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
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
the Words so that he be of twenty four years of age at the time of the death of Elizabeth it would have béen a contingent limitation upon the being of that age at that time Where words make a contingency by the intent of the party but now that by a mean disposal of the Profits he fills up that space of time it appears he did not mean to make that limitation a contingency to the Remainder but upon that supposal to provide for the younger Children and the Case was adjourned Pasc 23 Car. Banco Regis Needler versus Guest Trin. 17 Car. Rot. 1324. IN an Action of Covenant Covenant for 2 s. for copying every Quire of Paper Breach that he copied four Quire and three Sheets for which 8 s. 3 d. was due And that there could be no apportionment for the Covenant was to allow him 2 s. a Quire but not pro rata If he had averred 3 d. to be the usual fees for copying three Sheets he might have helped himself The Plaintiff declares that the Defendant being an Attorney covenanted to take the Plaintiff for his Clerk and to allow him 2 s. for every Quire of Paper that he should Copy out and 1 d. for every Shéet that he should engross and so much for such and such things and all usual fées and among other breaches he alledged that he copied out a Bill containing four Quires and thrée Shéets for which 8 s. 3 d. was due to him which the Defendant hath not paid And upon a Verdict and Iudgment for the Plaintiff in C. B. it was moved for error that there could be no apportionment in this Case for the Covenant was to allow him 2 s. for copying a Quire but not pro rata And for this cause upon good debate the Iudgment was reversed but it was holden that if he had averred 3 d. to be the usual fée for copying thrée Shéets of Paper he might have helped himself upon that Clause Vincent versus Fursy Hil. 22 Rot. IN an Action of Trespass for entring into his House Trespass and breaking duas Cistas and for taking diversa genera apparatuum in Cista praedicta existent and for beating his Servant per quod Servitium amisit after a Verdict for the Plaintiff upon motion in arrest of judgment it was agréed First that one may have a general Action of Trespass and a special Action upon the Case in one Action Secondly that the words diversa genera apparatuum were too incertain of themselves but being referred to a Chest wherein they lay they were reduced to sufficient certainty but because two Chests were mentioned before and the Apparel was alledged to be in Cista praedicta in the singular number so that it appears not in which they were judgment was given against the Plaintiff Stoughton versus Day Hil. 22 Car. Rot. 486. IN Debt Debt upon a Bond with Condition That whereas the Plaintiff is Sheriff of Surry and hath made Cornelius Trapp his Bailiff of the Hundred of Brixto if he should execute his Office c. and make true returns of all Warrants directed to him then c. The Defendant upon Oyer pleads particularly performance to all the Plaintiff replies that process was directed to him to levy Issues upon J. S. and that he made his Warrant to Trapp to execute the same which Warrant he did not return and upon a demurrer Iudgment was given against the Plaintiff because he did not shew that the Issues were to be levied within the Hundred of Brixto for it was resolved that though the words of the Condition were general to make return of all Warrants directed to him yet it was to be understood of such only as were to be executed within the Hundred of which he was made Bailiff Capel versus Allen. Hil. 22 Car. Rot. 639. IN Debt Debt upon a Bond with Condition to perform an Award the Plaintiff upon nullum arbitrium pleaded by the Defendant sets forth that the Arbitrators did award de supra praemissis modo forma sequenti viz. That the Defendant should pay so much to the Plaintiff and the Plaintiff should pay for the Writings of the award and it was adjudged a void Award because but of one side for it did not appear that the other party was bound to pay for the Writings which was the only recompence for the Defendant And this also is matter subsequent to the submission and so cannot be intended a good recompence Johnson versus Barret auters IN an Action of Trespass Trespass for carrying away Soil and Timber c. Vpon Trial at the Bar the Question arose upon a Key that was erected in Yarmouth and destroyed by the Bailiffs and Burgesses of the Town and Roll said that if it were erected betwéen the high Water-mark and low Water-mark then it belonged to him that had the Land adjoyning But Hale did earnestly affirm the contrary viz. that it belonged to the King of common right But it was clearly agréed that if it were erected beneath the low Water-mark then it belonged to the King It was likewise agréed that an Intruder upon the King's possession might have an Action of Trespass against a Stranger but he could not make a Lease whereupon the Lessee might maintain an Ejectione firmae Whitacre versus Hillidell H. 22 Car. Rot. 1318. SLander Slander Margaret Whitacre is a Thief and stole my Wood and I will have her put in Bridewell and upon motion in an arrest of Iudgment after Verdict it was agréed by Bacon and Roll that those words she is a Thief and stole my Wood of themselves were actionable and Cases cited accordingly But Bacon held that the latter words qualified the former for the Statute 43 Eliz. cap. 7. enacteth that persons that steal Wood growing which is not Felony shall be whipped if they make not satisfaction now Bridewell is known to be a place where such penalties are inflicted so that upon all the words it shall be intended an accusation of such an offence the penalty whereof is whipping and not of Felony But Roll contra totis viribus because the words she is a Thief are single and the other accumulative being brought in by the word And but if it had béen for she stole c. then they are explanatory And this difference hath béen alwaies taken in this course But Bacon denied the diference and cited Clerke and Gilbert's Case Hob. 331. thou art a Thief and hast stollen twenty load of my Furzis and adjudged not actionable and no difference allowed betwéen and and for but Roll flatly denied that Case to be Law 2. To accuse one of petit Larceny will bear action and for that the offendor shall be whipped so that might be his meaning and he said that where the first words are a plain and direct Slander the subsequent words that should take of their effect ought to carry in them a very strong Intendment that they were
Law And 12 Jac. Iudgment in a Formedon de uno crofto et messuagio was wholly reversed because a Praecipe lyeth not de crofto Pasc 18. Car. betwéen Creetall and Norefeild in Error upon a Iudgment in Canterbury in an Action of the Case upon two Promises where upon a Verdict for the Plaintiff damages were taxed severally and because one of the Promises was insufficiently laid the whole Iudgment was reversed Vide Hobart betwéen Miles and Jacob. et 2. In. 236. d. And Trin. 11 Car. betwéen Ellenhead and Dearman in Error upon a Iudgment in the Marshalsea in Debt upon a Bill and likewise upon a Contract The Defendant pleaded Non est factum to the one and Nil debet to the other and both being found against him the Iudgment was Quod capiatur and because it was not Quod in misericordia also as to the other Issue the whole Iudgment was reversed And Trin. 7 Jac. B. R. Rot. 568. betwéen Beard and Beard in the very same Case with the principal Case the entire Iudgment was reversed But in an Action at Common Law where damages are given by Statute there if the Iudgment be Erroneous as to the damages the principal Iudgment shall stand as in a Writ of Dower and so he said it was adjudged betwéen Tie and Atkins Vide 22 E. 4. 46. e. et L. 5. 59. a. Simile in a Quare Impedit And the entire Iudgment was reversed in the principal Case Hale for the Plaintiff in Error Wilde for the Defendant And Hale cited a Case betwéen Holland and Lee called Damms Case where he in Remainder in Taile in a Writ of Error to avoid a Common Recovery assigned for Error that the Voucher being an Infant appeared by Attorney for which the entire Iudgment was reversed Nota Hoddesd's Secondary told me the Case of Miles and Jacob in Hobart was not Law Trin. 24 Car. B. R. Cornish versus Cawsy Trin. 23 Car. Rot. 1434. IN an Action of Debt Debt against an Executrix the Plaintiff declared upon a Lease made to the Testator by Indenture dated the 25 of March Anno. Habendum à die datus for Seven years And upon Nil debet pleaded the Iury found that the Plaintiff by Indenture dated the 25 of March and delivered the same day demised the Land to the Testator which was to have and to hold from the day of the date for the tearm of Seven years from henceforth next and immediately following c. And upon this Verdict the Question was Whether the Lease in point of Computation was to commence from the making or from the day of the Date For if the Seven years commenced from the making then the Plaintiff had mistaken the Lease but if they commenced from the day of the Date then he had declared right according to the Lease And it was argued that the Seven years were to commence from the day of the Date and not from the making of the Lease for that the words will bear that construction for the words from hence forth may refer to the words from the day of the Date and so to the time of the commencement in point of interest And then the words shall be taken as if the Lease had béen to have and to hold from the day of the date from henceforth for Seven years excluding the day of the Date in the computation and this was probably the intention of the parties and not that the Lease should commence one day in point of computation and the next day in interest Also there is a Rent reserved during the tearm payable annually upon the 25 of March the last day of payment whereof would be out of the tearm if the Seven years commence upon that day And the Case in Dyer 261. was cited where an Abbot made a Lease for 31. years and after made a new Lease in these words Noveritis nos c. dictis 31. annis finitis et completis dedisse concessisse praed ' praemissa to the second Lessée habend'et tenend ' à die confectionis praesentium termin ' praed ' finit ' usque ad finem termini 31. annorum tunc immediate sequentium And it is there resolved by all the Iustices of C. B. that the Lease doth not commence in point of computation till it takes effect in Interest viz. till the first 31. years ended And yet there it might have béen said that the words praed ' termino finito should be a limitation in point of Possession or Interest and the words à die confectionis c. in point of computation But there it is said that the words à die confectionis refer to the Demise after the 31. years ended to have à die confectionis But note in that Case the Opinion of the Court of the Kings Bench was against that Opinion And in this Case two other points were moved and agreed by Roll 1. That where part of the Arrears demanded were due in the time of the Testator and part after his decease the Action in the Detinet was good for the whole as well as if all had béen due after the death of the Testator And that after a Verdict Quod non detinet the Land shall not be intended of any value as it is well known in these times in many places Lands have béen of no value and yet the Executor is liable to the Rent as far as he hath Assets and clearly if he hath Assets he cannot wave his tearm 2. That the Action being in the Detinet and the Defendant pleading Nil debet it is holpen by a Verdict And so it was adjudged as he said in this Court Trin. 10 Car. Rot. 1289. betwéen Porter and Gervise And he said If in an Action upon the Case upon an Assumpsit the Defendant plead Not Guilty it is well enough after a Verdict and as there your Action is placitum trn̄s super casum so here it is placitum debiti As to the principal point he did resolve That the Plaintiff hath mistaken his Lease for a Lease Habendum from henceforth includes the day of the making and a Lease Habendum from the day of the day excludes the day of the date And with this agrées Barwick's Case which he affirmed to be Law but he said That if such ancient Patents be given in Evidence the Iury by presumption to make the Patents good may find that they were made the last instant of the day of their Date and then they are good in Law And so hath it béen resolved in point of Evidence Now the Habendum being à die datus and for Seven years from henceforth c. to make all parts of it stand it must be construed to commence from henceforth viz. as to the computation of the Seven years that they shall begin upon the 25 of March and from the day of the date viz. upon the 26 of March in interest and possession And he resembled it to the Case of More and
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