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
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
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
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
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
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
li. per solutionem of an 100 li. And averred that no other Bond was made by the Defendant and the two other persons to the Plaintiff besides that Bond whereupon the Plaintiff demurred and upon debate Iudgment was given by Roll for the Plaintiff Lib. 2. 67. Dyer 98. f. for the Release of a Bond of 200 li. for the payment of an 100 li. doth not discharge a Bond for the payment of an 104 li. for though a greater sum includes a lesser as to a tender yet the Debt and Duty is intire 43 E. 3. 31. g. and therefore cannot be discharged by a Release of a lesser sum And though it be said positively that the Plaintiff did Release praed ' scriptum obligatiorum yet the words per nomen doth declare the manner how the Release was made and it appears to the Court now that in truth the Bond was not released and it was agréed that the Averment in this Case was forreign and idle and could not make good an insufficient Release Vide 10 E. 3. 7. In an accompt against one as Receiver by anothers hands the Defendant pleaded a Release by the Plaintiff of all accompts which he might have against the Defendant of all manner of Receipts And the Déed was of all manner of Receipts from the Plaintiff himself and ruled a good Release And note the reason because a Receipt by anothers hand is a Receipt from the Plaintiff himself Ellis versus Box. Hil. 23 Car. Rot. 973. IN an Action of Debt Debt upon a Bond of 200 li. with Condition reciting that whereas the Plaintiff and one Hawes were bound in another Bond to performe certain Covenants in an Indenture if the said Hawes should perform the Covenants in that Indenture and also if the Defendant should save the Plaintiff harmless of that Bond then the present Obligation was to be void The Defendant upon Oyer of the Condition pleaded that Hawes had performed the Covenants in the Indenture and that he had saved the Plaintiff harmless of that Bond. And upon a general Demurrer it was resolved by Roll that the Plea was insufficient in substance both because the Covenants in the Indenture were not set forth and some of them might have béen in the Negative c. And also because he hath pleaded that he saved the Plaintiff harmless without setting forth how he did it and so Iudgment was given for the Plaintiff Trin. 24 Car. B. R. Drue versus Thorne Pasc 24 Car. Rot. 605. Acc'on sur Case IN an Action upon the Case upon two Promises 1. That the Defendant did accompt with the Plaintiff for divers sums of Money due to the Plaintiff by the Defendant and upon that accompt was found Indebted to the Plaintiff in so much Money c. The second was that the Defendant was indebted to the Plaintiff in so much for wares bought by the Defendant Vpon Non assumpsit pleaded the Iury as to both Promises found that the Wife of the Defendant being Sole was Indebted to the Plaintiff for wares And that after Marriage with the Defendant he and his Wife did accompt together with the Plaintiff for the Moneys so due and upon that Accompt 9 li. 13 s. 3 d. was found due to the Plaintiff which the Defendant promised to pay and if for the Plaintiff c. And Windham argued for the Plaintiff 1. That the Debt of the Wife is the Debt of the Husband and he is to be charged in the Debet and Detinet 2. Hobart 88. c. 20 H. 6. 4. c. That the accompt of the Husband hath made it his proper Debt but he agreed the Book of 9 H. 6. 11. e. where an Executor accompted with the Receiver of the Testator that the Action ought to be brought in the Detinet because he recovers in right of the Testator And though in this Case the Wife joyns with the Husband in the accompt it doth not alter the Case for the accompt is the accompt of the Husband only for a feme covert cannot be charged upon an accompt though she may assign Auditors 10 E. 4. 8. d. 3. The Iury have found an express Promise of the Husband in respect of which he alone may be charged Mainard contra 1. If the Consideration found by the Iury be different from that in the Declaration then it is not the same Promise the Plaintiff hath declared upon For the Objections 1. The Husband is not charged in the Debet and Detinet because the Husband is Debtor but because the Husband and Wife are but one person in Law 2. The Accompt doth not alter the nature of the Debt but only reduceth it to certainty Sée for this 16 E. 4. 8. d. 10 H. 6. 24. g. 11 H. 6. 17. h. 3. The Action is brought upon a Promise in Law and not upon the express Promise of the Husband but if the Promise had béen Collateral as in consideration of forbearance c. and the Declaration pursuant the Action against the Husband only would have béen good Lastly The Verdict without question doth not warrant the second Promise which is for Wares bought by the Defendant whereas the Iury finds them to be bought by the Wife of the Defendant dum sola fuit and they conclude to both Promises so that if either of them be not made good by the Verdict it is against the Plaintiff And Roll agréed in all things with Mainard and Iudgment was given against the Plaintiff Trin. 24 Car. B. R. Oates Aylett c. Trin. 24 Car. Rot. IN a Writ of Error Error upon a Iudgment in C. B. in Trespass of Assault and Battery against four persons after a Verdict upon Not Guilty pleaded it was assigned for Error that one of the Defendants being within age appeared by Attorney and the only question was Whether the Iudgment should be reversed against all or only against the Infant And it was argued that the Iudgment ought to stand for the rest upon this difference that where a Iudgment is erroneous against one Defendant and the same Action would not lye against the other only there it should be reversed against all as in conspiracy against two c. which lieth not against one only but where the same Action would have béen good against the other Defendant only there the Iudgment ought to stand against him And 5 E. 4. 7. a. cited that if Iudgment in Trespass be given against thrée the one of which was dead 2 R. 3. 1. b. the others shall not have a Writ of Error upon that Iudgment but only the Executors of the party deceased But it was resolved by Roll that the Iudgment should be reversed against all because it is one and entire and accordingly divers Presidents were cited by him Trin. 14. Car. betwéen Scudamore and Scriven c. in Trespass against thrée one died hanging the Writ and Iudgment against all thrée was entirely reversed against the Book of 5 E. 4. which was denied for
Musgrave Hobart 18. which was cited by Hale who said he had séen the Record of it and it is entred Mich. 10 Jac. rot 76. in Scacar where the Plaintiff in an Ejectione firmae declared that J. S. 5 Maij 10. Jac. Demised a House to him Habendum from the Feast of Annunciation last past for 21 years extunc proxime sequentÌ„ And the Defendant the same 5. of May ejected him and upon Non cul the Iury found that the said J.S. the said 5. day of May by Indenture bearing date the 4. of May demised the House to the Plaintiff To have and to hold from the Feast of the Annunciation last past for and during the tearm of 21 years next ensuing the date hereof fully to be compleat and ended And upon that Verdict the Plaintiff had Iudgment which was affirmed there also in which case the tearm began from the Feast of the Annunciation in computation of the 21 years and upon the 5. of May in point of Interest But Roll agréed that if in the principal Case the Lease had béen made To have and to hold from the day of the date from henceforth for Seven years then the Plaintiff had declared right And Iudgment was given against the Plaintiff Hale for the Plaintiff Twisden for the Defendant Trin. 24 Car. Ward Prin. Pasc 24 Car. Rot. 169. IN a Writ of Error Error upon a Iudgment in C. B. in an Action upon the Case wherein the Plaintiff declares That whereas one John Ward the Plaintiffs Granchild by the consent of the Plaintiff was put to the Defendant to serve him being a as his Clerk And that the Defendant was to find him meat drink and lodging c. And that the Plaintiff thereupon had given 30 li. to the Defendant and had agréed to give 30 li. more in consideration that the Plaintiff at the special Request of the Defendant would give consent that the said John Ward should depart out of his Service And that the said John Ward should depart his Service the Defendant promised to pay to the Plaintiff 15 li. c. And upon Non assumpsit a Verdict for the Plaintiff And it was moved for Error that there was no Consideration for the Promise but the giving of the Plaintiffs consent that J. W. should depart and he might have departed without his consent but it was disallowed For the Relation of the Plaintiff to J. W. and the Charges he sustained in placing him with the Defendant shew that his Interest was so great in him that in all probability the Plaintiffs consent was an effectual means to cause J. W. to depart from the Defendants Service And the Case of Grisby and Lother in Hobart was cited where the Mothers consent that her Daughter should marry the Defendant was a good consideration of a Promise to the Mother And the Iudgment was affirmed Hale for the Plaintiff in the Writ of Error Surry PRigg was Indicted that legitime electus fuit decenniarius Angl ' Headborough of the Ville of D. non praestitit sacramentum suum before any Iustice of Peace to execute the Office sed voluntarie obstinate abstained from it And it was agréed by Roll that one may be Indicted for not taking his Oath in such case but then he ought to be warned to appear before a Iustice of Peace there to take his Oath and for want of that and for that it did not appear how he was chosen Headborough the Indictment was quashed And afterwards upon motion a Writ was granted out of this Court directed to him commanding him to go before some Iustice of Peace to take his Oath c. was Convicted of Perjury by Verdict for swearing he was Servant to J. S. where in truth he was only Servant to the Servant of J. S. And for this Oath Roll fined him 10 li. though Wilde moved for an Abatement for that it was not malicious and said that one Tiler in liâ—e case was fined but 5 li. Newton Uxor versus Weekes Uxor Hil. 23 Car. Rot. 1470. IN an Action of Covenant Covenant upon an Indenture made by the Wife Defendant whilst she was sole to the Wife of the Plaintiff whereby she reciting that she was seized in Fée of certain Lands in consideration of a Marriage to be had betwéen the Plaintiff and her Son did grant to the Plaintiff a Rent-charge out of those Lands to have after the death of her Son and Covenanted to pay it c. The Defendants pleaded that shâ— had nothing in the Land at the time of the Grant but that a stranger was seized of it And upon Demurrer it was adjudged for the Plaintiff both because the Defendant is estopped by the Déed and that the Covenant extends to it is as an Annuity absque argumento ad motionem Mri. Prestwood Southcote versus Southcote Hil. 23 Car. Rot. 1173. IN an Action of Debt upon the Statute of 2 Ed. 6. the Plaintiff sets forth that he was proprietarius decimarum garbarum faeni c. And that the Defendant did sow certain Land containing so many Acres in that Parish with grain and after mowed it and carried away the Grain not setting out the tenth part And after a Verdict for the Plaintiff upon Nil debet pleaded it was moved in arrest of Iudgment 1. That the Plaintiff hath entituled himself as proprietarius decimarum garbarum and demands for Tithe of Grain in general whereas Garbarum is a word of incertain signification and divers sorts of Grain are not wont to be bundled up as Rape-séed Mustard-séed and Cummin-séed which us'd to be threshed out in the Field 2. He demands for Tythe of Grain in general which is too incertain for that that there are several sorts of Grain But it was resolved 1. That Garba in its prime and proper signification is intended of Corn And so Roll said it was resolved 1. In Baxter's Case upon Consultation with the Civilians where one upon a Grant of Decimas garbarum would have had Tithe-hay but they did agrée that the word in its Latitude did comprehend any thing that useth to be bundled as wood c. but the ambiguity of the word here is taken away by the Verdict and is to be intended of Grain that is Garbable 2. The word Grain is certain enough for that it is expressed to be sowen upon a certain number of Acres And here is not a demand of the thing it self but Damages for it and all predial Tithes are within the Statute And this Exception was over-ruled in the great Case Coke Lib. Intra 162. cited 2. In. 650. And Roll said the same Exception was taken in Goldsmith's Case Trin. 10 Car. Rot. 893. B. R. but the Roll being séen in that Case the Verdict was not entred And Roll gave order that the Iudgment should be entred for the Plaintiff but after directed it might be respited till next Term But after the Iudgment was entred and a Writ of Error
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
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
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