of the Court, where the action was brought or not; therefore it should have béen made appear by some part of the Record, that the money was to be paid within the Iurisdiction of the Court,Error. which is not here done, and therefore the Iudgement erronious: The Court held this for error, and ordered that the Iudgement should be reversed, if cause were not shewn to the contra­ry before the end of the term.

Knights Case.
21 Car. Banc. Reg.

A Lease for years was made of certain houses in York, Error upon a Judgement given in an action of Debt for reat. reserving a yearly rent payable in London, and for the rent behind an action of Debt was brought in the City of York, and judgement thereupon given for the Plaintif: The Defendant brings a writ of Error to reverse this judge­ment, and assigns two Errors. 1. That the issue upon which the judge­ment was given was not tryable within the jurisdiction of the Court, where the judgement was given; for the issue was upon the payment of rent, which was payable at London, and not at York, and so payment or not pay­ment ought to be tryed at London and not at York. The second exception was to the Venire, Veane. which was de vicineto Civitatis generally, and names not any Parish in particular whence the jury should come: And to prove this to be a good exception, the Book of [...] H. 5. was urged; but the Court denyed that Book to be Law, and cited Gavel and Gippoes case, 10 Jac. adjudged to the contrary; that de vicineto Civitatis generally, without naming a Parish in the City, is good: But upon the first exception the Court advised.

VVatson against Norbury
21 Car. Banc. reg.
Mich. 20 Car. rot. 156.

VVAtson brought an Action upon the case against Norbury, Action upon the case. for procuring a Commission of Bankrupt against him, by virtue whereof he broke open his Shop, and took away his goods and Shop­books, whereby he was so discreited that he lost his trade, to his damage, &c. To this the Defendant pleads, that the Plaintiff did heretofore bring his Action of trespass for the breaking open of his Shop, and for the taking away of his goods, and had in that Action recovered dama­ges against him, and demands if he shall not be thereby barred in this Act­ion; And that he should be barred the Defendants Councell alleged, that a recovery in one personal Action is a bar in all personal Actions touching the same thing, and that here the Action of trespass formerly brought, and the Action of the case now brought were personal Actions, and that they were both brought for the same thing, and therefore the Plaintiff ought to be barred; It was also urged that an Action of the case lies not in this case, for that, to ground an Action upon the case, there must appear to be malice in the party that did the fact, and prejudice to the party to whom the fact is done, but there appears no malice here, for what was done is said to be done, by virtue of a Commission of Bankrupt which shall be intended a lawfull authority to warrant the fact, and not grounded upon malice, so that malice and prejudice do not both appear, but only damage, and that alone will not support this Action, for neither for damage alone without malice, nor for malice without damage will an Action upon the case lie. But to this it was answered (to which the Court enelined) That this Action upon the case was not brought for the same cause that the Action of trespass was formerly brought, for that was only for the breaking open of the Shop, and taking away his goods, and the damages he received thereby, but this Action is brought for the damage he sustained, by the losse of his credit, and hindrance in his trade thereby, caused by the Defendants taking out a Commission of Bankrupt against him, and by colour thereof breaking open his Shop and taking away his goods, and so disparaging him in his reputation, whereby he lost his trade; and though the breaking open of his Shop, and the taking a­way his goods be named in this Action, as it was in the former Action of trespass,Inducement. yet it is but by way of Inducement to this Action upon his case, and not to recover damages for that wrong,Actions seve­rall. and here being two severall wrongs done to the Plaintiff which do not one depend upon another, the Plaintiff must bring two severall Actions for them, and not joyn them in one Action, because the damages must be several which are to be recovered,Ioynt Acti­ons. but if they had depended one upon a­nother he might have joyned them in one Action, and recovered joynt dammages for both:Ioynt dama­ges. and besides these two Actions differ in their nature one from the other, and the judgements given in them are several, for the Iudgement in an Action of Trespass vi et Armis, as the first Action was, is Capiatur, because there is thereupon a fine due to the King, but the Iudgement in an Action upon the case is ideo in misericordia, and so [Page 4]though the Plaintiff have Iudgement here in his Action upon the case, it cannot be said he hath had Iudgement already; for that must beintended, at least a Iudgement of the same nature, which cannot be in this case. And to that which is objected, that if the Plaintiff should recover damages in this Action, he should recover damages twice for one and the same thing which is against Law; it is answered, that it is not for the same thing but cleerly for another, and if he should not have this Action he were with­out remedy for the damage he suffred in the losse of his Credit, and the damage in his Trade; for in the former Action he recovered no damages for that, for the Iury never took that into their consideration, for they had no power to take any damages into their consideration which hap­pened after the Trespass done, for which the Action was brought, but only for the breaking open of the Shop, and the taking away of his Goods; and although he might at the first have brought his Action upon the case as he hath now done, yet he was not commpellable thereto, but had his Electi­on to bring either an Action upon his case, or an Action of Trespass as should most make for his advantage,Election of Actions for this Election of Action belongs to every subject as his birth right, and he is not to be hindred from it. Adjournatur.

Remington and Kingerby.
Mich. 18 Car. rot. 72.

REmington grants a rent out of certain Lands to Fawne with a clause of distress,Error upon a Judgement in an Annuity in the Com­mon plea [...] and a nomine poenae in the deed for the non payment thereof, according to the time lymited, the rent is behind after the time lymited by the nomine poenae. Fawne brings a writ of Annuity in the Common Pleas for the Arrerages of the Annuity, and for the moneys due upon the nomine poenae, and hath Iudgement. Remington brings his writ of Error in this Court to reverse this Iudgement, and Assignes for Error, that the writ of Annuity did not lie for the nomine poenae, though it did for the rent, for though it was in the Power, and Election of Fawne to charge either the land out of which the rent was to issue with the rent behind by distress, and so to make it a rent charge, or else to bring his writ of Annu­ity for it against Remington, and so to charge his person; yet he had no such Power for the nomine poenae, because it was in the nature of a rent, and was necessarily to issue out of the Land,Nomi [...]e yoe. 1 ae. and not to be charged upon the Person; and it was further alleged that a nomine poenae was an uncertain thing and comes not within the Statute of 21 H. 8. touching Avowries as a rent charge doth which is certain. Another exception was, that it appears notin the Record, that Fawne did make a good demand of this nomine poenae upon the Land out of which the rent was issuing, as he ought to have done before he could bring an Action for it, for though there do appear to be a demand, yet if it appear not to be a legal demand it is Null, and the party shall take no benefit by it. Adjourned.

Nuls and Cheney
21 Car. B. R.

AN Action of the case was brought for these words,Arrest of Iudgement in in Action up­on the case. I do accuse you to be a Witch, and require you to be searched, and a verdict was gi­ven for the Plaintiff; the Defendant moves in Arrest of Iudgement that the words are not actionable, because it is not averred that the party ac­cused had done any hurt to Cattell or otherwise, or hath had any Com­munication wit the Devill. And so the Court held, because the words spoken did not bring the Party of whom they were spoken within the Sta­tute of 10 Jac, concerning Witch-Craft.

Wingfield and Sherwood.

VVIngfield brings an Action of Covenant against Sherwood his Lessee for yeers,Error upon a Iudgement in an Action of Covenant. and declares that he had Covenanted by in­denture that hee would not cut down more tymber growing upon the lands demised than sufficient for needful and necessary reparations of the houses and buildings let unto him; and for breach Assigns, that he had cut down tymber to the value of ten pounds, and had converted them to his proper use; and upon this hath a Verdict and a Iudgement against him: Sherwood brings a writ of Error in this Court to reverse this Iudg­ment, and Assigns for Error, that there was variance between the Co­venant expressed in the lease, and the Covenant set forth in the declara­tion whereupon the breach was assigned, and so the Iudgement was not given upon a breach of the Covenant expressed in the lease, viz. That he should not cut down more tymber than was necessary for reparations; for by this breach the Plaintiff supposeth that the Defendant had Cove­nanted not to cut down tymber to employ to his own use, which is not the Covenant expressed in the lease, but another: And though the De­fendant had cut down tymber, and converted it to his own use,Covenant. this was not a breach of the Covenant expressed in the Indenture, except it be a­verred that he cut down more than was necessary for reparations, and converted it to his own use; and for this Error the Iudgement was re­versed.

Whitwell and Short.
Trin. 21. Carl. rot. 227.

WHitwell brought an Action of Trespass for assaulting, beating,Arrest of Iudgement in an Action of Trespasse. and wounding him, against fowr several persons: three of them plead not guilty, and are found guilty; and the fourth pleads not guilty to part, and iustifies for the rest, viz. The wounding, and is found guilty as to the wounding only, yet the verdict was fond generally for the Plaintiff, and intire damages assessed and Iudgement given, and [Page 6]a writ of Error was brought, and the Error assigned was that the dama­ges ought not to be entire against all, because that the fourth person was only found guilty of part of the trespass, to wit, the wounding, and there­fore as to him the damages ought to have been severed, in relation only to the wounding, and not as it is, for so damages should be given twice for the same thing.Several da­mages. First against the three, and then against the fourth, which the Court granted, and reversed the Iudgement.

VVard and Coggin.
Pasc. 22 Car. rot. 257.

VVArd brings an Action of debt in the Common pleas against Cog­gin, Error upon an action of Debt. and declares that the Defendant in consideration that he the Plaintiff, at the request of the Defendant, had sold certain wares to I. S. did assume and promise to him the Plantiff, that he would pay such a sum of money for them; and for non payment accordingly he brings his Action, and hath a Verdict and Iudgement. The Defendant brings his writ of Error in this Court to reverse this Iudgement, and Assigns for Error, That an Action of debt lyes not in this case, because the debt which the Defendant promised to pay, and for which the Action is brought, was raised, and became a duty before the promise made for the payment of it, and so an Action of debt cannot be grounded for it on the promise. And the words in the declaration do sound meerly upon a pro­mise, upon which a good consideration for an Action of the case may be grounded;Case. but not to bring an Action of debt.

Hogg and Vaughan.

HOgg brings an Action of the Case against Vaughan for these words spoken of him,Arrest of Judgement in an action up­on the Case. viz. Thou art a perjured Priest, and hath a verdict. It was moved in Arrest of Iudgement, that the words were not actionable, for they signified no more than that he was forsworn; But the Court held that they must be meant, that he was guilty of perjury, for which he might be endicted, and therefore were actionable.

Mich. 21 Car.

I. Assumes and promiseth to B. that if B. will pay 50 l. to C. his son,Action upon the case upon a promise. who was maried to D. the Daughter of I. at such a time, that he will pay 100 l. to D. his Daughter at such a time; B. pays the 50 l. to C. at the time appointed, I. fails in payment of the 100 l. according as was agréed; B. dies intestate, and E. administers, and brings an Action upon the Case against I. upon this promise made to B. the Testator; and adjudged that the Action did well lie by the Administrator, though he should receive no benefit if he did recover.

Dickenson and Preston.
Mich. 22 Car. Banc. reg.
Ter. Pasc. 22 Car. rot. 251.

A Writ of Error was brought by Preston, Error to re­verse a Judge­ment in York. to reverse a Iudgement a­gainst him at York, and assigns for Error, that the Venire was de Balliva sua, whereas it ought to have been de corpore Comitatus, and it cannot appear by the Venire to what place the Balywick extends; and the Balywick of the City may extend further than the City, and upon this the Court adjudged the Venire naught.

More against Savage.
22 Car. Banc. reg.

MOre Widow brings an appeal against Savage for the death of her Husband; Savage appears and demurs to the original writ,Demurrer up­on an appeal and shews for cause, that in one part of the writ, instead of the word tun [...] it was tuc, which made the Writ incertain To this the Council of the o­ther part answered, That it ought to be amended by the Statute of 14 E. 3. and that the Writ ought not for so small a fault to be abated; But to this it was replyed, that the Statute was only for the amendment of mean process, and not of original Writs; for original writs were not amenda­ble, because the party might purchase a new writ if a former were naught. In justification of the writ it was further urged, that the word tunc in the writ was a méer formal word, and not of the substance of the writ: and that the writ would be good enough without it; and therefore though it were mistaken, it was not so material, as that the writ should be thereby abated: But the Court answered, that an original writ, if it be defective in form, is abatable, if it be not amendable by Statute, and conceived, that here it being in an appeal, where life is in question, the writ is not a­mendable, though it be defective but in form, neither by the Common Law nor by any Statute Law, nor can the party purchase a new writ, adjour­natur; but afterwards, viz. 9. Feb. 22 Car. the writ was quashed for the cause aforesaid, and because it did not appear that the feme who brought the appeal was wife to the party slain at the time when he was slain. It was thereupon moved that the Defendant might be arraigned upon the Count, though the writ was abated; but the Court held he could not, be­cause the Count was founded on the writ which was abated, and these books were cited, 4 H. 6.14. and 18 E. 3.35. upon view of presidents he was afterwards discharged.

Luskins and Carver.
22 Car. Banc. reg.

THe Case was this, Anne Carver made her last will and testament,Prohibition to the Prae [...]o­gative Court, and a Manda­mus. and makes Luskins her Executor, having bona notabilia in divers Dioces­ses: Luskins proves the will in an inferiour Diocess, and not in the Pre­rogative [Page 8]Court, as he ought to have done, a stranger sues for Letters of Administration in the Prerogative Court, Luskins desires to prove the will there, and that he may administer, the Court refuseth to admit him to ad­minister the goods, except he will put in security to the Court to pay all the Legacies; but if he shall refuse, will grant Letters of administration to the stranger.Mandamus Luskins moves in this Court for a writ of a Mandamus, to compell the Prerogative Court to grant him the administration, according to the will. The Court ruled the other party to shew cause the next day why they should not grant such a writ; and were of clear opinion they might do it, and to prove it, the Countesse of Barkshires case, Hill. 20 Iac. and the case of St. Burien in Cornwall was cited, and the same Term the writ was granted accordingly.

Fortescue and Brograve.
22 Car. Banc. Reg.

T [...]e Plaintiff brings an action for breach of Covenant upon a Deed,An action up­on a breach of Covenant by deed. The Defendant pleads a parol agreement afterwards, in discharge of the former Covenant; but the Court held the plea not good, and took these differences,Plea That a parol agreement before a breach of it, may be dischar­ged by parol, and so pleaded; after a breach it cannot be pleaded in dis­charge without satisfaction also pleaded;Concord. but a discharge may be pleaded by Deed be the Covenant by Parol or by Deed after a breach, and with­out satisfaction.

Broome and Evering,
Hill. 22 Car. Banc. Reg.
Hill. 21 Car. rot. 354.

A Iudgement was given against the Testator of the Defendant,Error to re­verse a judgement given in a Scire facias to revive a judgement in debt. in an action of Debt for rent, and this judgement was revived by a scire fa­cias against the Executor, and a verdict thereupon, and a judgement was given against him in the Common pleas; upon this a writ of Error was brought in the Kings Bench to reverse this judgement, and the error assigned was, that the tryal was insufficient, because the Venire sacias was not good, and is not helped by the Statute of Ieofails, and to prove this, Baynams case in the 5th. Report was cited. But Hales answered, that the Venire facias being awarded before it ought, was to be accompted as if no Venire had been awarded, and said it was like to a dedimus to take a fine before the writ of Covenant issued forth to levy the fine, and so concluded, that it was helped by the Statute of Jeofails. But the Court took a diffe­rence, ☞ where in truth there was no Venire facias at all, and where there is an ill Venire facis as it is here, for thought it be as bad as may be, yet being it is a Venire facias, it is not helped by the Statute of Ieofails;Er [...]or J [...]o [...] ils but if there had been none, the Statute had made the tryal good without it; and there­upon day was given to shew cause why the Iudgement should not be a [...]fir­med. Pasch. 23 Car. the Iudgement was affirmed.

Andrews Case.
Hill. 22 Car. Banc. Reg.

A Recognizance was acknowledged at Serjeants Iune in Fleetstreet, Where a Sci­re facias upon a recogni­sance shall be brought. and delivered and enrolled at Westminster. The Court held that it was at the election of the Recognisee to bring his Scire facias either in Lon­don, where the Recognizance was acknowledged, or in Midlesex, where it was delivered and enrolled: But adjourned. Afterwards, viz. Pasc. 23 Car. the Court held that the Scire facias ought to be where the recognizance is ta­ken, and not where it is recorded; for there it begins to be a Record; but this being in the Common Pleas, it was good both ways, and thereup­on the party had his judgement.

Rooke and Knight.
22 Car. Mich.
Mich. 22 Car. rot. 381.

A Iudgement given in the Court at Dym Church, Demurrer to a Scire facias upon a judge­ment remo­ved out of the Cinqne Ports by Certiorari in the Kings Bench. a limb of one of the Cinque Ports was removed by a certiorari into the Kings Bench; and thereupon issued a Scire facias for the Defendant, to shew cause why the Plaintiff should not have execution upon the judgement; to this the De­fendant appears and demurs, and takes these exceptions, 1. That it is not expressed where Dim Church is. 2ly. In the retorn of the alias certi­orari, it is said, sicut prius, and not sicut alias. 3ly, the Sheriff in the re­forn is not namned Knight and Baronet; neither doth he name himself by his name of Baptism and Surname; But the Court did over-rule all these exceptions, and gave judgement for the Plaintif.

AN action of the Case was brought for these words,Action upon the Case for words. Thou hast stoll'n my wood, and the Court inclined the words were actionable, but not if he had said, thou hast stoll'n my Trees, and it was said that a precipe will lie of a wood; for it shall be intended of woody ground; adjourned. Pracipe

Helliar and Grace his VVife.
Pasch. 23 Car. Banc. Reg.

AN action upon the Case was brought by Helliar and his wife,Action upon the Case upon an Assumpsit. upon a promise made unto them, during the Coverture; and it was moved, (a verdict being given for the Plaintifs) in arrest of judgment, that the Action ought to have been brought in the name of the Husband only, and not by the husband and wife; and a case to prove it was cited out of Dyer, Dyer 91. and upon this exception the judgement was arrested till the other should shew cause to the contrary; And in this case it was said by the Court, that if an Obligation be made to baron and feme; that it is the better opinion,Joynt action that the baron may bring an action upon this obligation in his own name only, and not name his wife, or else he may at his election bring the action in the name of himself and his wife joyntly.

Betsworth and Betsworth.
Pasch. 8 Maii 23 Car. Banc. Reg.

It was moved for a Prohibition to the Prerogative Court upon a sur­mise that the party did endeavour to barstardise one that was legitimate. But the other party answered, that the surmise was not true, and urged, that the sute in the Praerogative Court was only,Pr [...]hibition to the Praero­gative Court. whether Letters of ad­ministration were by them well granted, or no, and not concerning Ba­stardy as the surmise sets forth, and therefore desires the Prohibition may not be granted; and for confirmation thereof the case was put, which was this: Betsworth had a wife called Bridget, who died; after he takes ano­ther wife called also Bridget, and dies intestate; Bridget the second wife takes Letters of administration of the goods and chatels of her husband deceased; the son of Betsworth sues in the Praerogative Court to repeal these Letters of Administration, upon pretence that Bridget the first wife of Betsworth was yet living. In this case the Court delivered these positi­ons following.Jurisdiction, 1. That one ought not to sue in the Ecclesiastical Court, to Bastard an issue,Ordinary but at the Common Law. 2. Where the Ordina­ry hath granted Letters of Administration to one that ought to have them, they ought not to be repealed by them. 3. Where a sute is in the Eccle­siastical Court for lands and goods,Prohibition a Prohibition may be granted as to the lands; and they may procéed there notwithstanding, as to the goods. 4. That in this Case at the Bar, neither Bastardy of the issue, nor ma­riage is in question, as is surmised, but only the validity of the Letters of Administration,Incidents and that the other things are but as incident to the matter in question. 5. That wife or not wife is triable at the Common Law; but whether lawfully maried or not,Tryal is tryable in the Spiritual Court. 6. Where a thing is tryable in the Spiritual Court, and there is also a matter incident to it, which is tryable at the Common Law, there a Pro­hibition shall not be granted.Prohibition Evidence 7. That a thing concluded in the Ecclesiastical Court touching lands, cannot be given in evidence in a tryal at Law for Land. 8. If the Common law differ from the Civil Law, touching the legality or non legality of a thing, if they will proceed according to their Law, a Prohibition lies, because the Common Law is to be prefer­red. The rule of Court was,Prohibition That a Prohibition should be granted, and that the other should demur upon it; and so it might be debated whether a Prohibition would lie or not, and to stay in the Spiritual Court in the mean time.

Pasch.
23 Car. Banc. Reg.

ONe brought an Action upon the Case against I. S. for preferring a bill of Endictment against him,Arrest of judgement in an action up­on the case. for stealing of a Mare, and that the grand Iury found an ignoramus, whereby he was discharged; the Plain­tiff obtains a Verdict against the Defendant. The Defendant takes these exceptions to the declaration in Arrest of Iudgement, 1. That it doth not appear thereby, that the Party who preferred the bill of Endictment gave any evidence to the grand Iury touching the bill. 2ly. It appears not that the Plaintiff was bound over to answer the Felony, and consequent­ly was not molested [...]y it, and so he can have no Action: But the Court [Page 11]stayed the Iudgement to another day upon the exceptions taken,Case. and sayed that an Action upon the Case lies for procuring one to be Endicted,Endictment. although the party himself do it not, and that one may exhibit a bill of En­dictment to a grand Iury without Oath,grand Jury and they may notwithstanding find the bill, and although it be exhibited upon Oath, they are not bound to find it, if they see cause to the contrary, and that in the case at the barr the Action might be as well grounded upon the scandal, which grew to the party who was Endicted, as upon the trouble which might have befallen him by reason of the preferring the bill against him.

Hellena,
Pasc. 23 Car. B. r.

AN Action upon the Case was brought for these words,Arrest of Iudgement in an Action up­on the Case. Hellena is a great Witch, and a Verdict found for the Plaintiff; It was mo­ved to stay Iudgement, because the words were not Actionable, for they did not shew that the Plaintiff had bewitched any thing, or done any thing that brought her within the compass of the Statute 1. Jac. against Witch-Craft: Iudgement was hereupon stayed.

VVilliamson against Henley.
Pasc. 23 Car. Banc. Reg.
Trin. 21 Car. rot. 362.

AN Action of Debt was brought upon an obligation,Arrest of Iudgement in Debt upon an obligation. the condition was, that if the Defendant did sell the tithes in Ransom more that he should pay the Plaintiff such a sum of money, but if he sold them not, that then he should deliver an obligation to the Plaintiff, for the payment of a certain sum of money therein expressed at a certain day therein limited, and for non performance of the condition is the Acion brought. The Plaintiff obtains a Verdict; the Defendant moves in Arrest of Iudge­ment,Time. that he ought to have convenient time for doing of the things ex­pressed in the condition, and that it appears not by the Record that he had convenient time, and so there is no breach of the condition. But the Court held, that the time between the date of the obligation, and the bringing of the Action was a conveninent time, and that there being a se­cond thing to be performed in case the former were not done, that there­fore that former thing ought to be done in some reasonable time, elce the party would be too much prejudiced by staying to have the second thing performed, and therefore ruled that Iudgement should be entred without better matter should be shewed.

Savages Case, Pasc. 23 Car. B. R.

SAvage was Endicted for forging, and publishing of Letters of cre­dence to gather money,Error upon a Judgement upon an En­dictment. and was convicted, and Iudgement given a­gainst him upon his own confession, and 100 l. fine set upon him, et quod capiatur. Exceptions were taken to this Iudgement. 1. That it did not appear wher he received any money by virtue of these counterfeit Letters, nor at what time: But the Court answered, that the substance of the of­fence for which he was Endicted was,Endictment. the forging and publishing of the Letters, and not the collecting of the money; for though he had not col­lected a penny, yet the Endictment was good. A second exception was, that the Endictment did not say quod Counterfecit falso: But the Court held that the word Counterfecit necessarily implyed in it the word falso, and so not material whether falso were expressed or omitted. 3ly. It was objected, that the party was committed before he was convicted; But to this the Court answered,Conviction. that he was committed upon his own confessi­on, which is a conviction in Law, and the Iudgement held good, and affirmed.

Needler and Guest.
Pasc. 23 Car. Banc. Reg.
Entred Trin, 1649. rot.

NEedler brings an Action of Covenant against Guest, Artest of Iudgement in a breach of Covenant. upon Articles, a­mongst which one was to allow such a sum of money to an under Clerk, in the six Clerks Office by the sheet, for every quire of paper he should writein copying and engrossing of bills, answers, &c. as was expres­sed in the said Articles: and upon this Needler obtains a verdict against Guest. In Arrest of Iudgement divers exceptions were taken and over-ru­led, but one was insisted upon, which was this, that there was more found in the breach of the Covenant assigned then was contained in the Cove­nant it self, for it was found, that he had not payed for 72 sheets which was 5 quire and a half, and so damages were given for more than ought to be,Breach. for the Covenant was to pay so much the quire and mentions not any half,Damages. and for this the Iudgement was stayed: for the Court said that the Law would not supply a casus omissus to bring it within the Cove­nant to ground a breach thereupon,Supply. what ever the intent of the partyes was that were parties to the Articles.

VVhitley and Fawsett.
Pasc. 23 Car. Banc. reg.

VVHitley brings an Action of Trover,Action of Pro­ven for distrai­ning & selling his Cattel. and Conversion against Fawsett, for taking his Cattel by way of distress, and selling them by virtue of a warrant of Commissioners of Sewers for not pay­ing [Page 13]of a tax set by them towards the reparation of Sea walls: the De­fendant pleads all the speciall matter, by way of justification, the Plain­tiff demurrs to this Plea, and upon the demurrer takes these exceptions to it. 1. To the setting forth of the Commission, in that he shews not that three of the Commissioners were of the quorum. The 2d exception was, that in his Plea he had not s [...]t forth the Authority of the Commissi­oners; To that the Court answered it was not necessary. 3ly. That the Plea was but argumentative, which makes it naught. 4ly. It appears that there are 800. Acres of Land which are in the hands of the King,Tax. which are not taxed as by law they ought: and so the tax is unjust, because by the not taxing of them, a greater burden was laid upon the rest of the Land, than of right ought to be; and this the Court held a good exception, and said that the Kings Lands are taxable by the Statute. 5ly. The Sta­tute is not pleaded as it ought to be. 6ly It doth not expresse, that Whit­ley in whose occupation the Lands are that are taxed, is the Assignee to Lynsee the owner of the Lands, but he may be a meer stranger, and so not taxable, nor his beasts to be sold. 7ly. It is not set forth, that he shewed his warrant, before he distrained, as he ought to do:Distresse. In this case the Court first said that one may distrain, and sell the Cattel of the owner of the Land taxed, or his Assignee, for non payment thereof,Sale. but doubted whether a strangers Cattel might be distrained and sold: Roll Iustice took these Exceptions to the Plea. 1. Plea. That the Plea did not set forth the limits of the Commission as it ought to do, and was therefore ill. 2ly. He said the Plea ought to have shewed, that three of the Commissioners were of the quorum. 3ly. That it did not appear by the Plea that the Lands taxed, where the distresse was made, are within the Level, to be taxed by the Commissioners. 4ly. The Tax is of the Land of such an one, and his Assignes, and this is too generally expressed, and cannot be levyed equally by such a tax. 5ly. The Plea sets not forth, that there was any notice given to Whitley of the tax made before the distresse taken, as there ought to have been, and for these reasons, he concluded that the Plea was not good. Bacon Iustice held. first,Waiver. that the Party had waived his benefit of the Plea given him by the Statute, by pleading specially, and he ought to make good his plea, as he hath pleaded it at his own pe­rill: He held likewise, that there ought to be notice given of the tax, and a demand of it, before any distresse might be taken, and that the Plea was defective in this. 3ly.Notice. That he cannot sell a strangers goods for the tax as Whitley is, for ought that appears in the Plea. 4ly.Demand. By the Plea it appears, that he hath distrayned one Acre of Land for all the tax, which ought not to be, and upon these exceptions the rule was for the De­fendant to shew cause before the end of the Term, why the Plaintiff should not have Iudgement.

Sr Maurice Abbot.
Pasc. 23 Car. Banc. reg.

SIr Maurice Abbot had a Iudgement against one and dies,Motion to Vacate a Iudgement. and three years after Execution is taken out in his name, upon the Iudge­ment the Court was moved to vacate this Iudgement. but would not, for they said that there was no help in this case, but by bring­ing a writ of Error,☞ Error. except there can be any fraud proved in the proceed­dings, [Page 14]and then the Court will take order to help the Party grieved:Fraud. And thereupon ruled to examine the Attorney, and the Partyes whether there was due proceedings or no.

Vill de Charleton in Kent.
Pasc. 23 Car. Banc. reg.

A Man was killed at Charleton in Kent, Motion to quash a pre­sentment and take off A­mercements. upon which the Coroner takes an inquest, and returns it into the Crown Office: upon this a pre­sentment was drawn up in the Crown Office against the Vill. of Charle­ton, and found, and thereupon issues went out against the Vill: It was moved for the Vill to have them discharged, by reason that the present­ment was not good, for it was grounded upon the Statute of 3 H. 7. chap. and sets forth that such a person was killed at Charleton, and that the mur­derer fled away in the night, by which it appears that the Vill. is not lya­ble to be amerced within the Statute: for the murtherer ought to escape in the day by the Statute,Amercements and not in the night, and for this it was quashed, and the Amercements discharged.

23 Car. Banc. reg.

THe Court was moved to quash an order of sessions,For quashing an order of the Sessions of Peace, for keeping a Basta [...]d. made for the keeping of a Bastard Child, and these exceptions were taken to the order: First the order was, that the Party should pay a weekly sum for the keeping of the Child, whereas no such order could be made without the Parties consent, for by the Statute he is only compellable to secure the Parish, where the Child was born, that it should not be any charge to the Parish. Another exception was, that it appears not that the Iustices had any power, to make any order at all in the case, for it appears not where the Child was born, and so it may be it was born in an other County, where these Iustices have no authority to Act any thing concerning it. Vpon these exceptions it was quashed.

THe Court was moved for a certiorari to the Court of Sandwitch, For a certic­ratio to re­move Endict­ments out of one of the Ci [...]que-ports. to remove four Endictments there for shooting in a Gun, and pulling up of a post, because the facts, for which the Party was Endicted, were not done within the Iurisdiction of the Court; But because Sandwitch was one of the Cinque-ports, and it had been a question heretofore whe­ther this Court could send such a writ thither, The rule was only for cause to be shewn why a certiorari should not be granted.

Tory.
Pasc. 23 Car. Banc. Reg.

TOry brings an Action of Trespass, and false imprisonment against I. S. simul cum aliis. &c. The Defendant pleads not guilty,Arrest of Iudgement in an Action of Trespasse. and a Verdict is given against him for the Plaintiff; It was moved in Arrest of Iudgement, that the declaration was not good, because it declares a­gainst I. S. by name solely, and it ought to have been joyntly against him with the others, naming them also, because the trespass was joynt, and not against I. S. alone; but the Court held that the declaration was good, be­cause it was with a simul cum, although the Persons were not named,Declaration. and said that this was the constant course of the Common Pleas: And that an ejectione firmae against one simul cum had been ruled to be good,Ejectio ne [...] ­mae. and so u­sed in the Common Pleas, although heretofore it hath been adjudg­ed to the contrary: yet the Iudgement was stayed till the other should move.

Jones against Young.
Pasc. 23 Car. Banc. Reg.
Hill. 22 Car. rot. 1857.

IOnes brings an Action of Assault and Battery against Young, Young justifies as servant to I. S. because,Error to re­verse a Iudg­ment against the Plaintiff in Trespasse. that Jones came to fish in the seve­ral Piscary of his Master. Iudgement was given for the Defendant: A writ of Error was brought, and two exceptions taken. 1. That where­as Young, had in his Pl [...]a of Iustification entitled his Master to the seve­ral Piscary by the Kings Letters Patents, he had not shewn that the King was seised of this several Piscary jure Coronae, and so it might be the King had no power to grant it. 2ly, He doth not shew his Letters Patents, which he ought to do, because he derives a title by them;Title. The rule was to shew cause Saturday next why the Iudgement should not be reversed.

The Earl of Lecester against Mrs. Samford.
Pasc. 23. Banc. Reg.

IN a Trover and Conversion, brought by the Earl of Lecester against Mrs. Samford for certain Iewels, the Trover being laid to be in Kent, but the Offring the goods to sell, being the Conversion of them being in Lon­don; It was doubted where the tryal should be, and the Court sayed, that generally a transitory Action is to be laid where the fact was done,Venire. yet the Party is not tyed to lay it there, but may lay it in another County, and in this case it was held by the Court, that the Plaintiff may bring his Action where the Iewels were sold, and that was in London, as well as in Kent, where the Trover was laid,Trover. for part of the ground of the Action to wit the Conversion was in London, though part of it, name­ly the Trover, was laid to be in Kent.

Basely and Baseley.
Pasc. 23 Car. Banc. Reg.

A Writ of Error was brought to reverse a Iudgement given in Nor­witch, and the Error Assigned was,Error to re­verse a Iudg­ment in Nor­witch. that there did but five of the Iury empanelled appear at the tryal, and yet a Verdict was given, and Iudgement thereupon. The Court said that a Corporation cannot grant a tales, neither if they could, doth it here appear that there was a tales granted, and therefore reversed the Iudgement.

Sir VVilliam Bronker.
Pasc. 23 Car. Banc. Reg.

SIr William Bronker was brought before a Iustice of Peace, upon an information made,Habeas cor­pus, for one committed by a Iustice of peace for refusing to find sureties for the good behaviour that he had choated one at play with false dice: the Iustice requires him to find sureties for his good behaviour, and upon his refusal commits him to Prison. Sir William Bronker brings his habeas corpus in this Court, and upon the retorn this matter appear'd, the Pri­soner prayes by his councell to be delivered, because there appeared no mat­ter sufficient upon the retorn why he should be committed, but because the G [...]oler desired time to amend the retorn, the Court granted it, and would not deliver the Prisoner, but took vail for his appearance, viz. the Earl of Dover, Good behavi­our. and Earl of Chesterfield. And the Court then said, that a Iust­ice of Peace cannot bind one to the good behaviour upon a general infor­mation, or commit him to Prison for refusing to find suretyes for his good behaviour upon such information.Imprisonment

VVroath and Elseye.
Pasc. 23 Car. Banc. Reg.
Hill. 22 Car. rot. 1224.

AN Action of Debt was brought against Elseye an under Sheriff, by Wroath the high Sheriff upon a bond given him to save him harmlesse,Demurer to a plea in Debt upon an obligation. &c. the Defendant pleads that he hath saved him harmlesse, to this the Plaintiff demurs, and held a good demurrer, for he ought to have pleaded non damnificatus, and not generally that he hath saved him harmlesse, for that he may do in many things, and yet the Plaintiff may be damnifyed in some other things where in he was also bound to save him harmlesse. The rule was to shew cause why Iudg­ment should not be given for the Plaintiff.

VVhite.
Pasc. 23 Car. Banc. Reg.

A Iudgement was given in an Action on the Case brought by an Attur­ney for these words spoken of him;Error to re­v [...]rse a Iudg­ment in an Action on the Case for words. Thomas White is a perjured Knave, and a suborned Knave. A Writ of Error was brought, and divers ex­ceptions taken, but the principal were two. 1. That the words a [...] not well laid, for they are adjective words, and so not positive enough to ground an Action. 2. The words are not Actionable, because it is not de­clared, that the party of whom they were spoken was of any Trade, or had any office: But Bacon Iustice over-ruled all the exceptions, and or­dered cause to be shewn next day, why the Iudgement should not be affir­med. The Case of one Nicholas and Webb was afterward cited,Case. where Iudgement was given in the Common pleas for calling an Atturney Knave, which Iudgement was said to be afterwards affirmed in the Kings bench, 12 Car. Trin. rot. 102.

Saunderson and Martin.
Pasc. 23 Car. Banc. Reg.
Trin. 22 Car. rot. 867.

A Iudgement was given in an Action of Debt upon an obligation,Error to re­verse a Iudg­ment in Debt to perform such a promise made by the Obligor, to the Obligee; and a Writ of Error was brought to reverse this Iudgement. The Error as­signed was, that the breach of the promise was not well assigned, for it did not appear when this breach of promise was. Bacon Iustice The breach of promise is the sole cause of the Action, and it appears not to the Court when that was, and for this he reversed the Iudgement.

Paine and Skeltrom.
Hill. 23 Car. rot. 740.

AN Action of Debt was brought upon an obligation,Demurrer a Plea in Debt upon an Obligation. the condition was, that Skeltrom the Defendant with his Wife should appear at the Marshals Court, and for not appearing according to the condition was the Action brought; Skeltrom appears and pleads, that at the time of the obligation he was solus et innuptus. To this Plea the Plaintiff demurrs. Rolle Iustice said, this Plea was not the same with ne unques loyalment accouple, for one extended to a feme de facto, and the other to a feme de ju­re. The Court then advised of the Plea. but Trin, 23 Car. ruled to shew cause tomorrow why Iudgement should not be given for the Plaintiff.

Stoughton and Day.
Pasc 23 Car. Banc. Reg.

SToughton an undersheriff brings an Action of Debt against Day one of his Bailiffs,Demurrer up­on a Declara­tion in Debt upon an Ob­ligation. upon an obligation with a condition to save the under­sheriff harmlesse in executing of processes, and other things contained in the condition, and Assignes the breach of the condition to be, that the Bai­liff had not Executed such his warrant sent to him upon a processe to him directed out of the Exchequer to levy issues upon certain lands. To this declaration the Defendant demurs, and shews for cause, 1. That the warrant to him directed by the undersheriff, was made out of the County where he was undersheriff, and so could not be said his warrant as under­sheriff of that County. 2. It is not alleged, that the mannour of Addinson, where he was by the warrant to levy the issues, is within the Hundred where the Bailiff hath Iurisdiction;Warrant. And this the Court held to be a good exception, and said, that the breach Assigned is not shewed to be within the Condition of the Obligation; because the Baily cannot execute a pre­cept out of the Hundred where he is Bailiff; and Thereupon the rule was that the Plaintiff Nil capiat per billam, if cause were not shewn Tuesday following.

Cook and Fincham,
Pasc. 23 Car. Banc. Reg.

A Iudgement was given for Cook, For vacating a Writ of Ex­ecution. upon an information upon a Sta­tute, exhibited by him on the behalf of the King and himself, where the King was to have ten pounds of the penalty recovered: Cook takes out an Execution upon this Iudgement, to levy the whole sum of money recovered to himself; as appeared to the Secondary upon examination of the matter referred to him. Upon this the Court held the writ of Exe­cution to be ill;Execution. because it was entire for the whole sum recovered to the party, whereas 10 l. was due to the King, and ordered a new Writ of Execution, and to stay the money in Court, till further advice of the mat­ter taken.

Clark and Pew.
Pasc. 23 Car. Banc Reg.

AN Action of Trover and Conversion was brought by Clark, Arrest of Iudgement in an Action up­on the Case. against Pew and his wife, and the Declaration was, that the goods were found by the Baron and Feme, and were converted ad usum suum, whereas it ought to be in the plural number, to wit, ad usum eorum, or ad usum of Pew and his wife; for as it was, it supposed the Conversion to be made only by the Husband, which is contrary to the Action it self, which is brought against both. Upon this Iudgement was stayed till the other should move.

Long and Bennet.
23 Car. Banc. Reg.

LOng brings an Action upon the Case against Bennet, and declares, that he would not suffer him to take unum Acrum ligni which he had sold to him in such a place.Arrest of Iudgement in an Action up­on the Case. After a Verdict for the Plaintiff, it was moved in Arrest of Iudgement, that the Declaration ought to have been unum A­crum bosci, and not ligni, for that was uncertain. The Court said, they would Advise of the exception,Declaration. because it was in an Action of the Case The same Term Iudgement was given, because Damages only were to be recovered, and the words used were but inducements to describe the thing for which Damages only were demanded, yet it might have been more properly expressed.

Barker and Martyn.
Pasc. 23 Car. Banc. Reg.

THe Plaintiff brings an Action of Trespasse,Arrest of Iudgement in an Act [...]on of Trespass. and declares against the Defendant for breaking his house, and taking away quinque Instru­menta ferrea, Anglice, Fetters: and a verdict was for the Plaintiff. It was moved in Arrest of Iudgement, that the word Instrumentum is not a word that signifies Fetters; but that it is so general a word that it may expresse any other thing as well, and that the Anglice joyned with it, to interpret what it means, cannot help it, because there is a proper La­tin word which might and ought to have been used to expresse Fetters by Rolle Iustice said, that by the Statute all pleadings ought to be in Latine. Pleadings. and every particular thing therein ought to be expressed by a Latin word, if there be a proper Latin word for it, as here there is, and therefore the pro­per Latin word being not used, but another which cannot signifie the thing, the Anglice doth no good; but part of the Declaration shall be judged to be in English, and so it cannot be good. And judgement thereupon was stayed till the other sould move.

Curtice and Columbine.
Pasc. 23. Car. Banc. Reg.
Mich. 22 Car. rot 433.

CUrtice brings an Action upon the Case against Columbine upon an As­sumpsit by paroll, to find meat, drink, lodging,Error to re­verse a Iudge­ment in an Action upon an Assumpsi [...] &c. for the Plaintiff, and to teach him the trade of a mercer. This agreemet was afterwards by consent of both partyes put into writing. Vpon the tryal the Plain­tiff obteins a Verdict upon the paroll agreement, and hath Iudgement thereupon. The Defendant brings his Writ of Error in this Court, and Assignes for Error, that there was no Assumpsit declared upon, or pro­ved sufficient, to warrant the Verdict and Iudgement, because that by reducing the Agreement to writing, the paroll agreement became ipso facto void, and so no Action could be brought upon it; but it ought to have [Page 20]been brought upon the Agreement expressed in the deed, and the issue ought to have been joyned upon that, and not upon the verball Agreement, which is void. The rule of Court was to shew cause why Iudgement should not be reversed.

Barker and Martin.
Pasc. 23 Car. B. R.

BArker brings an Action of Trespass for an Assault and Battery against Martin, simul cum, Arrest of Iudgement in Trespasse. &c. and hath a Verdict against him. It was moved in Arrest of Iudgement, that the Action ought to have been brought particularly, against the other Trespassors together with the Defendant, and not against the Defendant in particular, with a general simul cum a­gainst the rest, which is uncertain, and signifies nothing against the rest, and the rather, because the Action is commenced by bill, and not by o­riginal; although it could not be good though it were by original: but it was said by Rolle Iustice, that it may be the Plaintiff could not Arrest the other Trespassors,Trespasse. and that he will do it when he can, and that he may well proceed against them at divers times as he can take them, but that whensoever he shall have had satisfaction for the Trespass done him from any one of them, he cannot proceed against any of the rest; and it was ruled that Iudgement should be entred.

Cook and Allen.
Pasc. 23 Car. Banc. Reg.

A Iudgement given in an inferior Court was reversed in this Court,Iudgement reversed be­cause the Ve­nire was ill. inferior Court Common pleas. because the Venire was, Venire facias, &c. and did not shew from what place the Venire should bee, which, by Rolle Iustice, ought to have been expressed at large, it being in an inferior Court, and not with an, &c. although the use of the Common pleas be to make the Venire short, with an, &c.

The King and Holland
Entred 16 Car.
Argued Pasc. 23 Car. Banc. Reg.

THe case was in effect this.An argument upon a special Ve [...]dict. A Copyhold was surrendred to I. S. in trust, that Holland an Alien, should take the profits thereof to his own use, and benefit, upon this an inquisition was taken for the King, and this matter found: whereupon the lands were seised into the Kings hands, and upon a tryall concerning these lands, a special Verdict was found, comprising the aforesaid matter. The case was argued against the Kings Title, by Mountague of the Middle Temple, and for the Kings title, by Hales of Lincolnes Inn. The substance of Mountagues Argu­ment was, 1. To consider the nature of the trust; 2. The nature of the land out of which the trust was raised: and for the first he held, be­cause [Page 21]it was a trust for an Alien to take the profits of the land, and in that the Alien had no estate in the land; therefore the King could not have it, as he might have had the land if the Alien had had any Estate in it: and he said that this trust was a thing only in Action, and lies in privity, and not to be seised upon by another; and said a Villein was a parallel Person in law to an Alien, in respect of purchasing of lands, and had a Copihold been surrendred thus in trust for a Villein, the Lord should not have seised it; and this is but a trust not Executed, which is in the nature of a use at the Common law, and not as it is now by the Statute: besides, this trust is raised out of Copyhold lands, and therefore the King cannot seise the lands which the Alien hath not, for if he should, the Lord of whom the land is held, would be preiudiced; and he cited Beverlyes case 4. rep. 126, and a case in 23 Eliz: Hales on the other side Argued, that the King shall have the trust, and laid these two grounds. 1. That there may be a trust raised upon the surrender of a Copyhold; and 2ly. that the surrender settles the trust in the Alien, and cited 11 H. 4.26. and he said these things were con­siderable, 1. Whether the King shall have any thing, and what he shall have; 2. Whether he shall have a use for an Alien at the Common law, or a trust; 3. Whether he shall have a trust raised out of a use. And for the first, he said, that the trust was not a thing meerly in Action, but an hereditament; and partly in possession. and cited Cooks Institutes 469. and said, the reason why an Alien may not purchase lands is, because that this Kingdom might not be impoverished thereby, by transporting the re­venues of the land into a forein Country, and putting a part of it under the subjection of a forein Prince, and the same reason comes to the case in question, and therefore is not to be suffered; and every Alien that pur­chaseth is said to purchase to the use of the King, and so shall it be in this case, and although a thing meerly in Action is not transferable to a Com­mon person, yet is it transferrable to the King: but this case is stronger for the King, for here is not a thing meerly in Action but mixed with an interest, and it is no reason, but that the law which was made to meet with the subtility of such Alien purchasors, should take place here; and it cannot be said that that law was made to give remedy to the King for that he had before, and a Feoffment now made in trust for an Alien is all one with a use at the Common law; and he cited 19. Jac. that trusts made to St. Iohn Daccombe of Annuityes for the Lord Summersett attainted of Treason were adjudged to be forfeited: and he held,Daccombe. that there is no diffe­rence between a trust raised out of a Copyhold and other lands, and if he hath an interest here in the profits, the seisure is good, though he have no in­terest in the land, for the land may be seised by the profits; 5 H. 5. fol. 9. Title. But Rolle Iustice demanded of Hales, how the King shall be intitled to the profits of the land, where he is not intitled to the land it self? and said, that the Chancery cannot compell one to Execute a trust for an Alien,Chancery. and that a trust was invented only to avoid the Statute of uses, and said, that a trust is not a thing in Action,Trust. but may be an inheritance or a Chatell as the case falls out. Adjourned po­stea.

White and Pynder.
Pasc. 23 Car. Banc. reg.
Mich. 22 Car. rot 440.

IN an Action of Trover and Conversion,Demurrer up­on an evi­dence. there was a demurrer joyned upon the evidence; and thereupon the Court directed the Iury to find damages for the Plaintiff, if upon the argument of the demurrer the law should be adjudged for him, and then the parties desired the Iury might be discharged, and referred the matter to the Iudges, to determine the law upon the evidence. In this case Rolle Iustice took this difference, to wit between pleading of a Record,Record. and giving a Record in evidence to a Iury.Plea. If it be pleaded it must be sub pede sigilli, or else the Iudges cannot judge of it. But if it be given in evidence, though it be not sub pede sigilli, the Iury may find it,Evidence. if they have other good matter of inducement to prove it. And the partyes in this case were advised by the Court for their own expedition, to let there to be issued a venire facias de novo, and to waive the demurrer upon the evidence, because it was not good, nor could bring the matter in question before them that they might determine it, for one party saith there is a writ, and the other saith there is not a writ, which is bare matter of fact, and not for us to determine but for a Iury, and the demur­rer ought to have been whether the writ be good or whether it be bad, and should have admitted that there was a writ tyel quel, and then had the whole matter come legally before us, to wit, whether the evidence given to the Iury be sufficient for them to find a verdict for the Plaintiff upon the issue joyned or not. But the Court will advise.

Hamond and Kingsmill.
Pasc. 23 Car. Banc. Reg.

HAmond brings an Action upon the case against Kingsmill for these words,Arrest of Iudgement in an Action of the Case for words. spoken of him in relation as he is a Iustice of peace, to wit Mr. Hamond did put in of his own head these words in an examination taken by him. viz. I. S. did steal twenty sheep of such a mans, and for speaking these other words of him; Hamond was a debauched man, and is not fit to be a Iustice of peace, and hath a verdict against the defendant, who moves in Arrest of Iudgement that neither the former nor the latter words were actionable, for for the former words, that he did of his own head put in words into the examination, are words uncertain, and dubious what is meant by them, whether that he added any thing of his own invention, to the examination which was not confessed by the examinant, or that he only put the substance of the matter confessed into words of his own endicting, and if he did no more that was justifiable, and so it shall be taken here ra­ther [Page 23]than in a worse, and strained construction to ground an Action upon: and for the second words, to say that he was a debauched man, and not worthy to be a Iustice of peace, they cannot be scandalous, for they are spo­ken of him in relation to what he was in time past, before he was a Iustice of peace, and not as he was at the time of the speaking, and it is no scandall to say, a man hath been debauched, for it may be he is now other­wayes. But for the first words it was answered by the Councel on the other side, that they were actionable, for they must be taken according to Common construction, viz. that he had added not only words of his own invention to the examination, but the matter it self expressed in those words which was not confessed by the examinant. And as to the latter words, it was answered they were also Actionable: and a Case was cited where Iudgement was given against the Defendant for saying of one, that he was a corrupt Iudge. Rolle Iustice was of opinion,Case. that the first words were Actionable, but not the second for words saith he ought to be taken ac­cording to usuall, and Common construction, though they are not to be strai­ned, for otherwise a man may be abused by subtility, and shall have no re­medy, and Iudgement may be given here for the first words,Iudgement. and not for the second, the Damages being severall, but if the Damages had been in­tire there if Iudgement could not be given for both the words, it cannot be given at all. Bacon Iustice much to the same purpose as Rolle, and said, that the first words shall be meant, that he added words of his own inventi­on without any instruction of the party, for oftentimes dubious words shall be taken in the worse sense upon consideration of the Circumstances that accompany them, and he was also of opinion that the second words were actionable, and are as scandalous as the former. Iudgement was gi­ven for the former words, and for the latter the Court would advise.

Barrett.
23 Car. Banc. Reg.

AN Action of Trespasse was brought for digging in his land,Arrest of Iudgement in Trespass. and carry­ing away a certain number of loads of earth, and a Verdict was for the Plaintiff. It was moved in arrest of Iudgement that the declaration was incertain, for the Trespasse is laid to be done in land, lying in divers Towns. 2ly. It is not shewed what kind of soil the earth was that was caryed away: but both the exceptions were over-ruled, and Iudgement ruled to be entred nisi causa, &c.

Conisby and Fairfax.
Pasc. 23 Car. Banc. Reg.

A Iudgement was given in an Action of Trespass in the Court of Owse­bridge in York, Error to re­verse a Iudge­ment in Trespasse. & a writ of Error was brought in this court to reverse the Iudgement, many exceptions not material at all were taken, and many [Page 24]others that were helped by the Verdict; but the three chief Exceptions were. 1. The Damages were declared to be ad valentiam quingint. librar. instead of quingent. for there is no such word as quingint, to express any number, for if it be meant to express Fifty, it ought to be quinquagint, but quingent. signifies 500. 2ly. The Venire was directed Balivis de Wapentagio, whereas there is no such word, for the word to express a Wapentake is Wapentachi­um, so that it ought to be de Wapentachio, and not Wapentagio. 3ly. The Ve­nire is,Venire. Venire facias de baliva, and sayes not what Baliwick, which is uncer­tain, and it cannot be known, whither it extends and upon these Exceptions the Iudgement was ruled to be reversed, except better matter shewn Sa­turday following.

Pasc. 23 Car. Banc Reg.

VPon a motion for quashing an Endictmet against a Baker,For quashing an Endict­ment for using the Trade of a Baker. these Exceptions were taken. 1. He is indicted for using facultatem pisto­ris, and doth not say panis humani. 2ly. It is for baking panis tritici, Ang­lice, Houshold bread, whereas it signifies only bread made of Wheat, and not Houshold bread, for that may be made of other corn. 3ly. For ba­king panis Assis without a dash for panis Assisae. Vpon these Exceptions it was quashed.

Pasc. 23 Car. Banc. Reg.

VPon a motion for quashing an Endictment against one for apprehending I S. & unprisoning him,For quashing an Endict­ment for are­sting and im­prisoning one. these Exceptions were taken to it. 1. It sayes that he apprehended & imprisoned the party without a Warrant, whereas it ought to have been absque aliqua rationabili causa, for in some Cases a man may be apprehended and imprisoned without a Warrant, but in no Case without a reasonable cause. 2ly. The Endictment is, that he did not shew him the cause why he apprehended and imprisoned the party, and that he is not bound to do, and yet the party may be lawfully imprisoned. 3ly. The Endict­ment doth not say, that he apprehended and imprisoned the party falsely, as it ought to have done. Vpon these Exceptions it was quashed.

Drake and VVhitacre.
23 Car. Banc. Reg.
Hil. 22 Car. Rot. 1318.

AN Action upon the Case was brought,Arest of Iudg­ment in an Action upon the Case for words. and a Verdict found for the Plaintiff for these words, Margaret Whitacre (viz. meaning the Plaintiff) did steal my Wood, and I will send her to Bridewell. It was moved in arrest of Iudgement that the words were not actionable, for doubtfull words as these are ought to be taken in mitiori sensu, and Wood here may be understood standing Wood, and not Wood cut down, and so it could not be Theft but a Trespass: on the other side it was answered, that Wood shall here be understood Wood cut down, and not standing, and being coupled with the words Margaret VVhitacre is a Thief, which are scanda­lous words, they shall be interpreted equally scandalous, Ayre & Higgins his [Page 25]Case was cited to prove it, where it was adjudged that these words, He is a thief and hath stollen my Corn, shall be understood of Corn cut down, and not standing, and therefore are actionable. Roll Justice said, it was a strong Case that the action will lye.Case. Notwithstanding Iudgement was are­sted till the other should move. This was again moved Trin. 23 Car. and the Court held, that the first words alone were actionable, but whether coupled with the other they were actionable, the Court was divided, viz. Bacon a gain the Action, and Rolls for it.

Pasc. 23 Car. Banc. Reg

IN an Action of Trover and Conversion, and a verdict for the Plaintiff,Arest of Iudg­ment in Tro­ver and Con­version. it was moved in arrest of Iudgement that the Plaintiff did declare for Books & for Stockings found & converted, and doth not shew what Books, viz. whether English, or Latine, or what other Language, nor whether Law books, Divinity, Physick, or of any other Subject, and because he doth not declare what sort of Stockings they were, whether wollen, wo­sted, or silk, &c. But the Court over-ruled the Exceptions and said, that Books were not things of divers species, Species. be they of what Language or sub­ject they may be of, neither the Stockings, for were they silk, or wollen, or wosted, they were but Stockings, and so ruled Iudgement to be entred.

The King and Place.
Pasc. 23 car. B. R.

PLace was endicted before the Lord Finch and Iustice Crawley for speaking words against the Queen Mother of France, Error upon a Iudgement given upon an Endictment for words. the words were these, The Queen Mother is the Whore of Babylon, she is a Whore and hath had a Bastard; upon this Endictment jugement was given against the Defendant. A Writ of Error was brought in this Court to reverse the iudgement; The Errors assigned were, 1. That the proceedings up­on this Endictment were too speedy, and so illegal; for the whole proceed­ings upon it were acted in one day. 2ly. The Endictment lyes not, for it is founded upon the Statute of Scandalum magnatum, Scandalum magnatum. and here can be no such great Scandal, for that is for words spoken of a Peer of the Realm, and the Queen Mother is not so. 3ly. There is no Capiatur upon the Roll, as it ought to have been, the Defendant being not in Prison at the time of the iudgement given. 4ly. The iudgement is that the Defendant shall be imprisoned for a year without bail or mainprise, whereas he ought to be delivered upon paying his Fine. Adjourned to the next Term.

Pasc. 23 Car. Banc. Reg.

AN action of Debt was brought upon a Bill penall,Arest of Judg­ment in Debt upon a Bill penal. and a verdict for the Plaintiff. It was moved in arrest of iudgement, That the Plaintiff hath not shewed, that the Defendant did not pay the mony at the day limited in the Bill, but only says, non solvit, &c. 2ly. He de­clares, that the Defendant was bound to pay such a sum legalis monetae, and doth not say Angliae, but the Court over-ruled both the exceptions, and ruled the Plaintiff to take his Iudgement.

Pasc. 23 Car. Banc. Reg.

A Motion was made by one Town against another neighbour borde­ring Town,For a Writ a­gainst a vill to make them keep their Fences. Scire facias. Plea. for a Writ to make them repair their fences; And it was granted, but it was said by the Court, that the Writ so grant­ed should be but in the nature of a Scire facias refornable in this Court, to enable them to plead to it, and not to compell them to do it without being admitted to plead. Notwithstanding the opinion of Noy Attorny General, and he old Record of Ed. the 2ds. time produced heretofore by him to strengthen it Nota.

Trin. 23 Car. Banc. Reg.

A Motion was made upon an Affidavit to stay Process out of this Court against the party for a Deodand, To stay Pra­cess for a De­odand. because he had payed three pound for it to the Kings use to Sub-Deputy Almoner upon a composition made with him, Bacon Iustice, Certificate. Notice. procure the General Deputy Almoner to acknow­ledge it and procure his Certificate to the Court, for of the Sub-Deputy we can take no notice.

Trin. 23 Car. Banc. Reg.

THe Court was moved to quash a Endictment of forcible entry upon these Exceptions.To quash an Endictment of forcible En­try. 1. There is no addition of the County where the party dwells that made the forcible entry, as there ought to be by the Statute of 1. H. 5. Addition. and without this addition no Process can be awarded to out-law the party, for it must be directed unto the County where he dwells. 2ly There is no County expressed where the vill lies in which the force was committed. Vpon these Exceptions it was quashed.

Trin. 23 Car. Banc Reg

AN Endictment was preferred 5 years before,To discharge one endicted for Recusan­cy. against Count Arun­del for recusancy. It was now moved that he would plead Conformi­ty, but in regard that he must plead it by Certificate under the hand and seal of the Bishop of the Dioces, and Bishops were now taken away by the Parliament,Certificate. Conformity. he was disabled to do it, but had a Certificate under the hands and seals of the Minister and Church-wardens of the Parish where he dwelt, upon Oath testifying his Conformity, and thereupon it was pray­ed he might be discharged. But the Court answered, that there is another remedy given by the Statute, which he might have followed, though the former was taken away, to wit, to conform at the Sessions, and it was his own fault that he hath lost that advantage by removing the Endictment hither by Certiorari, and therefore we will not at present deliver him, but will consider of the Statute, and stay the Process in the mean time.

Trin. 23 Car. Banc. Reg.

IT was moved to the Court that there was an Execution duly issued out of this Court and returnable here this Term,Against an In­junction out of the Chan­cery to stay execution. and that since it issued forth, the Defendant had obtained an Injunction out of the Chancery to stop the exe­cution. The Court answered, that all the Iudges were agreed that an In­junction out of the Chancery lyes not after a Iudgement, be the Bill put in before or after the Iudgment it matters not, but if after a Iudgement there be a Writ of Error brought to reverse it, and pending the Writ an Injun­ction be obtained, Q. whether it lye or no by the Reporter. Injunction.

Bruer and Sowthwell.
Trin. 23 Carol.

BRuer brought an action upon the Case upon an Assumpsit to pay so much mony for Currance sold unto him discomputando for four Months.Arest of Judg­ment in an a­ction upon the Case. The Defendant demurs to the Declaration for the incertainty of it, because it is discomputando for four Months, and expresseth not for how much he should discount, and so there can be no certain dammages given, and upon this it was stayed till the other party move.

Whiteacre and Hillwell.
Trin. 23 Car. Banc. Reg.
Hill. 22 Car. rot. 1318.

VPon a Verdict had for the Plaintiff in an action upon the Case for these words Magaret Whitacre is a thief & hath stollen my Wood, Action on the Case for words. and I will send her to Bridewell, It was again by the Plaintiff moved for Iudgement, because the words were actionable, and shall be meant of Wood cut down & not standing; and it was said, though the first words should in themselves be doubtfull, yet are they made certain by the words that are coupled with them. But Bacon Iustice denied it and said, that Bridewell is a Prison for Correction, and not the Sheriffs Prison for felons, and that one may be sent thither although the offence be not felony, and that the cutting of Wood standing is to be punished with whipping, and so the party may be sent to Bridewell for that offence, and said, that the last words are explanatory of the former, that he meant not the fact charged upon the Plaintiff to be felo­ny, but had not the later words been added to explain his meaning, the for­mer alone are clearly actionable. But Roll Iustice held the words as they are laid to be actionable, and cited Hyfords and Stamps Case, Trin. 11 Iac. & Doleman and Youngs case, 5 Car. and Smith and Wards Case, 21 Iac. and said that in the Case at Bar, that the latter words were cumulative and not interpretative, and that where there are expresse precedent words to make one a Thief, there ought to be violent words subsequent to give them another interpretation, and not words which may be taken by implication, as they are in this Case. Adjourned.

VVatson and VVatson.
Trin. 23. Car. Banc. Reg.
Hill. 22 Car. rot. 1687.

AN Action of Debt was brought upon an Obligation with condition to stand to an award.Action of Debt for not performing an award. The Defendant pleads no Arbitrement made: The Plaintiff replyes, and sets forth the award, and Assigns a breach; the Defendant demurs, and for cause shews that the award is uncertain and not finall, for it is, that one of the parties shall pay so much money to the other as shall be due in conscience, and that cannot be known how much it may be, and consequently there is no award, but both parties are at li­berty to go to law as they were before,An incertain award not good. and so no end is made between them by the award according to the intent thereof, and these books were cited a­gainst the award, 20 Ed. 4. fol. 1. et 4.9 H. 7, fol. 14.8 Ed. 4. fol. 20. It was ruled by the Court to shew cause why Iudgement should not be against the Plaintiff per nil capiat per billam.

The King and Place.
Trin 23 Car. Banc. Reg.

THe Case between the King and Place adjourned,Error to re­verse a Judg­ment upon an Endict­ment upon the Statute Scandalum Magnatum. Pasc. 23 Car. was a­gain moved, which was this: Place was indicted before Finch and Crawley Iustices of Oyer and Terminer, for these words spoken against the Queen mother of France, viz. the Queen mother is the Whore of Ba­bylon, and is a Whore, and hath had a Bastard, and all the Noblemen that will not ioyn with me against her, are Rogues and Rascalls. To this endictment the Defendant pleaded, and was found guilty by the Iury, and Iudgement given against him: Whereupon he brings his Writ of Error in this Court to reverse the Iudgement, and Assigns these Errors. 1. against the body of the Endictment it self, and that he ought not to be En­dicted for the words, because they are neither spoken against the Common law nor against any Statute law. 2. Against the proceedings upon the Endictment, which were against law, being too speedy, for he was Endict­ed before Iustices of Oyer and Terminer, and tryed in one day, whereas there ought to have been 15. days betwixt the preferring of the Endict­ment, and the tryal. 3. The Venire is against law, for the Court did chuse try, and swore the Iury, which ought not to be. 4. Part of the Iudgement is, that the Defendant shall be bound to his good behaviour, which cannot be upon such an Endictment as was before them. 5. The Endictment doth not say, that the words were spoken contra pacem. 6. Part of the Iudgement is, that he shall be set upon the Pillory, and lose his cares, which no law warrants, but only to be set there to the view of the people,Imprisonment with a paper on his head. 7. The Iudgement is that he shall be imprisoned for a year without bail, which ought not to be. To this last exception the Court answered, the party might be so committed; But they said, that the Iustices of Oyer and Terminer cannot try an Endictment the [Page 29]same day, nor Iustices of peace at the same Sessions in which it was pre­ferred;Tryall. and they cited one Barnabyes Case 13 Car. and Pridians Case, 6 Car. & 22 E. 4. et Plow. 44. But they said Iustices of Eyr, may try an Endict­ment the same day; Roll Iustice said, the Kings Bench is a Court of Eyr in the County where it sits,Eyr. and therefore they may try an endictment remo­ved here out of the same County the same day, but not if it be removed hi­ther out of another County, for in that case it is only a Court of Oyer and Terminer. But Bacon denied it, and said so was my Lord Cooks opini­on, and it was also said that Iustices of Oyer and Terminer cannot pro­ceed upon an Endictment which is not taken before themselves, but Iust­cices of Gaol delivery may; and the Court also held, that the juratores electi tryati et jurati by the Court, as it must necessarily be here understood,Iury. was illegal, for the Iury ought to be electi by the Sheriff out of the County; and lastly the Court held, that legally there ought to have been 15 dayes between the Endictment, and the tryal, and for these reasons ordered to give notice to the Kings Sollicitour, or Serjeant, to shew cause why the Iudgement should not be reversed.

Hill and Farmer.
Trin. 23 Car. Banc. Reg.
Hill. 17 Car. rot. 674.

AN Action of Debt was brought in the Common pleas upon an obliga­tion,Error in Debt upon an obli­gation and a Iudgement upon a demurrer was given for the Plaintiff; the Plaintiff brings a Writ of error in this Court to reverse the Iudge­ment, and Assignes for Error that the Obligation upon which the Action was brought, and Iudgement was given, is a void obligation by the Sta­tute of quinto and sexto of Ed. 6. made against buying of Offices. But Roll Iustice answered, that the Iudgement in the Common pleas was given upon a mispleader there, and therefore you should make that good first before you move new matter. And there is another Error also in the pleading, which was not touched upon in the Common pleas, which is this, first the plea is of the Office of the delivery, within the Office of the Armo­ry,Declaration. and after he referrs the plea to the Office of the Armory which is another Office, and so she Declaration is double. Another exception was that the word Armentarius was used for Armamentarius. Monday following was given to shew cause why Iudgement should not be reversed.

The King and Marshall.
Trin. 23 Car. Banc. Reg.

MArshall brings a Writ of Error to reverse a Iudgement given a­gainst him upon an Endictment of barratry,Error upon an Endict­ment. and takes these excep­tions. 1. That it doth not appear in the Endictment, before what Com­missioners the Endictment was taken, upon which the Iudgement was [Page 30]given, and so the Endictment is not good for the incertainty of it, and con­sequently the Iudgement is erroneous that is given upon it, for it ought to appear by the Endictment that it was taken before the Iustices of Assi­se, or Iustices of Peace, or of the Gaol-delivery. 2. The Iudgement is, quod solvat tantam denariorum summam, and shall find sureties for the good behaviour, and this is rather an award than a Iudgement. To this exception Roll Iustice answered,Iudgement. if it be a good order it is a good Iudgement, and the order is part of the Iudgement, yet let the Kings Councell have no­tice, and the Prosecutor shew cause why the Iudgement should not be re­versed.

Trin. 23 Car. Banc. Reg.

VPon a verdict given in an ejectione firmae it was moved in Arrest of Iudgement,Arrest of Iudgement in an ejectione firmae. and the exception was, that the Plaintiff was ejected de uno Crofto, which was said to be of an uncertain signification; and because the Plaintiff conceived the Court doubted whether an ejectione firmae lay of a Croft, he durst not defend it, but moves for a special Iudgement for the rest of the land contained in the Declaration, and prayed that he might re­lease the damages as to the Croft. Rolle Iustice doubted whether an e­jectione firmae lyes de uno Crofto, Ejectione fir­mae. Formedon, Assise. and said that a Formedon lyes not of a Croft, but that an Assise doth, because it is put in view to the recognitors, but a Praecipe lyes not of it. The rule of Court was, that the Plaintiff should take a special Iudgement as he desired, and release the Croft, and the da­mages to all, and that he should have his Costes.

Lere and Cholwitch.
Pasc. 23 Car. Banc. Reg.

LEre brings an Action of Debt upon an Obligation against Cholwitch; Arrest of Iudgement in Debt upon an Obligation. the condition of the Obligation was, that a certain sum of money should be paid to the Plaintiff 40 dayes after he should return with his Ship to such a Port of discharge for fraight for his Ship, and for non payment accor­dingly is the Action brought; The Plaintiff hath a Verdict, The Defen­dant moves in Arrest of Iudgement, and takes these exceptions. 1. That the averment of the breach of the condition of the Obligation is not certain, and therfore not good,Fraight. for it doth not aver that the Ship was discharged of his Goods, or that the 40 dayes were expired before the money deman­ded; To this Rolle Justice said, it is not usual to pay fraight for a Ship, till the owners have their goods delivered, but here the condition of the bond is, to pay the moneys within 40 dayes after his return to such a port of dis­charge,Intendment. and it is not intended, that the money shall not be paid till the 40. dayes be past. The 2d. Exception was, that he doth not say where the Ship was unloaden; To this Rolle answered, that it shall be intended that it was unladen at the port where she arrived, if the contrary be not shewn on the other side. 3ly. There is no notice expressed to be given of the unloading of the Ship,Notice. and this being a collaterall thing, and penall to the Defendant, he ought to have notice of it; To this Rolle said, that one par­ty might as well take notice of this as the other, for the thing to be done is [Page 31]not to be done either by the Plaintiff, or Defendant, and the issue is found against the Defendant, therefore let him shew cause Tuesday next why Iudgement should not be given for the Plaintiff. Afterwards the same Term Iudgement was given accordingly.

Segar and Dyer.
Trin. 23 Car. Banc. Reg.
Mich. 22 Car. rot. 125. or 135

DYer brings an Action of Trover and Conversion,Error to re­verse a Iudg­ment in Tro­ver and Con­version. in the Court at Bristow against Segar, and hath a Verdict, and a Iudgement against him; Segar brings his Writ of Error in this Court to reverse this Iudge­ment, and Assignes these Errors. 1. To the Declaration which was of the Trover, and Conversion, de uno pollo, Anglice a Colt, whereas Pul­lus signifies not a Colt, but properly a young Hen, and hence we had the word pullet but in a general acception of the word it may signifie also other young things, but then it must have an adjective of the species which it is to signifie, or a substantive of the gentive case joined with it, as pullus equi­nus, pullus Asininus or Asini and the like, and ought not to be used alone to signifie a colt, with an Anglice joyned to it, as it is here. The 2d. Exception was, that it is not well set forth, how the Court was held where the Iudge­ment was given, for he doth not shew that the Court was held either by letters patents, or by praescription, but saith ad curiam tentam tali die coram A. D. I. H. &c. a tempore cujus contrarium memoria hominum non existit, &c.prescription. which cannot be a good praescription, for a Court cannot be held at such a day, and before such particular persons, if it be not expressed to be secundum consuetudinem. The rule of Court was to shew cause Tuesday following why the judgement should not be reversed.

Trin. 23 Car. Banc. Reg.

THe Plaintiff declares that the Defendant had covenanted with him,Demurrer up­on a Declara­tion in an A­ction of Co­venant. to pay him so much money as he should expend for repairing, and vict­ualling a Ship for him, and averrs that he had expended 300 l. in repairing and victualling it, and that he gave the Defendant notice of it at such a day, and for non payment he brings his Action of breach of Covenant. The De­fendant protestando that the Plaintiff had not laid out 300 l. in maner and form as he had declared, demurs to the Declaration upon these exceptions. 1. That that the Declaration was not good, because he had not averred a speciall breach of Covenant: But to this Roll Iustice said, that this ex­ception had been often over-ruled. 2ly. It was objected, that in this case the Plaintiff should have brought an Action of Debt,Election of Action. and not of Covenant. But to this also Roll answered, that it was well enough, for it is in the election of the Plaintiff to bring either an Action of Debt, or an Action of Covenant, and that it hath been heretofore questioned, whe­ther an Action of Debt did lye in this case, but it was never doubted but that an Action of Covenant did very well lie.Debt. A third exception was that there is [Page 32]no request alleged to pay the mony, and without request he was not bound to pay it.Demand To this Roll answered, that the Plaintiffs Action was not an Action of Debt where a Demand is necessary, but it is an Action of Cove­nant, and there it is not needfull to allege a Demand.

Boomer and Payte.
Trin. 23 Car. Banc. reg.

PAyte the Administrator of the Goods and Chattels of I. S. brings an action of Debt against Boomer, Demurrer up­on a Declara­tion in Debt. and declares, that the Intestate brought an action of Debt in the Common Pleas against three, and had a Iudge­ment against them, and a Capias ad satisfaciendum against two of them was directed to Boomer the Defendant, being then Sheriff of the Countywhere the parties lived, to execute, and that accordingly he did execute it by taking the parties, and afterwards did suffer them to escape, and for this the Plaintiff brings his Action.Debt. To this Declaration the Plaintiff demurs. But Roll Iustice said, he saw no cause for it, for an Administrator may have an acti­on of Debt against a Sheriff upon an Escape suffered of a Prisoner of the Intestate in his life time, and ordered the Defendant to shew cause Tuesday next why the Plaintiff should not have Iudgement.

The City of London and Estwick.
Trin. 23 Car. Banc. Reg.

STephen Estwick prays a Writ of Restitution to be restored to the place of a Common-Councel-man of the City of London, For restituti­on to the place of a Common-Councel-man of London. being put out of it by the Lord Maior and Court of Aldermen, and also committed to New­gate; the Writ is granted and directed to the Lord Maior and Court of Al­dermen, who thereupon make a logn retorn, setting forth at large the causes why he was deprived and committed, and why he ought not to be resto­red, which in brief was for carrying himself in a tumultuous way at an ele­ction of Common-Councell-men, and disturbing the election; this Retorn was read and filed, and the Councel thereupon prayed he might be restored, because there was not sufficient matter shewed in the Retorn why he should not be restored, and these exceptions were taken to the Retorn. 1. That it was too general, and shews not what manner of disturbance Estwick made at the Court where the election was. 2ly. Part of his misdemenour is set forth to be clamando & veciferando, which are words very uncertain and not proper to set forth a disturbance. 3ly. It was said he was bidden to withdraw, and refused, and it is not shewn why he should withdraw. 4ly. The custom set forth for the Lord Maior and Court of Aldermen to im­prison ad placitum is not good, but they should have shewn that such impri­sonment belonged to them per consuetudinem, or by the Common-law. 5ly. They say, that they had used to imprison for such causes, and do not shew where the custom is used. 6ly. They say quaedam quaestio orta est touching the election of one to be a Common-Councel-man, and shew not [Page 33]his ability for the place. 7ly. By the incertainty of the Retorn the Plain­tiff cannot plead to it. 8ly. It is said, that when he was commanded to go forth, he said he would not, but it is not said that he did not go forth. 9ly. It is said that the Court of Common-Councel tendred the Covenant, whereas they have no power by Ordinance of Parliament to do it. The Recorder of Councell with the City desired time to amend the Retorn in matter of form only. And said, that the Plaintiff was removed from his place by a Court of Record, and therefore hoped he should not be this way restored, and that he had no loss by being removed, and therefore the Case was the less considerable; and whereas it was objected against his amending of the Reton, that it was filed, & so too late to move for it, He said, that it was not filed by order of Court, but only ordered that Copies might be taken of it for Council to peruse, and if so then it is not too late to pray it may be amended, but though it were filed he conceived that in a case of this importance it might be amended in matter of form as some Reforms had been formerly in this Court. Roll Iustice answered the Recorder to this effect, You ought to shew some cause upon which the party may have reme­dy by a Writ of Error, or otherwise,Return. if Iudgement be wrongfully given a­gainst him, which you have not done; and as to the filing of the Retorn,Filing. a Retorn may be filed either upon motion of the party, or by the rules of the Court, and it were good, you consider how this was filed; and as touching the suspension of the party from his place,Suspension. it ought not to be perpetual but for a time only, and said, that after filing of a Retorn, be it upon motion or by the rules of the Court, it cannot be amended. Tuesday next follow­ing was given by the Court to hear Councel on both parts. Amendment.

Chadly and Stinch.
Trin. 23 Car. Banc. Reg.
Mich. 22 Car. rot. 556.

STinch brought an Action upon the Case upon an Assumpsit in the Com­mon Pleas against Chadly, and hath a Verdict and a Iudgement.Error to re­verse a Iudg­ment in an A­ction upon an Assumpsit. Stinch brings a Writ of Error here to reverse this Iudgement, and assigns for Error. 1. That there were 18 returned upon the Iury, and but two of them tryed the issue. 2ly. Part of Declaration to ground the Assumpsit was in another County, and not within the Iurisdiction of the Court where the issue was tryed; and for these Errors the Iudgement was reversed except cause should be shewn to the contrary Thursday next.

Trin. 23 Car. Banc. Reg.

IT was moved to quash an Endictment for erecting of a Cottage contrary to the Statute;To quash an Endictment for erecting a Cottage. the exception taken to it was, that he erected a Cottage for habitation, but did not say it was used or inhabited as a Cottage. But Bacon Justice answered, that the very erection of it is an offence against the Statute, and therefore the Endictment did very well pursue the words of the Statute, and therefore would not quash it.

VVright and Pynder.
Trin. 23 Car. Banc. Reg.
Mich. 22 Car. rot. 440 antea. 22

THe Case of Wright and Pynder was moved again to have the Iudge­ment of the Court.Opinion of the Court on a Demurrer upon an evi­dence. Roll Iustice said, that matter of fact ought to be a­greed in a Demurrer to an Evidence, otherwise the Court cannot proceed up­on the Demurrer, for the Iudges cannot try the matter in fact, for that were for the Iudges to give the verdict, which belongs to the Iury to do, and to waive the matter in Law,Pleading. which they should determine, and he said, that if a Deed be pleaded the party must shew it in Court, but if it be given in evidence it is not necessary to shew it if it can otherwaies be proved to the Iury,Evidence. and so is it of a Record given in evidence, and cited one Worsseys Case 17 Iac. Rolls Iustice took also two other Exceptions to the pleading, 1. That the Goods mentioned in the Schedule appear not to be the same contained in the Declaration. 2ly. No Title is made to the Indenture by him who brings the Action, and concluded upon the whole matter that the Demurrer was not good, and that there ought to be a Venire facias de novo to try the matter again.Venire de no­vo. Iudgement. Bacon Iustice much to the same effect, but differ'd in this, that there ought not to be a Venire facias de novo but said, that Iudgement ought to be given against one party, to wit the Defendant, for ill joyning in Demurrer, to the intent the party that is not in fault may be dismissed, and the parties here have waived the Tryal per pays by joyn­ing in Demurrer. But Roll answered that no Iudgement at all could be given, for both parties be in fault, one by tendring the Demurrer, the other by joyning in it, and the Defendant might have chosen whether he would have joyned or no, but might have prayed the Iudgement of the Court whether he ought to joyn. The Court advised to search presidents for a Venire facias de novo after a Demurrer upon an evidence, and if there be any, they held that the same Iury ought to come again, and not another. Roll said,Iury. if a special verdict be found insufficient, a new Venire facias ought to issue, and he saw no difference between that and this Case.

King and Summerland.
Trin. 23 Car. Banc. Reg.

IN the Case of King and Summerland again moved, the Court held that the pleading of a bargain and sale to be debito modo irrotulatum secun­dum formam statuti is good enough,Opinion of the Court touching pleading of an Enrollment. though it be not pleaded to be inrolled within six months, yet ruled it should be moved again. The same term Iudgement was given, that the Plaintiff nil capiat per billam, because the Deed was not said to be enrolled, neither secundum formam statuti, nor within six months, but only debito modo, which may be an Enrollment at the Common law, and not according to the Statute.

The City of London and Estwick.
Trin. 23 Car. Banc. Reg.

THe Court was again moved in the Case between the City of London and Estwick, Argument concerning the Writ of Restitution to a common-Councel-mans place. Amendment. that the return of the City might be amended although it were filed, because there are Presidents where it hath been done. Roll Iustice answered, there was never any amended after the filing before H. 7ths. time. It was replyed by the Councel, that the return being of this Term it might be amended, for it rested in the breast of the Iudges. But Roll Iustice answered to this, that Acts of the Court remain in the breast of the Court the same Term, but not acts of others, and therfore this being so was not amendable, and said, that inferiour Courts cannot amend a presentment in matter of fact, for that were to alter the custom of the courts; and it was then said, that Endictments had been amended after the filing of them. And Alderman Langhams Case was also urged, where a retorn of the City was amended after it was filed, yet this was ruled not amend­able. Twisden of Councel with the City argued that Estwick ought not to be restored to his place of a Common-Councel-man for these reasons. 1. Because it was not a place of profit, and so it was no damage to him to be removed, and therefore his sute was to no purpose. 2ly. It is not a place of Government, and so no dignity in it, but it was a place meerly of service and trouble. But Roll Iustice answered, that a writ of restitution had been adjudged good to restore a Constable to his place,Restitution. which was more a place of service and trouble than this. 3ly. There is a judgement against Estwick in a Court of Record, and it must be avoided either by error or attaint, as the Statute directs, and the partie cannot be restored by a Writ of Restitu­tion; and for the objection, that the Return is too general, he answered, that Faith is to be given, that there was a disturbance made by him as is sug­gested, though it be not so plainly expressed as it might have been. 2ly. Here appears a contempt to the Court, and for this he may be suspended. 3ly. The Custome is well pursued upon the whole matter taken together. 4ly. The Custome is well laid for the commitment ad placitum, for it refers to the words suspendere vel amovere, that is, either one or the other. 5ly. The word require amounts to a command being spoken in a Court of Record, and the disobeying it was a contempt. Hales of Council on the same side argued much as Twisden had done, and added to it as followeh. 1. That there appears a reasoanble cause precedent why he should be suspended, and then it follows they may suspend him ad libitum. 2ly. The alleging of the di­sturbance is not material, for that is not the ground of his a motion from his place, but only the inducement to it. 3ly. Requisitus shall be understood requisitus per curiam, it being alleged to be in Court. 4ly. Recusavit is more than denegavit, and implies he did not the thing enjoyned him, and so might well be committed. 5ly. There may be cause to grant a Writ of restituti­on, though no cause for the restitution: For a common-Councel-man of Co­ventry had a Writ of restitution out of this Court, and yet upon his sute was not restored. The Recorder moved for a longer day to be heard for the City, because it was a weighty cause, and said that no restitution could be made, for the Writ was not well directed, and so is not well executed. The Plaintiffs Councel desired expedition in the Cause; Whereupon Roll said, here hath been no delay in the business, but the rule is against you, and [Page 36]he took these exceptions to the Retorn. 1. It appears not by the retorn that the Plaintiff is removed from his place, but only that he is suspended, and then he may well be restored, and it is not said for how long time he is sus­pended. 2ly. It is not said that he is suspended for a reasonable cause. 3ly. It is not said what the disturbance was that he made for which he is suspen­ded. And further said, that the Court of the Common-Councel is not a Court of Record,Error. Restitution. for no Writ of Error lies there, but is a Court only of Advise. Bacon Iustice as Roll, and said, that Estwick had only remedy to be restored by a Writ of Restitution, and not by a Writ of Error or an Attaint. Adjourned till Saturday to hear Councel for the City.

Rawson and Bargue.
Trin. 23 Car. Banc. Reg.
Hil. 17 Car. rot. 904.

RAwson brought an Action of Debt against Bargue for 15 l. upon the Statute of 2 Ed. 6. for setting forth of Tithes.Argument up­on a special Verdict for Tithes in an action of Debt upon the Sta­tute of 2 Ed. 6. And upon the Tryal a special verdict was found, wherein the Question was, whether the Church by reason whereof the Tithes were claimed were a free Chappel, and gi­ven to Ed. the 6th. by the Statute of 1 Ed. 6. and so discharged of Tithes or not. VValker of Councel with the Plaintiff argued, that it was not a free Chappel, because there was a cure of Souls, and so could not be free but presentative, and said that the word free was a word of distinction to distinguish things of different nature one from another, as liber homo is to distinguish a free maa from a villein, Francksold, Francktenement, and the like, and cited Bracton lib. 4. C. 3. 241. He likewise distinguished Chappels into three sorts. 1. Donative. 2ly. Presentative. 3ly. Without cure of Souls, and said, that Chappels presentative were not given to the King by the Statute of [...] Ed. 6. and cited Nat. brev. 48. and 13 E. 4. f. [...]. and 6 H. 7. c. 14. and 5 H. 7. f. 37. and said, that it is not within the mean­ing of the Statute of 1 Ed. 6. to give Chappels presentative, because it is not within the mischief which the Statute was made to prevent, and so in­tends not to give Chappels with cure of Souls, and the word free is but no­minal, and doth not make it free if it be not so otherwise. Hales for the De­fendant argued, that it was a free Chappell within the Statute of 1 Ed. 6. For first it is called so, and it shall be presumed it is rightly named so. 2ly It is so found to be by the Iury, and to prove that it is a free Chappell it is not presentative, and 2ly. It appears not to be within the Iurisdiction of the Ordinary. 3ly. The Act of 1 Ed. 6. is an Act which is general and gives all free Chappels, and extends as well to Chappels which are only reputative free Chapbels as well as to them which are so indeed, even as it is of a Chauntery, College, and an impropriation, as the Books are, and it is a free Chappell nevertheless it be presentative and with the cure of Souls, for a free Chappel may now be with the cure of Souls, although by the old Canon law it could not, as was held in Childs case, 1 Iac. The Chap­pel within the Tower is a free Chappell donative, and yet it is presenta­tive and hath cure of Souls, so saith Lynwood of the free Chappel of St. Martins. It is also the intent of the Statute, that it should be so, for a Col­lege [Page 37]and a Chauntery with cure are within the Statute, as may appear by the Exceptions of the Statute of the Free Chappel with cure of Souls in the Isle of Eely called the Chappel of the Sea, and the being presentative with cure hinders not, but that it may be within the Statute, for the pre­sentation might arise at the first by special composition, as it is 13 E. 4. f. 4. and Register f. 307. and it was instanced in the free Chappel of Hastings in Sussex, and it may be a Chappel donative by prescription, and yet presen­tative. Adjornatur ad proximum terminum to be argued again. Vid. postea.

Barker and Martyn.
Trin. 23 Car. Banc. Reg.

THe case between Barker and Martyn was again moved,Arest of judg­ment in Tre­pass. which was briefly this, An action of Trespass was brought by Barker against Mar­tin, wherein he declares, that the Defendant had broken his House, and had taken away quinque instrumenta ferrea, Anglice fetters. In arrest of Iudgement exception was taken to the Declaration. that Instrumenta ser­rea, Anglice fetters, was not a good expression in Latin (as it ought to be) of Fetters, because there was a proper Latin word for Fetters, namely Compes, so that it ought to have been quinque Compedes, or quinque pa­ria Compedum, and not as it is, for the word Instrumentum is uncertain, and may be used to signifie any thing else with an Anglice added to it as well as Fetters, and as it is the pleading is not all in Latin as the Statute directs to avoid Barbarsm, and the word Anglice when it is properly used in a De­claration is to help words of art, which cannot be expressed without [...] Ang­lice, and is not to be used where there is a proper Latin word to signifie the thing, as in this Case there is. On the other side it was said, that general words might be good in a Declaration, and barbarous words sometimes, and cited Hobarts Reports, 267. and Ward and Smiths Case, Trin. 4. Iac. rot. 2305. Roll Iustice, It is a hard thing to maintain this Declaration,Declaration. for if it should be admitted good it would bring in all Barbarism in plead­ings,Pleading. and any senseless word might be used with an Anglice joyned with it, and he said one was endicted for using quandam artem Anglice of a Dra­per, and it was adjudged naught, and in the case between Tailour and Tay­lour 9 Car. Trespass, was brought pro Decem caponibus, Anglice Capons, & avidbus domesticis, Anglice powltry, and adjudged not good. Yet the rule of the Court was to argue it again Saturday next following.

Eeles and Lambert.
Trin. 23 Car. Banc. Reg.
Pasc. 22 Car. rot. 1646.

EEles brought an Action of Covenant against Lambert the Executor of Sir Molton Lambert, An Action of Covenant a­gainst an Ex­ecutor. and declares that Sir Molton Lambert did in his [Page 38]life time by his indenture let certain lands unto him for years, and cove­nanted thereby for himself, his Executors, Administrators, and Assigns, that the Lessee should not be put out of possession of the lands let by him during the said Term, and that since the death of Sir Molton Lambert his Lessor, he was put out of possession by such an one, and upon this he brings his Action of Covenant against the Executor. The Defendant pleads, no Assets, upon this an issue was joyned, and a special Verdict was found, To this effect, That Sir Molton Lambert did let the lands mentioned in the De­claration to Eeles prout, & that there was such a Covenant in the Deed prout, and that the Plaintiff was put out of possession of the lands prout. They find likewise, that Sir Molton Lambert made his Will, and made the Defen­dant his Executor, and died; that Sir Molton Lambert by his will gave many legacies of goods, and that the Defendant before the Plaintiff was put out of possession, did pay all the Legacies in kind, and that besides those Legacies he had not Assets to discharge the Covenant. Vpon this Verdict the matter in Law was this, whether the Executor ought to have forborn the payment of the Legacies, and to have expected till the end of the Term let to the Plaintiff, or till the Covenant had been broken, and for doing otherwise should not be charged with the Covenant de bonis propriis; or whether the Covenant not being broken in the life of the Testator, nor before the Legacies paid, he had not paid the Legacies as he ought, and should not be freed from being charged with the Covenant de bonis propriis. Vpon opening of the Case Rolle Iustice said, that a decree in Chancery against an Executor,Decree in Chancery. shall not be satisfied before an Obligation made by the Testator, and become due after his death. Saturday following was set to here Coun­cell again.

Jones and Stanley.
Trin. 23 Car. Banc. Reg.

IOnes brought an Action of Debt upon an Obligation to perform Cove­nants of an Indenture against Stanley, Arest of Judg­ment in an ACtion of Debt. and hath a Verdict against him; Stanley moves in Arrest of Iudgement, and takes these exceptions; 1. That the Goods valued in the Declaration, are not within the condition of the Obligation; 2. The goods are not certainly set forth what they are, for the Declaration is of divers parcells of old stuff; 3. Some of the things mentioned in the Declaration are not goods, and so not to be valued, for the Declaration is of partitions withint he house, and of a shed, which are part of the free hold, and not goods; upon these exceptions the Iudgement was arrested till the other should move it:

VVhite and Thomas.
Trin. 23 Car. Banc. Reg.
Trin. 18 Car. rot. 1400.

WHite binds himself,Error to re­verse a Iudg­ment in Debt brought by an Heir. his Heirs, Executors, and Administrators, in an Obligation to Thomas for the payment of a certain summ of mo­ny, [Page 39]at a certain day, the mony is not paid, a Iudgement is obtained a­gainst White for the mony, White makes his will, and makes his Heir at law his Executor, and dyes leaving lands to descend. White as Heir brings a Writ of Error to reverse this Iudgement; It was ar­gued by the Councell of the Plaintiff in the Writ of Error, that the Writ did lye, because although the Action in the former Iudgement was but a personal Action, yet in this Case, the Land of the Heir may be charged by the Iudgement,Heir. Elegit. for an elegit may be thereupon taken out to charge [...]is Lands, and therefore the Iudgement concerns him as Heir as well as Executor, and therefore it is reason he should bring a Writ of Error to re­verse the Iudgement, because he may be prejudiced by it.Executor. And a Case in Trin. 29 Eliz. rot. 631. Banc. Reg. was cited, that the Heir is pridy to the Iudgement, and therefore shall have a Writ of Error,Error. and he is not meer­ly terr-Tenant 13 E. 4.2. Roll Iustice, the terr-Tenant sole shall not have a Writ of Error upon an extent;Error. And in the Case at the barr the Heir is not privy to the Iudgement, and the extent is only upon him as terr-Tenant, and he is not made privy to the Iudgement by the extent, but after Execu­tion he may have a Writ of Error, and he said,Bail. the Bail cannot bring a Writ of Error upon the Iudgement given against the Principal, and the same reason is here, and it will be very hard to maintain this Writ of Er­ror. Adjourned to the next term.

Terry and Baxter.
Trin. 23 Car. Banc. Reg.
Pasc. 23 Car. rot. 394.

TErry brings an Action of Debt upon an Assumpsit against Baxter, Demurrer upon an D­claration in Assumpsit to stand to an a­ward. to stand to an Award. The Defendant pleads nul arbitrement; the Plain­tiff sets forth the award, and assigns a breach; The Defendant demurs, and for cause shews that part of the award was to pay 5 l. to the poor of the Parish of D. which was not within the submission, and so the award was not good. Rolle Iustice answered, if the award be void to the 5 l. Award good in part i; a good award. awarded to be paid to the poor, yet it is good to the rest, for it is perfect as to the en­ding of all differences between them which are submitted, and therefore shew cause on Monday next, why judgement should not be given for the Plaintiff.

Morefield and VVebb.
Trin. 23 Car. Banc. Reg.
Pasc. 23 Car. rot. 50.

VVEbb brings an Action upon the Case against Morefield in the pa­lace Court at Westminster, Error to re­verse a Iudge­ment in an Action upon the Case. and hath a Iudgement; Morefield brings a Writ of Error in this Court to reverse the Iudgement, and Assigns these Errors. 1. It is not shewed in the Declaration that the cause of Action was infra jurisdictionem palatii. But Rolle Iustice answered,Iurisdiction. that [Page 40]it was shewed to be infra jurisdictionem Curiae, and that was good enough, for the Court is alleged to be held by Letters patents.Retorn. A 2d. Excep­tion was, that there was not fifteen dayes for the retorn of the Venire fa­cias as there ought to be; But to this Rolle Iustice also answered, that the Court is held by Letters patents, and therefore it may be retornable with­in fifteen dayes, though by the usual course of the Common law it cannot. And therefore ordered the Plaintiff in the Writ of Error to shew better mat­ter, otherwise Iudgement should be affirmed against him.

The King and Holland.
Trin. 23 Car. Banc. Reg.

THe Case between the King and Holland was moved again,For quashing an inquisition for the King. Inquisition. and the Councell against the King, moved that the inquisition found for the King to entitle him to the use of the Copyhold might be quashed, because the King cannot be intitled to such a use, because it is a thing in privity on­ly, and cited the Statute of 27 H. 8. of uses, Vse. and Cooks 1. rep. 123, and said, that the King cannot be intitled ot Copyhold lands of an Alien much lesse to the use of Copyhold lands;Copyhold. King. VVrong. Protection. Trust. if he should, 1. The Lord would be wronged, which the King ought not to do, but to protect his sub­jects, for the protection of the subject, is not only matter of honour to the King, but also of trust in the Crown; 2ly. A stranger is wronged by it; 3ly. The Copyholder of the Manor cannot have remedy for the injury done him,Sute. for he ought to sue in the Lords Court, and not else where, and here he cannot do it, and the rule in law is de minimis non curat lex, and it is much lesse for the honnour of the King to have a Copyhold estate,Honour. which is a base tenure. But it may be objected, that if the King shall not have this use, he shall be in a worse condition than a subject. To this it is answered, that he shall be so in cases which touch his royalty, and may be a dispa­ragement to him,Copyhold. which indeed doth not make him in a worse condition though it may seem so, but it is more for his honor, and a Copyhold is an estate at the will of the Lord, and ought to be protected by the Lord; and the King cannot be Tenant at will to any,Alien. Trust. and therefore cannot have a Copyhold estate; and an Alien is not capable of a trust, because it is a thing in Action which an Alien cannot have, and therefore he cannot derive it from him. Twisden for the King in his Argument considered, 1. Whe­ther the King can have a use at the Common law which is for an Alien. 2. Whether a trust differs from a use; for the first he said, that an Alien may purchase lands.Alien. Praerogative. and a use at the Common law, but he cannot retain them, therefore the King shall have them by his Praerogative, and a use is not a thing in privity, but is an Antient inheritance at the Common law. 2ly. There is no confidence annexed to cestui que use, or to the Feoffor, but may be disposed of. 3ly. Things privity in Action may be given to the King,Privity. and a use is an inheritance in the nature of a Chattell. 4ly. A use is grantable over,Privity. and therefore may be given to the King, and the meaning of the word lost, in the Statute, is to be intended that it may be lost for the difficulty of finding such subtile conveyances, and not that the right was really lost:Trust. And for a trust it is but a new name given to a use, and invented to Defraud the Statute of uses, and a trust of a Copyhold is all one with another trust, for it is the taking of the profits of the land, and not the Estate in the land, and the King shall have it; And to that which is said [Page 41]that the King cannot be a Copyholder, it is not so clear; for I conceive the contrary: for a surrender of a Copyhold to him is good, and of a use too: and he cited these books, 9 H, 6. fol. 25.20 B. 3. f. 3.11. rep. 91. Rolle Iustice said, that a Trustee or cestuy que trust cannot take the profits of the land,Cestuy que trust. Equity. Outlawry. Law & Equi­ty. but hath only his remedy in equity, for the Estate in the land is only in the party trusted; and the King shall not have the profits of the land upon an Out-lawry against the cestuy que use, or cestuy que trust. And Law and Equity ought not to be confounded; therefore if the King hath equity for a thing, he ought not to sue for it at the Common law, so is it in this case at the bar. Adjourned.

Chapel and Drew.
23 Car. Banc. Reg.
Hill. 11 Car. rot. 921.

IN this case the party being attainted of felony,Exception to a pardon for Felony. Pardon. pleaded his Charter of Pardon and Claims, thereby to be restored to his Goods and Chattels forfeited to the King by the felony; and the Question was, whether as the Pardon was penned he should be restored or no? the words of the Pardon upon which the Question grew, were these, pardonavit, remisit, & relaxavit, and it was held, that he was not by these words to be restored to his Goods and Chattels; for the words do not amount to a Surrender in case of a om­mon person, much less in case of the King, and there ought to have been the word restituit. Roll Iustice said, this Pardon was drawn by Noy, At­torny General, and was too short,Felony. Tryal. and it was said by him that if one be committed to the Gaol for one felony, the Iustices may enquire and try the party for another felony for which he was not committed.

Tylers Case.
Trin. 23 Car. Banc. Reg.

AN action of Debt was brought against Tyler upon an Obligation to stand to an Award,Demurrer to a Replication and the Plaintiff declares of an Arbitrement made the 28th, day of May in such a year, ready to be delivered up the nine and twentyeth day of May in the same year; The Defendant pleads nul­lum Arbitrium, The Plaintiff replies, that the Award was made by the Vmpire the 28th. of May ready to be delivered up upon the same 28th. day of May, and to this replication the Defendant demurs, and shews for cause, that the Plaintiff had set forth double matter, one in his Declaration, and the other in his Replication; for the Award set forth in the Declaration, and that set forth in the Replication cannot be intended to be one and the same. But Roll Iustice answered, that the Issue to be tryed, is not to be taken upon the day of the Award made, and therefore it requires no answer,Demmurres. and so cannot be double, and one ought not to demur for the doubleness of the matter upon a thing upon which no Issue can be taken, and [...] ­led better matter should be shewn, or else Iudgement should be given for the Plaintiff.

Estwick and the City of London.
Trin. 23 Car. Banc. Reg.

THe Case of Estwick and the City of London was again argued by Ser­jeant Glynn for the City; Argument in the Case of the VVrit of Restitution to a Common-Councel-mans place. Restitution. Custome. in his Argument he insisted upon three par­ticulars why Estwick could not be restored to his place of a common-Coun­cel-man. 1. That a common-Councel-man may be removed or suspended from his place at pleasure by the custome of the City. 2ly. That he cannot be restored by Law. 3ly. No restitution can be in this case as it now stands. First, the custom to remove a common-Councel-man is good, for it first be­gan by agreement, and such a custome is good at the common law, much more here, and it is not an unreasonable custome, although it may seem so prima facie, like as it is in the case of a Lord that feiseth the Lands of his Villein, and in the case of a Copyholder that for feiteth his Estate by the felling of Timber. A second reason is, it agrees well with the nature and condition of the office of a common-Councel-man to be subject to this Custome,Tryal. and we know that many things shall be tryed by Cu­stome, contrary to the course of the common law. 3ly. We see that the order of the Parliament is a rule to try matters concerning their Mem­bers, and so it is here in the Citie to try their Members. 4ly. If it should not be so, it would prove destructive to the City, by waiting till such an offender might be removed by a course in Law, which is far more tedious than this customary way. To the second point, he said, that by Law there can be no restitution to this office, and this is proved by the very nature of the Writ of Restitution, which is to restore the party to a freehold or some other matter of profit, neither of which can be in our case, and a writ of Restitution is to restore one to a possession, where one may not be restored by an ordinary way, neither doth the Statute of Magna char­ta extend to our case: for a common-Councel-mans place is merely grounded upon the custome of the City, and not upon the Common law: and he said there are three grounds for a Writ of Restitution. 1. A con­tempt to the King. 2ly. A hurt to the Common-wealth. 3ly. Particular dammage to the party; but none of these is in our cause, and therefore there is no cause for a Writ of Restitution. The case of Sir Iames Baggs having a Writ of Restitution was, because he was deprived of his Trade and Freedom,Constable. Church war­warden. & free-hold, and our case differs from the case of a Constable, or a Church warden, or any case that can be cited; for a Church warden is an of­ficer in relation to the Common wealth for the execution of Iustice, wherof the Common law takes notice, and likewise a Constable is a known Officer to minister Iustice in relation to the publique:Recorder. so is it of a Recorder of a Corpo­ration, and so they all differ from our case. For authority to this point in 17. Iac. but moved first 16 Iac. Warren a common-Councel-man of Coventry was denyed upon the retorn of his Writ to be restored, and our case and re­torn is more strong against the Plaintiff; and Burman a Gentleman of one of the Inne of Court, being expelled, could not be restored by a Writ of Re­stitution, and lately a common-Councel-man was removed for not taking the Protestation. For the third point, whether upon the Writ it self, as this case is, there can be any restitution made? I conceive not, because it is directed to the Maior and Commonalty, and Citizens of the City of Lon­don, and so there is in it a false recital of the suspension;Recital. for he was not re­moved by the Citizens, and so the Writ is directed to parties who did not [Page 43]the wrong, and so it is ill directed, and it differs from the direction of the Writ in Sir James Bags case, and it ought to have been directed to the She­riffs or Ministers who have authority to restore him, as they did remove him, for the party that hath done no wrong ought not to be punished or mo­lested; and for the ill direction of the Writ could not Warren the common-Councel-man of Coventry he restored, and the Corporation of London is responsable for all particular Misdemeanours done within any Courts of Iustice within the City, or other general Misdemeanours there committed.Misdemean­nours. Maynard on the other side argued, that the case was mistaken as it is sta­ted in the Retorn, for it supposeth that the party is removed at pleasure, and yet supposeth also, that there is a cause to remove him, to wit his refusing to go out, and expresseth not that he did not go out, nor that he was command­ed to go out, but that he was requested. And whereas it is more than to advise, for he hath a privilege for his own good, and the good of the City. 3ly. The Writ is well directed, and cannot be otherwise for the party to have remedy, and all the Presidents are as this is,Presidents. and Alderman Harris his case is the same in point with this, where it was by three Iudges resolved, that he should be restored to his Aldermans place, because it was a place of Honour as well as of Burthen. Roll Justice said, 1. That the Writ was well directed. 2ly. That the custom was ill recited, 3ly, If it were well recited, yet it is a void custom. 4ly. The Retorn is not good, for the incertainties of it, viz. in the causes shewed, why the party was re­moved, and therefore that he ought to be restored to his place. Bacon Ju­stice to the same intent, and said, that wheresoever a Commissioner or other person hath power given to do a thing at his discretion, it is to be un­derstood of sound discretion, and according to Law,Discretion. Iurisdiction. and that this Court hath power to redress things otherwise done by them. The rule was, that the party be restored, if better matter be not shewn Tuesday following.

Trin. 23 Car. Banc. Reg.

IN an Action of Trespass for digging in his Ground, Arrest of Iudgement in Trespass. and carrying away 200 load of soyl, It was moved in arrest of Iudgement, that it should have been of soyl inde provenient. and that an intendment cannot make it good. Roll Iustice said, it seems a good Exception, for as it is it is too generalite laid.

Vincent and Fursy.
Trin. 23 Car. Banc. Reg.
Hil. 22 Car. Rot. Q.

VIncent brought an Action of Trespass against Fursy for breaking open 2 Chests, and taking away certain Cloaths, and 3 l. in mony,Arrest of Iudgement in Trespass. and had [Page 44]a Verdict for him. The Defendant moves in Arrest of Iudgement, and takes these exceptions. 1. That the Declaration is too general, for it sets not forth what the cloths were which were taken away, and so the value of them cannot be known as it ought to be, that Damages may be rightly gi­ven. 2. In this one Declaration there is an Action of Trespasse, joyned with an Action upon the Case, viz. the Trespasse for breaking open the Chests, and the Action of the Case for taking away the cloathes, and mony, which ought not to be, for two several Actions ought not to be laid in one Declaration. Wadham Windham of Councell with the Plaintiff said it was well enough, and could not be otherwise, and the thing is certainly enough set forth, and shall be interpreted reddendo singula singulis, viz. the spolia­vit in the Declaration shall have reference to the cloaths, and the cepit to the mony.Trover and Conversion. Rolle Iustice said, that an Action of Trover, and Conversion for divers sorts of linnen had been adjudged good. and 29 E. 3. An Action of Trespasse lyes for beating of his servant, and in Cletheroes case, an Act­ion of Trespasse was held good for rescuing a prisoner from him whom he had Arrested,Trespasse. and the Cook of Grayes Inn brought an Action of Trespasse for taking away his wife, per quod consortium amisit, and it was held to be well brought, but if the cloaths in the case at the bar had not been in the chest, the Action would not have lain; and he took another exception, name­ly that Declaration wss for the breaking of 2 chests,Incertainty. and so it appears not where the cloaths were when they were taken, whether in one o [...] in [...]oth of them. The rule was to stay Iudgement till they had seen the Re­ [...]ord.

Capell and Allen.
Trin. 23 Car. Banc. Reg.
Hill. 22 Car. rot. 639.

CApell brought an Action Debt upon an Assumpsit to stand to an award, the Defendant pleaded Nal Arbitrement, Demurrer upon an a­ward. the Plaintiff replyes, and sets forth the Arbitrement, and the breach, the Defendant demurs, and for cause shews that the award was not good, because it was made but of one part,Award. for it was, that one of the parties should do such things expressed, and that the other party should pay for the ma­king the Bonds of Submission, which cannot be awarded, and so no­thing is awarded for him to do, and the Arbitrators cannot award this, be­cause it is not within the submission.Submission. Rolle Iustice held this a good excep­tion, and said the Charge for making the writings is not within the Submission, for the bonds were made before the Submission, and it was held 13 Jac. that the words super praemissis in the award will not help an a­ward made but of one part.

Trin. 23 Car. Banc. Reg.

AN Action of Debt was brought upon a Bond,Demurrer to a Declaration in Debt upon a bond to per­form Cove­nants of an Indenture. Breach. Interpretati­ons. to perform the Cove­nants of an Indenture of a Demise for years. The Plaintiff de­clares that he made the Lease to the Defendant the 28. day of May, and that afterwards scilicet the 27, of the same Month of May, the Defendant broke the Covenant. To this Declaration the Defendant did demurr, because it appears that the breach is set forth to be before the lease began, which cold not be, and so there is no cause of Action. But to this Bacon Iustice said, where the postea and the scilicet are repugnant in a deed, as here they are, the postea shall be good to signifie the time of the Covenant bro­ken, and the scilicet shall be void. Therefore shew cause why the Plaintiff should not have Iudgement. Nota.

Trin. 23 Car Banc. Reg.

A Prohibition was prayed to the Corporation of Lincoln upon a sug­gestion made, and sworn in this Court,For a prohi­bition to the corporation of Lincoln. Admission. Iurisdiction. Prohibition. Proceedings. that the cause of Action if a­ny were arose in the body of the County of Lincoln, and not within the jurisdiction of the City of Lincoln. Hales on the other side said, they had admitted the jurisdiction of the Court in that they had not pleaded to it. But Roll Iustice said, inferiour Courts are limitted in their jurisdictions, and ought to be kept in order by prohibitions if they exceed, and if they proceed in matters not within their jurisdiction their proceedings are void. Ad­journed to the next Term.

Trin. 23 Car. Banc. Reg.

THe Court was moved for a Prohibition to an inferior Court,For a prohi­bition to an inferior Court. Admission. but on the contrary part it was said, that they moved too late, for they had admitted the jurisdiction of the Court by pleading, and cited 9 H. 7.12. and Fitz. jurisdict. 19. Bacon Iustice said, it is here in a Court of Com­mon Law, and not in the spiritual Court or Admiralty, and therefore a Prohibition may be here granted notwithstanding the pleading there,Prohibition. but had it been the spiritual Court or the Admiralty, it had been otherwise. But Rolle Iustice said, it was all one in the spiritual Court, or Admiralty as it is in this case, if they exceed their jurisdiction.Iurisdiction. Yet it is mischeivous to grant a prohibition in this case, for thereby many Iudgements will be stop­ped. Therefore the Court would advise to the next Term, but stayed nothing.

Trin. 23 Car. Banc Reg.

THe Court was moved that the undersheriff might return a Iury, be­cause the Sheriff,For the un­dersheriff to return a Iury. Return. Surm se. Petigree. Attorney. and Coroner were of kinn to the Plaintiff, the Court thereupon demanded whether they had brought in the surmise, and proved the petigree, to which they answered, They had, thereupon they were bid to name some Atturneys of the Country, which was done, and thereupon a rule made that they should return the Iury. Nota.

Trin. 23. Car. Banc Reg.

THe Court was moved for a rule to stay proceedings in the Court at Maidston in Kent, To stay pro­ceedings g [...] the Court at [...]. because a supersedeas could not be granted, for that nothing erroneous issued out of this Court. But the Court answered; that a supersedeas might well be granted, and so said Hodsden the Secondary, although nothing erroneous be issuing out of this Court, and Bacon Iustice said that the Writs of the Court are as good, and of as much force as the rules of Court,Writs. Rules. and therefore we will make no rule to stay their proceed­ings, but you shall have a supersedeas if you will.

Person and Dawson.
Mich. 23 Car. Banc. Reg.

AN Action of the Case was brought by Person against Dawson for these words,Arrest of Iudg­ment in an Act on for words your Son innuendo your Son William, stole a horse, and sold him for ten pounds; The Plaintiff hath a Verdict, the Defendant moved in Arrest of Iudgement that the words are not actionable, because uncertain,Case. VVords. and the innuendo cannot help them; and the Iudgement was stayed till the other should move. It was afterwrads moved again and the Iudgement stayed, and this Term Iudgement given for the plaintiff.

Mich. 23. Car. Banc. Reg.

THe Court was moved to quash an Endictment upon the Statute of u­sury.To quash an Endictment upon the Sta­tute of usury. Pursuance. The exception taken was, that it is not said corrupte agrea­vit nec accepit, and so the Statute is not pursued; Roll Iustice said, that it is the corrupt receiving, and the corrupt contract, upon which Endictments are framed upon the old Statute, viz. 3. Jac. &c. but if the Endictment be framed upon the Statute of 21 Jac. there it ought to be upon the corrupt contract, and because this Endictment is framed upon the Statute of 21 Jac. and mentions not the corrupt contract, it is not good, and therefore let it be quashed.

Yates against Lyndon.
Mich. 23 Car. Banc. Reg.

MAry Yates brought an Action upon the Case for speaking these words of her, Mary Yates is a Sorcerer, and a Witch, and a white Witch, Arrest of judg­ment in an Act on for words. Case. Statute. Witchcraft. she can witch and unwitch! and hath a Verdict. The Defendant moved in Arrest of Iudgement that the words are not actionable, because the Plaintiff is not by the speaking of them brought within the Statute of 21. Jac. against Witch-craft: But Roll Iustice doubted, whether the word Sor­cerer did not bring the Plaintiff within the Statute. Yet Iudgement was stayed till the Plaintiff should move. Hill. the same year it was moved a­gain, and the Court adjudged Nil capiat per billam, for they held the words not actionable.

Turner and his VVife.
Mich. 3 Car. Banc. Reg.

TUrner and his Wife brought an Action upon the Case for these words,Arrest of Iudgement in an Action for words. spoken of the Wife, she is a Witch, and I will take my oath of it; The Plaintiffs had a Verdict: The Defendant moves in Arrest of Iudgement that the words were not actionable; for to say one is a Witch, and to say no more, is not actionable, and the last words, I will take my oath of it, do not enlarge the former words.VVords. The Court arrested Iudgement till the Plain­tiff should move.

Paradine and Jane.
Mich. 23 Car. Banc. Reg.
Hill. 22 Car. rot. 1178.

PAradine brought an Action of Debt for rent due for lands,Argument in debt for rent upon a lease for yeares. let for years unto Iane the Defendant, and declares particularly how much rent was due, and for what time. The Defendant pleads a special Plea to this effect; as to part of the rent for which the Action is brought he confesseth the Action: As to the rest he pleads, that Prince Rupert an Alien, and an E­nemy of the King invaded the land with an Army, and with divers ar­med men did enter upon him, and did drive away his Cattell, and expelled him from the lands let unto him by the Plaintiff, and kept him out that he could not enjoy the lands for such a time; and demands judgement if for the rent incurre during that time the Plaintiff ought to have his Action?Demurrer. To this Plea the Plaintiff demurrs, and for cause saith, that it is neither good in matter nor form. The 1. question was, whether a Lessee for years ousted by an Army or Aliens, can plead it in Barr,Plea. Debt. contract. VV [...]st. in an Action of Debt brought for rent due upon the Lease? And to this it was said, that this is an Action of Debt, and lyes meerly upon the contract between the partyes and so this collaterall matter pleaded is nothing to the purpose, but had it been an Action of wast, if the wast had been done by Pr. Rupert, and his Soldiers, it may be it might have been pleaded to bar the Plaintiff, & 19. E. s. Brook [Page 48]Covenant 4. was cited. Next the Plea doth not say, that the Armed men with Prince Rupert were Aliens or Enemies of the King,Allen. Enemy. but only that Prince Rupert was so. But to this exception Roll Iustice answered, that they shall be so intended if they be his Army with which he invaded the Land.Plea. Another exception was taken, that the Plea gives no answer at all for one Quarters rent demanded, which incurred after the time that he was kept out by Prince Rupert. The Councel for the Defendant in defence of the Plea, urged that it was not necessary to aver, that the Army with Prince Rupert were Aliens, and cited 3 H. 6. 61. and the Councel took a difference between an Enemy and a Rebel;Rebel. and though in the case of a Rebellion this might not be a good Plea, yet in case of an Invasion he conceived it was,Remedy. because he could have no remedy against the party, and resembled this case to cases of like nature cited out of 9 E. 3. 7. 40 E. 3 6. & 33 H. 6. 1. VVaste. and said, that where waste is done in the Lands let for years by one, again whom the Lessee can have no remedy over, there the Lessée for years is not chargeable for the waste, except he be bound by a particular Covenant to keep the Lands let without waste. Also by the Law of Reason it seems the Defendant in our case ought not to be charged with the rent, because he could not enjoy that that was let to him, and it was no fault of his own that he could not,Civil law. Canon. Moral. Innundation. and the Civil-law, and Canon-law, and Moral Authors do confirm this, and Dyer 56. & 11. Ass. 13. were cited; and it was said, there is no difference between an innundation and this invasion, and had the Lands been surrounded by water, the Lessee should not have been chargeable for the rent during that time, neither as I conceive shall he be here. Next consider the nature of the reservation, 10. Rep. 1 28. Rent. Payment. A rent is not to be paid untill it may be intended that the Lessee might have received the profit of the thing for which the rent is to be paid, 27 E. 3.81. 8 H. 4.6. Fitzh. Execution 146.9 E. 3.16. neither by the Mar­tial law is the Defendant chargeable,Martial Law. Law of Na­ture. Covenant. and that Law is the Law of Nature as well as of Nations. But Roll Iustice answered, that the Plea was not good, for he hath not pleaded that the Army were Aliens and unknown, as he ought to have done, and the pleading that it was hostilis exercitus, makes not the Plea more certain than before, and if the Tenant for years covenant to pay rent, though the Lands let him be surrounded with water, yet he is chargeable with the rent, much more here. Therefore let the Plaintiff take his Iudgement.

Fremling and Clutherbook.
Mich. 23 Car. Banc. Reg.

FRemling and his Wise,Arest of Judg­ment in Tro­ver and Con­version. Executrix of A. B. bring an Action of Trover and Conversion against Clutherbook, for Goods of the Testators found, and converted by the Defendant, and obtained a verdict against him. The Defendant moved in arrest of Iudgement, and took these Exceptions. 1. That the Declaration was of a joynt possession of Goods of the Husband and Wife, and dammages are given to the Husband and Wife, whereas the Goods properly belong to the Wife only as an Executrix, and not to the Husband and Wife.Possession. 2ly. It doth not set forth how the Feme came to the pos­session of the Goods. But to this Roll Iustice answered. that the posses­sion of the Wife,Dammages. as Executrix, was also the possession of her Husband, and that the dammages recovered shall be to the estate of the Testatour, and so may concern them both. And for the second exception, this being a posses­sary [Page 49]Action only, it is not necessary to shew how the possession of the Goods was gained. Stayed till the other should move.

Parmiter and Cressy.
Mich. 23 Car. Banc. Reg.

PArmiter brings an Action upon the case upon an Assumpsit, and declares,Arest of Iudg­ment in an Indebitatus Astumpsit. that the Defendant in consideration that the Plaintiff had sold and de­livered unto him such a number of pieces of Stuffs, the Defenant did as­sume and promise to the Plaintiff to deliver unto him the value of the Stuffs in such Pipes of Wine, lying in Bradgates Cellar in London as the Plaintiff should make choise of; and for not performing the same brings this Acti­on. The Plaintiff obtains a verdict. The Defendant moves in arrest of Iudgement and shews these causes. 1. That the Plaintiff doth not aver in his Declaration, that he made any election of the Pipes of Wine,Averment. and before such election the Defendant was not bound to deliver them, nay it was impossible for him to perform the agreement before the election. 2ly.Election. The Plaintiff doth not set forth, that he made his election where the Wine was, which he ought to have done, because of the insupportableness of the commodity to be brought to him to make his choice. The Court held, that here ought to be a special request made to deliver the Wines,Request spe­cial. because it is upon a Contract, and an Action of Debt lies not for them, and thereupon arrested the Iudgement till the Plaintiff should move. The same Term Iudgement was given against the Plaintiff. Quod nil capiat per billam.

Mich. 23 Car. Banc. Reg.

THe Plaintiff brings an Action of the Case against the Defendant,Arest of Iudg­ment in an a­ction upon the Case for­words. Words. Tryal. False Doctria. for speaking these words against him being a Minister, He is an Adulte­rer, Whoremaster, Drunkard, a common Swearer, and a Preacher of false Doctrine. The Plaintiff hath a Verdict. The Defendant moved in arrest of Iudgement that the words were not actionable, because the matter expressed by them is merely Ecclesiastical, and not tryable at the Common law; and it was said, that a man may preach false Doctrine, and not be pu­nished for it, if he be not a beneficed man, and it doth not appear here,Heresie. that the Plaintiff had any living, and besides, it is not said he was a Preach­er of heretical Doctrine, but of false Doctrine, which words are more ambi­guous. The judgement was stayed till the Plaintiff should move.

Mack and Cubitt.
Mich. 23 Car. Banc. Reg.
Pasc. 23 Car. rot. Q.

MAck brought an Action upon the case against Cubitt for speaking these words of him,Arest of Iudg­ment in an a­ction upon the Case for words. You are a branded Rogue, and have held up your [Page 50]hand at the Bar, VVords. and deserve to be hanged, and shall be hanged. The Plain­tiff hath a Verdict. The Defendant moves in arrest of Iudgement that the words were not actionable, for they are all but words of Infamy and disgrace, and not of dammage to the Plaintiff. But it was said, that it had been adjudged that an Action did lye for saying one had been endicted of Barratry, where the party that was endicted was acquitted, and for saying one was a Banckrupt Rogue. But because Panel of Councel with the Defendant said,Presidents. he could shew Presidents that the words are not acti­onable, the Court forbore to give Iudgement, but desired to see them, and gave him time to bring them in another day. Panel cited two Presidents, but no Iudgement in either. Whereupon Iudgement was given for the Plaintiff.

Blackwell and Ashton.
Trin. 23 Car. Banc. Reg.

FOwer several persons were bound conjuctim and divisim in an Ob­ligation to Blackwell, Demurrer to a Scire facias upon a Judge­ment. Demurrer. Abatement. Blackwell hath a Iudgment against them, one of the Defendants dies, Blackwell sues out a Scire facias against the 4. and it was demurred to the Scire facias, because one of the Defendants against whom the Iudgement upon which the Scire facias was granted, was dead when the Scire facias issued forth. In this case it was said, if two be bound joyntly in an Obligation, and an Action be brought against one of them only, upon this Obligation the Defendant cannot demur, but may plead in Abate­ment of the Writ. And if two be bound joyntly in an Obligation, and one of them dye, and the Obligee brings an Action of Debt against the other that survives, he must in his Declaration set forth that the other is dead. The Plaintiff in the case at the Bar, perceiving the inclination of the Court to be that the Scire facias was not good,Scire facias. moved for his own expedition to have it quashed, which was granted.

Lodg and Weeden.
Mich. 23 Car. Banc. Reg.

THe Plaintiff brings his Action upon the Case against the Defendant,Arest of Judg­ment in an action upon the Case. and declares, that the Defendant had killed divers infected Cattel, and had thrown out the inwards or offall of those Cattel upon the Close of the Plaintiff, whereby divers of the Plaintiffs Cattel were infected with the murrain, and did dye thereof, and shews how many, and declares to his dammage so much, and hath a verdict against the Defendant. The De­fendant moved in arrest of Iudgement, and offers these exceptions, 1. The Declaration is, that the Plaintiffs Cattel were infected morbo mortali, Anglice with the murrain, whereas there is a proper Latin word to express the Murrain,VVords. namely Lues, which ought to have been used, and not to be expressed by such uncertain words as morbus mortalis is, which signifies on­ly a mortal disease, and so might be any other Disease as well as that. 2ly. The Declaration says that the Defendant did cast interioria, Anglice the inwards or off all of the Cattel, whereas that is not the proper Latin word [Page 51]for them, but Intestin [...]. 3ly. The Declaration doth not set forth what Cat­tel they were, nor how many they were, that the Defendant had killed, and thrown their inwards or offall on the Plaintiffs Close. But the Court over-ruled all the exceptions, and ordered the Defendant to shew better cause why the Plaintiff should not have judgement.

Rawson and Bargue.
Trin. 23 Car. Banc. Reg. Vid. antea.

THe case between Rawson and Bargue upon the special Verdict found in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes,Arguments whether a Free Chapel or not within the Statute of 2 Ed. 6. Statute. Free Chapel. wherein the Question was whether the Chapel was a free Chapel, and gi­ven by the Statute of [...] Ed. 6. to the King or no, was moved again and ar­gued by Maynard that it was a free Chapel given to Edward the 6th. by the Statute, and said, the first reason was taken from the words of the Statute. A second reason from the preamble of the Statute. A third from the rea­son of the Statute. And a fourth from the meaning of the Statute. First the intent of the Statute was to change Chapels of superstition to pious uses, and doth intend reformation, and not to take away the Chapels them­selves, and for this cause it being for so great a good, the Statute shall be generally interpreted, 11 Rep. f. 17. and the words All mannour in the Sta­tute, &c. do more oppose a distinction than the word all can do, for they are more emphatically used. 2ly Though it be parochial and with cure of Souls, yet it is not exempted out of the Statute, and this Statute differs from the Statute of 37 H. 8. And in case of free Chapels, all are vested in the King (be they superstitious or not) by the Statute. 3ly.Vesting. It is not within the exceptions in the Statute, and therefore is with­in the Statute, and he took this difference,Difference. that Donors of Churches are, where Churches are donative; and Patrons of Churches are, where they are presentative. 2ly. The proof of the contemporary exposition of the Statute is here to be considered. 6 H. 7.14. Frée Chapels are of two forts, 7 Ed. 3.18.17 Ed. 3.12. Cooks Lit. 44. Division. Donative. A Frée Chapel may be presentative, and a Parish-Chucrh donative, and they are so according to the foundation of them at the first. A Parish-Church cannot be a Frée-Chapel,Parish-Church. but a Free-Chapel may be a Parish-Church, 47 E. 3.5.9 E. 3. f. 10. [...]0 Ed. 3. and a Church is not a Church if it have not Baptism, and Burial belonging unto it,Derivation. Bract. lib. [...]. C. [...].17 E. 3.5 E. 3. A Chapel may be within a Church, and a Church within a Chapel; and Capella is derived by Rhenanus the Civilian, from a Cap or Covering, and so is to be accompted more superstitious than Churches are, because their very name shews their derivation to be superstitious. Twisden argued on the contrary, that it was not within the Statute of [...] Ed. 6. nor given thereby to the King: and that it is not a Free-Chapel, neither by the words, nor within the intent of the Statute. 2ly. If it be a Frée-Chapel, yet it is presentative, and with­in the jurisdiction of the Ordinary, and so not a Free-Chapel: for it hath no immunity either in regard of Iurisdiction or otherwise, and cited Cooks Littleton, f. 94. The Chapels of the King are all Free-Chapels, because they they are exempt from all Iurisdiction of the Ordinary, Register, 40, 41. Thre are two sorts of Chapels, to wit, Frée-donatives, 6 H. 7. f. 1 [...] 2ly. Presentatives. Nat. Br. 35. A Chapel may be presentative by the foundation of it, or by matter ex post facto, 22 H. 6. f. 26. Matter ex post facto. Presentation. A second rea­son to prove it to be presentative may be from the finding of the Iury who [Page 52]have found it so, and the calling of it otherwayes is to no purpose to alter it,Institution. Cure of souls. Dyer 81 Next if it be a free Chapel it is presentative, 11. rep. 150. Cow­el Tit. free Chapel, Lynwood 149, 150. Grendous Case 4. rep. Institution gives cure of soules, 13 E. 4. f. [...]. There may be a benefice with cure not presentative, VVords. and if it be with cure then it was not for a superstitious use, and cannot then be within the intent of the Statute. 1. rep. 23. And for the word all, it is not alwayes taken generally. but restrictively. 2 H. 6. To the objection made to the Verdict, that it is not found by whom it is presen­tative, I answer:Special ver­dict. This is a special verdict, and it is the expression of the lay gens, and shall be interpreted according to common acceptation. The rule of Court was, to argue it again the Next Term, because it is a cause of great consequence.

Mich. 23 Car. Banc. Reg.

BAron and Feme bring an Action of Trespass of Assault and Battery,Arrest of Iudgement in assault and battery Ioyning in an Action. and declare of an assaulting, and beating of the Feme, and have a verdict; the Defendant moves in arrest of Iudgement, and for cause shews that the Baron and Feme ought not to joyn in this Action, though the Assault and Battery was done to the Feme particularly, but that the Baron ought to have brought the Action alone, because what ever damages should be recovered would go to the Baron only, and cited 9 E. 4. fol. 51. The Iudgement was arrested till the Plaintiff should move.

Vandicoote.
Mich. 23 Car. Banc. Reg.

THe Plaintiff brings an Action of Debt against Vandicoote, Arrest of Iudgement in Debt for rent against an Ex­ecutor. Debt in the detinet and debet. the Exe­cutor of I. D. for rent due unto him by the Testator in his life time, and hath a verdict. The Defendant moves in arrest of Iudgement, and for cause shews that the Plaintiff had declared that the Defendant detinet et debet which ought not to be, but in the detinet only, the Action being brought against him as an Executor for rent due in the Testators life, and cited Smith and Nichols case 7 Car. But Wild of Councell with the Plain­tiff said, it was good enough in the detinet and debet, though it might have been in the Detinet only: Hales on the contrary part said it was not good, for it could not be the Debt of the Executor, though he be to be charged, and so he cannot be said debere, but it is the proper debt of the Testator, and the Executor may be said detinere because he ought to pay it,Executors. VVaiver. and doth not. Roll Justice said, that it had been adjudged good both wayes, and said, that Executors cannot waive a Term come to them, and yet they cannot be charged in the debet and detinet. And prima facie in the case at the bar, the Action may be brought in the debet and detinet. Yet put the cause in the paper, and argue it again.

Tanner and Laurence.
Mich. 23 Car. Banc. Reg.

TAnner brings an Action upon the Case against Lawrence, Arrest of Iudgement in an indebitatus assumpfit. upon an inde­bitatus Assumpsit to pay unto him two shillings a piece for every cloath he should buy for the Defendant, and declares for so much money due un­to him, and hath a verdict; the Defendant moves in arrest of Iudgement, and shews for cause, 1. That it is not averred by the Plaintiff,Averment. Notice. that he gave any notice to the Defendant how many cloaths he had bought for him, and so it is not certain what is due to him. To this it was answered, that the cloaths were bought for the Defendant himself, and he may very well take notice of the number of them, without any notice given him. A se­cond answer was, that here is a request set forth for the payment of the mo­ny, and this implyes a notice. But Roll Iustice to this answer replyed,Implication. that the request doth nor imply a notice, and so is I wists Case, and besides the notice ought not to be by implication, but must be averred certainly. Yet let it be moved again.

Mich. 23 Car. Banc. Reg.

THe Plaintiff in an Action upon the Case upon an indebitatus declares that the Defendant in consideration of a certain sum of mony,Arrest of Iudgement in an indebitatus assumpsit. due to the Plaintiff by the Defendant, for rent behind upon a lease for years, did assume, and promise to pay the same unto him at a certain day, and had not done it, and for this he brings his Action, and hath a verdict, the De­fendant moved in arrest of Iudgement, and for cause shews that there is no consideration declared to ground an Action of the Case upon, for rent is a reall thing, and an Action of Debt ought to have been brought for it,Consideration and not this Action. Roll Iustice said, that here is only a consideration in law set forth, which is not good to warrant this Action:Debt. But it may be there was some new consideration that sprung from the being of the rent behind that did ground this Action, but no such thing doth appear in the Declarati­on. Therefore the Plaintiff nil capiat per billam, if cause be not shewn within 14 dayes why he should have his Iudgement.

Wood and Salter.
Mich. 23 Car. Banc. Reg.

IN an arrest of Iudgement in an Action of Trespasse for carrying away 24 load of tymber,Arrest of Iudgement in Trespasse. The exception was, that the Tymber is not said to be the Tymber ipsius querentis, and so no cause of Action. Vpon this Iudgement was arrested.

Burnet and Bird.
Mich. 23 Car. Banc. Reg.

BUrnet the Administrator of I. S. brings an Action upon the Case a­gainst Bird, Arrest of Iudgement in an Action up­on the Case upon a pro­mise. and declares against him upon an Assumpsit made by the Defendant to the intestate, for the payment of a certain sum of mony for a mariage portion, at 2 severall dayes of payment equally, and that for not performing the same in the life time of the intestate, he brings this Action. The Plaintiff hath a Verdict: The Defendant moves in arrest of Iudge­ment, and shews for cause, that the Plaintiff doth not well set forth the granting of the letters of Administration to him, for he sayes, they were granted unto him by the Arch-deacon of such a place, and doth not say loci illius ordinarium nor cui administratio-pertinuit. 2ly. It is said, that the mony was to be paid at 2 severall payments, which amounts to two several promises, viz. a promise to pay the first ten pound on such a day, and a promise to pay the other sum at another day to come, and doth not allege any particular request made by the intestate for the first ten pound. But Bacon Iustice over-ruled both the exceptions, and said to the first;Notice. Ordinary. Letters of ad ministration-Peculiar. That the law doth take notice of an Arch-deacon being a publique Or­dinary, and therefore it is not needfull to expresse, that the letters were granted per Archidiaconum of such a place, Ordinarium illius loci or cui ad­ministratio pertinuit, but otherwise it were if they were granted within a pe­culiar jurisdiction. Therefore he ordered to shew better matter or elce Iudgement should be given for the Plaintiff.

Eeles and Lambert.
Mich. 23 Car. Benc. Reg. vid. antea.

THe Case between Eeles and Lambert was again moved,Argument up, on a speciall verdict. which upon a speciall verdict found was this; Sir Molton Lambert makes a lease of certain lands to Eeles for 21 years by deed, and Covenants for himself, his Executors, Administrators, and Assigns, that the lessee shall peaceably, and quietly enjoy the lands let, during all the Term, the Lessor makes his Will, and thereby makes Lambert the Defendant his Executor, and dyes, and by the Will divers goods in specie are devised to sundry persons, Lam­bert the Executor delivers the goods bequeathed to the Legatees, Eeles is ousted of the lands by I. S. and thereupon brings an Action of Covenant a­gainst Lambert the Executor, who pleads fully administred. The questi­on was, whether the paying of these legacies by the Executor were a de­vastavit, Devastavit. and so the Executor to be charged de bonis propriis to satisfie the Covenant broken or no, Green of Council with the Plaintiff, argues that it was a devastavit notwithstanding that the devise was of goods in specie, and that the Executor had only delivered them, because that the Legatees had no property in the goods bequeathed them,Property. before the Executor had delive­red them, no more than if they had never been devised, and cited 2 H. 6. f. [Page 55]16. and Cooks Lit. 111. and he said the finding of the Covenant broken was nothing to the purpose, and he said, it was a Devastavit, because it shall be intended, that the Executor might know of the Covenant made by the Testator, which he was bound also to keep, or else to satisfie for the breach of it,Covenant. and the contingency whether the Covenant would be broken or no makes no difference in the Case, for if it should it would prove mischievous in destruction of Covenants, which are to be accompted of as Debts, Doct. & Stud. lib. 2. C. 10. Dyer f. 324. Hob. [...]. 363, 397. But it may be objected, that if this should be a Devastavit then Legacies could not be paid, which would be dangerous to Executors, by reason of being lyable to sutes for them,Executors. 21 E. 4 f. 21. Brook Tit. Proces, S. 10. To t [...]is I answer; It may be dangerous, yet it is not to the purpose, for an Executor should consider of such dangers, when he takes upon him an Executorship, and take notice of them, and he is not compellable to pay Legacies, and the Law will not protect him, if he pay them against Law, Hob. 246. and if the Court Christian endeavour to com­pel him he may have a Prohibition.Prohibition. 3ly. The Executor peradventure might conceive that there would be Assets afterwards, and in that conside­ration did pay the Legacies, and if the 5 Rep. Green and Harisons case, and 15 Iac. Robsons case be objected, I answer, this Case differs from them: for here the Question is betwéen Legacies and Debts, and there between one Debt and another, to wit, betwéen a Debt of a higher nature, and a Debt of a lower nature. Hales for the Defendant argued, that it was no Devastavit. 1. He agrées,Property. that the Legatees have no property in the Goods, by the devise. 2ly. If the Covenant had béen broken when the Legacies were paid, it would have been a Devastavit. 3ly. He held, that the matter is as well found in the special verdict, as it might have béen pleaded, and not put at all to the Iury to find. The Question here is, whe­ther the administration of the Goods, before the Covenant broken, be good after it is broken, and there is good matter before the Court found in the special verdict, though it might have been found better. The first Ar­gument I will draw from the nature of that, upon which the Action is founded, namely, the Covenant. The Action depends partly upon the Déed of Covenant partly upon the breach of it, and here is no ground of Action at the time when the administration of the Goods was made; and Harisons case cannot be avoided: for a Statute is a present duty,Duty. Star. Obligation. and ought to be paid before an Obligation. Robsons case 14. & 15 Iac. And it is as agrée­able to Law, to pay a Legacy as a Debt upon a Covenant; and the mis­chief to the Lessee in our case is not so material, as the mischief may be on the Executors part, & it is not materially objected, that he might take security,Security. for he cannot compel it. For the Objection that our Law takes notice of a Legacy, I answer, that the Law takes notice of a Legacy, as to give an interest in it to the Legatee,Interest. although he may not take it without the Exe­cutors consent. 2ly. It takes notice of it as remediable by the Law of the Kingdom, though not by the Common-law: and therefore consider the Statute 21 H. 8. of Administrations;Common law, Civil law. and the Common-law is Iudge of the Statute, concerning Administration, and not the Spiritual-law, Hill. 17 Iac. Hinson & Buttons Case. The Common-law gives not a remedy fora Legacy,Legacy. but the Spiritual-Court is supported by the Common-law to do it: and by the antient Common-law there was remedy to recover a Lega­cy, 2 Rich. 3. f. 14. Glanv. lib 7. C. 6.7. and the power of the Ecclesiasti­cal Court is derived from the Common-law, and the Common-law will take notice of a compulsary way in the Ecclesiastical-Court to pay a Legacy. And the payment in our case is executed, and now the Law takes notice of it, because the Defendant was compellable to it.P [...]omise. If an Executor promise to pay a Legacy, an Action upon the case will lye against him, if he do not [Page 56]pay it. Roll Iustice, the Testator may defeat all Covenants by this means; and Greens reason is not answered, which is the great doubt in the case. It was Necton & Sharps case, 38 Eliz. that Legacies ought to be paid con­ditionally, viz. to be restored, if the Covenant should be broken. When you argue again, argue to this point. Bacon Iustice cited a Case, 32 Eliz. in the Exchequer, against the opinion of Roll, and said, if the Legacies should not be paid, it might be a loss to the Common-wealth: for it may be the Goods will perish with kéeping them, and the keeping of them may be a charge to the Executor, and no body shall have any benefit of them, for they may cost more to keep, than they are worth, and a Devastavit lies not against an Executor of an Executor,Devastavit. for the Devastavit of the first Execu­tor. Roll Iustice, the Ecclesiastical-law ought to make a provision against these mischiefs,Prohibition. otherwise a Prohibition lyes against them. Appointed to be argued a gain Tuesday sevennight.

VVatson and VVatson.
Mich. 23 Car. Banc. Reg.
Hiill. 22 Car. rot. 1687.

VVAtson brought an Action of Debt upon an Obligation against Watson, Arest of Judg­ment in Debt upon an Ob­ligation to stand to an award. Award. the Condition was, to stand to the Award of two Arbi­trators, or of the Vmpire. The Defendant pleads nullum Arbitrium. The Plaintiff replies, that the Vmpire made the Award. The Defendant de­murs, and shews for cause, that the Award was not good: for it was in­certain, and not final on both parts, for one party was awarded to pay so much mony to the other, as in conscience should be due, and no man can say, what that is. The Court said, the Award was insensible. And Bacon Iustice said, it was a Vicars Award. Puliston of Councel with the Plain­tiff cited these Books to prove the Award good, 8 Ed. 4. f. 2.20 Ed. 4. f. 1. 4.18 Ed. 4. f. 2. Pasc. 4 Iac. Gosnolls case, & 9 H. 7. and said, these cases proved, that where an incertainty in an Award may be made certain, there the Award is good, and so it is in our Case. 2ly. He said, that the Award here is good, notwithstanding it be to pay so much mony as shall be due in Conscience:Conscience. for it shall be meant as is due in Law: for Law and Consci­ence are one and the same. But Roll Iustice said, that the Award doth not make a finall determination of the matters in controversy betwéen the par­ties, and so it is no Award. And Bacon Iustice cited 5 Rep. That an Arbi­triment ought to be certain, and final, and this Award wants both these properties; and therefore is not good.

Fitchet against Wolston.
Mich. 23 Car.

FItchet had a Iudgement against I. S. in an action of Debt,Demurrer to a Plea up­on a Scire fa­cias, against an Administra­tor. Scire facias with a Fieri facias. I. S. dies inte­state, Wolston takes out Letters of Administration of the Goods and Chattels of I. S. Fitchet takes out a Scire facias, with a Fieri facias to enquire what Goods of I. S. are in the hands of the Administrator, and to take them in execution upon the Iudgement Wolston, the Defendant, appears to the [Page 57] Scire facias, and pleads, fully administred. The Plaintiff demurs to this Plea, and shews for cause, that in this Case he should have pleaded non Devastavit, and not fully administred. 2ly. The plea answers not the Writ. The Court answered, all such processes are only to make the Exe­cutors, or Administrators to answer,Fully admi­nistred. and therefore fully administred is a good Plea, for it is a good answer, and it would be dangerous to plead o­ther waies, And Roll Iustice said, that this being a Scire facias with a: Fieri facias, according to the new manner of making the Writ, it would be dan­gerous to plead non Devastavit, and it hath been adjudged a good plea,Non Deva­stavit. to say fully administred in a Scire facias against an Executor, but it is bet­ter to plead nulla bona devenerunt ad manus, Nulla bona. with which he could satisfie the Debt since the Scire facias brought. But this being a new case it is fit to be argued. Therefore let us have Books.

Finer and Jeffry.
Mich. 23 Car. Banc. Reg.

FIner brings an Action upon the Case against Jeffry, and declares,Arrest of Iudgement in an Assumpsit. that the Defendant did assume and promise unto him, that if he would forbear to sue one who had assaulted him and beaten him, that he the Defendant would pay the Plaintiff as much mony as he was dam­nified by the Assault and Battery; The Plaintiff hath a verdict. The Defendant moved in arrest of Iudgement, and shewed for cause,Considerati­on. 1. That it doth not appear by the Declaration, that the Plaintiff had any intention to sue the party for the Assault and Battery, and so the Assumpsit in consideration, that he would forbear to sue for it is no consideration. 2ly. He doth not set forth, that he gave any notice to the Defendant,Notice. what dam­mage [...] he had sustained by the Battery. But the Court held, that the Plaintiff néeded not to allege, that he had an intent to sue the party, for that the Defendant took notice of, when the Assumpsit was made: and for the notice what dammages the Plaintiff had sustained, the request to perform the Assumpsit implies that sufficiently, and so gave judgement for the Plaintiff.

Dersly and Dersly.
Mich. 23 Car. Banc. Reg.

THree are endicted of Conspiracy and forgerg,Arrest of Iudgement upon an En­dictment of Forgery. and one of them only is found guilty by the Iury. The party found guilty moved in arrest of judgement, and offered these Exceptions. 1. The endictment is for a joynt forgery, and so one only cannot be guilty: but if one be acquitted, all must be acquitted. 2ly. The endictment is for forgery, and causing to forge, which are two several and different Acts. But to these the Court said no­thing; But took another Exception, namely,Conspiracy. that the Conspiracy is not found upon which the Endictment is grounded, according to the Statute, for 2 are acquitted, and so there cannot be a Conspiracy in the third per­son, nor in any of them, for one cannot conspire alone.

Bruer and Sowthwell.
Mich. 23 Car. Banc. Reg.

IN this case it was moved again in arrest of Iudgement,Arrest of Iudgement in an Action up­on an Assump­sit. Nudum pa­ctum. Considera­tion. upon the excepti­on formerly taken, namely, that the words in the Declaration discoun­ting for four Months were uncertain, and so there is no consideration for the Assumpsit, and then it is but nudum pactum. Roll Iustice said, the De­claration is insufficient for the incertainty: for it cannot be known what is meant by the word discounting. Yet he said, that though part of the Con­sideration, upon which the Assumpsit is grounded, be against Law; yet if the other part be good, and it may be divided, the Assumpsit is good notwith­standing. Yet we will hear Councel on both parts, before the Plaintiff shall have Iudgement.

Colson and Bedloe.
Mich. 23 Car. Banc. Reg.
Entred Mich. 22 Car. rot. 434.

COlson brought an Action upon the Case upon an Assumpsit against Bed­lore, Arrest of Iudg­ment in an a­ction upon the Case upon an Assumsit. and declares, that in consideration of so much monys, paid by the Plaintiff to the Defendant, the Defendant did assume and promise to de­liver so many loads of Hay unto him at such a place, and for not performing his promise he brings his Action. The Plaintiff hath a Verdict; The De­fendant moved in arrest of Iudgement upon these Exceptions. 1. The De­claration doth not set forth,Jurisdiction. that the place where the promise was made was within the Iurisdiction of the Court, which ought to have been, because it is the ground of the Action. To this Roll Justice answered, that it doth not appear, that it is out of the Iurisdiction of the Court, and it shall not be in­tended to be so, if it be not alleged by the other party. A second exception was,Intendment. Request. that there is not a special Request set forth for the Defendant to car­ry and lay the Hay in the place alleged. 3ly. The pleading is out of Court, for want of a continuance to the Court, for the continuance is not to the Court,Discontinu­ance. Verdict. but to such a day only. 4ly. The Verdict is informal, and shews no cause why dammages are given. Roll Iustice to the first excepti­on said, that the party ought to have taken advantage in pleading, that the cause of Action was out of the Iurisdiction of the Court,Pleading. and not to move such matter in arrest of Iudgement, for it is improper. But the Court ru­led the Plaintiff to shew cause why Iudgement should not be arrested upon the third exception. Afterward the same Term judgement was given nil capiat per billam against the Plaintiff for the discontinuance in the Process.

Tentch and Cletheroe.
Mich. 23 Car. Banc. Reg.
Pasc. 22 Car. rot. 332.

TEntch brings an Action of Covenant against Cletheroe, Error to re­verse a Judge­ment in an Action of Co­venant. & declares, that the Defendant had covenanted with him to pay such a sum of mony into the Exchequer at such a time, and for not performing this Covenant he brings his Action. The Plaintiff hath a Verdict, & a Iudgment. The Defen­dant brings his Writ of Error, & assigns for error, that the Plaintif had not set forth in what County the Exchequer is, and cites Hobs his case, Pasc. 8 Car. County. and a case 22 Car. C. Banc. That the County is material to be alleged, by rea­son of the Venue, 1 E. 4.3. Cooks institut. 210.21 H. 6. f. 4. The Court held that the County where the Exchequer was ought to be alleged,Exchequer. be­cause the Exchequer is transitory, and not fixt to one place,Venue. and so there can be no Venue, because it appears not in what County it is. And for this cause the Iudgment was reversed.

Sawyer and Russell.
Mich. 23 Car. Banc. Reg.

SAwyer brought an Action upon the Case for speaking these words of him, Thou art a Witch, and hast bewitched my Cow. Arrest of Iudg­ment in an Action upon the Case for words. VVitch-craft. The Plaintiff hath a Verdict. The Defendant moved in arrest of Iudgement for these reasons. 1. Such bewitching as is mentioned in the Declaration is not pu­nishable by the Statute of 1 lac. for it comes not within any of the branches of that Statute, neither that which speaks of death by Witch­craft, nor of the other branch: for it is not averred, that the Cow was hurt or destroyed by the bewitching, and so the party is not punishable.Intendment. And it shall not be intended to be so, for the party shall not be punished by an Endictment by an intention, neither shall he be here in this Case. And 2ly. words ambiguous of this nature, shall be taken in mitiori sensu. Roll Iustice said, that these words,VVords. Thou hast bewitched my Mothers Milk and Drink have béen adjudged actionable, and here is a scandal of the party of whom the words are spoken; and the words thou hast bewitched, implies hurt done to the thing bewitched; and this case differs from an Endictment: for an En­dictment must be more certain, than these words need to be. And a vio­lent intendment as here is, may bring one within the compass of an Action. Therefore let the Plaintiff have his Iudgement, if better matter be not shewn Monday next.

Nevill and Mott.
Mich. 23 Car. Banc. Reg.

NEvill brought an Action upon the Case against Mott, and declared,Arest of Iudg­ment in an a­ction upon the Case for words. that the Defendant being in company with him with a Constable, did speak thus of the Plaintiff to the Constable, There he is, take him, for I charge [Page 60]him with flat felony, and after spoke these words of him also, Mr. Nevill hath taken my Sheep with a felonious intent. The Plaintiff hath a verdict; The Defendant moved in arrest of Iudgement, that the words are not acti­onable, and cited Poland and Masons case, Hob. Rep. and alleged these rea­sons also. 1. Because the words were spoken to a Constable in prosecu­tion of Iustice, which shall not be taken hold of by a private person as a par­ticular injury meant to him.Averment. 2ly. It is not said the words were spoken fal­so & malitiose, as it ought to have been. But to the second Exception, Roll Iustice said, It is not not necessary to say, they were spoken falso & malitiose, where they appear to be scandalous, for there the Action lies well, though it be not so expressed, and if one charge another with suspition of Felony, and speak such words of him, if they appear to be maliciously spoken, an Action very well lies. The rule was for the Plaintiff to take his Iudgement, if bet­ter cause be not shewed to the contrary.

King and Hide.
Mich. 23 Car. Banc. Reg.

HIde moved for the quashing of an Endictment taken before Commissi­oners of Sewers,For quashing an Edictment before Com­missioners of Sewers. wherein he was endicted for a nusance made in the high way by reason of penning of water in the River, at his Mill, wher­by the water over-flowing the Banks did annoy the way and he took this exception to the Endictment, that it did not say it was a navigable River. But to this Roll Iustice answered, it was not necessary to say it was navi­gable: for if it be a common passage for water it is sufficient, and lies with­in the conusance of the Commissioners. But Roll took another excepti­on to the Endictment; That it sets forth this overflowing of the water to be a nusance to the high way,Nusance. and for this the party is endicted, whereas Com­missioniers of Sewers have no power to meddle with such nusances in the way, but only with passages by Water. And for this cause the Endictment was quashed.

Monger and Shaterton.
Mich. 23 Car. Banc. Reg.
Trin. 23 Car. rot. 569.

A Writ of Error was brought in this Court to reverse a Iudgement gi­ven in the Barrow-Court of Southwark, Error to re­verse a Iudge­ment given in the Burrow-Court of Southwark. and the Error assigned was, that in the Venire facias one of the Iury is called Richardon, and in the Habeas Corpora he is called Richardson, which are two several names, and so it is incertain what the proper name is. To this the Councel on the other side said, that this fault is helped by the Statute, it being after a Ver­dict. But Bacon Iustice said,Verdict. he doubted whether it could be helped now in this Court, though it might have been helped in the inferior Court, where the Action was brought by examination of it, and therefore ruled to shew [Page 61]cause why Iudgement shall not be reversed on Friday next. It was this Term reversed at the Defendants motion for his own expedition.

Brooke and Brook.
Mich. 23 Car. Banc. Reg.
Trin. 23 Car. rot. 580.

BRooke brings an Action of Debt upon an Obligation against Brook, the condition was,Demurrer to a plea in debt upon an Ob­ligation. that the Obligor should make an Estate of inheritance to the Obligee in such lands at such a day, and place, and for not doing it, he brings his Action. The Defendant pleads that he was ready at the day, and place, to make the Plainiff an estate of inheritance in the lands; The Plaintiff demurs to the plea,Notice. and for cause shews that the Defendant doth not shew that he gave notice to the Plain­tiff of his being there. To this Roll Iustice said, it is not necessary to give notice of the day or place. A second exception was that he had not shewed that he gave the Plaintiff notice what estate of inheritance he would make him. To this Roll Iustice said, he ought to have shewn,Time. Place. that he gave notice what estate he would make him, and therefore let the Defendant shew cause why the Plaintiff should not have Iudgement.

Kale and Iocelyne.
Mich. 23 Car. Banc. Reg.
Trin. 23 Car. rot. 1282.

KAle brings an Action of Debt against Iocelyne an Executor,Demurrer to a plea by an Executor in Debt for re [...] brought a­gainst him. Plea. Executor. VVaiver. Covenant. and de­clares for rent grown due since the death of the Testator, by virtue of a lease for years made of certain lands by the Plaintiff unto the Testator which yet continues, and declares, that the Executor debet & detinet, &c. The Defendant pleads fully administred, the Plaintiff demurs upon the plea; For pleading in the debet and the detinet: Bacon Iustice said, it was good, and so had been adjudged. To which Roll Iustice answered it had been adjudged pro & con, to be good and to be bad, and he said, that an Executor cannot waive a Term let to the Testator, for he is bound by Co­venant to hold it, and said that the Declaration was good in the debet and detinet prima facie; for it shall be intended that the land let to the Testa­tor is worth as much by the year, as the rent that is paid for it, till the con­trary be shewn, and then it is reason that the Executor be charged; Bacon Iustice said, that the Executor may waive the possession, if he find that the rent is more than the land is worth, otherwise it may be mischievous to him. Roll. Iustice said, that the Declaration must be in the detinet and de­bet, otherwise it will be mischievous to the Plaintiff, and said, that a speci­alty shall be satisfied before a rent reserved upon a lease by deed,Allets. which Ba­con denied, and it was said, that a lease for years shall be assets in the hands of an Executor, although the rent reserved be the full value of the Lands let by the lease. The Defendant was ordered to shew cause why Iudgement should not be given against him.

Baker against Edmonds.
Mich. 23 Car. B. Reg.
Hill. 22 Car. rot. 222.

BAker brings an Action upon the Case against Edmonds, Special ver­dict in an Act­ion upon the Case whether a verdict maintains the issue joyned. and declares, that whereas I. S. was indebted unto the Plaintiff in a certain sum of mony, and afterwards being so indebted became a Banckrupt, and that a Comission upon the Statute of Bankrupt was taken out by him, and other creditors against him, and that it was found that the Defendant was in­debted to the Banckrupt, the Commissioners of the said Commission did assign over the Debt of the Defendant mentioned in a certain schedule, a­mounting to such a sum, unto the Plaintiff, in part of satisfaction of the Debt owing unto him by the Banckrupt, by virtue whereof he demands the said Debt of the Defendant, who did assume, & promise to pay the same, and for not performing his promise, he brings his Action, the Defendant pleads non Assumpsit, and thereupon an issue was joyned, and a speciall verdict was found to the effect, as the Plaintiff had declared, but they further find that the Debts mentioned in the schedule, and assigned over to the Plain­tiff amounted to such a sum, whereas they find that the Defendant did not owe unto the Banckrupt so much as that Debt assigned is, but a lesse sum. And upon this verdict the question was,Verdict. Issue. Assignment. whether the verdict did maintain the issue, which was non Assumpsit, if it did, then they find for the Defen­dant, if not, then for the Plaintiff. In the breaking of the Case it was mo­ved whether the Assignment were good or no, in regard that the Commis­sioners had mistaken the Debt, for the Debt assigned by them was grea­ter than the Debt found by the Iury, and so might be another Debt. But to this Roll Iustice said, that the assignment was not judicially before them in question, for if it were, it would be judged an ill assignment, but here it comes not in issue but only whether the Defendant did assume, and promise or no, and the speciall verdict concludes not upon the assignment, but whe­ther the speciall matter found do maintain the issue or no, & therfore he was of opinion that the Plaintiff ought to have his Iudgment. Bacon Iustice dif­fered in opinion, & said, that it is dangerous for Commissioners of Bankrupt, to assign Debts particularly.Commissio­ners. The rule then was to argue it the next Term: At which time Ward of Councel for the Defendant argued, that the verdict was for the Defendant for this reason, viz. Because the Debt laid in the De­claration, and the Debt found by the verdict are not the same, and so the De­fendant did not assume, and promise that which is laid in the Declaration, for there is no such Debt found, and if he should be charged with that, he might be doubly charged,Averment. for he may be again charged for the debt found by the verdict, and circumstances of quantity, time and place are averred in a Declaration to make things certain, and if they fall the Declaration is not good, 18 E. 3. fol. 25. 1. rep. 74. Palmers Case. 2ly. The Declara­tion is insufficient, for it expresseth not what the sum is, but saith, a sum mentioned in a schedule of Debts, which is incertain: Roll Iustice inter­rupted Ward. and said, all that you have argued is out of dores, but the last matter touching the Declaration, and to that Hales of Councell with the Plaintiff said, the Declaration is good, and certain enough, for there ap­pears no other sum in the schedule than is mentioned in the Declaration. [Page 63] Bacon Iustice, The assignment is of the debt of this man due to the Bankrupt, be it more or be it lesse, and hath no reference to the accompt, and recko­ning between them, & so the Assignment is good, though it agree not in the sum with what is justly due, and the issue is upon the Assumpsit, Issue. Admittance. and not upon the Assignment, for the Assignment is admitted by the Defendant, and so not material whether it be an Assignment of the true sum or not. Iudge­ment was given for the Plaintiff.

Bruer and Sowthwell.
Mich. 23 Car. Banc. Reg.

THe Plaintiff in this Case moved again for judgement,Arrest of Iudgement in an Action up­on the case upon an As­sumpsit. notwithstan­ding what had been formerly spoken to arrest it, for though the word discomputando in the Declaration be insensible, yet there is enough in the de­claration to ground the Action, and that is the breach of the Assumpsit assig­ned to deliver the Currants bought of the Defendant, and the word dis­counting shall not hurt it. Bacon Iustice was of the same opinion. But Roll Iustice said,Assumpsit. Contract. all the bargain is here set forth upon which the Assumpsit was made, and if the bargain be ill, the Assumpsit is not good. Hales of Councell with the Plaintiff said, if part of the bargain be in­sensible, and part not yet a good Assumpsit may be grounded up­on that part which is good, But Roll said the bargain here is intire, and if part of it be not good it is all naught: yet he said if part of a bargain be good, and part void, yet an Action may be brought upon it. The rule was, That it should be argued again on both parts.

Seaman against Edwards.
Mich. 23 Car. Banc. Reg.
Trin. 23 Car. rot. 920.

SEaman brings an Action against Edwards, Demurrer to a plea plead­ed by an Ex­ecutor. Plea. Executor. and declares against him as Executor of I. S. (whereas the truth was, that I. S. made 3 others Ex­ecutors, and not the Defendant.) The Defendant pleads that he is not the same person named in the Will. To this plea the Plaintiff demurs, and for cause shews that he may be an Executor de son tort demesne, though he be not named in the Will, and so may be chargeable, and therefore he ought to have pleaded ne unques Administred come Executor, and of this opinion was the Court, and ordered the Defendant to shew cause why Iudgement should not be given against him. Iudgement was given for the Plaintiff.

Dod against Eaton.
Mich. 23 Car. Banc. Reg.

DOd brings an Action upon the Case against Eaton for speaking these words of him, thou hast the French Pox, Exception to a special ver­dict. the Defendant pleads not [Page 64]guilty, the Iury upon this Issue find a special verdict, viz. That the Defen­dant had said, thou hast had the French Pox, whereupon the Defendants Councell said, that the Verdict doth not maintain the words laid in the De­claration, and that the words that are found in the verdict are not actiona­ble, and so the Plaintiff can have no Iudgement, and cited 15 Jac. Nut­combes Case,Verdict. and the words found are not issuable, and so the verdict is imperfect, 40 Ass. 41. Kelway. 6. 18 Ed. 3. fol. 19. Pasc. 33 Eliz: Banc. Reg. Dame Ratcliffs Case. Dyer Sr, Iohn Burges Case prove that the verdict is too short. Roll Iustice said, if the verdict be imperfect, there may be a new venire facias, Venire de no­vo. and so it is against the Plaintiff, for he cannot have Iudge­ment. Panell of Councell with the Plaintiff cited Osborn, and Brooks Case that the verdict was for the Plaintiff. But Roll Iustice said, that the Iury cannot find a thing that is not within the Declaration to main­tain the Declaration, for they ought to hold themselves to the issue, and that they have not here done, and therefore the verdict is imperfect, and there must be a new venire facias to try the issue again, for Iudgement can­not be given upon this verdict, for they do not find that he spake not the words in the Declaration which are the most material, so that the matter is not found fully enough for us to proceed to Iudgement one way or other. Adjourned.

Poole against Coply.
Mich. 23. Ca. Banc. Reg.

POole brings an Action of Trespasse against Coply, Arrest of Iudgement in Trespasse. and hath a verdict against the Defendant. It was moved in arrest of Iudgement that the Declaration is incertain, for the Plaintiff declares that the Defendant cepit et asportavit decem coria, anglice hides, and the word Coria is uncer­tain, for it may be coria equorum, or coria ovium, or of any other Cattel. To this Roll Iustice said,Anglice. that it is well enough, for the Anglice had made the woord certain, and it is the usual maner to plead it thus. The Court ordered the Plaintiff should have his Iudgement, if better matter were not shewn to the contrary.

Hull against Gurnet.
Mich. 23 Car. Banc. Reg.

HUll brings an Action of false imprisonment against Gurnet, Demurrer up­on a special plea in false imprisonment. the De­fendant pleads a speciall justification, that he took, and imprisoned the Plaintiff by virtue of a Commission granted out of the Court of the Admiralty, to examine the taking away of certain goods which were wrac­ked by the Sea.Custom. To this plea the Plaintiff demurred, and shewed for cause; That the Defendant hath not set forth the Custom of the Admirall Court, that the first processe thereof is a Capias, and so it appears not, whe­ther he have proceeded right or no.Admiralty. 2ly. It doth not appear that the mat­ter for which the Commission was granted is Maritime, and other matter they ought not to medle withall. The Rule of Court was to shew cause why Iudgement should not be given against the Defendant upon this plea.

Smith against Stone.
Mich. 23 Car. Banc. Reg.

SMith brought an Action of Trespasse against Stone pedibus ambulando, Special justifi­cation in tres­passe pedibus ambulando. Trespass. the Defendant pleads this speciall plea in justification, viz. That he was carryed upon the land of the Plaintiff by force, and violence of others, and was not there voluntarily, which is the same trepasse, for which the Plaintif brings his Action. The Plaintiff demurs to this plea: In this case Roll Iustice said, that it is the Trespasse of the party that carryed the Defen­dant upon the land, and not the Trespasse of the Defendant: as he that drives my Cattel into another mans land is the Trespassor against him, and not I who am owner of the Cattell.

Mathew against Herle.
Mich. 23 Car. Banc. Reg.
Trin. 23 Car. rot. 1554.

MAthew brought an Action of trespasse against Herle for breaking his Fence, and entring into his Close, &c. Demurrer to a plea in tres­pass quare clausum fregit The Defendant pleads that I. S. was seised of this land, wherein the Trespasse is supposed to be done, in fee, and so seised did demise the same for years by deed to the Plaintiff reserving rent, in which deed was a clause of reentry for non payment of the rent, and afterwards made his last Will in writing, and dyed; by which will be gave the said land in qua, &c. to the Defendant, and that af­ter the rent was behind, and that he for the non payment of the rent accor­ding to the Covenant in the deed, by virtue of the clause of reentry did en­ter intot he lands, which is the same breaking of the Fence, and entry for which the Plaintiff brings his Action, and demands Iudgement if the Plaintiff ought to have his Action. To this Plea the Plaintiff demurs, and shews for cause: That it doth not shew that the lease made to the Plain­tiff is a lease of the land, in which the Trespasse is supposed to be done, 2ly.Licence. The Defendant doth not shew that he did [...]nter into the land by leave of the Executor, which he ought to have done; for though the land was devised to him by will, yet he cannot enter into the land without leave of the Exe­cutor. The Court ordered the Defendant to shew cause why Iudgement should not be given against him upon his plea.

and Long.
Mich. 23 Car. Banc. Reg.

THe Plaintiff brought an Action upon the Case for these words spoken of him,Arest of Iudg­ment in an a­ction for words. Long is a murtherer, and hath bewitched my Child, and was the death of my Child, and obteins a verdict. The Defendant moves in [Page 66]arrest of Iudgement, and takes these exceptions to the Declaration. 1. That it is not said, that the Child was bewitched to death. 2ly. It doth not express whether the Child bewitched was born alive or not. To this the Court said,Felony. that the bewitching of the Child is Felony, though it do not dye by it. And to the second exception, That the Court doth not take notice of a Child if it be dead-born, and they will intend it was born alive; and Roll Iustice said, that these words Thou didst kill my Ma­sters Cook, Averment. have been adjudged actionable, although the Plaintiff did not aver, that his Master had a Cook. Therefore let the Plaintiff take his Iudgement, if better matter be not shewn Saturday next.

Carver against Pierce.
23 Car. Banc. Reg.

CArver brings an Action upon the Case against Pierce for speaking these words of him,Arrest of Iudgement in an action for VVords Thou art a Thief, for thou hast stollen my Dung, and hath a Verdict. The Defendant moved in arrest of Iudgement, that the words were not actioanble: for it is not certain whether the Dung be a Chattel, or part of the Free-hold, and if so, it cannot be Theft to take it, but a Tres­spass, and then the Action will not lye.Chattel. Bacon Iustice, Dung is a Chattel, and may be stollen. But Roll Iustice answered, Dung may be a Chattel, and it may not be a Chattel; for a heap of Dung is a Chattel, but if it be spread upon the Land it is not, and said, the word Thief here is a­ctionable alone,Felony. and there are no subsequent words to mitigate the former words: for the stealing of Dung is Felony if it be a Chattel. Bacon Iu­stice said, It doth not appear in this Case of what value the Dung was, and how shall it then be known, whether it be Felony or pety Larceny? To this Roll answered, the words are scandalous notwithstanding and actio­nable, though the stealing of the Dung be not Felony. The rule was, to move it again Tuesday next.

Mich. 23. Car. Banc. Reg.

A Writ of Error was brought in this Court to reverse a Iudgement gi­ven in the Marshals Court,Error to re­verse a Iudg­ment, for dis­continuance in the Pro­cess. Discontinu­ance. and the exception taken was, that there was a dicontinuance in the process, and so there ought to have been no Iudge­ment, and therefore the Iudgement given is erroneous; and that there was a Discontinuance it thus appears. The Continuance was ad proximam Curiam, and it appears upon the retorn of the Venire facias, that that was no Court day, for it was the three and twentyeth day of the Month, whereas Friday, on which day the Court was held, was not the 23 day, and so there is Error in the continuance. Roll Iustice said, the former Continuance was to the 9th. day, and from thence to the 15th. and that is but six daies, and so wants of the time.Iudgement. Bacon Iustice, Where there is a Discontinuance the Court hath no power to give Iudgement, and so the Iudgement is here erroneous, and therefore let it be reversed, nisi causa, &c.

Mich. 23 Car. Banc. Reg.

LEssee for years of Lands by Deed,Demurrer to a Plea in an action of Co­venant. brings an Action of Covenant a­gainst the Lessor, and declares, that the Lessor had covenanted, that he should peaceably and quietly enjoy the Lands let during the Term, and that a Stranger entred upon him, and ousted him within the Term. To this Declaration the Defedant demurs. Roll Iustice said, that the Co­venant in this Case is broken, though it be a Stranger that entered and ou­sted the Lessee. Walker of Councel with the Defendant took this difference, where a Stranger enters upon the Lessee and doth a Trespass, and where he enters and outs the Lessee; in the former Case he said,Covenant. the Covenant is not broken: but in latter it is broken. Iudgement was given for the Plaintiff except cause should be shewn Monday next.

Thynn against Thynn.
Mich. 23 Car. Banc. Reg.
Hill. 23 Car. rot. 1658.

THynn brought an Action of Dower against Thynn, Error to re­verse a Iudge­ment in Dow­er. Return. Proclamation. and hath a Iudge­ment by default, and thereupon a Writ of Enquiry issued out to the Sheriff, who delivered seisin of the Dower recovered, and returned the Writ; upon this Iudgement, The Defendant brings a Writ of Error, and assigns these Errors in the Record. 1. The original Writ appears not to be returned according to the Statute; for the year doth not appear when it was returned. 2ly. The Proclamation made by the Sheriff appears not to be where the Land lyes. 3ly.Summons. The return doth not mention that the Proclamation was after the Summons, as it ought to be, as it is Hob. Re­ports, in Allens Case. 4ly. It is not said that he did make Proclamation upon the Land. 5ly. It appears not that the Proclamation was in the Pa­rish where the Summons was, as the Statute directs. To these exceptions Hales of Councel on the other side, answered. To the first, Return. that the retorn of the original Writ shall be intended to be in the year of the Reign, and not of the Age of the King, though the word Reign be omitted. To the se­cond, the Lands lye in divers Parishes, and Proclamation at the Church of any of the Parishes is good enough. 2ly. It doth not appear, that there are divers Churches in New-Sarum where the Proclamation was made. To the third exception, the Proclamation is said to he made prout breve po­stula [...], and that shall be supposed duly done, and implies all requisite circum­stances, and he cannot make another return, and it is impossible to be o­therwaies. To the fourth, it is not necessary to retorn the place of the Sum­mons, and it is said that it was made secundum formam Statuti, which sup­plies the rest. And to this the Court said, that the words secundum formam Statuti extend far. And Roll Iustice said, that Proclamaiton in one place was good in all. Holhead of Councel with the Plaintiff, in the Writ of Error proceeded, and took these exceptions in the demand of the Dower. 1. The demand is generally de rectoria, which is not good,Demand; Rector. for the incer­tainty of it: for there may be a Rector of a College, of a Province, & of a Bi­shoprick, [Page 68]as well as of a Parish-Church, and therefore it ought to have been de Rectoria Ecclesiae parochialis de &c. 12 H. 4. f. [...]9. pl. 1. 2ly. The de­mand decimarum is too general, and not good, and it ought to have been de­cimarum granorum, soeni, &c. for the demand de omnimodis decimis quibus­cunque is too general, 11 Rep. Herberts case. 1. To these exceptions Hales answered, that a demand in a Writ of Dower need not to be so exact as in other original Writs: for original Writs are not alterable, but ought to answer the forms in the Register. To the second he said, that rectoria shall be intended the Rectory of a Church, and the Statute extends not to this: be­sides the place of the Rectory is described, which makes it certain enough. To the third, it is not necessary to express the Tithes particularly, and the de­mand being of the Rectory it compriseth all the Tithes, also the demand is de omnimodis decimis which is a general demand, and compriseth all, and is not de decimis only, for that might be incertain. Holhead, The demand is de rectoria & de omnimodis decimis which is a demand of one thing twice, and that is not convenient, for by this means the party may recover dam­mages twice, and the Court will be also inveagled by this means, and it matters not though we have not pleaded to this: for the Court ought to take notice of it,Notice. because it is in the original Writ. Next there is no form in the Count, for cum pertinentiis is informal, for it refers to the Parish, and not to the Mannour, 27 E. 3. f. 86. Pl. 3. Hale [...], This is but a variance in form, and is not material, and also it shall be intended to refer to the Mannour, and not to the Parish. Holhead, The demand is not warranted by the Writ, for the Vill and Parish are not named in the Writ, but are named in the demand, 11 Rep. Arondels case. Hales, The demand is not de rectoria in Tymsbury, but de Tymsbury, and is the denomination of the thing demanded,Tithes. Parissi. and not of the Vill where it lyes. Holhead, It is not said, where the Tithes extend, and they may extend to divers Vills, as a Pa­rish may, 19 E. 3. f. 9. Hales, Here is one demand, and it includes all the Tithes. Roll Iustice, You have demanded the Rectory in Tymber, and not the Rectory of Tymber, and by the grant of ones Mannour in Dale, no more of it passeth than what doth lye in Dale, and here it shall be intended so much of the Tithes as are in Tymber. Holhead, Here is a demand of Dower of such things whereof Dower lyes not, viz. of a quarry of Stones, and it appears not that the Quarry was open in the life of her Husband; and if it were, yet it is improper to demand it by the name of a Quarry. Hales, the word Quarry is a good word, & well-known what it means: for Quarrera is an old wel-known Latine word for it,Dower. and she is as well dowable of it as of a Mine of Coles, and it shall be intended to be open, because she demands it by that name of a Quarry. Holhead, The demand of the Dower is also of a Hun­dred, of which a Woman is not dowable, because it is an entire thing, and cannot be divided, and the demand should have been de tertia parte proficu­orum hundredi. To this Roll Iustice answered, then by your reason she shall never keep a Court. Hales, It is well enough demanded, for a demand shall be of the thing it self, and not of the profits of it, for the profits were not in the Husband, but he was seised of the Hundred, and the profits are a thing incertain. Holhead, The execution of the Habere facias fesinam is not well executed, for by it two third parts are assigned for Dower, and that is more than the demand. Hales, That is but a repetition of the thing demanded. Holhead, A thing not demanded at all is assigned for Dower, viz. view of Frank pledge. Hales, That is but an incident to another thing that is demanded, viz. the Hundred, and by the demand of the Hun­dred the view of Frank-pledge is demanded, and all other incidents to the Hundred. Holhead Here is an assignment also of all tenures, and she can­not have Homage, because she is a Woman. Hales, She shall have all te­nures [Page 69]which she is capable of, and so all shall be understood in this place, and no other she shall have. Holhead, The Iudgement is also if 15 Copiholds & Tenements which lately were Copiholds. Roll Iustice, This is good enough, and what loss have you by it? Holhead, The Assignment is also of the 3d. part de Copicia & de Structuris, and other words there are which are also incertain. And there is error in the assignment of dammages: for the dammages are assigned ultra valorem terrae, which is against the Statute. Roll Iustice, Dammages. Iudgement. the Statute is an addition of the value and dammages, for the Iudgement is perfect without returning the Writ of the dammages, and so hath been ad­judged in the Common pleas. Holhead, Here is an ill suggestion of the Feme, for the suggesteth, that her Husband dyed seised in fee of all the Lands out of which she demands her Dower, and that is not true, for he dyed seised of part of them in tayl. To this the Court said, that is not mate­rial if he dyed so seised, that she ought to have Dower. Holhead, Dammages are given ultra valorem, which I conceive is not good. Roll Iustice, It is well enough: for dammages are given, and the value by the Statute. Holhead, The retorn of the Elegit is not good. Hales, That is another Record, and appears not now in the Court. Roll Iustice, The Elegit hath no reference to the former Record. Holhead, There is one error in fact, and that is confessed by your joyning in demurrer.Doubleness. Roll Iustice, You might have demurred for this doubleness, for one cannot assign an error in fact, and another error in Law in a Writ of Error, for this is double. Hales, It is true, but we have lost that advantage. Adjourned to be argued again the next Term.

Robinson against
Mich. 23 Car. Banc. Reg.

RObinson brought an Action of Trover and Conversion against T. B. Arrest of Judgement in Trespass. and hath a verdict. The Defendant moved in arrest of Iudgement, and shewed for cause, that the Declaration was not good, for the Plain­tiff amongst other things declares, that the Plaintiff had found and con­verted to his own use unum vestigium, Anglice a Footstool, whereas it sig­nifies a Footstep, or a print of the foot, and not a Footstool. 2ly. The Plaintiff declares pro decem ponderibus Aeris, meaning ten pound of Brass, whereas it should be aeris with a Dipthong, for Aeris is of Ayr, and not Brass. But this exception was over-ruled by the Court, because in the wri­ting of Court-hand, in which hand Declarations are written,No Dip­thongs in Court-hand. there are no Dipthongs used, and so the word Aeris might as well signifie Brass as Ayre. But for the other exception, judgement was stayed till the Plaintiff should move.

Izack against Green.
Mich. 23 Car. Banc. Reg.

Izack brings an Action upon the Case in London against Green, For a Proce­dendo to try an action in London. for calling her Whore. Green removes the cause by a Habeas corpus into this Court, and hath a Supersedeas to stay the Plaintiffs procéedings in London. The Plaintiffs Councel moved for a Procedendo, that he might procéed in Lon­don, because that in London, by a special Custom there an Action doth lye [Page 70]for calling a woman Whore, though out of London it lyes not, and cited Pascal and Barbars Case 21 Iac. to prove it. Bacon Iustice, The custom of London is to be certifyed that we may Iudge of the reasonablenesse of it, and we are not to take notice of it upon a surmise, and it seems that a pro­cedendo should not here be granted,Procedendo, Notice. because the matter with which she is charged by the words belong to the Conisance of the Civill law to try it, and not to our Law, as it is 2 H. 4. Roll Iustice, One may in some Cases have an Action at the Common law, where he may have remedy also in the Ec­clesiasticall Court; for the Common law is to be preferred, and by a spe­cial custom as the Case here is, an Action may be maintained where it lyes not at the Common law, and so was it held 8 Car. and 13 Car. And if there should not be a procedendo granted in this Case, the Plaintiff would be tyed up by the habeas corpus, but if it be granted the matter may be try­ed, and upon that if the Iudgement be erroneous a writ of Error may be brought in the Hustings in London, and so all the matter may come in quest­ion to be argued,Action. and he said that a Charter cannot give an Action, which the Common law allows not. But let the matter rest as it is till we can a­gree.

Mich. 23 Car. Banc. Reg.

THe Plaintiff brought his Action upon the Case,Arrest of Iudgement in an action up­on the case. for these words, thou muttron-monger theef bring home my stolen hay. The Defendant makes a special justification, that the Plaintiff had stollen a sheep, and up­on this was an issue joyned, and a verdict for the Plaintiff. The Defen­dant moves in arrest of Iudgement that the Declaration was not good; for it only chargeth the Defendant with speaking of the words, and doth not say dixit de querente, and though those words be in the replication, yet that makes not the Declaration good. Roll Iustice, The Declaration is not good, for the words may be spoken of any other body, as well as of the Plaintiff. Bacon Iustice agrees with Roll, and said, that the word dixit was not in the Declaration, and so it appears not whether the Defendant spoke, or writ, or thought the words, and which is more it is not said, that the words were spoken in the presence of any body, and then they cannot be scanda­lous; Roll Iustice said, one cannot rejoyn upon words, which are not in the Declaration nor in the plea; for if the Declaration, and the plea be naught,Replication. the replication cannot make them good. The rule of Court was nil capiat per billam, except cause shewn Saturday following.

Kinpe against Iohnson.
Mich 23 Car. Banc. Reg.
Pasc. 23 Car. rot. 154.

A Writ of Error was brought to reverse a Iudgement given in Hull, Error upon a Judgement in Hall. Continuance for these Errors assigned. 1. That one of the continuances was to a certain day of the mouth, where it ought to be ad proximam curiam; 2. The Declaration was pro se decem bestiis, Anglice Cows or Whyes, which is too general; for the word bestia may signifie any beast whatsoever as [Page 71]well as a Cow. The Iudgement was reversed except cause shewn to the contrary.

More against Clipsam.
Mich. 23 Car. Banc. Reg.

MOre brings a Replevin against Clipsam, Argument upon a Reple­vin. and declares of a hundred oves Matrices et vervices distrained by Clipsam. Clipsam demurs to the Replevin for the incertainty of it; for it appears not how many of the hundred sheep distrayned, and replevied, were Matrices, or ewes, and how many were vervices, or weathers; Maynard moves for Iudgement in the Replevin for the Plaintiff, and held that centum oves alone was good, and certain, and the addition Matrices, and vervices, shall not make an incertain­ty,Incertainty. and the writ of Replevin doth not shew the cattell distrained particular­ly, but the help of the party, and the view of the Sheriff must concurr to shew what Cattel are to be delivered by the writ. 2ly. Here is a good issue argumentative, although it be not so formal. 3ly.Issue. There is no more in the issue at the Bar, than in the avowry, for all the Term is but one day, & ther is no division of time in it, & it is dangerous to make fractions,Term. & a Statute acknowledged in the Term relates to the first day of the Term.Statute. Relation. Hales on the other side agreed that centum oves without saying any more had been cer­tain enough, but as they are here distinguished into Matrices, & vervices, there is no certainty at all; for the Cattel in kind are demanded, and ought to be delivered as they are demanded, so that if the demand be incertain there can be no certain delivery. 2ly. The issue is ill, and is not helped by the verdict; for 1. the title made is not answered. 2. Traverse. The traverse is only to the conclusion, and so is but by way of inference, and is not helped after a verdict; for the plea is not answered:Advantage. for the words fuit et adhuc est sesitus is not good, for it is not material whether he were seised at the time of the distresse or no, but whether he were seised at the time of the replevin, and there is a distance between the replevin, and the avowry, and there is a pri­us and a posterius in it. Roll Iustice said, it is made up in the retorn, and there is no distinction of time, and if one plead an ill plea,Plea. and the issue upon it be found against him, he shall not take advantage of his own ill plea, and if there be a negative, and an affirmative, though the issue be not well joyned, it is helped by the Statute of Ieofailes, otherwise, if there be not an affirmative, and a negative; for then there is no issue at all joyned to be helped. Bacon Iustice, Oves matrices et vervices is ill; for the Sheriff knowes not what retorn to make; Roll accords, and said, you have made that which was certain, to be incertain by the specification you have made, and a replevin is a demand, and ought to be as certain as a precipe. Iudge­ment was given against the Plaintiff in the case at the bar, because the Decla­ration was ill, and uncertain.

Gilbert agaiast Stone.
Mich. 23 Car. Banc. Reg.
Trin. 23 Car. rot. 1703.

GIlbert brought an Action of Trespasse quare clausum fregit, Demurrer up­on a plea in Trespasse. and taking of a gelding, against Stone. The Defendant pleads that he for fear of his life, and wounding of twelve armed men, who threatned to kill him if he did not the fact, went into the house of the Plaintiff, and took the gelding. The Plaintiff demurred to this plea; Roll Iustice, This is no plea to justifie the Defendant;Trespasse. for I may not do a Trespasse to one for fear of threat­nings of another, for by this means the party injured shall have no satis­faction, for he cannot have it of the party that threatned. Therefore let the Plaintiff have his Iudgement.

Symons and Low.
Mich. 23 Car. Banc. Reg.
Trin. 23 Car. rot. 650.

SYmons brings an Action upon the Case against Low for speaking these words of hir,Error upon a Iudgement for words. Plaint. She, innuendo the Plaintiff, is perjured, and hath a verdict, and a Iudgement; the Defendant brings a Writ of Error to reverse this Iudgement, and assigns for Error that the plaint was entred the same day that the words were spoken, which was said ought not to be, because the Action should be brought after the words spoken,Fractions. which shall not be inten­ded to be if it be the same day, because the Law admits of no fractions of time, which will be, if a day be divided into several parts, as it here must be, for there must be one hour supposed when the words were spoken, and a­nother hour when the plaint was entred. But Roll Iustice said, it was well enough, and ordered the Plaintiff to take her Iudgement, if cause were not shewn before the end of the Term.

Cheevers against
Mich. 23 Car. Banc. Reg.

VPon a rule of Court to shew cause why a scire facias to revive a Iudg­ment was not good,To quash a scire facias. This was offred for cause, that it doth not shew before whom the Iudgement was given, which was to be revived by the scire facias, and consequently there appears no Iudgement to warrant the scire facias. To this Roll Iustice answered, that in the Common pleas the course is to set forth before whom the Iudgement is given, but in this Court the course is not so: But how comes the Record hither? The Councell answered, That there was a Iudgement in Canterbury, and upon that a Writ of Error was brought in this Court, and the Iudgement affirmed upon that Writ of Error,Scire facias. and then a Scire facias issued out here upon the Iudgement against the bail, and upon this the bail moves upon the record, that there is error in the scire facias. Roll Iustice, The Record is well enough; In a scire facias it is not requisite to say Consideratum est per curiam. Therefore let the scire facias stand.

Carver and Pierce.
Mich. 23 Car. Banc. Reg.

THe Case between Carver and Pierce was again moved by Hales, Arrest of Iudgement for words. wher­in it was moved formerly in arrest of Iudgement that these words Thou art a theef, and hast stolen my dung are not actionable: That the words are actionable for these reasons 1. The first words are actiona­ble, and the second words are accumulative, and aggravate the former words, and do not mitigate them. 2. It may be felony to steal dung, and the violence of the words do enforce it to be so intended. Bacon Iustice, I hold that Iudgement is to be given for the Plaintiff, and so it was for these words, thou art a theef, and hast stolen my Corn. Roll Iustice was of the same opinion, and said that the second words are not violent enough to allay the first words, and are not explanatory, and by way of mitigation; for the words are not, for thou hast, but they are, and thou hast stollen my dung. Iudgement was given for the Plaintiff▪ antea.

Eeles and Lambert.
Mich. 23 Car. Banc. Reg.

THe Case between Eeles and Lambert was again argued by Latch for the Plaintiff, and by Twisden for the Defendant, Latch argued to this effect,Argument upon a plea by an Execu­tor. Legacy. That the Legatee hath no right in the legacy, untill it be delivered unto him by the Executor, 2 E. 4 fol. 13. but if a legacy be given in this manner, if I dye let my Cosen have such a thing, there the Legatee may take the legacy without the delivery of the Executor, and a thing which cannot be devided cannot be administred. Bracton l. b. 2. C. 26. 7 H. 6. Administrati­on. Devise. A devise is void if there be not sufficient goods besides to satisfie the Debts of the Testator. 2. The disposition of the Testator ought to agree with the law of God, the law of na­ture, and the Law of the Land, and whereas it is objected that there will be an inconvenience, if the legacies shall not be paid, I answer, the Law re­gards not this inconveniencie; But 2ly. this inconvenience is none in respect of the inconvenience will be on the other side if the legacies be paid, namely the breaking of the Law of God, the Law of Nature, and of the Land, and the inconveniences supposed are helped by the Civill Law,Caution. for it takes cau­tion in paying of legacies to repay them in such accidents as are in our Case. Twisden for the Defendant argued, that it was a good administra­tion of the goods, and that there is no assets in the hands of the Executors, and he agrees that a devise of goods in specie, and a devise of mony is all one; but this is not a Debt, and so is not to be paid; for in Iudgement of Law, it is presumed that the Covenant shall not be broken, and that it shall not be respected in regard of the incertainty whether it shall be broken or no, but the Law takes notice of the Will, and it is of temporal conusans, 2 Rich. 3. 11 H. 7. f. 12. and it takes notice of a legacie to try the right of it, and to discharge it, and the Executor here is compellable to pay the lega­cies, and cannot refuse it neither by the Common law, nor by the Spiritu­al law;Covenant. but it is objected that it is inconvenient that one shall avoid his own Covenant by his own devise. To this I answer, he might have done it in his life by giving away all his goods; and 2ly. There shall not be in­tended to be fraud in the Will, and there are more inconveniences of our [Page 74]part in not paying the Legacies, than on their part by paying them: for by this means, men shall have no power to dispose of their own Goods by Will, by reason of Covenants in Leases and Déeds made by them; and the Spiritual Court cannot compell a Legatée to put in security for his Le­gacy,Security. as is surmised. Adjourned to the next Term to give Iudgement.

Mich. 23 Car. Banc. Reg.

THe Court was moved to deliver their opinion in a Case formerly moved,VVhether an Attornment good or not. wherein the Question was, whether an Attornment made by a Lessée for years the same day that the rent was due to be paid upon his Lease to him that had purchased the reversion of the Land let unto him, and for which the Purchaser had brought his Action,Attornment. be a good Attornment. Roll Iustice said, that it is a good Attornment by the averment made, and by the finding of the Iury, and that Iudgement ought to be for the Plaintiff. Bacon Iu­stice agrees, and said, the Attornment shall be intended to be before Sun set, and not afterwards. Therefore let the Plaintiff take his Iudgement.

Parmiter against Cressey.
Mich. 23 Car. Banc Reg.

THe Defendants Councel upon a former rule of Court to shew cause,Cause why Iudgement should not be given in an Action upon an Assumpsit. Averment. Notice. Request. offered for cause why the Plaintiff should not have Iudgement. 1. Be­cause the Plaintiff had not averred that he did make any election of the Wines that the Defendant was to deliver unto him. 2ly. He doth not aver, that he gave the Defendant any notice of his election, and there be­ing a Condition precedent to be performed on the Plaintiffs part, implyed, the Defendant cannot perform the Bargain, without notice of that perfor­mance. 2ly. Here is no good request expressed either in substance or cir­cumstance, for for the circumstance there is but two daies to do it, in which it cannot be well intended it could be done. 2ly. It is said, he did not deli­ver vinum praedictum, which is an incertain implication of a Request: for the word deliberare is not a proper term to express the Request, and the verdict doth not help it. Bacon Iustice, There ought to be an election by the Plaintiff, but the Defedant ought first to shew the Wines, and it was of his part to have appointed the time when he would shew them. Roll Iustice, The Promise and Request was at Norwitch, and it was sufficient for the Plaintiff to make the Request there: but the Defendant ought to shew the Plaintiff the Wines,Election. without which the Plaintiff can make no election, and the substance of the Declaration is to this intent. Iudgement was given for the Plaintiff.

Mich. 23 Car. Banc. Reg.

BY the rule of the Court,VV [...] a Pro­hibition should not be granted. this day cause was offered to be shewn why a Prohibition should not be granted to the Ecclesiastical Court, for granting Letters of Administration to a Sister of the half-blood, when there was a Brother of the whole-blood who sued for them, and was denyed. The cause [Page 75]shewed was, that it is in the power of the Ordinary to grant Administrati­on, either to the Brother of the whole-blood, or to the Sister of the half­blood, at his election, because they are in equal degrée of kin to the Intestate. And to this the Court agreed. But Bacon Justice said, that in the Case at the Bur, Letters of Administration are granted to the Husband and his Wife, and so to one, viz. the Husband, who is no kin at all to the Intestate, but a Stranger, and if he survive his Wife, he shall have all the Goods, and all the kindred will be defrauded, which is not reasonable, and therefore the Administration is not good. And for this reason a Prohibition was granted.

Mich. 23 Car. Banc. Reg.

IT was moved in arrest of Iudgement,Arrest of Iudgement in Trover and Conversion. that the Plaintiff had declared of the Trover & Conversson, of a cetrain number expressed in the Declaration of pieces panni lanii, Anglice, of red, yellow, and black Coath, which is incertain, and cannot be used, as it is here, to expresse Cloaths of divers colours, for panni lanii signifies only wollen Cloaths. But Bacon Iustice said, all is but wollen Cloath, though they be of divers colours, and therefore it is good e­nough. Hodsden the Secondary said, sometimes the colours are used to be expressed, and sometimes not. Bacon, It is better to express the Colours than not, yet it is good enough without the expressing of them. Therefore let the Plaintiff take his Iudgement.

Willison and Crow:
Mich. 23 Car. Banc. Reg.

VVillison brought an Action upon the Case against Crow, Arrest of Iudg­ment in an a­ction for words. for speaking these words of him, You are a bankrupt Skrub, and hath a verdict; it was moved in arrest of Iudgement, that the words are not actionable, be­cause they are Adjective words, and so are not positive enough to ground an Action. But the Court held, they were actionable, for the word Banck­rupt in it self was not an Adjective, and the joyning of it with Skrub made it not so, but it should be understood as much as to say, You are a Skrub, and also a Banckrupt. And judgement was given accordingly.

The King against Holland.
Hill. 23 Car. Banc. Reg.

THe Court delivered their opinions in the Case betwéen the King and Holland formerly argued; And first Bacon Iustice said,Iudgement given in the Case between the King and Holland. that there can be no Iudgement, for there is a mis-tryal in it; for first, there is no Venire fa­cias: and secondly, there is a discontinuance, because the Venire should be to retorn duodecem probos & legales homines quorum quilibet habet 40 s. lands by the year at the least, & it is every of whom, having 4 l. lands by the year, which is contrary to the direction of the Statute. To this Roll answered, that he held the Venire to be good, and so the tryal good, for if the Iury hath every of them 4 l. a year in Lands, he hath 40 s. a year in Lands at least, [Page 76]and more, and therefore it is a better Iury, and more sufficient; and by this the verdict shall not be vitiated, though the Venire be not quorum quili­bet habet 40 s. per annum ad minus, as the Statute directs, and he cited 21 Iac. Philpot and Fielders Case to be so adjudged; and he said, that Lands in the hands of a Trustee may be extended for the Kings debt,Extent. but that he did not conceive how the King can have Copyhold-lands that are in trust for an Alien.Seisuie. Bacon Iustice, The Commissioners that found this inquisition for the King had no power by their Commission to seize the Lands into the Kings hands, but only to enquire what Lands the Alien had. The Court order­ed, that cause should be shewn Tuesday following, why the party shall not be restored to his Lands, which were seised into the Kings hands by vertue of the Inquisition. Postea.

Hill. 23 Car. Banc. Reg.

A Writ of Error was brought to reverse a Iudgement given in an Acti­on upon the Case,Error upon a Iudgement in an Action up-the Case. Incertainty. Tryal. upon an Assumpsit, brought by two at Maydston in Kent, and the Error assigned was, that the Plaintifs in their Declaration do say unde dixerunt quod deteriorati sunt, &c. whereas it should be unde deteriorati sunt, and not dixerunt, &c. for that is positive, and the other not, for they may say they are damnified, and be not, and there can be no tryal upon such uncertain words. Roll Iustice said, the words are not well laid; yet if there were other words sufficient to expresse the dammage the Plaintiff had received it would be good enough, but these words here govern the whole sentence; Therefore let the Defendant in the Writ of Error consider how he can make the Declaration good.

The King against Savage.
Hill. 23 Car. Banc. Reg.

ONe Savage was arraigned in this Court upon an Endictment of Felony,For quashing an Endict­ment for Fe­lony. for killing of a Woman within the Verge. The truth of the Case was, he beat and wounded the Woman at Lesne Abby in Kent, which is within the Verge, but the Woman dyed at Sevenock in Kent, which is out of the Verge. The Prisoner prayed the Court he might have Walker of the Inner-Temple assigned him for Councel, for matter in Law, which the Court granted. Walker for the Prisoner, prays the Endictment may be read, which was done accordingly; Whereupon he took these exceptions to it, 1. That the Endictment doth not shew upon what part of the body particu­larly the Woman was wounded, but it saith only generally, that it was upon the hinder parts of her Body. 2ly. It sayes the Woman dyed de di­versis plagis, but it doth not shew of what length and breadth the wounds were, as it ought to do, nor doth it say of which of the wounds she dyed, and so it is uncertain,Incertainty. and cannot be known whether the Wounds were mortal or no. 3ly. By the Statute de Articulis super Chartas, in this Case where the party was wounded within the Verge, and dyed without the Verge, the Coroner of the Verge, and of the County ought to joyn in ta­king the Iuquisition super visum Corporis, Inquisition. which is not here done; but the Inquisition is taken by the Coroner of the Verge only. Bacon Iustice said, the party is said to be slain where he dies, not where he was wounded. The Court ordered the Prisoner to appear a wéek after, and in the mean time [Page 77]to give notice to the Kings Councel of the Exceptions taken to the Endict­ment, and know whether they will maintain the Endictment;Bail. the same Term the Endictment was adjudged not good, and the party was bayled.

Thyn against Thyn.
Hill. 23 Car. Banc. Reg.
Hill. 22 Car. rot. 1638.

DAme Katherine Thyn brings a Writ of Dower in the Common-pleas against Sir Iames Thyn, and hath a Verdict, and a Iudgement;Error in a Writ of Er­ror. Retorn. the Defendant brings a Writ of Error to reverse this Iudgement in this Court, and assigns for Error; 1. In the Retorn made by the Sheriff, for he doth not say, that the Proclamation was made at the Church of the Town, where the Summons was made,Summons. and a Summons upon any one part of the Land, as hath béen objected on the other side, is not good, neither by the words, nor the intent of the Statute: for then the words in the Statute should be surplusage and idle, that particularly directs how it should be. And as to the Objection,Fiction of Law. Statute. That a Summons upon one part of the Land is good in fiction of Law, for the rest of the Land, I answer, That this is not so where the Statute directs the Summons, and the words secundum formam Statuti cannot help where the Statute is not shewed to be pursued; and so saith Dyer, That substantial words ought to be mentioned, Hill. 24 Iac. H [...]b. Pl, 179. Allen and Walkers Case. 2ly.Demand. There is Error in the De­mand of the Dower for the certainty of the Tithes demanded ought to ap­pear, and it doth not so here, 11 Rep. Harpers Case, f. 25. And for that which is said in answer unto this, That a Demand of Dower is different from other Demands, I agrée it to be true, 8. H. 6. 3. Yet the things de­manded in Dower must be certainly demanded, 11 H. 7. f. 25. as it is in an Assise, for an Assise de uno tenemento is not good for the incertainty,Assise. 4 E. 2. Fitzh. Assise, 45 1. Estovers demanded ought to be shewed particularly; so is it of a Corrody, 11 E. 3. Fitzh. Dower, 85. Dyer, f. 84. 7 E. 6. Pasc. 5 Iac. the Countess of Oxfords Case; and whereas there hath this difference been taken betwéen a Demand of Tithes in gross, and of Tithes appendant, and that Tithes in gross must be particularly demanded, but it is not ne­cessary to demand Tithes appendat particularly, I answer, This is not so, for their appendancy doth not make them not to be demanded particu­larly, no more than if they were in gross, 18 E. 2. Asise, 377. A Corrody must be particularly demanded, and all the Presidents prove it, and it was so held, Pasc. 8 Car. rot. 271. in Bruer and Drakes case in a writ of Error in this Court, upon a judgement given in Dower in the Common-pleas. A 2d. exception to the Demand of the Dower is this, the Writ of Dower is de manerio de Imber, and the Demand is of Dower in parochia de Imber, and so it is larger than the Writ:Parish. for a Parish may comprehend many Vills. Stat. 1 H. 5. C. 5. 22 E. 4. C. 2. Mich. 34 Eliz. rot. 1537. Brad and Bi­shops Case in the Exchequer, Pasc. 38 Eliz. Bedel and Scarborows Case in an Ejectione firmae in this Court. It is true, that generally a Parish shall not be intended larger than a Vill, if the contrary do not appear: but here the contrary doth appear by the words of the Demand, which are de rectoria de Imber & Tymesbury infra parochia de Imber, 3, & 4 Phillip & Mary, Dy­er, [Page 78]142. and the different penning and expression of the Demand is to be observed:Grant. Abatement. Variance. for by that it appears there is a difference betwéen Imber, and the Parish of Imber, Grants, Fitzh. 87. by granting a Mannour with the appurte­nances, an Advowson will pass, 19 E. 2. Tit. brief, the Writ abated, for variance betwéen the Writ and the Count. A 4th. Error is to avoid the execution, because of the Error in fait: for the Hundred of Warmister doth extend to Sutton parva which is not named in the Writ, and so the dam­mages are given for more than is demanded,Dammages. Intendment. and it shall not be interpreted by Intendment, and the Hundred is not demanded: for the Vill relates to the Land and not to the Hundred, 6 E. 3. 12. 8 Rep. 119. Bonhams Case, and prays Iudgement for the Plaintiff in the Writ of Error. Maynard of Councel with the Defendant desired time to argue, and it was granted. Po­stea.

Chambers against VVollaston.
Hill. 23 Car. Banc. Reg.
Mich. 22 Car. rot. 21.

CHambers brought an Action of Assault and Battery,Demurrer up­on the Cu­stom of Lon­don pleaded. and false impri­sonment against Wollaston, Wollaston pleads a special Plea of Iustifi­cation, by vertue of a Custom in the City of London, whereby he had au­thority to take and imprison him for disturbing an Election of Wardens of a Company, and untill he would promise not to disturb such Elections af­terwards. To this Plea the Plaintiff demurs, and takes these Excepti­ons, 1. Custome. The Custom pleaded is against Law, for it appears not that there was any sute depending either by Bill, or Endictment, or otherwise, and so the Custome is against Law, Stat. 25 E. 3. C. 4. 25 E. 3. C. 3. and so was the Petition of Right, 3 Car. And though the Customs of the City of London are confirmed by Statute-law, yet illegal Customs are not confir­med. 2ly.Iudgement. The Iudgement is against Law, for by the Iudgement no re­medy is given for the offence committed to the party against whom it is commited, but only that the offendor shall be imprisoned untill he promise not to disturb Elections again. 3ly. The party committed is not within the Custom by the Defendants own shewing. 4ly. The Custome set forth is not prosecuted: for the commitment is not for the Disturbance, but be­cause the party will not promise not to disturb again. 5ly. The detensi­on of the party in prison is against Law. Hales of Councel with the Defendant, desired time to argue, and the Court desired to have Books.

Holdigh against Chace.
Hill. 23 Car. Banc. Reg.
Pasc. 23 Car. rot. 326.

HOldigh brought an Action of Debt against Chace, A special Ver­dict upon Non est sa­ctum, pleaded to a boad. as an Executor, upon an Obligation made to the Testator. The Defendant pleaded non est factum, and upon this Plea an Issue was joyned, and a special Verdict found; upon which Verdict the Case appeared to be this, The Defendant Chace [Page 79]was bound in an obligation for the payment of a certain sum of mony unto A. B. and to I. S. joyntly. I. S. dyes, A. B. survives, and makes Holdigh his Executor, and dyes, Holdigh brings an Action of Debt in his own name against Chace the Defendant, and declares upon this obligation made to the Testator, and to I. S. and doth not aver that the Testator did survive I. S. The Defendant pleads non est factum, and the question was whether this be a good plea or no, and to prove that it is no good plea,Plea. but that it was the deed of the Defendant, the Councel for the Plaintiff cited these books, 3. H. 6. 4. 35 H. 6. fol. 39. 46 E. 3. 7. 14 E. 4. fol. 4. 18 E. 2. 2. and put this case. Two enfants joyntenants alien, and one dies; The surviver brings a dum fuit infra aetatem, and counts of the Feofment of one of them, and there the right was adjudged not to be severed by the Fe­offement, and so the writ good, and in our case the matter of variance al­leged goes to the writ, and not the Action, and it is now too late for the Defendant to take advantage of it, and prayes Iudgement for the Plain­tiff. Roll Iustice said, the issue is whether it be the Defendants deed or not, and without doubt it is his deed, and therefore let him shew cause why the Plaintiff should not have Iudgement.

Boone against Sheers.
Hill. 23. Ba. Reg.
Trin. 23 Car. rot. 288.

BOone brought an Action of Debt upon an obligation of 400 l. Demurrer to a Plea. against Sheers, and declares that the condition of the obligation was, that the Defendant should make such a voyage with a Ship, and pay certain mo­nyes at his return, and other conditions mentioned, and for not performing the conditions he brings his Action. The Defendant pleads in bar that the Ship was taken in the voyage per homines bellicosos, Plea. and demands Iudgement of the Action: To this plea the Plaintiff demurred, and shew­ed for cause that the Plea did not give answer to all the Declaration.Demurrer. Yard of Councell with the Defendant said, the plea was good; for the plea an­swers the whole condition of the Bond, which was first to make the voyage with the Ship, and then at his retorn to perform the other conditions, and being hindred in the one, he was not bound to perform the other. Bacon Iustice, Let us see a book to consider of.

Royston against Mees.
Hill 23 Car. Banc. Reg.

ROyston makes a lease for years of certain lands to I. S. rendring rent,Arrest of Iudgement in Debt. the lessee makes his will, and makes Mees the Defendant his Execu­tor, and dyes, the Executor possesseth himself of the remainder of the term of the lands let, and after the rent is behind. Royston brings an Action of Debt against the Defendant, and declares against him for the rent so behind in the debet and detinet, and upon this an issue is joyned, and a verdict for the Plaintiff. The Defendant moves in arrest of Iudgement,Declaration. and shews for cause that the Declaration is not good, because the Action being an Act­ion of Debt brought against the Defendant, as an Executor, it ought to have been in the detinet, and not in the debet and detinet. But Wild of Coun­cell [Page 80]with the Plaintif argued that the Declaration was good, and the Act­ion well brought in the debet and detinet, and cited Brook title extinguish­ment 34. and the comment 526. and said, it is an Action founded upon a lease by deed which was made by the Testator, and cited 20 H. 6.10 H. 7. fol. 50. And that it is the constant: form of charging Executors in such cases, 14 H. 4. fol. 29. Fitzh. Tit. responder, 7 E. 6. Dyer 81.10. rep. 128. And said the verdict hath found it in the debet and detinet which shall be intended to be true, 9 Ed. 4.41.17 Jac. Paul and Mordyes Case in the Common pleas, and 7 Iac. Smith and Nicholas Case, and prayes Iudgement for the Plaintiff. Hales for the Defendant argued that the Declaration is not good. 1. He said, the Action is good in the detinet, because the profits of the land let, which are over and above the rent to be paid for it, reserved upon the lease, shall be only assets in the Executors hands.Difference. Contract. 2. It cannot be good both wayes, and the Term is in him as Executor, not the rent, and there is a difference between contracts Executory, and contracts Executed; but it may he said, the rent to be paid may be more than the profits of the land is worth, [...] answer, this shall not be presumed in law if it be not so shewed. 43 Ass. pl. 23.16 H 7. fol. [...]. The Action is brought for all the rent incurred; therefore it shall not be presumed that the land is not worth the rent that is paid for it:Verdict. and as for the verdict it shall help nothing; for a verdict shall not supply a necessary part of a Declaration omitted, and if he owes then he de­tains, and I conceive Hargraves Case to be good Law, though denyed by the Councell on the other side, and here the privity of the contract is not de­termined, and so prayes Iudgement for the Defendant. Roll Iustice, It is for the advantage of the Executor to bring the Action in the detinet; for then he sh ll be charged only for the goods of the Testator, and not for his proper goods and it may be the land is lesse worth than the rent, and that the partyes have consented the Action should be brought in this maner. Ba­con Iustice cited Pawls Case Mich. 17 Iac. But entred Pasc. rot. 346. That the Action may be brought in the debet and detinet, and if the Plaintiff will bring his Action here in the detinet it is not for your disadvantage, and he may at his election bring it either way. Roll Iustice, Here the verdict an­swers the point of the issue, and therefore is good. The Court ruled the Plaintif to take his Iudgement, except better cause shewn to the contrary.

William against Tyrer.
Hill. 23 Car. Banc. Reg.
Pasc. 23 Car. rot. 224.

VVIlliam brought an Action of Trover and Conversion against Ty­rer for certain goods of the Plaintiff the Plaintiff hath a verdict,Arrest of Iudgement in Covenant. The Defendant moved in arrest of Iudgement, and took these exceptions to the Declaration. 1. The Plaintiff declares pro tribus duodenis fili, Anglice dosens of thread,Declaration. which is incertain; for it may be three dosen pound of thread, or skenes of thread, or ounces of thread. To this it was answered, that it cannot be otherwise expressed, and the words dosens of thread is u­sed amongst Merchants, and well known unto them what is meant by them. 2ly. He declares for so many pounds Muscat. in stead of Nucum Muscat. ram, Anglice Nutmegs. But this exception was mistaken, for the record was otherwise, and besides it was with an Anglice which makes it certain. The Court ruled Iudgement to be entred except cause shewed for the Plaintif.

Rawson against Bargue.
Hill. 23 Car. Banc. Reg.

THe Case between Rawson and Bargue being an Action of Debt upon the Statute of 2 E. 6. for not setting forth of Tithes, [...] Arguments whether a free Chapel or no, and the Iud­ges opinions. wherein up­on a speciall verdict, the question was whether the Church were a free Cha­pel given to the King, within the Statute of 1 Ed. 6. was again argued by Latch for the Plaintiff, and by Brown for the Defendant, Latches argu­ment was to this effect. 1. He said, that the Law sayes it is presentative although it be not; and 2ly. It is sufficiently found to be a parochial Church, yet it is not material whether it be found so or no. Next the words of the Statute do not extend to give donatives to the King. 3ly. It is not given to the Crown, and although the Declatation and verdict be that it is a free Chapell, yet it is not comprehended as a Chapel presentative. Lit. 94. The word free makes a distinction of things, and the party ought not to confound things,Free Chapel. and a free Chapel is alwayes interpreted for a Church donative, and not presentative. The right investiture of Churches was chal­lenged from the foundation of them, untill within this 400 years it was al­tered by the Common law; Seldens History of Tithes, fol. 392. and upon that alteration the name of a free Chapel came. Reg. 41. It is said to be free from ecclesiasticall jurisdiction. Fitz. tit. Brief 6.0.3 Ed. 3. Fitz. Tit. Ayde du roy 33.14 H. 4.11.22 H. 6.25.22 H. 6.27. by Danbye 26 H. 6. Fitz. grants. 12. Nat. brev. 33 E. 34. f. 27 E. 3.84. Cowels interpretor, Tit. free Chapel. And in all Statutes the word free Chapel is meant of donatives. Stat. 26 H. 8. cap. 3. Stat. 37 H. 8. cap. 4. Stat. 1 Ed. 6. cap. 14. Regist. 307. But it is objected that free Chapels extend to presentatives,Presentation. Donative. because they are with cure, Lit. Com. 344. a donative may be parochial, 7 E. 3. f. 4. To this I answer, Churches had cure of souls, when they were donatives. To the 2d. point, by the meaning of the Statute it appears,Tenure. Frank-almoigne. that only donatives were intended, as the preamble of it doth declare; And all Chapels are held in Frank almoigne as well as donatives, and so all may be given to the King by the same reason. Another objection is that the word Capella is superstitious, and therefore being of a superstitious foun­dation it is given to the King, and Cowels Interpretor is urged to prove the word to be so derived, To this I answer, that Sir Henry Spelman as learned an Author as Cowell, in his glossary rejects Cowells derivation of the word Capella, and saith that Capella is used promiscuously for any up­per covering; And though the name were superstitious, yet that makes not the Chapel to be so; for so the Church of St. Andrew, or St. Dunstan, should be superstitious, and given to the King by the Statute. There is a double preamble of the Statute, 1. A recitall of another Statute,Preamble. and the taking away of other superstitious uses. Preamble of the Statute, 37 H. 8.22 Ed 4. cap. 7.8. rep. 137. beasts of the Forest are not Cattel, 3. rep. The marques of Winchesters Case, Com. 204. That some generals may be taken in a restrained sence, 9 H. 6.36. Interpretati­on. Words of a Statute ought not to be interpreted to destroy naturall Iustice. The stile also of the Act doth not shew that donatives are only intended, and the Crown hath not granted this away, 37 H. 8. and so not destroyed them. Donatives usually passe as lay fees, and the passing of them as lay fees alters not the nature of the Cha­pells, and the Statute gives it to the King as the incumbent had it,Lay fee. and [Page 82]there is a saving of the nature of it in the Statute. It is objected, that he hath not been presented ratione lapsus. To this Hob. 337. in Greens Case gives an answer, and Potters Case 9 Car. in the Common pleas, and it is well found here in the verdict for the Plaintiff, That it is not within the Statute. Brown for the Defendant in his argument said, the question is whether it be a free Chapel, given by the Statute of 1 Ed. 6. and 1. It is within the words of the Statute; and 2ly. It is within the meaning of the Statute; for the words they are simplicitur generalia, and so large as can be, and all Chapels are given by them, and none excepted. And here 1. The nature of a free Chapell is to be considered; For Cowel he is not fit to be cited,Cowel [...] Book. for his book was condemned by Parliament, and burnt as erroneous,Divers sorts of Chapels. and scandalous, in 4 E. 3.28. Peeter Corbets Case, a Chapel is part of a Church, 8 H. 6.32.37. Bracton 241.17 Ed. 3.58.9 Ed. 3.11. these are not within the Statute of 1 Ed. 6. 2ly. There is Capella parochialis which is subject to the jurisdiction of the Ordinary, 14 E. 3. Fitz. quare impe­dit 183. Lynwood 142.8 Ed. 3 60. The book of entryes 542. Long quinto 26. 3ly. A Chauntry is taken for a Chapel. 4ly. A free Chapel is nomen comprehensivum, and comprehends much, 13 Ass. pl. 2.15. Ass. pl. 8. The essential matter of a free Chapel is to be free from ordinary juris­diction, and not to be visited by the Ordinary, and one comes regularly to a free Chapel by donation, but being in, he is free from ordinary jurisdicti­on, 18 E. 3. Fitz. scire sac. 11.17 E. 3. f. 45. Brook praemun. 21. It hath been obiected that it is presentative, and so it is not free; I answer it may be free though it be presentative, and so the verdict finds it to be in the foundation of it. 2ly. The Plaintiff brings the Action as Rector of a free Chapel, and now he shall not be suffered to deny his own Declaration. 3ly. The admission, institution, and induction implyes jurisdiction till the con­trary appear, viz. that it is a free Chapel notwithstanding it be presenta­tive, 16 E. 3. Fitz. brief 660. None but the King can found a free Chapel, and although it be free by prescription,Foundation. yet it shall be intended to be at first so founded. Institut. 44.9 H. 6. f. 17.20 E. 3.56. The King by founda­tion of a free Chapel, may grant that it shall be presentative, and yet when the party is in, that it shall be free from the jurisdiction of the Ordinary. Fitz. nat. [...]r. 48. C. Iurisdiction. The dean of Battel in Sussex is presentative to the Vi­carage of Battel by the Bishop of Chichester; but when he is in, he is free from the jurisdiction of the Ordinary, Davyes Rep. fo. 72. Cooks instit. 344. A lapse may incur of a free Chapel by the foundation of a thing may al­ter the law, 7 E. 3. fo. 18. The old book 316. The essential difference of a free Chapel from another, is to be free and exempt from the jurisdiction of the Ordinary, 17 E. 3. close roll in the Tower. Seldens book of tithes 441. regist. 40, 41. Pasc. 3. Jac. in this Court Fachell and Gaires Case. There are divers writs in our books to discharge free Chapels from visitations, and therefore it appears they are exempt from the Ordinaries jurisdiction. But it is objected that the presentation makes it presentative, though it were not so before. This is answered, 14 E. Fitz. 9 E. 3 [...]. 27 E. 3.34. It is not the presentation made by the party, but the foundation that makes it presentative. 2ly. It is objected that it is parochial, and therefore is not free; I answer, it is not so found although it be so claimed, and though it be so claimed it makes nothing to the purpose. The parish Church of St. Ma­ryes in Shrewsbury was parochial, and yet given to the King by this Sta­tute, 13 H. 4. Fitz. brev. 807. Hil. 17. Iac. in this Court in Grubbam and Gales Case adjudged, that a Chapel may be founded in a parish Church, and such are given to the King, Dyer 267. o Car. Pasc. in the Common pleas Rawlins and Yaxlyes Case. 2ly. For the words of the Statute this is not one of the free Chapels excepted in the Statute, and therefore it is with­in [Page 83]the Statute, and there appears no visitation in the verdict found, and ex­ceptio in non exceptis format regulam. For the meaning of the Stat.Interpretation Brook prebend. 2 d. 10. rep. 128. All parts of a Statute ought to stand together if it may be, and one part of it ought not to destroy another part, generale dictum generaliter est intelligendum; The exceptions of the Statute shew the mea­ning of it. It is objected, that the being a free Chapel makes it not to be superstitious, I answer, if it be a free Chapel by Common intendment it is su­perstitious, but though if it be not, yet it is given by the name of a free Chapel. By the verdict it was taken for a free Chapel, and that it was seised into the Kings hands. There is much light to be had in interpretation of laws, by consulting with those that made them, and to know how they had inter­preted them; for expositio contemporanea est optima. Plow. 466. Pasc. 35 El. Clark and Mark in the Common pleas. If it be not a free Chapel, yet being found so, it shall be taken to be so in reputation,Reputation. and enough to give it to the Crown: And the presentation to it is ad rectoriam sive liberam ca­pellam, and so not certain, and so it is not a good presentation,Presentation because the King was not rightly enformed what it was he presented to, Regist. fol. 203. 19 E. 3 Fitz. quar. imped. 360. and so prayes Iudgement for the Plaintiff. Roll Iustice, There is a difference where a Chapell is founded within a Church, and where the Chapel is Parochial. Bacon Iustice held, that it was given to the King by the Statute; for it is found to be a Chapel pay­ing tenthes, and this Statute looks backward to the Statute of 37 H. 8. and to things in being, and the Chapel was within that Statute, and by it he might have seised it, and it is within the words, and intent also of the Sta­tute of 1 Ed. 6. and the proviso of the Statute shews the meaning of it, and Capellae dependentes, or Chapels of ease are not given by the Statute. Roll Iustice to the same effect, and said, This Statute of 1 Ed. 6. was made to supply something omitted in the Statute of 37 H. 8. and it is plain, that it is within the words, and we have no warrant to interpret it otherwise, since it doth not appear that it is excepted; also it is not found to be a Pa­rish Church, but that they claim it to be so, and if it were it would not help. 2ly. It may be presentative, and yet a free Chapel according to the foun­dation, and endowment of it, and a free Chapel, may become a Church by presentation of the Patron, but it appears not to be so to us. The proviso of the Statute shews that it was not the intent of the Statute, to exempt all free Chapels, but those only which are named, and no more: And the in­tent of the Statute was that the King shall have it as a lay thing, and he was not compelled to present, and here the Patron hath taken the profits, and there are no inhabitants within the Parish, for the seignory compriseth all the parish, and if the King presents by lapse where he ought to do it ple­no jure, the presentation is not good. For these reasons, The Iudge­ment was given for the Defendant, if better matter be not shewn before the end of the Term.

Fulham.
Hill 23 Car. Banc. Reg.

FUlham had a Iudgement in this Court against 3 Defendants,For Execiui­on notwith­standing a writ of Error brought in parliament. two of the Defendants bring a writ of Error in Parliament. Fulham that had the judgment moves the Court, he may have Execution upon his judgment not­withstanding [Page 84]the Writ of Error brought in Parliament, because the Record is not well removed, for the Writ of Error is not good, for the Iudgement is against thrée, and the Writ of Error mentions but two of them. Roll Iustice, I doubt you cannot have execution, but the Writ of Error must be abated in Parliament,Abatement. Execution. and then you may come here and move for exe­cution, for now it is not safe to grant it. Move it in Parliament to have it abated, or move here again at your own adventure.

The King and Holland.
Hill. 23 Car. Banc. Reg.

IN this Case between the King and Holland, For an Amo­veas manum to the Chan­cery. Amoveas manum. after divers arguments at the Bar, and the opinion of the Court delivered, The Court was moved for an Amoveas manum to the Chancery, that the party may have his Land out of the Kings hand. The Court answered, The Iudgement is to be given here, if there be cause for the King, if not against him, and you ought not to go to the Chancery. And all that we can say is, that the King shall not have Iudgement. Iudgement.

Hill. 23 Car. Banc. Reg.

THe Court was moved to quash an Endictment of forcible Entry upon these Exceptions.For quashing an Endict­ment. 1. That it did not say, that the forcible Entry was contra Coronam & dignitatem, but this the Court over-ruled. A second exception was, That it doth not shew that the party was felted at the time untill the Defendant entred by force upon him. 3ly. The Endictment con­cludes, contra formam Statuti, and it ought to be statutorum, for the Sta­tute of 8 H. 6. upon which this Endictment is framed, relates to other Sta­tutes. To this the Court said, if the Endictment be so it is ill. 4ly. The Endictment saith,Endictment. he entred peaceably and detained with force, and such an Endictment hath relation to two Statutes. To this it was answered, that the Statute of 8 H. 6. is sufficient to found the Endictment without relation to other Statutes, for this clause upon which this Endictment is framed, is a new Law, and hath no relation to precedent Statutes, for it is here only for a forcible deteyner. Roll Justice doubted of this, for it is said, that the Statute of 8 H. 6. shall be added to the new Statute. Bacon Iustice differed in opinion and said, the Statute of 8 H. 6. was not made to piece up the o­ther Statute, but is a new Law as to this clause. The Court will advise fur­ther.

Chambers against VVollaston.
Hill. 23 Car. Banc. Reg.

THis Case was again moved and argued by Ward of Councel with the Plaintiff.Argument upon a special Plea. The Action was an Action of Assault and Battery, and false imprisonment, The Defendant pleased a special Iustification by ver­tue of the Custom of the City; To which Plea the Plaintiff demurred, [Page 85]six points were spoken to by the Plaintiffs Councel in his Argument. 1. Custome. He said, the procéedings against Chambers were neither agreeable to the Com­mon law, nor to Magna Charta, and therefore illegal, and not warran­table, notwithstanding the Custome pleaded to back them. 2ly. The Custome it self is not well pursued, Bracton, 55.5 Rep. 64. The King cannot grant power to a Court to commit against the Common-law, or Statute-law, Magna Charta, 54.42 Ass. Pl. 5. and though one submit himself to be committed,Submission. for a thing for which he is not com­mittable by Law, this submission is void. 3ly. The Custom pleaded is against Magna Charra, and divers other Statutes, Stat. 9 H. 6. cap. 5. 8 E. 3. Cooks Magn. Chart. f. 16. Bracton, 334, 335.43 E. 3. f. 32. Pleadings. and it appears not the pleadings were in Latin, as they ought to be, 36 E. 3. nei­ther was the Confession legal, nor entred upon Record. 3ly.Iudgement. The Iudge­ment varies from all other Iudgements in Law: for the Commitment was, that he should stand committed untill he would promise that he will disturb no more; And [...]ly. untill the Court should take further order, and this is against Law, 8 Rep. f. 59.2 Instit. 52. 5ly. The Statute of Rich. 3d. confirms not the Custom, for if it was before Magna Charta it is taken a­way by that Statute, for it is not excepted in it, Magna Charta cap. 19. 29. Miror of Iustice, cap. 5. Long Quint. 40, 41. 6ly. The Custom is not well pursued in the Return, for the Oath extends to be obedient to the Bayliff, Retorn. &c. for the time being, but the Return is not so: but it said, that he be obe­dient to good Laws, and this is not in the Oath. And the Retorn is against their Custom, and Iudgement for the Commitment, and so he praid Iudge­ment for the Plaintiff. Roll Iustice said, That the Iudgement and the Retorn are contrary: tor the Iudgement was, that he shall be commit­ted, because he would not promise, not to disturb: and the Retorn is, that he promise that he will not disturb. Cause was to be shewn why the Plaintiff should not have Iudgement.

The King and Apsley.
Hill. 23 Car. Banc. Rep.

APsley removed certain orders made against him by the Commissioners of Sewers for Westminster, by a Certiorari into this Court.To quash or­ders of Com­missioners of Sewers. And upon the Retorn these exceptions were taken. 1. That it doth not say the Commission of Sewers was under the Great Seal, as it ought to express, 7 Car. Allen and Carter, & 5 Car. Rayl and Mannings Case, and Pasc. 14 Car. Hungates Case, and because it is not so set forth there can no Issue be taken, whether they be Commissioners or not. 2ly. The Commission is not well pleaded, for it appears not that thrée of them were of the quorum, as the Statute appoints there should be. 3ly. The Retorn is in English, and it ought to be in Latin. But to this Roll Iustice answered,Retorn. That the Re­torn is good notwithstanding, for the Commission is in English. 4ly. It doth not appear, that Harts-horn lane, touching which their orders were made is within VVestminster, and so it cannot be well-known, whether it was within their power▪ by vertue of their Commission to make any or­ders touching that place. Hales of Councel for the Commissioners moved, the Retorn might be amended. But the Court answered, It could not be,Amendment. because the Retorn was made the Term before. And it was ordered, that cause should be shewn Tuesday following, why the Retorn and Proceed­ings should not be quashed.

The King against Page and Harwood.
Hill. 23 Car Banc. Reg.

THree men were endicted at an Assises in the Country for Felony,Qustion upon the Statute of Stabbing, whether Principle or Accessory, Principle. Accessory. for killing of a man, the Endictment was framed upon the Statute of 1 Iac. made against Stabbing; They were all found guilty. He that did the fact was condemned, and executed: but because the Iustice of Assise doubted whe­ther the other two wers Principles within that Statute, or but Accessories, they would not proceed to Iudgement against them; Whereupon they were brought to this Bar to be proceeded against for the Felony, and the doubt was, in regard they were only present, and abetting the person that did the fact, and used no Action towards the death of the party, whether they were Principles within the Statute, or but Accessories, Roll Iustice said, They are not Principles,Clergy. but Accessories, and ought to have their Clergy: for the Statute of Stabbing being a penal Law, it shall be taken strictly and not extended to equity, and in Swinertons case Bramston, Barkley, and Iones, thrée of the Iudges of this Court directed the Iury, the Case being of the same nature with this, to find the parties only accessory. But the Iu­ry in our Case have found them guilty as Principles, and I doubt upon that, whether the Tryal be good or no.Tryal. Walker of Councel against the Priso­ners said, the Statute of Stabbing makes no new offence, and therefore it is doubtfull,End ctment. wheher it be necessary for the Endictment to conclude contra for­mam Statuti. Roll Iustice said, it ought to be so. But Bacon Iustice doubted. The Court admitted the Prisoners to their Clergy, and they were burnt in the hand in view of the Court by the Hangman of London, and the Priso­ners bound each for the other to their good behaviours, and to appear in Court the next Term.

Hales against More.
Hill. 23 Car. Banc. Reg.
Mich. 23 Car. rot. 382.

A Iudgement was given in an inferiour Court in an Action of Debt,Error upon a Iudgement in Debt. Demand. Venire. and a Writ of Error brought in this Court to reverse it. The Errors assigned were, 1. The plaint is entred generally de placito debiti, which is uncertain, so that the Defendant cannot know what is demanded. 2ly. In the awarding of the Venire, it is duodecim, &c. and doth not say probos & legales homines. Bacon Iustice, Duodecim in the Venire, with an &c. is not good in an Inferiour Court, but this is in the awarding of the Venire, and therefore well enough, but the first is a good Exception in my Iudgement. Therefore let the judgement be reversed, except cause shewn to the contrary.

The King and Corye.

A Writ of Restitution issued out of this Court for one Corye to be re­stored to the Recorders place of the City of Norwitch, To be resto­red to a Re­corders place. which was re­turned and filed. Hales of his Councel opened the Retorn and cited [Page 87] Stroods Case, that one ought not to be removed from any office without shewing good cause why he is removed, which is not here done, but only a Custom set forth, whereby they shew they had authority to elect a Re­corder for a year only, and at the end of the year to elect another, and that by vertue of this Custom,Custome. they had chosen another Recorder in the parties place, he having béen in a whole year, which he conceived to be an ill Cu­stom. Roll Iustice said, If this be a void Custom, none of the two Recor­ders were well elected, and so Cory cannot be restored. And Bacon Iustice did also doubt, whether any of them were well chosen. It was said, that the Retorn is not traversable, but shall be taken to be true. Bacon Iustice held,Traverse. Retorn. That the Retorn was not good, and you must have an Alias, that we may have a better Answer before us: for nothing can be done upon this. But the Court enclined, that a Recorder may be elected for one year. It was said. If a Custom be entire you cannot make one part of it good, and ano­ther part of it ill. The rule was, for the party to take an Alias, because this Retorn is not good, and it is too late to amend it, because it is filed. Amendment.

The King and Symmons.

IN an Endictment of forcible Entry upon the Statute of 8 H. 6. divers Exceptions were formerly taken.To quash an Endictment u [...]on the Sta­tu [...]e of 8 H. 6. Roll Iustice answered to that, that the Endictment did not say, contra Coronam & dignitatem, it was well e­nough without those words. Another exception was now taken, that the Endictment is ad tunc & ibidem, which is repugnant. This Roll Iustice o­ver-ruled, but he doubted whether the Endictment ought to be contra for­mam Satutorum, or contra formam Statuti as it is, because this Endictment is framed upon divers Statutes. Bacon Iustice cited the 4th. Rep. the Case of Appeals, and said, it is good as it is contra formam Statuti, and said, that a forcible Entry and Deteyner is punishable at the Common-law.Common law. The Court desired to see Presidents. Antea.

Hill. 23 Car. Banc. Reg.

MAynard shews for cause why a Prohibition should not be granted to the Admiralty,For a Prohi­bition not­withstanding a Consultati­on granted. That the parties have moved this matter in the Common-pleas, and did there joyn issue upon the same, and a verdict pas­sed against the Prohibition, and a consultation was thereupon granted. The Councel on the other side makes another suggestion, viz. that the sen­tence in the Court of Admiralty, was against a person that was dead, and that one of the parties who had the sentence had released. To this the Court said, you might have pleaded this in the Admiral Court. Hill of Councel for the Prohibition said, it is not material what the parties have done in the Common-pleas, for this Court is not bound by it. Roll Iustice, If the mat­ter of your surmise here be tryed already in the Common-pleas, why should you move here upon the same surmise.Surmise. Arbitrary. Conclusion. But it is not arbitra­ry to grant a Prohibition or not to grant it, if there be cause to grant it, and the Tryal in the Common-pleas is no conclusion to us, and if it be mis­chievous as is objected,Prohibition. to grant a Prohibition after a Consultation granted, the Parliament may make a Law to prevent that mischief, for as the Law now is it may be done; Yet we will advise.

Gaudy aginst Ingham.
Hill. 23 Car. Banc. Reg.

IVdgement was given against an Administrator in an Action of Debt brought against him,Error upon a Iudgement a­gainst an ad­ministrator. Iudgement. in the Common pleas, upon fully administred plea­ded, and a writ of Error was here brought to reverse the Iudgement. The Error assigned was, that Iudgement was given for the whole Debt, whereas the verdict found that the Defendant had assets only to discharge a part of it. To this the Court said, if it be found he have any assets, Iudge­ment must be given against him, for the whole debt upon his false plea, but if he have no assets it is otherwise

Allen against Reeve
Hill. 23 Car. Banc. Reg.
Mich. 23 Car. rot. 88.

ALlen brings an Action of Covenant against Reeve, Arrest of Iudgement in an Action of Covenant. and his wife, upon a lease expired made of certain houses by deed unto the wife dum sola suit, wherein was a Covenant to keep the houses in repair during the term, & for breach of this Covenant is the Action brought, and declares as to one of the houses that it was burnt by negligence. The Defendants plead a special plea to this effect; That the house which was burnt was not burnt by negligence,In arrest of Iudgement. nor with Common fire as the Plaintiff hath declared, and as to the rest they plead the general issue, that they were in good repair at the expiration of the term; the Plaintiff hath a verdict. Nicholes of Coun­cel with the Plaintiff said, it conteins a negative preignans; for there are two matters offred in issue, one that the house was not burned by common fire.Negative preignans. Demurrer. 2ly. That it was not burned by the negligence of the party. Roll Iustice, If it be a negative preignans, as you say it is, you ought to have demurred unto it as to a double plea. But let us see the book, and stay in the mean time.

Hobson against Heywood.
Hill. 23 Car. Banc. Reg.
Trin. rot. 791.

HObson brings a writ of Error in this Court to reverse a Iuhgement given against him at Bristow in an Action of Debt for rent,Error to re­verse a Judge­ment in Brist­ow in an acti­on of Debt. Error. and as­signs for errors, that the sum demanded to be due for rent was in figures, and not in words, as it ought to be. 2ly. It is said, that the Iury Assideint damna for Assident damna. The Court held they were both material ex­ceptions, and reversed the Iudgement, except cause should be shewn to the contrary Saturday following.

Chambers against Floyd.
Hill. 23 Car. Banc. Reg.

VPon a rule on the Crown side to shew cause why an Attatchment should not issue out against two Iustices of peace for not allowing a certiorari directed to them out of this Court to remove an endictment of for­ceible entry taken at a private Sessions before them.Cause against issuing of an attatchment. The Councel for the Iustices urged, that they had not contemned the Processe of this Court as is surmised; for the certiorari ought to have been delivered in open Sessions of the peace, and there allowed;Allowance. but this was delivered at a pri­vat Sessions, and so they were not to allow it. 2ly. The party who pro­cures the certiorari, ought according to the Statute, to put in security,Certiorari. at the delivery thereof, to prosecute, or else it is not to be allowed, but that was not done here, and therefore they were not bound to allow it: And the cer­tiorari is to remove an Endictment of forcible entry; but the retorn is that it was a peaceable entry, and a forcible deteyner,Retorn. so that there being no such Endictment before them as the certiorari mentions, they could not make a retorn according to the writ, and therefore it is no contempt in the Iusti­ces not to make a return. The Court answered,Contempt. that it is the usual course of the Court to make certioraries in this form, and therefore this is no ex­cuse; The Councel against the Iustices urged, that this case is within the Statute, though it were at a privat Sessions of the peace, and therefore the Iustices are in contempt. Roll Iustice said, I conceive that this is casus omissus not provided for by the Statute, and if so, then are they not in con­tempt,Casus omissus, and if some Iustices take an Endictment of forcible entry, other Iustices cannot give restitution upon this Endictment. Bacon Iustice, Restitution. The Statute is a remedial Law, and made for the ease of the subject, and ought not to be construed strictly: And said,Construction. that a privat Sessions is a Sessions; but security ought to be put in at the quarter Sessions, for it shall be intended that all the Iustices of the County are there. Roll Iustice said,Security. that a privat Sessions ought to take security, and the Endictment ought to be retorned there; but the certiorari is not good, for it mentions not the title of the Act, yet the generall practice of the Court seems to warrant it as it is. The Court ordered the party to have restitution, and the con­tempt to be spared by consent of partyes if cause not shewn to the contrary before the end of the Term.

Hill. 23 Car. Banc. Reg.

THe Court was moved upon an Assidavit for a prohibition to the Court at Doncaster, For a prohibi­tion to the court at Don­caster. Prohibition. Attatchment. and for an attatchment against the Maior for refusing to allow of a forein plea, tendred by the Defendant in an Action of Debt brought against him for rent for lands, that lye out of the jurisdiction of the Court, and for proceeding against him notwithstanding the tender of the plea. The prohibition and attatchment were granted if cause not shewn to the contrary before the end of the Term.

David against Lyster.
Hill. 23 Car. Banc. Reg.

THe Court was moved by the Plaintiff that the Defendant might be or­dered to plead an issuable plea,For the De­fendant to plead an issua­ble plea. which he had not done, for the Action is an Action of ejectione firmae in which the Plaintiff hath declared, and the Defendant hath emparled, and after emparlance he pleads that the lands are antient demean,Plea. which is a dillatory plea. Roll Iustice, It is a good plea after imparlance, for it goes in bar of the Action it self, and not, in a­batement of the Writ.

The King and Holland.
Hill. 23 Car. Banc. Reg.

ROll Iustice said,Opinion of the Court for restitution in this Court & not in Chan­cery. Iudgement. Restitution. that in this case formerly argued, restitution ought to be given to the party, for the same Iudgement shall be given here which should be given in Chancery, and all the Record is here before us, and they in Chancery cannot do any thing in the cause, for they have no­thing before them. And it appears to us that the Declaration was insuf­ficient, and so we cannot give Iudgement for the Plaintiff; but against him, notwithstanding the inquisition found for the King. Therefore let the party have restitution, except cause shewed the first Friday in the next Term.

Hill. 23 Car. Banc. Reg.

THe Court was moved to discharge a prisoner brought to the Bar,For discharge of a prisoner. by a habeas Corpus committed by the Committee of plundred Ministers, and these exceptions were taken to the retorn. 1. There is no time expres­sed how long the party shall stand committed,Commitment. so he is committed without limitation of time, which is not legall. 2ly. He is committed by the name of Mr. Smith, and his name of baptism is omitted, which ought not to be. Vpon these exceptions the Court held the commitment illegal, and discharged the party.

Weekes and VVeekes.
Hill. 23 Car. Banc. Reg.

VPon the retorn of a certiorari to remove orders made by Commissio­ners of Sewers,Against a re­torn of orders of commissio­ners of Sewers Retorn. Notice. It was moved that the retorn was not good, because it was not made by the partyes to whom the certiorari was directed, for it was directed to the Commissioners, and the retorn is made by the Clark of the Sewers. But the Court said the retorn was good enough, for all the re­torns are so, and the Clark is an officer of whom the Law takes notice of, and it belongs to him to do it.

Pasc. [...]4 Car. Banc. Reg.

A Writ of Error was brought to reverse a Iudgement given in an in­feriour court in an Action upon the case,Error to re­verse a Iudge­ment in an in­ferior court in an Action up­on the case. Retorn. Day in court. and the Error assigned was that the habeas corpus was not well retorned, for it is not retorned to be in omnibus servitum et executum as it ought to be, and as the usual form is. Maynard of Councel against the Writ of Error argued, that it was well re­torned notwithstanding those words were omitted, because the Iury did appear full, and no issues were lost, and the Iury have day by the roll, 3 H. 7. 14. per Hussey, and 9 E. 4. 14. it is made a question but not resolved. 2ly. Though it be a Sisp yet it is within the Statute of 21. Iac. and is hel­ped by it, for that Statute extends to more than Writs, as may appear by the Statute, and the Statute of 18 Eliz. Bill. Original writ. rec [...]ipt. touching original Writs extends to faults of bills, although original Writs are only named, for a bill is the same in substance with a Writ, so here the Writ, and precept are of the same substance. 3ly. it is the intent of the Statute, and the Statute shall be taken by equity, Hill. 13. Iac. in this Court in Gregory and Brookes case, this question was stirred but not resolved, and Hobart denyes the 5th. re­port f. 61. to be Law, and there is no proceedings properly in superiour Courts by plaint. Roll Iustice, The Statute extends not to point of equity in inferior Courts, for their proceedings are not so regular, as the proceed­ings in the high Courts here at Westminster, but they are by short notes. Bring us books and move it again.

Creswell against Ventryes.
Pasc. 24 Car. Banc. Reg.

CReswell brought an Action upon the case against Ventryes for speaking these words of him;Arrest of Iudg­ment in an a­ction upon the Case for words. Thou didst, and dost receive thief stollen goods, witnesse a feather bed tick in thy house, and the cloath which thy mans suit was made of, and thou knewest they were stollen. The Plaintiff hath a verdict, the Defendant moves in arrest of Iudgement that the words are not actioanble, for one may receive stollen goods, and yet not be guilty of Felony. Becon Iustice, The receiving of stollen goods is not felony; but the receiving, and comforting of the Felon is Felony.Felony. The Iudgement was stayed till the other should move.

Thynn against Thynn.
Pasc. 24 Car. Banc. Reg.

THynn brings an Action against Thynn to reverse a Iudgement given in the Comon pleas in a writ of Dowr;Error to re­verse a Iudge­ment in Dowr Hales of Councel with the Defendant in the Writ of Dowr in answer to the exceptions formerly ta­ken said, that the summons was well enough retorned as it is, because it was made upon some part of the land within the Vil, Long quint. E. 4. 2 H. 4. 13. 39. E. 3. 7. 2ly. It is not necessary to make the Proclamation,Proclamation where the summons is, for the Statute intends not to alter the course of the sum­mons. [Page 92]2ly. The words of the Statute are satisfied, for the actual summons in one Vill is a summons in the other Vills. 3ly. The meaning of the Sta­tute is satisfied, and the mischef intended to be satisfied by the Statute, Hob. 173. Allen and Walkers Case.Demand. For the 2d. exception to the De­mand he held it good enough, for in a Writ of Dower a Demand need­eth not to be so particular as in other Writs, so is it in an Assise, 11 E. 3. 18. 43 E. 3. 6. 3 Ed. 2. Dower, 161. and the reason is, because the Wife demands not the whole Land, nor can have the Charters which concern the Land to enable her to make so precise a Demand as may be in other Writs. And as to Harpers Case that is objected, I answer, it agrées not with our Case, Regist. f. 36. 16 E. 3. Fitzh. Quar. Imp. 147. and it is certain enough, because it is of a Rectory, and not of Tithes in gross. 3ly. The demand of Tithes is surplusage, and it is all one as to say, the Rectory cum pertinen­tiis. Then as to the Objection that one thing is twice demanded, I answer, it is not so, [...]a [...]ement. Dammages. but demanded as part of a thing demanded in the Writ, and a Demand in a Writ of Dower shall not abate the Writ, though one thing be twice demanded, for dammages shall not be twice recovered, 4 E. 3. f. 52. Mich. 9 Iac. in the Common-pleas agreed so by the whole Court; In Blu­ers Case, 8 Car. one thing was twice demanded, and yet the Writ was not abated. To the 3d. exception, That the Demand is more large than the Writ, because a Parish may be larger than a vill, and the Demand is the Parish of Imber; I answer, That the Vill and Parish shall be intended to be of the same extent, if the contrary do not appear, Cooks lit. f. 125. 2ly. Although the Parish may be larger than the Vill, yet it may lye in the Vill, and the contrary doth not here appear, and the Case is so, that it is impossible that the Parish should extend into another Vill, 1. The office of the Writ is to restrain the Demand, and the Writ ascertains the De­mand, 19 E. 3. Fitz. Dower, 95. 9 E. 4. f. 16. by Chock. 2ly. There is a restriction within the body of the Demand, for the Demand refers to the Writ, and is bounded by it, 42 Eliz. Wook and Godins Case, a small im­plication will make a Vill and Parish to be all one,Implication. and so it is here, 42, 43 Eliz. Com. Banc. Hob. 12. Case Brook and Spencer, Trin. 16 Iac. in this Court, rot. 504. Marks and Marks. And as to the Exception taken to the execution,Execution. that dammages are given for more than is demanded, 1. Here is no confession as it is supposed on the other side, that the Hundred in de­mand doth lye in another Vill. 2ly. It is impossible for dammages to be given for more of the Hundred than lyes within the Vills mentioned in the Writ, and so are there no dammages given for that part of the Hun­dred which lyes in Sutton parva, as is objected on the other side: for no more shall be recovered than is contained in the Writ, 9 E. 4. [...], 16, 17. The Question there was, whether it were a Plea to the Writ, 17 E. 3. f. 44. The Court desired to hear another Argument.

Castle against Dinely.
Pasc. 24 Car. Banc. Reg.
Trin. 23 Car. rot. 1078.

CAstle brings a Writ of Error to reverse a Iudgement given against him in the Court at Owse-bridge in York, Error to re­verse a Iudg­ment in an a­ction upon the Case. in an Action upon the Case upon an Assumpsit; The Error assigned was, that the day of the Month in which the promise was made is in Figures, To this the Councel on the [Page 93]other side said, that heretofore it had béen held to be Error,Error. but now since the Statute of Ieofailes after a verdict is no Error. But I. Turner of Councel with the Plaintiff in the Writ of Error said, That it is a material exception now: for the Assumpsit is the ground of the Action, and therefore the day must néeds be material. Another exception was, that the Venire was Venire facias duodecem, &c. de Riliva tua, and the Venu was in the City of York. But to this exception it was answered, that the Record is de Civitate Eborum in Baliva tua, and so it is well enough: and of this opi­nion was the Court. But the Court held the first Exception to be good; Whereupon the Councel for the Defendant in the Writ of Error prayed, the Iudgement might be reversed for his Clyents dispatch, and so it was.

The King against Andrews.
Pasc. 24 Car. Banc. Reg.

ANdrews was endicted for Murther, and out-lawed upon the Endictment,Arraignment upon an Out­lawry for Murder. and taken upon the Out lawry, and brought to the Bar, and demand­ed what he could say, why Iudgement should not be given against him; The Prisoner said, he had brought his Writ of Error to reverse the Out­lawry, and prayed it might be allowed, which was granted, and the Writ read by Broughton the Secondary on the Crown-side. The Prisoner desi­red he might have Walker, Hales, and Pepes, assigned him for his Councel, which the Court granted. The Councel prayed they might have a Copy of the Record. Roll Iustice said, that the Prisoner himself ought to shew matter in Law for Error, which the Councel doubted.Error. But the Court over-ruled it, yet agreed, that the Record should be read unto them, which was done; Vpon the reading Walker took these exceptions. 1. The Process is not well awarded, for the Capias is not praedict. Andrews, and so it appears not who was out-lawed, whether the Prisoner or another of the same name. 2ly. It is not said, that the Process is awarded by the Court, nor at what Sessions it was awarded. Roll Iustice, It is necessary, for it is re­corded there. 3ly. It appears not what party is dead, whether he that was struck or another. 4ly. It doth not appear in what part of the body the Wound was given, nor with what weapon. The Court said, that they will hear the Kings Councel before they would conclude any thing. The Councel moved, that the Prisoner might be bayled, because it was four­teen years ago since he was endicted. The Court answered, till you are as­signed of Councel upon Record, we cannot bayl him at your prayer.Bayl. Then the Councel desired a Copy of the Record, ad quod non suit responsum, but the Court said to the Councel take more time to consider of other Excepti­ons, for if these shall be over-ruled your Clyent is gone, viz. must be hang­ed. At another day he was bayled by four persons, and bound to prosecute his Writ of Error with effect.

Pasc. 24 Car. Banc. Reg.

AN Action of Debt was brought upon an Obligation for 3000 l. Arrest of Iudgement in Debt upon an obligati­on. the Defendant pleads that he had paid the mony on such a day, whereas the truth of the Case was, that there was two daies of payment limited in the Obligation, and the Defendant had paid part of the monies upon one of the [Page 94]daies of payment, and the rest upon the other day, and not all at one day. The Plaintiff replies that the Defendant did not pay the mony upon the day alleged by the Defendant in his Plea, and upon this an Issue is joyned, and a verdict found for the Plaintiff;Verdict. the Defendant moves in arrest of Iudgement, and shews for cause, That the Verdict is imperfect, because it doth not find that the Defendant had two daies of payment, but concludes that he did not pay the mony upon one of the daies. Roll Iustice, If you have two daies of payment to plead, and you rely upon one day in your pleading,Champerty. and issue is joyned upon that, and it be found against you, you must be barred by it. Hales urged, That here was a champertous agreement, for there was no consideration for the assignment of this Obligation and In­denture to the Plaintiff, upon which the Action is brought by him. The Iudgement was stayed till the other part should move.

More against Stone.
Pasc. 24 Car. Banc. Reg.

AN Action of Trespass of Assault and Battery, was brought by the Plaintiff for assaulting and beating, and taking his Servant for two Months,Arrest of Iudgement in Trespass by Assault and Battery, and taking away his Servant. Retainer. per quod servitium amisit; The Defendant pleads not guilty, and thereupon is an Issue joyned, and a verdict for the Plaintiff. The Defendant moves in an arrest of Iudgement, and for cause shews, that the Plaintiff hath not set forth how the party was his Servant, whether as an Apprentise, or by retainer, as he ought to have done. But the Court said, that the Record imiplies that he was his Servant at the time when the Trespass was done, and that is enough, and this is the usual form of declaring in this Action in the Common-pleas, and in this Court also (and so many of the Councel at the Bar affirmed) and therefore let the Plaintiff take his Iudgement.

The King against Holland.
Pasc. 24 Car, Banc. Reg.

HAles offered to the Court these reasons why Iudgement should not be given here in this Case betwéen the King and Holland formerly spoken to.To stay Iudg­ment upon a Memorandum of a Record out of the Chancery. Iudgement. 1. That the Record is not here in this Court, but only an extract of the Record out of the Record which is in Chancery, and therefore judgement cannot be given here: for a judgement must be given upon the Record it self. 2ly. It would be inconvenient if it should be otherwise, for the Chance­ry is Iudge of the Inquisition, and so there may be judgement one way in Chancery, and another way here, if the Record be not removed hither. And there is difference where a transcript of a Record is removed out of a Court which cannot proceed upon the Record it self, and where it is a tran­script of a Record,Transcript. upon which Record the Court may proceed, as it is in our Case, 39 H. 6. 6. 14 E. 4. 1. & 7. 3ly. It appears not to this Court how the Commission and Inquisition are executed, whether well or not, and therefore it cannot judge of it. Maynard on the other side prayes, that judgement may be given here, upon the memorandum of the Record sent hither out of the Chancery for these reasons, 1. Every Court ought to give judgement on the one side or other; therefore if the King may have judge­ment here, the party may also have judgement. 2ly. The Record is here [Page 95]in this Court virtually by sending of the Memorandum of it hither, and that is enough to give Iudgement upon. 3ly. The Chancery and this Court as to the giving of judgement here, are as it were one Court, 24 E. 3. f. 77. 4ly. There is a ground for judgement to be given here, and it cannot be gi­ven elsewhere, for an Award in Chancery is no Iudgement,Award. and so there cannot be two several Iudgements, one in Chancery, and another here, as Hales supposeth; and in Lathams case, the Record was removed as it is here, and Iudgement given upon it in this Court. 5ly. The Chancery is not to be Iudge: for the Tranverse was there, and the cause removed hither, and we cannot go back thither again: for if we should do so, we should have Iudgement in no Court; If it had been upon a Demurrer in Chancery, then there might have been a Iudgement there, but not now the Cause is removed by Traverse, and a Patent shall not be corrected by the Enrolment, but the Enrollment by the Patent under Seal. Hales on the other side said, That it is the Record of the plea that is transmitted out of the Chancery hither, but not the Record of the Inquisition or Commission upon which it is found, and how then can there be any Iudgement? Roll Iustice said, That the Amoveas manum is but a consequence of the judgement,Amoveas ma­num. and not the Iudgement it self, and we may give Iudgement without the Inquisition against the King, And the Record is transmitted hither to determine whether the King or the party hath right, and the Chancery can­not intermeddle: for by this means the Courts will clash, which would be inconvenient. Bacon Iustice spoke to the same effect. Roll Iustice added this, If an Office be found to entitle the King in the Chancery, and it be transmitted hither, and it appears to this Court that the office is not good, shall not we give Iudgement against the King? certainly we shall. But the Court would advise, and desired to hear the Kings Councel what they could say for the King.

Pasc. 24 Car. Banc. Reg.

AN Action of Trespass was brought for taking away divers parcels of Houshold stuff, and upon non Culp pleaded, the Plaintiff had a ver­dict,Arrest of Iudgement in Trespass for taking away Goods. The Defendant moved in arrest of Iudgement, and shewed for cause, that the Declaration was not good, because divers words in it were in­sensible, as 1. The Plaintiff declares, for taking away unum Lenat, Anglice, a Mat, whereas Lenat is no word in any Language to signifie any thing, and therefore the Anglice cannot help it. To this the Court answered, That it is all one as if it were left out of the Declaration, because it signifies nothing in it,Dammages. and so there is no dammages given for that thing which it should signifie. 2ly. He declares for taking away tria suspendia, Anglice, Pot-hooks, or Hakes, But the Court held this good enough. 3ly. He de­clares for taking away unum Adustum ferreum, which are two Adjectives and signifie nothing. To this the Court said, if they signifie nothing, then no dammages are given for it, and therefore let the Plaintiff take his Iudge­ment.

Pasc. 24 Car. Banc. Reg.

VPon reading of the retorn of Collonel Tichborne Leiutenant of the Tower of London upon an habeas corpus directed to him,For an alias habeas corpus with pain. on the behalf of John Lilborn committed by order of both houses of Parliament for his contempt to them, Cook of Councell with the Prisoner moved for an Ali­as habeas corpus with a pain, because the Lieutenant had only retorned the Writ;Alia. but not brought the body of the Prisoner. Bacon Iustice, If there be sufficient matter expressed in the retorn to detein the Prisoner, to what purpose should we grant an Alias, Retorn. therefore if the retorn be insufficient, move your matter against it. But Roll Iustice said, the Lieutenant ought to make his retorn either against the jurisdiction of this Court, or else he must bring the body of the Prisoner hither, and it is in our power to set a fine upon him,Fine. for making an insufficient retorn. Therefore the Court or­dered that he should amend his retorn, or else they would grant an Alias with a pain.

Hocker against Lamb.
24 Car. Banc. Reg.
Trin. 23 ar. rot. 1592.

HOcker brought a Writ of Error in this Court against Lamb to reverse a Iudgement given against him,Error to re­verse a Iudg­ment for er­ror in the ve­nire. Licu c [...]nus. Hundred. VVard. in the Court at Colchester in Essex; and assigns for Error, 1. That the venire is awarded larger than the Declaration. To this Roll Iustice said, the Ward within Colchester men­tioned in the Declaration is but a lieu conus; but in London the Ward is in the nature of a Hundred, and so differs from this Case; a second excepti­on was, that the time of the Assumpsit, upon which the Action in which the Iudgement was given was founded is expressed in figures, viz. the time for the delivery of the goods promised to be delivered, as also the time of the request for the delivery of them, as also the costs, and damages ad­judged. Vpon these exceptions the Court ordered the Iudgement to be re­versed except very good cause should be shewen to the contrary.

Pasc. 24 Car. Banc. Reg

THe Court was moved to discharge two prisoners committed for suspi­tion of murther, [...] at the [...] by habeas corpu and brought to the bar by a habeas corpus returned for the insufficienty of the retorn, and upon two certificates offred to the Court, That the partyes who did the murther, for which these prisoners were committed, were Executed for the same, and had confessed that they did it.Discharge. But Roll Iustice answered, if the retorn be touching Felony, though it be insufficient we cannot discharge the partyes. The Court thereupon was moved,Bail. that they might be bailed, which was granted, and they were [Page 97]bailed by four in 200 l. a piece that the prisoners shall appear at the next assi­ses at Berry in Suffolk.

Pay against Paxted.
Pasc. 24 Car. Banc. Reg.

A Writ of Error was brought to reverse a Iudgement given in an in­feriour Court; And the Error assigned was in a continuance,Error to re­verse a judge­ment for a d f. continuance. Discontinu­ance. which was ad proximam curiam, scil. 16. die, whereas the Court was not held that day, but 26. die. Roll Iustice said, peradventure the scilicet may be void. Yet the Iudgement was reversed, antea

Keniston against Jones.
Pasc. 24 Car. Banc. Reg.
Mich. 23, Car. rot. 587.

AN Action of Debt was brought upon an obligation with condition to stand to an award; the Defendant pleads nullum arbitrium; Argument upon a special verdict in debt upon on obli­gation to stand to an a­ward. Recital. Conclusion. the Plaintiff sets forth the award, and assigns a breach, and upon that an issue is joyned, and a special verdict is found, and upon the special verdict 2 quest­ions was, whether a misrecital of the date of one of the obligations of submis­sion by the Arbitrators in their award, shall avoid the award. Philips of Councell with the Plaintiff argued that it should not, because that now the parties are concluded by the plea, and the verdict found upon it. 2ly. Whe­ther the Arbitrators have exceeded the submission; he held they had not; for the first point he said, 1. That the submission was the submission of the parties, and the mistaking of the Arbitrators of the time when it was made is not material, nor shall hurt it, for the bond of submission is not in the custo­dy of the Arbitrators, and so they might easily mistake the date, because they had it not to vlew, Plow. Com. 79. Crokers case, 2ly.Date. The date of the obligati­on is not an essential part of the obligation, for an obligation may be good though it have no date, & therfore the mistaking of the date is not much mate­rial; 3ly. There is sufficient certainty of the bond expressed in the award, though the date be mistaken, & a void additional description of it shall not a­void a good description of it set forth in the award. Doughtyes case Cook 3. rep. & Dyer 292. 4ly. The misrecital is not in words affirmative; but meerly in words relative. 5ly. The clause of misrecital refers to the deed recited by the prout, which is certain enough, and the law rejects the miscrecital as a thing impertinent, 6. rep. 36. Dyer 116. For the second poynt, although the sub­mission should be void, yet by the issue joyned the submission is confessed, and it is now contrary to the submission to plead nul award, Dyer 32. 28, 29 H. 8. 2. rep. 4. and the parties in our case do differ only whether there be an award or not, and not whether there be a submission or no. And as touching the award it self, I hold that the submission is not exceeded,Award. for all matters in diffrence between the parties are submitted; but not the bonds of the submission. 2ly. It stall not be taken to be alleged expresly [Page 98]of the matters only submitted, and not of others, if the contrary do not ap­pear either by the Plaintiffs allegation or doubt of the Iury. 3ly. All the award is performed before the discharge of the obligations of submission. 4ly. The award is at least good in part, and it being not performed in this part that is good, the obligation is forfeited, Cook 10. rep. Kel. 43. 45 Hob. pag. 267. N [...]bys case, and so prayes Iudgement for the Plaintiff. Latch for the Desendant. 1. The verdict is not contrary to the issue, nor admission in pleading, nor out of the issue, but within it, for the issue is whether the a­ward be good modo et forma, and the submission is an essential part of the Award, and ought to be alleged in the Award, otherwise the Award is not good, and it is here alleaged in the issue also Dyer 216. 9 H. 7. 3 and the negative here implies nothing. Another question is, whether the Iury have found the Award set forth in the replication, or whether they have found any Award at all, ad if any Award be found, it is such an Award which is not in issue in the replication, and so the verdict is for the Defen­dant. And as to the Award it self, I hold it void, for the parties have not submitted to the Award that is made, for there is no submission to the de­termination of matters arising between the time of the sealing of one Bond, and of the other Bond, and so the Arbitrators have exceeded the submission, for they have awarded to make releases at the sealing of the last Bond, which compriseth all the time between the sealing of one Bond, and of the other. Next, part of the Award is not good by exceeding the submission, and this makes all the Award naught, for all the parts of this Award do so depend one upon another, that if one be naught all is naught. And the last part of the Award is naught, and so the Award is made but on the one part (which cannot be good,) for if the release be not made, all Actions between the parties cannot cease according to the Award, and so the Award is not final; And there is no verdict here for the Plaintiff, although the verdict should not be for the Defendant, for it appears not whether the 15th. of A­pril be before or after Easter, and so prayes Iudgement for the Defendant. Roll Iustice said, if there appears a material variance between the Award [...]et forth,Notice. and the Award pleaded, it is ill: And it is a question whether we be bound to take notice of the Almanack, and the feast dayes there set down or no. It was adjourned to be argued again the next Term.

Thynn against Thynn.
Pasc. 24 Car. Banc. Reg.

IN this Case wherein exceptions were formerly taken to the Writ of Er­ror,Opinion of the Court concerning a retorn. and argued, Bacon Iustice said, he had read over the book, and doubted whether many of the Errors formerly assigned are not out of dore [...], because the certiorari is not well retorned before us, for the certiora­ri is directed to the Recorder, and it is retorned by the Deputy Recorder in his own name.Retorn. Roll Iustice doubted also, for he said, all the old presidents were against this retorn. But if the Writ be directed to a Recorder, who is custosbrevium, or to a Recorder, and his Deputy, then the retorn as it is will be good.

TWisden of Councel with the Plaintiff in the Writ of Error in the Wiltshire cause took these exceptions. The first exception take was,Error and ex­ceptions of­fered to a Iudgement in Dowr. that he demand of Dowr, is larger than the originall Writ, for that the demand is of the Parish of Timesbury, and the Writ is of the Vill of Timesbury, which is not so large by intendment as a parish, because there may be divers Vills in one parish; and he said, that in some case a Writ shall restrain a demand; in other cases it shall not, namely where they cannot stand together, and so is it here, 21 E. 4. f. 24. 3 E. 3. f. 56. Demand. A second excep­tion was, that the nature of the tithes demanded are not set forth, although they be not in gross, but appendant as they ought to be,Dowr. and a feme was not dowable at all of tithes before the Statute of 32 H. 8. and a feme is dowable of Common appendant, but not of Common in gross. A third exception was, that Dowr is recovered of a thing not dowable, viz. of a quarry of stones, for if she should be dowable of a quarry of stones, this would be to the de­struction of the inheritance, and indeed it is impossible, for a quarry of stones cannot be divided by metes and bounds, which must be if she should be en­dowed of it. And also if the mine, and quarry should be divided, the Tenant of the Land would be prejudiced; and that a quarry cannot be divided, see Cooks Lit. 164. and so was it adjudged 2 Iac. upon a reference to the Iudges. Next, there is also Error in fact, for the Hundred of Warminster extends into the Hundred of Sutton parva, Error in fact and so if she be endowed of the Hundred of Warminster, she will be endowed of the third part of two Hun­dreds, which is more than she demands by her Writ of Dowr. Maynard of Councell with the Defendant in the Writ of Error said, as to the sum­mons he held there is a good summons, and cited Hob. 137 Dalt. f. 86. And there may be divers parishes in one Vill, as well as divers Vills in one parish; And to the exception that the demand of the Dowr in the Writ is generall, whereas it ought to be a special demand; he answered, the demand in Dowr differs from other demands, and is more favoured in Law; for as Dowr it self is favoured in Law, so are the proceedings in Law to re­cover it, 6 E. 3. 45. 16. E. 2. 7. 8 H. 3. 11 Ed. 3. 85. 25 E. 3. bre [...]. 412. Fitz. Dowr 8 E. 3. Sect. 434. Reg. 39. And as to the surplusage in the de­mand, this shall not abate the Writ 4 E. 3. 52. Fitz. brei. 14. Abatement. And that the parish should extend out of the Vill, is a forein intendment, and shall not be so taken against an Averment, and when a Vill, and a parish are named by one name, one of them shall not be intended larger than the other, if the contrary be not shewn. Long quint. Ed. 4. f. 20. And he argued that a feme is dowable of a quarry, and that it may be divided by metes and bounds, for it may be divided by the profits, although it cannot be divided by the quantity of the thing. Roll Iustice said, By no manner of pleading can one abate a Writ after Iudgement, and how should it be so here? And 2 Cases were cited by the Councell that bis petita shall not abate a Writ. Mich. 9. Iac. Bolstrod and Brooks case, and Easton and Styles case in a Writ of Dowr.

Pasc. 24 Car. Banc. Reg.

THe Plaintiff brought an Action of Trespasse quare vi et armis for res­cuing of a Prisoner out of his possession,Arrest of Iudgement in an action of Trespass vi et armis, for rescous. and hath a verdict against the Defendant. The Defendant moves in arrest of Iudgement, for that the [Page 100]Plaintiff ought to have brought his Action of Trespass upon the Case, and not an Action of Trespass quare vi & armis. But Roll Iustice answered, that he might have an Action upon the Case, or a Trespass vi & armis at his election,Election of Action. and therefore the exception is null. Another exception was ta­ken, that there was 4 years between the time of the Trespass done, and the time of bringing the Action. Roll Iustice answered, you should have pleaded this matter if you would have had advantage by it, but it is to no purpose to urge it. Another exception was taken, that the Declaration says that he took him in his possession out of his possession. But the Court over-ruled this also, and ordered the Defendant to shew better matter why Iudgement should not be given against him.

King against
Pasc. 24 Car. Banc. Reg.

KIng brought an Action of the Case in London against the Defendant,For a Proce­dendo in an action upon the Case re­moved our of London. Custome. for speaking these words of her, Thou art a Whore, and Cantrels Whore, and hast been so this forty years. The Defendant removed the Cause into this Court by a Certiorari; the Plaintiff moved for a Procedendo. But nothing was done in it, for the Court was divided: for Bacon Iustice held the words not actionable. But Roll Iustice held, that by the Custome of London they were, though not at the Common-law.

Aylett against Stellam.
Pasc. 24 Car. Banc. Reg.

TWisden upon a rule of Court to shew cause why there should not be a new Tryal,Cause why no new Tryal. said, that two things were alleged on the other side that there ought to be a new Tryal. 1. That two of the Iurors were of kin to the Plaintiff. And 2ly. That there was notice given to the Defendant of a se­cond Venire facias. To the first of which he answered, that the Iurors were not of kin, and produced an Affidavit for proof. Roll Iustice interrupted him, and said, it is not now material whether they be of kin or no, for the De­fendant should have taken advantage of that upon his challenge at the Tryal.Challenge. Advantage. And for the second, it matters not whether he gave notice of the second Venire or no: for the rules of the Court do not enjoyn him to give notice. Maynard of Councel with the Defendant urged, that two of the Iurors were of kin, and produceth an Affidavit to prove it, and said, that the Defendant was al­so surprised for want of notice of the second Venire. Roll Iustice said, the second Venire ought to be entred here, and if it were not entred, how can the Defendant know whether it be altered or no? Yet here is no breach of the rules of the Court, and so the proceedings are fair: for the Venire may be entred,Entry. or it may not be entred, and if it be not entred, the party may go to the Attorny, and procure a Copy of it before the Tryal: and though the Venire be not entred till after the Assises, it is well enough. Therefore let the Plaintiff take his Iudgement.

Thyn against Thyn.
Pasc. 24 Car. Banc. Reg.

LAtch of Councel with the Plaintiff in the Writ of Error argued again,Argument in Dower. Demand. and held, 1. That the nature of the Tithes demanded in the Writ of Dower ought to have been expressed, for the demand may peradventure be of such Tithes, whereof the Feme is not dowable. 2ly. Where the thing it self is demanded of which the Sheriff is to give possession, there the De­mand of it ought to be certain: for as it is in a Demand in an Ejectione fir­mae, or an Assise, so ought it to be in a Demand in a Writ of Dower, Dyer, f. 116. & 258. 11 Rep. Harpers Case, Dyer, 83. the Sergeants Case, 44 B. 3.5. Cooks Entries, tit. Dower plac. 2d. and though the Demand be of all Tithes, yet they ought to be specified, as it is in Harpers Case; and so it is of Tithes in gross, 11 Rep. Savills Case, Mich. 12 Iac. Bales and Hamond in this Court. And as to the Retorn, a Chapel is demanded,Retorn. and Iudgement given for it, and yet the Retorn doth not mention it; and it is not enough to comprise it in other words, and it is doubtfull whether a Chapel be a Tenement or no: for it is not a temporal Inheritance, as an Advowson is,Tenement. VVrit. Dyer, 83. In some Case the Writ may be general, and the Count special: but that is where there is not a special form of Writ. 2ly a Chapel is not conveyed in Fines and Recoveries, or Entries, by the name of a Tenement, nor in any judicial proceedings, but Tenementa in a Grant may contain a Chapel. 3ly. The particular enumeration of other things, and the [...]mit­ting of the Chapel makes it ill; and so would it be in a Grant by such in e­numeration, Dyer 161. The Case of the Hamlets, 36 Eliz. Ewer & Heydon, 21 & 22 Eliz. the Bishop of Norwitches case, 8 Rep. 18. Doctor Bonhams Case, 12 Ed. 1. Grants 87. Other exceptions he took to the Iudgement and execution. First to the Iudgement,Hundred. that a Hundred cannot be delive­red by metes and bounds: for a Hundred is but a Iurisdiction, and is entire. 2ly. The execution is ill: for a Court of Frank pledge cannot be divided by metes and bounds, Cooks Instit. 32. and Dower is assignable either by metes and bounds, or in common or in special manner. lib. Intrat. 18. He took also Exceptions to the second Iudgement,Dammages. that dammages of the value of the Tithes are not to be given in Dower; next the Inquisi­tion doth not find, that the Husband dyed seised of the Tithes, and then there can be no Iudgement given for them. And the dying seised of the Rectory, is no dying seised of the Tithes, nor is the dying seised of the Chapel, a dying seised of the Tithes appurtenant to it, for the Chapel is but the Chapel-House, or Dilatory, 11 Rep. Harpers Case. Then for the Error in fact, the demand is of the Manner of Lullington, and this extends out of Lullington, and it is not repugnant to the Record to assign this Er­ror in fact, and it could not have been pleaded in abatement of the Writ, 8 E. 3. 68. A Nuper obiit resembles a Writ of Dower, Nuper oblit. 7 E. 3. 28. 7 E. 3. pl. 5.12 Ass. 20. 26 E. 3. 72. 29 Ass. 55. 10 E. 4, 11. 9 E. 4. 3. 9 E. 4. 17. And so prayed the Iudgement might be reversed. It was adjourned to be argued again the next Term.

Hill against Bird.
Pasc. 24 Car. Banc. Reg.

VPon a rule of Court to shew cause why a Prohibition should not be granted to the Prerogative.Cause why no Prohibition to the Preroga­tive Court. Latch stated the Case to be this: A man dyed intestate, the Daughter of the Brother of the Intestate (her Father being dead) procures Letters of Administration, and a Son of the Sister of the Intestate sues in the Prerogative to revoke the administration, or to have distribution of the Goods; the Administrator prays a Prohibition; and hereupon he prays, that either no Prohibition at all is to be granted, or else it must be special.Prohibition. Roll Iustice, The Daugther of the Brother, and the Brother of the Sister of the Intestate are in equal degree of kindred, and the Ordinary may grant administration to which he pleaseth.Administrati­on. Latch urged, that the admini­stration was not yet setled: for it was granted upon Condition, and if the Ad­ministrator will not bring in an inventory, the Ordinary may alter the administration. Hales on the other side prays, there may be a general Pro­hibition cuiliber, &c. Roll Iustice, The Prohibition must be against some cer­tain person; but if divers have appeared to sue, there a Prohibition shall be against all of them, and the Iurisdiction of the Court cannot be enlarged by the agreement of the parties,Revocation. Hob. Tucker and Bo [...]es Case. And an admi­nistration cannot be revoked, for the not bringing in of the Inventory and Accompt by the Admnistrator. The libel was afterwards read, which was to have distribution of the Goods, or else to reverse the Letters of admi­mi [...]tration, and upon this the Court granted to a Prohibition, if cause be not shewn upon notice to the contrary, as to the Distribution, but not gene­rally.

Leving against Gamble.
Pasc. 24 Car. Banc. Reg.

IN arrest of Iudgement it was urged,Arrest of Iudgement in Trespass. that the Declaration was incertain; for the Plaintiff had declared pro quinque pecias stanni, anglice Pewter-dishes, whereas pecias stanni did not fignifie Pewter-dishes; for it might be Spoons, Pots, or any other sort of Pewter as well as Dishes. But the Councel on the other side said,Anglice void. it was well enough, and prayed for Iudgement. Roll Iustice said, the Anglice shall be void, and then the La­tin is good, for it is five pieces of Pewter, and it matters not what pieces they be: For it is ad valentiam, which makes the value certain enough to the Iury. Therefore let the Plaintiff take his Iudgement.

Scoble against Tolye.
Pasc. 24 Car. Banc Reg.

SCoble brings an Action of Trespass against Toyle, Demurrer upon a Repli­cation in Trespass. for taking away his Cattel. The Defendant pleads that the Plaintiff was possessed of the Cattel joyntly with another not named in the Writ, and demands Iudge­ment of the Writ. The Plaitiff replies, that the other with whom he was joyntly possessed was dead at the time of the Action brought; The Defen­dant [Page 103]demurs for delay. The Court ruled a respondes ouster. Maynard of Councel with the Plaintiff said, it was peremptory;Peremptory. But the Court was against him, and ordered the Defendant to plead in chief Saturday follow­ing.

Hart against Bucminster.
Pasc. 24 Car. Banc. Reg.
Hill. 23 Car. rot. 225.

HArt brought an Action of Debt upon an Obligation of 200 l. Iudgement demanded of a Plea. against Buckminster, and sets forth that the condition of the Obligation was to this effect, That whereas Hart had carryed so many thousand of Billets and delivered them at Dartford in Kent, for the use of Buckminster, amount­ing at so much by the thousand, to a hundred pound in the whole, if therefore the Defendant should pay the said hundred pound at such a time and place, that then the Obligation to be void, or else to be in force; and for non-pay­ment was the Action brought. The Defendant sayes that the Plaintiff did not carry and deliver so many thousand of Billets to Dartford (as the Plaintiff had declared, and demands Iudgement of the Action. The Plain­tiff by way of replication demands Iudgement if the Defendant shall be admitted to pleadt his Plea, which is contrary to the averment of the Obli­gation, which is his own Déed, and shall not be estopped thereby.Estople. To this the Defendant demurs. And the Court held that this recital in the Obliga­tion is an Estople to the Defendant to plead the contrary; and the rule was, for him to shew cause why Iudgement should not be given against him upon his Demurrer.

Southcott against Southcott.
Pasc. 24 Car. Banc. Reg.

SOuthcott brought an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes against Southcott, Arrest of Iudgement in an Action for Tithes upon the Stat. of 2 Ed. 6. and hath a verdict The Defendant moves in arrest of Iudgement, and shews that the Declaration was too ge­neral and incertain: for it is for such a quantity of Grain, and doth not set forth what sort of Grain, and so it may be for Grain not titheable. May­nard of Councel with the Plaintiff held, that in this Case the Declaration was well enough, although it would not have been so in an Action of tres­pass, for that Action requires more certainty. A 2d. Exception was, that it is not said whether the Corn was in Garbs or Sheaves. To this Maynard said, it is well enough notwithstanding, for it shall be intended only of such Grain as is usually put in Garbs. Hales of Councel with the Defendant said, the word Grain was too general a word to be used,Incertainty. and no certainty in it, for it extends to Mustard-seed, Cole-seed, Rape-seed, &c. and the genus ought to be expressed, and it shall not be intended of Corn put in Garbs. The Court would advise, but enclined the Declaration was too general, and not good. Postea

Pasc. 24 Car. Banc. Reg.

SIr Iohn Stowell endicted in the Country for high Treason was brought to the Bar by a Habeas corpus to be tryed,Proceeding a­gainst a Priso­ner for high Treason. and desired to hold up his hand, which he refused. But the Court admonished him to do it, because that be­fore he did so he could not plead, and if he were to plead a pardon for Trea­son, he could not do it, till he were first charged with the Endictment. And Doctor Stories case, 32 Eliz. was cited, and it was said, that though in an Endictment for Felony, if the Prisoner refuse to plead he is to be pressed; Yet in Treason it is not so, for if the Prisoner indicted of Treason will not put himself upon his Tryal,Pressing. or answer impertinently, which is not an­swering, but nugation,Iudgement. Pro confesso. judgement shall be given against him as taken pro confesso that he is guilty.

Pasc. 24 Car. Banc. Reg.

AN Action of the Case was brought against one for causing the Plaintif to be endicted of Rebellion and Felony.Arrest of Iudg­ment in an a­ction upon the Case. The Defendant moves in arrest of Iudgement, and shews, that the Declaration was incertain, for it sets forth an Endictment in quo crimen rebellionis ei imposuit & felonii, which words are so incertain, that it appears not what the Plaintiff was charged with in the Endictment, and so there could never have béen any Iudg­ment given against him. Maynard on the other side said, it was well ex­pressed, and could not well be otherwise expressed than it is. Bacon Iustice said,Rebellion. Intention. there may be Rebellion which is not capital, as Rebellion in Chance­ry. But Roll differed in opinion, and said, the intent of the words spoken is to be considered. The rule was, to bring Books to the Iudges.

Mayhue and Baspool.
Trin. 24 Car Banc. Reg.

BAs [...]ool brought an Action upon the Case upon a promise against May­bue, Error upon a Iudgement in an Action upon the Case. and hath a Iudgement against him. The Defendant brings a Writ of Error in this Court to reverse the Iudgement, and assigns for Error, 1 It is not said in the Declaration, that the promise was made within the Iurisdiction of the Court. But Roll Iustice answered, that it was, that the Desendant was indebted tunc & ibidem, which shews, that he became indebted within the jurisdiction of the Court.Iurisdiction. Assumpsit. and the being indebted there is an Assumpsit in Law, that he will pay the Debt, and therefore it is not needfull of shew expresly that he did promise there to pay it, 2ly. The Ve­nire is duodecim probos & legales homines, whereas it should be liberos, &c. But the Court over-ruled this exception also, and affirmed the Iudge­ment except better matter should be shewn.

VVinn against Stebbins
Trin. 24 Car. Banc. Reg.

VPon a rule of Court for a reference to the Secondary,Whether a contempt to the Court or not. whether the par­ty, and the Sheriff were in contempt to the Court for taking out of Execution, and executing it after a Writ of Error brought upon a Iudg­ment, it was moved that he might make his report, who thereupon repor­ted to this effect; That there was a writ of Error brought upon the Iudge­ment before Execution taken forth;Notice. but there was no notice thereof given to the party, nor any supersedeas taken forth to stay Execution, and there­fore the Plaintiff might take out Execution,Contempt. notwithstanding the writ of Error brought, and that thereby he is not in contempt to the Court. Roll Iustice said, Then is the Execution now well executd,Execution. and the Sherif is in no fault. Maynard of Councel with the Plaintif in the writ of Error, moved that the Execution was awarded improvide, and therefore the Court may restore the party to his goods taken in Execution, although the Sherif be not in fault. Roll Iustice, The party ought to take notice of a re­cipitur upon the Record if it be entred, and if the party take out Execution after the writ of Error is allowed, he is in contempt to the Court, else not, and the Attorny is not bound to view the Record whether a writ of Error be brought; but may take out Execution if there be not a Supersedeas, Supersedeas; or notice given to the party. Therefore there is no help here, for the proceed­ings have been according to the course of the Court, for by the delivery of the writ of Error to the Officer of the Court, the hands of the Court are clo­sed. Yet let us see the President that Wood ward hath to shew, and let the Secondary examine it again.

Trin. 24 Car. Banc. Reg.

AN Action of accompt was brought touching the fraight of a Ship,For a scire fa­cias against manucaptors. and a Iudgement that the Defendant shall accompt, and Auditors assign­ed, and Manucaptors found to appear before the Auditors, the Court was moved for a scire facias against the Manucaptors, because that the Defen­dant did not appear at the day before the Auditors assigned, and secondly it was moved that the Court would assigne a day peremptory,Certifica [...]e. Auditors. for the par­ty to appear before the Auditors. But Roll Iustice said, a day cannot be assigned untill a certificate be made to us from the Auditors, for they are trusted, and are Iudges of the cause, and have power to excuse the non-appearance of the party at the day, if they see cause, and to give longer day or shorter, for the party to appear as they think good, end therefore till they certifie, neither can you have a day assigned,Scire facias, nor a scire facias against the Manucaptors.

Clementson against Montford
Trin. 24 Car. Banc. Reg.
Hill. 23 Car. rot. 1493.

A Writ of Error was brought to reverse a Iudgement in an Action up­on the Case brought by an Administrator in the Court at Esham; Error to re­verse a Iudge­ment in an action upon the case. The Errors assigned were. 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium. 2ly. The Plaintiff saith in his Declaration, producit litteras Administratorias intesta­ti, whereas it should be ordinarii, and not intestati. 3ly. The Court cannot by its privilege being an inferiour Court,Capias. and that but newly erected, award a Capias upon entring the plaint, as it is here done. 4ly. The Court began first to be a Court, but 9 Iac. and yet it is said to be held per usum et consue­tudinem curiae. Twisden to the 1. exception said, that it is helped by the verdict. Roll Iustice asked how doth it appear that Esham is within the Di­ocess of the Bishop that granted the Letters of Administration, for if it be not, the Letters are not well granted; And said, that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium, aut cui pertinuit, Administration Declaration, Plea. although they ought to be so pleaded in a plea in Bar. To the second exception, Twisden answered, that the words mentioned are not necessary, and the Declaration would be good enough without them, and therefore they shall not hurt it, though they he mista­ken, and if it should be otherwise, yet they are helped by the verdict; and to the first exception he said, that the words secundum usum et consuetudinem shall be intended to be meant according to the Law, and not according to ancient usage, as is urged by the Councell on the other side. The rule was that Iudgement be affirmed except better matter should be shewn Monday next.

Read against Palmer.
Trin. 24 Car. Banc. Reg.

REad brings an Action upon the Case upon an Assumpsit to stand to an award against Palmer, Arrest of Iudgement in an action upon the case. and hath a verdict. The Defendant moves in arrest of Iudgement, and shews that there was an amendment in the consideration, and the promise after the issue joyned. Twisden answered, it is not material, though it be so, for the matter of the Assumpsit is implyed, and the words altered are idle, and cited 37 [...]l. Heydons Case, for it is de et super praemissis, Amercement. which implyes all the matter. Roll Iustice said, that the words de et super praemissis goe not to the time, but to the matter submit­ted, and said that the words postea, scilicet eodem die, Contract in law. special con­tract upon a contract in Law shall be intended the time of the contract, but here is a speciall contract and collateral, and it ought to be otherwise intended, and desired to see a book.

Freeborn against Purchase.
Trin. 24 Car. Banc. Reg.
Hill. 23 Car. rot. 1575.

FReeborn brought an Action upon the Case against Purchase, Demurrer to a Declaration in an action upon the case. and de­clares that the Defendant in consideration that the Plaintiff had paid unto him such a sum of money, did assume, and promise to joy in the sur­render of certain Copyhold Lands, and that for not performing this promise he brings his Action. The Defendant demurs upon the Declara­tion,Request. and shews that the Plaintiff doth not allege that he made any request to the Defendant to joyn in the surrender, which he ought to do, for it was not a single Act to be done by the Defendant alone; but he was to joyn in the Act with another. Roll Iustice said, the promise is that the Defendant shall joyn in the surrender,Breach. and he doth not say that he did request him to joyn, which he should have done. And besides the breach is not well as­signed, for you have assigned a particular way how he should surrender, namely into the hands of 2 Tenants of the mannour, whereas he did as­sume only to joyn in a surrender, which may be in Court, or into the hands of the Lord, as well as into the hands of two Tenants; so is Syms and Walkers Case, 9 Car. Also the Plaintiff ought to have shewed that there is such a particular custom in the manour,Notice. that a Copyhold Tenant may sur­render into the hands of two Tenants of the manour, or else such a Custom cannot be taken notice of. Therefore let a nil capiat per billam be entred a­gainst the Plaintiff.

Wright against Martin.
Trin. 24 Car. Banc. Reg.

THe Court was moved to change the venue in an Action for an escape,To change a venue in an action for an escape. Local. upon an affidavit that the escape touching which the Action was brought was in another County, and not in the County where the Action was brought. But Roll Iustice said, that an escape in one place is an es­cape all England over, and is not local; therefore the venue is not to be tyed to one place more than another. Yet let the other party shew cause why the venue should not be altred.

Trin. 24 Car. Banc. Reg.

VPon a rule to shew cause why Iudgement should not be stayed in an Action upon the Statute of 2 Ed. 6. for not setting forth of Tithes,Exceptions answered of­fered in arrest of Iudgement in an action upon the Sta­tute of 2 Ed. 6. for not set­ting forth of tithes. Recital, these exceptions for merly taken were answered. 1. It was said the Statute was misrecited, for the day when the Parliament began wherein the Sta­tute was made is mistaken; but to this it is answered, that the Declaration doth not say per Statutum in Parliamento inchoat. tali die, but in Parliament. tento tali die, and the Parliament was held by prorogation the day that it is mentioned, though it were not then first begun, and so that is well e­nough. To the second exception, that the Declaration doth say that the Plaintiff was primo die occupator ac postea eodem die, &c. So that it ap­pears [Page 108]not,Proprietor. that he was proprietor, and so the Action may not lye, for he may be occupator wrongfully, and so not proprietor. It is answered, that the Declaration is, that he was tali die possessionatus et ab eodem die occu­pavit, and this shall be judged of a rightfull estate, and it is said, that he is rector ecclesiae, and so he shall be intended proprietor of the Tithes, if the contrary be not shewn. The rule was to shew better cause Friday fol­lowing, else Judgement for the Plaintiff.

Sowthcott against Sowthcott.
Trin. 24 Car. Banc. Reg,

IN this Case formerly moved,Exceptions answered ta­ken to arrest judgement in an action for tithes. Tithes. and Iudgement stayed til the Plaintiff should move: Maynard for the Plaintiff moved for Iudgement, and to the exception taken on the other side, that the word grain used in the De­claration is too general, and may extend to grain not titheable, viz. to rape-seed and cole-seed, &c. as well as to titheable, and so the Declaration is incertain; De said it is well enough, for it is said grain growing in such a field by name, which makes it certain, 2 rep. lib. Int. 176. 2d. Coment. f. 161. b. and for the word grain in comon understanding it is meant for corn, and not for seeds, though in a large exception it may extend to seeds also. Hales on the otherside said, that the word grain is incertain, and signifies more than corn, and also the word Garbae is too generall, for it may ex­tend to more than sheafs of Corn, for bundles of any thing bound up may be said to be Garbae, as well as Corn bound in sheafs, and may extend al­so to grain not titheable. Roll Iustice held, the words in the Declaration, Seminavit cum grano proper enough,Comon intent and that by common construction it shall be meant with Corn, and not with seeds, 10 Car. Goldsmiths Case, Hill. rot. 8. And for Garbae, it is also well enough, for it shall be taken according to common construction, which is to signifie corn bound up, and shall not be taken in the large extent of the word for bundles of any thing else. And the Iury hath taken notice of it, for they have found debet, which had they not they could not have found the verdict so. The rule was for the Plaintiff to take his Iudgement, if cause were not shewn Friday follow­ing.

The King and Sr. Henry Spiller
Trin. 24 Car. [...]anc. Reg.

THe Court was moved for the quashing of divers Endictments wherein Sr. Henry Spiller was endicted for not repairing a bridge;For quashing divers Endict­ments for [...]or repairing of a Bridge. the exception to the first was, that it doth not set forth in what County the bridge lyes, and for that exception it was quashed. Another Endictment was for not repairing of Mays Bridge, and it doth not shew that the bridge is in the High­way. But to this Roll Iustice said, that the Endictment doth say it is a Common bridge, and that is enough, and it is needlesse to say it is in the Highway. Another exception was taken to this Endictment; that it did not shew whether the bridge were a cart bridge, or a horse bridge, or a foot bridge, or what other passage was over it, and for that exception that En­dictment was quashed. To a third Endictment for not repairing the same bridge, this exception was taken, viz. It sayes that Sr. Henry Spillar was [Page 109]bound to repair the bridge ratione manerii, which cannot be good; but it should be rationae tenurae manerii. Roll Iustice said, It ought to shew that he is ow­ner of the manour, and although it do expresse that he is bound to repair it ratione manerii sui, that is but implication that he is to repair it,Implication. and makes it not appear that he is possessed of the manor, and upon this exception was this Endictment quashed.Addition. To a fourth Endictment for not repairing the same bridge, this exception was taken, that there is no addition of the Coun­ty, where Sr. Henry Spillar dwelt, as the Statute directs, and for this it was also quashed. Yet afterwards because there was no certificate that the bridge was repaired, the Court would quash none of them, but said, let him plead to them: The Defendants Councel moved that he might plead but to two of them, and that processe might be spared to the rest. Roll Iustice, Appear to all, and plead, and proceed in two of them, and processe shall be stayed to the rest.

Burrel and Lancaster.
Trin. 24 Car. Banc. Reg.

BUrrell brought an Action of Trespasse quare clausum fregit against Lan­caster, Arrest of Iudgement in Trespasse qua­re clausum fregit. Variance. Nomen ag­gregativum. and had a verdict; the Defendant moved in arrest of Iudgement, and for cause shews that there is a variance between the writ, and the De­claration, for the writ is quare clausum fregit in the singular number, and the Plaintiff declares of divers Closes; But Roll Iustice said, That it was well enough, for the word clausum is nomen aggregativum, and may con­tain many Closes, and so may well enough agree with the Declaration, And therefore let the Plhintiff take his Iudgement.

Glide against Dudeney.
Trin. 24 Car. Banc. Reg.
Pasc. 24 Car. rot. 426.

GLide brings an ejectione firmae against Dudeney in the Common pleas,Error upon a Iudgement in an ejectione firmae in the Comon plea and hath a Iudgement by default against the Defendant, whereupon a writ of enquiry issues out to enquire of the Damages, and before the re­torn thereof, the Defendant brings a writ of Error, the question was, whe­ther the writ of Error were well brought, in regard that the course of the Common pleas is not to make up the Iudgment untill the writ of enquiry be retorned. Roll Iustice said, that a writ of Error may be brought before the writ of enquiry be retorned in an ejectione firmae, for in that Action the Iudgement is compleat at the Common Law before it be retorned,Iudgement. Error. for the Iudgement is but to gain possession, and so is it in a writ of Dower; but in an Action of Trespasse where damages only are to be recovered, there the Iudgement is not perfect till the writ of enquiry is retorned, nor can be made up before as in this case it may, but in regard that here is no compleat Iudgement entred, for there is no capias which ought to be in all Actions quare vi et armis, that the King may have his fine which else he cannot have [Page 110]if the party do not procéed in his Writ of Enquiry,Error. Execution. the Writ of Error is brought too soon, and you may proceed to execution in the Common-pleas, for the compleat Record is not here. Therefore advise what to do in the Common-pleas, for it is mischievous qua cunque via.

Norton against
Trin. 24 Car. Banc. Reg.

NOrton brought an Action of Assault and Battery against the Defen­dant,Arrest of Iudgement in Assault and Battery. Mis-sworn. and had a verdict against him. The Defendant moved in ar­rest of Iudgement, that in the Venire facias one of the Iurors was retorned by the name of Edmund, and it appears by the Postea, that he was sworn by the name of Edward, which cannot be intended to be the same person. Roll I [...]stice said▪ Amendment. if the Clerk of the Assises, in returning of the Postea have mis­taken the name, it may be amended here in Court by his notes, by which he made the Postea; and therefore let him be examined here whether it be a mis­take or no.

Toby against Angel.
Trin. 24 Car. Banc Reg.

THe Court was moved for a reference in this Cause to the Secondary, because the sute was commenced upon two Counter-bonds,For a refe­rence. which are both cancelled. Roll Iustice answered, then why should it be referred: for you may plead non damnificatus, if the truth of the matter be so: but the party may peradventure be damnified, notwithstanding the Bonds be cancelled, and may have good cause of Action.

Langly against Wybord.
Trin. 24 Car. Banc. Reg.

LAngly brought an Action of Debt upon an Obligation to stand to an A­ward against Wybord. Demurrer to a Replication in Debt upon an Obligation to stand to an Award. Award. The Defendant pleads nullum Arbitrium. The Plaintiff replies, that the Arbitrators did make an Award, and sets it forth in haec verba; The Defendant demurs and shews for cause, that the Award is not well set forth: for he doth not shew, that the Award was delivered up by the Arbitrators, according to the submission. Roll Iustice answe­red, it was well enough, though it be not. A second cause was, that it is not said touching what sutes the Award was made. Roll Justice answered, the Award is said to be de praemissis, and that is good enough. 3ly. The A­ward is, that all sutes shall cease. Roll Iustice, This is well enough. 4ly. The Arbitrators have exceeded their submission. The rule was to bring the Roll into Court, and till then the former rule to stand. Afterwards the Award was judged good, and the Plaintiff had his Iudgement.

Trin. 24 Car. Banc. Reg.

A Writ of Error was brought to reverse a Iudgement given in an In­feriour Court,Error to re­verse a judge­ment in an In­feriour Court. and the Error assigned was, That the plaint was en­tred before such an one Maio [...] and the sute was continued before another Maior, and it is not shewn that the first Maior was removed, and that the other Maior was lawfully elected and sworn. Roll Iustice said, that the Conti­nuances in Inferiour Courts ought to shew the manner of the Continuan­ces,Continuance. and it ought not to be expressed generally. And it is not said tunc ma­jori, Tryal. which would have made it more incertain. I doubt the Venire facias is discontinued, and then there is no Tryal; therefore it is good to advise.

Pragnell against Goff.
24 Car. Banc. Reg.

GOff brings an Action upon an Assumpsit against Pragnell, Error upon a Iudgement in an Action upon an As­sumpsit. and hath a verdict, and a Iudgement against him. The Defendant brings a Writ of Error to reverse this Iudgement. The Case was this, Pragnell did as­sume and promise unto Goff, that in consideration that Goff would mary the Daughter of Pragnell, that he would be bound to give over his Shop un­to him, and not use his Trade in Basingstoke, and would lend unto him fifty pound, and for not performing this promise he had his Iudgement. The Error assigned was, that there is a breach [...]aid of all the promise,Assumpsit. which con­sists of divers parts, and one part of it is against Law, namely, the Pro­mise to be bound not to use his Trade, and yet dammages are given entire­ly for all, which is not good. Wild on Councel on the other side said, that in 2 H. 5. urged is no Iudgement given, and in our Case it is not that he shall be bound not to use his Trade generally, but only in the Town of Basingstoke, and he may use it any where else, and therefore it is not against Law. Roll Iustice, If the words be general, that he shall not use his Trade in such a place without any consideration, this is ill: but it is otherwise if there be a conside­ration, for a man may sell his Liberty & Privilege for a Consideration, and it shall bind him. The rule was to shew cause Saturday next why Iudgement should not be affirmed. This was afterwards moved & objected,Dammages. that part of the Assumpsit was to turn over the Defendants Trade, and dammages gi­ven for that which is impossible. Roll Iustice said, if dammages entire be gi­ven for some things with others wherof some are impossible, the dammages shall be deemed to be given for those that are possible, and void to the rest, The Iudgement was affirmed.

Peeling against Ken.
Trin. 24 Car. Banc. Reg.
Pasc. 24 Car. rot. 89.

PEeling brought an Action of Debt upon an Obligation to stand to an A­ward against Ken. The Defendant pleads Nullum Arbitrium. Demurrer to a Replication in Debt upon on obli­gation to stand to an a­ward. The Plaintiff replies and sets forth the Award in haee verba, and assigns a [Page 112]breach. The Defendant demurs to the Replication, and the Plaintiff joyns in the Demurrer. The causes assigned for the Demurer were, 1. To the Award it self,Award. which is that whereas it appears that there was six pound and a shilling due by the Plaintiff unto the Defendant; the Arbitrators had a­warded, that the Plaintiff should pay unto the Defendant six pound in full satisfaction thereof: which is lesse than they acknowledge to be due, so that it cannot be a satisfaction, 9 H. 7. f. 11. 46 E. 3. f. 7. 2ly. The Award is, that one of the parties shall deliver Dimissionem praedictam, whereas it ought to be Indenturam dimissionis; for the dimission is but the consent of the par­ty to the Indenture, and not the Indenture it self, Cooks Instit. 43 6. 3ly. They award to deliver dimissionem praedictam in the House of a Stranger, which ought not to be: for the party must commit a trespass to do it, if he can­not get leave of the Stranger, which he is not bound to do, 9 H. 7. 16. 18 Ed. 3. 23 19 Ed. 4. 41. The words are, that it shall be delivered at the House, and in and at are all one in grammatical construction, Mich. 23 Car. Coleman and Painters Case. 4ly. They award one of the parties shall release thrée years rent to the other, and there was but two years rent due, so that it is impossible to be done. 5ly. They have made their Award upon a thing not submitted, viz. that there should be a release of all Actions which might con­cern the rent;Averment. and lastly, the party ought to shew he hath performed the A­ward on his part, which he hath not not done, 8 H. 6. 18. Brook Arbitre­ment. Twisden of Councel on the other side, to the first Exception said, it is not to the purpose: for Arbitrators may award a lesse sum than is due, in satisfaction of it, and though it be ill, yet the Award is good as to so much, whereof a good breach is assigned. To the second he answered, that the words dimissionem praedictam refer to the Indenture pleaded, and so that is well enough. To the third he said, that the Award is that the Indenture shall be delivered at the House, and it is lawfull for him to go to the House, though not into the House of a Stranger. The the 4th. he answered, that the words are to be understood that the party shall not pay the rent, and not that he shall release it. To the fift he said, that the words alleged are no part of the Arbitrement. And if the Obligation be re­leased it is not material, for the Arbitrement is performed, and the words Premises restrain the Arbitrement to the Submission. And to the sixth it is not necessary to shew how the Arbitrement is performed: for if it be not, the other party hath his remedy. Roll Iustice said, that in 12 Iac. it was adjudged, that if an Arbitrement was for a thing to be done in or at the House of a Stranger, it was well enough: for it may be inten­ded to be done at the House without doing a Trespass, though not in the House, except the contrary be shewed by the party. In Lynyn and VVilli­amson, Hoofs Case; and as to the words dimissionem praedictam, that is also well enough: for it shall be intended the Indenture of demise. But let us have Books and move it again. It was moved again, and another excepti­on taken, that the promise was released; Upon which the Court would ad­vise.

Smith against Hobson.
Trin. 23 Car. rot. 1078.

SMith an Inn Keeper in VVarwick brought an Action upon the Case a­gainst Hobson, Arrest of Iudgement in an action upon the Case. for speaking these words, Collonel Egerton had the French [Page 113]pox, and hath set it in the House (meaning the Plaintiffs House) and Wil­liam Smith and his wife (meaning the Plaintiff and his Wife) have it, and all you. The Plaintiff hath a verdict. The Defendant moves in ar­rest of Iudgement, and for cause shews, that the words are not actionable: for the words are, that Collonel Egerton hath set the French pox in the House, which is impossible: for the House could not have the pox, and the words William Smith and his Wife have it, shall not be meant that they have the pox, but the House, for that is the next Antecedent to the words, to which they shall refer. And also where words are spoken doubtfully whe­ther they be spoken true or false, they shall be taken to be true: and it may be here the words are true, and then no Action lies for speaking of them: also the Baron and Feme ought to joyn in the Action, if they be actionable,Ioyn in A­ction. for they are spoken to both their prejudice, and the Action is not to be brought by the Husband alone, as here it is. Also in this Case the words being spo­ken of a House, the Writ of Enquiry of Dammages must be what Dam­mages is come to the House, which cannot be. Roll Iustice, If an Action be brought for words, and part of them be actionable, and part are not, yet an A­ction lyes for them which are actionable. And in this Case the Husband alone may bring the Action for dammages to himself, and he may afterwards bring another Action for the dammages done to his Wife. And he held the words here actionable, and bid the Plaintiff take his Iudgement, if cause were not shewn to the contrary Saturday following. Iudgement was after­wards given accordingly.

Marshall against Porter.
Hill. 23 Car. rot. 769.

MArshall brings an Action of Trespass Quare vi & armis for taking a­way his Cattel.Demurrer to a special plea in Trespass. Quare vi & armis. The Defendant pleads non Cul. as to the vi & ar­mis, and as to the taking of the Cattel he pleads, that he bought them in a Market-overt. The Plaintiff demurs to this Plea, and the Defendant joyns in the Demurrer. The Exception taken to the Plea was, that the Defen­dant doth not shew what day the Market was kept, nor whether it were out of Lent, according to the Patent for the keeping of the Market. Roll Iustice said, this ought to have been averred in the Plea, and therefore the Plea is not good.Averment. Therefore let the Plaintiff have his Iudgement if cause be not shewn to the contrary.

Pitcher against Symons.
Trin. 24 Car. Banc. Reg.
Hill. 23 Car. rot. 189.

SYmons brought an Action upon the Case upon an Assumpsit in the Com­pleas against Pitcher, and hath a verdict, and a Iudgement.Error to re­verse a Iudge­ment in an action upon an Assumpsit. Issue. Amendment. The De­fendant brought a Writ of Error here to reverse the Iudgement. The Er­ror assigned was, that there was no issue joyned between the parties to the sute: for it is & praedictus Iosephus similiter, whereas it should be praedictus Robertus. Roll Iustice cited 9 Eliz. Dyer, and said, if it be praedictus Richar­dus where it ought to be Robertus, it cannot be amended, because the Issue is altered: for it is joyned between other parties, and so is it in this Case. But move it again Friday next.

Deacon against Forest.
Trin. 24 Car. Banc. Reg.

DEacon brings an Action in this Court against Forest. VVhether a Plea was pe­remptory, or that there might be a Respondes ouster. Peremptory. Plea. The Defendant appears in Michaelmas Term, and impar [...]s to Hillary Term, and before the day of Continuance pleads a Plea in abatement; to which the Plain­tiff demurs. Yard of Councel with the Plaintiff said, he conceived the Plea was peremptory to the Defendant, because it comes after an imparlance, & a Continuance, and so comes in lieu of a Peremptory: for the Law admits but one delay, and therefore the Defendant should have pleaded in Chief, and not having done it, his Plea shall be as if it were a Plea in Chief over-ru­led, and cited Long Quit. E. 4. f. 139. Roll Iustice, You cite not the Book as it is, here is but a Plea in Abatement, and the Continuance makes it not peremptory, 2 Ed. 4. f. 10. A second Exception was, that the Plaintiff hath not demurred upon the Plea, but pleaded to issue, and here is a departure from the general issue,Departure. 34 H. 6. f. 8, 9. Roll Iustice, The Book is against you, for upon a Demurrer a Plea dilatory is not peremptory: but upon an issue joyned it is. Yard, The delay of the Demurrer makes it peremptory, 22 H. 6. f. 55. Roll Iustice, The Book cited is against you, and in 50 E. 3. f. 20. Difference. There is a difference taken betwéen the delay of the Court, and the delay of the party; and here is no delay in the party, for he might have been forced by the rules of the Court to hasten the proceedings, and the Book of 34 H. 6. is against you. The Plea in Abatement ought not to have been received after imparlance, but if it be received, & a Demurrer upon it, it cannot be helped and if one plead a Plea after imparlance,Plea. which ought not to be pleaded, the Plaintiff may pray the Court to over-rule it: but if he demur upon it, he admits that the Plea may be; and one may plead a Plea in Bar by way of abatement, & e contra. Therefore let the Defendant plead in Chief, if cause be not shewed on Friday to the contrary.

Burges against Dynham.
Trin. 24 Car. Banc. Reg.
Hill. 23 Car. rot. 1191.

BUrges brought an Action of Trespass against Dynham for taking 24 load of Tymber.Demurrer up­on a Plea of Iustification. The Defendant justifies, that he took the Tymber as a De­puty of a Purve your to the King, for the reparations of the Mansion houses of the King. To this Plea of Iustification, the Plaintiff demurs, and for cause sheweth, that it doth not appear, that the Defendant hath any autho­rity by the Common-law, or by Statute to take this Tymber: for the Com­mission which gives this authority ought to be renewed every sir Months,Commission. and it doth not appear that it was so in this Case, 2 Institut. f. 545. 10 E. 4. 2, 3. 2ly. He hath not shewed that the Houses were in decay when he took the Tymber, and he cannot take it to make a Common stock, to repair them afterward when they should fall to decay.Purveyours. 3ly. Purveyours ought to pay ready mony for the commodities they take, and he doth not shew in our Case that he paid ready mony for the Tymber, by the Stat. 36 Ed. 3. C. 2. 47 Ed. 3. f. 8. but by 22 Ed. 3. Tit. Bar. 259. it seems to be otherwise: but the Case there differs from this Case, for there it was that a Purveyour may take Horses to use for a time, without paying mony: but it was not to alter the [Page 115]property. 4ly. He hath not shewed that he endevoured to agree with the Plaintiff for his Timber, as he ought to have done.Plea. Hill. 2 Car. rot. 509. Parker and Sturgens case. 5ly. The plea is hudled up, and is not pleaded particularly and distinctly as it ought to be, so that the Plaintiff knows not how to take an issue, 10 H. 7. The rule of Court was to bear the other side Friday next.

Brereton and Monington.
Trin 24 Car. Banc. Reg.

A Writ of Error was brought to reverse a Iudgement given in an infe­riour Court, and the Error assigned was,Error to re­verse a judge­ment given in an infetiour court. Plaint, Amendment. that the Plaint was entred against Francis, and the proceedings were against Iohn. Roll Iustice said, that it was not good, for a Plaint is in the nature of an original writ, and therefore if that be erroneous it cannot be helped though it be after a verdict. And therefore shew cause Saturday next why the Iudgement should not be reversed.

Gallop against Symson.
Trin. 24 Car. Banc. Reg.

CHase brings an Action of Trover and Conversion against Gallop, Error to re­verse a judge­ment in a tro­ver and con­version. and his wife, and a stranger, in the Common pleas, and hath a verdict, and a Iudgement against them. The Defendant brings a writ of Error to reverse this Iudgement, and assigns for Error that the Plaintiff declares that the goods for which the Action is brought, venerunt ad usum ipsorum, viz. of the Husband, and his wife, and the stranger, which cannot be,Declaration. for they cannot be said to come to the use of a Feme covert. Roll Iustice, This is not good, for he ought not to declare that the goods came to the use of the Feme, but to the use of the Husband only. And therefore reversetur judici­um, except cause shewn to the contrary Saturday next.

Wainewright and VVhitly.
Trin. 24 Car. Banc. Reg.

VVAinewright brought an Action upon the Case against Whitly, Arrest of judgement in an action upon the case. for these words spoken of him; Thou art a theef, and hast broke my Chest; The Plaintiff hath a verdict, The Defendant in arrest of Iudgement moves that the words are not actionable. But Roll Iustice said, notwith­standing my Lord Hobarts opinion, he held the words are actionable, for the word and is cumulative, and aggravates the former words,Cumulative, Explanatory. are not barely explanatory, and the subsequent words are violent, and may very well stand with the former. Therefore let the Plaintiff take his Iudgement.

The King and Camell.
Trin. 24 Car. Banc Reg.

ANn Camell endicted at Southwold in Suffolk for Felony and Witch-craft was brought to the Bar by an habeas corpus, An arraign­ment for witch-craft. and was here ar­raigned. The prisoner desired Walker for her Councel. Roll Iustice asked her for what cause and matter she did desire Councell; To which the prisoner making no answer, Roll Iustice viewed the Endictment, and upon that assigned her Walker for her Councel, and gave him the next day to shew his exceptions against the Endictment, at which time Walker de­sired that the Endictment might be read, which was done, and upon the reading of it he took these exceptions. 1. To the caption wherein it is ex­pressed, that the Endictment was taken in pena cessione, Endictment. where it should be in plena cessione. To this Roll answered, if the word pena be left out, the Endictment is good enough without it, and therefore passes ouster. A second exception was, that the Endictment doth not say that the Iustices before whom it was taken were justiciarii ad pacem tenendam in villa prae­dicta, and then they might have no power to find the Endictment; but this exception was also over-ruled by the Court. A third exception was, That the Endictment is too general, for it only sayes that the prisoner practicavit diabolias artes, and doth not expresse what. To this Roll Justice answe­red, that the employing of wicked spirits to any intent whatsoever is Felo­ny within the Statute,Felony. and the intent why they were employed is well ex­pressed in the Endictment, and if an Endictment fail in one part, it may be good in another: and therefore the Endictment is good, and the prisoner must plead; Whereupon the prisoner pleaded not guilty. Vpon this Wal­ker moved the Court that this was an old Endictment, and that the priso­ner had been twice acquitted upon other Endictments of the same nature, and that this was prosecuted for malice, and prayed that the prisoner might be bailed, which was granted. And she was bailed by her Husband, and by one Zachary Baggs a sufficient Citizen and Fishmonger of London, and two others, to appear at the next Assises to be held for the County of Suffolk.

Trin. 24 Car. Banc. Reg

THe Court was moved to quash an Endictment exhibited upon the Sta­tute of perjury at Kingston upon Thames for these exceptions.To quash an Endictment upon the Sta­tute of perju­ry. 1. It is not expressed in what County Kingston is; and 2ly. the Endictment doth not expresse how the party is perjured, for it shews not in what cause it was nor that it was in giving any evidence upon oath as a witnesse in any cause. Vpon these exceptions the Endictment was quashed. Nota

Butler against Long.
Trin. 24 Car. Banc. Reg.
Pasc. 24 Car. rot. 496.

LOng brought an Action of Trespasse against Butler in the City of [...] and hath a verdict and a Iudgement,Error to re­verse a judge­ment given in an inferiour Court. the Defendant brings a writ of Error to reverse this Iudgement, and assigns for Error, 1. That the Declaration doth not shew in what Parish within the City the Trespasse was done, as he ought. To this Roll Iustice answered. That it shall not be intended that there are more Parishes within the City than one,Intention. except the contrary be shewed. 2ly. The Declaration est quod cum talis, viz. the Defendant, &c. which is not an expresse averment,Declaration. Trespasse. that the Defen­dant did the Trespasse; but it is set forth only by way of circumstance that he did it, which is not good, for he ought to be charged directly with it. Roll Iustice, The setting forth the Trespasse by a Quod cum is not good, tho gh in another Action it may be good. Therefore let the Iudgement be reversed, ex­cept cause shewn to the contrary Saturday next.