Salkeld’s Reports Vol: 1

(Abatement)

Duncombe vs Church. Mich. 8 Will. III. B. R. (1)

Held that want of “prout patet per recordum,[”] is only matter of form, and helped by General demurrer, because without such conclusion, if a record be pleaded, the other side may reply, nul tiel record. Privilege is no plea after imparlance. 2. Ro[l. Abr]. 271 [275]. Co Litt. 303.

West vs. Sutton Pasch. 1. Ann. B. R. (5)

Where alienee is pleaded in abatement, ’tis triable where the writ is brought, ergo replication ought to conclude to the Country aliter where it is pleaded in bar, ergo in that case, the replies must conclude, et hoc par[atus]: est ver[ificare]. Co. L. 126. Pl. 14

disability which might have been pleaded in abatement to the action, not pleadable after judgment in abatement to sci. fa. Co. L. 303. Pl. 7. 575. [Pl.] 20.

Brooks vs. Stroud.——(6)

2 Exrs sue & set forth themselves and that they prov’d will, but on prob: set fth. appd. that 1 only provd. the will: dft pleaded this in abat: sed resp[ondeat]. oust[er] awarded, for, both having the right in them. he that did not prove may come in when he pleases, but cannot refuse during life of him that has proved. 1 Ro[l]. 907. Swinb. 3581

Smith vs. Villars. Trin.——(7)

Per Cur. In civil actions deft is not of necessity to be joined in recognizance of bail. Thus estoppel may be avoided, even in crim: actions, deft. may on motion be allowed to find bail without joining in recognizance, in which case he will not be concluded.

Cross vs. Bilson Hil 2. Ann. (8)

In replevin, prisal in auter lieu is but matter in abatement, which cannot be pleaded in bar, therefore plea concluded with pet[it]. judicium & retorn, held ill, because in bar at common law.

Ode vs. Norcliffe. Mich. 1. Ann (9

Replication to plea in abatement, ill if without venue. per. Cur.

Haywood vs. Davies & al——(10)

In trespass dft cannot plead in abatemt. tenancy in common with plf. because that may be given in evidence on “not guilty,” but may plead tenancy in common of another with plf, because that will not prove him “not guilty.”

The Court seemed to think that where “an absque hoc” comprises the whole matter generally, as absque tali causa, it may conclude to the Country [sic]; but where it only traverses a particular matter as absque tali warranto &c. it ought to be averred. Co. L. 126.

Presgrave vs Saunders Mich. 2. Ann (12)

“Property in a stranger” may be pleaded either in bar or abatement at the option of dft.

Earl of Banbury vs Wood——(18)

Process of outlawry lies in replevin, by Stat: 25. Ed. 3. c. 17. 1 Inst. 128. b.

No addition ever seen in writ de homine replegiando.

Where any writ or process is founded on a former, it must strictly pursue the former

Holman vs Walden——(15)

To a plea of misnomer traversing the baptismal name, the plf may reply, he was known by the name in the writ: 1 Inst. 3. a. Noy 135.

Lepiot vs Browne——(16)

Addition of Junior necessary to son unless otherwise distinguished from father.

Devise to. AB. where devisor knows not father, good to the son

Lynch vs Hooke 3: Ann. (17)

If feme covert be arrested by wrong name & give bail bond by that name, she is not estopped from pleading misnomer.

Stroud vs Lady Gerrard 5 Ann. (19)

If defendant appear by wrong name, he is estopped to plead misnomer.

Hetherington vs Reynolds 6 Ann. (20)

Debt brot vs dft as feme sole. after appear: & plea, she marries, & then removes suit by Hab. Corp. into B. R. plf. here declares vs dft in Cust: Mars. Marriage at the suing out habeas Corp: pleaded in abatemt. & held good for here proceedings are de novo: but course is to move Court on return of Hab. corp. & they will grant procedendo: for tho’ Hab. corp. be writ of right, yet where ’tis to abate a rightful suit, Court will refuse it.

Mich: 6 Ann. (21.

Ejectmt. deft. died the day before assises began. Upon trial Verd. pro Quer: & motion in arrest of Judgt. Et per. Cur: 1. death of either party before Assises not remd. by Stat: but if after Assises begin, tho’ trial be after death, aliter, Assises being one day in law, & remedl. Stat: being partly expounded. 2. Crt. held in this case, a discretion to arrest Jdgt. or put party to Writ of error, & preferred latter, that the point might be put in issue and tried by Jury.

(Account)

Wilkin vs Wilkin — 2 W & M. (1)

Where there is express promise to account, assumpsit will be as well as account. 1 Inst. 172 and where acts as bailiff he promises to account.

Poulter vs. Cornwall. 5 Ann. (2)

In indeb. ass: for money recd. ad comput. [ad compotum reddendum] necessary to prove breach of trust, and regularly this ought to be laid in declaration, but the omission is aided by verdict.

Action in General

Rogers vs Cook. 4. W. & M. (1)

In one Action plf cannot prosecute both in his own right & that of another—because costs to be recovered are entire & can not be apportioned.

Sr. John Dalston vs Janson. 7 W. III (2)

Contract & tort cannot be joined in same declaration: assumpsit & trover within this rule, Jugt. arrestd. in the case after verdict & entire damages.

Case (3) Johnson vs Long

Plf may have action for continuance of nusance, but not new action for same erection tho’ laid at different days.

Case (4) Pitts vs Gaince & Foresight

Trespass by siezing & detaining ship. Action on case brought by Master. deft pleads that it sd. have been action of Trespass. Holt C.J. The ship was not the master’s but the owners. The Master only declares as a particular officer, and can only recover his particular loss. He might have bro’t Trespas, and as a bailiff declared upon his possession, which is sufficient to maintain Trespass.

(5) Fetter vs Beale

new consequential damages from Assault & Bat: no ground of action after first recovery.

Action sur le case

(1) Payne vs Partridge

Owner cannot let down a ferry and put up a bridge without licence & ad quod dam[num].

Where there is no special damage, no action will lie but there must be information or indictment.

(2) Williams vs Grey [Carey]

Action by Exr. agst. Sheriff for false return in life of Testator held good within Stat: 4 Ed 3. c. 7. for the return was that he had not levied the whole when he had levied the whole goods in a process of Execution, and in such process, the levying of the goods vested a right in the Testator. In mesne process different see Jones 173. Noy 87. Latch 167.2 Popham 187.3

(3) Hicks vs Downling

If assignee of lessee burns the house by negligence, he is liable to lessee, if any residuary interest be at the time in the lessee, because in such case lessee is liable over to lessor; aliter if no such residuary interest.

(4) Tuberville vs Stamp

Case on custom of the realm for negligent keeping fire in clauso suo, per quod it burnt the corn in another’s close. After verdict p. q. obj: custom extends only to fire in house &c. within a man’s own power. Non alloc by Holt & 2 others agst. 1. Judge if a sudden storm had risen, it was evidence which he sd. have shewn. Rast. Ent. 8.

Savil vs. Roberts 10 W. III. (5)

Action for maliciously causing indictmt. of riot, after acquittal by verdict. Judgt. p. q. in C. B. and affirmed in B. R. Et per Cur. 1. in civil actions as the Plf asserts a right or complains of an injury and at common law was amercable pro fals[o]. clam[ore]. [suo] and deft has his costs, bringing the action, not actionable, yet so to say A is bastard & I am heir not actable, aliter, without “I am heir,” so tho’ there is no good ground of action, because ’tis claim of right—yet where the sum is small & latitat be taken for very great sum, or no cause of action and malicious suit, to imprison, for want of bail or to do some special prejudice, case lies, but the special grievance must be shewn, unless the causeless suit be procured by a stranger, and redress be agst. him, where action may be maintained generally. 2 action will lie for causing false & malicious indictment per quod damages ensue to—person as by imprisonment—reputation as by scandal—property as by expence. 3 In 2 first cases of scandal & imprisonment, action will lie tho’ indictmt. be insufficient or ignoramus be found, aliter in the last case of expence. Tho’ action lye it is not to be favored, and therefore if indictmtt. be found by Grand Jury deft need not shew probable cause, plf must prove express malice if ignoramus be retd. where indictt. contains no scandal or there has been no imprisonment, no action; and where scandal or imprisonment, must be evidence of express rancour and malice. N. B. held by Parker C. J. & whole Ct. Hil. 12 Ann. B. R. Jones vs. Gwynn, that this action will lye for damage by expence, as well as by scandal or imprisonment, and as well on insufficient as good indictt.

Robins vs Robins 2 W. III (6)

In case for maliciously holding to bail, declaration ought to set forth the sum due & the process specially, and that the original Suit is determined. see 1. Raymond 503.

Iveson vs Moore 2. W III (7)

Case, declared that he was possessed of a colliery, that there was a high way near, by which he used to convey his coals, that he had a certain quanty ready for sale, that dft dug a colliery near his & to draw away customers &c. stopped up the way &c. so that carriages could not pass to his Colliery, per quod he lost his profits & coals spoiled for want of buyers—non Cul & verd. p. q.

1. Court agreed that there must be special damage to support an action arising from a public nusance.

2. per Tourton & Gould here is special damage & well eno’ set forth, for all have not coal-pits, & that matter subsequent to the per quod is not traversable.

3. Rokesby & Holt C. J. contra. The plf has neither particular right, nor particular injury, the stoppage being common to all subjects, without which he cannot have particular action. again if special damage here, it is not sufficiently set forth, it being not eno’ to say, he lost customers or buyers could not come, without shewing that buyers were coming and were hindered.
The Court being divided, and a former rule to stay judgt. none could be entered et per Cur. if Court had been divided on first motion plf might have entered Jdgt, but now rule must stand ’till dischargd. which cannot be now because Ct. divided. See 1 Raymd. 496 [486]. where it appears that this case by consent of Holt was argued before all the Justices of the Common pleas & Barons of Exchequer, who were all of opinion that the action will lay.

Lane vs. Cotton & al. 12. W III (8)

Case, agst. Postmasters General for exchequer bills lost out of letter delivered at the office at London, to one Breeze, appd. with salary by dfts to receive letters, and on the general issue & special verdt. held that action did not lie by

Turton, Gould & Powys, 1. because office of intelligence not of insurance. 2. Breeze is an officer & is liable. 3 it is impossible the Post master Genl. can secure every thing. 4. Exch[equer]. bills are new things & the office is not a conveyance for treasure.

Holt, C. J. contra. 1. Officer responsible both for himself & deputies whether Trust arise by common law or Statute and he has a reward, which is the reason in case of Inn Keepers & Hoymen. 2. Exchequer bills are proper to be sent, the words being general, “any packets whatever.” 3. if before the act private person had set up post office he had been liable. 4. What is done by the deputy is done by the principal. 5. Tho’ the master be liable Breeze is so also—not as an officer but as a wrong-doer, as Gaoler is as well as Sheriff for voluntary escapes it being in nature of rescue. For negligent escape Sheriff alone liable. 6. The King’s discharge in the Commission may be good as to his revenues, but cannot hinder subject of remedy given by law. See entry of this case 2. Mod: Entr. 108.4

Pantam vs. Isham 13 W. III (9)

Case. Jury found that plf being siezed in fee of 6 Stables let 1 to dft at will, and the rest to other persons for a term of years, yet enduring & that the deft kept his fire so negligently that it burnt the plf’s stables, and also the deft’s and the other five Stables. Agreed 1. no action lies in such case agst. Lessee at will by Tenant in fee, because latter might secure himself by covenant. 2. action would lie by Lessee for years, not because he might not secure himself, but because he is answerable over to his Lessor. 3 No action lay agst. dft for stable he took if fire had ceased there; but if it burns neighbour’s house, he shall have action, for he is stranger & could not secure by covenant, ergo Tenants of 5 other Stables may. 4. that the lessor might bring actions vs the other Lessees and so might they vs tenant at will; & therefore the Lessor sd. have his election, vid: case in 3 Lev. 358.

Ashby vs White & al. 2. Ann (10)

Case, by voter for refusing to receive his vote in election of members for parliament. Gould Powys & Powel agst. Holt adjudged the action not maintainable. This jdgt. was after reversed in H of Lords by a majorty of 50 agst. 16. See S. C. more fully reported 2. Raymd. 938.

Goddard vs Smith 3 Ann. (11)

Case for malicious indictt. of Barratry whereof dft was legitimo modo acquietatus, and upon Trial it appeared he was acquitted only by entry of a nolle prosequi, and whether this wd. maintain the action was made a point for the Ct. who held it insufficient, nollè pros: being discharge for indictt. only not acql. of the crime. Holt was of opinion the Crown might notwithstanding nol. pros: award new process on same indictt.

Action sur le case, sur assumpsit

Sexton vs Miles 1. W & Mary. C. B. (1)

Declaration held ill on demurrer for want of venue, in assumpsit where the consideration was executory, for there the consideration is Traversable.

Thomkins vs Bennet 5 W. III at Nisi. Prius. London coram Treby C J. (2) Indebitatus assumpsit lies for money paid by mistake or deceit, not if paid knowingly on illegal consideration. 2 Lev. 3. 17. 153. 1 Lev. 164. 5. 273. Mod Cases 77.

Hard’s Case 8 W III B. R. (3)—*see (5 following)

Indeb: assump: will lye in no case but where debt lies, therefore not upon a wager, nor mutual assumpsit, nor vs acceptor of bill of Exchange, his acceptance being *collateral engagemt. only. 1. Vent. 152 [153]. 2 Salk. 241.

9 W. III at Nisi Prius cor. Holt C. J. (4)

Indeb: assump. vs A & B & jdgt vs A by default. B. plead. paymt. & issue thereupon. Et per Holt no finding on this issue can discharge A for he has confessed the whole.

Butcher vs Andrews W. III (5)

If on Engagement of dft, to pay a sum fixed, the plf owes a greater sum, and verdict be for sum less than engagement, declaration not helped by verdict; for non constat to the Ct. but that the money has not been previously paid, and that verdt. was for so much over & above.

Indeb: assump: will not lie agst. B for money lent at his request to A, the engagemt. being collateral

Harrison vs Cage & ux. 10 W. III (6)

On breach of promise to marry, action lies for man as well as woman, also for scandalous words per quod he lost his marriage. S.C. 1 Raymd 386.

Palmer vs Stavely 13. W. III (7)

Insensible & repugnant words to be rejected after verdict.

Cutting vs. Williams 1. Ann. (8)

Held by Court 1. Cannot declare on promissory note on custom of merchants as a bill of exchange. 2 cannot reverse jdgt in part, and affirm in part, viz. as to one Count, & affirm as to other; unless where judgt on one is by common law & the other by Stat: where the judgmt. at common law will remain compleat without the other. Jacob & Mills case denied. see Hob. 6.

Meredith vs Short. 1 Ann (9)

Assumpsit, plf dclares a delivery of a note for £50 from J. S. to dft in consideration of which deft promises to pay plf £50. After verdt for plf moved in arrest of jdgt that it is not a gift, but a delivery and that note was of no value, because it did not appear to be for a consideration. Holt, C. J. The delivery shall be intended absolute and indefinite, and it is evidence of a debt, & therefore parting with it is a good consideration; and the consideration need not have been proved at the Trial as I conceive vide 3. Cro. 155. 170 contra

Herbert vs. Borstow. 2 Ann (11)

delivery in consideration of being paid the value, is a sale.

Jacob vs Allen 2. Ann. at Guildhall coram Trevor C. J. (14)

Admtr. makes attorney to receive Testator’s debts. Attorney receives money & pay’s to admtr. Will appears & admtion revoked. Exr brings indeb: assump: vs Attorney for money had & recd. to his use. Objd. 1. that dft acted only as attorney to him who was in fact admr. 2. that it ought to be a special assumpsit, & not a general indebitatus, for the money being recd. expressly to the use of another, this express intent hinders the raising an implied contract to a third person: Sed non alloc. for the admintion. being void, the attorney acted without authority, & then nothing hinders the raising the implied contract.

Birkmyr vs Darnell. 3. Ann (15)

If deft comes only in aid of another, as “if he does not pay I will” it is a collateral promise: and remedy agst. both, if he undertake entirely for himself, as, “let him have the goods, & I will see you paid” he shall be intended the buyer & the other as his servant.

Deane vs Crane. 3. Ann. (16)

declaration on promise to testator. Excr. can not give in evidence promise to himself on act of limitation being pleaded. per Cur. he should have declared accordingly.

Love’s Case 5 Ann (17)

If Sheriff restore goods taken on fi. fa. on promise of stranger to pay him the debt, it is good consideration for assumpsit vs. stranger, for per Cur. it is in effect a Sale of goods.

Hasser vs Wallis. 6. Ann (18)

Plf marries dft who had another wife. deft. receives rents of plf’s tenants. Indeb. ass. lies vs dft for rent money recd. to her use and recovery discharges tenants.

Heyling vs Hastings 10 W. III. (19

Indeb: ass. by Exr. for debt to Testator, act of limition. pleaded. Evidence that the goods were sold above six years before, but that dft. within six years on request denied the contract, but said “prove it & I will pay you.” This conditional promise waives the benefit of the act as much as express promise, on proof of delivery of the goods at any time per Holt & 10 Judgs.

Roe vs. Haugh 9 W. III in Cam. Scacc. (20)

A was indebted to B £20. deft. promised that in consideration B wd. accept him instead of A. he wd. pay the debt. B’s Extr. brought assump. vs dft averring the acceptance of him by B. instead of A, without saying that A was discharged. verd. & jdgt p. q. and affirmed in Cam: Scacc. by 4 Judges, viz Treby, Lechmere, Nevil & Powys, agst. 3. viz Ward Powell & Blencoe. It was held that it being after verdt. they ought to do what they could to help it, and ergo they wd. not take it as the promise of dft only, because as such it cd. not bind except A was discharged, but as a mutual promise involving discharge of A, by which means if B sue A, action of debt wd. lie agst. him for breach of promise. Mod. cases. 77. Hob. 216. 1 Vent: 6 3. Cro. 619. Raym. 302.

Action[s] popular.

Kirkam vs. Wheely. 7. W III (1)

1. Venit et dicit held sufficient on demurrer, without “defence.”

2. privilege not traversable, but matter of law.

3. prosecutors qui tam are looked on as common informers

note. where Stat: gives penalty to a stranger & he sues, he is a common informer & shall pay costs upon 18 Eliz. where to party grieved he is not common informer & shall not pay costs on sd. Stat: 1 Anderson 116.5 3. Cro. 177.

Admiralty

Opy vs. Child & al. 5. W. & M. (1)

1. for convenience of Seamen Admiralty may hold plea for Seamens wages due by parol after usual manner.

2. prohibition from B. R. will lie, if wages be due by deed or special agreement.

Sir Josiah Child & al vs. Sands in error 5. W. & M. (2)

Plf. Sands declared in C. B. agst. Sir. J. C & for causing a proceeding in Admiralty agst. his ship lying in fra corp[us]. com[itatus]. laden with goods whereof he had ⅕ part, per quod he lost his voyage to East Indies. Verd & Judgt. p. q. & in error B. R. held—that tho’ there be but one act & one offence, every several person injured might have action for damages, as if H. drives distress of 3 cattle above 3 miles contrary to 1 & 2 P. M. [Philip and Mary] c. 12. & the cattle belong to 3 distinct persons, H shall forfeit 3 times the penalty—that Child was a prosecutor within 4 Hen. 4 tho’ no suit was in his name, & he only procured the proceeding in Admty. by obtaining an order from Council for that purpose, but mere attorney wd. not be prosecutor within the Stat: that all 5 joint owners ought to have joined in the action, but as not pleaded in abatement, will now, for it does not appear but the other four are dead, and where jointenancy is pleaded in abatement, the plea is ill without averment of the life of the other joint tenant. 1 Saunders 29. Note whether These were jointenants or tenants in common the action survives—Judgt affirmed.

Broome’s Case. 9 W. III (3)

Where admiralty has jurisdiction, their sentence cannot be gainsaid in Ct. of Common law, untill it be repealed on appeal.

Administrator.

Hills vs. Mills. 3. W. & M. (1)

If Executor become bankrupt, Spiritual Court cannot revoke probate of Will & grant administration aliter If Exr become non compos [mentis], or if admtor become bankrupt.

Fawtry vs Fawtry. 3 W. & M. (2)

1. Administration of intestate’s goods may be granted to wife or brother, or part to one part to t’other. 21 H. 8. c. 5.

2. In such case wife shall have her distributive share.

3. Where wife dies, administration must be granted to husband by 31. Ed. 3.

4. On a bond administration cannot be divided.

Manning vs. Napp. 4 W & M. (3)

H died intestate without children or kindred. The plf. appd. by King to take letters of admtion. The dft. tho’ he knew there was no kindred, entered caveats which put plf to great charge. Plf brings case for malicious caveats, upon demurrer Court doubted whether action wd. Lie … because till administration re propertys plf had neither jus in re, nec ad rem. as next of kin wd. have had, and that it was of respect not of right that the King’s patentee was admitted. 9. Co. Hensloe’s case denied by the Court.

Age.

Anon. 3 Ann.

It has been adjd. that if one be born the first of february at eleven at night, & the last of Jany. in his 21. year at one in the morning he makes his will of lands & dies, he was of age, & will good. per Holt C. J. 2 Mod. 215. 6 Mod. 260.

Amendment

Anon. 5. W. III (1)

When a decln. is come to be in parchment, Ct. can mend no farther than is allowable by the Statutes of amendt. for ’tis then of record; but while ’tis in paper Ct. may amend at pleasure. 5. Mod. 17.

Rex vs Harris et al. 6. W. III. (3)

Information of perjury amended after plea pleaded. per Holt. after a record has been sealed up, I have known it amended, even just as it was going to be tried. 1 Lev. 189. 3 Lev. 347. 1 Lev. 184.

Rex vs Keat 8 & 9 W. III (4.

A general or special verdt. may be amended by notes of Clk of Assize, in civil, not in criminal cases. 1 Ro Rep. 82. Bolds case (19) A special verdt. amended by notes of Counsel in cause after error brought. 3 Cro. 149. 150. Cro. Car. 145. 338. 4 Co. 52. 2 C[r]o. 185.

Bishop of Worcester’s case 8. W. III. (5)

Ejectmt. vs 7. dfs. who confess lease, entry & ouster & plead to issue. The plea roll, venire, distringas & jurata were all right. the issue in Nis: pri. roll was between plf & 5 dfs only, which was tried & verdt. p. q.—it was amended, by adding the 2 defts. because the title of the Lessor, on which the issue depended, was not altered by the amendt. 2 Mod. 316.

Puleston vs. Warburton & al’ 9 W III (6)

Ejectmt. 1697 laid in decln. instead of 1696. verd. p. q. not amendable because it would be another title.

Thomson vs Crocker 12 W. III (9)

Writ of error recited Jdgt in curia of the King, when in the record it was Regis & Reginœ. variance not amendable. 1. it wd. make new writ. 2dly. The 8 H. 6. authorises amendmt. only precedent to the Jdgt. 3dly. writ of Error is commission to Ct. & they cannot amend their own Commission.

Anon. 12. W. III (10)

Information of forgery amended in 10 places, where it made no alteration in the fact, & that without costs or imparlance.

Cox vs Wilbraham 13. W. III (11)

Decln cannot be amended on demurrer, after entry on the roll by Stat: 14. Ed. 3. for it may be the cause of the demurrer & dft wd. be ensnared. on plea to the right or in abatemt. decln would be amendable.

Vavasor vs. Baile 6. Ann. (17)

Mistake in Scire facias on judgt., of plf’s name for df’s not amendable, for non constat to Ct. but there may be such a judgment.

Amerciaments & fines

Queen vs Templeman 1 Ann. (6)

Where a man confesses an indictmt. he may procure affidavits to prove son assault upon the prosecutor in mitigation of the fine, otherwise where he is found guilty: for upon confession the entry is only, non vult contendere cum dom: reg: & ponit se in gratiam Curix.

Judgmt for a fine may be given in defendt’s absence, on the undertaking of a stranger, not for a corporal punishment, for there is capias pro fine, but no process to put a man on pillory

Apportionment and division

Countess of Plymouth vs Throgmorton, in error. 3 Jac. II. (1)

£75 was demanded for ¾ of a year’s service under promise of £100 per annum for receiving rents. Jgmt p. q. in C. B. by nil dic[it]. In Error Judgt reversed, It being argued by Sergeant Holt that it is in nature of a condition precedent. If I lease for years, reserving £20 yearly rent, & at end of ¾ be evicted—Lessor shall have no rent, for rent shall never be apportioned in point of time, so of wages annuity and debt. Annua nec debitum judex not separat. Co. Litt: 150.a

Apprentice

Rex vs Johnson. 13. W III (6)

xxxx and now Holt delivered the Resolution of the Court that the Order was good. If it had been a new question, he sd. have held otherwise; but after so many orders affirmed in this Court, ’tis too late to unsettle it now.

Inter Inhabitants Paroch. Castor & Aicles 13. W. III. (7)

Assignment may be good by way of covenant, where it is not so to pass an interest, or assignmt. of an apprentice. 3 Keb. 304.

Barber vs Dennis 2. Ann. (8)

Gains of apprentice belong to Master who may have Trover for them, & that whether apprentice by law or de facto only.

Arbitrement

Anon. 10. W III. (4)

Award made by rule of Court shall not be set aside, unless for practice with the arbitrators, or some irregularity, as want of notice of the meeting. Also you shall not take exceptions to the formality of it, but shall perform it. per Holt, C. J. Far. 8. Jon. 179.

Glover vs Barrie 10 W. III (5)

Award that A sd. pay B £50, & beg B’s pardon in such manner and place as B sd. appt. held void as to the latter part: for the arbitrator was to determine & not to make B judge in his own cause, the time & place in this sort of satisfaction, making the most considerable part.

Anon. 12. W. III (6)

Award made under rule of Court will be enforced, as much as if it were part of the rule.

Anon. 2. Ann. (12)

Award made rule of Court. attachment granted for non performance, pending the attachmt. action of debt will lie on the bond to stand to the award, because the party has no satisfaction upon the attacht.

Bird vs Bird. 2 Ann. (13)

Award of money to be paid to a stranger for use of the Mother of the parties held good. Holt C. J. held that a general award of money to a stranger was good for that it sd. be intended that the submittants were some way liable, & the payment for their benefit unless contrary appear

Powel, J. contra. it shall not be so intended, unless it does appear.

Simon vs Gavill 2. Ann. (14)

Award that all suits shall cease, means not that they shall begin anew, but be extinct for ever. Award of a general release of all demands to time of award good to time of submission, void as to residue. Also if a new controversy has happened, which is not to be intended, the non-performer ought by his pleading to set it forth & shew it, vide 3. Lev. 180. contra.

Oates vs Bromil. 3. Ann. (15)

debt on bond, conditioned to perform award, ita quod it be ready to be delivered by such a day. dft pleaded no award. plf replied a parol award, and avers it ready to have been delivered at the day. dft demurred. Jdgmt. for plf.

Winter vs’ Garlick 3. Ann. (16)

Award to pay the costs “of a suit now depending in an inferior Court” bad for uncertainty. To pay such costs as the master shall tax is good; for id certum est quod certum reddi potest.

Knight vs Burton. 3 Ann. (17)

Award that a suit in chancery shall be dismissed shall be intended, a perpetual cesser and not a mere nonsuit; as if a man be to deliver up a bond to be cancelled by such a day & he sue & get jdgmt in mean time, it will be no real performance, tho’ one according to the letter.

Arrest of Judgment

Annon. 2 W III. (2)

Indictment in B. R. was tried 3 days before end of term. Jdgt. entered the same term, so that dft had not 4 days for motion in arrest of Jdgt. Et per Holt if there be 4 days & more between Trial & end of term Jdgt ought not to be entered within 4 days; but if distringas be returnable within term & the party is tried within 2 or 3 days of end of it, Jdg’t shall be entered.

Arrest of Jdgt is—1. either for matter appearing by the record itself, which will render the Jdgmt. erroneous & reversible; or 2. some foreign matter suggested to Ct which proves the writ is abated, for it is not eno’ to prove the writ abateable only. N. B. the old course of seeking arrest of Jdgt was to assign exceptions by way of plea. Co. Ent. 50. a et alibi. This differed from moving in arrest of Jdgt which was done by one as amicus curiœ, where the party was out of Court. Co. Ent. 295. b.

The Queen vs Darby. (3)

dft after conviction of subornation of perjury & jdgt entered quod capaitur, pro fine was brought into Ct. on a capias issued, where he offered to move in arrest of Jdgt per Cur. out of time, for that the Jdg’t quod capiatur was a final Jdgt & subsequent entry, only for the certainty of the time. vid Far. 100 where tis said he was at last admitted to move in arrest.

Wood vs. Shepherd. 2. Ann. (4)

Against antient course of the Court to make rule to stay Jdgt, unless the postea be brought in; but the Ct. if probable cause be shewn will order the postea to be brought in. Et per Cur. if one moves in arrest of Jdgt., he ought to give notice to the Clerk in Court of the other side; but the better way is to give a rule upon the postea for bringing it into Court, for that is notice of itself

Arrest de Corps

Wilson vs Tucker 7 W. III (1)

arrest on Sunday void insomuch that false imprisonment will lie for it

Genner vs Sparks

1. Touching essential to arrest. 2. after touching by bailiff house may be broken open, or attachment for contempt, or rescous will lie. 3. retreat is a rescous after touch. 4. holding up a fork when bailiff is within reach to prevent arrest, is evidence of assault.

[Assets.]

Erby vs Erby in Canc. Trin. 1714. (0)

1. it is in the power of the party by confessing jdgt to prefer one Creditor to another.

2. Outlawry being on mesne process, without siezure thereupon does not alter nature of the debt nor create a lien upon land.

3. in Outlawry with siezure thereupon, the debt attaches upon the land & shall be preferred to a jdgt. tho’ prior to the outlawry, the siezure giving the preference.

4. bringing debt upon judgt is no waiver of the lien created by the judgt; because no other remedy after year & day at Common law.

[Assignment.]

Pitcher vs Tovey 3 W III. (2

Lease, wherein Lessee covenanted for himself, his Exrs, and assigns to pay a yearly rent of £10. Exr of Lessee assign’d to dft. agst. whom Covenant is brought by Lessor, who assigned for breach two years rent after assignmt. to dft. dft as to one year’s confessed. as to residue pleaded his assigmt. to H who entered & was possessed. plf demurred. By C. B. held that plea was naught because dft does not shew that he gave notice of assigmt. to plf, or that plf accepted H for his tenant. & there is a privity of Estate, tho’ not of contract between plf & dft. Upon writ of error held contra by B. R. that there was no privity of estate or contract, which failing the plf’s action must fail—and as to the objection that it might be assigned to a beggar, it was Lessors own folly to take the first assignee for his tenant, and not without remedy for he might bring Covent. vs Lessees Exrs., or distrain on the land.

N. B. Kighly’s case Sid. 338. Ray. 162. 2. Keb. 260, denied.

Assize.

Savier vs Lenthall & al’ 1. W. & M. (1)

In assize demandant non-suited because not ready to count instanter on Tenants demand—being fest[inum]: rem[edium]:

Attachment

Forster vs Brunetti 8 W III (1)

Attachment lies for not performing award made upon a rule of Court, but personal demand is necessary. Tho’ the award be not legally good it still lies, aliter if impossible, but the excuse goes to only to so much as is impossible.

Attorney & Solicitor Latuch vs Pasherante 8. W III (2)

Attorney’s Consent binds his Client, tho’ agst. his express instructions.

Anon. 10 & 11 W III. (3 & 4)

per Holt C. J the course of this Court is, where an attorney takes upon him to appears, to look no farther, but proceed as if he had sufficient authority, leaving the party to his action agst. him

On motion to compel an attorney to appear for J. S. held by Ct. that he was not compellable to appear for any one unless he take his fee, or back the warrant, & then they will compel him.

Goring vs Bishop 10 W III (5)

Where writings come to an attorney’s hands in the way of his business as attorney, the Ct. on motion will rule him to deliver them back, where in any other way, or any other account, the party must resort to his action.

Anon. 2 Ann. (7)

An attorney appeared & Jdgt was entered agst. his client, and he had no warrant of Attorney, and the question was whether the Ct. could set aside the Jdgt; Et per Cur: if the attorney be responsible we will not set it aside, for the Jdgt is regular & plf ought not to suffer, if not responsible we will set it aside.

Lamb vs Williams 2 Ann (9)

Remittit dampna may be by attorney. Retraxit must be in propria persona.

Burr vs Atwood 5 Ann. (11)

Warrant of attorney to appear to the principal action is no warrant to appear in the scire facias against the bail.

Attornment. Hudson vs Jones. 5. Ann. (2)

Whatever is traversable, and not traversed, is admitted.

Audita Querela. Langston vs Grant 3 W & M. (1)

Audita Querela is no supersedeas, and if founded on deed, it must be proved before supers: be granted.

Clerk vs Moore 6 W III (2)

Per Cur: where the suit is quia timet, and the party at large the proper process on audita querela is venire and distress infinite, but where the party is in execution he may have either a sci fa or venire.

Anon. 10 & 12 W III (3 & 4.

If an Audita Querela be founded on a record, or the party be in custody, the process is by sci. fa.

If founded on matter of fact, or the party be not in custody by venire.

Where the party has a matter which he might have pleaded to the sci fa in his discharge, and two nihils are returned, and Jdgt agst. him, the Court will relieve him upon motion, without putting him to an Audita Querela; aliter in case a sci faci be returned.

Avowry. Foot’s case 2. W & M. (1)

Replevin for taking of his horse in quodam loc[o]. Deft pleaded that he took in al[io]. loc[o]. unde pet[it]. jud[icium]. de nar[ratio]. predict [prædictus] &c. Et pro Retorn[o]: habend[o]. he makes conuzance under his master’s command for rent arrear; the plf replied in bar of the conuzance & traversed the seizin alledged in the master to which it was demurred. Et pro Cur. the traverse of the place was only in abatemt. & dft did right to make cognuzance pro retorn: habend, for otherwise he cd. not have return & damages: But plf sd. not have traversed the matter of this conuzance, & therefore havg. done so & demurrer joined upon it Holt C. J. held it a discontinuance

Cowne vs Bowles & al. 2 W & M. (2)

Replevin vs 3 dfs who appd. & made conuzance, upon issue & trial plf was nonsuit & Jdgt for 3 dfs; plf brought error, & assigned that 1 of dfs was an infant & yet had appd. by Attorney. Et per Cur. plf shall not assign this for error, because he might have pleaded it in abatemt. to the conuzance, for the avowant or Conuzant is an actor to that purpose, vid 3 Mod. 248. 48. E. 3. 10. 1 Rol. ab. 781.

Butcher vs Porter. 4 W & M. (3.

Replevin. dft pleaded in abat: property in stranger: upon demurrer Ct. res[olve]d. 1. that dft may so plead either in bar or abatemt. 2. that where a collat: matter is pleaded in abat: dft shall not have return without making an avowry, where the plea in abat: is to the point of the action, as property is, shall have return without avowry, for whether the property be in dft or stranger, he ought to have return, because he had the possession which was illegally taken from him by the replevin, when plf had no right.

Anon. 8. W III (4)

In replevin, dft pleaded prisal in auter lieu. Et per Cur: not eno’ he sd. go on & make avowry pro. retorn. habend. yet such avowry is only a suggestion to bring him within Stat of H. 8. for damages; but that being only for particulr. purpose is not traversable.

Pratt vs. Rutlidge. 13. W. III (6)

In replevin, dft avowed, & plft being nonsuit, brought writ of second deliverance, whereupon moved to stay writ of enquiry of damages. Et per Cur. This is a supersedeas to the retorn. habend, but not to writ of enquiry of damages for these damages are not for the thing avowed for, but given by Stat: of 21 H. 8. c. 19. for expense &c of Avowant.

Bail in civil cases. Williams vs Williams 8. W III (3)

A sued B in three actions and he put in 3 bails, plf recovered in all, dft rendered himself, and one of the bails entered an exoneratur on the bail-piece, the rest did not; Et per Cur. The rendering is a discharge in posse as to all; but not complete & actual as to all till exon. entered upon all

Page vs Price 8 W. 3. (4)

Held that in debt vs an Exr. on a judgt suggesting a devastavit, he shall give bail, for there the action is in the debet & detinet & per Holt, C. J. in all cases where a cause comes in by habeas corpus dft shall find special bail, save in the case of Exr., and that this they do in favor to inferior jurisdictions.

Anon. 11 W. III (9)

The merits of a cause shall not be tried in a motion for bail. If in an action of debt on bond, deft says it was by duress or usurious, that will not excuse him from special bail; for Ct. will not put slur on plf’s cause

Anon. 11 W. III (11).

In debt upon a bond to perform covenants, no bail shall be given, but without respect to the breaches and the damages done thereby; but the measure of that shall be taken from the plf’s oath.

Anon. 11 W III. (12)

If bail be put in in one term, and new bail added next term, it is only bail of the latter term.

Anon. 11 W III (13.

Upon non est invent. returned on the capias vs the principal, the Bail’s recognizance is forfeited in strictness of law; but by course of the Court, if the principal be rendered before return of the alias Sci fa. vs bail Ct. will stay proceedings. But instead of a Sci. fa. plf brought debt upon the recognizance, & bail pleaded a render before return of the latitat, i.e. actually sued out & entered. Et per Cur. tho’ this cannot be pleaded, yet plf shall not by this new course prevent the grace of the Court. we will allow a render in this case of action of debt, as well as of Sci. fa. & that at any time before the return of the latitat, and perhaps may enlarge the time. But as there had been pleadings in this case, dft was ordered to pay costs. Mo. Case 3 Keb. Miles vs Bateman dend. per Cur.

Lyell vs Manucapt. Galletly. 12 W III (14)

Jdgt. vs H. and he renders himself before return of the capias, but never gives notice to plf, nor gets bail-piece discharged. plf proceeds to Jdgt vs bail on sci. fa. Ct will not relieve on motion, but put them to Aud: querela.

Genbaldo vs Cognoni 3 Ann. (16).

plf brought action T[respass]A[ssault]B[attery] by bill Midsex with acetiam for £40 & recovered £100. per Holt. Bail not liable even for the £40. for his recognizance is to answer the condemnation; & since that cannot be he is bound to nothing.

Bail in criminal cases

Lord Mohuns case 9. W III (5)

If the man be found guilty of murder by Coroner’s inquest, we sometimes bail him, because he proceeds upon depositions in writing which we may look into, otherwise if found guilty by Grand Jury because Ct. cannot take notice of their evidence which they are by oath to conceal.

Anon. 1 Ann. (9

dft in an indictmt. in BR being bailed on the indt. and also in a civil action then pending in C. B. rendered him self in discharge of his civil bail to the fleet [prison], & thence by habs. Corps. removed himself to BR. where he escaped. Bail to the indictmt. not discharged, for they must take care of him there, & they might have had him committed in discharge of them.

Bailiff. Trevilian vs Pyne (1)

There is a difference between action of Trespass for taking cattle, or goods, or Replevin, and Trespass quare clausum fregit. In quare cl. fregit, if dft justify entry by command, or as bailiff to the freeholder, plf shall not in replication traverse the command, because it wd. admit the freehold not to be in plf which wd be a sufficient bar to his action; But in the first cases, if dft justify as Bailiff to J. S in whom he lays a title to take them, as in distress or other cause, there it may be material to traverse the command or authority: for tho’ J. S had right to take, yet a stranger without authority from him, will be liable; so that both parts of df’s plea in this case must be true, ergo an answer to any part is sufficient.

Bankrupts. Cary vs Crisp. 1 W & M (1) [Newton versus Trigg. Trin. 3 W. & M. B. R. Intr. Mich. 1 Jac. 2. Rot[ulo]. 226.] (4) [Hopkins versus Ellis. Trin. 3 Ann. coram Holt C.J. At Nisi prius at Guildhall.] (6

Indeb. assump. dft pleaded that plaintiff was bankrupt & commission taken out & so all his goods &c. belonged to the Comrs. &c. plf demurred & had Jdgt for till an assignmt. property of the goods is not transferred out of the Bankrupt. Vide Stat. 1 Jac. 1. c 15 § 13.

Innkeeper not within the case of bankrupts

If H commits a plain act of bankruptcy, as keeping house &c tho’ he after goes abroad & is a great dealer yet that will not purge his bankrupcy: but if the act was doubtful, going abroad &c will be evidenced to explain the intent of the act. Also if after plain act of bankruptcy, he pay off or compound with his creditors, he is a new man.

Resolutions of the Judges upon Stat. 4 & 5. Ann.

c. 17. Decr. 3 1706 (0)

3dly. that the act havg. empowered the Judges to determine prout, &c., there is by implication a power given them to examine witnesses vivá voce, and that the said method be taken where witnesses are to be had; but where there are no witnesses, that copies of affidavits filed in chancery & sworn before a master extraordinary, be recd. & read; & that affidavits taken before the Judges to whom the matter is referred may be read.

4thly. That the Judges make out summons for witnesses.

Bargain and sale of goods. Callonel vs Briggs
coram Holt at Ni. Pri. (1)

An agreement was, that the dft. sd. pay so much money, 6 months after bargain, plf transferring so much stock. The plf at same time gave note to dft to transfer stock, the dft paying &c. Et per Holt C. J. if either party wd. sue upon this agreement, the plf must prove a transfer or tender, the dft paymt. or tender: for transferring in first bargain was a condition precedent, & tho’ there be mutual promises, yet if one thing be the consideration of the other, there a performance is necessary to be averred, unless a certain day be appointed for performance: ergo he obliged plf to prove a transfer or a tender or a tender & refusal within the 6 months.

Langfort vs Administratrix of Tiler 3 Ann. cor. Holt C. J. at Ni pri. (2)

dft, who was admtix. to her late husband, used to deal in tea in his lifetime, and bought 4 tubs of the plf, 1 of which she pd. for, leaving £50 in earnest for the other three, & Holt C. J. ruled 1. that the husband was liable upon wifes contract because they cohabited. 2. that notwithstanding the earnest, the money must be pd. on fetching away the goods, because no other time for paymt. is appointed. 3. that earnest only binds the bargain & gives a right to demand, but then a demand without the money is void. 4. that after earnest given, the Vendor cannot sell to another without default in Vendee; & therefore if vendee does not come & pay & take away in convenient time, the vendor ought to go & request him, and then if he does not come, pay & take away in convenient time, the agreemt. is dissolved & the vendor may sell to any other person.

Baron and feme. Nelthrop & Ux. vs Anderson 4 W & M. (1)

In trover by Bar & fem. plfs declare quod cum possession[at]. fuerunt the dft converted ad damp. [damnum] ipsorum; held naught after verdict, for possn. Of wife is possn. of husband & so is the property, so that conversion cannot be to damage of wife but of husband only NB so is trespass for taking goods Far. 105. But if the trover was before & conversion after they may or may not join 1 Vent 260. 1 Sid. 172

Buckley vs Collier 4 W & M (2)

Baron & feme declared ad damnum ipsorum for work done by feme during coverture. On demurrer Jdgt for dft. If there had been express promise to wife, & to that husband had assented as by bringing action, it wd. have been within Burchets case.

Carpenter vs Faustin 7 W. III. (3)

Action vs Baron & fem. for battery by feme. the husband was at the time in B. R. prison, and the plf delivered to Turnkey a declaration vs Baron & fem. for this battery; & upon rules given to plead, Jdgt. was entered by Nil dicit agst. both, and the wife taken in execution. It was moved that this was irregular: for that upon delivery of declaration, the husbd. sd. have filed common bail for him & his wife, or sd. have made an attorney for him & his wife who sd. have appd. for them; Et per Holt C. J. the plf sd. have sued out process vs husbd & wife & the Sheriff retd. non est invents. for him & a cepi corpus for her & then on common bail filed, Jdgt might be vs both. Obj: if process vs both & non est invents. for baron & cepi as to fem. she shall be Dischargd. 2 Cro. 445. per Holt, no, shall not but upon common bail filed, & then new process shall lie vs baron with idem dies to the wife 1. Mod. 8. accord &c. because no bail was entered for wife Jdgt was set aside. If an action be brought vs husband, and wife and the husband is arrested, he must put in bail for both, but if one bring action vs husband only he cannot declare vs both.

Woodyer vs Gresham 9 W. III (7)

Feme sole recovers Jdgt., then marries, then husband & she sue sci fa and have award of execution, then dies before executed. Per Holt C. J. the award survives to husband—so if Jdgt be recovered vs feme sole, who then marries, and a sci fa vs both Jdgt. vs both, and then wife die, & after her death, he is on new Sci fa vs heirs chargeable.

Warr vs Huntly 2 Ann Cor. Holt. J. C. [C. J.]at Nis pri. (11)

An ordinary working man married woman of like condition. After cohabiting some time he left her, and during his absence, she worked, and on action brought for her diet, held that her earnings sd go to her maintenance.

Robinson vs Greinold 3 Ann. cor Holt C. J. at Ni pri. (13.

If a husband cohabits with a wife, be she ever so lewd, or runs away from her, or turns her away from him, he is bound to find her necessaries & pay for them: But if she goes away from him, as soon as such separation becomes notorious, whoever credits her, does it at his peril, but if husband receive her again he makes himself liable; as at common law elopemt. forfeits dower, yet right of dower revives on reception by husband.

Haydon vs Gould. 9 Ann. at the Court of Delegates (14.

Marriage by mere layman & cohabitation, will not entitle man to administration to wife: quere [quære] as to the woman & issue.

Bastard. Pride vs Earls of Bath & Mountague 6 W III (1)

Held by Court that the rule—quod justum non est aliquem post mortem facere bastard, extends only to the case of Bastard eigne & mulier puisne.

Regina vs Murrey 3 Ann. (5)

The question was, if the husband be ultra mare, & during the time the wife be got with child, whether it be a bastard within 18. El. c. 3? Et per Cur. if the husband was out of the 4 seas, during all the time of the going with child, it is a bastard, otherwise not.

Inter Paroch: St. George & St. Margaret’s 5 Ann. (7)

per Cur. when a woman is separated from husband by divorce a mensa et thoro, her children during the separation, are bastards, for we will intend obedience to the sentence till contrary be shewn: but if Baron & feme without sentence part & live separate, the children shall be taken legitimate, till contrary be shewn, for access shall be intended, but if special verdict find no access, they are bastards.

Bills of Exchange Clerk vs Mundal 3 W & M
cor Holt C. J. at Ni pri (1).

Clerk vs Mundal 3 W & M cor Holt C. J. at Ni pri (1).

A having a bill of exchange payable to him, and owing B a sum of money, indorses & sends it to B. on assump. afterwds. brought by B vs A, A gave in evidence the bill indorsed to B and that it had lain so long in his hands after payable, & that he reckoned it as money paid; but it was disallowed; for a bill shall never go in discharge of a precedent debt, except it be part of the contract that it sd. do so; and if part so recd. it shall only discharge so much of the old debt. But where a bill is given in satisfaction, the bill is payment, tho’ the bill be never paid.

Hodges vs Steward 3 W & M (2)

In case brought on inland bill of exchange by indorsee vs drawer, the following points were resolved, viz

1. difference to be taken between bill payable to J. S. or bearer, and to J. S or order; for the first is not assignable by the contract so as to make the drawer liable to indorsee; the effect of the contract being only to discharge to drawee, if he pays to bearer, whether bearer comes to it by trover, theft or otherwise in 2d. case, the bill is expressly assignable, and the drawer liable to action of Indorsee.

2. The assignment of a bill payable to J. S. or bearer, will not charge drawer with action, yet it charges Indorser.

3. to object: that there was no averment of dft’s being merchant, per Cur. the drawing the bill, a sufficient merchandizing to this purpose. see 2. Vent. 295. 310.

4–5. That a general indeb: assump. will not lie on a bill of exchange for want of consideration; it being only evidence of a promise to pay, which is nudum pactum. ergo there must be either specl. action on custom of merchants, or genl. indeb. ass⟨ump.⟩ drawn for money recd to his use

Clarks vs Pigot 10 W. III (4)

C havg. bill of exch[ange]. payable to him or order, puts his name upon it, leaving vacant space above & sends it to J. S his friend who got it accepted. On indeb. ass. by C. vs acceptor, it was objd. that the property was transferred to J. S. Et per Holt C J. J. S. had it in his power to act either as servant, or by filling up the blank, as assignee, which being omitted the first election is presumed.

Anon. 10 W. III cor. Hol. C. J. at Ni pri (5) [Anonymous. Mich. 10 Will. 3.
coram Holt C.J. At Nisi prius at Guildhall.] (6)

per Holt, C. J. A may have trover vs stranger finding bank-bill payable to A or bearer, tho’ paymt. to him wd. have discharged the bank, but not as assignee of stranger, the course of trade creating property in assignee.

on Bill of exchange indorser not liable, till endeavor by indorsee to find out & demand of drawer, indorser being warrantor only; and such endeavour must be set forth in the declaration

Lambert vs Pack. 11 W III cor. Holt C. J. at Ni pri. (9)

In case brought on bill of exch[ange]. vs indorser, it was ruled by Holt upon evidence,

1. that drawer’s hand need not be proven, the indorser being liable tho’ the bill be forged.

2. the plf must prove demand on drawer, or drawee, & refusal to pay, or else that he sought & cd. not find him.

3. that this was done in convenient time, of which Jury must determine.

4. it is a question whether notice must be given or no, but ’tis fair to give it.

5. the demand must be subsequent to the indorsement.

6. if a man indorse his name on the bill blank, indorsee may use it as he will, either an acquittance, or assignment of the bill.

7. in cases of bills purchased at discount, the difference is, if it be payable to A or bearer, it is an absolute purchase; but if to A or order, the indorser must warrant, as tho’ no discount.

Butler vs Crips 2. Ann. (16)

per Holt C. J. “pay to me or my order” is a bill of exch[ange]: whereby only a bill can be made without intervention of 3d. person.

Borough vs Perkins 2 Ann. (17)

per Holt C. J. 1. In inland as well as foreign bills of exchange the payee must give convenient notice of non-payment to drawer;

2. a protest on a foreign bill was part of its constitution, on inland bills protest was not necessary at common law.

Buckley vs Cambell. 7. Ann. (18)

plf declared on bill of exchange drawn at Amsterdam & payble. at London, without shewing what the usances were & Jdgt. pro. Dft. because Ct. cannot take notice of foreign usances which vary in different places.

Hill & al’ vs Lewis (19)

per Holt C. J. 1. Goldsmith’s bills are governed by same laws & customs as other bills.

2. every indorsement is a new bill, & all & every the indorsers liable as a new drawer.

3. with this restriction that the indorsee will receive it of the first drawer if he can.

4. In case of foreign bills drawee has 3 days to pay them in, & indorsee need not within them demand paymt.

5. it seems the same time ought to be allowed for inland bills, tho’ ’twas urged less time proper, as drawee expectd. advice from drawer.

6. What is convenient time must be left to jury, according to usage in such cases upon all circumstances.

7. bill without the words “or order” not assignable by indorsemt. to charge drawn to indorsee; but good as to indorser & indorsee

8. verdict may be taken on any Count in the declaration to which evidence is applicable

Harry vs Perrit. 9 Ann. (20)

In action on promissory note vs 2d. indorser plf declared without averring demand on drawer or first indorser and this held good on motion in arrest of Jdgt. for indorser charges himself as original drawer of the bill.

Breach in actions of debt, covenant, case &c

Coleman vs Sherwin 1 W & M (1)

In covenant, plf declared, that dft & J. S. demised to him for 7 years, virtute cujus he entred & was possessed, & that dft and A by his command, entered upon plf: and that neither dft nor J. S. had or ought to have demised the premises but at the time of the demise, R was seized in fee. dft pleaded that J. S. was seized & had right to demise, absque hoc, that R was siezed &c and absque hoc, that dft entered & kept him out, plf demurred. Et per Cur.

1. there being no express covenant, the action is founded on Covt. in law implied in word “demiserunt,[”] and as the interest granted by that word is joint; so is the covt. imported by it, & so ought this action to have been, as to the breach, of their being not seised at the time of the demise, & cannot be maintained vs dft alone.

2. as to the other breach by entry, the action is well eno’ vs dft only, for in construction each did demise, & it is a several covenant as to their own subsequent acts.

3. As the plf might well assign several breaches, the dft might as well pursue & traverse them. but Jdgt. for dft. because action was not vs both Lessors, and plea was good. S. C. Shower 79.

Meredith vs Alleyn. 2. W & M. (2)

debt on bottomry bond. dft craved oyer and condition was, that if such a ship returned by such a time, & gave account of profits, then &c. dft pleaded ship lost & did not return, plf replied ship not lost, et hoc petit quod inquirur, &c. dft demurred, for that no breach was assigned in replication, relying on 1 Saund. 102 But Court gave jdgt p. q. & per Holt 1. In all cases (that of bond to perform award excepted) if dft pleads a special matter that admits and excuses a non-performances the plf need only answer & falsify the special matter alledged, the non-performance being admitted.

2. If dft pleads performance of condition, tho’ not well pleaded, plf in his replication must shew breach, else he has not cause of action.

3. the reason of excepting case of award is single; it is because, tho an award be made, yet it may be void in whole or in part, ergo plf must not only shew the award, that Ct may see there was one, but also set forth the breach, that it may also appear the non-performance was of a good & not of a void part, in which it need not be performed. 2. Cro. 472.

4. But if dft pleads non submisit & so force plf to issue, there no breach must be set out. 1. Sid 290.

Smith vs Sharp. 7 W III (4)

debt for £500 on articles, in C. B Jdgt. by Nil dic[it]. Writ of error in B. R. Assigned for error that whereas dft was to tender a conveyance to plf, his heirs or assigns, the breach assigned was, that dft had not tendered conveyance to plf, & so not pursuant to covenant, vid. 3 Cro. 348. Accord, Sed per Cur. The difference is between doing a thing to a man or his assigns, and by a man or his assigns. In latter case breach must be in disjunctive—“not done by him or his assigns.[”] In 1st case, it is6 sufficient to assign for breach “it was not done to him,” for an assignment sd. be intended to be done to plf himself, & if he assign his interest, then to the assignee, and if he did assign over his interest, that ought to be shewed on the other side. Jdgt affirmd.

Certiorari, Recordari. Anon. 8 W III (4)

A certiorari was to remove an order vs J. S touching foreign salt, which being removed appeared to be an order touching salt (without foreign) & it was held not to be removed, there being no such order. 1 Keb. 165. 1 Syd. 64. 1 Lev. 50. 1 Bulst 1557

Dom: Regina vs Paroch. St. Marys 1. Ann. (10)

On a certiorari to return an order, it was returned, “cujus tenor sequitur in hæc verba,” and [not] que ordo sequitur in hæc verba, and it was quashed for this variance. 1. Syd. 229 &c. 1 Keb. 252.

Sr. Godfrey Knellers case. 5 Ann. (22)

If there be a forcible detainer, and an inquisition taken, and then a certiorari to remove the inquisition, and there is a new forcible detainer, the Justices may notwithstanding the certiorari record the force, but they can not proceed to award restitution: so if after the inquisition & before the certiorari, there had been a forcible detainer, the Justices might have recorded the force; but all proceedings on such inquisition are stopped.

Challenge. Anon. 1 W & M. (1)

On challenge to favor, two of the Jurors were sworn to be Tryers & their oath was, “You shall well & truly try whether A (the juror challenged) stand indifferent between the parties to this issue.”

Rex & Reg: vs. Warrington & al’ 3 W & M. (2)

Where there are 2 Sheriffs & one challenged, writ may be executed by the other, but in name of both, so of 2 coroners. Coroner improper in all cases, except where Sheriff absolutely improper, not if Sheriff die, Coroner cannot execute.

If one Coroner lie challenged8

Anon. (3)

Cooke being indicted for treason, & the Jury called he offered to ask them in order to a challenge, if they had not sd. he was guilty, or would be hanged, Et per Cur. this is good cause of challenge, but must be proved by witnesses, not out of mouth of the Juror. you shall not ask a witness or a juror any question that wd. make a man discover what tends to his shame, crime, infamy or misdemeanor, as whether he has been whipped for larceny, or outlawed &c. In this case the answer wd. charge him with misdemeanor or misbehavior. Et per Powel: J. in a civil cause you may perhaps ask a man if he has not given his opinion before hand on the right, for he might have been an arbitrator. Cooks Trial 21, 28.9

Chancery. Anon 1689. In domo Procerum (1)

A limited an estate to Trustees for paymt. of debts & legacies: Trustees raised the whole money, & the heir prayed the land which was opposed, because Trustees had converted the money to their own use: It was resolved that the heir sd. have the land discharged, and the legatees & creditors sd. take their remedy vs the Trustees.

Best vs Stamford. 4. Ann. in Canc. (2)

Feme sole seised in fee, upon her marriage with A makes a lease to Trustees for 100 years, in trust for husband for his life, remainder to herself for life, remainder to issue of that marriage, remainder to the wife, her Exrs & adtrs. husband dies without issue; she marries a 2d. husband & dies: Shall this term be attendant on the inheritance or go to the husband as a term in gross? per Cur. it is a term attendant; because the trust for which it was created is at an end, the first husband being dead without issue, and as for 2d. husband, it cannot be intended he was thought of.

Court of Equity being to enforce agreements, looks upon land agreed to be sold, as money & on money agreed to be laid out in land, to be in fact real estate, which shall descend to the heir.

Anon. 27 Junii 1707. At Ld. Chancellor’s House (3)

Held 1. that if one by will or deed subject his lands to paymt. of his debts, debts barred by Stat. of limitations shall be paid, for they are debts in equity & the Statute hath not extinguished them, tho’ it hath taken away remedy.

2. that if there be a bond debt; & the interest hath outrun the penalty, it shall not carry interest beyond the penalty; for the design of the settlement, was not to increase the debt beyond the sum due, but to give further security: however if devisee or Trustee neglect to pay in a reasonable time, he shall, after such neglect pay intst. beyd. penalty.

Anon. 6 Ann in Canc (4)

Held, that if Trustee or Exr. buy in debts or mortgages for less than is due on them, he shall be allowed the benefit of them; but other creditors, or legatees or whoever has title to surplus. Aliter if one buys in his own right

Cuthbert vs Peacock. 6. Ann. in Canc. (5)

H owed his Niece A £100. by bond, and having 2 other nieces B & C makes his will & bequeaths £300 to A & to B & C £200 each. after that he borrows another £100 of A & being so indebted died; per Cowper Ld. Chancellor; a legacy must be taken to be a gift or gratuity: and there being assets & some proofs of Testator’s greater kindness to A he decreed £300, over & above her debt.

Kemp vs Coleman 6. Ann. (6)

It was laid down as a rule that where a son without privity of father or parent treating the Match, gives bond to refund any part of the portion, it is void.

Grimston vs Lord Bruce & ux. in Canc. 1707. (7)

H devised his lands to J. S & his heirs, on condition to pay £20,000 to heir at law viz £1000 per ann: for first 16 years, & 2000 per ann. after till whole paid. The heir entered for non-payment: of the £1000 per ann. & J. S. brot his bill, & it was objectd. that condition restores the heir & Chany. ought not to aid in disherison of heir. sed per Cowper

1. the entry of heir in this case was only to enforce paymt. of his principal, as where Mortgagee enters; the Court can give him interest for the same from time it became payable & wherever Court can give compensation for breach of condition they can relieve.

York vs Stone & al’ 8 Ann. in Canc. (10)

Held that a mortgage severs a jointenancy, tho’ it does not revoke a will, for jointenancies are odious in Equity, and that it may be for the benefit of Mortgagor that will sd. not be revoked, but not so that jointenancy sd. be in danger of going from his representatives to the survivor.

Duke Hamilton vs Lord Mohun 9. Ann (11)

per Cowper L. C. Wherever parent or Guardian obtain private gain or security for it, from the intended husband on account of marriage with daughter or ward, it shall be set aside in equity—and it is now a settled rule of Equity that if the father on the marriage of his son, take a bond of the son, that son shall pay him so much tis void.

Whitecomb vs Jacob. 9. Ann. in Canc. (13)

If one employs a factor & intrusts him with disposal of merchandise, & the factor does so & receives the money, and then dies owing debts of a higher nature, and it appears by evidence that this money was vested in other goods & remains unpaid, such goods shall be taken as part of merchants estate & not of factor’s; but if the factor have the money, it must first answer superior Creditors; for money has no ear marks to guide equity.

Condition. Thomas vs Howell 4 W & M (1)

devise to daughter, upon condition she sd. marry A on or before she attained 21 years. A died without refusal of the daughter to marry or being required to marry him. After the death of A, daughter being about 17 years of age married J. S. And it was adjudged in C. B & affirmed in B. R, that the condition being rendered impossible by the act of God, was not broken.

Anon 9. W III. C. B (2)

Condition was to make the obligee a lease for life by such a day, or pay him £100. Obligee died before the day. Adjd. that his Extr. sd. have the £100. per Treby C. J. The ground of Laughter’s case denied to be universal.

Pullerton vs Agnew. 2 Ann. (4)

Scire facias vs Bail reciting a recognizance taken in time of the late K. William, wherein condition was, that dft should render his body prisonæ Mar. Marech: Dom. Reginæ nunc. ’Twas urged that the condition was impossible, and ergo the rescognizance single. Et per Holt C. J. where the condition is underwritten or indorsed, there that is only void, and the obligation is single; but where the condition is part of the lien itself & incorporated with it, if the condition be impossible the obligation is void.

Archbishop of Canterbury vs Willis 6 Ann. (5)

Condition to exhibit inventory in Court before such a day. Not eno’ for deft to plead no Ct. was held, he must plead that he was there ready: so an obligation to pay money at such time & place, not eno’ for dft to say obligee came not without saying, that he was there ready.

Constable. Case of the Village of Chorley. 11 W III. (2)

As to the authority of a Constable out of his parish, the C. J. said that if a warrant be directed to him by name, commanding him to execute it, tho’ he is not compellable to go out of his own precinct, yet he may if he will, & shall be justified by the warrant: but if the warrant be directed to all constables &c generally it shall be taken respectively.

Contempt. Toler’s case 12 W III (0)

A, an infant, sued writ of appeal vs B. D was admitted as a prochein amy to A between writ & day on which it was returnable. On request of A & some of his relations, the undersheriff delivered back the writ to them: per Holt C. J. The suit is subject only to the direction of the guardian, & so is the writ; & the infant has no more power out of than in Court—tho ’tis true upon return of writ infant may be nonsuit; and if he appear, he may after appearance be nonsuit, so if infant comes in & disavows suit, the Ct. may discharge the guardian. 1 Ro. 288. & yet that is strange, for to enter retraxit is error. 2. But if Ct. might have done it, what is this to undersheriff. And for the contempt he was fined & committed notwithstanding the offer of his Clk in Court to undertake for the fine.

Continuance & discontinuance. Bisse vs Harcourt 2. W & M (1)

a wrong petit judicium in replication, held a discontinuance. Rast. Ent. 663. b. 681. Co. Ent. 160.

Moore vs Green 6 W & M (3)

Outlawry of plf between action brought and plea pleaded, need not be pleaded, puis darrein continuance, as in common case of Judgt. confessed by Extr. after action brought, which is never so pleaded. Vid. Yelverton. 140.10

Price vs Parker 8. W III (4)

Held that after general verdt. leave cannot be given to discontinue. After special verdt. which is not compleat & final, such leave may be given: but is a great favour

Copyhold & Copyholder. Eastcourt vs Weeks. 10 W III (1) C. B.

per Powell. At common law the heir was entitled to take advantage of any causes of forfeiture in the time of his ancestor except—Waste & Cessavit, Waste he cd. not because it was a personal wrong. Cessavit he cd. not because Tenant has right by the Statute to save himself by tender of arrears which are not due to heir but extrs.

per Treby C. J. Nevil & Blencow. If Tenant for years make lease for a longer term of years than he has, it is no disseisin nor forfeiture, being only a contract between him & Lessee, which does not affect Lessor. Case of Co. L. 53 b where it is said that aunt & niece shall join in action of waste on death of one Co-parcener, sd. not to be warranted by the books cited & to be agst. other authorities.

Smartle vs Penhallow 13. W. III. (7)

If H grants a rent out of his lands to A pur auter vie & A dies, rent shall cease, because there is then no grantee.

Coroner. Rex & Reg: vs Bunney 1 W & M. (0)

If Coroner’s inquest be quashed, he must take a new one super visum corporis; but if a melius inquirend[um]. be granted on a male se gessit of Coroner, the new enquiry must be before the Sheriff or Comissrs., not sup. vis. corp, but upon affidavits, for none but Coroner can inquire sup. vis. corp.

Corporation. The Mayor of Thetford’s case 1 Ann. (4)

Upon a mandamus to Mayor & Commonalty of T. return was made in name of corporation, but without the common seal or signing of the Mayor. Et per Cur. Tho’ a corporation can not do an act in Pais without their common seal, yet they may do an act upon record, and the reason is, because they are estopped by the record to say it is not their act. So here they wd. be estopped to say it is not their return. Neither is the hand of the Mayor necessary, for he is liable in his private capacity without it, and the return made is evidence agst. him unless he shew the contrary.

At common law no officer was bound to sign a return. Stat: of York11 obliges Sheriff to do it, but not coroner, Mayor or other officer.

Costs. Dom. Regina vs Danvers & al. 6 Ann. (5)

In an information vs Danvers & al: one was acquitted & rest found guilty at Assizes, & the Judge did not certifie probable cause, held that prosecutor was not liable to dft for costs, for before act of W. III. plf never paid costs, if but one dft found guilty.

Covenant. Cole’s case 3 W & M. (1)

H. leases a house, excepting 2 rooms & a free passage to them. Lessee assigns, assignee disturbs Lessor in passage. For the disturbance Lessor brings covenant. Et per. Cur. The action lies. The diversity is this. If disturbance had been in Chamber, ’tis plain no action of Covenant wd. have lain; because it was not demised; Aliter where Lessee agrees to let Lessor have a thing out of demised premises, as a way, common, or other profit apprendre, there Covt. lies for disturbance; and this covt. goes with tenement & binds assignee.

Griffith vs Harrison 5 W & M. (2)

Action brought by plf, an Exr, on a covenant in an assignmt. of a lease, for quiet enjoyment, free & clearly discharged or otherwise indemnified from all arrears of rent, &c, & plf assigned as breach that so much rent was in arrear: the dft to part pleaded paymt. to lessor, & to the rest, that he left money in hands of plf, ca intentione quod solveret, to the lessor. & upon demurrer, objectd. that plea was not good, because intention not traversable. Holt C. J. contra. In some cases the intention is traversable, as if A be indebted to B by obligation, & by simple contract, & pays money to B the intention to which debt it sd. be applied is traversable; And the Court inclined that this plea was good but held clearly, that if it had been reliquit ad solvendum it had been good, and that non reliquit modo et forma had been a good traverse: But Ct. took exception to the assignment of the breach, for that plf did not shew a disturbance in the enjoyment, or special damnification, without which rent being behind is not a breach of covenant, Tollard’s case 1 Ro. Abr. 433. & took this diversity; viz. where the counterbond or covenant is given to save harmless from a penal bond before the condition broken, there if the penal sum be not paid at the day, and so the condition not preserved, the party to be saved harmless, does by this become liable to the penalty & so being damnified, the Counterbond is forfeited, but if the counterbond be given after the condition of the obligation be broken, or to save harmless from a single bill without a penalty, there the counterbond cannot be sued without a special damnification. So here, Rent remaining in arrear, & not paid is not a damage, unless the plf be sued or charged; and if paid at any time before such damage incurred, it is sufficient. 4 Mod. 249. Sav. 9112

Green vs Horne 6 W & M. (3)

In covenant. per Curia 1. plf cannot set forth a matter of fact in his declaration not contained in the deed itself so as to alter the case; therefore all such matter of fact so alledged or averred is immaterial. 8 Rep. 151.13

                    2. Tho’ covent. may be brought on deed poll, plf must be named in the deed. 1 Rol. Abr. 517.

Grescot vs Green 12. W III (6)

Lessee covenanted to rebuild & finish a house within such a time, and after the time expired Lessee assigned over the premisses, the house not being built & finished, and per Holt C. J. this covenant shall not bind assignee; aliter if broke after assignmt. as if Lessee had assigned before the time.

Courts & jurisdictions inferior. Lucking vs Denning (5)

Case vs officer for escape of one in custody by process of Sheriffs Court in London on debt on bond sued there; & upon non cul. it appeared that bond was made out of jurisdiction of Court; & thereupon objectd. that the proceeding was coram non Judice & all void, & the Officer, a Trespasser. Citing 2. Mod. 30. 196. Stat: Westm 1. c. 35 &c.14

Et per Cur. 1. Where an inferior jurisdiction is confined to persons, if it appears on the face of the declaration, that the persons suing are qualified to sue, tho’ in fact they are not; yet if dft does not plead to jurisdiction, but comes in & admits it, he shall be estopped from taking advantage of it afterwards: but if the qualification to sue is not averred in the declaration, all is coram not judice, and Trespass lies vs officer.

2. Where the jurisdiction is confined to particular things, and suit is for something else, all is void & no admission can make it good.

3. Where it is confined to place, as to all contracts arising therein, tho’ the contract arise without, yet the Court may award process, & officer may execute it, unless it appear to him that it arose without, as by date of bond; but if the matter arise without & plf declares within jurisdiction, & dft may pleads to jurisdiction, & if that be overruled, may have a prohibition; But if he waives that & plead to the merits, he is estopped by the averment & his admission to have prohibition or take advantage of want of jurisdiction. The Court cannot know where transitory action arises unless dft. acquaint them Jdgt p. q.

Damages. Cone vs Bowles 2 W & M. (1)

per Cur. All Statutes that give costs are to be taken strictly, as being a kind of penalty. Show. 13. 165. 2 Saund. 212.

Shore vs. Madisten 9 W III (4)

per Cur. where a Stat: gives a sum certain to the party grieved, he shall in consequence have costs, because he had a right of action antecedent to the bringing of the action. But where a sum certain is given to a stranger, as to a prosecutor, aliter.

Jenkins & ux. vs Plume 2. Ann. (6)

Indeb. assump. by husband & wife Extrs. who declared, quod cum dft was indebted to them in £20. as Extrs. of J. S for money had & recd. to their use as Extrs., he promised to pay &c. To this non assump: was pleaded & plfs were non suited at the trial, the question was, shall they pay costs upon 23 H. 8. c. 15.? Et per Cur. Plf shall pay costs, for the rect being since the death of the Testator, if it was by consent of Extr., it was his receipt. On the other hand if it was without his consent, his bringing this action is his consent. As to the naming themselves Extrs., it is only to set forth their right ab origine, yet nevertheless the cause of action arises entirely in his own time. It is only by construction that Extr. is out of sd. Stat: because he is not privy to original cause of action; but in this case, he is privy.

If Testator’s debtor pays to A with Extrs. consent, ’tis assets immediately; if without his consent, & he consent by bringing action & judgmt. thereupon, ’tis assetts immediately without execution. Holt C. J. said, that if goods of Testator be taken & converted before they come to the hands of Extr., he shall not pay costs on Nonsuit in action for the goods, for they were never assets.

Debt. Bellasis vs Burbrick 8. W. III (1)

In debt for rent on a lease at Will, plf must shew the occupancy of Lessee. In de. on lease for years he need not.

Anon. 11 Ann. (3)

Per curiam, debt lies in Marshalsea, or any other Courts, on Jdgts in C B & B R and upon Nul tiel record the issue shall be tried by certiorari & mittimus out of Chancery. The Jdgt being the Gist of the action, quære how that can be alledged to be within the jurisdiction? which is necessary.

Deceit. Risney vs Selby 3 Ann. (3)

Deceit lies for affirming to a purchasor that the rent of the house sold is more than it in fact is, for the value of the rent lies in the private knowledge of land lord & tenant.

Butterfield vs Burroughs 5 Ann (4)

plf declared the dft sold him horse such a day & place, & then & there warranted horse to be sound, whereupon he paid money; & avers horse had but one eye. dft pleaded non warrantiz. verd. p. q. In arrest of Jdgt objd. that warrant extends only to invisible infirmities & want of eye is visible. per Cur. Jury have found the warranty, it must be intended such infirmity since it might be such [illegible]. 2 obj. as it is set forth warranty might be after sale, whereas it ought be part of contract & is always alleged warrantizando vendidit. Sed non alloc. for paymt. was after & that compleated the bargain.

Declaration. Hastrop vs Hastings 4 W & M. (1)

per Cur. dft shall not take advantage of mistakes in declration upon plea in abatemt. but must demur to declaration for that purpose.

West vs Troles 9 W. III (3)

Plf. counted on special promise, and also on quant[um]. meruit, without saying aliæ than those laid in Specl. promise. on non assump. verdt. p. q. movd. in arrest of Jdgt. for dft is twice charged with same thing. Sed non alloc. for they do not appear necessarily to be same, & without necessity Ct. will not intend them so after verdt.

Nevil vs Soper 10 W III (5)

In covenant plf assigned. for breach that apprentice before his time expired & durante tempore quo servivit departed &c. on demur. Jdgt pro def for repugnancy; for it sd. have been durante tempore quo servire debuit.

Tilsden vs Palfriman (5)

per Cur. the way to charge one in Custody of Mar. Maresh. with an action or an execution is in term-time to file a bill agst. him & deliver a declaration to Turnkey, whereupon he shall lie two terms before discharge even on common bail, in vacation, to make an entry in Marsh[al’s]. book quod remaniat in custod[ia]. ad sectam J. S.

Deeds & Charters Fitch vs Wells 4 Ann. (2)

Upon non est factum found agst. a deed, it may be kept in Court, aliter if on a collateral issue. Not there, it ought not to be cancelled, for Jdgt. may be reversed on writ of Error.

Hill vs Aland 5 Ann. (3)

Where a writing is only evidence, & the action not founded on it, as a note which is evidence on parol contract, dft has no right to copy.

Demurrer. Benbridge vs Day. 3. W & M. (1)

Trover for several things & among the rest de duobus fulcris; dft demurred & Holt C. J refused to give Jdgt quod nil capiat, saying, the plf may take several damages, and release as to this, & then take Jdgt as to the rest.

Carter vs Davies. 3 W & M. (2)

2 Counts. as to 1. dft pleaded non assump. as to 2. in abatemt. plf took issue on non assump. & demurred on plea in abatement quod plac[itum]. præd[ictus]. minus. suff[iens] in leg[e]. exist[it] ad ipsum ab act[tione]. sua præd[ictus]. habend precludendum. Et per Cur. the plf havg. demurred in bar, where the plea is only in abatemt. the suit is thereby discontinued; but issue being joined on the other count, Ct. stayed proceedings on the demurrer, saying, discontinuance wd. be helped by verdict.

Lamplough vs Shortbridge 13 W III (5)

In demurrer for duplicity not eno’ to demur quia duplex est, or duplicem habeat materiam, but must shew wherein.

Anon. 13 W III (6)

If there be demurrer to part & issue on part & Jdgt be given on demur. p. q. he may enter non pros. as to the issue & proceed to writ of enquiry on demurrer, but without a non pros. cannot have writ of enquiry, because on the trial of the issue same Jury will ascertain the damages for the part to which demurrer.

Dockminique vs Davenant. 3 Ann (7)

per. Cur. If dft demur in abatemt. Ct. will yet give final Jdgt, because such demur: cannot be: for if the matter of abatemt. be extrinsic, dft must plead it, if intrinsic Ct. will take notice of it

Departure, Gargrave vs Smith. 2. W & M. C. B (1)

Trespass for breaking house & taking away goods, all justified by distress. plf replied that after distress he converted to his own use. On demurrer held to be no departure, for the abuse makes him trespasser ab initio, & shewing the abuse makes good the Trespass, so it does in this case, for the converting is a trespass or Trover at election, & the matter disclosed in the replication makes good his election, proving it to be as well a trespass as a trover.

Countess of Arran vs Crispe 5 W & M. (2)

Excuse set forth in rejoinder after performance pleaded is a departure.

Primer vs Philips 6 W & M. (3)

varying from something not materially alledged is no departure.

Webley vs Palmer 7 W III (4)

Held per Holt C. J. that if in Trespass dft justify on that day, plf may shew another day with departure that there is difference between Bond & a trespass. If decln. lays date in bond on one day, Repl[ication]: can’t say ’twas on another day: in trespass may depart according to occasion.

Howard vs Jennison, 8 W III. (5)

Action on case for work done brought by Taylor, and 6 promises laid all on 16 of Ocr. dft pled. infra ætat[em]: to all generally. plf repld. as to 2. full age, and as to rest pro necessario vestitu. dft demurd. for repugnancy, as he cd. not be of full age & not so at the same time. Sed per Cur. time is a circumstance no way material nor part of the issue; the plf is not tied to a precise day in his decln., and if dft force him to vary ’tis no departure. Jdgt p. q.

Detinue. Roberts vs Wetherall 8 W III (0)

Adjudged that the subject may bring detinue for goods imported under pain of forfeiting them ½ to King ½ to whoever will inform, sieze, or sue for the same, for bringing the action vests a property in plf.

Devise. Milford vs Smith 5 W & M. (2)

A being seised in fee, by indenture &c in consideration of marriage, covenanted to levy fine to certain uses and no fine was levied. A reciting this deed by his Will devises & confirms all estates given & granted to his son in marriage according to the deed. Res[olve]d. per Cur. that the Will passed such estates as were intended to be conveyed by the deed & fine: for the will had reference to deed & grant here not to be taken strictly, but largely for any agreement. Cro. El. 68. 2 Cro. 148.

Lamb vs. Archer 5 W & M. (3)

H possest of term for years devises his land to A and to the heirs of his body; and if A die without issue, living B then to B. per Cur. this is a good limitation to B, the contingency arising within the compass of a life; denying Child’s & Bayly’s case 2 Cro. 460. Mr. Gould in arguing said a feoffment to right heirs of B was good as a springing use: sed tot[a]. Cur[ia]. contr[a]. because ’tis by way of present limitation; aliter where future, as to heirs of B after his death.

Blisset vs Cranwell & al 6 W & M. C. B. (5)

In Ejectmt. at Assizes case made for the Court viz. A being siezed, devised in these words, “I give & devise to my two sons & their heirs & the longer liver of them, equally to be divided between them & their heirs, after the death of my wife, all that my messuage &c.” Tenancy in common & not jointenancy adjudgd. to be devised by three Judges agst. Powell, the former urging the constructive intent of the Testator; Powell the force of the term survivor which is appropriated to jointenancy, & the danger of suffering latitude of exposition.

Reeve vs Long 6 W & M. (6)

On special verdict case was: J. L. being seised in fee devised lands to his nephew H. L. for life, remainder to first son in tail male, & so on to 2d, 3d son &c. & for default of such issue to R. L. for life with like remainder to his sons, with remainders over. the devisor died. H. L. married, and died without issue, leaving wife enseint with a son. Adjd. by the whole common bench that agst. the posthumous son, and now in Error affirmd. for that the remainder to H. L’s first son being a contingent remainder must take effect during the particular estate of H. L. or eo instante that it determines, and that this was such a dying without issue that instantly the remainder limited over to R. L. vested in him. Note this Jdgt was afterward reversed by H. of Lords agst. the opinion of all the Jdges who blamed the Jdges. at the trial for suffering a Special verdict to be found.

South vs. Alleine 7W & M. (7)

Devise of rents & profits of land to be paid by Extrs., is devise of the land by Rokesby & Eyre agst. Holt, C.J. who said he was not satisfied, and inclined strongly that the Extrs. were Trustees for the devisee.

Scattergood vs Edge 9 W III C. B. (8)

In ejectmt. a special verdt. was found, viz. Robt. Edge devised to trustees for eleven years, and then to first son of A, and the heirs males of his body, and so on to 2d. 3d. &c sons in tail male, provided they the said sons shall take on them my surname, and in case they or their heirs refuse to take my surname or die without issue, then I devise my land to first son of B provided he take my surname, and if he refuse or die without issue, then to the right heirs of the devisor. A had no son at the time of the devise, and died without issue, and B had a son who was living at the time of the devise, who took the surname of the devisor. The whole Court agreed 1st. that the devise to first son of A was not a contingent remainder, the precedent estate being for years; but by way of executory devise. 2dly. that an Executory estate to rise within compass of reasonable time is good. 3dly. that 20, nay 30 years has been thought a reasonable time; so also the compass of a life, or lives as all running at once. 4thly. Blencow J. held the devise to first son of A to be future & therefore good. Powell J. & Treby C J. held that notwithstanding the precdent term for years, the devise to 1st. son of A was an original devise per verba de præsente, and being so to a person not in esse was not good: that, it was not a precedent condition, but part of the limitation of the Estate, and therefore that the devise to 1st. son of B who was in esse at the time was good Jdgt accordingly & affirmed in B. R.

per Powell, J. there are 3 sorts of Executory estates. 1 where devisor parts with whole fee simple, but upon some contingency qualifying the disposition, and limits another fee upon that contingency, this new in law. 1 Inst 18. 2. where he gives a future estate to arise upon a contingency, the fee descending in mean time these are not agst. common law; for by that one might devise that Exrs. sd. sell his land, the fee descending till vendee be in by will. 3. Executory devises of terms which are well settled in Matt. Mannings case: tis dangerous to extend the boundary of these Executory devises. A devise to infant in ventre sa mere, by the better opinions, tho’ various, is not good. I hold it good.

per Treby C. J. Executory devises are either present or future: if present the party must be in esse & capax at the time, or all is void; like a devise to heirs of J. S. who is living, which is a present devise and not like infant in ventre: where future they must arise within the compass of a life. No longer time has yet been allowed, & he was not for prolonging it in favour of inconvenient estates.

Eyres vs Faulkland 9 W III. C. B. (9)

H possessed of a term for 99 years devised his term to A for life, and so on to B & five others successively for life, all seven being now dead the question was, who sd. have the residue of the term? Et per Treby & Powell, the remainders were good; tho’ antiently otherwise; and every devisee in his turn had the whole term in him, during wch. the next in remainder had not an actual remainder, but a possibility of remainder, and the Extr of the devisor a possibility of reverter; for this may be even where no remainder can be limited over; as in a gift to A & his heirs while such a tree stands, here no remainder can be limited over, yet the donor has clearly a possibility of reverter; a fortiori where a remainder may be limited over.

Such remainders were antiently void 1 because an estate for life was a greater estate; 2. because the term included the whole interest, and when devised left nothing to be limited over, afterwards the law altered but a devise to a A in tail, remainder over, is too remote; so if to A & if he die without issue, remainder over.

Popham contra Banfield. 2 Ann. in Canc. (14)

Where a particular estate is expressly devised, a contrary is not to be implied by subsequent words.

Bunter vs Coke, 6. Ann (16)

H devised to his wife all such sums of money, lands tenements and estate whatsoever whereof he sd. at the time of his death be possessed. After making the will H purchased lands of the Custom Gavelkind. And question was whether these lands passed by the devise? per Cur. 1. a devise of things personal is good, tho’ the testator hath them not at the time of his will, because they go to the Extrs., and the legacy passes not by the will but by the assent of Extrs. to whom the will is only directory: but they doubted somewhat of a chattel real, as a lease for years. 2. a devise of lands is not good if testator had nothing in them at time of making his will, as the Stat: only empowers men having lands to devise them. So will of infant & femè covert tho’ disability be removed before death, without republication after its removal. 3. it was admitted that here a republication after the purchase, wd. have passed the lands. 4 it was admitted that if one devise to two & their heirs, and one dies in vita testatoris, the survivor has all, also that if disseisee devises, and after re-enters, the devise is good, because by the entry he was seized ⟨ab i⟩nitio & might bring trespass

Aumble vs Jones 7 Ann. C. B (17)

A. G. was seised in fee, & devised to his daughter for life; after that to A the eldest son of his daughter & his heirs, and for want of such heirs, remainder to the right heirs of J. S. And it was agreed that J. S. being alive when the remainder after limited was to commence, that it was void by that event, if not so by creation. 2 that the device to A was a fee simple, not fee tail, and therefore remainder void in its creation.

Hopewell vs Ackland 8. Ann. C. B. (18)

J. A. being seized of lands in fee, devised an annuity to H in fee. item I devise my manor of B. to A & his heirs item I devise all my lands, tenements & hereditaments to said A. item I devise all my goods & chattels, money & debts, and whatsoever else I have not before disposed of, to the said A. he paying my debts & legacies, and makes him his Extr. The question was what estate A had in the lands, tenements & hereditaments? Et per Trevor C. J. Item is a usual word to introduce new matter, & must not influence precedent or subsequent sentence, unless necessary to give it meaning, & the word hereditament can not be taken to denote the measure or quantity of Estate, because it extends to annuities &c which are not comprized in lands & tenements: but by whatever else he had not before disposed of he held a fee passed, relying on Aleyn 28.15 Wheeler’s case & 2 Vent. Willow’s case, because it cd. not operate on personal estate, that being previously given away, and this he held to be enforced by latter clause paying &c & the annuity in fee.

Thomlinson vs Dighton. 10 Ann. B. R. (19)

Error on a judgt in C. B in ejectmt. on special verdt. viz H seised in fee devises to his wife for her life, and then to be at her disposal to any of her children who shall then be living. Adjugd. that the wife had no estate in fee, but only for life with power to dispose of the inheritance; Et per Parker, the difference is where a power is given with a particular limitation & description of the estate; and where generally, as to Executors to sell or to give, for he that can give or sell in fee, must have in fee. 2. that this was not a power appendant to the estate for life, so as that the destruction of the latter shall destroy the former; nor was in the nature of an emolument to the estate, like a lease for life with power to make lease for 21 years but a collateral and distinct power. Vide 10. H. 8. c 9. 1 Inst. 9. Mo. 57. 3 Lev. 71. 1 Jones 137. Lat. 91. 34. 2. Lev. 104. 1 Mod. 189.

Discent— Lessee of Carter vs Tash 6 W. & M. at Ni Pr. cor. Holt (1)

Held 1. that a discent which tolls entry ought to be an immediate discent; and therefore if a feme disseisoress take husband, and hath issue and dies, and after the husband dies, the discent to the issue does not toll entry, because the interposition of the tenant by the Curtesy does impede it Co. L. 241. b.

2. Coverture to avoid a discent must be continual from the disseisin to the discent; for if feme be sole either at the disseisin, or the discent, or at any intermediate time, her entry is not preserved, because of her opportunity to enter & prevent the discent. 1 Inst. 338, 246, 353.

Clerk vs Smith 10 & 11. W III C. B. (2)

J. S. devised lands to his daughter’s son (who was also his heir) & to his heirs, upon condition that he shd. pay ££200, to such person, out of said lands, as the wife of the devisor sd. appoint by her deed. The grandson entered, and the wife made no appointmt; then the grandson died seized, leaving an heir a parte materna under whom plf claimed, and one a parte paterna under whom dft claimed; the question was whether grandson was in by discent, or by purchase under the will; and adjudgd. by discent, for the devise gives him the same estate, the law would have given him under a possibiility of being charged, which never happened. Gilpins case Cro. Car. 161. denied.

Disseisin, seisin. Smartle vs Williams. 6 W & M. (1)

A man made a mortgage for years to A who without mortgagor’s joining, assigned it to B, who assigned it to C, under whom plf in ejectmt. claimed. By Levinz ’twas objectd. that tho’ A might assign without making entry or joining of Mortgagor, he being tenant at will of A, yet as assignmt. of A determined the tenancy at will, he became tenant at sufferance to B, & his continuance in possession, divested the term & turned it to a right, so that it could not be assignable without Bs entry or joining of Mortgagor: that at least, it was so at election of assignee B, and that B had made his election & brought an ejectmt. vs Mortgagor, which admitted his being out of possession; and they shewed the Record itself, wherein the assignee was Lessor of the plf. Sed per Holt, C. J. upon executing the deed of Mortgage, the Mortgagor, by the covent. to enjoy till default of paymt. is tenant at will, and the assignmts. could only make him tenant at sufferance, But his continuing in possession cd. never make a disseisin nor divesting of the term: otherwise if the mortgagor had died & the heir entered, or Mortgagee had entered & mortgagor had re-entered, for these would have been tortious And as to bringing the ejectmt., it was not to recover the mortgage term, but the actual possession only, there being no other way, & the Ct. will take notice that it is a fictitious proceeding.

Anon. 3 Ann. (2)

per Holt C. J. a bare entry on another without an expulsion, makes such a seisin only that the law will adjudge him in possession that has right, & so are the words, “intravit & fuit inde seisit prout lex postulat,[”] to be understood in special verdicts; but it will not work a disseisin or abatement without an actual expulsion

Distress. Gisbourn vs Hurst. 8. Ann. C. B. (5)

Held. 1. that goods delivered to any person exercising a public Trade or employment, to be carried wrought or managed in the way of his trade or employment, are for that time privileged from distress for rent. 2 that any man undertaking for hire to carry the goods of all persons indifferently is as to this privilege a common carrier; for it is given in respect of the Trader, & not of the Carrier. Cro. El. 596. Noy 68.

Dower. Mordant vs Thorald 2. W & M. (1)

Plf bro’t Sci. fa. as Admtr. of lady T. on jdgt in dower obtained by her vs dft for damages mesne profits &c from death of her husband; which Jdgt was removed from C. B. to BR & affirmed; after which before writ of enquiry, she died. Dft pleaded no damages adjudged in her life-time. plf. demurred. per Cur. plea good, if damages had been fixed by enquiry & Jdgt. thereupon, they had then vested in the intestate as a debt, & gone to Admtr. but she dying before final Jdgt., and when damages were due as satisfaction for an injury, which is in nature of a trespass, it dies with the person.

Burdon vs Burdon (3) W & M. (2)

detainer of charters no plea in dower, after imparlance, for per Cur. he that pleads it must plead that from time of the death of his ancestor, paratus fuit & adhuc paratus exis[t]it to assign dower, if she wd. deliver charters.

Ejectmt. Knyght vs Syms 4 W & M. (1)

Ejectmt. of 5. closes of Arable & pasture called—containing 20 acres in D, upon non cul. verdt. pro plf Jdgt arrested, for want of shewing how much of arable & how much of pasture, and clausum, & adding name does not help.

Whittingham vs Andrews 4 W & M. (2)

Ejectmt. de mineris Carbonum, without shewing the number not good, unless warranted by Custom.

Smartly vs Henden. 8 W III (3)

In ejectmt. for empty houses, lease was sealed on the land, & declaration delivered to the casual ejector, & Jdgt. & execution had; yet because they had not moved for a peremptory rule to plead, the Jdgt was set aside and in such case, there must be affidavit of the sealing of the lease, entry &c.

Anon. 10 W III (5)

In ejectmt. service of declaration on servant & acknowledgmt. of Tenant that he recd. it sufficient.

Underhill vs Durham. 11 W III (6)

In ejectmt Landlord may be joined a dft with Tenant, but is not compellable: if a parliamt. man he may also be made dft, for he cannot be compelled to waive his privilege. Et per Darnell,16 a person privileged cannot be joined to a plf, but may be made dft, for every one ought to be allowed to defend his rights. Quære

Hollingsworth vs Brewster, 11 W. III (7)

per Cur. no body can complain of irregularity in an ejectmt. but tenant in possession or Landlord.

a church is a messuage & may be recovered by that name.

Anon. 12 W III (9)

After a whole term elapsed the plf must give fresh notice, as in case a man lets an assises pass without proceeding.

Fenwick’s case. 1 Ann. (10

The wife of Lessor of plf may be made a dft in ejectmt. but not of right.

Fenwick vs Grosvenor. 2 Ann. (12)

Mr. F. obtained jdgt. on a verdt. in ejectmt. on his demise vs Lady G. upon this L. G. brought error, and pending the writ of Error delivered a declaration in ejctmt. to the tenants in possesion, upon her own demise; and now plf in error moved for the common rule, and it was denied; for per Holt, C. J. no new ejectmt. shall be brought by dft after recovery agst. him till he has quitted the possession, or the tenants have attorned to plf, so as he be in & dft out of possession.

Turner vs Barnaby 2. Ann. (14)

In ejectmt. if at the trial dft will not appear & confess lease entry & ouster, the course is to call the dft, & his attorney, if he be within the rule, & then to call plf himself & non suit him; & then on return of postea, Jdgt will be given agst. the casual ejector, also the master will tax costs upon the rule to confess &c. & if these be demanded & not paid Ct. on affidavit will grant attachmt. vs dft.

Anon. 4 Ann. (15.

The plf in ejectmt. is a mere nominal person, & trustee for lessor, and if he release the action, or if action be brought in his name for mesne profits & he release it, he has been committed for contempt. per Holt C. J.

Error. Howard vs Pitt. 4 W & M. (1)

Trespass vs 4 dfts. plf recovd. in B. R. Error was afterwards brought in Cam. Scacc. where it pended a year, & then abated by death of 1 of plfs in error; then another writ of error was brought, which pended ½ year, and abated by death of another plf. The plf in original action seeing no new writ brought a third time, sued out ca. sa vs Survivors. Et per Cur. it was agreed there was no need of Sci. fa. to revive judgmt. vs survivors, but that it was revived by the writs of error. 2. where writ of Error determines in the Exchequer Chamber by abatemt. or discontinuance, the Jdgt is not again in B R till a remittitur entered, without it can not appear to B R but that writ is still pending in Cam. Scac. 3 that the execution was erroneous for this cause, but not void, & 4 Leon. 197,17 was denied.

Parker vs Harris 4 W & M. (2)

per Cur. Where Jdgt is given for plf & dft brings error, there shall only be Jdgt to reverse. where plf brings error, there shall be moreover such Jdgt as ought to have been below.

Wicket et al vs. Creamer. 11 W. III (6)

Writ of error does not abate by dft in error, but sci. fa. ad aud[iendum]. error[es]. mus[t] go vs. his Extrs.

per Holt C. J. where dft has a matter to plead which he might have pleaded to the Sci. fa, & has lost the benefit of it, by award of execution upon a Sci. fa. returned, he is estopped for ever. But where it is an award on two nihils returned, he may relieve himself by aud. quer. & the Ct. will save him that trouble & relieve upon motion unless the ground of the aud. quer. be a release, or some such matter of fact as may be proper to be tried.

Anon. 11 W III (7)

per Holt, C. J. a writ of error may be agst. King without petition, & since 1640 are made out ex officio.

Giggeer’s Case 1. Ann. (8)

Action was brought by the name of Giggeer, and now a writ of Error was bro’t in an action [between] Giggure & the dft, whereas his surname was Giggeer, and it was moved that dft notwithstanding the writ of error might take out execution: & the Court held this was a fatal variance, & that the record was not moved by the writ of Error, but would not meddle with the execution. Et per Holt C. J. where a writ of error abates by motion, dft in error must move for execution, but where by reason of variance the record is not removed, he need not. At last record was amended.

Meredith vs Davies. 10. Ann (18)

Error of a Jdgt for plf in ejectmt. in Grand Session of Wales, after verdict; the general errors were assigned and in nullo est erratum, pleaded. Upon arguing the case it appeared that the declaration set forth a demise for a term of years to plf, but did not shew that the plf entered or was possessed; for the transcript had omited this line, and the Ct. held this defect to be fatal. hereupon plf prayed Ct. to award certiorari ad inform[andum]. conscientiam; which was opposed, as unallowable after non est erratum pleaded. It was admitted that the party is estopped by this plea, to pray a certiorari as to every part of the record; but that Ct. is foreclosed as to no part. Et per Cur. a rule was made for a certiorari, for the reasons urged, together with affidavit that the record was right below.

Escape. Scott vs. Peacock. 4 W & M. (1)

To a Sci. fa. quare Exctionem [Executionem] non. upon a Jdgt., dft pleaded, that he had been taken by Ca. Sa. on same Jdgt. and that Sheriff suffered him to escape, to which plf then & there consented: Sed non alloc for assent subsequent will not make it an escape with consent of plf, ergo he has either remedy vs Sheriff or may retake the party

Anon. 4. Ann. (5.

discharge of prisoner by Ct. not having jurisdiction, is void & an escape.

Jackson vs Humphreys. 5 Ann. (6)

delivery of writ by A to sheriff vs a man in his custody at another’s suit, is an arrest of the prisoner at suit of A & A may bring escape vs. Sheriff: so per Holt C. J. if the Sheriff of N[orthumberland] have a man in his custody in N. and the Sheriff be in London, & suit be delivd. to him vs that man, he is immediately in his custody; aliter if the man was out of the County of N at the time, as if sheriff were bringing him to Westmter. on a habeas corpus.

Evidence. [Anonymous.] Cor. Holt, C. J. at Ni. pri. 1690 (1)

adjd. that in d[e]bt. for rent, upon nil. deb. pleaded, the Stat: of limit: may be given in evidence, for by this ’tis no debt at time of the plea; but in case on non assump. Stat. can not, for it relates to time of making the promise.

Rex vs Lord Preston (2)

refusing to give evidence to grand Jury is a contempt & finable.

Howard vs Tremaine 4 W & M. (3)

upon bill in chancery to perpetuate testimony of a Will, dft (who was heir at law) stood in contempt & wd. not answer, & thereupon plf had a comission & examd. witnesses de bene esse & dft joined in Commission & cross examd. and before the answer came in, the witnesses died. Et per Eyre, J. it might be very inconvenient not to allow the depositions for evidence; for heir will not answer plf’s suit, nor question his title till witnesses be dead.

Darby vs Boucher 5 W & M. C. B. (4)

In indeb. assump. infancy may be given on non Assumpt. promise of infant is absolutely void; his bond being a more deliberate act voidable only. money lent to infant does not bind him tho’ he after lay it out in necessaries.

Brook vs Smith. 5 W & M. cor Holt C. J at Ni pri. (6)

In assump. evidence was given, that the debt was attached by the custom of London before action brought, & condemnation had there before plea pleaded, & it was urged that this sd. relate to defeat the action. But per Cur. ruled, that if an attachmt. & condemnation be before writ purchased, it may be given in evidence on general issue, because the property was altered before action brought; but if the attachmt. only be before the writ purchased, it ought to be pleaded in abatemt. of the writ; and if the condemnation be after the action commenced & before plea pleaded, then it may be pleaded in bar; but shall not be given in evidence on non assump. for that the property is not altered till condemnation: verdt. p. q. See (32) contra/

Smartle ex dimiss. [demissione] Newport vs Williams 6 W & M. (7)

Held per Cur. a sworn copy of a deed enrolled to be good evidence

Stainer vs. Burgesses of Droitwich 7 W III (9)

A general hist. is evidence to prove a matter relating to Kingdom at large, not of a particular right or custom

Anon. 8 W. III (10)

In action on case for money had & recd. to plf’s use, twas in evidence that plf’s wife was Extrix, & the money pd. to the dft as due to her, & plf was non suited, because the action ought to have bro’t by husband & wife as Extrix.

Middleton vs. Fowler & al. 10 W. III. cor. Holt C. J. at Ni. pri (11)

Held that Master of Stage Coach is not liable for goods lost by driver, unless the master takes price for carriage of goods, being not otherwise within the Custom of the Realm as a carrier, & money given to driver, is a gratuity, not affecting the master.

Rex vs Whiting 10 W. III. cor. Holt Ni. pri. (12.

On indictmt. for cheat [fraud] in getting a note from H. H cannot be witness; for tho’ verdt. wd. not be evidence in action on the note, it wd. be used to influence the Jury, and does not differ from cases of perjury or forgery, where the party injured by the deed, is no witness to prove it. see (20) contra.

Ford vs Hopkins. 12 W. III. Cor. Holt, C. J. Ni pri (14)

Trover for lottery tickets. ’twas in evidence that plf had given the tickets to a goldsmith to receive the money due on them, that some paymts. were due, some not; that this goldsmith had recd. tickets of the dft, and given him a note to pay him so many lottery tickets, that the plfs were delivered by goldsmith to deft on this note. Held that this note, being the best evidence in case, might be given as such agst. plf, towards proving change of property in the notes. 2. if money is stolen & pd. to another, owner has no remedy vs receiver, aliter if bank notes, tickets &c. which have marks. 3. he agreed that, if the Exchequer or any private person had paid to the goldsmith the tickets, it had been good agst. owner, but whether so where tickets not due are bought for valuable consideration he doubted: but as the case was, the goldsmith havg. tickets of plf & of dft, delivery of the plf’s to dft was no change of property, or any consideration; for tho’ owner gave him power to receive money for the tickets, he did not to change them for other tickets: Verdt. p. querente.

Gallaway vs Susach. 12 W. III (15.

In debt for rent, if dft plead levy per distress et sic non debet, a release or payment is good evidence, as it proves no debt, which is the issue. Cro. El. 140. if he plead rasure & ni non est factum, rasure only is evidence.

Blainfield vs March 1 Ann. cor. Holt at Ni pri (17)

per Holt C. J. where admtor brings trover on his own possession, dft may upon not guilty, give in evidence a will & an Extor; aliter if on possession of the intestate, for there he ought to plead it in abatemt.

Ford vs Grey. 2. Ann. (19)

per Cur. ruled 1. that poss[ess]ion of one Jointenant is poss[ess]ion of the other, so as to prevent Stat. of limitations—2 that a claim or entry to prevent the Stat: must be upon the land, unless special reason be to the contrary. 3. if one make an answer in chancery wch. is prejudicial to his estate, it may be given in evidence agst. him, but not agst. his alienee—4. a recital of a lease in a deed of release is good evidence agst. releasor & those claiming under; but not agst. others, without proving there was such a deed, & it was lost or destroyed—5. if one Jointenant levy a fine, it severs the jointure, but does [not] oust his companion.

Regina vs Mackartney & al. 2. Ann. (20)

Indictmt. for cheat [fraud] done to J S in sale of beer for wine. Et per Holt J. S. was allowed to be a witness to prove the fact upon trial, for in such private transaction, the circumstances can be known to the sufferer only. see (12) contra

Anon. 3. Ann (23)

Counterpart of deed not evidence, unless old or in case of a fine—special verdt. in such cases to be drawn up with a prout patet by the counterpart

Watson vs Sparks 5. Ann. (24)

In trespass qu. cl. fregit, on non cul, dft cannot give in evidence, that twas highway, for that is special justification

Charnock’s case (25.

per Holt C. J. on indictmt. evidence may be of the fact done at any time either before or after that specified, so it be not after the Indictmt. found, & at any place, so it be not out of the County.

Hern vs Nichols. cor Holt at Ni. pri (27)

per Holt, C. J. a merchant is answerable for the deceit of his factor, beyond sea, civiliter, tho’ not criminaliter.

Anon. cor. Holt, C. J. at Ni pri (28)

In trover plf’s son had general authority to receive & pay out plf’s money. Son took money to spend & gave it to dft. 2 questions, 1 can son be witness to prove delivery of money to dft? 2 can father maintain trover? per Holt, son’s testimony may be admitted as good, being corroborated by other circumstances, & the action is maintainable for the father; for the paymt. to the son, discharged the debtor, & gave possission to the father, to whose use son, being as his servt. recd. it.

Brown vs Hedges 7. Ann (29)

Held that a declaration of trover in Middlesex & proof of it in Ireland is good; for tho’ in local actions, as trespass quar. cl. fregit, the plf must prove the trespass where he lays it, & lay it where it was, yet not in transitory action as trover

2dly. one Jointenant, or tent. in common, or parcener, cannot bring trover vs another poss[ess]ion of one, being that of both, & if he does, ’tis good evidence on not guilty; but if one of such bring trover vs stranger, dft may plead it in abatemt. but not give it in evidence.

Blackam’s Case 7. Ann. Cor. Holt C. J. at Ni pri. (30)

per Holt. a matter that has been directly determined in spiritual court, cannot be gainsaid aliter of a Collateral matter.

Savage’s case cor. Trevor C. J. C. B. at Ni. pri. (32.

In assump. on note for £10 given by dft to plf. & non assum. pleaded, on trial plf. produced & proved the note. dft in discharge of himself produced record of a foreign attachmt, wherein the sd. debt was condemned: & by Trevor it was ruled a good discharge; but that if plf cd. have shewed the original wherein he declared to be precedent to the attachmt, he sd. have recovered notwithstanding such evidence; but the declaration here was betwixt the time of the attachmt & of the condemnation. see (6) contra

. . . . . vs Layfield et al. cor Holt C. J. at Ni pri (33

Where plf goes on credit of both partners, the act of one is evidence against the other, unless he shews a disclaimer. 3. Levin 358, 359. Palmer 283. 284.18 Br. Joinder in action 47.19 Cro. J. 411. Lat. 262.

Executors. King vs Aloff. 1 W & M. (1)

Extr. may bring error to reverse attainder of his testator, held by 3 Judges agst. Holt C. J. who doubted because blood & land to be restored are of no advantage to him & the goods are forfeited by conviction, not by attainder.

Whitehall vs Squire 2 W & M. (2)

In Trover, J. M. was possessed of a gelding, put him out to dft to pasture, then died intestate. plf before administration granted to him desired dft to bury him &c. which dft did, & for which plf agreed he shd. have the gelding. after, plf took out administration & brought trover for the gelding. Holt was of opinion the action lay, ⟨for?⟩ dft was a tort Extr. & plf’s consent before administration granted could not alter the case; for if he had then released, yet he might have taken administrion. & brought action. But Dolben & Eyre Justices contra.

Shelly’s case 5 W & M. (3)

In case vs Extr., on plen. admin. pleaded, declared by Holt, C. J. 1. that plf must prove his debt, or have but 1d. damages, tho’ there be assetts, for the plea admits the debt, but not the quantity. 2. that all sperate debts ment[ione]d. in Inventory shall be assetts in Extrs hands, for that is as much as to say, they may be had for demanding, unless the demand or refusal be proved—3 in strictness no funeral expences allowable agst. creditor except for Coffin, ringing bell parson, clk & bearers’ fees—but not for pall or ornaments.

Harding vs Salkil 5 W. & M. (4)

In debt vs Extr. that he is admtr. is a plea in abatemt. but not in bar.

Billinghurst vs Speerman 7 W. III (6)

In d[e]bt for rent Extr. may plead no assets & that premises are of less value than the rent.

Fooler vs Cooke, 7 W III (8)

If one be sued as Extr. & plead that he is admtr, per Holt, there needs no traverse absque hoc that he administred as Extr. If one be sued as admtr. of J. S. & plead that he is an Extr, he must traverse absque hoc that the said J. S. died intestate; for unless there was a dying intestate, no action can be bro’t vs one as Admtr., & to say he was made Extr. is only by implication to answer the dying intestate.

Wankford vs Wankford. 1 Ann. (12)

The case as stated by Holt was R. W. was bound to S. S. who made R W his Extr. & dies. R. W. administers several goods but dies before probate; the plf takes administration to S. S. & brings an action on the bond vs. dft. the heir of R. W. and the question was, the obligee having made the Obligor his Extr., & he havg. admtred [administered] some of the goods, tho’ not proved the will, whether that will amount to a release of the debt, and adjudged in affirmance of Jdgt of C. B. that it was a good release.

Gould. J. in delivering his opinion said, 1 if several obligors are bound jointly & severally, and obligee makes one of them his Extr, it is a release of the debt. So if he makes obligor & J. S. his Extrs, tho’ obligor never administers, yet the action is gone for ever. 2. that Extr. is compleat Extr before probate for all purposes, but bringing of actions. 3. if there were several Extrs., & all died before notice of a will, the obligor Extr wd. be released

Powis. J. said there was a diversity where the Extr did actually refuse before the ordinary, & where he only did not intermeddle in the administration; in first case, debt not released; in 2d. case, released.

Powell. J. 1. that tho’ Extr. before probate may commence action, yet he cannot go on to declare, for then he must produce to the Court the letters testamentary—2 that this extinguishmt. was not wrought by way of actual release, because then the debt cd. not be assets; but by way of legacy or gift of the debt by the will; and where that debt or any part of it is expressly devised to pay a legacy, it will be assets therefor, but where no such special devise, the debt shall be extinguished notwithstanding any other legacies; a man cannot in strictness make a release by will, but the debt will be extingd. with the above diversity

Holt, C. J. gave as his reasons. 1. by being made Extr., he was entitled to receive before probate, & where the same hand is to receive & to pay, it is an extinguishment; under these exceptions—where Obligor makes obligee his Extr, his own Extr. and Extr. of obligor has not assets—where obligor takes administration—where Extrix of obligee take obligor to husband.

2 reason; that when the obligee makes obligor his Extr, tho’ ’tis a discharge of the action, yet the debt is assets, & the making him Extr does not amount to a legacy, but to paymt. & a release: & if he does not administer so much, it is a devastavit

3d. reason. By administring, Extr has accepted & is a compleat Extr. He is before probate entitled to receive deb[t]s of testator; all testators goods are actually in his possession, at whatever distance & he may maintain trover for them; he may avow for rent, where a reversion comes to him; and for such rent as accrued after death of Testator, but not for arrears which accrued in Testator’s life, till probate; he may bring debt for debt due to Testator, so that tho’ teste if the original appears to be before probate tis well. ’Tis said that if H is made Extr., he is so till actual refusal; and if so; his administring which has put it out of his power to refuse, makes it an acceptance & a release—and where H makes his will & several Extrs., if one refuse & others administer, it makes his refusal void, his release of a debt will afterwards be good, he must be named in actions bro’t by others & if he survives, may take Extrship. upon him & admtrion. granted before his sd refusal when survivor, is void.

Holt admitted; that tho’ Extr. has admtred [administered] yet if he die before probate, an immediate admtrion. is committed and not admtrion. de bonis non, as wd. be after probate; because Spiritual Court can’t take notice of an act in pais, tho’ the act be good. 2. that the Extr. dying in this case, his Extr is non Extr to first Testator; but admtrion must be granted cum testam[ento] annexo, tho’ he did administer.

House & Downs vs Lord Petre

19 Decr. 1700. At Court of Delegates (15)

R. Ld Petre died in 1638, leaving W. Petre Esqr., his brother, Extr. W. P. died, leaving Lucy his wife & H. T. his Extrs. Lucy only proved the will, & died, leaving House & Downs her Extrs. afterwards H T renounced the Extrship. of the will of W. P. & admtrion was granted to Ld Petre now the dft, of the goods &c. of R Ld. Petre. House & Downs Extrs of Lucy insisted that admtrion belonged them: and ’twas agreed by the whole Court, as well Civilians as Common Lawyers that H T being a joint Extr with Lucy & surviving her, the sole right of Executorship did accrue to him, tho’ he never concurred in proving the will, nor acted as Extr, & so remained, till his actual renunciation, by which both W. P. & R. Ld. P. as from that time died intestate, so as to entitle the Ordinary to grant administration of remaining personal estate; but not so as by relation to render the Will of Lucy effectual & to transmit those Extrships. to the plfs.

Anon 1 Ann. (19)

per Holt C. J. if H gets goods of an Intestate into his hands after admtrion. granted, it does not make him Extr of his own wrong; if before, aliter, unless he deliver goods to Amtr & then he may plead plen. admstvit. 5. Co. 33. b. But if he takes upon him to act as Extr, he is chargeable to all events.

Shardelow vs. Naylor 1. Ann. (20)

a Woman by deed settled her Estate in trust, reserving power, to make a will, the deed was made with consent of intended husband, who refused however to be witness or party to it. the marriage ensued, the wife made a will & died. the Extr proved the will. Et per Holt C. J. this is not a will, nor ought ordinary to prove it. Where a woman is Extrix. & marries, there she may make a will with consent of her husband, & cannot without. 1 Jon. 157. So if a woman having debts due to her marries she may make a will quoad these, & ordinary may prove it. In other cases she cannot, for ’tis only a writing in form of a will: However it appearing that ordinary had only granted admtrion. quoad the goods in the will, ’twas allowed as reasonable. Cro. Car. 219.

Buckley vs Pirk 9. Ann. (25.)

Parker, C. J. Covenant to repair must run with the land, for it affects the estate of the term, & the reversion in whosever hands it is—2. If Extr. of Lessee enter, the lessor may charge him as assignee for rent after entry, in the debet & detinet, and if rent be of less value than the land, as law prima facie supposes so much of the profits as will suffice, cannot be applied to any thing but paymt. to lessor; if the rent exceed the value of the land, dft may plead it specially & pray Jdgt to be charged in detinet only; quod Powell concessit—3 held that Extr. as above may be charged at election of plf either as Extr or assignee, but if as Extr, can only have Jdgt agst. him as such. Sed adjournatur.

Churchill contra Hopson 12. Ann. in Canc.

per Harcourt. Ld. Chan. If 2 trustees join in a rect. and one receives the money, the actual receiver only shall be liable—If 2 Extrs join in rect. & one only actually receive, as to Creditors who are to have full benefit of law each is liable for the whole, tho’ one Extr. alone might give a discharge, but as to Legatees & distributees, who have remedy in equity only, the rect. of one Extr shall not discharge the other.

Execution. Oviat vs Vyner 1 W. & M. (1)

If on fi fa all the money is not levied, writ must be returned as ground of another writ. Aliter if all the money.

Kingsdale vs Mann 2. Ann. (7)

Sheriff delivd. possession by virtue of Habe. fas. possn. [habere facias possessionem] in the morning. Some hours after he was gone, dft returned & ousted the party again. Et per Cur. if it had been done before departure of Sheriff, attachmt. Might have been granted for disturbing execution & contempt but being some hours after Curia dubitavit 2dly agreed that Ct. might award a new hab fac. poss. if the first was not returned.

Booth vs Booth 3. Ann. (9)

If extion. be stayed above year & day by injunction, sci. fa. must precede extion. for per. Cur. we can not take notice of Chancery injunction, as of writ of error, and you might have taken out writ of Extion & continued it by Vice com[es] non misit breve.

Exposition of words Rex vs Bear (1)

“Juxta tenorem” imports the identical words & is good in indictmt. aliter “ad effectum”

Wyat vs Aland. 2 Ann. (2)

Held by Holt & Powel 1 that information by common informer, upon a penal Statute is not within Stat: of Jeofails;20 otherwise if by party grieved. 2. that where a matter is capable of different meanings, that shall be taken wch. will support, not that which will defeat, the declaration or agreement.

Extinguishment. Gage vs Gray 11 W. III (0)

Debt vs Admtrix. of her husband for £60 for rent incurred in life of Intestate, on a demise by deed to him, dft pleaded that the Intestate, dum ipsa præfat defendens sola fuit, concessit se teneri by bond to her in £2000, with this Condition indorsed viz that in case the Obligor & she intermarried & the wife survived, and the obligor left her £1000, then to be void, and farther pleads that they intermarried; she survived, that he did not leave her £1000, that she took letters of admtrion., that £250 came to her hands which she retains in part of satisfaction; and that she hath not assets ultra. The plf demurred. Et per Curia. An admtr. may retain a bond debt due to himself, notwithstanding the rent is due from the Intestate: for whether the demise be by deed or parol, they are of equal nature, and neither is superior to a debt by specialty, as the latter is not to them.

Holt held that the bond debt was extinguished by the intermarriage, because it is a present debt & does not arise on the event of the condition. If it did, then in debt on bond, plf must always shew the Condition broken, which he need not. He admitted that if one promises a feme sole, in consideration she will marry him, he will leave her so much in case she survive or covenants in same manner, that is, because a future debt only is raised which cannot happen during coverture. But Gould & Turton held the debt to be only suspended by the intermarriage.

Holt also said that where the wife hath any right or duty wch may by possibility accrue during the coverture, the husband may release it; aliter where it may not by possibility.

Fees. [Peacock versus Harris. Pasch. 8 Will. 3. C. B.] (6)

[Earle versus Plummer. Pasch. 9 Will. 3. B. R.] (7)

Sheriff upon Capias ad satisf[action]. shall have fees on his whole debt; also for executing erroneous writ.

Felony. Reg. vs Wallis. Cor. Holt et al. Justs. Ocr. 14. 1703 (0)

Indictmt. vs A for murder of J. C. & also vs B, C, D & E, as pres[en]t. aiding & assisting & abetting A. E being arraigned pleaded not guilty, & it appeared on evidence that the slain was a Constable who was with other Constabs. in the extion. of his office, that E, the prisoner first drew his sword & with 40 others fell on the Constables; that the affray contind an hour, till J. C. was slain, but by whose hands did not appear—and that A had been tried on this Indictmt & acquitted. Et per Holt, C. J. tho’ the Indictmt be vs Prisoner for aiding &c. A who was acquited, ’tis well eno’, for who did the murder is not material & all are principals in this case. 2 if a man begins a riot, as here, & the same riot continue & an officer be killed, as is the prisoner’s case, he is a principal murderer, tho’ he did not commit the fact.

Forgery. Rex vs. Stocker (1)

Fabricavit seu fabricari causavit in Indictmt. held naught on demurrer, for uncertainty see 1 Salk 371 (8)

Reg. vs. Smith (3)

In Indictmt. for forging deed signed with mark of J. S. the mark need not be set forth.

Gaming. Pope vs St. Leger 5 W & M. (1)

Wager concerning rule of a game, not within the Stat: of Gaming.21

Grants. Germain & Ux. vs Orchard 3 W & M. (0)

Lessee for 1000 years by deed reciting the original lease of the lands, grants the said lands, together with the recited lease to the Grantee his Extr. &c. & all writings relating to the premises. Habendum to the Grantee his Extr &c. after death of Grantor & his wife: for the residue of the term of 1000 years. Adjd. that by the grant of the lands generally the Grantee is Tenant at will only. But this Jdgt was reversed in the Exchequer Chamber. If it had been a devise, instead of a grant, held in both Courts that the term wd. have passed, for in that case, an estate at will, must either never begin, or end as soon as it begins.

[Habeas Corpus.]

Bethell’s case 7 W III (2).

A was, after indictmt. & conviction, fined & committed to Keeper by order of Ct. of Sessions till fine paid. Et per Curia. The Commitmt. is naught 1. because not to Sheriff who is the legal & immediate Officer of every Court of oyer & term[iner]. 2 because the word committitur is necessary to the form of a legal commitmt—then question was whether he sd. be discharged. Et per Cur. Before Bushell’s case no man was ever, by Hab. Corp without writ of error, delivered from a Commitmt. made by Ct. of Oyer & Terminer; but this commitmt. was not causeless; Where a commitmt. was without cause, a prisoner may be delivered by Hab. Corp. where good cause appears & a defect only in form as in this cause, aliter: And tho’ in strictness commitmt. ought to be to Sheriff, yet Custody of Gaoler who is a known officer, is his custody to many purposes—ergo let the party have his writ of error.

King vs. Clerk 8 W III (5.)

Resolvd. upon a habeas corpus that where a commitmt. is in Court to a proper officer there present, there is no warrant of Commitmt. and he cannot return a warrant in hæc verba, but must return whole matter on peril of an action, if comt. be to one not an officer there must be a warrant in writing

Anon. 1 Ann. (12)

After interlocutory and before final Jdgt. in inferior Ct., a Hab. Corp. cum. caus[a]. was brought: before return of the writ, dft died: and a procedendo was awarded; because by 8 & 9 W. III plf may have scire fa: vs Extrs, wch. he cannot have in another Court.

Fazacharly vs Baldo. 3 Ann. (13)

On habeas corpus cum causa, per Holt C. J. The record is never removed by this writ as on a certiorari and the return is only an history of the proceedings below; ergo plf in such case here must begin de novo, & declare vs dft as in Cust. Mar.

French’s case (14)

dft was out on bail in an action in B R. and was taken on an extent at the Queen’s suit; the bail bro’t him upon a Hab. Corp. & prayed he might be comitted to the Marshall in discharge: and he was turned over because the action here was precedent to the Queen’s suit.

Crackall vs Thomson 4 Ann (16)

One arrested on criminal process cannot be charged at suit of a subject in any action without leave of Court.

High ways, rivers, bridges— Warren vs Matthews 2 Ann. (4)

The subject has a right to fish in all navigable rivers, as he has in the Sea.

Regina vs. Inhabitants of Cluworth 3. Ann (6)

The dfs were indicted for not repairing a common foot way & confessed it, & submitted to a fine. Et per Cur. The matter ended not by the fine, but writs of distringas shall be awarded ad infinit[um], till way repaired

Jeofails. Brook vs Ellis 5. W & M (1)

Upon a devastavit suggested vs both Extrs., the writ was directed to Sheriff to enquire as to both; he returned a devastavit as to one, but said nothing as to the other; this being assigned for error after Jdgt: on Verdict, it was held to be aided by the verdict, being only an insufficient return.

Dorne vs Cashford 9 W III (2)

Jdgt for Termor for years arrested, because he declared on a “Que estate”

Imparlance. Anon. [Hill. 11] W III (2)

per Holt, C. J. in an information if dft comes in on first process, he has an imparlance of course: if on an attachmt. he must plead instanter.

Incident, appendant, appurtenant

Poole’s Case. 2. Ann. Cor. Holt at ni. pri. (0)

Held, 1. that during a term lessee may by common law remove things set up in relation to his trade: but after the term they are become gift to Reversioner & are not removeable. 2. that Sheriff may also during term take them in Extion, as he can cut & sell standing corn, in such case.

[Indictments, Informations, Inquisitions, Convictions, &c.]

[Rex & Regina versus Franklin. Mich. 3 W. & M. B. R.] (2)

Indictmt. quashed because præsentant existit for præsentatum, see (7)

[Rex & Regina versus Clerk. Pas. 5 W. & M. B. R.] (3)

Indictmt. for preaching quashed, because did not include “contra forman Statutem [formam Statuti]”

Rex & Reg: vs Ball 5 W & M. (4)

Upon removal of indictmt. dft enters into recognizance to try it, yet there is no forfeiture, unless prosecutor gives notes; so also if recognizance be given to prosecute with effect writ of error, there is no forfeiture, unless dft give rules & nonsuit plf.

Rex vs. Inhabitants of Belton. 8 W III (11)

Indictmt. for any heinous offence, as forgery, perjury &c. or concerning high ways, or enticing away servant or nusance. So also, information of Attorney Genl. not quashed on motion

Regina vs Clerk 1 Ann. (21)

A coroner’s inquisition being removed into B R. was quashed because the wound was not set forth & that the party died of it—inquisitions must not be taken by intendment any more than indictmts. Inquisition & indictmts. good for manslaughter without the word “murdravit.” The Coroner need not go ex officio to take the inquest, but ought to be sent for, & that when the body is fresh; & to bury it before sending for Coroner is a misdemeanor—the body may be dug up again but not at such a distance of time, that it may be a nusance & infect people.

Regina vs Smith 1 Ann. (22)

Usitata,“used,” speaks the present as well as past time.

King vs Chandler 1. Ann. (23.

On a conviction for deer killing returned into B R. on certiorari, held 1. that the fact in the conviction need not be laid contra pacem regis, mere form not being required in any summary proceedings 2. that laying it between such a day & such a day is good; but obliges the party to prove the fact within those days; which is better for dft. Otherwise it is at Common law in informations, because every distinct offence creates a new penalty, but in trespass, a fact may be laid “diversis diebus et vicibus” between [“]such a day & such a day” because it is not a new action, but an increase of damages. 3. that if the owner of a park die before Exction., his Extrs. shall have a levari fac[ias]. so may Church-wardens without suggestion or Sci. fa. & so the King.

Regina vs Gould.

Indictmt will lie for refusing to provide for apprentice put out by Justices.

Regin[a] vs Culliford (30)

per Cur. if 2 indictmts. be vs H for the same thing, as if 1 be found by Coroner’s inquest & 2 by grand Jury, & H is acquitted on one, he must still be tried on the other to which he may plead the former acquittal. the fairest course is to try him on both indictmts. at once.

Regina vs Ingram & Ux’: 10. Ann. (36)

per Parker C. J. in a civil action, where one part of the declaration is ill & the Jury find entire damages, the Jdgt must be arrested, because the Ct. cannot apportion them; but in indictmts. the Ct. assess the fine, & they will set it only according to those facts which are well laid, if an offence sufficient to maintain the indictmt. be well laid ’tis eno’. Jdgt accordingly.

Regina vs Cranage 11. Ann. Cor. Parker C. J. at Ni pri. (37)

Indictmt that dft with others at the parish of St. Giles in the Fields, riotously assembled, & quoddam cubiculum cujusdam Saræ S. in domo Mansionali cujusdam David James fregit & intravit,22 and thirty yards of Stuff took & carried away. Upon evidence it appeared to be the Mansion House of D. Jamson, & not James, and the C. J. held, that this did not maintain the indictmt. like 2 Ro. 677. Trespass for breaking his close in Calvering, in quodam loco called Calverfield, abutting S[ou]th. on a Mill in the tenure of J S. the plf must prove the whole abutment, even its being in the tenure of J. S. one may make a trespass local that is not so. So in indictmt. for obscene words spoken in such a parish, in a playhouse in Lincoln’s Inn-fields, if no playhouse be there dft must be acquitted, if the speaking had been alledged in Lincolns Inn-fields, then it had been laid as a Venue, but here it is alledged as a description where the playhouse stood. in the principal case, part is local, viz the Cubiculum, part not local, viz the taking & carrying away, but all being put together as one entire fact under one description, cannot be divided

Jointenants & Tenants in common— Reading’s case. 1 Ann. (4)

One tenant in Common may disseise the other; but it must be by actual turning or keeping him out. a bare perception of the profits is not eno’.

Joint & several. Heydon vs Heydon. 5 W & M (1)

Coleman & Heydon were copartners, & a Jdgt. was agst. Heydon, & all the goods of C. &. H. were taken in extion. and it was held by Holt C. J. & the Court, that the Sheriff must seize all, because the moieties are undivided, for if he seize but a moiety & sell that, the other will have a right to moiety of that moiety; but he must sieze the whole & vendee will be tenant in common with the other partner.

Robinson vs Walker 1 Ann. (2).

In covenant plf declared that dft & J. S convenerunt pro se, & quolibet eorum that they or either of them would lade such a ship, &c. dft pleaded in abatemt. that other covenanters were in full life not named, & prayed Jdgt of the writ: and ’twas agreed by all, that obligamus nos et utrumque nostrum eorum in a bond is joint & several. Sed per Holt C. J. there is a diversity between A & B convenit et quilibet eorum and A & B conveniunt pro se, & quolibet eorum, for in this first quodlibet eorum convenit expressly swore the lien; but pro quodlibet eorum seems to go to the thing to be done, that they both or either of them would do it. Sed reliqui Justic, contra & Jdgt was, respondeat ouster.

Issue General. Hatton & Morse 1 Ann. (2)

per Holt C. J. In debt, dft may plead a release, because it admits the contract, which is a color of action & yet he might give it in evidence upon nil debet—So in assump. dft may plead paymt. because it admits the assump. & yet he may give it in evidence.

Sea vs Taylor. 2. Ann. (3)

In assump. dft pleaded, quod ipse performavit omnia ex sua parte performand, & it was ruled that this amounts only to the general issue. Quære, for the assump is admitted, & if Hatton & Morse supra be not contra

Judge Wood vs Mayor & Commonalty of London.

March 2. 1701. in Error (3)

Mayor & commonalty cannot sue in mayor’s Court for penalty limited to themselves by a by-law, because the Mayor is an integral part & cannot be severed, So that he wd. be Judge in his own cause,

Action by Mayor & commonalty abates by death of Mayor.

Recorder is deputy of the Mayor, & his judgt is virtually & legally that of the Mayor.

For case where J. S. became Mayor pending his action, see 2 Rol. 93. title Judge pl[ea]. 14, where however bad reason is given for what is the law in the case.

Judgments. Cooke vs Cooke 9 W III. (3)

It was held that in all real & mixt actions one cannot enter Jdgt upon a peremptory rule without motion otherwise in personal actions; but this does not extend to pleas in abatemt. because the Jdgt there is not final.

Duke’s case 9 W. III (4)

per Holt C. J. Jdgt. cannot be given vs any man in his absence for corporal punishmt; there is no such precedent. In outlawry for felony Extion. was never awarded till felon be brought to the bar. A capias for the fine is common, but never a writ to put a man in pillory in such case.

Reg: vs. Fitzgerald. 1 Ann. (7)

dft being convicted of scandalous libel, Jdgt. was given agst. him to pay 100 marks fine his behaving himself impudently, in performing sentence, Ct. at same term increased his punishmt. by imprisonment.

Anon. 1. Ann. (8)

If a Jdgt. be below for the plf, & error is brought & that Jdgt is reversed; yet if the record will warrant it, the Ct. ought to give new Jdgt. for the plf: But if the Jdgt be erroneous & vs plf, on the merits of the cause, that ought to be reversed & no new Jdgt be given for plf—if an erroneous Jdgt be given for dft & ’tis reversed, & the merits appear for the plf he shall have Jdgt: if the merits be vs plf, dft shall have new Jdgt: for they are to reform as well as to affirm or reverse Jdgts. 1 Rol. Abr. 774. pl[ea]. 1. Cro. Car. 443. Hob. 194. 1 Mod. 1. Far. 3.

Anon. 4 Ann. (14)

Bringing writ of error admits the Jdgt to be regular.

[Jury and Juror.]

Anon. 1. Ann. (3)

If a Jury give a verdict on their own knowledge, they ought to tell the Court so, that they may be sworn as witnesses; & the fair way is to tell the Ct. before they are sworn that they have evidence to give.

[Volume 2]

Leases, Stomfil vs Hicks 9 W III. C. B. (2)

A possest of a Term for 20 years, if he grant the tenements for 19 years to commence after his death, this will be good for so much of the 20 years, as shall then be unexpired. Cited as ruled by Holt at assises 10 W III

A leases to B for a year, & from year to year as long as it shall please both parties—adjudged that this is a lease for two years & afterwards at Will. (4) contra adjd. to be a lease for every particular year & after the year is begun, dft cannot determine the lease before the year is ended. (6) B. R. held that such was a lease for two years, and after each successive year sd. begin, not determinable at will of lessee till end thereof

Legacy. Smell contra Dee. 6. Ann. in Canc. (2)

H bequeathed in these words viz. “I give £100 apiece to the two children of J. S. at the end of 10 years after my decease.” the children died within the 10 years. Et per Cowper L. Chancr. “this is a lapsed legacy; for the diversity is where the bequest is to take effect at a future time & where the paymt. is to be made at a future time.[”]

Legatee must demand legacy if of full age, in order to entitle himself to interest thereon, if he be an infant it shall be computed without demand from expiration of the first year after death of testator, for so long is allowable by Stat: before distribution is compellable.

Hern contra Merick Coram Harcourt L. Chan. (3)

H seized in fee, & indebted by bonds, by will gives legacies to children (whom he had otherwise provided for before) and devises his land to his eldest son in tail. The eldest son being also Extr., pays the bonds with the personal estate; & now legatees bring suit a bill to come on the real estate, in the place of the bond-creditors. The Ct. seemed to admit that if the land had descended, relief would be due; aliter as it was devised, & a specific legacy is never to be broken into, in behalf of a pecuniary one. Also this case is out of Stat: vs fraudulent devises, because the debts are paid, & the children being otherwise provided for are not in nature of Creditors

Limitations. Hall vs Wybourn. 1 W & M. (1)

It was held by Bridgman C. J. that tho’ Cts. of Justice were shut up, so as no original could be filed, yet that Stat: of limitations, would bar an action, because it is general & must work on all cases not so excepted.

Budd vs Berkenhead 2 W & M. (2)

dft pleaded Stat: of limitations, plf replied in avoidance, that he sued out attachmt. returnable Mich. 34. car. 2. Et quod superinde taliter processum est, that dft in Mich. Term. 2. Jac. 2. appeared &c. Et per Cur. This pleading is not good, continuances till declaration must be shewn. Taliter processum is not sufficient to shew a matter before declaration, tho’ so held as to matters after.

Cary & ux’ vs Stephenson 6 W & M. (4)

H was indebted to A who died. B recd. the money. afterwards plf’s wife took admtrion., & within 6 years therefrom, tho’ not from rect. of money, brought indeb: assum. vs B for money had & recd. to use of plf & his wife. dft pleads non assum. infra sex annos. plf replied special matter; & on demurrer Ct. held that the Stat. could be no bar, because plf’s title commenced with the admtrion. & this was not a cause of action in the intestate; but thought it hard to make this so much money recd. to plf’s use, when at the rect. he was not admintror.

Mandamus. The Mayor of Coventry’s case 9 W. III (4)

Motion was made for an attachment for not returning an Alias mandamus. Et per Holt C. J. in case of a mandamus out of Chancery, no attachmt. lies till the pluries, for that is in nature of an action to recover damages for the delay, but on mandamus out of B. R. the first writ ought to be returned, yet an attachmt. is never granted without a peremptory rule to return the writ, & then attachmt. goes for contempt; & a permtory rule was made.

Anon. (19)

A mandamus went to restore 9 persons to their offices. return debite amoti. Holt C. J. The writ ought to be quashed; their interests are several & they may have been removed for different causes. How can we grant a joint restitution to them? Eyre was of the same opinion.

Marriages. Alleyne & Ux.’ vs Grey 1 W & M. (1)

In debt on bond by Baron & feme, dft pleaded ne unques accouple. plf demurred & had Jdgt, for it changes the trial from pais, & puts it on certificate of Ordinary & marriage de facto is sufficient.

Master & Servant. Boson vs Sanford & al’ 1 W & M. (1)

Case vs A & B part-owners of a Ship for that he put goods on board & the dfts undertook to carry them safely for hire, but yet were so negligent that the goods were spoiled: upon not guilty, it was in evidence that C. & D were also part-owners & that ship & goods were under the care of a master. Et per Holt C. J. the owners were liable in respect of the freight as employing the Master. 2. all the owners are liable, and as they must all join, so must all be joined agst.—3 this is not an action delicto, but ex quasi contractu, & no other tort but breach of trust. Jdgt for dfts.

Merchants, Merchandize, Martin vs Crump 10 W. III (3)

2 Joint Merchts. make B their factor. 1 dies leaving Extr. Extr & survivor cannot join, for the remedy survives but not the duty. ergo on recovery he must be accountable to Extr. for that.

Mayor & Commonalty of London vs Wilks 3 Ann. (8)

A Merchant includes all sorts of traders as well as properly merchant Adventurers. Spelm. Guilda.23 Dy. 279. b. a merchant Taylor is a common term per Holt C. J.

Money. Dixon vs Willoughs 8 W III (0)

In indeb. assump. the consideration is only set forth to shew it was not a debt by bond &c.

Mortgages. Ld. Ossulston contra Ld. Yarmouth.

Decr. 1707. in Canc. (1)

dft made a mortgage to plf with a proviso that if the interest was behind 6 months it sd. become principal & carry interest. Et per Cowper L. C. proviso decreed to be vain: and that to make interest principal tis requisite that it be first grown due & then an agreemt. concerning it may make it principal

Cope contra Cope in Canc. (3)

If a man mortgage lands, & covenants to pay the money & dies, his personal estate shall in favor of the heir go to exonerate the mortgage: So it is, tho’ there were no Covenant, if the mortgagor had the money, because his debt & he bound to make it good, tho’ the land be a defective security; but if grand-father mortgages & covenants to pay & the lands descend to his son & his son dies, having personal estate, it shall not go in aid of the mortgage; A mortgages his land to B & after sells it to C. for £1000 which includes the mortgage money. C shall pay the mortgage for he has made it a debt on himself. But it is to be understood that this exoneration is not to be allowed, unless there be personal assetts to pay all legacies; for if by paymt. of legacies assetts fall short, legatees may make such mortgagee refund.

Motion. Reg. vs Layton 4 Ann. (2)

Upon a conviction of forcible entry, if a fine be set, the conviction cannot be quashed on motion. dft must bring writ of error. aliter if no fine. per Cur.

Novel assignment

[Coke versus Evans, Trin. 2 Ann. B. R.] (1)

[Helvis versus Lamb. Hill. 2 Ann. B. R.] (2)

Where dft by plea makes a transitory trespass local, plf may make a new assignment.

When dft by plea makes the place material, he must shew it with certainty. In trespass quare claus. fregit in D. if dft plead liberum tenementum, & issue be joined on it, ’tis eno’ for dft to shew any close that is his freehold, but if plf gives the close a name, he must prove a freehold in the close named. Adjd. in C. B affir[me]d in B. R.

Nonsuit. Allington vs Vavasor 12. W III (1)

A latitat was sued out vs 4 dfts in trespass. plf was nonsuit for want of decln. & dft’s attorney entered 4 nonsuits agst. him. It was held irregular, because trespass is joint, & tho’ plf may count severally it remains joint, till severed by the Court.

Lover vs Salkeld 12. W III (2)

Trespass vs 2 dfs & verdt. p. q: one dft being infant plf took Jdgt vs the other & entered non pros. after the Jdgts agst. the infant. Upon this Jdgt. plf sued extion. on which error was brought. Holt C. J. said that non pros. might be so entered after interlocutory Jdgt., but not after final Jdgt, wch. being once wrong, no subsequent entry cd. set right.

Cooke vs Foster. 1. Ann. (3)

If a man appear at the day of the return of the process & put in bail, tho’ he was never arrested, nor the process returned, yet if plf does not declare agst. him in 2 terms, a non pros. may be entered agst. him

Nusances Lodie vs. Arnold. 9 W III (3)

held that when H has a right to abate a public nusance, he is not bound to do it with as little hurt as he can.

Rex vs Rosewell 10 W III (5)

if H. builds a house so near mine, that it stops my lights, or shoots the water on my house, or is otherwise a nusance to me, I may enter upon the owners soil & pull it down: & for this reason only a small fine was set on dft in an indictmt for a riot in pulling down some part of a nusance to his lights, & the right found for him in an action for stopping his lights.

Oaths & affidavits. Salloway vs Whorewood. 8 W III (1)

upon a rule to show cause, plf offered several new affidavits, & this diversity was taken viz. where they contain new matter & where they tend to confirm what was alledged & sworn when the rule was made in the latter case they may be read.

Officers & Offices, Godolphin vs Tudor 3 Ann (6)

The Ct. on 5 & 6 Ed. 6 c. 16. held that where an office is within the Stat. & the Salary is certain, if the principal make a deputation, reserving a lesser sum of the salary, ’tis good: so if the profits be uncertain, arising from fees, if the principal make a deputation, reserving a sum certain out of the fees & profits of the office ’tis good; but where the reservation or agreemt. is not to pay out of the profits, but generally a certain sum to be paid at all events, such bond is void by the Stat: antea [ante] (3) 3 Keb. 552. &c. Mod. Cas. 38.

Office for the King. [Layton contra Manlove. Mich.] 2. W & M.

[In Canc.] (1) [Linch versus Coote. Hill. 8 Will. 3. B. R.] (2)

There are 2 sorts of inquisitions, one to inform which need not be certain. Mo. 308. the other to vest & entitle the King. to grant & that must be certain Jones 71. 77. 3 Cro. 895.—where an inquisition is defective & uncertain, that cannot be supplied by melius inquirend[um]: but where it finds some points & not others & what is found is well found, there may be a melius inquirendum. per Holt C. J. Pollexfen C. J. & Nevil J.

A tenant for life, remainder to B. in fee. A is attainted of H. Treason. King siezes. B may enter. Otherwise if an office had found A seized in fee, for then it must be avoided by traverse or amoveas manum.

Orders of Justices of the peace. Rex vs Harding (20)

per Cur. A Judge of Nis. prius, by consent of parties, may make a rule to refer a cause.

Rex vs Albertson (38)

per Cur. He is a bastard who is born of a mans wife, while the husband at & from the time of begetting to the birth, is extra quatuor maria: In the case of a real action by him Tenant may plead general bastardy; & being therefore a bastard as to descent, why not as to all other purposes? When a child is born in adultery he is born out of the limits of lawful matrimony.

Outlawry Rex & Reg. vs Tippin 1 W & M. (

In misdemeanor an Outlawry does not enure as a conviction for the offence, as in cases of Treason & felony; but as a conviction of contempt which is punished by forfeiture of goods & chattels, but the offender cannot be fined for the misdemeanor, but upon the principal Judgt.

Attorney General vs Baden 5 W & M. (2)

A owes B on Jdgt & C on bond. A is outlawed at suit C. & his lands siezed. Can B extend the lands? And it was held the Outlawry shall be preferred, unless B can shew Covin [conspiracy] between A & C.

Oyer & Shewing of Deeds, Writs &c.

Salisbury vs Williams 4 W & M. (1)

Of want of profert in declaration, no advantage can be taken after verdict, or on a general demurrer.

Roberts vs Arthur 13 W III (3)

upon profert of a deed, it remains in Court that term & no longer unless controverted. Letters testamentary or admi⟨ni⟩stration do not remain in Court, for they may be wanted by the party elsewhere. per Cur.

Longavil vs. the Hundred of Isleworth. 2. Ann. (4.

per Holt C. J. to deny oyer where it ought to be granted, is error, but not econtra.

The having of Oyer is never to enable the party to plead in bar; but in abatemt. & ergo ought not to be had after latter plea.

Parliament [Prideaux versus Morris. Trin. 2 Ann. B. R.] (1) [Coundell versus John. Hill. 5 Ann. B. R.] (3)

No action lies at Common law vs officer for false return of members to Parliamt. unless where the right is determined or cannot be determined in Parliamt. Judges may Judge of parliamentary matters incident to matters cognizable by them. No action lies for false return to Parlt. but upon Stat: 7 & 8 W III. per Cur. Where a Stat: introduces a new law by giving action where none before, or giving new action in old case plf need not conclude contra form[am]. Stat[uti]. But if a Stat. gives the same action with a difference of some circumstances, as double damages &c. plf must either conclude contra form. Stat: or make his case So particularly within the Stat. that it may appear to be so.

Payment & satisfaction &c. Mason vs. Williams in Canc. (1)

Pending a bill in Equity vs Extr, or after decree “quod computet” Extr. may pay any other debt as high or higher, out of legal, but not of equitable assets. But after final decree, paymt of bond is mispaymt. decree being in nature of a Jdgt. per Cowper L. C.

Marle vs Make 13 W III (3)

paymt. to a bond with condition endorsed, is a good plea before breach, but not afterwards, no more than to action of debt on single bill, for benefit of the condition is lost when the breach is made. per Holt C. J.

Cranmers in Canc’ (4)

Note. paymt. was no plea to Sci fa. on Jdgt. in debt before 4 & 5 Ann. c. 4.

Pleas & Pleadings [Anonymous. Mich. 8 Will. 3. B. R.] (4)

If a decln. be delivered agst. one in Custody, he shall have the whole term to plead in abatement.

Anon 8 W III (5)

Before Joinder in demurrer, the dft may waive his special plea, & plead general issue per Cur: But if there be a rule to plead, so as to stand by it, & dft pleads a special plea as he may & plf demurs, the plf shall not then waive & plead the general issue.

Pierce vs Blake 8 W III (6)

dft pleaded a false plea in abatemt. viz death of plf. moved that the Attorney be compelled to swear it, per Holt C. J. we cannot compel him in any case to swear his plea: but if he puts in false plea to delay Justice, he breaks his oath & may be fined for deceit on the Court. Here he was ordered to plead immediately so as he wd. stand to it, or Ct. wd. enquire & if deceit be found they wd. fine him.

Anon 13. W III (17)

If an act of parliamt. makes writing necessary to a common law matter, where ’twas not necessary by the common law, you need not plead the thing to be in writing, but give it in evidence; but where a thing is originally made by act of Parlt. & required to be in writing, you must plead it with all the circumstances required by the act; as upon the Stat: of Wills24 you must plead a will to be in writing: but a collateral promise which is required by Stat: of Frauds25 to be in writing may be given in evidence, per Holt. C. J.

Anon 13 W. III (18)

If a man pleads over, he shall never take advantage of any slip committed in pleading of the other side, which he could not take advantage of on a general demurrer, per Holt. C. J.

Anon. 1. Ann. (19)

If a man forfeit his bail-bond & so is in misericordia & Ct. in his favor stay proceedgs. he cannot afterwards plead in abatemt. to the original action, but must plead in chief.

Powers. Ld. Kilmurray contra Geery. 12. Ann. in Canc. (2)

Held that under a power to charge land with £3000. that sum with interest thereon may be charged on the land.

Records. Moore vs Garret 10 W III (4)

Upon Nul tiel record pleaded where ’tis record of another Court, the other party replies, quod habetur tale recordum, & the Ct. gives him a day to bring it in: but if H pleads record of same Court, the other party may crave oyer &c, or may plead nul tiel record, in wch. case there are 2 ways of proceeding, for Ct. may either 1 give day for party to produce the record—or 2. a day to inspect it themselves.

Anon 11 W III (5)

per Holt C. J. An Act printed by the King’s printer is always good evidence of the act to a Jury; but was never to be a record yet: you must get an exemplification under the great Seal, & then plead it exemplified, & then no man can deny it.

Turner vs Barnaby 2. Ann. (6)

per Holt, C. J. Act of the Court done upon record may be altered by them during the term. act of the party recorded by them, as nonsuit, or default, cannot; tho other party wd. waive the default.

Rents Ld Rockingham & al contra Oxenden & al, in Canc. 1711. (0)

Rent reserved payable on such a day. In afternoon of aniversary day before sun set lessor dies. Shall extr. or heir have the rent? Decreed to heir, because at death of lessor, payment could not have been compelled.

Restitution. Rex & Reg. vs. Leaver 3 W & M. (1)

[Domina Regina versus Winter. Pasch. 4 Ann B. R.] (3)

In indictmt. for Barratry dft was convict & fined £100, which was levied by Sheriff & paid to hands of Collectors—the Jdgt. Was reversed, moved for restitution vs Collectors. Holt. C. J. it cannot be; for they are not parties to any record here, they ought to be made by special Sci. fa. If feme sole recover damages & then marry & Jdgt be reversed, restitution lies vs her & her husband, but they are parties.

Traverse to Inquisition of forcible entry is a supersedeas to restitution.

Anon. 4 Ann. (4)

Where plf has execution & the money is levied & paid & Jdgt. after reversed; there because it appears on record that the money was paid, party shall have restitution without Sci. fa. aliter where levied but not paid. But where Jdgt. is set aside for irregularity there needs no Sci. fa for restit[ut]ion, but attachmt. shall be granted upon rule for contempt; if there be not a restitution. per Holt C. J.

Revocation. Hitchins vs Basset 5 W & M. (1)

In Ejectmt. a special verdt. Viz that A being seized made his will & devised his lands &c. and that A made aliud testamentum in writing, but what were the contents Jury did not know, Adjd. & affirmed in H. of Lords to be no revocation for the wills might be consistent. Levinz argued that revocations, being in nature of restitutions ought to be favd. in respect of the heir—that bargain & sale without enrolment revoked a will, citing Dyer 310. Moor 429. 1 Roll. 614.

Riots. Routs &c. Reg. vs Ellis. 6 ann. at Ni pri cor. Holt C. J. (5)

per Holt. 1. if several are assembled lawfully without any evil intent & an affray happens, none are guilty, but such as act; but if the assembly was originally unlawful, the act of one is imputable to all. 2. if 3 or more are lawfully assembled, & quarrelling all fall on one of their own Company, this is no riot; but if it be on a stranger, the very moment the quarrel begins, they begin to be an unlawful assembly, & their concurrence is evidence of an evil intention in them that concur, so that it is a riot in them that act & in no more. So ruled & so found by the Jury.

Rules of Court. Anon. 8 W III (2)

If a man enter into a rule not to sue Extion on a Jdgt. & brings an action of debt on the Jdgt, tis a breach of the rule.

Gregg’s Case 5 Ann. (3)

per Holt C. J. In an action by Admtr. dft cannot bring money into Court, because Admtr. is not by law to pay costs. In Greggs case, in Action by Extr. for money due Testator, twas moved to bring so much money into Court, but denied.

money may be brought into Court, in Covenant for rent, debt for rent, Replevin & avowry for rent.

In Ejectmt. upon an Entry for non-paymt. of rent, Ct. stayed all proceedings, on bringg. all the rent into Ct. & accepting new lease, & sealg a counterpart

In debt for rent, twas moved to bring so much into Ct. & Holt C. J. thought it hard. he sd. he remembered the beginning of these motions—the first was to bring in principal & interest upon a bond; after that it came, to an Indeb. assump it has been done in debt for rent, but not so freely, we do it in Ejectmt. because that action subsists entirely upon rules of the Court.

In debt on bond, dft must bring in the whole penalty, or Ct will not stay proceedings.

In a quantum meruit bringing money into Court was denied, 8 W III. But 5 Ann. it was allowed.

In trover for a horse, bridle & saddle, motion to bring into Ct. the bridle & saddle was denied. 2 Ann. Willcock’s attorney’s case.

Elliot vs Callow 9. Ann (4)

dft brought money into Ct. viz £10, & had it struck out of Decln: after plf suffered nonsuit. per Cur. he shall have the money aliter if it had paid into Ct by way of tender—If a man pleads tender & uncore Prist & pays money into Ct. & plf takes issue on the tender & ’tis found agst. him, dft shall have the money. Sty. 388.26

Scire facias. Pauton vs Hall. 1 W & M. (1)

Sci. fa. being an Judicial writ, must pursue the nature of the Jdgt., Ergo, Sci. fa. vs 2 separately on Joint Jdgt, ill.

Return of Sci. faci vs Tertenants ought to be of all Tertenants. in sua balliva.

Hardisty vs Barny 7 W III (3)

If a Jdgt. be above 10 years standing, plf cannot sue a Sci. fa. without motion in Ct. if under 10 & above 7 not without a motion at side bar. Note: if after such motion & Jdgt. revived by Sci. fa. dft dies before Extion. plf must sue Sci. fa. but may do so without motion.

Goodwin vs Peek. 11 W III (7)

first sci. fa was tested 24 Octr. ret[urn]able 31 Octr: the alias tested same day, ret[urn]able 7 Novr. 15 days inclusive sufficient

Sessions General & Quarter. Anon. 2 Ann. (4)

When a Stat: gives a penalty to be recovered before Justices of peace & prescribes no method, it ought to be by Bill. per Holt.

Statutes in General & the exposition thereof. Rex & Reg: vs Barlow 5 W & M. (1)

Where a Stat: directs the doing a thing for sake of justice or the public good may has the force of shall.

Mills vs Wilkins 2. Ann. (3)

per Holt C. J. title of a Stat: is no material part, nor necessary to be set forth, yet being the name given by the makers, must be rightly set forth, if set forth at all. so adjd. on demurrer—because no such act is set forth, under mistake of a word in title.

Statutes of Hue & Cry Combs vs the Hundred of Bradley 5 & 6 W & M. (2)

plf declared that he was possessed ut de bonis suis propriis. plf was a servant & the money his masters. Et per Cur. the action well lies for the Servt. is so possessed in respect of all but him who has the very right

Tender & refusal &c. Sweatland vs Squire 10 W III (2)

Indeb. assum. dft pleaded that before the action viz such a day he tendered so much money, & that he was always ready & now is ready & prays Jdgt. de dampnis. plf demured. Et per Cur. ’Tis not eno’ he was always ready since the tender; the money was due before & the neglect of paymt. was a breach of contract & cause of action, now here is no damages for that, but those damages & all that part of time remains unanswered, in respect of which plf ought to have Jdgt. Note. the Counsel for dft sd. that interest was due for time unanswered & damages wd. be recovered in respect of that interest, which Powel J. denied saying that interest is recovered by way of damages, where damages are recovered ratione detentionis debitis; but not where damages only are recovered.

Term-time & Computation. Astmole vs Sergeant Goodwin 11 W III (2)

As to business done out of Court, as rules to plead within four days, sundays & holidays are to be computed.

Sir Rob. Howard’s Case 11 W III (3)

A policy of ensurance was made to ensure life of Sir R. H. for one year from the day of the date thereof, the date was 3 Septr. 1697. Sr R. died on 3d Septr. 1698. about 1 oCl. in the morning. Et per Holt, C. J. 1. from the day of the date excludes the day, from the date includes it. So Insurer is liable—yet if A be born on 3d. of Sepr. & on 2d. Sepr. 21 years after make his will ’tis good, for law makes no fraction.

Harvy vs. Broad. 3 Ann. (8)

per Cur. 1. a writ may be executed the day it is returnable, but not after. 2. Ct. takes notice judicially of computation of time, & there needs no writ of error, nor assignmt. of such for error on record.

Treason. Rex & Reg: vs Geary. 1 W & M. (1)

Attainder of treason reversed on writ of error after a plea of Guilty for want of an allocutus before Jdgt. (1)

Trespass. Incledon vs. Burgess 1 W & M. (1)

Contra pacem, in trespass, is substance.

Wildgoose vs Kellaway. 3 W & M. (3)

Decln. in Tresps. without “vi et armis” ill on general demurrer.

Green vs Goddard. Ann. (12)

In T[respas]s held per Cur. 1. there is a force in law; as in every Tresps quar. claus. fregit: there is also an actual force, as in breaking open a door or gate, in former case, departure must be requested before forcible expulsion is justifiable, in latter no request necessary, but the force may be immediately repelled by force. 2. attempt to take or rescue cattle from H driving them, is a taking from his person. 3. where a traverse goes to the matter of a plea &c. all that went before becomes inducement & is waived by the traverse; but where traverse goes to the time only, what was set out in the plea before, does not become bare matter of inducement, nor is it waived by the traverse.

Cockcroft vs Smith. 4. Ann. (13

In T[respas]s & mayhem. Held that son assault demesne is a good plea in mayhem where the first asst. sufficiently violent & dangerous.

Trial [Smith versus Brampston. Mich. 7 Will. 3. B. R. 1 Ld. Raym. S. C. named Smith versus Frampton.] [Smith versus Frampton. Mich. 7 Will. 3. B. R.] (2 & 3) & [Anonymous. Pasch. 8 Will. 3. B. R.] 4) [Smith versus Page. Mich. 8 Will. 3 B. R.] (5) [Turbervil versus Stamp. Mich. 9 Will. 3. B. R.] (14) [Anonymous. Mich. 10 Will. 3. B. R.] (17

New trial denied because actions were hard. per Holt, the Court never or very rarely grants new trials for words. No new trial agst. equity of the cause. Motion for new trial nor new writ of enquiry cannot be after motion in arrest of Jdgt., but the latter may be after former

No new trial or new writ of enquiry for too small damages, unless these be trick.

Variance. Bragg vs Digby 10 W III (1)

Case on several promises by original, dft, without craving oyer of the writ, pleaded variance between it & Count; plf demurred, dft adjd. to answer over.

Dom: Regina vs Dr. Drake. 5 Ann. (7)

Information for libel. Held 1. tenor is a transcript. 2. not for nor, tho’ does not alter sense is fatal variance, the rule being that omission or change of letter which makes another word, the variance is fatal; aliter where the word remains the same. 3. a difference between words spoken & written, in former case there can not be a tenor, & it is sufficient if so many words be proved as are in themselves actionable. aliter in debt on bond; for on non est factum, any variance is fatal. 4 in pleading libel or other writing may be described either in the very words, or by its meaning & substance.

Uses & Trusts Davies vs Speed 3 W & M (1)

Husband seised in right of wife. they covenant to levy fine to use of heirs of body of husband begotten on wife, remainder to husband in fee. They have issue; wife dies, issue dies, husband dies. Question in ejectmt. whether heir of husband or of wife should have the land? per Cur: 1. here can be no estate to husband for life by implication; the estate being the wife’s to which he is a stranger. 2. this limitation to the heirs of the body of husband on wife begotten, is merely void; for as a remainder there is no precedent estate of freehold to support it. As a springing use, it is a springing executory use, to arise after a dying without issue, which law will not expect. But per C. J. a feofmt. [feoffment] to use of A & his heirs to commence 4 years hence is a good springing use, the whole estate remaing. in feoffor in mean time, so also to commence after death of A without issue, if he die without issue within twenty years.

Writ. Touchin’s case. 12 W III (1)

In all continued writs the alias must be tested the day the former was returnable.