because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
make a ditch or raise up a bank to hinder my way to my Common I may justifie the throwing of it down and the filling of it up Mich. 1655. BY Glyn chief Iustice Damages in Dower If a Feme bring a writ of dower and recover and the Defendant die the feme shall have her damages against the Terr-Tenants Mich. 1655. A Writ of Error quod coram vobis residet is when a writ of Error is brought to reverse a judgement given in the Common pleas Error quod coram vobis residet what it is or other Court where the Record was formerly removed into the Court of the Vpper Bench and by reason of the death of the party or for some other cause rests undetermined by reason of the abatement of the former writ of Error Le pool and Tryan Mich. 1655. Banc. sup VVIld moved for a prohibition to the Court of Admiralty to stay a tryal there in a Trover and Conversion For a prohibition to the admiralty in which they procéed upon a pretence that the goods in question were taken upon the High Sea and that by the late Act they have exclusive power in all such cases which is not so Glyn chief Justice It was resolved in Cremers and Cokelyes case so adjudged that they have no such power Therefore take a prohibition nisi c. Morden and Hart. Mich. 1655. Banc. sup MOrden brought an Action of debt upon an Obligation to stand to an Award against Hart. Vpon nil debet pleaded Arrest of judgement in debt upon an Obligation to stand to an Award and a verdict for the Plaintif it was moved in Arrest of judgement and the exception taken was that the Award was made but of one part and so not binding to all the parties submitting The case was this One Stephens and Body on one part also Hart on the other part submitted to stand to the Award The Arbitrators awarded that Body should pay a certain sum of money unto Hart in satisfaction for the differences betwixt Body and Stephens on the one part and Hart on the other part which was objected could not be good for the money paid by one could not be in satisfaction for another and so the Award is not made to conclude all the parties submitting for Stephens was not concerned in it and the Award is with an Ita quod which ought to be a general Award and include all parties and therefore if it be void in part it is void in all But Green on the other side answered though the Award should be naught in part yet it may be good as to Body that paid the money and the moneys ought to be received as they are paid and that is for Body and Stephens and may be well in satisfaction for both of them It was also urged by Howell on the same side that it appears that Body and Stephens are partners and this will make an end of the matter for then the money paid by one of them may satisfie for the other Award in part Glyn chief Iustice Here is a good Award betwéen two of the parties that submitted but there appears nothing to be awarded as to Stephens the third party for it doth not appear that he can take any benefit by the Award of the money to be paid by Body or that it can be any satisfaction for him but only for Body Iudgement for the Defendant Iudgement for the Defendant nisi c. Busfield and Norden Mich. 1655. Banc. sup A Writ of Error was brought by Busfield against Nordon to reverse a judgement given in the Court Military of Rippon in an action upon an indebitatus assumpsit for wares sold Error to reverse a judgement upon an indebitatus assumpsit by the Bail wherein there being a judgement given against the principal a scire facias issued out against the Ball and a judgement was thereupon and against him the bail thereupon brings a writ of Error to reverse both these judgements and assigns for Error that there was no issue joyned in the first judgement and that being erronious Bail cannot reverse the principal judgement The writ abaed and being the ground upon which the scire facias did issue forth whereupon the second judgement was given the second judgement cannot be good Glyn chief Iustice But the principal judgement ought to be reversed by the principal and not by the bail and therefore the writ of Error is not well brought by the bail therefore let it abate Vidian and Fletcher Mich. 1655. Banc. sup VPon view of an Infant brought into Court of to be inspected Scire facias for an Infant to â—everse a fine levâ—ed ouâ—ing Covertuâ—e who had during coverture joyned with her husband in levying a fine of her lands she was by the Court adjudged within age whereupon a scire facias issued out to the Terr-tenants who came in and pleaded that she was of full age at the time of the fine levied upon which plea issue was joyned and a tryal was had at the Assizes and a Verdict for the Plaintif who now came in Court and prayed for judgement upon the Verdict Glyn chief Iustice The Court is to judge of the Infancy Iury not to try Infancy and not the Iury and therefore you have not proceeded duly but the proceedings do no hurt for we judge she was within age Fine reversed Therefore let the fine be reversed nisi c. Nota. and the hundred of Crondon Mich. 1655. Banc. sup AN Action of Trespass upon the case was brought against the Hundred of Crondon in Hampshire upon the Stat. of Winchester Arrest of Judgement in an Action upon the Statute of Huc and Câ—yes Case Statute by one that was robbed within the hundred upon the tryal a verdict passed for the Plaintif It was moved on the behalf of the Hundred in Arrest of judgement 1. That the Plaintif had mistaken his Action for whereas he hath brought a general Action of Trespass upon the case he ought to have brought an Action upon the Statute 2ly He declares that he took his Oath before I. S. a Iustice of Peace in the County Whereas it should be for the County 3ly He hath not expressed that he took his Oath before a Iustice assigned to keep the Peace 4ly There is no issue joyned 5ly He saith that he took his Oath 20 days but doth not say next before as the Statute directs Windham on the other side answered to the first Exception that it is usual of latter times to declare in an Action upon the Case generally To the second he said it is no exception for a Iustice of Peace is not an Officer affâ—red to a place Serjeant Twisden But it doth not appear that you took your Oath 20 days before your Original sued out Glyn chief Iustice That appears well enough upon the Record Variation But the writ here is in an Action upon the case
Action of debt Hogg and Vaughan HOgg brings an Action of the Case against Vaughan for these words spoken of him Arrest of Judgement in an action upon the Case viz. Thou art a perjured Priest and hath a verdict It was moved in Arrest of Iudgement that the words were not actionable for they signified no more than that he was forsworn But the Court held that they must be meant that he was guilty of perjury for which he might be endicted and therefore were actionable Mich. 21 Car. I. Assumes and promiseth to B. that if B. will pay 50 l. to C. his son Action upon the case upon a promise who was maried to D. the Daughter of I. at such a time that he will pay 100 l. to D. his Daughter at such a time B. pays the 50 l. to C. at the time appointed I. fails in payment of the 100 l. according as was agréed B. dies intestate and E. administers and brings an Action upon the Case against I. upon this promise made to B. the Testator and adjudged that the Action did well lie by the Administrator though he should receive no benefit if he did recover Dickenson and Preston Mich. 22 Car. Banc. reg Ter. Pasc 22 Car. rot 251. A Writ of Error was brought by Preston Error to reverse a Judgement in York to reverse a Iudgement against him at York and assigns for Error that the Venire was de Balliva sua whereas it ought to have been de corpore Comitatus and it cannot appear by the Venire to what place the Balywick extends and the Balywick of the City may extend further than the City and upon this the Court adjudged the Venire naught More against Savage 22 Car. Banc. reg MOre Widow brings an appeal against Savage for the death of her Husband Savage appears and demurs to the original writ Demurrer upon an appeal and shews for cause that in one part of the writ instead of the word tunâ— it was tuc which made the Writ incertain To this the Council of the other part answered That it ought to be amended by the Statute of 14 E. 3. and that the Writ ought not for so small a fault to be abated But to this it was replyed that the Statute was only for the amendment of mean process and not of original Writs for original writs were not amendable because the party might purchase a new writ if a former were naught In justification of the writ it was further urged that the word tunc in the writ was a méer formal word and not of the substance of the writ and that the writ would be good enough without it and therefore though it were mistaken it was not so material as that the writ should be thereby abated But the Court answered that an original writ if it be defective in form is abatable if it be not amendable by Statute and conceived that here it being in an appeal where life is in question the writ is not amendable though it be defective but in form neither by the Common Law nor by any Statute Law nor can the party purchase a new writ adjournatur but afterwards viz. 9. Feb. 22 Car. the writ was quashed for the cause aforesaid and because it did not appear that the feme who brought the appeal was wife to the party slain at the time when he was slain It was thereupon moved that the Defendant might be arraigned upon the Count though the writ was abated but the Court held he could not because the Count was founded on the writ which was abated and these books were cited 4 H. 6.14 and 18 E. 3.35 upon view of presidents he was afterwards discharged Luskins and Carver 22 Car. Banc. reg THe Case was this Anne Carver made her last will and testament Prohibition to the Praeâ—ogative Court and a Mandamus and makes Luskins her Executor having bona notabilia in divers Diocesses Luskins proves the will in an inferiour Diocess and not in the Prerogative Court as he ought to have done a stranger sues for Letters of Administration in the Prerogative Court Luskins desires to prove the will there and that he may administer the Court refuseth to admit him to administer the goods except he will put in security to the Court to pay all the Legacies but if he shall refuse will grant Letters of administration to the stranger Mandamus Luskins moves in this Court for a writ of a Mandamus to compell the Prerogative Court to grant him the administration according to the will The Court ruled the other party to shew cause the next day why they should not grant such a writ and were of clear opinion they might do it and to prove it the Countesse of Barkshires case Hill 20 Iac. and the case of St. Burien in Cornwall was cited and the same Term the writ was granted accordingly Fortescue and Brograve 22 Car. Banc. Reg. Tâ—e Plaintiff brings an action for breach of Covenant upon a Deed An action upon a breach of Covenant by deed The Defendant pleads a parol agreement afterwards in discharge of the former Covenant but the Court held the plea not good and took these differences Plea That a parol agreement before a breach of it may be discharged by parol and so pleaded after a breach it cannot be pleaded in discharge without satisfaction also pleaded Concord but a discharge may be pleaded by Deed be the Covenant by Parol or by Deed after a breach and without satisfaction Broome and Evering Hill 22 Car. Banc. Reg. Hill 21 Car. rot 354. A Iudgement was given against the Testator of the Defendant Error to reverse a judgement given in a Scire facias to revive a judgement in debt in an action of Debt for rent and this judgement was revived by a scire facias against the Executor and a verdict thereupon and a judgement was given against him in the Common pleas upon this a writ of Error was brought in the Kings Bench to reverse this judgement and the error assigned was that the tryal was insufficient because the Venire sacias was not good and is not helped by the Statute of Ieofails and to prove this Baynams case in the 5th Report was cited But Hales answered that the Venire facias being awarded before it ought was to be accompted as if no Venire had been awarded and said it was like to a dedimus to take a fine before the writ of Covenant issued forth to levy the fine and so concluded that it was helped by the Statute of Jeofails But the Court took a difference ☞ where in truth there was no Venire facias at all and where there is an ill Venire facis as it is here for thought it be as bad as may be yet being it is a Venire facias it is not helped by the Statute of Ieofails Erâ—or Jâ—oâ— ils but if there had been none the Statute had made
fining the party after a Certiorari was delivered unto him to remove the Endictment into this Court and thereupon it was prayed that it might be granted and Sir Tho. Styles and Sir Iohn Sidleys case 8 Caroli was urged where an Attachment was granted in the like case Wild on the other side prayed it might not be granted because the parties endicted did not tender sureties to proceed to a Tryal upon the Endictment as the Statute directs and because the fine was set upon the parties before the Certiorari was delivered and it is in the election of the Iustice to set a fine upon the party Fine Traverse Plea and refuse to admit the party to his traverse as some do hold Roll chief Iustice Vpon view of the force the Iustice may set a fine upon the party and refuse to admit the party to his traverse or plea at his pleasure but the case is not so here and in 15 Car it was resolved that if a Certiorari be brought to the Sessions to remove an Endictment of forcible Entry preferred against divers persons if some of them come in and find sureties for the damages it is good for them all to remove the Endictment for the rest else it would be mischievous for them that find the sureties And he said that if any thing be done at a private Sessions of Peace it ought to be returned to a Quarter Sessions or into this Court Vpon view of the force the Iustices of Peace are Iudges Error and may set a fine and if there be Error a writ of Error may be brought The rule was that Staples be examined upon interrogatories and make a return of the Certiorari Monday next and that he restore the fine to the party Wood and Mountney Mich. 1652. Banc. sup IN the Case of VVood and Mountney Bail not discharged by the death of the Principal Bail Roll chief Iustice said That if the Plaintif in a writ of Error die before the matter be determined yet his Bail are not thereby discharged Webb and Washborn Hill 1652. Banc. sup THe Action was an Action of Trover and Conversion for divers goods Arrest of judgement in a Trover and Conversion The Defendant pleaded not guilty and upon issue joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement that the Plaintif amongst other things had declared for a Trunk with writings which is uncertain Wadham Windham for the Defendant said the Declaration is certain enough and cited a Case where an Action was brought for two Trunks of Cloathes and doth not say what Cloaths and yet adjudged good Another Exception was taken That the Plaintif declares for a great Beam Scales and Weights which is also incertain To this Windham answered It was certain enough because they all make but one thing by reason of the relation they have one to the other And in the old Book of Entries we find that an Action of Trespass was brought pro Caruca cum apparatu and adjudged good Latch on the other side as to the last Exception said It is not answered for the words are very incertain and it is not like the case of the Trespass cited de Caruca cum apparatu for the Weights go not to the perfecting of the Beam as the apparatus doth of the Plow and it is as uncertain as to bring an Action for five Locks and Keys which is not good Hales answered it is certain enough for it is all one as if he had said A Beam Scales and Weights which is as certain as to say a Ship with Anchors and Cables Roll chief Iustice How can we reduce the Weights to any certainty as the Declaration is laid and if the word and had been added it would not have helped for they may be a hundred Weights or a thousand Another Exception was taken that the Plaintiff in another Action had declared for four pair of Hangings which is uncertain But Roll chief Iustice said That that might be well enough understood Green at another day insisted that four pair of hangings is very uncertain but if it had been said four sutes it had been well Besides the very word hangings is a doubtfull word for it shews not whether the hangings were Silk or Stuff or what else they were made of as it ought to be He also took an Exception that the Plaintiff had only shewed that here was a denyal and refusal to restore the goods but no conversion of them is shewed To this Hales answered That the Action being an Action upon the Case It is not necessary to shew the Conversion and for the four pair of hangings it is well enough for a pair is a couple when the word is used of dead things and not like a pair of tongues which make but one thing nor is it material to expresse of what the hangings are made as it is not in an Action brought for divers pair of stockings material to say whether they were of thread silk wosted or wollen as hath been adjudged and the word hangings is certain for any one will conceive them to be meant of hangings of a room Roll chief Iustice The Action is an Action upon the case and it is not necessary to shew a conversion for the Action is not brought for the conversion and if it were so if a demand and a denyal be proved doth not this prove a conversion Case Trover and Conveision As an Action of the case lyes for keeping one out of possession although the party doth enter afterwards and the four pair of hangings is certain enough and it is not like as where Latin words are mingled with English in a Declaration and the words being taken in the English construction shall be understood to be eight hangings Nor is it material to expresse of what the hangings are made But the great doubt is whether the words be meant of hangings for a room or not and I suppose they cannot be meant of other hangings the words being in English and not in Latin with an Anglice and I believe you cannot shew me any thing else that the words can by common intendment signifie Iudicium nisi The case was again moved at another day by Latch who urged that four pair of hangings are words incertain but if it had been four suits it had béen well so that here is a misaplication of words to expresse the thing meant and he might as properly have said a suit of Shoes or a suit of Conies If one say he hath lost a hanging this is incertain of it self for it is the predicament of situs and not of substance for a hanging is a posture and the word pair makes it more incertain than it was without it Hales answered that it is certain enough for the word hanging is used here substantively and not as a participle and the common use of the word is only applicable to the hangings of a room and the four pair shall
where it is and by the construction that we make of the Proviso all the Will may stand together but by another construction it cannot Elizabeth shall have a special entayl with her Husband by the last clause and yet the general Estate tayl given in the former part shall stand and we are in the interpretation of Wills to consider circumstances and conjectures and there are two publications found in this will although this doth not appear upon Record and so comes not in judgement Roll chief Iustice We are all of one opinion that judgement ought to be given for the Defendant If the first clause in the Will continue uncontrolled by the Proviso it is for the Defendant but if it continue not uncontrolled it is for the Plaintif and we hold that the first clause is not controlled for we ought not to make any part of a Will void if all the parts of it may stand together and this cannot be here if the Proviso should controll the former part Revocation and to make it repugnant but if the Proviso could stand with the former part of the Will it might revoke the former part and if this Proviso had been made after the Will it might have altered the Case but that appears not And we must collect the Testators meaning by the Will Intention and by the Will it cannot be understood that the Proviso should be void and the common reputation of Mill and Mills to be the same name shall not make Mill to be the Testators true Sirname and the Testator intended his Daughter should marry one of his own true Sirname and not one of his reputative name for this is a special case and goes not according to the ordinary rules of names that sound alike and it cannot be intended that the Testator did mean to destroy one part of his will by another part A general clause in a grant shall not extend to a particular thing provided for in the grant much less shall it do so in a Will Therefore let judgement be for the Defendant nisi Mich. 1652 Banc. sup AN Action of the Case was brought by one that kept a Victualling house Arrest of Iudgement in an Action for words for speaking these words of her There was a man killed in her house and she concealed the murther Vpon a rule to stay judgement till the Plaintif should move Wild moved for judgement because he held the words to be actionable in that they amount to a scandal of the Plaintif as well as they tend to cause her to be fined and imprisoned Roll chief Iustice Fine Imprisonment She shall not be fined and imprisoned except she receive and comfort the party that killed him but the words are scandalous and the Case differs from the Cases put on the other side Twisden for the Defendant urged that it was not averred that the Plaintif did know of the murther Roll chief Iustice The words imply she knew of the murther for how else could she be said to conceal it Bowlstrode for the Defendant said That it doth not appear by the Record that any man was killed in the house nor any time when nor is it said the Defendant spoke the words of the Plaintif Case but only by an innuendo Roll chief Iustice The words are actionable to say that thou hast murthered a man without averring that he is killed but if it appear by the Declaration that the man was alive after the words spoken it is otherwise And here if no man be murthered the feigning of a false thing makes the words the more actionable by saying she concealed a murther where there was in truth no murther done But the greatest doubt here is whether because admitting a murther were done the Plaintif is to be but fined and imprisoned for the concealing it the words can be actionable And I hold they are actionable notwithstanding because they are scandalous Endictment Declaration and he said that in an Endictment a thing must be expressed to be done false et malitiose because that is the usual form but in a Declaration those words are not necessary Therefore let the Plaintif have his Iudgement nisi Mich. 1653 Banc. sup IT was held by the Court that a Constable cannot be sued out of the County where he is Constable for a thing done by him in execution of his Office A Constable not to be sued out of his County but for other matters he may Elston and Drake Mich. 1653. Banc. sup ELston brought an Action of Debt for rent due upon a lease for years Error to reverse a judgement in debt for rent as being Administrator to I. S. and declares for rent due since the death of the Intestate and hath a verdict and a judgement in the Common Pleas. Drake brings his writ of Error here to reverse this judgement The Exception taken was that it doth not appear by the Declaration whether this rent sued for doth belong to the Administrator or not for he makes himself no title to it and for ought doth appear it may belong to the heir and not to him Wadham Windham on the other side This is no Exception now after a Verdict but if it had been upon a Demurrer it would have been good and we do not declare that the Intestate was seised in see who made the lease and so it may well be understood that he had but a lease of this land did let an under lease to the Defendant and the better construction shall be made for us Hales on the same side said non detinet is pleaded and the Iury hath sound detinet which would be impossible if the Intestate had been seised in fee and there is a double intendment that the rent is reserved upon a lease for it is reserved to Executors and not the heir Maynard on the other side said the Verdict helps nothing because the Declaration is naught in substance in our case for the Plaintif therein hath made himself no title to the rent and all that is in the Declaration to intitle him is expressed but by way of inference or conclusion and for the reserving the rent to the Executors this had been good if the rent had grown due during the time of the Intestate The Court moved the parties Amendment Tryal Costs that by consent the Declaration might be amended paying costs and that a new tryal might be had by consent which was agreed unto and so ruled Bedwell and Fenwick Mich. 1653. Banc. sup BEdwell brought an Action upon the case against Fenwick Arrest of judgement in an Action upon a promise and declares that the Defendant in consideration that the Plaintif would marry E. his Sister he would give his Sister 300 l. for her mariage portion upon his mariage with her and for breach of this promise brings his Action and obtains a verdict against the Defendant The Defendant in Arrest of Iudgement urged that the breach