Title And both the Iudges denied that the Chancery could proceed upon the Inquisition now that the same was sent hither upon the Traverse but that the Iudgment in this Court would utterly subvert the Inquisition And therefore Iudgment was given quod manus Domini Regis amoveantur Shalmer versus Slingsby Hil. 22 Car. Rot. 1036. IN an Action of Debt upon a Bond the Defendant pleaded Debt That the Bond was made in another County than where it is alledged in the Declaration and prayed that the Attorney might be examined thereupon by force of the Statute of 6 R. 2. cap. 2. And the Plaintiff demurred as if it had been a plea in bar to the Action And the Defendant joyned in demurrer and concluded quod ab actione praecludatur And it was resolved that the plea was naught and not warranted by the Statute which provides only that the Original shall not be laid in one County and the Declaration upon a Bond made in another County and if so the Writ shall abate but this course of pleading hath been alwaies disallowed Vide 3 H. 6. 35. 2. Because the demurrer was joined as to the Action therefore Iudgment was given quod recuperet c. Wright versus Paul Pindar Pasc 22 Car. Rot. 440. IN a Trover Trover and Conversion brought by an Administrator upon not guilty pleaded the Defendant upon the evidence confesses that he did convert them to his own use but further saith that the Intestate was indebted to the King and that 18. May 14 Car. it was found by Inquisition that he died possessed of the Goods in question which being returned a venditioni exponas was awarded to the Sheriff who by virtue thereof sold them to the Defendant And to prove this the Defendant shewed the Warrant of the Treasurer and the Office-Book in the Exchequer and the Entry of the Inquisition and the venditioni exponas in the Clerk's Book to which the Plaintiff saith that the matter alledged is not sufficient to prove the Defendant not guilty and that there was no such Writ of venditioni exponas And the Defendant saith that the matter is sufficient and that there was such a Writ And it was resolved that he that demurs upon the Evidence ought to confess the whole matter of fact to be true and not refer that to the judgment of the Court. And if the matter of fact be uncertainly alledged or that it be doubtfull whether it be true or no because offered to be proved only by presumptions and probabilities and the other party will demur thereupon he that alledges this matter cannot join in Demurrer with him but ought to pray the judgment of the Court that he may not be admitted to his Demurer unless he will confess the matter of fact to be true And for that the Defendant did not so in this case both parties have misbehaved themselves and the Court cannot proceed to Iudgment But it was clearly agreed that upon Evidence the Court for reasonable cause at their discretion may permit any matter to be shewn to prove a Record Com. 411. b. And the opinion of the Court was that an alias Venire facias should be awarded and not a Venire de novo because no Verdict was given Trin. 23 Car. Banco Regis King versus Somerland Pasc 23 Car. Rot. 140. IN an Action of Debt Debt for Rent the Plaintiff declares upon a Lease for years made by a stranger who bargained and sold the Reversion to the Plaintiff per indenturam debito modo irrotulat ' in curia Cancellariae and after a Verdict for the Plaintiff upon nil debet pleaded it was moved in arrest of Iudgment that he had not alledged the inrolment to be within six months nor secundum formam Statuti And though it were said to be debito modo that would not help because it might be so at the Common Law and the Verdict could not make the Declaration good for want of a convenient certainty for the foundation and therefore upon great deliberation Iudgment was given against the Plaintiff Coleman versus Painter Trin. 23 Car. Rot. IN an Action of Debt Debt upon a Bond with condition to perform Covenants one of which was that the Plaintiff should not be interrupted in his possession of certain Lands by any person that had lawfull Title and particularly that he should not be interrupted by one Thomas Anthony by virtue of any such Title upon performance of Covenants pleaded the Plaintiff replies that 1. Novemb. 20 Car. the Defendant made a Lease for years to the Plaintiff of the Lands mentioned in the Déed and that the 3. of the same month the Plaintiff entred and that before this time viz. 17. Augusti 20 Car. the Defendant made a Lease to the said Tho. Anthony for a term of years yet to come who 20. Aug. 20 Car. entred into the Land c. the Defendant pleaded that the said Lease made to T. A. was with condition of re-entry for non-payment of Rent and that before the Lease made to the Plaintiff the Rent was behind legitime demandat secundum formam indenturae And upon non-payment he re-entred and made a Lease to the Plaintiff And upon a general demurer it was resolved that the Demand was insufficiently alledged for he ought to set forth certainly when and where it was made that it might appear to the Court to be legal but for the flaw in the Plaintiff's replication because he alledged his Entry after the Lease made to T. A. so that it doth not appear that he was interrupted by him the opinion of the Court was against the Plaintiff but the next Term by leave of the Court he discontinued his Action Brown versus Evering Hil. 21 Car. Rot. 354. IN an Action of Debt Debt for Rent after a Verdict and Iudgment for the Plaintiff in the Common Pleas upon a Writ of Error brought and Diminution alledged it appeared that the Issue was joyned Pasc 21 Car. And the Venire facias certified to be in placito praedicto inter partes praedictas bore teste Pasc 20 Car. And this was moved for Error but it was adjudged to be holpen by the Statute of 8 El. cap. 14. as if there had been no such Writ for it is impossible that this should be the Writ in that Action Long versus Bennet IN an Assumpsit Assumpsit the Plaintiff declares That in consideration that he had sold to the Defendant unam acram ligni he promised to pay him 8 li. And after Verdict for him upon non Assumpsit it was moved that the Declaration was uncertain because it doth not appear whether the Soil it self or the Wood only were sold but after much debate the Plaintiff had his Iudgment Vide 17 E. 4. 1. d. Frier versus Prentice Pasc 23 Car. Rot. 416. IN an Assumpsit Assumpsit the Plaintiff declares That the Defendant in consideration that the Plaintiff would permit J. S. to enjoy
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
Statute of 27 H. 8. which reduces the possession to the Vse recites that by conveyances to Vse the King lost his escheats and purchases of Aliens c. l. 1. 124. a. Now Trusts being of the same nature at this day they are ruled according as Vses were at the Common Law and therefore if a Woman conveys a term in Trust for her self and takes Husband and dies he shall not have the Trust by survivorship but the Administrators of the Wife should have it 4. Inst 87. a. Witham's Case But Roll said that it hath béen since resolved that the Husband shall have it in that case And Mainard said that the Alien himself had no remedy in equity for the Vse at Common Law nor for a Trust at this day for he could not compell the Feoffees to execute it 2. If the King should have the Trust yet he cannot seise the Land by Law for the Alien himself had not that power his remedy if he should have any was only in the Chancery 3. The Land it self being Copyhold the King cannot have it 1. Because it is not transferrable by act in Law without the concurrence of the Lord for the prejudice that may accrue to him in losing his Fine c. 2. Because the King cannot perform the services incident to the Tenure and yet in default thereof the L. could not take advantage of the forfeiture as against the King 3. It would be an injury to strangers that should have right to the Copyhold for the King is not to be impleded in the Lords Court where only remedy is to be taken 4. The Estate is too base for the King to hold On the contrary it was said 1. That the King should have had a Vse limited to an Alien at the Common Law and by the same reason that he was to have the Land purchased by Aliens viz. That the Realm should not be impoverished by strangers and Vses at the Common Law were not properly things in action but Inheritances descendible by the rules of the Common Law and would have passed by grant or devise by the name of Hereditaments as Hale said And he said that the preamble of the Statute of 27 H. 8. is not to be intended as though the King should not have remedy for the profits when the Vse was discovered but that the Lands were so craftily conveyed that the Vse could not be discovered Now the case is the same of a Trust 2. The King be virtue of this Trust may seise the Land for though the profits only are given him by the Trust yet he hath not any direct means to be satisfied of those profits unless he may seise the Land And therefore 5 H. 5. 3. where a Manor with an advowson appendant was granted to the use of one who was after outlawed and upon an avoidance the King brought a Quare impedit and had a Writ to the Bishop And Hales said that 19 Jac. in Sir John Dacke's Case in Scaccar ' to whom the King granted a term to the use of the Lord who was attainted of Felony upon great deliberation with all the Iudges it was resolved and accordingly decréed that the Trust should be forfeited to the King and the interest of Sir John also 3. Now that the Estate of the Copyholder is fixed by the Custome there is the same reason for that as for any other Inheritance And this Term the Court took an exception to the Commission which was only to enquire what Lands c. the Alien had but no Capias in manus in it and therefore it was resolved that the seisure was unduly made and therefore they did not openly declare their opinion upon the matter in Law But Bacon said that an Alien at the Common Law could not compell the Feoffees to execute an Vse And Roll said that though the King should have the Vse yet he could not seise the Land it self by Law but by equity he might have a Decrée for the Land and so was Sir John Dack's Case And the Court doubted what Iudgment should be given the Verdict being found for the King And the rule was that cesset intratio judicii c. for they held that they could not give any Iudgment but afterward Termino Paschae 24 Car. the opinion of the Court being changed they directed the Case should be argued And Hale argued for the King that no Iudgment could be given against him because the Record of the Inquisition is still remaining in the Chancery and this Court hath no power to procéed but only to trial of the Issue and upon the Verdict for the very Record as to that is in this Court and yet he said that the Record after the Trial hath béen remanded into the Chancery and Iudgment given there but the tenour only of the Inquisition is here as appears by the Entry c. but if it had béen brought in per manus proprias of the Kéeper of the Great Seal then the whole Record had béen here and so Iudgment should have béen given upon the whole Record And he took this difference that when the tenour of a Record being removed the Court where the Original Record resides cannot proceed then the Court where the tenour is may procéed upon the tenour And therefore if the tenour of a Fine be certified upon a Certiorari out of the Tower or Treasury into the Chancery and sent into the Common Pleas by Mittimus Execution may be awarded there upon the tenour 39 H. 6. 4. a. So if the tenour of a Iudgment in a Writ of Annuity be certified out of the rescript in the Common Pleas into the Chancery and sent thither by Mittimus they may award execution there upon the tenour 34 H. 6. 2. d. because in those cases there are no other Iustices that can proceed upon the Record it self but where the Iudges where the very Record resides may procéed thereupon notwithstanding any tenour certified in such cases there can be no proceeding upon the tenour As if the tenour of a Iudgment in ancient demesn be certified in Chancery and sent by Mittimus into the Common Pleas no Scire facias lieth thereupon because the Court of Ancient Demesn may still procéed to execution upon the Record it self 39 H. 6. 3. h. c. So in our case the Chancery may still procéed to seisure upon the Inquisition affirming it to be good 14 E. 4. 7. a. And therefore this Court cannot procéed upon the tenour of it for thence might ensue a clashing of the Courts the one affirming it and the other quashing it and for these reasons he prayed that the former rule might stand But it was answered by Maynard and resolved by the Court that Iudgment ought to be given against the King because the whole Record is virtually here otherwise they should be bound up to the Verdict so that Iudgment should be given according to that though it appear upon the whole Record that the King had no
holds over his Term and pays his Rent quarterly as before he becomes Lessee at Will 4 Tenant at Will paying quarterly begins a new quarter over he shall pay that Rent although he determine his Will before the quarter expired ibid. Legacies Difference between Debts without specialty and Legacies 39 Executors not compellable by the Ecclesiastical Court to pay Legacies except Legatees give caution to repay them upon contingent covenants broken 39 Legacies devised in specie not to be taken without assent of the Executors ib. Where a Covenant is broken before the delivery of Legacies the Administration shall work a Devastavit 39 40 How far the Common Law takes notice of giving remedy to recover Legacies 40 M. Misnosmer IN a Demise if it appear to be the same person that demised though misnamed it is sufficient otherwise where the name is part of the Issue 59 N. Notice WHere notice is to be given to the Defendant in an assumpsit for so many goods bought by the Plaintiff for the Defendants use at such a rate 24 Condition of a bond to make an estate of inheritance to the obligee by such a day the Defendant ought to give the Plaintiff notice if for the making of a feoffment otherwise for the Plaintiff at his peril ought to attend 25 Where a Broker hath power to sell goods and the Owner sells them and afterwards the same day the Broker sells them he shall not be liable to an Action for detaining though demanded without notice given of the first Sale 24 Promise to pay so much as I. S. was damnified and good without giving notice how much 21 Promise to give the Plaintiff 2 s. for every Piece of Cloth he should buy and averrs he bought 100 Pieces for which he demands 10 l. not good without notice given to the Defendant 24 O. Obligation OBligation void because the condition was for maintenance 60 Condition to save the Obligee harmless concerning buying certain Goods at such a price this extends not to the Price but the Title 95 Office Where the Kings title is found by one Office it is a Record intire of it self and shall not be taken as it stands in comparison with another Office 30 Where the Kings intrest shall commence by Office before Seisure 30 Ouster le main Where land shall continue in the Kings hands for a third part till an Ouster le main sued though the Heir be dead 30 Where an Ouster le main is necessary a lease for years made before is not good ib. P. Perjury ONe convicted for Perjury and Fined 10 l. although there was no malice in it 79 Plea In Debt for Rent where it is no good Plea that Alien Enemies entred and expelled him 27 The difference where the Law creates a duty or charge and the party is disabled to perform it without any default in him and when the party by contract creates a duty upon himself ibid In Debt upon Bond the Defendant pleads the Statute of 23 H. 6. and that he was in custody and that the Bond was for his enlargment and concludes non est factum which ought to have been judgment Si Actio c. and held naught 58 In a Debt upon a single Bill the Defendant Pleads payment of part after imparlance and darrein continuance and not good without acquittance shewn 63 65. Where a Plea concludes in abatement it is not peremptory but if a Plea in abatement be pleaded in Bar it is peremptory ib. A Plea pleaded after Imparlance and Issue tendred upon it yet it is not Peremptory upon a Demurrer ib If after issue joined the Defendant pleads a Plea in abatement this is peremptory as well upon Demurrer as by Verdict 66 The diversity between a Plea in abatement and a Plea to have Aid ib Vpon fully administred pleaded and the Issue whether Assets or no and Assets found for part only yet judgment to recover the whole shall be good 37 Accord a good Plea in Covenant 39 A Bond made to two and the Survivor brings an Action in his own name non est factum is no Plea 42 Plene Administravit a good Plea to a charge by Judgment 48 Where an argumentative plea is insufficient upon a general Demurrer ib. Per dures where it shall be a good Plea to avoid a Bond fraudulently obtained 92 Of a Bond made in one County and the Declaration alledged in another upon the Statute of 6 R. 2. 17 Prohibition After administration granted the Ordinary hath not power to compel the Administrator to make distribution and if he go about to repeal the Letters for not doing it a Prohibition lyeth 56 Promise Vide Assumpsit R. Recognizance A Scire facias against three Baylees upon a Recognizance acknowledged jointly and severally and not good Otherwise in debt upon a Bond for there the Defendants ought to shew that the parties were in full life at c. 21 Releas In debt upon a Bond of 200 l. for payment of 104 l. a Releas of a Bond of 200 l. for the Payment of 100 l. is not good although it be averred there is no other Bond made by the Defendant 71 Rent Debt by an administrator for Rent upon Assignment of a term for years by Deed adjudged no Rent but a sum in gross 57 Debt upon the Statute of 32 H. 8. against Occupiers for arrears of a Rent charge 62. Lease reserving 7 l. Rent and there is 3 l. more behind the Lessor cannot demand 10 l. whereby to take advantage of a Condition because its an intire sum 95 Request Request where to be made by the Defendant before the Plaintiff is to make his Election 25 Request where it shall be well made 25 26 S. Sewers COmmissioners of Sewers Quaere if they may sell a Distress 92 Statutes To what Courts the Statute of 21 Jac. and the Statute of Jeofails shall extend 64 Stat. 1 Jac. 8. of Stabbing how construed where several are indicted and it doth not appear who gave the thrust 44 Surrender If Lessee for life accept of a Lease for years this shall be a Surrender of his Estate for life 59 Survivor A bond made to two and one survives he may bring the Action in his own name so if a charge survive otherwise where nothing survives as in feoffment 42 T. Trespass One cannot justifie a Trespass upon another for fear 35 Trover Trover will lie for money delivered by the Plaintiff to the Defendant to keep though not in Bags 91 Trust Vide Uses V. Varians IN an Action on the Case where one of the Jurors names was Lancester and in the Record it was Lancaster and ruled no Variance 91 Venire facias See Writs Verdict Where a Verdict shall not make a declaration good which wants convenient certainty 19 Where the Declaration varies from the Verdict and good 28 Where in an Action on the Case for words and shall not be supplied by exceptis his verbis 31 Uses What they were at the Common Law 14 Trusts are at this day ruled as Vses were at Common Last 15 Where the Husband shall have a Trust by Survivorship 16 Where a Trust of Copyhold land is forfeited to the King he shall have the Land it self 15 W. Wast TEnant for life the remainder for life and Tenant for life cuts down Timber trees he in the reversion may seise them although he cannot have an Action during the life of him in remainder 81 But where a Lease for years is made without Impeachment of wast such exception is good 82 Lessee for life with a contingent remainder is no bar to him in reversion to bring an Action of wast 16 Lessee for life cuts Timber trees he in Reversion to bring a Trover though he did not seise them ib. Lessee for years cuts down Timber trees and some distance after carries them away Trespass vi armis lies and in such case felony may be committed 83 Construction of Words Per unam acram ligni not only the the word but the soil it self shall pass 20 If where it shall be taken as a limitation subsequent 20 Where Postea shall refer to the time immediately precedent 23 Where Scilicet is but explanatory and for instance and cannot contradict any thing that is precedent 23 24 The word Rest in a devise how construed 28 The construction of the word for in an Action on the Case for words 31 Where the latter words qualifie the former 11 Where a man grants his land totum statum suum habendum for sixty years the habendum shall be construed repugnant 59 Lessee for life with power to make Leases for twenty one years at ten pounds per an payable at Mich. or ten days after whether these words are to be taken in sensu diviso or conjuncto 90 Habendum a die datus and for three years from hence forth how to be construed in a Lease for years 7 Decimae garbarum what is comprehended therein 80 Where words make a contingency by the intention of the party 8 Where words are general in a Bond yet may be limited 10 The difference between the words and and for Writs If a Writ abate one day and another Writ is purchased bearing Teste the same day it shall be intended after the abatement of the first 34 Where an alias Venire facias shall be awarded and not a Venire facias de novo 18 Where a Venire facias shall be awarded for insufficiency of the verdict 31 Scire facias to be brought where the Recognizance was taken but the usual entry in Banco Regis is to express before what Judge it was taken but no place where 13 Venire facias in Chancery retornable in Banco Regis 14 Where abundans cautela makes not the Writ vicious ibid. FINIS
I Do approve the Publishing of the Reports of this Learned and Judicious Author for the benefit of the Students of the Law Fra. North. Select CASES In B. R. 22 23 24. CAR. I. Regis REPORTED BY JOHN ALEYN late of Greys Inn Esq WITH TABLES of the Names of the Cases and of the matters therein contained ALSO Of the Names of the Learned Councel who Argued the same LONDON Printed for Robert Pawlet at the Bible in Chancery-Lane near Fleet-street 1681. A TABLE OF THE Names of the Cases contained in this BOOK A ANdrews versus Harbor Page 12 Aylwin versus Taylor Page 93 B BAfield versus Collard Page 1 Banfield versus Brown Page 53 Beaton versus Forrest Page 65 Bernard versus Bonner Page 58 Blackwell versus Ashton Page 21 Sir Thomas Bowes Case Page 4 Dame Bowles versus Broadhead Page 88 Brook versus Brook Page 24 Brown versus Evering Page 20 Brown versus Wood Page 36 Dr. Bruces Case Page 50 C CAly versus Joslin Ux. Page 34 Capel versus Allen Page 10 Chappel versus Goodhouse Page 61 Sir John Chichesters Case Page 12 Coleman versus Painter Page 19 Com. Northumberland versus Green Page 33 Combs versus Cheny Page 92 Sir Anthony Ashly Cooper versus St. John Page 84 Creswell Ux. versus Ventres Ux. Page 57 D DAvis versus Dyos Page 91 Dent versus Scot Page 61 Dod versus Robinson Page 63 Duncomb versus Tickridge Page 94 Dunsh versus Smith Page 62 Dutton versus Eaton Page 30 E EDwards versus French Page 6 Eels versus Lambert Page 38 Eels versus Smith Page 37 Ethringham versus Ethringham Page 2 Evely versus Livermore Page 4 F FAldo versus Pindar Page 60 Farrer versus Bates Page 4 Freeborn versus Pincras Page 68 Fryer versus Prentice Page 20 Fyner versus Jeffrys Page 21 G GAwdy versus Congham Page 37 Gilbert versus Stone Page 35 Gurman versus Hill Page 26 H HAins versus Finch Page 6 Halls Case Page 51 Hart versus Buckminster Page 52 Harvy versus Thorn Page 62 Hinacre versus Lemon Page 5 Hill versus Armstrong Page 55 Hill Ux. versus Bird Page 56 Hilliard Ux. versus Hambridg Page 36 Hilton versus Plate Page 13 Hobson versus Wills Page 53 Hodson versus Sir Arthur Ingram Page 60 Holdwich Ux. versus Chafe Page 41 I JOhnson versus Barrot Page 10 Johnson versus Rawle Page 90 K KEnrig versus Egglestone Page 93 King versus Somerland Page 19 Kinaston Spencer versus Jones Page 85 L LAwrence versus Kete Page 54 Lawrence versus King Page 29 Leech versus Davis Page 58 Loder versus Hampshire Page 63 Lodge versus Weeden Page 22 Long versus Bennet Page 20 Ludlow versus Beckwith Page 90 M MArk versus Cubit Page 35 Markham versus Adamson Page 2 More versus Clypsham Page 32 Morefield versus Web Page 64 Munday versus Baily Page 29 N NEedler versus Guest Page 9 Newman versus Zachary Page 3 O OSborn versus Brook Page 7 P PAge versus Harwood Page 43 Paine versus Sheltrop Page 13 Parmenter versus Cressey Page 25 Paradine versus Jane Page 26 Petchet versus Wolston Page 47 Pierson versus Dawson Page 32 Powel versus Waterhouse Page 5 Price versus Vaughan Page 45 Prigs Case Page 78 Prugnel versus Goss Page 67 R DOminus Rex versus Holland Page 14 Rose versus Spark Page 51 Royston versus Cordry Page 42 S SHaw versus Huntly Page 21 Simonds Case Page 49 Sims versus Gregory c. Page 22 Smalman versus Hutchinson Page 95 Southcote versus Southcote Page 80 Spatchurst versus Sir Martin Minus Page 57 Stoughton versus Day Page 10 T TAnner versus Lawrence Page 24 Taylor versus Usherwood Page 8 V UDal versus Udal Page 81 Vincent versus Fursy Page 9 W WArd versus Prin Page 78 Waters Case Page 8 Wheeler versus Wallroon Page 28 Whittaker versus Hilladel Page 11 Wright versus Pindar Page 18 Y YEarworth versus Pierce Page 32 THE Names of the Learned Councel that Argued the matter in Law contained in this BOOK HALES TWISDEN WINDHAM MAYNARD MONTAGVE LATCH BOREMAN YARD GREEN Mich. 22 Car. Banco Regis Ann Bafeild Administratrix versus Collard 22 Car. Rot. 673. IN an Action upon the Case the Plaintiff declares Assumpsit sur mutual promise to pay A. 100 li. A. may have the Action so may the Party or his Administrator That upon communication of a Marriage to be had betwéen the Intestate's Daughter and the Defendant's Son it was agréed That the Intestate should give the Son 50 li. with his Daughter and that if the Daughter survived the Son the Defendant should pay her 100 li. after his death and mutual promises were made betwéen the Intestate and Defendant to perform the Agréement and shews that the Marriage was had and that the Intestate paid the 50 li. and died and that the Son died and assigns breach in the Defendant's non-payment in retardat ' administrat ' c. and upon non assumpsit it was found for the Plaintiff And Maynard moved that the action ought to have béen brought by the Daughter for it has béen adjudged that it lieth for her upon such a promise and so the Defendant should otherwise be doubly charged but upon good debate judgment was given for the Plaintiff for the consideration moved from the Intestate and the promise was made to him yet it was agréed that it might be brought by the Daughter 27 H. 8. Husband brings the Action in his own name upon promise to the Wife and lays the promise made to himself 24. Tatam's Case Where upon promise to the Wife that if the Husband would release Tatam out of execution the Defendant would pay the debt the Husband alone brought the action and layed the promise made to himself and recovered And the Court in retardat ' administrat ' was good enough though the money was to be paid to the Daughter because it was a duty to the Intestate and the damages recovered will be assets however it was but form and well enough and Roll said that the very point in the principal Case was adjudged Pasc 5 Jac. Betwéen Ashdall and Bernard And Bacon cited 44 Eliz. Rippon and Norton's Case Promise to the Father that c. the Son brings the Action where the Defendant's Son made an assault upon the Plaintiff and his Father and the Father was going to a Iustice of Peace to complain and have a Warrant for him to bind him to the Peace the Defendant in consideration that he would forbear to complain promised the Plaintiff that his Son should not assault him any more and upon forbearance and a new Assault the Plaintiff brought his Action and recovered for the consideration moved from the Son who should have béen secured from Assaults if the Complainant had procéeded and it was resolved here that there needed no notice of the death of the Son Etheringham versus Etheringham A Will
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
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
certain Lands c. promised to pay to the Plaintiff 15 li. annuatim pro quolibet anno during four years if J. S. should live so long and after the first year the Plaintiff brought his Action and upon non Assumpsit had a Verdict and Iudgment though it was not averred that J. S. lived so long for the Action lieth after the first year Si being a limitation subsequent Shaw versus Huntly Trin. 21 Car. Rot. 321. IN Debt Debt against an Executor upon plene administravit pleaded and Issue thereupon the Iury found that the Testator devised that his Executors should sell certain Lands Mich. 23 Car. Banco Regis Blackwell versus Ashton Hil. 22 Car. Rot. 636. A Scire facias Scire facias was brought against three Bailees upon a Recognizance acknowledged by them and the principal joyntly and severally and upon a demurrer the Writ abated by good advisement because this being founded upon a Record the Pl. ought to shew forth the cause of the variance from the Record as that one was dead but if an Action be brought upon Bond in the like case there the Defendants ought to shew that it was made by them and others in full life not named in the Writ because the Court shall not intend that the Bond was sealed and delivered by all that are named in it and therefore the Defendants cannot demur upon it though it be entred in haec verba And so it is if an action be brought upon a Recognizance taken before the Mayor and Recorder c. by the Statute of 23 H. 8. because there the parties must seal and so hath it been adjudged Dyer 227. e. 28 H. 6. 3. c. 36 H. 6. 16. Fyner versus Jeffrys Trin. 23 Car. Rot. 1599. IN an Assumpsit Assumpsit the Plaintiff declares That where one Richard Brand had assaulted and beaten the Plaintiff c. the Defendant in consideration that the Plaintiff would not prosecute the said R. B. c. promised to pay him so much as the Plaintiff was damnified and averrs that he hath not nor yet doth prosecute the said R. B. c. And that he was damnified by reason of the same Battery in 30 li. which the Defendant though such a time and place required hath not paid and upon non Assumpsit and a Verdict for the Plaintiff it was moved that the Plaintiff hath not given the Defendant notice of what he was damnified in but yet the Plaintiff had his Iudgment because the Defendant hath taken upon him to pay the damage that the Plaintiff susteined which when the Plaintiff ascertains to him and requires him to pay the Defendant at his peril is bound to pay if in truth he were so much damnified Lodge versus Weeden Hil. 22 Car. Rot. 146. IN an Action upon the Case for killing of Cattel infected de quodam morbo mortali Angl. the Murrain and throwing their Entrails into the Plaintiff's Field per quod diversa averia of the Plaintiff's interierunt after a Verdict for the Plaintiff upon not guilty pleaded it was moved to be too uncertain because it doth not appear what nor how many Beasts perished but yet Iudgment was given for the Plaintiff because there néeds not such certainty in an Action upon the Case which is not brought for the Beasts themselves or the value of them but for damages sustained by their death through the Defendants means Sims versus Gregory and others Trin. 23 Car. or Pasch 22 Car. Rot. 247. IN an Action of Trespass Trespass upon the Statute of Monopolies made anno 21 Jac. the Plaintiff sets forth the Statute and that 13. Jul. 14 Car. proclamation was made by the King concerning Wines by colour whereof the Defendants procured the Plaintiff to be imprisoned and 200 Pipes of his Wine to be detained till he made Fine for them and that afterward viz. 15 Jul. 14 Car. another Proclamation was made colore hujus Proclamationis postea scil 7. Jan. 20 Car. the Defendants caused the said Plaintiff to be taken and imprisoned and that the Defendants not fearing the said Stat. postea scil 14. Jul. ann 20. supradicto tantas minas de imprisonamento corporis ipsius T. Sims adtunc ibidem intulerunt quod idem Th. Sims per longum tempus scil à praed ' 14. die Jul. anno 20. supradict usque diem impetrationis hujus billae scil 14. diem Jul. 21 Car. circa negotia sua necessaria palam intendere non audebat c. contra pacem c. contra formam Statuti c. The Defendant pleaded not guilty within six years and it was found for the Plaintiff And it was moved in an arrest of Iudgment that the Declaration was repugnant for the Imprisonment is laid to be 7. Jan. 20 Car. and then follows that the Defendants postea scil 14. Jul. 20 Car. tantas minas c. which is before the Imprisonment for the King began his Reign 27. Martii and the Iury have given damages with relation to the whole time whereas the Declaration is nought as to a great part of it And the Case being much debated it was agreed 1. That the Plaintiff in his Declaration need not answer the order of time wherein the Trespasses were done but may alledge that which was done 7. Jan. before that which was done 14. Jul. But yet 2. It was resolved that postea in the latter place must refer to the time immediately precedent and cannot leap over that and refer to the time wherein the Proclamation was made 3. It was resolved that the word postea in this case could not be void and the time brought in by the Scilicet stand absolutely because the word Scilicet is but explanatory and for instance and cannot contradict any thing that is precedent Hob. 172. But if the word Scilicet had been out and the time brought in by it had been alledged substantively then the word Postea would have been void being repugnant 4. It was resolved that the time brought in by the Scilicet was repugnant and void and the Declaration stands as if no such time had been alledged and then it runs thus That the Defendant's Postea tantas minas c. intulerunt quod idem J. S. per longum tempus circa negotia sua necessaria palam intendere non audebat and though this be uncertain for that no time is alledged yet it being not the substance of the Action but only for aggravation of damages and in as much as evidence could not be given of any threats after the reste of the Bill or damage by reason of them thefore being after a Verdict it was resolved to be good enough Lastly It was resolved That it shall not be intended in this case that the Iury have given damages with respect to the time brought in by the last Scilicet after per longum tempus which over-reaches the time that the threats were made the time brought in by the first Scilicet
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
Slander You are a Rogue you are a traitorly Rogue you cheated your Father you are a branded Rogue you have held up your hand at the Bar you have deserved to be hanged and I will have you hanged And after a Verdict for the Plaintiff for all the words except traitorly Rogue the question was whether the words branded Rogue would maintain the Action for it is clear none of the others would because as was pretended the most that they impart is if he hath been branded for a Rogue by virtue of the Statute of 1 Jac. cap. 7. then his punishment is past and consequently the words not actionable because they cannot be any damage to him But upon debate Iudgment was given for the Plaintiff for by the Statute if a branded Rogue wander again it is Felony and so the words put him in a nearer degree of Felony than otherwise he should be Brown Wood. ADministration was granted to the Sister of the half Blood of the Intestate and her Husband by the Prerogative Court and the Brother of the whole Blood sued there to have the Letters repealed and upon motion for a prohibition upon this suggestion it was agreed by the Court that the Sister of the half Blood is in equal degree of Kindred with the Brother of the whole Blood within the Statute And so was it resolved 1 Car. between Glascock and Wingate known by the name of Iustice Yelverton's Man's Case And if the Ordinary hath once executed his power according to the Statute he cannot repeal the Letters upon a citation but it was resolved that the Statute was not observed in the Grant of the Letters in this case because the Husband who is not of kin to the Intestate is joyned with the Wife and if she should die before him he should continue Administrator against the meaning of the Statute And for this cause a prohibition was denied but it was said that if it had been granted to them only during the Coverture perhâ—ps it might have been good because the Husband might have administred during the Coverture though it had been granted to the Wife only Hil. 23 Car. Banco Regis Hilliard Ux. vers Hambridge H. 22 Car. Rot. 1010. Action sur le Case IN an Action upon the Case against an Executor upon a promise of the Testator made to the Husband and Wife in consideration of their Marriage had at his request to pay 8 li. per annum to the Wife during the Coverture after a Verdict for the Plaintiff upon non Assumpsit pleaded it was moved Termino Hil. 22 Car. in arrest of Iudgment that it should be brought by the Husband only the promise being made after the Coverture because the whole benefit thereof is to redound to the Husband and thereupon Iudgment was stayed But this Term the Case being moved again Iudgment was given for the Plaintiff for it is in the election of the Husband to bring the Action alone or to joyn with his Wife as 43 E. 3. 10. 15 E. 4. 10. c. 7 E. 4. 6. a. 7. a. Br. Baron Feme 55. in case of a Bond made to them both after Coverture And the Case was held to be stronger because it is an Executory promise of a thing of continuance than if it had been to be done unica vice Vide 48 E. 3. 18. f. 16 E. 4. 8. e. Eels versus Smith SLander Slander She hath married the Husband of another Woman And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the words would not bear Action for the Plaintiff's Wife might be dead or beyond Sea by the space of seven years and then the Case is out of the Stat. of 1 Jac. cap. 11. And though it be alledged in his Declaration that he had no other Wife yet the words must be taken as they were spoken before the auditors And perchance the meaning might be that the Plaintiff was contracted to and so in Conscience was the Husband of another Woman and Iudgment was given against the Plaintiff Yates versus Lindall SLander Slander She is a Sorcerer and a Witch and can witch and unwitch she is a white Witch and can witch and unwitch And after a Verdict for the Plaintiff Iudgment was given against her because she is not accused of any offence within the Statute Gawdy Congham Mich. 23 Car. Rot. 348. IN a Writ of Error Error upon a Iudgment in C. B. in an Action of Debt against Executors who pleaded fully administred and the issue being whether Assets or no it was found that they had Assets for part onely and Iudgment was given for to recover the whole Debt And it was moved by Hales for Error that it should have been for so much only as was found in the Defendants hands and so are all the Presidents in that Court which he said he had caused to be searched but the Iudgment was affirmed for it is good either way and in this Court it is the course to give Iudgment for the whole according to Mary Shiplie's Case l. 8. 134. Eeles versus Lambert Mich. 22 Car. Rot. 357. IN an Action of Covenant Covenant the Plaintiff declares That Sir Moulton Lambert the Testator did demise to him a Wharf called the Wharf-ground near the Common Dike and other Tenements for 21 years and Covenanted that he might quietly enjoy them without the interruption of the said M. L. his Heirs or Assigns vel aliquar ' personar ' clamantium per praed ' M.L. haered ' vel assignat ' suos vel per eorum medium consensum vel procurationem nisi c. and assigns for breach that one Mich. Clavel clamans titulum à praed ' M. L. postea scil 20. Feb. 17 Car. did enter upon him and eject him c. the Defendant pleads plene administravit and Issue being joyned thereupon the Iury found that Sir M. L. 15. Jun. 1634. made his Will and made the Defendant his Executor and by the same Will dedit diversa legata bonorum in specie separalibus personis in dicto Testamento nominatis ac postea obiit post cujus mortem the Defendant 11 Car. bona praed ' sic ut praefertur in specie dat' ad valentiam 500 li. in executionem Testamenti praed ' praed ' separalibus personis in eodem Testamento nominat ' deliberavit and find the breach of Covenant to be six years after and that no other Goods of the Testators came to the hands of the Defendant si c. pro querent ' c. And the Case was argued by Green and Latch ex parte querentis that the Goods delivered for Legacies are Assets in the Executors hands as to this contingent Covenant 1. That the Executors shall be intended conusant of all Contracts and Duties of the Testators as well present as future as well contingent as certain and that therefore this contingent Covenant lay as a charge upon the
And if it were his Deed modo forma prout c. was referred to the Court. And Maynard argued for the Plaintiff 1. Inst 185. b. Dyer 133. h. That the Plaintiffs might declare as upon a Bond made to the Testator only because the Duty accrued to him only by survivorship And cited 35 H. 6. 38. h. where a Lease was made to two persons rendring Rent and one dying Debt was brought against the survivor as upon a Lease made to him only so where two Iointenants were joyned in a Lease and one released to the other in an Action of Waste he counted of a Lease made by himself only and adjudged good 46 E. 3. 17. c. 33 H. 6. H. 6. E. 3. 12. 4. h. so it is where a right only survives as Mich. 18 E. 2. in a Case not printed 2. Infants Iointenants joyned in a Feoffment and one died the survivor brought a dum fuit infra aetatem and declared that the Tenant had not the land nisi ex dono of the Demandant dum fuit infra aetatem And the Tenant pleaded in abatement that it was conveyed to him by them both the Demandant replied that the other was dead and adjudged for the Demandant Note the same Law holds where a charge survives as if two joyn in a Bond the Obligee may have Debt against the one only And it was no plea for him to say it was made by him and another unless he say he is in full life as appears 28 H. 6. 3. c. fu 11. a. But where nothing survives there the Case ought to be alledged as the truth was as if two Iointenants make a Feoffment and the one dies the Feoffor cannot plead this as a Feoffment made by the survivor only Otherwise where a Feoffment is made to two and one dies 14 E. 4. 1. h. 3. The matter of variance goes but in abatement and therefore cannot be pleaded in Bar also non est factum is no plea in the Case And Whelpdale's Case l. 5. 119. was cited and Iudgment was given for the Plaintiff without further argument Nota if the Defendant in this Case had demanded Oyer of the Deed and caused it to be entred in haec verba he might have demurred to the Declaration as should seem by 36 H. 6. 16. d. g. 32. a. l. 5. 76. e. And the Court ex officio ought to have abated the Bill So Note the difference And see Blackwell and Ashton's Case su 11. a. Royston versus Cordrye Trin. 23 Car. Rot. 1677. IN an Action of Debt Debt brought against an Executor upon a Lease for years made to the Testator for Rent due after his death in the detinet after a Verdict for the Plaintiff quod detinet it was moved by Hales in arrest of Iudgment that the Action ought to have been in the debet and detinet for the reasons in Hargrave's Case l. 5. 31. for nothing shall be Assets but the surplus of the value of the Land exceeding the Rent And therefore the profits of the Land proportionable to the Rent are taken to his own use and therefore he is to be charged as for his proper Debt and it cannot be presumed that the Land should be of no value but contrarily that they should be of greater value than the Rent And therefore in an Avowry upon an Abbot for Rent he cannot disclaim generally unless he shew that the Land is of less value then the Rent 43 Ass pl. 23. 16 H. 7. 2. so that if the Land here had been worth nothing or of less value than the Rent the Plaintiff ought to have shewen it in his Declaration for this cannot be made up by the Verdict for besides that the intendment is too remote to be supplied for which see King and Somerland's Case su 9. a. the Verdict is true though it be otherwise for he that is said debere detinere may well be said detinere 2. The Executor is now charged as Ter-tenant and not upon the privity of Contract with the Testator and therefore the Action will not lie against him after Assignment and for the same reason it ought to be brought where the Lands lies so that he ought to be charged in the debet and detinet in respect of the Land and the profits and not in the detinet as upon the Contract But yet upon debate Iudgment was given for the Plaintiff for the Executor demands his interest whereby the Charge accrues from the Testator so that he may answer the Rent out of the Testator's Estate and the sole inconvenience is to the Plaintiff himself who waives his advantage to demand satisfaction out of the Estate of the Defendant and contents himself with what the Testator's Estate will afford and therefore it was never doubted but that the Action might be brought in the detinet only but it hath been much doubted whether it might be in the debet and detinet Vide Caly and Joslin's Case su 15. Also Roll said that in many places the Land becomes of no value by reason of the troubles and then he ought to be charged in the detinet onely And the Verdict doth supply this Intendment Hil. 23 Car. Banco Regis Page and Harwood PAge and Harwood and one were indicted at the Assises at Nottingham upon the Statute 1 Jac. 8. for stabbing one And the Indictment Indictment was that stabb'd him and Page and Harwood were present abetting c. and contra formam Statuti and all there were found guilty contra forman Statuti and was hanged in the Countrey but Roll doubted whether these two were within the Statute and therefore adjourned them hither And Walker produced a President 16 Car. where one Welsh and five others were indicted at the Sessions in the Old Baily upon this Statute for the death of one Swinnerton and because all five were present and it could not appear upon the Evidence which of them made the thrust Bramston Chief Iustice Barkley and Jones directed the Iury to find them guilty of Manslaughter only at the Common Law for though in Iudgment of Law every one that is present c. is principal so that the Indictment may recite that any of them did make the thrust and the Iury should have found them equally guilty at the Common Law yet in construction of this Statute which is so penal it shall be extended only to such as really and actually made the thrust and not to those which by construction of Law only may be said to make it for the end of the Statute was to restrain the rage and cruelty of such persons as would suddenly stab another And accordingly it was resolved in this case that the offendors should have their Clergy Then another question was made upon the Indictment which is contra formam Statuti and accordingly they were all found guilty by the Iury whereas it appears that these are not guilty within the Statute But it was answered and
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
of payment is past For though it be alledged that the Defendant hath enjoyed the House during the whole terme this may be not till after the Sute commenced 2. That this being a Sum in gross and no Rent 7 H. 6. 26. a. 34. f 4 H. 6. 26. h. 3 H. 4. cas prim 20 E. 4. 2. a. 34 H. 6. 2. a. séeing parcel only is demanded the Plaintiff ought to acknowledge the receipt of the residue as upon an Obligation And the Case being twice moved the Court did both times agrée it to be a Sum in gross and no Rent properly and that the Reservation ought to be by Déed 2. That it being a Sum in gross no Action would lye till the last day of payment incurred but yet upon the first motion a Rule was given that the Plaintiff should have his Iudgment supposing that it appeared in the Record that the whole terme was expired For then they did agrée that an Action would lye for the Rent due at one day but after upon those two Objections the Iudgment was stayed Nota This Contract is in the Realty and the Debt ariseth in respect of the Profits and therefore it séems an Action will lye before the last day and so is it ruled in 45 E. 3. 8. b. and admitted 14 H. 7. 2. h. And so Hale told me was his Opinion Leech versus Davys Trin. 23. 1870. IN Debt Debt upon a Bond of 100 li. Condition that the Defendant should appear in this Court to answer in a Plea of Trespass commenced by the Plaintiff and to satisfie the Damages he should recover The Defendant pleaded the Statute of 23 H. 6. and that he was attached and in custody and that the Bond was made for his Enlargement and so not his Déed Whereupon the Plaintiff demurred specially upon the conclusion of the Plea which ought to be Iudgment si action ' c. And therefore the Plea naught and so agréed Also it was agréed that the Statute doth not extend to a Bond made to the Plaintiff himself and so Latch said it was adjudged 30 El. betwéen Raven and Stockden Bernard versus Bonner IN an Ejectione Firmae Eject Firmae of Lands and 200 Acres of Wood in Stanmore in Com' Middlesex upon a Lease alledged to be made by the Earl of Rutland and Geo. Sutton Domin ' Lexington and others upon Not Guilty it was moved by Mainard upon the Evidence in a Trial at the Bar That Sutton was no Péer of the Realm of England but only an Irish Baron and so not the same Demise and the Case in Dy. 300. a. was cited But it was answered and resolved by the Court That forasmuch as the Issue here is not whether G. Sutton Dom ' Lexington did demise as it was in Dyer where his Title is made parcel of the Issue and therefore a failure but here it is non cul So that it is sufficient that it be the same person that did demise though misnamed And so it hath béen resolved in the Case of a Demise alledged by Sir Ralph Euer Dom ' Euer who was no Baron And in another Case of a Demise alledged to be made per J. S. Dom ' Sinclere who was an Irish Baron upon Not Guilty pleaded c. And the Evidence procéeding the Case was That Sir Thomas Lake being seized in Fée of the Premisses levyed a Fine to the use of Sir Nich. Fortescue for 41 years if Sir T. L. lived so long the remainder to his Wife for life the remainder to Sir Nich. for the life of T. L. with other remainder over Sir Nich. granted the Land totum statum suum to one Page and Ducke c. habendum for 60 years And after Sir Nich. demiseth the same Lands to the said Page and Ducke c. by Indenture for 60 years if Sir Tho. Lake junior or his Wife live so long Page and Duck by Indâ—nture reciting this last Demise assign and grant the said Terme ha bendum the Land totum statum suum during the residue of the said Terme of 60 years to Sir Tho. Lake And the Opinion of the Court was That by the Grant of Sir Nich. his whole Estate his remainder passed and the habendum repugnant because no other ceremony was requisite he himself being Tenant for years Then it was moved that there ought to be an Entry by him but that was agréed not requisite for the Statute executes the Estate actually and such a Lessee may attorn before Entry and the Case was the stronger because his terme was not sufficient to satisfie the Grant for 60 years Then it was doubted what effect the Assignment of Page and Ducke had because the terme recited was a Lease by Estoppel for the Lessor only for the Lessor then had nothing in the Land And it was agréed in this Case that if Lessée for Life accept of a Lease for years this is a Surrender of his Estate for Life Hodson versus Sir Anth. Ingram Hil. 23 Car. Rot. 968. IN an Action of Debt Debt upon a Bond with condition to perform Articles of an Indenture which recited that where certain persons were obliged to the Earl of Holland in eight Obligations which the Earl had assigned to the Defendant to his own use now it is agréed that the Defendant should assign the Obligations to the Plaintiff to the Plaintiffs own use And the Defendant Covenants that the moneys should be paid at the several days limited by the Bonds or within eight days after And the breach was assigned that the sum of 50 li. payable by one of the Bonds was not payd the Plaintiff upon the first of March which was the day limited by the Bond and Issue thereupon was found for the Plaintiff and Hale moved in arrest of Iudgment that the Replication was insufficient for it might be paid within the eight days after also that the Condition was for Maintenance and so the Bond void and Iudgment was stayed Faldo Pindar Hil. 23 Car. Rot. 594. IN a Replevin Replevin the Defendant avowed for Rent-charge granted by Fine sur concessit for the life of J. S. to the use of Tho. Faldo and his Assigns for the life of the said J. S. And the limitation of the use being traversed and Issue thereupon joyned upon a Trial at the Bar the evidence was that it was to the use of him his Heirs and Assigns for the life of J. S. And the Court directed that it should be found specially for because the Fréehold is intire it may be a question whether it was the same Fréehold Chappel versus Goodhouse Hil. 23 Car. Rot. 1727. SLander Slander You are a Buggering Rogue go home and bugger another Mare And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the words would not bear an Action because the Plaintiff is not charged with any act done But the Opinion of the Court was that the words would bear an
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
But it was agréed that the Statute of Ieofails which doth provide amendment by Examination of the Clerks c. shall not extend to inferiour Courts in these points 2. It was resolved that this Statute extends to the Courts made after and so not within the Equity And after upon good deliberation Iudgment was affirmed Inicpit Term ' Trinitat 24 Car. B. R. Rolls only sate Judge this Terme Bacon being sick Beaton versus Forrest Hil. 23 Car. Rot. 355. IN an Action of Debt Debt upon a single Bill the Defendant after Imparlance pleadâ—d payment of part after the latter continuance petit quod billa cassetur c. the Plaintiff denied the payment and the â—efendant demurred And it was resolved by Roll that the Plea was insufficient although pleaded in Abatement only for that there ought to be an Acquittance which is controverted in the old Books where a difference hath béen taken betwéen such a Plea pleaded in Barr and when pleaded in Abatement Vide L. 5. E. 4. 139. 15 H. 7 10. e. 3 H. 7. 3. g. 7 E. 4. 15. e. But Roll said if he had had an Acquittance he might have pleaded it in Barr or Abatement at his election Then it was moved by Yard to have Iudgment peremptory 1. For that this Plea is pleaded after Imparlance 2. For that the Plaintiff hath tendered an Issue upon the Defendants Plea which he hath refused But it was resolved that the Plea was not peremptory For 1. Dyer 228. a. When a Plea concludes in Abatement it is not peremptory but if a Plea in Abatement be pleaded in Barr it is peremptory 2. Though it be pleadâ—d after Imparlance Hob. â—1 c. and Issue tendered upon it yet it is not peremptory upon a Demurrer 34 H. 6. 8. d. In a Writ of Entry upon a Disseisin made to the Ancestor the Tenant pleaded in Abatement that the Demandant himself was seized the Demandant denied his Seisin and concluded to Issue The Tenant pleaded an Estoppel to the Demandant which upon Demurrer was over-ruled and yet not peremptory Br. tit Peremptory But if Issue be joyned upon a Plea in Abatement then it is peremptory 50 E. 3. 20. J. Katesby et K. sa feme port assise the Tenant pleaded that long time before K. was married to J. C. c. And that she is still the wife of J. C. and not the wife of the Demandant J. K. and demanded Iudgment of the Writ and Issue being joyned thereupon the Tenant concluding to the Assise the Demandants demurred as to the Trial viz. that it ought to be by the BB. And it was awarded to be tried by the Assise Dy. 311. a. And the Demandant would have waved his Plea in Abatement and have pleaded in Barr the Marriage of K. with J. C. and a Release from J. C. but was not admitted because the Issue made it peremptory to him And so it is if after Issue joyned the Defendant pleads a Plea in Abatement Hob. 81. c. this is peremptory as well upon Demurrer as upon trial by Verdict because after Issue joyned no Respondes ouster can be awarded and with this agrées L. 5. E. 4. 139. where in Debt after Issue joyned the Defendant at the Nisi prius pleaded payment of part after the latter continuance in Abatement and the Iury being discharged and the Plea adjourned in Banke for that no place of payment was pleaded the Plaintiff had Iudgment to recover his Debt And 2 E. 4. 10. the Tenant in a Cui in via pleaded the Entry of the Demandant after the latter continuance and Issue being joyned thereupon the King dyed and upon a Resummons he pleaded a Recovery of part in an Assise after the latter continuance to which the Demandant pleaded an Estoppel and upon a Demurrer Iudgment was given for the Demandant to recover Seisin And Roll said That if after Imparlance the Defendant pleads a Plea in Abatement which is waved by the Imparlance the Plaintiff must not Demurr but move the Court that he may be compelled to plead in chief but if Demurrer be joyned upon it it is not peremptory to the Defendant although the Demurrer be adjourned till another Terme as it was in this Case 22 H. 6. 55. e. And a Respondes ouster was awarded in the principal Case Nota diversitatem betwéen a Plea in Abatement and a Plea to have Aide for if Issue be joyned upon a Prayer in aide and found for the Tenant the Iudgment is only that he have Aide 7 E. 3. 46. Vide StatÌ„ WestmÌ„ 2. cap. 6. for Counterplea of Voucher that if it be adjourned and adjudged against the Tenant it is peremptory to him 2. In. 242. c. 243. a. Prugnell Anne Gosse Pasc 24 Car. Rot. 217. IN a Writ of Error Error upon a Iudgment in the C. B. in an Action upon the Case for that the Defendant in consideration of a Marriage to be had betwéen the Plaintiff and her Daughter promised to give 100 li. to the Plaintiff and 10 li. for Apparel for her Daughter And whereas the Defendant had a Shop in Basingstooke with divers Wares in it she promised to assign over the Shop to the Plaintiff et transferre negotiationem suam angl ' her Trade to the Plaintiff and that she would not use her Trade any longer in Basingstooke And breach assigned in not paying the Money nor assigning the Shop and for that she used the Trade there still c. And upon Non assumpsit a Verdict for the Plaintiff and entire Damages given And Twisden moved for Error that the promise not to use her Trade was against Law and void and cited More 's Reports Pasc 20 El. p. 182. A Bond that one should not use the Trade of a Mercer in Nottingham is void Vide simile Mor ' Mich. 29 El. p. 284. et Hil. 44 Eliz. C. B. que est enter Mich. 42 et 43 El. Rot. 2217. entr ' Geggot et Batchelor A Bond with Condition that one should not use the Trade of a Haberdasher in Kent for four years was holden void Et Lib. 11. 53. h. et 2 H. 5. 6. And this was agréed by Roll for Law who took these differences that where a Bond or Promise restrains the exercise of a Trade although it be as to a particular place only yet if it be upon no consideration the Bond c. is void But if there were a Consideration for the restraint as if A. assign a Shop or sell braided ware to B. there in respect of the apparent prejudice which may accrue to B. if A. should continue the Trade such a Bond or Promise is good and so was it adjudged in Froward's Case upon a Writ of Error out of Bridgenorth But although there be such a Consideration yet if the Restraint be general throughout England it is void Another Exception was that the words transferre negotiationem suam were of an incertain signification but not allowed and so the Iudgment was
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
being taken to be void but that the time mentioned in both places being in Iudgment of Law taken to be void and as out of the Declaration it shall be taken to be out of the consideration of the Iury in taxing the damages and for this the Case in 20 H. 6. 15. was cited by Roll where a Trespass was laid with a continuando usque diem impetrationis brevis viz. 14. diem Febr. anno 17. whereas the Writ bare teste 12. Octob. anno 17. which was before the day alledged for the time of the continuance And yet the Plaintiff after a Verdict had his Iudgment And Hunt and Lawring's Case Hob. 284. a. where in Trespass c. per quod servitium amisit per longum tempus viz. per spatium 6 mens tunc proxim sequent ' And the Original bore teste within the six months and after a Verdict the Plaintiff had Iudgment for that the viz. was more then needs And Iudgment was given for the Plaintiff in the principal Case Tanner versus Lawrence Trin. 23 Car. Rot. IN an Assumpsit Assumpsit the Plaintiff declares That in consideration that the Plaintiff would buy certain pieces of Cloath for the Defendant's use the Defendant promised that he would give him 2 s. for every piece that he should so buy and averrs that he bought 100 pieces for the Defendant's use for which he ought to have 10 li. and alledges a special request of the said 10 li. to be paid by the Defendant according to his promise And upon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Plaintiff hath no averred that he gave notice to the Defendant how many pieces of Cloath he bought for him to which it was answered that this special request to pay 10 li. according to his promise doth imply a giving notice of what he bought But it was resolved that notice is necessary in this case and not supposed by this special request for the Defendant cannot tell that so much is due as the Plaintiff requires unless he had notice of what Cloath he bought for him And Iudgment was given against the Plaintiff Brooke versus Brooke Trin. 23 Car. Rot. 580. IN Debt Debt upon a Bond of 40 li. with Condition That if the Obligor at or before the Feast of St. John Baptist next following the date should make an absolute estate of Inheritance to the Obligee of such Lands then c. the Defendant pleads that after the making of the Bond at all times before and at the said Feast of St. John Baptist he was ready upon the Land to make such an Estate to the Plaintiff c. And upon Demurrer it was adjudged for the Plaintiff because the Defendant ought to have given the Plaintiff notice that he would make him such a conveyance to the making whereof the presence of the Plaintiff was necessary but if the Condition had been for the making of a Feoffment then for that a day certain was appointed the plea had been good for the Plaintiff at his peril ought to attend at the day Vide Co. 5. 22. g. Parmenter versus Cressey Trin. 23 Car. Rot. 1034. IN an Assumpsit Assumpsit the Plaintiff declares That in consideration of twelve pieces of Stuff of the value of 42 li. 15 s. delivered by the Plaintiff to the Def. the Def. promised to deliver to the Plaintiff so many Pipes of Sack which the Defendant then had lying in a certain Cellar of a stranger in London as should be of the value of the said Stuff per praefat ' querent eligend ' And the Plaintiff averrs that at Norwich he did require the Defendant deliberare vinum praedict ' praefat ' querent ' ad eligendum so many of the Pipes as should be of the value of the Stuff c. And after a Verdict of the Plaintiff upon non Assumpsit pleaded upon motion in arrest of Iudgment it was so resolved 1. That a special request is necessary in this case because the Defendant cannot deliver the Wine in this case before the Plaintiff hath made his election and there is no reason that the Defendant should require the Plaintiff himself to make his election as he ought to doe if the promise had been to deliver them to a Stranger Then it was objected that the request was not well made 1. Because it was made at Norwich where the Defendant cannot deliver the Wines 2. Because the request was to deliver the Wines whereas the Defendant is not by his promise to deliver them till the Plaintiff shall have made his election But it was resolved that the request was well made for 1. The Plaintiff must make his request where he can meet with the Defendant and thereupon the Defendant ought to appoint a reasonable time when he will be ready to goe with the Plaintiff to the Celler that he might make his election 2. The request in respect of the manner was well for he hath directly performed the agreement which was to deliver them to the Plaintiff to be chosen and therefore it is as much as if he had required him to perform his promise which must be by shewing the Plaintiff the Wine in the Celler to the intent that he might make his choice which is not to be of the species of Sack viz. whether Canary or Sherry c. for then indeed the Plaintiff should have made his choice before he could have requested the delivery but of the goodness of it And therefore he must tast the Wine as Roll said and Bacon did not deny it before he need make his election And upon good debate the Plaintiff had his Iudgment Gurman versus Hill Pasc 23 Car. Rot. IN Debt Debt upon Bond with Condition to perform an Award of all Controversies Vpon nullum arbitrium pleaded the Plaintiff set forth an Award de supra praemissis that the Defendant should pay so much to the Plaintiff in satisfaction of all Controversies between them till the day of the Award made And upon great debate made it was adjudged a good Award for the Court shall not conceive any new Controversie arisen between the Submission and the Award unless the Defendant shews it And the rather because it was pleaded to be de supra praemissis which carries an intendment of an Award proportionable to the Submission And Browne and Goffee's Case Hob. 190. was cited accordingly Hil. 14 Jac. Rot. 593. C. B. the same Iudgment given between Paine and Lee. Mich. 23 Car. Banco Regis Paradine versus Jane Hil. 22 Car. Rot. 1178 1179. IN Debt Debt the Plaintiff declares upon a Lease for years rendring Rent at the four usual Feasts and for Rent behind for three years ending at the Feast of the Annunciation 21 Car. brings his Action The Defendant pleads that a certain German Prince by name Prince Rupert an alien born enemy to the King and Kingdom had