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
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
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
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
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
invaded the Realm with an hostile Army of men and with the same force did enter upon the Defendant's possession and him expelled and held out of possession from the 19 of July 18 Car. till the Feast of the Annunciation 21 Car. whereby he could not take the profits whereupon the Plaintiff demurred and the plea was resolved insufficient 1. Because the Defendant hath not answered to one quarters Rent 2. He hath not averred that the Army were all Aliens which shall not be intended and then he hath his remedy against them and Bacon cited 33 H. 6. 1. e. where the Gaoler in bar of an escape pleaded that Alien enemies broke the Prison c. and exception taken to it for that he ought to shew of what Countrey they were viz. Scots c. 3. It was resolved That the matter of the plea was insufficient for though the whole Army had been Alien enemies yet he ought to pay his Rent And this difference was taken that where the Law creates a duty or charge and the party is disabled to perform it without any default in him and hath no remedy over there the Law will excuse him As in the case of Waste if a House be destroyed by Tempest or by Enemies the Lessee is excused Dyer 33. a. Inst 53. d. 283. a. 12 H. 4. 6. so of an Escape Co. 4. 84. b. 33 H. 6. 1. So in 9 E. 3. 16. a Supersedeas was awarded to the Iustices that they should not proceed in a Cessavit upon a Cesser during the War but when the party by his own contract creates a duty or charge upon himself he is bound to make it good if he may notwithstanding any accident by inevitable necessity because he might have provided against it by his Contract And therefore if the Lessee covenant to repair a House though it be burnt by Lightning or thrown down by Enemies yet he ought to repair it Dyer 33. a. 40 E. 3. 6. h. Nota. Now the Rent is a duty created by the parties upon the reservation and had there been a Covenant to pay it there had been no question but the Lessee must have made it good notwithstanding the interruption by enemies for the Law would not protect him beyond his own agreement no more then in the case of reparations This Reservation then being a Covenant in Law and whereupon an Action of Covenant hath been maintained as Roll said it is all one as if there had been an actual Covenant Another reason was added that as the Lessee is to have the advantage of casual profits so he must run the hazard of casual losses and not lay the whole burthen of them upon his Lessor and Dyer 56. 6. was cited for this purpose Vide Co. 4. 82. g. that though the Land be rounded or gained by the Sea or made barren by Wild-fire yet the Lessor shall have his whole Rent And Iudgment was given for the Plaintiff Wheeler versus Walroone P. vel T. 18 Car. Rot. 600. By devise of all the rest of his Goods Chattels Leases Estates Morgages c. to his Wife passed but an Estate for life Crooke 3. part 447 449. 450. the reason In an Ejectione firmae Vpon a special Verdict the case was that one being seised of the Manor of D. and other Lands in Somersetshire by his Will in writing devised the Manor to A. for six years and part of the other Lands to B. in fee and then comes in this clause And the rest of all my Lands in Somersetshire or elsewhere I give to my Brother and the Heirs of his Body And the question was whether the reversion of the Manor passed or no for it was said that the word Rest did extend only to such Lands as were not devised before but it was adjudged for the Defendant that the reversion of the Manor passed by the devise Baker versus Edmonds Hil. 22 Car. Rot. 222. Action sur le Case In an Action upon the Case the Plaintiff declares That the Defendant was indebted to one Gode in the summ of 43 l. 1 s. for c. And being so indebted promised to pay him which Gode was indebted to the Plaintiff and became Bankrupt whereupon a Commission upon the Statute was sued forth and the Commissioners did assign debita praed ' Gode in quadam schedula continent ' praed ' summam 43 li. 1 s. to the Plaintiff c. the Defendant pleads that he made no such promise to Gode And by special Verdict it was found that the Defendant was indebted to Gode but in 41 li. 1 s. which he promised to pay and that the Commissioners assigned debita praed ' Gode mentionat ' in quadam schedula continent ' praed ' summam 43 li. 1 s. to the Plaintiff And if this be same promise that the Plaintiff hath declared upon they find for the Plaintiff And two Objections were made 1. That it is not the same promise because the Plaintiff hath declared of a promise to pay 43 li. 1 s. and the Iury find the promise to be but of 41 li. 1 s. That upon the whole Record it appears that the Plaintiff hath not made a good Title to his Action for he hath alledged the Assignment to be of a debt of 43 l. 1 s. whereas the debt was but 41 li. 1 s. And this being an entire thing will not pass by the Assignment of a greater sum But it was answered and resolved 1. That it is the same promise for if Gode himself had brought the Action he should have recovered upon this Verdict and the Assignment by the Commissioners vests the Debt in the Plaint And he hath the same remedy to recover as the Bankrupt himself had Dyer 219. g. 21 E. 4. 22. a. And the difference was taken between an Action upon the Contract it self c. for there if the party mistakes the sum agreed on he fails in his Action but if he brings his Action upon the promise in Law Br. Issue joyn 80. which arises from the Debt there though he mistakes in the sum he shall recover and so hath it been adjudged 2. The Assignment is not in question for the Issue and Verdict are concluded to the promise and so that which they find touching the Assignment is not material however the Assignment is not laid to be of such a sum as by that name for then it would have been a question whether good and the Court inclined that it would not have been good Mich. 23 Car. Banco Regis But the Assignment is laid to be of the Debts of Gode mentioned in a schedule containing that sum and so it was found by the Iury therefore the Court shall intend it to be in such a manner as that the Debt of 41 li. 1 s. might well pass thereby And after much debate Iudgment was given for the Plaintiff Munday versus Baily Trin. 23 Car. Rot. 83. or 82. IN an Assumpsit Assumpsit upon an
Testator's Estate 2. That such contingent Covenants are common assurances much favoured in Law which may all be easily defeated if the disposition of the Covenants by his Will should stand good against them for though the Executors should afterwards voluntarily break them yet the recompence must be had only out of the Testator's Estate 3. A diversity was taken between Debts without specialty and Legacies for those are duties of the same nature with Debts upon specialty but differ only in order and dignity but these are meer gratuities for which no Action lieth at the Common Law and therefore are not taken notice of by Law as duties but the remedy for them is in the Court Christian 4. The Executor was not compellable by the Ecclesiastical Court to pay these Legacies unless the Legatees in this case would give caution to repay them if the contingent Covenants should be broken And so it was said is the course in Chancery at this day in the like cases And Hales and Twisden ex parte Defendentis argued to the contrary 1. It was agreed by them and also by the Court that though the Legacies were devised in specie yet the Legatees could not take them without the assent of the Executors And that therefore the Case was the same as if the Legacies had been of money Indeed there is a difference between these Legacies for Legatum quantitatis est Legatario as Legatum in specie est 2. It was agreed that if the Covenant had been broken before the delivery of the Legacies the Administration would have wrought a Devastavit but the Legacies being first delivered it was agrued that the Executors ought not to be charged in a Devastavit upon this Covenant 1. From the nature of the thing it self for a Covenant is no Duty nor cause of Action till it be broken and therefore is not discharged by a release of Actions And when it is broken the Action is not founded meerly upon the specialty as if it were a Duty but savours of Trespass and therefore an Accord is a good plea to it and ends in damages 2. From the qualification of it in respect of the contingency of the breach thereof for it is to be presumed that it will be rather performed than broken 3. From the inconvenience that such a Covenant should obstruct the performance of the Will for it is a present and certain mischief that Legacies should not be paid and it is but a possible and contingent mischief that the Covenant should be broken and the Covenantee unsatisfied and therefore admitting that it were in place where by custome a rationabili parte bonorum would lie it would be very hard that the Children should expect till it were known whether the Covenant would be broken or no which may perchance continue in suspense for ever for such Covenants are commonly annext to Estates in fee. Now the reason is the same in case of Legacies for where it hath been said that the Common Law takes no notice of them so as to give remedy for them it was answered 1. That the Law takes notice of a Legacy so as to create a Duty in the party to whom it is bequeathed though he cannot take it without the assent of the Executors for after such assent the Law vests the property of the thing bequeathed in the Legatee and therefore a Condition imposed upon the assent is void 2. The Probate and ordering of Wills did belong originally to the Iurisdiction of Temporal Courts where the Legatees might have had remedy for their Legacies as appears by Glanvil lib. 6. cap. 6 7. where there is a Writ to demand a Legacy at the Common Law and now that the Iurisdiction is devolved to the Ecclesiastical Court the Common Law takes notice of the remedy there for Legacies for the power of that Court is regulated by these and therefore forbearance of Suit there hath been adjudged a good consideration of a promise and for the same reason Hale said he conceived that if an Executor of his own wrong paid Legacies the rightfull Executor should be bound thereby because he was compellable by Law to pay them 3. Though the Executor were not compellable by Law to pay the Legacies yet now that payment is executed the Law takes notice of it to vest the property of the Goods in the Legatees And this being before any Covenant broken the Administration will be good As to the Objection concerning provisional payment of Legacies it was answered 1. That it is the common case almost of all persons that have any dealing in the Kingdom to make such Covenants and to give Portions to their Children by Will and this is all the maintenance many of them have and therefore it is difficult for them to find security for the payment of that whereof they live 2. Though the Ecclesiastical Court in a prudential way use sometimes to take caution for repayment yet they are not bound so to doe And therefore this Court cannot take notice thereof 3. It hath been agreed that payment of Debts upon simple Contracts is a good administration against Iudgments defeasible upon performance of Covenants and yet the same provisional payment might be made in that case but the Law doth not compell it pur que c. And the Case being thus argued the last Trinity Term and this Term two Exceptions were taken by Bacon to the Declaration 1. That the Plaintiff hath not conveyed to himself a good Title to the Tenements for he alledges a demise of them habendum to the Plaintiff but he is not named in the premises but this was after agreed to be well enough for a Lease so made is good And Latch said it had been so adjudged 2. That the breach was not well assigned for the Covenant is against all persons claiming by the assent means or procurement of Sir Moulton but the breach assigned is that Clavel clamans titulum from Sir M. did enter now he might claim Title from him when as in truth he had no Title from him And for this cause Iudgment was given against the Plaintiff And the Iudges would not deliver their opinions upon the matter in Law but upon the Arguments Roll did incline for the Plaintiff upon the provisional payment that might be made and said that Prohibitions have been denied upon suggestion of a Suit in the Ecclesiastical Court where contingent charges have been pleaded because this Court takes notice of provisional payments which are used to be made there also he approved of the diversity between Debts without specialty and Legacies And Bacon inclined to the Defendant for the reasons before alledged Hil. 23 Car. Banco Regis Holdwich Ux. vers Chafe Pasc 23 Car. Rot. 326. IN an Action of Debt by the Husband and Wife Executrix upon a Bond supposed to be made to the Testator non est factum being pleaded it was found to be made to the Testator and another who died before the Testator
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
But it was agréed that the Statute of Ieofails which doth provide amendment by Examination of the Clerks c. shall not extend to inferiour Courts in these points 2. It was resolved that this Statute extends to the Courts made after and so not within the Equity And after upon good deliberation Iudgment was affirmed Inicpit Term ' Trinitat 24 Car. B. R. Rolls only sate Judge this Terme Bacon being sick Beaton versus Forrest Hil. 23 Car. Rot. 355. IN an Action of Debt Debt upon a single Bill the Defendant after Imparlance pleadâ—d payment of part after the latter continuance petit quod billa cassetur c. the Plaintiff denied the payment and the â—efendant demurred And it was resolved by Roll that the Plea was insufficient although pleaded in Abatement only for that there ought to be an Acquittance which is controverted in the old Books where a difference hath béen taken betwéen such a Plea pleaded in Barr and when pleaded in Abatement Vide L. 5. E. 4. 139. 15 H. 7 10. e. 3 H. 7. 3. g. 7 E. 4. 15. e. But Roll said if he had had an Acquittance he might have pleaded it in Barr or Abatement at his election Then it was moved by Yard to have Iudgment peremptory 1. For that this Plea is pleaded after Imparlance 2. For that the Plaintiff hath tendered an Issue upon the Defendants Plea which he hath refused But it was resolved that the Plea was not peremptory For 1. Dyer 228. a. When a Plea concludes in Abatement it is not peremptory but if a Plea in Abatement be pleaded in Barr it is peremptory 2. Though it be pleadâ—d after Imparlance Hob. â—1 c. and Issue tendered upon it yet it is not peremptory upon a Demurrer 34 H. 6. 8. d. In a Writ of Entry upon a Disseisin made to the Ancestor the Tenant pleaded in Abatement that the Demandant himself was seized the Demandant denied his Seisin and concluded to Issue The Tenant pleaded an Estoppel to the Demandant which upon Demurrer was over-ruled and yet not peremptory Br. tit Peremptory But if Issue be joyned upon a Plea in Abatement then it is peremptory 50 E. 3. 20. J. Katesby et K. sa feme port assise the Tenant pleaded that long time before K. was married to J. C. c. And that she is still the wife of J. C. and not the wife of the Demandant J. K. and demanded Iudgment of the Writ and Issue being joyned thereupon the Tenant concluding to the Assise the Demandants demurred as to the Trial viz. that it ought to be by the BB. And it was awarded to be tried by the Assise Dy. 311. a. And the Demandant would have waved his Plea in Abatement and have pleaded in Barr the Marriage of K. with J. C. and a Release from J. C. but was not admitted because the Issue made it peremptory to him And so it is if after Issue joyned the Defendant pleads a Plea in Abatement Hob. 81. c. this is peremptory as well upon Demurrer as upon trial by Verdict because after Issue joyned no Respondes ouster can be awarded and with this agrées L. 5. E. 4. 139. where in Debt after Issue joyned the Defendant at the Nisi prius pleaded payment of part after the latter continuance in Abatement and the Iury being discharged and the Plea adjourned in Banke for that no place of payment was pleaded the Plaintiff had Iudgment to recover his Debt And 2 E. 4. 10. the Tenant in a Cui in via pleaded the Entry of the Demandant after the latter continuance and Issue being joyned thereupon the King dyed and upon a Resummons he pleaded a Recovery of part in an Assise after the latter continuance to which the Demandant pleaded an Estoppel and upon a Demurrer Iudgment was given for the Demandant to recover Seisin And Roll said That if after Imparlance the Defendant pleads a Plea in Abatement which is waved by the Imparlance the Plaintiff must not Demurr but move the Court that he may be compelled to plead in chief but if Demurrer be joyned upon it it is not peremptory to the Defendant although the Demurrer be adjourned till another Terme as it was in this Case 22 H. 6. 55. e. And a Respondes ouster was awarded in the principal Case Nota diversitatem betwéen a Plea in Abatement and a Plea to have Aide for if Issue be joyned upon a Prayer in aide and found for the Tenant the Iudgment is only that he have Aide 7 E. 3. 46. Vide StatÌ„ WestmÌ„ 2. cap. 6. for Counterplea of Voucher that if it be adjourned and adjudged against the Tenant it is peremptory to him 2. In. 242. c. 243. a. Prugnell Anne Gosse Pasc 24 Car. Rot. 217. IN a Writ of Error Error upon a Iudgment in the C. B. in an Action upon the Case for that the Defendant in consideration of a Marriage to be had betwéen the Plaintiff and her Daughter promised to give 100 li. to the Plaintiff and 10 li. for Apparel for her Daughter And whereas the Defendant had a Shop in Basingstooke with divers Wares in it she promised to assign over the Shop to the Plaintiff et transferre negotiationem suam angl ' her Trade to the Plaintiff and that she would not use her Trade any longer in Basingstooke And breach assigned in not paying the Money nor assigning the Shop and for that she used the Trade there still c. And upon Non assumpsit a Verdict for the Plaintiff and entire Damages given And Twisden moved for Error that the promise not to use her Trade was against Law and void and cited More 's Reports Pasc 20 El. p. 182. A Bond that one should not use the Trade of a Mercer in Nottingham is void Vide simile Mor ' Mich. 29 El. p. 284. et Hil. 44 Eliz. C. B. que est enter Mich. 42 et 43 El. Rot. 2217. entr ' Geggot et Batchelor A Bond with Condition that one should not use the Trade of a Haberdasher in Kent for four years was holden void Et Lib. 11. 53. h. et 2 H. 5. 6. And this was agréed by Roll for Law who took these differences that where a Bond or Promise restrains the exercise of a Trade although it be as to a particular place only yet if it be upon no consideration the Bond c. is void But if there were a Consideration for the restraint as if A. assign a Shop or sell braided ware to B. there in respect of the apparent prejudice which may accrue to B. if A. should continue the Trade such a Bond or Promise is good and so was it adjudged in Froward's Case upon a Writ of Error out of Bridgenorth But although there be such a Consideration yet if the Restraint be general throughout England it is void Another Exception was that the words transferre negotiationem suam were of an incertain signification but not allowed and so the Iudgment was
brought in the Exchequer but I think it was for delay only Term Mich. 24 Car. Banco Regis Udal versus Udal IN a Trover and Conversion of 400 Load of Timber Vpon not guilty pleaded the Iury found by special Verdict that Sir William Udal being seized in fée of the Mannor of Horton whereof the Land where the Timber grew was parcel did Covenant by Indenture to levy a Fine to the use of himself in Tail the Remainder to such persons and for such Estates as he should limit by Indenture and for want of such limitation the remainder to the Defendant for life the remainder to his eldest Son in Tail and to his tenth Son and for want of such Issue the remainder to W. U. for life the remainder to his eldest Son in Tail c. and so to his tenth Son the remainder to the right heirs of Sir William with a Proviso that upon tender of 5 s. c. he might revoke those uses and limit others and levyed a fine accordingly And after by another Indenture reciting the uses of the first and the Proviso in it made a new limitation to the use of himself in tail the remainder to the Defendant for life with like remainder ut supra to his Sons the remainder to W. U. for life with like remainders to his Sons the remainder to the Plaintiff in Tail c. according to his power and the clause in the said Indentures and dyed without Issue and the Defendant neither himself nor W. U. having any Son cut down the Timber and years after sold part of it and the Plaintiff seised the rest which the Defendant did take again from the Plaintiff and sold the same and if c. And the case being argued Trin. Pasch ult and this Term it was resolved by Bacon and Roll. 1. That if there be tenant for life the remainder for life and tenant for life cut down Timber trées he that hath the Inheritance may seise them although he cannot have an Action of waste during the life of him in remainder For 1. The particular tenant hath not the absolute property in the Trées but only a special Interest in them so long as they continue annexed to the Land And therefore a Termer cannot grant away his term excepting the trées but the exception is void for that he cannot have a distinct interest in them but only relative to the land And so it is resolved in Sanders Case Lib. 5. 12. f. and so Mainard said it was resolved 10 Car. in Whites case in the Court of Wards in case of lesseé for life but where a Lease for years was made without Impeachment of waste such an exception was adjudged good as he said in Sir Alan Piercy's Case and so Bacon said it was adjudged 9 Car. in Dame Billinglys Case Then the remainder for life betters not the interest of the tenant for life in the Trées but only is an impediment for the time to the bringing of an Action of waste and therefore after the death of him in remainder for life an Action will lye for waste done in his life time And so it is adjudged in Pagets Case Lib. 5. 76. g. and so Mainard said it was adjudged Mich. 14 E. 2. in a Case not Printed that where he in reversion upon an estate for life granted his reversion for life and the tenant for life made waste and then the grantée of the reversion dyed that an Action of waste would lye against the tenant for life which proves that the cutting down of the Trées by the Tenant was tortious 2. It was resolved that the mean remainders in contingency though of an estate inheritance alter not the case for an estate in contingency is no estate till the contingency happen And therefore it was agréed that the Plaintiff might have had an Action of waste in this Case had there not béen a remainder for life in esse notwithstanding the mean contingent remainders 3. It was resolved that a Trover and Conversion in this Case would lye for all the Timber trées though the Plaintiff never seized parcel of them for by the cutting down of them an absolute property was vested in the Plaintiff unless they had béen cut down for reparations and so imployed in convenient time And for this Bury and Heards Case was cited by the Court which commenced in this Court 20 Jac. and depended seven years where a stranger entred into Lands leased for life and cut down Timber trées and barked them and the lessor before seisure brought a Trover for the bark and had Iudgment to recover notwithstanding that the cutting down and barking was all at one time whereupon it was then objected that the distinct property of a chattle was never settled in the lessor and the book of 13 H. 7. 9. g. cited that Trespass vi armis doth not lye against lessée for years who cuts down Timber trées and sells them Per Curiam Which Case was then affirmed for good Law but there it was agréed That if lessée for years cuts down Timber trees and lets them lye and after carries them away so that the taking and carrying away be not as one continued act but that there be some time for the distinct property of a divided chattle to settle in the lessor that an Action of Trespass vi armis would lye in such case against the lessee And that in such case felony might be committed of them but not where they were taken and carried away at the same time Vide 3 In. 109. a. c. 4. 63. f. And it was resolved in that Case of Bury and Heard that although the lessee had a special Interest in the trees as for necessary reparations c. yet the Action would lye for the lessor for the Interest of the lessee was determined by the cutting down unless he had cause for necessary reparations which had there been yet might the lessor have his Action but if the lessee in such case had brought his Action and recovered this would have been a good bar against the lessor but in the principal case there was years distance between the cutting down and the sale And also the Defendant by the sale made himself an absolute wrong doer for though there had been cause for reparation yet the Trees being cut down and sold though other Trees had been bought with the money and imployed in reparations this would not have excused him in an Action of Waste And an exception was taken by Latch to the execution of the power of Sir William upon the limitation of the uses by the last Indenture for that it was made with relation to the Proviso And five shillings were not tendered which was the Condition of the power thereby reserved and then Sir William being tenant in Tail the reversion to himself in fee by the first Indenture and dying without Issue the Defendant being his heir was seised in fee but the exception was clearly disallowed both for
Plaintiff to the Defendant should be released but the Defendants bond should stand for the award that Releases should be made of all Actions c. till the eighth of March is entire and cannot be apportioned in respect of time that is bind as to the time before the first bond and be void as to the time after But it was resolved that the award in this Case was a good award for the award that all Suits between the parties should cease is a good award on both sides and sufficient satisfaction for the money ordered to be paid by the Defendant and then though the award be void as to the Releases it is not material and the Case betwéen Vanbore and Trigge 14 Jac. in this Case was cited where an award that all Suits betwéen the parties should cease and that they should make mutual Releases one to the other till the day of the award was adjudged good as to the first part and void for the Releases because thereby the bond of submission should be released but where the award is that they shall make general Releases without fixing to any time this will be good because it shall be construed to the time of the submission only And it was agréed that the misrecital of the Arbitrators doth not prejudice their award And it was touched by the Defendants Counsel that the submission was void because at several times but not insisted on for the Court held it clearly to be good And an exception was taken to the Verdict for that they have not found the award to be made before Easter and the Court cannot take notice ex officio that the 15 of April was before Easter But to that it was answered that the Plaintiff in his replication hath alledged it to be before the Feast of Easter viz. 15 April And the Defendant in his rejoynder hath omitted the words ante festum Paschae so that the time is not in Issue And upon this reason Mr. Hales told me the Court rested for that point for he held that the Court otherwise could not take notice of the time ex officio though Mr. Weston said that the opinion of Roll was that they might if they pleased And Iudgment was given for the Plaintiffs in my absence through sickness but their Opinions were declared ut supra before Note Trin. 1649. The same Case came again in question upon an Action brought by the same Plaintiffs against the Defendants Son who became bound with his Father and it is entered Pasch 1649. Rot. 249. And there the Defendant in his bar sets forth the whole matter and the award verbatim with cujus tenor sequitur in haec verba in English And upon demurrer without argument adjudged for the Plaintiff because it ought to be set forth in Latin and so Roll then chief Iustice said it had béen ruled before and so it is in Case of a bond to perform Covenants in an Indenture they must be set forth in Latin And Roll declared the award to be good for the reasons aforesaid and so he said he and Bacon had delivered their opinions before and the manner of pleading it by cujus tenor c. was naught Dame Bowles versus Broadhead Hill 23. Car. Rot. 1578. IN an Action of Debt Debt for 200 l. upon the Statute of 2 E. 6. for Tithes of land in the Parish of Rinston alias Royston the Defendant pleaded the Statute of 31 H. 8. And that the Lands were discharged in the hands of the Prior of mount Bretton at the time of the dissolution and Issue joyned upon the discharge and upon a Trial at bar the Defendant not making good his Plee the Court ruled the value to be taken as confessed because the Issue is joyned upon a collateral point And the Defendant took not the value by protestation and so the verdict was given for Two hundred pounds but neither damages nor costs Amys versus Cowley Ejectment IN an ejectione firmae of Lands in Blandford Forum upon not guilty pleaded betwéen John Rogers and the Lord Rich who married his Brothers widdow the Case fell out to be thus The Lands in question were called Nutford farm and lay in the Tithing of Rushton within the Parish of Blanford Forum but not within the Borough of Blandford Forum R. being seised of that Farm and of other Lands within the Borough covenanted to levy a fine of both to certain uses and the déed of Covenant described the Lands to be in the Parish of Blandford Forum the Borough and Tithing being both within the Parish And accordingly a fine was levied of Lands in Blandford Forum generally not naming it a Ville or Parish but the number of Acres was sufficient to pass all the Lands within the Borough and Parish And whether an averment might be taken by the deed 2 H. 5. 7. h. that the fine was intended of Lands within the Parish for otherwise the fine must be taken as of Lands within the Ville only was a question directed by Bacon and Roll to be found specially if the Verdict passed upon that point And in this Case it was a question upon the evidence whether the receiving of Rent by him that hath a reversion upon an estate for life make a possessio fratris And the opinion of the Court inclined that it doth not and the Quaere in the Institutes 15 cap. was mentioned by Roll. Cases at Nisi prius in Guild-hall London before Hen ' Roll Justice de Banco Regis Term ' Trin ' 24 Car. Johnson versus Rawle IN an Action upon a Promise Assumpsit the Defendant pleaded a submission of all matters in difference to Arbitriment and an award c. the Plaintiff denied the submission modo forma and Issue being joyned thereupon the evidence was of a submission of all matters touching accompts and allowed good evidence and because the Plaintiff could not prove that there were other matters in difference but matters of accompt he was non-suited Hale and Mainard being of his Counsel Ludlow versus Beckwith Ejectment IN and Ejectione firmae upon not guilty the Case upon evidence was that A. devised a House to B. for life with power to make Leases for Twenty one years rendring Ten pound rent per annum payable at Michael ' or Twenty days after B. made a Lease for Twenty one years rendering Ten pounds rent per annum payable at Michaelmas And the questions were 1. Whether the words at Michaelmas or Ten days after were to be taken in sensu diviso and so the distribution to his power of making Leases or in sensu conjuncto and so the distribution to the payment of the rent 2. If taken the last way Whether he had persued his power in effect Mainard That the power was persued Hale e contra But Mainard agreed that if he had reserved the rent payable Ten days after Michaelmas then he had not persued his power because the reservation is not so