torn in pieces with Rats if a Stranger by laying the pieces together could make the devise appear good if gnawn before the death against the Will IN an Eject ' firm ' upon a tryal at the Bar the Evidence was that one Warner by his Will in writing devised the Lands in question to Henry Etheringham and the Heirs males of his body and bailed the Writing to the Scrivener to kéep and four years after died and about a fortnight after his death this Writing was found in the Scrivener's Study gnawn all to pieces with Rats yet he with the help of the pieces and of his memory and other Witnesses caused it to be proved in the Ecclesiastical Court and now the Court demanded of the Witnesses whether a Stranger that knew not the Contents of the Will before by joyning of the pieces together could tell that the devise of the Lands in question was to Etheringham and the Heirs males of his body for they did agrée that if this clause could be made out though by joyning of the pieces it were a good Will for all that But the Witnesses said that a Stranger could not make out that clause Whereupon the Court directed the Iury that if they found that the Will was gnawn before the death of the Devisor then 't was for the Plaintiff if after for the Defendant and the Iury found for the Defendant in favour of the Will Markham versus Adamson Words I accuse you to be a Witch c. IN Slander The Defendant said to the Plaintiff I accuse you to be a Witch and the next day said I desire to have you searched the Plaintiff asked why would you have me searched the Defendant said because I accuse you to be a Witch and after a Verdict for the Plaintiff judgment was given against him because the words did not import an Accusation of any offence within the Statute But it was agréed that if the Plaintiff had béen accused of bewitching a Man or a Beast though this were not Felony by the Statute the Action would have lain and so hath it béen adjudged Newman versus Zachary ACtion sur le Case The Plaintiff declares that the Defendant was his Shepherd and that two of his Sheep did estray Action sur le Case for his false practice creating trouble c. to the Plaintiff one of which being found again the Defendant affirmed to be the Plaintiff's whereupon the Plaintiff paid for the feeding of it and caused it to be shorn and marked with his own Mark and yet afterwards the Defendant malitiose machinans to disgrace the Plaintiff and knowing the said Sheep to be the Plaintiffs falsò fraudulenter affirmavit to the Bailiff of the Manor that had waifs and strays belonging to it that this Shéep was an Estray whereupon the Bailiff seised it to his damage c. And after a Verdict for the Plaintiff Latch moved that there was no cause of Action for there is no breach of trust in the Defendant as Shepherd and his words cannot endamage the Plaintiff for he shall have his remedy against the Bailiff of the Manor that seised the Shéep wrongfully But it was adjudged that the Action would lie because the Defendant by his false practice hath created a trouble disgrace and damage to the Plaintiff and though the Plaintiff have cause of Action against the Bailiff Upon slandering a Title though the party hath remedy vers Trespasser yet Action lies against him that caused the disturbance yet this will not take off his Action against the Defendant in respect of the trouble and charge that he must undergoe in the recovery against the Bailiff and Hales said that if one slander my Title whereby I am wrongfully disturbed in my Possession though I have remedy against the Trespasser I shall have an Action against him that caused the disturbance Sir Thomas Bowe 's Case If Lessee for years hold over and pay his Rent quarterly that makes a Tenant at will 21 H. 7. 38 E. 14 H. 8. 11. f. Dyer 62 a. 173. IN Debt for Rent upon a Lease at Will of Houses in London upon a Trial at the Bar touching the Title of Sir T. Bowes it was agréed and given in charge to the Iury by Roll that if Tenant for years holds over his term and continue to pay his Rent quarterly as before that this payment and acceptance of the Rent amounts to a Lease at Will Ten. at will begins a new Quarter over shall pay the Rent Inst 56. 69. 13 H. 8. 16. a. Kel 65. 6. 2. That if Tenant at Will rendring Rent quarterly begins a new Quarter and voluntarily determines the Will before the Quarter ended yet he shall pay the Rent for that Quarter Evely versus Livermore H. 17 Car. Rot. 1409. Stat. 3 Jac. that does not extend to a special Action upon his promise and to give a Ticket of his charges IN an Assumpsit the Plaintiff declares that the Defendant reteined him as his Attorney to follow his Causes in the King's Bench Chancery and Court of Request and gave him so much in hand to defray his charges and promised to pay him what more he should lay out and alledges that he layed out 10 li. more then he received for Fees of Counsel and other charges in the Defendants Suits which the Defendant hath not paid c. The Defendant pleads the Statute 3 Jac. 7. that the Plaintiff did not give a Ticket to him of his charges c. and after demurrer it was adjudged for the Plaintiff for the Statute doth not extend to a special Action upon a promise and so it was adjudged in Dobbins his Case Farrer versus Bates P. 22 Car. Rot. Arbitrement Debt and other Controversieslie in Arbitrement though Debt solely does not IN an Indebitatus Assumpsit for 9 li. upon an Insimul computaverunt the Defendant pleaded a submission of all actions and controversies to Arbitrement and that the Arbitrators awarded that the Defendant should pay the Plaintiff 4 li. in satisfaction of all Accounts and upon issue quod non se submiserunt Arbitrio it was found for the Defendant and upon motion in arrest of Iudgment it was agréed Where Arbitrement is no plea in Debt it is no plea in an Assumpsit upon the Debt that though Debt it self doth not lie in Arbitrament yet that and other Controversies doth 10 H. 7. 4. 4 H. 6. 27. But it was likewise agrréed that where Arbitrament is no plea in Debt it is no plea in an Assumpsit upon the Debt 2. Where it does not reach the thing demanded It was resolved that the Arbitrament did not reach the thing demanded for that was only of all Accounts and this is a duty upon the Account and so the Defendant could have no Iudgment then it was moved to have a Repleader Repleader denied but denied by Roll being then sole present Hil. 22 Car. Banco Regis Powel versus Waterhouse
Action because they imply an act done And Roll said that where one said Where is that long lock't shagg-hair'd murdering Rogue And a stranger asked him who do you mean He said Greene of Fauseet the words were judged actionable so he said where one said Bring home the Cushion you stole the words were adjudged actionable But the Iudgment was stayed for further advice Dent versus Scott Trin. 22 Car. Rot. 1151. IN an Action of the Case upon an Indebitatus Assumpsit for Wares it was found by special Verdict Acc'on sur Case that the Wares were sold to the Defendants Wife for convenient Apparel which she wore and if c. And the Opinion of the Court was clear for the Plaintiff for the Wife may charge the Husband for Necessaries as Apparel Dyet and Lodging in case that the Husband doth not provide them for her But if the Husband allow a stipend to the Wife for these things and it be paid her then they held she could not charge him And Roll said that this was endeavoured to be proved at the trial and because it could not he would have had the Iury found generally for the Plaintiff And Bacon said that he and the other Iudges have lately certified the Lords in Parliament accordingly but for a flaw in the Declaration which was in considerat ' quod venderet deliberaret and no averment of any sale or delivery Iudgment was given against the Plaintiff because the Declaration was insufficient and so entered Note also that the promise in this Case is laid to be made by the Husband and the sale and delivery made to him but then it must be deliberasset for if it were in consideration quod venderet deliberaret to him then it may be questioned whether a Sale and Delivery to the Wife would make good the averment Dunsh versus Smith Hil. 23 Car. Rot. 37. IN an Action of Debt Debt brought by an Executor for the arrears of a Rent-charge upon the Statute of 32 H. 8. The Plaintiff declares that the Defendant in the life of the Testator did enter into the Land out of which the Rent was issuing and occupied it and took the profits thereof by the space of five years and demands the arrears of the Rent for the time And after a Verdict for the Plaintiff Mainard moved that the Action will not lye for the arrears against the Occupiers for the Statute gives it against the Tenants of the Land To which Hale answered That at the Common Law the Action lay against him that took the profits of the Land and against the Husband that was seized in right of his Wife C. 4. f. 49. 2. That this Action is given in lieu of a Distress and the Beasts of the Occupiers were chargeable to the Distress 3. That it would be convenient that the Plaintiff should be compelled to inquire out in whom the Estate was of right But Iudgment was stayed And Roll doubte◠of the Case but inclined against the Plaintiff Pasc 24 Car. B. R. Harvy versus Thorne Pasc 24 Car. Rot. 472. IN an Action upon the Case Case against an Executor the Plaintiff declares that upon a treaty of a Marriage it was agréed betwéen the Plaintiff and the Testator that he should pay to the Plaintiff 100 li. and whilst that should be unpaid he should pay the Plaintiff 10 li. per Annum which Agréement was made Anno 1618. And the Action was brought for all the arrears by the space of 28 years The Defendant pleaded the Statute of Limitations whereupon the Plaintiff demurred And upon the motion of Hale who advised the Attorney to bring the Action for all the arrears that it appeared that all could not be barred by the Statute Iudgment was given for the Plaintiff no Counsel being retained in the Cause for the Defendant Loder versus Hampshire IN Debt Debt upon a singel Bill of 50 li. the Defendant after Imparlance pleaded That after the last continuance the Defendant had paid the Plaintiff 5 li. parcel of the 50 li. and demanded Iudgment of the Bill Whereupon the Plaintiff demurred and because the Defendant did not alledge that he had an Acquittance which he ought to produce At the motion of Earle Iudgment was given against the Defendant that he should answer over c. C. 5 E. 4. 139. a. Dod versus Robinson Trin. 23 Car. Rot. SLander Slander The Plaintiff declares that the last of March 13 Car. he was Instituted and Inducted into a Parsonage in Ireland and executed the Office of a Pastor in that Church by the space of four years after and the Defendant said of him He was a Drunkard a Whoremaster a common Swearer and a common Lyar and hath preached false Doctrine and deserves to be degraded And after a Verdict for the Plaintiff it was moved by Hale in arrest of Iudgment 1. That the words in themselves are not actionable because the Crimes charged impute no Civil or Temporal damage to the Plaintiff for which he may have Action But the Opinion of the Court was clear for the Plaintiff in that point for that the matters charged are good cause to have him degraded whereby he should lose his Fréehold which is a temporal damage to him Then it was objected That he did not lay that he was Parson when the words were spoken To which it was answered by the Court That it should be intended he continued Parson because he had a Fréehold in the Parsonage during his life But it was further urged That inasmuch as he hath laid a special time during which he exercised the Office of a Pastor it shall not be intended that he continued so longer then himself hath laid it And of this the Court doubted but inclined for the Plaintiff Morefield Webb Pasc 23 Car. Rot. 51. Acc'on fur Case IN a Writ of Error upon Iudgment in the Palace Court at Westminster In an Action upon the Case upon a Promise and a Verdict for the Plaintiff It was moved for Error that the Habeas Corpora Jurator̄ was not returned served but that there was a Pannel of the Names of the Iurors annexed to it which Case is aided by the Statute of 21 Jac. which aids when there is not any return upon the Writs of Ven. Fac. Hab. Corpora et Distring so as a Panel of the Names of the Iurors be returned and annexed to the said Writs And two Objections were made 1. That this Statute extends only to such by Writ and in this Court it is by Precept and not by Writ 2. It appears that this Court was erected by Letters Patents 6 Car. which was after the Statute But it was resolved 1. That it is within the Intention of the Statute which doth provide amendment in any Action Suit Plaint Bill or Demand And Roll said that it is questionable if this Statute extends to the Grand Sessions in Wales and Iustice Jones was angry that it was made a Question
affirmed Trin. 24 Car. B. R. Freeborne versus Pincras Hil. 23 Car. Rot. 1375. Acc'on sur Case IN an Action upon the Case the Plaintiff declares that the Defendant in consideration c. did promise to joyn with him in a Surrender of certain Copyhold Lands for a Sale to be made of them to any person and avers that he had procured 2 Copyholders such a day to be present at a certain place within the Mannor and that the Plaintiff was then and there ready to have joyned with the Defendant in a Surrender of the Lands for a Sale to be made to one J. S. and that the 2 Copyholders were then and there ready to have received the Surrender c. and that then and there he did request the Defendant to joyn with him in a Surrender into the hands of the two Copyholders to be presented by them in Court to the use of the said J. S. c. Secundum consuetudinem manerij praed ' à tempore quo c. usitat̄ quodque sursumredditio sic requisita facienda fuit pro venditione of the said Copyhold Lands pro quadam pecuniae summa per praed ' J. S. solvend ' And that the Defendant non junxit with the Plaintiff in the Surrender licet ad hoc faciend ' postea eodem die per praed ' querent̄ requisitus fuit c. And after a Verdict for the Plaintiff upon Non assumpsit pleaded upon motion in Arrest of Iudgment it was resolved by Roll that the Declaration was insufficient 1. For that the Plaintiff hath alledged that he was ready to joyn in a Surrender with the Defendant and that then and there he did require the Defendant to Surrender but hath not alledged that he did give notice to the Defendant that he was ready to joyn with him and so it is no more then a bare request to the Defendant to make a Surrender which is not sufficient for that the Plaintiff was to joyn with him in it 2. The Surrender was to be for Sale to be made to J. S. and the Plaintiff hath not any way intimated to the Defendant that the intention of the Surrender was such And Roll said that the notice ought to be particular of the agréement and sum for which it was to be sold 3. The Promise is general to joyn in a Surrender and the Request is to Surrender into the hands of two Customary Tenants which being a particular way of Surrender grounded upon a particular custome is not within the intention of a promise generally to Surrender which is to be taken according to the common way of Surrender and so he said it was resolved Pasc 9 Car. in this Court betwéen Sims and the Lady Smith And so if a man be bound to another to make such assurance of Lands as the Obligée shall devise it is not sufficient for him to devise a Fine and to take out a Dedimus c. upon it and require his Conusants in that for this is but a special way of taking the Conusans and so he said it had béen ruled But if there were a Proviso that he should not go above five miles from his House then if his House be above five miles from Westminster he is bound to make his Conusans upon the Dedimus and that he said hath béen the difference 4. He hath not positively alledged that there was a custome in the Mannor to Surrender into the hands of two Copyholders which he ought to have done but hath too superficially pleaded And Iudgment was given against the Plaintiff Trin. 24 Car. B. R. Read versus Palmer Pasc 24 Car. Rot. 326. IN an Action upon the Case the Plaintiff declares Acc'on sur Case that whereas he had brought an Action of Battery against the Defendant and procéeded to a Trial at Guildhall London where a Iury was drawn by consent and the Plaintiff and Defendant submitted the Cause to the award of two of the Iurors infra unum mensem proxime sequent̄ fiend ' and that postea eodem die in considerat̄ that the Plaintiff did promise to the Defendant to performe omnia et singula quae praed'arbitratores ex parte ipsius querent ' de et super praemissis faciend'et observand'ordinarent et adjudicarent And here the Plaintiffs Attorney after Issue joyned without notice inserted infra unum mensem the Defendant promised in the same manner and the same Clause there inserted by the Plaintiffs Attorney And after Verdict upon Non assumpsit pleaded this amendment after issue joyned without notice was moved in arrest of Iudgment wherein the question was Whether this amendment were in a point material for it was agréed that if it were not in a material part of the Declaration then it could not prejudice the Plaintiff And Twisden urged that it was not in a material part 1. Because every submission to an Award implies a Promise to perform it and so the promise laid is no more then was implyed in the submission 2. The Promise is to perform what the Arbitrators should award which must be taken with relation to the submission which was to an award to be made within a month And so the words infra unum mensem are but an expression of that which would have béen implyed without them But it was resolved by Roll upon good deliberation that the amendment was in a material part For 1. Though a submission to an Award be good Evidence to induce a Iury to find a Promise to perform it yet in Iudgment of Law the Promise is collateral to the submission and not implyed in it 2. Though the Promise be collateral to the submission yet if it had béen laid to have béen made at the same time with it then it should have béen intended adequate and proportionable to it but being laid to be made at another time although it be the same day it cannot be so intended because it is not immemediately applyed to the submission but it might have inlarged or abridged the time limited thereby And he cited a Case betwéen Hodge and Vavasour 14 Jac. where the Plaintiff declared that the Defendant such a day became indebted to him for Wares and in consideration thereof postea eodem die promised to pay it And this was ruled good not as a promise in Law but as an actual promise raised upon a consideration continuing which he cited to shew that a little distance of time though the same day alters the intendment of Law and a new Trial was awarded Trin. 24 Car. B. R. Chace versus Gold Pasc 24 Car. Rot. 219. IN an Action of Debt upon a Bond of 200 li. with Condition for the payment of 104 li. at a day certaine Release made by the Defendant and two others joyntly and severally The Defendant upon Oyer and Entry of the Bond and Condition in haec verba pleaded that the Plaintiff did release praed ' scriptum obligatorium by the name of an Obligation in 200
that he had a double power by the first Indenture the one to limit other uses to such persons and for such estates as he pleased the other to revoke the uses limited by the first Indenture and to limit new uses And when he limits uses generally which cannot stand by the power reserved by the Proviso for lack of tender the Law will refer the limitation to the power he had to limit other uses c. And Sir Edw. Clears Case Lib. 6. 18. was cited And secondly for that the second limitation is expresly made according to his power which refers to that power which he persued And it was touched whether the uses limited according to that power were revocable by the Proviso And Mainard said it might be a question And Iudgment was given for the Plaintiff Mainard for the Plaintiff and Latch for the Defendant Quaere in the case cited if a lessor should bring Trover against a stranger for Trees cut by him if this should be a bar to an Action of Waste for the Trees And if there were cause for reparations what remedy hath the lessee for his loss for it should seem that he will be liable to an Action of Waste for not repairing although the lessor recovers for the Trees Sir Anthony Ashly Cooper versus Saint John Trin. 24 Car. Rot. 267. Trin. 1649. between the same Plaintiff and Webb Defendant entred Hill 24 Car. Rot. 426. the same declaration was adjudged good upon a demurrer IN Trespass the Plaintiff declared quod cum he was seised of two Closes of pasture which were inclosed by him and whereas there was a Common next adjoyning to them the Defendant decem perticatas sepium claus ' praedictae pasturae prostravit sic prostratas for such a time custodivit per quod the beasts depasturing in the Common came into the Closes and eat the grass there ad dam ' c. the Defendant pleaded non cul'infra 6 annos And after a Verdict for the Plaintiff Mainard moved in arrest of Iudgment that it ought to have been vi armis because the Trespass is laid to be done in his own soil and said that in false imprisonment per quod he was compelled to pay 5 l. in a Case about seven or eight years since N. B. 93. d. Iudgment was arrested for want of vi armis But the exception was dissallowed and Iudgment given for the Plaintiff without argument for the conclusion per quod and the commencement quod cum shew it to be an Action of the Case and the causa causans of the Damages may be laid vi armis or without it Lib. 950. f. Vide 13 H. 7. 26. f. which is no Law Quaere if in Case of false imprisonment there be not a difference between a conclusion per quod quousque c. Mich. 24 Car. Banco Regis Kynaston Spencer versus Jones Mich. 23 Car. Rot. 589. IN Debt upon a bond of 2000 l. bearing date 9 Martii 22 Car. with Condition to stand to the award of J. S. and J. N. indifferently chosen Arbitrators of all matters and controversies betwéen the parties Debt upon Award so that they made an award of the premises before the Feast of Easter next ensuing upon nullum fecerunt arbitrium ante festum Paschae pleaded by the Defendant the Plaintiffs replied that before the Feast of Easter viz. the 15 day of April following the Arbitrators did make their award that the Defendant should pay to the Plaintiffs 1200 l. at four payments viz. on the 16 of October and the 16 of April and that on the fourth of May he should enter into four bonds for the payment and should then pay to the Plaintiffs 30 l. towards their costs and charges expended and that all Actions and controversies betwéen the Plaintiffs and Defendant should cease and determine and that they should seal and deliver to each other general Releases of all controversies suits and demands until the eighth day of March and time and place appointed for the doing of this And Assigned breach in not paying the 30 l. upon the fourth of May The Defendant rejoyned that the Arbitrators nullum fecerunt tale arbitrium modo forma pro ut de hoc c. whereupon Issue was Ioyned and by special Verdict it was found that the sixth of Febr. 22 Car. the parties agréed to submit all controversies betwéen them to Arbitrement and that 22 Febr. 22. Car. the Plaintiff became bound to the Defendant to stand to the award of the Arbitrators according to the condition ut supra and that 9 Mart. 22. Car. the Defendant became bound ut supra and that praedict ' 15 die Aprilis 23 Car. the Arbitrators made their award reciting that the Plaintiffs and Defendant became bound the 9 of March in 2000 l. a piece to perform their award and that the Defendant had received of the Plaintiff 1000 l. an 1641. which with Interest amounts to 1460 l. and upwards and that the Plaintiff had béen at Charges for the recovery thereof and thereby awarded ut supra And upon this Verdict two questions were made 1. Whether upon this Issue the submission be in question 2. Admitting it be whether the award upon the submission found be a good award Et Term. Pasch ult the Case was argued by Philips for the Plaintiff and Latch for the Defendant And this Term by Hale for the Plaintiff and Mainard for the Defendant And it was resolved by Bacon and Roll. 1. That upon this Issue the Iury cannot enquire of the submission for that is admitted by the plea. And therefore the Defendant could not have set this matter forth in the rejoynder thereby to have made good his bar that the Arbitrators made no award for the award in it self is a good award And it would have been a departure in him to have alledged a matter extrinsecal to the award which should prove it to be void and for this Lincy and Ashtons Case 12 Car. in this Court was cited by Roll where in debt upon a bond to perform an award upon nullum fecerunt arbitrium pleaded the Plaintiff set forth an award that the Defendant should pay 10 l. to the Plaintiff at the house of a stranger and Assigned breach in non-payment the Defendant rejoyned that he could not come to the strangers house without being a Trespasser and upon demurrer it was adjudged for the Plaintiff 39 H. 6. 6. h. Lib. 5. 103. for the award set forth by the Plaintiff was good and the matter alledged by the Defendant in avoidance of it was a departure from his bar And therefore he ought to have alledged the whole matter in his bar And so must he have done in this Case if he would have taken advantage of the submission and he said that 14 Car. Iudgment was affirmed in the Exchequer and both points resolved accordingly 2. Against the award it was objected that thereby the bond made by the
c. And it had been all one case if it had been made determinable upon any other limitation as upon payment of money also in all those Cases the Interest is determinable some way or other but in our case it should be perpetual upon the contingency aforesaid Hil. 23 Car. Banco Regis Petchet versus Woolston Pasc 23 Car. Rot. 497. JVdgment was had against an Administrator in a Scire facias Scire facias upon a Iudgment against the Intestate and a Fieri facias awarded and upon nulla bona returned and a testatum of Waste a special Fieri facias was awarded to the Sheriff quod si sibi constare poterit per inquisitionem vel aliter that the said Administrator vendidit elongavit vel ad usum suum proprium convertit the Goods of the Intestate tunc scire faceret the Defendant why execution should not be had of his proper Goods the Sheriff returns an Inquisition which finds a devastavit and that Scire fac ' c. whereupon the Defendant comes and pleads payment and an Acquittance as to part and to the residue fully administred at the time of the first Scire facias awarded whereupon the Plaintiff demurred and the Case was argued the last Term and this Term that the plea was insufficient 1. Because the plea was argumentative only and did not directly answer the Charge by the Inquisition that he wasted the Goods of the Intestate which being but an inquest of Office is traversable 2. Fully administred is no good plea to a Charge by Iudgment for this supposeth the Goods came to his hand which he hath administred and that he ought not to averr generally in respect of the height of the Charge which being by Iudgment binds the Goods of the Intestate in his hands and therefore he ought to shew specially how he hath administred And Hales said that for this very cause Pasc 39 El. Rot. 14032 between Ordway and Godfrey fully administred pleaded to a Scire facias upon a Iudgment against the Testator upon a demurrer was judged insufficient and the like Iudgment was given upon the same plea to a Scire facias upon a Debt assigned to the King Pasc 2 Car. Rot. 28. Dyer 80. a. in Ireland's Case But he said if Issue were joyned it was helped and so it was adjudged Hil. 11 Jac. Rot. 19063. between Haper and Renold To which it was answered by Maynard 1. That an argumentative plea is sufficient upon a general demurrer but in this Case the Charge is not that he hath wasted the Goods of the Intestate but the Writ requires us to shew cause why the Plaintiff should not have execution of the proper Goods of the Defendant And we shew for cause that we have fully administred which is a more proper plea than to traverse the Inquisition 2. Though the Charge be by Iudgment yet we might have well administred as by paying Debts upon other Iudgments and so ought the plea to be intended which is confessed by the Demurrer And Roll openly declared his opinion the case being argued both the last and this Term that the plea was good upon a general Demurrer and for the Case of Ordway and Godfrey he said it did not appear whether the Demurrer were special but he said that Yelverton after he was overruled in it said openly at the Bar that he would maintain the plea to be good And he said that it is a better plea in it self than to traverse the wasting of the Goods And Bacon at first seemed to be of the same opinion but was moved by the Iudgments cited by Hale But it was agreed that the best pleading were to say that no Goods came to his hands except such and such if any did and shew how he administred them And by perswasion of the Court the Demurrer was waived and the parties pleaded to Issue SImmons alii were indicted for a forceable detainer of the Lands of one Egerton within the County Palatine of Chester and restitution granted there And now the Indictment being brought hither by Certiorari it was moved that their Iurisdiction there is exclusive save only in case of Treason or Writs of Error and therefore the proceedings here would be coram non Judice and the Court doubted what should be done because no priviledge is returned and restitution was awarded below after the Indictment removed But after Bacon openly declared that forasmuch as Indictments upon the Statute of 8 H. 6. ought to be taken before Iustices of the Peace and the Iustices of Peace as well in Chester as otherwhere by the Statute of 27 H. 8. cap. 5. 25. ought to be made by Letters Patents under the Great Seal their proceedings there quatenus Iustices of the Peace are subject to the Iurisdiction of this Court. And the Indictment was that Egerton was seised of the Land ut de libero tenemento pro termino vitae suae seisinam suam praedictam continuavit quousque the said Simmons alii pacifice intraverunt supra possessionem suam existent ' liberum tenementum suum eum adtunc ibidem vi armis dissesiverunt contra pacem Domini Regis contra formam Statuti c. And exceptions were taken to the Indictment 1. Because it did not conclude contra coronam c. but only contra pacem 2. Because it is not said adtunc existent ' liberum tenementum and that is not supplied by the intendment of the words dissesiverunt but those exceptions were disallowed 3. It concludes contra formam Statuti where it ought to be statutor ' for the Statute of 8 H. 6. cap. 9. is relative to the Statute of 15 R. c. cap. 2. and recites it and then the words are joyned thereto the Case of peaceable Entry and forcible Detainer and so this Statute is but supplemental of the other But to this it was answered that this Statute first recounts the defects of the Statute of 15 R. 2. and then confirms it and after provides for the case of peaceable Entry and forcible Detainer to which the Statute of 15 R. 2. did not extend so that as to this clause it is a new distinct Law and consequently the Indictment good But to that it was replied that the Statute 8 H. 6. goes on and provides that in case of forcible Detainer after complaint made to the Iustices of Peace they shall cause the Statute of 15 R. 2. to be duly executed by which Statute the Offendor is to be fined and imprisoned so that this Statute grants only restitution and refers the other punishment to the Statute of 15 R. 2. So then upon this Indictment contra formam Statuti taking it to be that of 8 H. 6. as it must be the Offendor cannot be punished within that of 15 R. 2. And so the King should lose his Fine And for this cause after several debates Roll held the Indictment insufficient but Bacon contra because the ancient
Musgrave Hobart 18. which was cited by Hale who said he had séen the Record of it and it is entred Mich. 10 Jac. rot 76. in Scacar where the Plaintiff in an Ejectione firmae declared that J. S. 5 Maij 10. Jac. Demised a House to him Habendum from the Feast of Annunciation last past for 21 years extunc proxime sequentÌ„ And the Defendant the same 5. of May ejected him and upon Non cul the Iury found that the said J.S. the said 5. day of May by Indenture bearing date the 4. of May demised the House to the Plaintiff To have and to hold from the Feast of the Annunciation last past for and during the tearm of 21 years next ensuing the date hereof fully to be compleat and ended And upon that Verdict the Plaintiff had Iudgment which was affirmed there also in which case the tearm began from the Feast of the Annunciation in computation of the 21 years and upon the 5. of May in point of Interest But Roll agréed that if in the principal Case the Lease had béen made To have and to hold from the day of the date from henceforth for Seven years then the Plaintiff had declared right And Iudgment was given against the Plaintiff Hale for the Plaintiff Twisden for the Defendant Trin. 24 Car. Ward Prin. Pasc 24 Car. Rot. 169. IN a Writ of Error Error upon a Iudgment in C. B. in an Action upon the Case wherein the Plaintiff declares That whereas one John Ward the Plaintiffs Granchild by the consent of the Plaintiff was put to the Defendant to serve him being a as his Clerk And that the Defendant was to find him meat drink and lodging c. And that the Plaintiff thereupon had given 30 li. to the Defendant and had agréed to give 30 li. more in consideration that the Plaintiff at the special Request of the Defendant would give consent that the said John Ward should depart out of his Service And that the said John Ward should depart his Service the Defendant promised to pay to the Plaintiff 15 li. c. And upon Non assumpsit a Verdict for the Plaintiff And it was moved for Error that there was no Consideration for the Promise but the giving of the Plaintiffs consent that J. W. should depart and he might have departed without his consent but it was disallowed For the Relation of the Plaintiff to J. W. and the Charges he sustained in placing him with the Defendant shew that his Interest was so great in him that in all probability the Plaintiffs consent was an effectual means to cause J. W. to depart from the Defendants Service And the Case of Grisby and Lother in Hobart was cited where the Mothers consent that her Daughter should marry the Defendant was a good consideration of a Promise to the Mother And the Iudgment was affirmed Hale for the Plaintiff in the Writ of Error Surry PRigg was Indicted that legitime electus fuit decenniarius Angl ' Headborough of the Ville of D. non praestitit sacramentum suum before any Iustice of Peace to execute the Office sed voluntarie obstinate abstained from it And it was agréed by Roll that one may be Indicted for not taking his Oath in such case but then he ought to be warned to appear before a Iustice of Peace there to take his Oath and for want of that and for that it did not appear how he was chosen Headborough the Indictment was quashed And afterwards upon motion a Writ was granted out of this Court directed to him commanding him to go before some Iustice of Peace to take his Oath c. was Convicted of Perjury by Verdict for swearing he was Servant to J. S. where in truth he was only Servant to the Servant of J. S. And for this Oath Roll fined him 10 li. though Wilde moved for an Abatement for that it was not malicious and said that one Tiler in liâ—e case was fined but 5 li. Newton Uxor versus Weekes Uxor Hil. 23 Car. Rot. 1470. IN an Action of Covenant Covenant upon an Indenture made by the Wife Defendant whilst she was sole to the Wife of the Plaintiff whereby she reciting that she was seized in Fée of certain Lands in consideration of a Marriage to be had betwéen the Plaintiff and her Son did grant to the Plaintiff a Rent-charge out of those Lands to have after the death of her Son and Covenanted to pay it c. The Defendants pleaded that shâ— had nothing in the Land at the time of the Grant but that a stranger was seized of it And upon Demurrer it was adjudged for the Plaintiff both because the Defendant is estopped by the Déed and that the Covenant extends to it is as an Annuity absque argumento ad motionem Mri. Prestwood Southcote versus Southcote Hil. 23 Car. Rot. 1173. IN an Action of Debt upon the Statute of 2 Ed. 6. the Plaintiff sets forth that he was proprietarius decimarum garbarum faeni c. And that the Defendant did sow certain Land containing so many Acres in that Parish with grain and after mowed it and carried away the Grain not setting out the tenth part And after a Verdict for the Plaintiff upon Nil debet pleaded it was moved in arrest of Iudgment 1. That the Plaintiff hath entituled himself as proprietarius decimarum garbarum and demands for Tithe of Grain in general whereas Garbarum is a word of incertain signification and divers sorts of Grain are not wont to be bundled up as Rape-séed Mustard-séed and Cummin-séed which us'd to be threshed out in the Field 2. He demands for Tythe of Grain in general which is too incertain for that that there are several sorts of Grain But it was resolved 1. That Garba in its prime and proper signification is intended of Corn And so Roll said it was resolved 1. In Baxter's Case upon Consultation with the Civilians where one upon a Grant of Decimas garbarum would have had Tithe-hay but they did agrée that the word in its Latitude did comprehend any thing that useth to be bundled as wood c. but the ambiguity of the word here is taken away by the Verdict and is to be intended of Grain that is Garbable 2. The word Grain is certain enough for that it is expressed to be sowen upon a certain number of Acres And here is not a demand of the thing it self but Damages for it and all predial Tithes are within the Statute And this Exception was over-ruled in the great Case Coke Lib. Intra 162. cited 2. In. 650. And Roll said the same Exception was taken in Goldsmith's Case Trin. 10 Car. Rot. 893. B. R. but the Roll being séen in that Case the Verdict was not entred And Roll gave order that the Iudgment should be entred for the Plaintiff but after directed it might be respited till next Term But after the Iudgment was entred and a Writ of Error
brought in the Exchequer but I think it was for delay only Term Mich. 24 Car. Banco Regis Udal versus Udal IN a Trover and Conversion of 400 Load of Timber Vpon not guilty pleaded the Iury found by special Verdict that Sir William Udal being seized in fée of the Mannor of Horton whereof the Land where the Timber grew was parcel did Covenant by Indenture to levy a Fine to the use of himself in Tail the Remainder to such persons and for such Estates as he should limit by Indenture and for want of such limitation the remainder to the Defendant for life the remainder to his eldest Son in Tail and to his tenth Son and for want of such Issue the remainder to W. U. for life the remainder to his eldest Son in Tail c. and so to his tenth Son the remainder to the right heirs of Sir William with a Proviso that upon tender of 5 s. c. he might revoke those uses and limit others and levyed a fine accordingly And after by another Indenture reciting the uses of the first and the Proviso in it made a new limitation to the use of himself in tail the remainder to the Defendant for life with like remainder ut supra to his Sons the remainder to W. U. for life with like remainders to his Sons the remainder to the Plaintiff in Tail c. according to his power and the clause in the said Indentures and dyed without Issue and the Defendant neither himself nor W. U. having any Son cut down the Timber and years after sold part of it and the Plaintiff seised the rest which the Defendant did take again from the Plaintiff and sold the same and if c. And the case being argued Trin. Pasch ult and this Term it was resolved by Bacon and Roll. 1. That if there be tenant for life the remainder for life and tenant for life cut down Timber trées he that hath the Inheritance may seise them although he cannot have an Action of waste during the life of him in remainder For 1. The particular tenant hath not the absolute property in the Trées but only a special Interest in them so long as they continue annexed to the Land And therefore a Termer cannot grant away his term excepting the trées but the exception is void for that he cannot have a distinct interest in them but only relative to the land And so it is resolved in Sanders Case Lib. 5. 12. f. and so Mainard said it was resolved 10 Car. in Whites case in the Court of Wards in case of lesseé for life but where a Lease for years was made without Impeachment of waste such an exception was adjudged good as he said in Sir Alan Piercy's Case and so Bacon said it was adjudged 9 Car. in Dame Billinglys Case Then the remainder for life betters not the interest of the tenant for life in the Trées but only is an impediment for the time to the bringing of an Action of waste and therefore after the death of him in remainder for life an Action will lye for waste done in his life time And so it is adjudged in Pagets Case Lib. 5. 76. g. and so Mainard said it was adjudged Mich. 14 E. 2. in a Case not Printed that where he in reversion upon an estate for life granted his reversion for life and the tenant for life made waste and then the grantée of the reversion dyed that an Action of waste would lye against the tenant for life which proves that the cutting down of the Trées by the Tenant was tortious 2. It was resolved that the mean remainders in contingency though of an estate inheritance alter not the case for an estate in contingency is no estate till the contingency happen And therefore it was agréed that the Plaintiff might have had an Action of waste in this Case had there not béen a remainder for life in esse notwithstanding the mean contingent remainders 3. It was resolved that a Trover and Conversion in this Case would lye for all the Timber trées though the Plaintiff never seized parcel of them for by the cutting down of them an absolute property was vested in the Plaintiff unless they had béen cut down for reparations and so imployed in convenient time And for this Bury and Heards Case was cited by the Court which commenced in this Court 20 Jac. and depended seven years where a stranger entred into Lands leased for life and cut down Timber trées and barked them and the lessor before seisure brought a Trover for the bark and had Iudgment to recover notwithstanding that the cutting down and barking was all at one time whereupon it was then objected that the distinct property of a chattle was never settled in the lessor and the book of 13 H. 7. 9. g. cited that Trespass vi armis doth not lye against lessée for years who cuts down Timber trées and sells them Per Curiam Which Case was then affirmed for good Law but there it was agréed That if lessée for years cuts down Timber trees and lets them lye and after carries them away so that the taking and carrying away be not as one continued act but that there be some time for the distinct property of a divided chattle to settle in the lessor that an Action of Trespass vi armis would lye in such case against the lessee And that in such case felony might be committed of them but not where they were taken and carried away at the same time Vide 3 In. 109. a. c. 4. 63. f. And it was resolved in that Case of Bury and Heard that although the lessee had a special Interest in the trees as for necessary reparations c. yet the Action would lye for the lessor for the Interest of the lessee was determined by the cutting down unless he had cause for necessary reparations which had there been yet might the lessor have his Action but if the lessee in such case had brought his Action and recovered this would have been a good bar against the lessor but in the principal case there was years distance between the cutting down and the sale And also the Defendant by the sale made himself an absolute wrong doer for though there had been cause for reparation yet the Trees being cut down and sold though other Trees had been bought with the money and imployed in reparations this would not have excused him in an Action of Waste And an exception was taken by Latch to the execution of the power of Sir William upon the limitation of the uses by the last Indenture for that it was made with relation to the Proviso And five shillings were not tendered which was the Condition of the power thereby reserved and then Sir William being tenant in Tail the reversion to himself in fee by the first Indenture and dying without Issue the Defendant being his heir was seised in fee but the exception was clearly disallowed both for
T. 22 Car. Rot. IN an Assumpsit the Plaintiff declares that the Defendant in consideration of a Marriage Promise inter alia not good ought to set forth the whole Promise c. Inter al' promisit de payer tant puis Verdict pro Querent ' Judgment fuit done vers luy because he ought to set forth the whole promise which is entire Hinacre versus Lemon M. 22 Car. Rot. SLander Words charged with procuring Felony good The Defendant said of the Plaintiff she caused Mr. Langly's Servant to steal and purloin 30 and received them and sold them which was the cause why his Master broke and upon a Verdict and Iudgment in the Common Bench in a Writ of Error the Iudgment was affirmed because she is charged with procuring of Felony and receiving stollen Goods Haines versus Finch Debt upon a promise for bringing up Children good without saying they were the Plaintiff's AN Executor brought an Action of Debt upon a promise made with the Testator for bringing up of Children and Teaching and after a Verdict for the Plaintiff upon nil debet pleaded it was moved that Debt would not lie in the Case because it was not layed that they were the Plaintiff's Children But the opinion of the Court was for the Plaintiff for Debt will lie upon a promise made by a stranger Debt upon a promise of money to marry a poor Virgin as in N. B. 122. k. If one promiseth money to another for marrying a poor Virgin Debt lieth but the parties agréed and so no Iudgment was given And Roll said that in Trevilian's Case Servant retain'd an Attorney for his Master and promises him his Fees Debt lies against the Servant where a Servant retained an Attorney for his Master and promised he should have his Fées an Action of Debt was brought thereupon by the Attorney against the Servant in C. B. and the Plaintiff recovered but upon Error in this Court a rule was given for the reversal of the Iudgment notwithstanding the like President shewn in Bradford's Case but he said that the Iudgment was not reversed upon the Roll and his opinion was that the Iudgment was good Edwards versus French T. 22 Car. Rot. 675. Slander whereby he lost his Marriage And no agreement of Marriage or mutual Love alledged and the words were spoken only in the innuendo yet good SLander The Plaintiff declares that whereas there was a Communication of Marriage betwéen the Plaintiff and one Mary Hicks who was worth 300 li. and that she deferred Marriage with the Plaintiff q. d. that verisimile fuit that they should be Married the Defendant in the hearing of divers persons said Mary Hicks is Mr. Edwards his Whore innuendo the Plaintiff whereupon Mary Hicks was refused to Marry the Plaintiff And after a Verdict for the Plaintiff it was moved that there was no agréement of Marriage nor mutual love alledged betwéen the Plaintiff and M. H. 2. That the words were not alledged to be spoken of the Plaintiff but only in the innuendo yet upon good debate Iudgment was given for the Plaintiff Osborne versus Brooke Trin. 22 Car. Rot. 677. SLander Captain Osborne is forsworn Slander Is forsworn and his Oath appears upon Record Act ' gist and his Oath appears upon Record The Defendant as to the first words pleads not guilty and as to the latter justifies that he was forsworn in finding of an indictment of Forcible Entry and upon de injuria sua propria as to the justification both issues were found for the Plaintiff And upon motion of Latch in arrest of judgment First if the Words themselves were actionable Secondly if the Iustification made them good and actionable and upon great debate judgment was given for the Plaintiff in both points First the Court did take the words being spoken together to be the same as if he had said he is forsworn upon Record Justification explains the Parties meaning to be of perjury which is as much as to call him perjured Secondly his justification hath explained his meaning in them to be of perjury And Tuke and Condie's Case was cited for this where the Defendant in an Action brought for saying You are forsworn justified that he was forsworn in an indictment of Battery and the issue upon the justification being found for the Plaintiff he had judgment in Common Bank which was afterwards affirmed in this Court and now allowed for good Law by both the Iudges yet two Objections were made by Latch against this judgment First that the Declaration of it self being insufficent in substance could not be made good by the Defendant's bar Secondly that the ground of the Action is the disgrace that the Plaintiff incurs before the Auditors now they must understand the words according to the common acceptation as they were spoken and not in the sense wherein the Defendant justifies the speaking of them and he cited a Case 21 Jac. betwéen Wheeler and Abbot where in Slander for saying Thou hast stollen my Piece innuend ' a Gun the Defendant justified that the Plaintiff did steal his Gun and though the Iustification which shewed the Defendant's meaning to be of a Gun was found against him and Piece was a word of an incertain signification which could not be explained by the Innuendo Iudgment was given against the Plaintiff for the Reasons aforesaid Pasc 23 Car. Banco Regis Water's Case Ten in common makes a Wall against the house to prevent the others getting in no disscisin IN an Assise of a House in Westminster upon null ' tort c. pleaded and a tryal at the Bar the Evidence was that there were two Tenants in common of the House and one of them nailed up the Doors and made up a Wall against the House to prevent the others getting into the House and this was resolved no Disseisin and so the Iury were discharged But the point in Law would have béen that a Tradesman purchased Lands in fée to himself and his Wife and after became Bankrupt c. whether the Commissioners had power to sell so as to bar the Wife Taylor versus Usherwood Hill 18 Car. Rot. 87. Demise IN an eject ' firmae upon a special Verdict the Case was That one devised Land to one Elizabeth for her life and after her death to the eldest Heir male of her body and to the Heirs males of such Heir male so that he be of twenty four years of age at the time of the death of Elizabeth and if he be not of twenty four years of age at that time then that the Husband of Elizabeth shall hold them till he comes to that age and the profits to be disposed among the younger Children Elizabeth dieth her Heir male within the age of twenty four years and after he attained to that age and entred and demised to the Defendant And Hales argued for the Defendant That if the demise had rested in
spoken in a sense not actionable for it is very unreasonable that one should slander another in general words and then mitigate them by other words of a doubtfull interpretation sic pendet c. Sir John Chichester's Case Indictment SIR J. C. was indicted of Manslaughter and tried at the Bar and evidence was that he and his Man were playing at Foils and the Chafe of Sir John's Scabbard fell off unknown to him upon a thrust so that the Rapier went into his man's Belly and killed him And the Court directed the Iury that forasmuch as such acts are not warranted by Law the parties that use them ought at their own peril to prevent the mischief that may ensue for consent will not change the Case and therefore though there were no intention of doing mischief yet the thrust being voluntary was an assault in Law and death ensuing the offence was Manslaughter yet the Iury found it Chance-medly but the Court would not accept the Verdict but charged them if they varied from the Indictment to find it specially And Bacon said he had known a Iury bound over to the Star-chamber upon the like Cause whereupon they found him guilty and day was given him to procure his Pardon c. Pasch 23 Car. Banco Regis Andrews Harborn Mich. 22 Car. Rot. 483. Scire facias SCire facias was brought in Middlesex upon a Recognizance taken before Iustice Reeve at his Chamber at Serjeants Inn in London and Iudgment given in C. B. and upon a Writ of Error brought in this Court it was moved that it ought to have béen brought in London where the Recognizance was taken for though the Scire facias must be grounded upon a Record and the Recognizance be no Record till it be entred yet after it is entred it becomes a Record by relation from the time of the Recognizance And Hall and Winkfield's Case Hob. 195. was cited and the case was much debated and Roll Bacon absent said that the most ancient and proper course was to bring the Scire facias where the Recognizance was taken but he shewed in his hand a Certificate of all the Prothonotaries of the C. B. that of latter times they have allowed it the one way or the other and so the Iudgment was affirmed And Pasch 20 Jac. Rot. 210. B. R. betwéen Polting and Fairebank the like Iudgment was given upon a Recognizance taken before one of the Iudges of this Court in London and a Scire facias brought in Middlesex but it was said that the usual Entry in this Court is to express before what Iudge it was taken but no place where and then it might be brought in Middlesex without question Hilton and Plater Hil. 21 Car. Rot. 30. SLander Slander The Plaintiff declares That whereas he was Attorney c. the Defendant said to him You are a Knave you were Attorney for my Mother and set my Mother against my Husband and made him spend an 100 li. and such Knaves as you have made my Husband spend all his Estate And after a Verdict for the Plaintiff it was moved the last Term in arrest of Iudgment because no communication is laid of his Profession whereby the word Knave may be applied to that and the other words do not import any scandal of him in his Profession for he might lawfully set the Defendants Mother against her Husband as if there were cause of Action against him whereupon Iudgment was stayed And now this Term it was moved again And Bacon was of opinion against the Plaintiff for the reasons aforesaid But Roll contra because the subsequent words declare that the word Knave was intended of him in his Profession and therefore néed no colloquium of his Profession And afterwards the same Term ex assensu Baron ' mutata opinione Iudgment was given for the Plaintiff Trin. 23 Car. Banco Regis Paine versus Sheltroppe Hil. 22 Car. Rot. 740. IN an Action of Debt Debt upon a Bond with Condition That if the Defendant and his Wife should appear such a day at the Palace Court c. The Defendant upon Oyer of the Condition pleads that he himself did appear at the day prout apparet per record ' and that he was not married at the time of the Obligation nor ever after And it was adjudged to be no good plea because he is estopped to deny that he had a Wife Otherwise when the Condition is general as to enfeoffe one of all his Lands in Dale there he may say he had no Lands there Vide Dyer 50. f. 196. d. 18 E. 4. 4. f. 21 E. 4. 54. g. l. 2. 33. h. Dominus Rex versus Holland AN Office was found and returned in the Chancery That a Copyhold in Islington was 14 Car. granted to one John Holland and his Heirs at the will of the Lord c. in trust for one Margaret Taylor who was an Alien and her Heirs and that the profits were disposed according to the trust and that after M. T. died and this was by virtue of a Commission to enquire what Lands c. M. T. had and the Commissioners seised the Land whereupon Holland came and shewed his Title and traversed the seisin in trust for M. T. And Issue being joyned it was found for the King and note the Venire facias was awarded in the Chancery retornable in this Court and the Record sent hither for they try no Issue there And exception was taken to the Writ because it was quorum quilibet habet 4. libratas terrae and according to Stat. 27 El. cap. 6. which extends only to this Court C. B. Exchequer and Iustices of Assise to which it was answered That forasmuch as it is returnable in this Court it is well enough within the Statute but that Answer was not allowed but because this Clause was added by the Statute of 35 H. 8. cap. 7. which was in the affirmative that the Writ should continue quorum quilibet habet 2. libratas terrae And the Statute 27 El. adds that it shall be 4. libratas in such Courts but no negative words in either Statute therefore it is but abundans cautela and makes not the Writ vicious And Roll said that it was so adjudged Mich. 21 Jac. betwéen Philpot and Feilder The Questions in Law were 1. If the King should have the trust 2. If by virtue of that he might seise the Land 3. If the Case differ'd because Copyhold And it was argued the last Term by Mountague for Holland and Hale for the King and this Term by Maynard for Holland and Twisden for the King 1. That Vses at the Common Law were things partly in action so that they were not given to the King by general words of Hereditaments in Statutes as is agréed in the Marquess of Winchester's Case And they consisted in privity and therefore could not be transferred by act in Law as by escheat for Attainder c. And the preamble of the
because she might have many Sons But yet upon good consideration Iudgment was given for the Plaintiff for the Court shall not intend that Mary had any other Sons besides the Plaintiff And Roll cited a Case where one said your Landlord Henley is a Thief and laid his Declaration only with an Innuendo of the Plaintiff then Landlord c. and adjudged good But in another Case where one said your Landlord without a Surname is a Thief in such an Innuendo it was after great debate the Court being at first divided in opinion adjudged naught But there if the Plaintiff had averred that he to whom the words were spoken had no other Landlord it had been good Vide French and Edward's Case su 3. More versus Clypsam IN a Replevin Replevin the Plaintiff declares That the Defendant cepit centum oves matrices vervices of the Plaintiffs The Defendant avows that his Father was seised in fee of the place where c. and died seised and that the Lands descended to the Defendant as Son and Heir by virtue whereof he entred and was seised in fee and took the Beasts damage feasant the Plaintiff makes a reply and concludes with a traverse absque hoc that the Defendant at the time of the taking was adhuc est seised in fee of the Land and issue thereupon was found for the Plaintiff And it was moved in arrest of Iudgment that the Traverse was naught 1. Because the title of the Avowant is not answered for that the dying seised of the Father and the descent and the seisin of the Avowant is but a conclusion upon that 2. Because the Traverse is larger then the Avowry for adhuc est refers to the time of the pleading which is more then is alledged or then is material To the first it was answered that though it be not formal yet it is substantial enough for if the Son were not seised there could be no discent to him and therefore it is made good by the Verdict and the Court inclined to this opinion But the other exception was holden to be material Then an exception was taken to the Declaration because it is for 100 Ewes and Wethers and it doth not appear how many there are of Ewes and how many Wethers and the Sheriff is bound to make deliverance of the one sort and of the other for his delivery must be according to the Writ And though he may receive information from the parties so that it is a good return to say nullus venit ex parte querent ' ad ostendend'averia c. yet he is not bound to require it but ought to have sufficient certainty within the Record And for this cause after great debate Iudgment was given against the Plaintiff but it was agreed that oves without addition had been good enough and the Sheriff might have delivered the one sort and the other But if the Writ be for oves matrices the Sheriff cannot deliver Wethers so if it be for Black Horses the Sheriff cannot deliver White but is subject to an Action of Case Now there being some Ewes and some Wethers and the number not appearing the Sheriff is left at uncertainty and upon the same reason a Formedon of 100 Acres of Meadow and Pasture hath been adjudged naught as Roll said Com. Northumb. vers Green Trin. 23 Car. Rot. 1198. IN Debt Debt for Rent the Plaintiff declares That one Cross made a Lease for years to the Defendant rendring Rent payable half yearly who granted the reversion to the Plaintiff and such a day which was the day wherein the Rent was due the Defendant attorned and for three years Rent and a half which included the Rent due the day of the attornment the Action was brought and upon nil debet and a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Rent was payable to Cross before the attornment for that shall be taken if worst for the Plaintiff to be after Sun-set but it was disallowed for the Court shall not intend it and if they should the Verdict supplies the averment of the contrary And both the Iudges said that if a Writ abate one day and another Writ is purchased which bears teste the same day it shall be intended after the abatement of the first Caly versus Joslin Uxor ' Trin. 23 Car. Rot. 1282. IN Debt Debt for Rent upon a Lease for years against the Husband and Wife Executrix which was laid in the debet and detinet Vpon plene administravit pleaded and a Demurrer thereupon the case was well debated by reason of contrary resolutions for Hargrave's Case was reversed in the Exchequer Co. 5.31 because the Action was in the debet and detinet but afterwards 7 Jac. between the Lord Rich and Frank. in C. B. upon great debate it was adjudged good in the debet and detinet And the like Iudgment was given 9 Jac. in C. B. in Sir Henry Carye's Case And after that Pasc 17 Jac. Rot. 346. B. R. between Paule and Moody it was adjudged good in the detinet only And the like 7 Car. in the Common Pleas and the same year in this Court between Smith and Nichols and the reasons of these contrary opinions was the inconveniency of the one side and the other for in as much as the Executors cannot waive the Term it were hard if the Rent should exceed the value of the Land and they having no assets that they should be charged in the debet of their own proper Goods and yet if the Action must be brought in the detinet only where fully administred were a good plea then may they retain the Land and with the profits thereof satisfie Debts upon specialty whereby the Lessor should be defeated of his Rent For the avoiding of which inconveniencies it was resolved that they may be charged in the debet and detinet for prima facie the Land shall be intended to be of greater value than the Rent and if it be otherwise Mich. 23 Car. Banco Regis Gilbert versus Stone Trin. 17 Car. Rot. 1703. IN Trespass Trespass for breaking of a House and Close the Defendant pleaded that 12 homines ignoti modo guerrino armati tantum minabantur ei quod de vitae suae amissione dubitabat and after requirebant compulsabant the Defendant to goe with them to the House quodque ob timorem minarum per mandatum compulsionem dictorum 12 hominum he did enter the said House and returned immediately through the said Close which is the same Trespass c. And upon Demurrer Hob. 134. c. without argument it was adjudged no plea for one cannot justifie a Trespass upon another for fear and the Defenant hath remedy against those that compelled him Also the manner of the pleading was naught because he did not shew that the way to the House was through the Close Mark versus Cubit Pasc 23 Car. Rot. 376. SLander
Testator's Estate 2. That such contingent Covenants are common assurances much favoured in Law which may all be easily defeated if the disposition of the Covenants by his Will should stand good against them for though the Executors should afterwards voluntarily break them yet the recompence must be had only out of the Testator's Estate 3. A diversity was taken between Debts without specialty and Legacies for those are duties of the same nature with Debts upon specialty but differ only in order and dignity but these are meer gratuities for which no Action lieth at the Common Law and therefore are not taken notice of by Law as duties but the remedy for them is in the Court Christian 4. The Executor was not compellable by the Ecclesiastical Court to pay these Legacies unless the Legatees in this case would give caution to repay them if the contingent Covenants should be broken And so it was said is the course in Chancery at this day in the like cases And Hales and Twisden ex parte Defendentis argued to the contrary 1. It was agreed by them and also by the Court that though the Legacies were devised in specie yet the Legatees could not take them without the assent of the Executors And that therefore the Case was the same as if the Legacies had been of money Indeed there is a difference between these Legacies for Legatum quantitatis est Legatario as Legatum in specie est 2. It was agreed that if the Covenant had been broken before the delivery of the Legacies the Administration would have wrought a Devastavit but the Legacies being first delivered it was agrued that the Executors ought not to be charged in a Devastavit upon this Covenant 1. From the nature of the thing it self for a Covenant is no Duty nor cause of Action till it be broken and therefore is not discharged by a release of Actions And when it is broken the Action is not founded meerly upon the specialty as if it were a Duty but savours of Trespass and therefore an Accord is a good plea to it and ends in damages 2. From the qualification of it in respect of the contingency of the breach thereof for it is to be presumed that it will be rather performed than broken 3. From the inconvenience that such a Covenant should obstruct the performance of the Will for it is a present and certain mischief that Legacies should not be paid and it is but a possible and contingent mischief that the Covenant should be broken and the Covenantee unsatisfied and therefore admitting that it were in place where by custome a rationabili parte bonorum would lie it would be very hard that the Children should expect till it were known whether the Covenant would be broken or no which may perchance continue in suspense for ever for such Covenants are commonly annext to Estates in fee. Now the reason is the same in case of Legacies for where it hath been said that the Common Law takes no notice of them so as to give remedy for them it was answered 1. That the Law takes notice of a Legacy so as to create a Duty in the party to whom it is bequeathed though he cannot take it without the assent of the Executors for after such assent the Law vests the property of the thing bequeathed in the Legatee and therefore a Condition imposed upon the assent is void 2. The Probate and ordering of Wills did belong originally to the Iurisdiction of Temporal Courts where the Legatees might have had remedy for their Legacies as appears by Glanvil lib. 6. cap. 6 7. where there is a Writ to demand a Legacy at the Common Law and now that the Iurisdiction is devolved to the Ecclesiastical Court the Common Law takes notice of the remedy there for Legacies for the power of that Court is regulated by these and therefore forbearance of Suit there hath been adjudged a good consideration of a promise and for the same reason Hale said he conceived that if an Executor of his own wrong paid Legacies the rightfull Executor should be bound thereby because he was compellable by Law to pay them 3. Though the Executor were not compellable by Law to pay the Legacies yet now that payment is executed the Law takes notice of it to vest the property of the Goods in the Legatees And this being before any Covenant broken the Administration will be good As to the Objection concerning provisional payment of Legacies it was answered 1. That it is the common case almost of all persons that have any dealing in the Kingdom to make such Covenants and to give Portions to their Children by Will and this is all the maintenance many of them have and therefore it is difficult for them to find security for the payment of that whereof they live 2. Though the Ecclesiastical Court in a prudential way use sometimes to take caution for repayment yet they are not bound so to doe And therefore this Court cannot take notice thereof 3. It hath been agreed that payment of Debts upon simple Contracts is a good administration against Iudgments defeasible upon performance of Covenants and yet the same provisional payment might be made in that case but the Law doth not compell it pur que c. And the Case being thus argued the last Trinity Term and this Term two Exceptions were taken by Bacon to the Declaration 1. That the Plaintiff hath not conveyed to himself a good Title to the Tenements for he alledges a demise of them habendum to the Plaintiff but he is not named in the premises but this was after agreed to be well enough for a Lease so made is good And Latch said it had been so adjudged 2. That the breach was not well assigned for the Covenant is against all persons claiming by the assent means or procurement of Sir Moulton but the breach assigned is that Clavel clamans titulum from Sir M. did enter now he might claim Title from him when as in truth he had no Title from him And for this cause Iudgment was given against the Plaintiff And the Iudges would not deliver their opinions upon the matter in Law but upon the Arguments Roll did incline for the Plaintiff upon the provisional payment that might be made and said that Prohibitions have been denied upon suggestion of a Suit in the Ecclesiastical Court where contingent charges have been pleaded because this Court takes notice of provisional payments which are used to be made there also he approved of the diversity between Debts without specialty and Legacies And Bacon inclined to the Defendant for the reasons before alledged Hil. 23 Car. Banco Regis Holdwich Ux. vers Chafe Pasc 23 Car. Rot. 326. IN an Action of Debt by the Husband and Wife Executrix upon a Bond supposed to be made to the Testator non est factum being pleaded it was found to be made to the Testator and another who died before the Testator
Precedents both of Indictments and Actions upon the Statute did use to recite this Statute only but now the course is according to my Lord Coke's advice Co. 4. 486. not to recite the Statute but conclude it contra formam Statuti Vide Dalton cap. 129. And he said it would be very mischievous to subvert so many Precedents as have been this way but the best way had been to have writ it Statut ' with a dash for then it would have stood as by Law it ought 4. It was excepted that the Indictment is quod pacificae intraverunt c. eum adtunc ibidem vi armis disseisiverunt And for this cause after much debate this exception being at first allowed for the repugnancy the Indictment was quashed and re-restitution awarded nisi causa ostensa sit in contrar ' initio proxim ' Termini Doctor Bruce's Case UPon a Habeas Corpus Habeas Corpus Dr. Bruce being returned committed upon the Stat. of 1 Mar. ca. 3. for disturbing the Minister of Maidstone in Kent lawfully authorized in his publick Prayer and Preaching it was agreed that that part of the Statute of 1 Mar. which concerns disturbance in Preaching is not repealed by the Statute of 1 El. but as to disturbance in Prayer it is And the commitment for both is naught And for this and other gross faults in the return he was discharged SAmuel Hall was found dead before the Coroner that he passing a Bridge between Worthington and Billingford in Comitatus Hertf. by reason of a breach in the Bridge fell into a River where he was drowned and that the Bridge is in villa de in magno decasu by default of the Inhabitants there and it was holden that the Coroner may find such a nusance as occasions the death of a man and that the Township should be amerced thereupon but because it was not found here that the Town was bound to repair the Bridge the Indictment was quashed as to that Pasc 24 Car. Banco Regis Rose versus Spark Hil. 22 Car. Rot. 29. IN an Action of Debt upon an Arbitrement Arbitrement for 7 li. 10 s. the Plaintiff declares That whereas there were certain Controversies between the Plaintiff and the Defendant touching a Wine-license and the arrears of Rent issuing out of certain Land they did submit them to the Arbitrement of J. N. and J. S. super quo praed ' J. N. J. S. accepto super se mod'arbitrand ' de praemissis intellexerunt quod restabant debitae to the Plaintiff quindecem librae de quibus quidem 15 li. ordinaverunt that the Defendant should pay 7 li. 10 s. to the Plaintiff in satisfaction of 7 li. 10 s. parcel of the said 15 li. and should assign the Wine-license to the Plaintiff per quod actio c. And after a Verdict for the Plaintiff upon nil debet it was moved Termino Paschae 23 Car. Termino Hil. 23. And again this Term. 1. That the Award is not of the thing submitted for the submission is special of the arrears of Rent and a Wine-license And the Arbitrators find the Defendant indebted in 15 li. but it appears not for what he was so indebted so that it might be for some other cause than for Rent therefore the Plaintiff ought to have averred that the Debt was for the Rent or at least to have laid the Award to be de praemissis which perchance would have supplied it but this exception was disallowed for the Award being general ought to be intended according to the undertaking which was de praemissis and this Intendment is confirmed by the Verdict And it was said that the words de praemissis in pleading Awards hath been used but of late time but to good purpose to apply the general words of the Award proportionable to the things submitted Also the words super quo help the Intendment 2. Which was the principal exception It was moved that the Award was void for that the Arbitrators recite 15 li. to be due to the Plaintiff and award that the Defendant shall pay 7 li. 10. s. in satisfaction of 7 li. 10 s. parcel of the Debt and shall assign the Wine-license but this is not said to be in satisfaction of the residue so that here remains 7 li. 10 s. parcel of the Debt not satisfied nor discharged and Roll was of opinion and that as to the Assignment of the Wine-license that the award was void But Bacon held that it should be intended in satisfaction of the other 7 li. 10 s. But both the Iudges agreed that forasmuch as the submission was not with an ita quod c. the Award as to the parcel was good according to the Books Co. 8. 98. d. 19 H. 6. 6. h. 22 E. 4. 25. g. and so Iudgment was given for the Plaintiff Note here though the submission were of the Rent and a Wine-license the Award was only of the Rent which could not have been alone submitted Hart versus Buckminster Hil. 23 Car. Rot. 225. IN an Action of Debt upon a Bond with Condition reciting That whereas the Plaintiff had carried 12000 Billets for the Defendant to Dartmouth if the Defendant should pay the Plaintiff after the rate of 17 s. per 1000. then the Obligation should be void the Defendant upon Oyer thereof pleaded that the Plaintiff did not carry 12000 Billets to Dartmouth and upon Demurrer Iudgment was given for the Plaintiff for the Defendant is estopped to deny it Hobson versus Wills IN an Action of Debt Debt brought by an Administrator the Plaintiff declares of Letters of Administration granted to him per Carolum Regem c. without saying debito modo c. And upon a Demurrer to the Declaration it was adjudged good because the King hath universal Iurisdiction here Bamfield versus Brown IN an Ejectione firmae Ejectione firmae upon a Trial at the Bar evidence was given that Sir John Brooke Lord Cobham sealed an Indenture of Lease of Black acre Green acre and White acre and by Letter of Attorney reciting that whereas he had made an Indenture purporting a demise of Black acre and White acre omitting Green acre as by the same more at large appears c. gave power to deliver it as his Deed upon the Land and also by word of mouth commanded the Attorney to doe the same thing and Roll inclined that the Letter of Attorney was insufficient in respect of the omission but Bacon contra clearly because there is a description sufficient to shew it to be the same Lease but both agreed that in Debt for Rent upon a Demise such a mistake in the Declaration were fatal because there he takes upon him to recite the Demise upon Record as it was made upon a Contract which being entire an omission of part makes it not the same Demise and the Action is founded upon it but here he is only to describe it in pais but they held that the
party might deliver the Lease by virtue of the authority given him ore tenus notwithstanding the Letter of Attorney but then he must swear he did it by virtue of that for if he did it by virtue of the Letter of Attorney the other authority will not avail the delivery and it was said that he could not deliver it by virtue of both authorities quod quare Pasc 24 Car. Banco Regis Lawrence versus Kete and others IN an Ejectione firmae Ejectione firmae upon Issue whether it were a Devise by Will in writing or not between Mrs. Dunsh Widow and Edmund Dunsh the Heir The Case upon the Evidence was That Dunsh the Husband being sick said that he devised all his Lands to his Wife for life and limited several remainders of several parcels of them and about an hour after wished and desired that one Kete were there to write his Will whereupon the Wife without acquainting her Husband with it sent for Kete who from the mouth of the Witnesses which heard the Devise wrote the same but because they differed in their Testimony touching the limitation of the remainders he wrote two Wills and this was without privity of the Husband who before the writing finished became senseless and soon after died And the original Writings were both lost but a Copy testified to be of the same effect was produced and after much Dispute it was agreed by the Court and so given in charge to the Iury. 1. That an actual Devise by word is no sufficient ground for a stranger to write the Will but there ought to be an Actual Will and desire that it should be written and a bare wishing is not sufficient but there ought to be an actual willing 2. That this desire ought to be in some short space after the Devise so that it be as one continued act for if the Devise be at one time and at another time the Devisor sends for one to write his Will a new Declaration will be necessary to make it effectual 3. That an actual desire of the Husband that Kete were there to write his Will was a sufficient ground for the Wife to send for him though the Devisor gave no express directions to doe it 4. That the writing of the Will from the mouth of Witnesses was sufficient and it need not be from the mouth of the Testator 5. If Witnesses agree as to the Devise for life the Will stands good for that though they disagree as to the limitation of the remainders 6. Though the Devisor becomes senseless before the Will be written yet if it be written before he dies it is a good Will in writing 7. If a Will continue in writing at the time of the death of the Testator though it be lost or burnt afterwards it stands good but if it be burnt at the time of his death then the Devise is void And the next day the Iury gave a Verdict against the Will because the Evidence was not clear as to the desire of the Devisor to send for Kete but there was a motion for a new Trial upon pretence of partiality in some of the Iurors sed non praevaluit Hill versus Armstrong Hil. 23 Car. Rot. 931. IN an Action of Debt Debt upon a Bond with Condition to pay 300 li. to the Plaintiff and to adde 3 li. to every Hundred if it were demanded The Defendant pleaded payment of the 300 li. and that he added 3 li. to every Hundred secundam formam conditionis praedict ' The Plaintiff traversed the addition of 3 li. to every Hundred secundum formam conditionis praedict ' And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Plaintiff ought to have alledged a Demand And for this cause Iudgment was given against the Plaintiff for this being matter of substance without which the Plaintiff had no cause of Action was not helped by the Issue nor Verdict notwithstanding the words secundum formam conditionis which was pretended to imply a Demand Hill Uxor ' versus Bird alios LEtters of Administration of the Goods of Sir John Lamb Intestate were committed by the Prerogative Court to the Wife of Hill being near to the Intestate and upon a suggestion of a Suit there by others of equal degree for a distribution of the Goods of the Intestate according to agreement made by the Administration as was pretended Hale prayed a Prohibition and it was granted for the Statute wills that Administrator be granted to the next of kin for their advantage and when the Ordinary c. hath once executed his power according to the Statute he cannot alter it nor hath any power to compell the Administrator to make distribution notwithstanding the Agreement And Hale said that the Court there threatned to repeal the Letters granted unless she would bring in a true Inventory of the Estate of the Intestate and give a true account of her Administration to which Roll answered that the Court there may cite her to bring in an Inventory and to give an account but if it appear that they goe about to repeal the Letters for not doing of it you shall have a Prohibition which was not denied by Bacon And Hale would have had a Prohibition against all the Cosins as well those that sued there as others because the proceedings there being ore tenus the rest may joyn in the Suit when they will but the Court denied to grant any Prohibition quia timet c. Pasc 24 Car. Creswell Uxor versus Ventres Uxor Hil. 23 Car. Rot. 969. SLander Slander Thou didst and dost buy and didst receive stollen Goods witness a Featherbed-Tike thou hast in thy House and the Cloath thy mans Clothes are made of And I will prove it And thou didst know that they were stollen And after a Verdict for the Plaintiff upon the motion of Wilde That the words do not charge the Plaintiff with Felonious receiving And though she knew that they were stollen this doth not argue that she was consenting to the stealing for she might come by them honestly and rightfully as if they were sold afterward in Market overt Iudgment was stayd And Roll said he had known Iudgment arrested for the like reason Spatchurst versus Sir Mat. Minns Hil. 23 Car. Rot. 1407. IN Debt Debt by an Administrator for Rent reserved upon Assignment of a terme of years in a House in St. Martins in Campis by Déed made by the Intestate The Plaintiff alledges that the Defendant had enjoyed the House pro durante toto praedicto Termino and for 90 li. due at 1643. Termino adtunc nondum finito the Action is brought And after a Verdict for the Plaintiff it was moved by Boreman That this reservation is not properly of a Rent but of a Sum in gross and for a Sum in gross no Action lieth till the last day of payment now it doth not appear that the last day
Attorney different from the Authority given ore tenus he cannot execute his power by virtue of both 53 Avowry In Avowry the Traverse ought not to be larger than the Avowry 33 In Avowry for taking 100 oves matrices vervices and doth not shew how many Ewes and how many Wethers not good for the Sheriff is to make deliverance according to the Writ and he is not bound to receive information from the party ibid C. Copyhold WHERE the King shall have the Trust of a Copyhold 14 Construction of Words See Words Covenants Where the breach ought to be assigned when and where that it may appear to the Court to be legal 19 The difference between a duty or charge created by Law and when by Covenant or act of the party 27 A Covenant to pay mony upon several Bonds at the several days limited in the several Bonds or 8 days after no breach till after the 8 days 60 Covenants are common Assurances favoured in Law 38 Covenant no Duty nor cause of Action till broken and therefore not discharged by Release of Actions 39 Covenant to perform certain Indentures and to save the Plaintiff harmless he cannot plead generally performance of Covenants because some may be in the Negative and also he ought to shew how he saved him harmless 72 Covenant is intire and cannot be apportioned 9 Where the Contract is in the realty and the Debt ariseth in respect of the profits an Action will lie before the last day 58 D. Declaration DEclaration in Trespass the Plaintiff need not to answer the order of time wherein the Trespasses were done 20 In an Indebitat Assumpsit its set forth in the Declaration in consideratione quod venderet deliberaret and no averment of any sale or delivery not good 61 Demurr He that Demurs upon the Evidence ought to confess the whole matter of fact to be true and not to refer that to the Judgment of the Court 18. Devise By a Devise of the rest of all my Lands what estate passes 28 Where an authority to take the profits implies as much as a Devise of the profits which gives an Interest 45 A Devise to the Issue male with remainders to the younger Sons proviso if the eldest die without Issue male his daughter c. shall hold the lands until c. she shall have but a Chattle 46 47 An actual Devise by words is not sufficient for a stranger to write the Will but there ought to be an actual Will 54 Where the Devisor becomes sensless before the Will is written yet if it be written before he dies it s a good Will 55 A Will gnawn in pieces by Rats yet by help of the pieces put together was afterwards proved and good 2 Discent No Discent without dying seised 33 Discontinuance Where an Action shall be discontinued 20 E Error THE Venire facias bore Teste Pasch 20 Car. and Issue joyned Pasch 21 Car. no Error but holpen by the Statute of 18 Eliz. cap. 4. 20 In Trespass against three and one dies hanging the Writ Judgment against all three shall be reversed because entire 74. Otherwise in an Action at Common Law where damages are given by the Statute 75 Estopple Covenant pleaded by way of Estopple 79 Condition that if the Defendant would pay the Plaintiff so much for carrying so many Billets c. that then the Obligation should be void the Defendant pleads that the Plaintiff did not carry c. and upon Demurrer Judgment for the Plaintiff the Defendant shall be estopped to deny it 52 Executors Debt against Executors in the Debet Detinet 34 Where goods delivered to Executors shall be Assets in their hands where contingent Covenants happen after Executors shall be intended conusant of all contracts of the Testator as well contingent as certain 38 Executors not liable to pay Legacies without caution against contingent Covenants 39 Executors where chargeable in the debet detinet where in the detinet only 43 Where part of arrears demanded were due in the time of the Testator and part after his decease the Action in the Detinet is good for the whole 76 An Action brought in the Detinet against an Executor who pleads nil debet may be holpen by the Verdict Where Damages recovered shall be Assets 1 H Husband and Wife PRomise to the Husband and Wife it 's in election of the Husband to bring the Action in his own name or to joyn his Wife 36 Where the Husband is not charged in the Debet detinet because the Husband is Debtor but because the Husband and Wife are but one person in Law 73 Account by the Husband and Wife after marriage for goods bought by the wife when sole this Accompt doth not alter the nature of the Debt 73 Where the Husband shall be sued upon an Indebitatus assumpsit for necessary Wares sold to the Wife 61 I. Indictment WHere Indictment need not conclude contra formam Statuti 44 Where several are indicted in the Statute of 1 Jac. c. 8. of Stabbing and it doth not appear which gave the thrust they shall be guilty of manslaughter 44 J. S. was Indicted for not taking his Oath being chosen Headborough it must appear that he was warned before a Justice of Peace and there refused 78 Indictment quashed for repugnancy viz. quod pacifice intraverunt adtunc ibidem vi armis dissesiverunt 50 Indictment of forcible detainer and concludes contra pacem only and not contra coronam 49 Where it shall be manslaughter to kill another although he had no intention to do him mischief 12 Acts not warranted by Law the parties that use them ought at their own peril to prevent the mischief that may ensue for consent will not change the Case ib. Infant Where an Infant comes to a stranger and boards with him the Law implies a contract for his Dyet Lodging c. but where another undertakes for his boarding this express agreement takes away the implied Contract 94 Inrolment Debito modo Irrotullat ' in Curia Canc ' c. not good without alledging the Inrolment to be within six moneths or secundum formam Statuti 19 Jury Juror challeng'd because he was tenant of a Mannor to which there was a Court Leet of which the Plaintiff was Steward and no principal challenge 29 Juror challeng'd by the Defendant soit treit said the Plaintiff but not allowed for that must be upon the challenge and not upon the Trial. 30 Jury bound over to the Star Chamber for not finding according to the direction of the Court. 12 L. Leases WHere an Ouster le main is necessary a Lease for years made before is not good 30 A Lease for years habendum from henceforth includes the day of making but habendum from the day of the date excludes the day of the date 76 77 A Lease habendum a die datus and for seven years hence forth how it shall be construed 77 Where Lessee for years