7. Provided always, That this act shall not extend to give power or authority to any commissioners before mentioned, to make any orders, judgments or decrees, for or concerning any manors, lands, tenements or other hereditaments assured, conveyed, granted or come unto the queen's majesty, to the late king Henry the Eighth, king Edward the Sixth, or queen Mary, by act of parliament, surrender, exchange, relinquishment, escheat, attainder, conveyance or otherwise: And yet nevertheless, Be it enacted, That if any such manors, lands, tenements or hereditaments, or any of them, or any estate, rent or profit thereof, or out of the same or any part thereof, have or hath been given, granted, limited, appointed or assigned to or for any the charitable uses before expressed, at any time sithence the beginning of her majesty's reign: That then the said commissioners, or any four or more of them, shall and may, as concerning the same lands, tenements, hereditaments, estate, rent or profit so given, limited, appointed or assigned, proceed to enquire, and to make orders, judgments and decrees, according to the purport and meaning of this act, as before is mentioned-the said last mentioned proviso notwithstanding. Lands assur ed to king Hen. VIII. Ed. VI. Queen Mary and Queen Elizabeth. orders. 8. And be it further enacted, That all orders, judgments and de- Certifying the crees of the said commissioners, or of any four or more of them, shall be certified under the seals of the said commissioners, or any four or more of them, either into the court of the chancery of England, or into the court of the chancery within the County Palatine of Lancaster, as the case shall require respectively, according to their several jurisdictions, within such convenient time as shall be limited in the said commissions. 9. And that the said lord chancellor or lord keeper, and the said chancellor of the duchy, shall and may within their said several jurisdictions, take such order for the due execution of all or any of the said judgments, decrees and orders, as to either of them shall seem fit and convenient. of the 10. And that if after any such certificate or certificates made, any person or persons shall find themselves grieved with any said orders, judgments or decrees, that then it shall and may be lawful to and for them or any of them, to complain in that behalf unto the said lord chancellor, or lord keeper, or to the chancellor of the said duchy of Lancaster, according to their several jurisdictions, for redress therein: And that upon such complaint, the said lord chancellor or lord keeper, or the said chancellor of the duchy, may according to their said several jurisdictions, by such course as to their wisdoms shall seem meetest, the circumstances of the case considered, proceed to the examination, hearing and determining thereof; and upon hearing thereof, shall and may annul, diminish, alter or enlarge the said orders, judgments and decrees of the said commissioners, or any four or more of them, as to either of them in their Order for the execution of the commis sioners' decree. A remedy for any person grieved by the commissioners' decree. Costs of suit against the complainers. said several jurisdictions shall be thought to stand with equity and good conscience, according to the true intent and meaning of the donors and founders thereof; and shall and may tax and award good costs of suit by their discretions, against such persons as they shall find to complain unto them without just and sufficient cause, of the orders, judgments and decrees before mentioned. ed. Writ of nu 1285. 13, Edward I. Chap. 23. Writ of Nusance, &c. Casu consimili.-2 Litt. 510. In cases whereas a writ is granted out of chancery for the fact sance, and form of another, the plaintiffs shall not henceforth depart from the king's thereof where courts, without remedy, because the land is transferred from one to the land, &c. has been alien- another; and in the register of the chancery, there is no special writ found in this case, as of a house, a wall, a market, but the writ is granted against him who levied the nusance; and if the house, wall, or such like, be aliened to another, the writ shall not be denied; but from henceforth, where in one case a writ is granted in like case, when like remedy faileth, the writ shall be made as hath been used before: "Questus est nobis et quod D. injuste, &c. levavit domum murum mercatum et alia uquæ sunt ad nocumentum," &c. And if such things levied be aliened from one to another, the writ shall be thus: "Questus est nobis et quod B. et C. levaverunt," &c. And whensoever from henceforth it shall fortune in the chancery Clerks in chan- that in one case a writ is found, and in like case, falling under like law, and requiring like remedy, is found none, the clerks of the chancery shall agree in making the writ. cery may frame new writs. Jurors shall not be compelled to find a special verdict in disseizin. 13 Edward I. Chap. 30. Special Verdicts.-2 Litt. 513. It is ordained that the justices assigned to take assises, shall not compel the jurors to say precisely whether it be a disseisin or not, so that they do shew the truth of the deed, and require the aid of the justices; but if they of their own head will say that it is disseisin, their verdict shall be admitted at their own peril, 1350. 25 Edward III. Chapter 17. Process of Exigent shall be awarded in Debt, Detinue and Replevin.-2 Litt. 514. IT is accorded that such process be made in a writ of debt and detinue of chattels and taking of beasts by writ of capias and by process of exigent by the sheriff's return, as is used in a writ of accompt. 1363. 37 Edward III. Idemptitate nominis.-2 Litt. 515. FOR the great mischiefs which often have happened and daily do come, because that escheators, sheriffs and other of the king's ministers, do seize the lands, goods and chattels of many, because they bear the names of such as be outlawed for default of a good declaration of the surname; It is ordained, That if any complain him in such case, he shall have the writ of idemptitate nominis, in the manner as hath been used in time past; and if any man's lands, goods or chattels be seized in such case by escheator, sheriff, or other minister of the king, he shall find surety before the minister which hath the warrant to seize, to answer to the king of the value of such lands, goods and chattels, in case he cannot discharge him without taking any thing of the party; and if such minister do not the same, and be thereof attainted, the party shall have suit against such minister, and recover his double damages, and nevertheless he shall be grievously punished by the king. 1429. 8 Henry VI. Chapter 10. Malicious Prosecution.-2 Litt. 516. Action may EVERY person indicted or appealed in one county, of treason, felony, or trespass in another county, after he shall be duly acquit be maintained, ted by verdict, shall have a writ and action upon his case, against every procurer of such indictments; (a) and like process shall be upon ed in certain and treble damages recover and without any just cause of action, will support an action for a malicious prosecution against the plaintiff in the former action.-Wickliffe v. Payne, 1 Bibb, 413. 2. Upon setting aside a writ of inquiry, the court properly exercised their discretion in refusing a special plea of probable cause as evidence 41 cases, for ma- and in the same writ, as in a writ of trespass done with force and arms; and if such procurer be attainted in this behalf, the plaintiff shall recover his treble damages. licious prosecution. 1430. 9 Henry VI. Chapter 4. An Idemptitate nominis maintainable by Executors.-2 Litt. 517. FOR that before this time many outlawries have been pronoun Writ of ced against divers of the king's liege people, as well before the idemptitate nominis may be statute of additions made at Westminster, the first year of king maintained by Henry the fifth, as sithence, in respect of which outlawries, the bodies of other persons having such and like names as they had goods and chattels of testator which were outlawed, indeed, have been taken and imprisoned, and exccutor where of such cause might be given before the jury on the general issue. The attorney for the Commonwealth is not the only witness to prove who was prosecutor. A grand juror, in such cases, is competent to give testimony.-White v. Fox, 1 Bibb, 369. One of the grand jury before whom the indictment was presented is a competent witness to prove that the defendant appeared before them to prosecute the indictment.-Ibid. 3. The plea of probable cause to an action for malicious prosecution, is confined to the circumstances in connexion with the particular fact for which the prosecution complained of was instituted. Under this plea the general character is not directly put in issue and particular facts cannot be admitted as evidence of such charactcr, but it comes in collaterally and the general character itself may be given in evidence.Gregory v. Thomas, 2 Bibb, 286. 4. The want of probable cause and malice conjoined are necessary to support an action for a malicious prosecution. From the want of probable cause, malice may be inferred, but though express malice be proved it is insufficient to sustain the action if there be probable cause. Marshall v. Maddock, Litt. Sel. Cas. 106; Bell v. Ursury, 4 Litt. 335. 5. If a person has been discharged from a criminal prosecution without a trial on the merils, he must show express malice in the prosecutor before he can support an action for a malicious prosecution.-Frowman, &c. v. Smith and wife, Litt. Sel, Cas. 7. 6. A prosecution must be terminated before an action for malicious prosecution can be maintained and the plaintiff in the action must show in his declaration that it is really determined. When there is an averment that the plaintiff was acquitted of record, as that the grand jury returned an indictment "not a true bill," and he was discharged, parol proof, that they refused to present or indict him, is inadmissible.—Cole v. Hanks, 3 Mon. 209. 7. In a declaration for malicious prosecution, the averment that the prosecution was without probable cause is indispensable, and the defect will not be cured by verdict. Words of the same sense and import will be sufficient, but the terms "falsely and maliciously" will not supply their place.-Maddox v. McGinnis, 7 Mon. 372. 8. In plea of probable cause, the offence alleged to have been committed and the facts on which the defendant was induced to suspect the plaintiff, should be set out, that the court may see whether there was reasonable and probable cause for the arrest complained of in the declaration.-Legrand v. Page, 7 Mon. 401. If part of the defendants fail to plead judgment should go against them notwithstanding a good plea of probable cause may have been pleaded by the others.--Ibid. 9. Although probable cause might be given in evidence under the general issue, yet the defendant in an action for malicious prosecution, has the right to file a special plea of probable cause. Garrard v. Willet, 4 J.J. Mar. 629. 10. The finding a true bill by a grand jury is prima facie evidence of probable cause for a prosecution, and requires the plaintiff to show there was no such cause; for he must in such case, prove the malice of the prosecutor, of which the acquittal of the plaintiff by a venire is no evidence.-Ibid. See the case of Carrico v. Meldrum, 1Mar. 224, person of same name with the testator. their goods and chattels for this cause seized by the escheators of had been seized the king and his noble progenitors, and although that by the com- by an outlawry, &c. against a mon law of the realm, a writ of idemptitate nominis hath been maintainable for the same person which in the form aforesaid, was molested and grieved; nevertheless, if any person of the said lieges, having like name as any other person of the same liege people, which was outlawed, in deed had made his executors and died, often it happened that by malice and subtil imagination, the goods and chattels of such testator which had the same name as he had which was outlawed, indeed were seized and escheated to the hands of our lord the king, and of his progenitors, in retardation of the execution of the testament of every such testator, for the doubt which hath been whether any executor may by the common law have a writ of idemptitate nominis or not. Wherefore to take away and remove all such ambiguities and doubts in this case hereafter of the assent and advice aforesaid, and at the special request of the said commons, it is ordained and established by authority of this parliament, that a writ of idemptitate nominis be granted and made good and maintainable for the executors of every testator, to the same effect that the same action of idemptitate nominis was maintainable before this parliament, for any person himself, which was or might have been molested or grieved because or by color of any such outlawry. 1503. 19 Henry VII. Actions on the case. Be it enacted, That like process be hereafter had in actions upon Process in acthe case, as well sued and hanging, as to be sued in the court of tions on the king's bench and common pleas, as in actions of trespass or debt. 1748. case. Executors of AN ACT directing the manner of granting probates of Wills, and administration of Intestates' Estates.-Hening's Statutes at Large, Vol. 5, page 466. SEC. 37. And that actions of account shall and may be brought and maintained against the executors or administrators of every guardians, guardian, bailiff and receiver, and also by one joint tenant, or tenant joint-tenants, in common, his executors or administrators, against the other, as bailiff, for receiving more than comes to his just share or proportion, and against the executor or administrator of such joint tenant, or tenant in common. &c. accounta ble for receiving more than their share. |