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
Law And 12 Jac. Iudgment in a Formedon de uno crofto et messuagio was wholly reversed because a Praecipe lyeth not de crofto Pasc 18. Car. betwéen Creetall and Norefeild in Error upon a Iudgment in Canterbury in an Action of the Case upon two Promises where upon a Verdict for the Plaintiff damages were taxed severally and because one of the Promises was insufficiently laid the whole Iudgment was reversed Vide Hobart betwéen Miles and Jacob. et 2. In. 236. d. And Trin. 11 Car. betwéen Ellenhead and Dearman in Error upon a Iudgment in the Marshalsea in Debt upon a Bill and likewise upon a Contract The Defendant pleaded Non est factum to the one and Nil debet to the other and both being found against him the Iudgment was Quod capiatur and because it was not Quod in misericordia also as to the other Issue the whole Iudgment was reversed And Trin. 7 Jac. B. R. Rot. 568. betwéen Beard and Beard in the very same Case with the principal Case the entire Iudgment was reversed But in an Action at Common Law where damages are given by Statute there if the Iudgment be Erroneous as to the damages the principal Iudgment shall stand as in a Writ of Dower and so he said it was adjudged betwéen Tie and Atkins Vide 22 E. 4. 46. e. et L. 5. 59. a. Simile in a Quare Impedit And the entire Iudgment was reversed in the principal Case Hale for the Plaintiff in Error Wilde for the Defendant And Hale cited a Case betwéen Holland and Lee called Damms Case where he in Remainder in Taile in a Writ of Error to avoid a Common Recovery assigned for Error that the Voucher being an Infant appeared by Attorney for which the entire Iudgment was reversed Nota Hoddesd's Secondary told me the Case of Miles and Jacob in Hobart was not Law Trin. 24 Car. B. R. Cornish versus Cawsy Trin. 23 Car. Rot. 1434. IN an Action of Debt Debt against an Executrix the Plaintiff declared upon a Lease made to the Testator by Indenture dated the 25 of March Anno. Habendum à die datus for Seven years And upon Nil debet pleaded the Iury found that the Plaintiff by Indenture dated the 25 of March and delivered the same day demised the Land to the Testator which was to have and to hold from the day of the date for the tearm of Seven years from henceforth next and immediately following c. And upon this Verdict the Question was Whether the Lease in point of Computation was to commence from the making or from the day of the Date For if the Seven years commenced from the making then the Plaintiff had mistaken the Lease but if they commenced from the day of the Date then he had declared right according to the Lease And it was argued that the Seven years were to commence from the day of the Date and not from the making of the Lease for that the words will bear that construction for the words from hence forth may refer to the words from the day of the Date and so to the time of the commencement in point of interest And then the words shall be taken as if the Lease had béen to have and to hold from the day of the date from henceforth for Seven years excluding the day of the Date in the computation and this was probably the intention of the parties and not that the Lease should commence one day in point of computation and the next day in interest Also there is a Rent reserved during the tearm payable annually upon the 25 of March the last day of payment whereof would be out of the tearm if the Seven years commence upon that day And the Case in Dyer 261. was cited where an Abbot made a Lease for 31. years and after made a new Lease in these words Noveritis nos c. dictis 31. annis finitis et completis dedisse concessisse praed ' praemissa to the second Lessée habend'et tenend ' à die confectionis praesentium termin ' praed ' finit ' usque ad finem termini 31. annorum tunc immediate sequentium And it is there resolved by all the Iustices of C. B. that the Lease doth not commence in point of computation till it takes effect in Interest viz. till the first 31. years ended And yet there it might have béen said that the words praed ' termino finito should be a limitation in point of Possession or Interest and the words à die confectionis c. in point of computation But there it is said that the words à die confectionis refer to the Demise after the 31. years ended to have à die confectionis But note in that Case the Opinion of the Court of the Kings Bench was against that Opinion And in this Case two other points were moved and agreed by Roll 1. That where part of the Arrears demanded were due in the time of the Testator and part after his decease the Action in the Detinet was good for the whole as well as if all had béen due after the death of the Testator And that after a Verdict Quod non detinet the Land shall not be intended of any value as it is well known in these times in many places Lands have béen of no value and yet the Executor is liable to the Rent as far as he hath Assets and clearly if he hath Assets he cannot wave his tearm 2. That the Action being in the Detinet and the Defendant pleading Nil debet it is holpen by a Verdict And so it was adjudged as he said in this Court Trin. 10 Car. Rot. 1289. betwéen Porter and Gervise And he said If in an Action upon the Case upon an Assumpsit the Defendant plead Not Guilty it is well enough after a Verdict and as there your Action is placitum trn̄s super casum so here it is placitum debiti As to the principal point he did resolve That the Plaintiff hath mistaken his Lease for a Lease Habendum from henceforth includes the day of the making and a Lease Habendum from the day of the day excludes the day of the date And with this agrées Barwick's Case which he affirmed to be Law but he said That if such ancient Patents be given in Evidence the Iury by presumption to make the Patents good may find that they were made the last instant of the day of their Date and then they are good in Law And so hath it béen resolved in point of Evidence Now the Habendum being à die datus and for Seven years from henceforth c. to make all parts of it stand it must be construed to commence from henceforth viz. as to the computation of the Seven years that they shall begin upon the 25 of March and from the day of the date viz. upon the 26 of March in interest and possession And he resembled it to the Case of More and
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
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
that he had a double power by the first Indenture the one to limit other uses to such persons and for such estates as he pleased the other to revoke the uses limited by the first Indenture and to limit new uses And when he limits uses generally which cannot stand by the power reserved by the Proviso for lack of tender the Law will refer the limitation to the power he had to limit other uses c. And Sir Edw. Clears Case Lib. 6. 18. was cited And secondly for that the second limitation is expresly made according to his power which refers to that power which he persued And it was touched whether the uses limited according to that power were revocable by the Proviso And Mainard said it might be a question And Iudgment was given for the Plaintiff Mainard for the Plaintiff and Latch for the Defendant Quaere in the case cited if a lessor should bring Trover against a stranger for Trees cut by him if this should be a bar to an Action of Waste for the Trees And if there were cause for reparations what remedy hath the lessee for his loss for it should seem that he will be liable to an Action of Waste for not repairing although the lessor recovers for the Trees Sir Anthony Ashly Cooper versus Saint John Trin. 24 Car. Rot. 267. Trin. 1649. between the same Plaintiff and Webb Defendant entred Hill 24 Car. Rot. 426. the same declaration was adjudged good upon a demurrer IN Trespass the Plaintiff declared quod cum he was seised of two Closes of pasture which were inclosed by him and whereas there was a Common next adjoyning to them the Defendant decem perticatas sepium claus ' praedictae pasturae prostravit sic prostratas for such a time custodivit per quod the beasts depasturing in the Common came into the Closes and eat the grass there ad dam ' c. the Defendant pleaded non cul'infra 6 annos And after a Verdict for the Plaintiff Mainard moved in arrest of Iudgment that it ought to have been vi armis because the Trespass is laid to be done in his own soil and said that in false imprisonment per quod he was compelled to pay 5 l. in a Case about seven or eight years since N. B. 93. d. Iudgment was arrested for want of vi armis But the exception was dissallowed and Iudgment given for the Plaintiff without argument for the conclusion per quod and the commencement quod cum shew it to be an Action of the Case and the causa causans of the Damages may be laid vi armis or without it Lib. 950. f. Vide 13 H. 7. 26. f. which is no Law Quaere if in Case of false imprisonment there be not a difference between a conclusion per quod quousque c. Mich. 24 Car. Banco Regis Kynaston Spencer versus Jones Mich. 23 Car. Rot. 589. IN Debt upon a bond of 2000 l. bearing date 9 Martii 22 Car. with Condition to stand to the award of J. S. and J. N. indifferently chosen Arbitrators of all matters and controversies betwéen the parties Debt upon Award so that they made an award of the premises before the Feast of Easter next ensuing upon nullum fecerunt arbitrium ante festum Paschae pleaded by the Defendant the Plaintiffs replied that before the Feast of Easter viz. the 15 day of April following the Arbitrators did make their award that the Defendant should pay to the Plaintiffs 1200 l. at four payments viz. on the 16 of October and the 16 of April and that on the fourth of May he should enter into four bonds for the payment and should then pay to the Plaintiffs 30 l. towards their costs and charges expended and that all Actions and controversies betwéen the Plaintiffs and Defendant should cease and determine and that they should seal and deliver to each other general Releases of all controversies suits and demands until the eighth day of March and time and place appointed for the doing of this And Assigned breach in not paying the 30 l. upon the fourth of May The Defendant rejoyned that the Arbitrators nullum fecerunt tale arbitrium modo forma pro ut de hoc c. whereupon Issue was Ioyned and by special Verdict it was found that the sixth of Febr. 22 Car. the parties agréed to submit all controversies betwéen them to Arbitrement and that 22 Febr. 22. Car. the Plaintiff became bound to the Defendant to stand to the award of the Arbitrators according to the condition ut supra and that 9 Mart. 22. Car. the Defendant became bound ut supra and that praedict ' 15 die Aprilis 23 Car. the Arbitrators made their award reciting that the Plaintiffs and Defendant became bound the 9 of March in 2000 l. a piece to perform their award and that the Defendant had received of the Plaintiff 1000 l. an 1641. which with Interest amounts to 1460 l. and upwards and that the Plaintiff had béen at Charges for the recovery thereof and thereby awarded ut supra And upon this Verdict two questions were made 1. Whether upon this Issue the submission be in question 2. Admitting it be whether the award upon the submission found be a good award Et Term. Pasch ult the Case was argued by Philips for the Plaintiff and Latch for the Defendant And this Term by Hale for the Plaintiff and Mainard for the Defendant And it was resolved by Bacon and Roll. 1. That upon this Issue the Iury cannot enquire of the submission for that is admitted by the plea. And therefore the Defendant could not have set this matter forth in the rejoynder thereby to have made good his bar that the Arbitrators made no award for the award in it self is a good award And it would have been a departure in him to have alledged a matter extrinsecal to the award which should prove it to be void and for this Lincy and Ashtons Case 12 Car. in this Court was cited by Roll where in debt upon a bond to perform an award upon nullum fecerunt arbitrium pleaded the Plaintiff set forth an award that the Defendant should pay 10 l. to the Plaintiff at the house of a stranger and Assigned breach in non-payment the Defendant rejoyned that he could not come to the strangers house without being a Trespasser and upon demurrer it was adjudged for the Plaintiff 39 H. 6. 6. h. Lib. 5. 103. for the award set forth by the Plaintiff was good and the matter alledged by the Defendant in avoidance of it was a departure from his bar And therefore he ought to have alledged the whole matter in his bar And so must he have done in this Case if he would have taken advantage of the submission and he said that 14 Car. Iudgment was affirmed in the Exchequer and both points resolved accordingly 2. Against the award it was objected that thereby the bond made by the
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