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
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
the Words so that he be of twenty four years of age at the time of the death of Elizabeth it would have béen a contingent limitation upon the being of that age at that time Where words make a contingency by the intent of the party but now that by a mean disposal of the Profits he fills up that space of time it appears he did not mean to make that limitation a contingency to the Remainder but upon that supposal to provide for the younger Children and the Case was adjourned Pasc 23 Car. Banco Regis Needler versus Guest Trin. 17 Car. Rot. 1324. IN an Action of Covenant Covenant for 2 s. for copying every Quire of Paper Breach that he copied four Quire and three Sheets for which 8 s. 3 d. was due And that there could be no apportionment for the Covenant was to allow him 2 s. a Quire but not pro rata If he had averred 3 d. to be the usual fees for copying three Sheets he might have helped himself The Plaintiff declares that the Defendant being an Attorney covenanted to take the Plaintiff for his Clerk and to allow him 2 s. for every Quire of Paper that he should Copy out and 1 d. for every Shéet that he should engross and so much for such and such things and all usual fées and among other breaches he alledged that he copied out a Bill containing four Quires and thrée Shéets for which 8 s. 3 d. was due to him which the Defendant hath not paid And upon a Verdict and Iudgment for the Plaintiff in C. B. it was moved for error that there could be no apportionment in this Case for the Covenant was to allow him 2 s. for copying a Quire but not pro rata And for this cause upon good debate the Iudgment was reversed but it was holden that if he had averred 3 d. to be the usual fée for copying thrée Shéets of Paper he might have helped himself upon that Clause Vincent versus Fursy Hil. 22 Rot. IN an Action of Trespass for entring into his House Trespass and breaking duas Cistas and for taking diversa genera apparatuum in Cista praedicta existent and for beating his Servant per quod Servitium amisit after a Verdict for the Plaintiff upon motion in arrest of judgment it was agréed First that one may have a general Action of Trespass and a special Action upon the Case in one Action Secondly that the words diversa genera apparatuum were too incertain of themselves but being referred to a Chest wherein they lay they were reduced to sufficient certainty but because two Chests were mentioned before and the Apparel was alledged to be in Cista praedicta in the singular number so that it appears not in which they were judgment was given against the Plaintiff Stoughton versus Day Hil. 22 Car. Rot. 486. IN Debt Debt upon a Bond with Condition That whereas the Plaintiff is Sheriff of Surry and hath made Cornelius Trapp his Bailiff of the Hundred of Brixto if he should execute his Office c. and make true returns of all Warrants directed to him then c. The Defendant upon Oyer pleads particularly performance to all the Plaintiff replies that process was directed to him to levy Issues upon J. S. and that he made his Warrant to Trapp to execute the same which Warrant he did not return and upon a demurrer Iudgment was given against the Plaintiff because he did not shew that the Issues were to be levied within the Hundred of Brixto for it was resolved that though the words of the Condition were general to make return of all Warrants directed to him yet it was to be understood of such only as were to be executed within the Hundred of which he was made Bailiff Capel versus Allen. Hil. 22 Car. Rot. 639. IN Debt Debt upon a Bond with Condition to perform an Award the Plaintiff upon nullum arbitrium pleaded by the Defendant sets forth that the Arbitrators did award de supra praemissis modo forma sequenti viz. That the Defendant should pay so much to the Plaintiff and the Plaintiff should pay for the Writings of the award and it was adjudged a void Award because but of one side for it did not appear that the other party was bound to pay for the Writings which was the only recompence for the Defendant And this also is matter subsequent to the submission and so cannot be intended a good recompence Johnson versus Barret auters IN an Action of Trespass Trespass for carrying away Soil and Timber c. Vpon Trial at the Bar the Question arose upon a Key that was erected in Yarmouth and destroyed by the Bailiffs and Burgesses of the Town and Roll said that if it were erected betwéen the high Water-mark and low Water-mark then it belonged to him that had the Land adjoyning But Hale did earnestly affirm the contrary viz. that it belonged to the King of common right But it was clearly agréed that if it were erected beneath the low Water-mark then it belonged to the King It was likewise agréed that an Intruder upon the King's possession might have an Action of Trespass against a Stranger but he could not make a Lease whereupon the Lessee might maintain an Ejectione firmae Whitacre versus Hillidell H. 22 Car. Rot. 1318. SLander Slander Margaret Whitacre is a Thief and stole my Wood and I will have her put in Bridewell and upon motion in an arrest of Iudgment after Verdict it was agréed by Bacon and Roll that those words she is a Thief and stole my Wood of themselves were actionable and Cases cited accordingly But Bacon held that the latter words qualified the former for the Statute 43 Eliz. cap. 7. enacteth that persons that steal Wood growing which is not Felony shall be whipped if they make not satisfaction now Bridewell is known to be a place where such penalties are inflicted so that upon all the words it shall be intended an accusation of such an offence the penalty whereof is whipping and not of Felony But Roll contra totis viribus because the words she is a Thief are single and the other accumulative being brought in by the word And but if it had béen for she stole c. then they are explanatory And this difference hath béen alwaies taken in this course But Bacon denied the diference and cited Clerke and Gilbert's Case Hob. 331. thou art a Thief and hast stollen twenty load of my Furzis and adjudged not actionable and no difference allowed betwéen and and for but Roll flatly denied that Case to be Law 2. To accuse one of petit Larceny will bear action and for that the offendor shall be whipped so that might be his meaning and he said that where the first words are a plain and direct Slander the subsequent words that should take of their effect ought to carry in them a very strong Intendment that they were
Law And 12 Jac. Iudgment in a Formedon de uno crofto et messuagio was wholly reversed because a Praecipe lyeth not de crofto Pasc 18. Car. betwéen Creetall and Norefeild in Error upon a Iudgment in Canterbury in an Action of the Case upon two Promises where upon a Verdict for the Plaintiff damages were taxed severally and because one of the Promises was insufficiently laid the whole Iudgment was reversed Vide Hobart betwéen Miles and Jacob. et 2. In. 236. d. And Trin. 11 Car. betwéen Ellenhead and Dearman in Error upon a Iudgment in the Marshalsea in Debt upon a Bill and likewise upon a Contract The Defendant pleaded Non est factum to the one and Nil debet to the other and both being found against him the Iudgment was Quod capiatur and because it was not Quod in misericordia also as to the other Issue the whole Iudgment was reversed And Trin. 7 Jac. B. R. Rot. 568. betwéen Beard and Beard in the very same Case with the principal Case the entire Iudgment was reversed But in an Action at Common Law where damages are given by Statute there if the Iudgment be Erroneous as to the damages the principal Iudgment shall stand as in a Writ of Dower and so he said it was adjudged betwéen Tie and Atkins Vide 22 E. 4. 46. e. et L. 5. 59. a. Simile in a Quare Impedit And the entire Iudgment was reversed in the principal Case Hale for the Plaintiff in Error Wilde for the Defendant And Hale cited a Case betwéen Holland and Lee called Damms Case where he in Remainder in Taile in a Writ of Error to avoid a Common Recovery assigned for Error that the Voucher being an Infant appeared by Attorney for which the entire Iudgment was reversed Nota Hoddesd's Secondary told me the Case of Miles and Jacob in Hobart was not Law Trin. 24 Car. B. R. Cornish versus Cawsy Trin. 23 Car. Rot. 1434. IN an Action of Debt Debt against an Executrix the Plaintiff declared upon a Lease made to the Testator by Indenture dated the 25 of March Anno. Habendum à die datus for Seven years And upon Nil debet pleaded the Iury found that the Plaintiff by Indenture dated the 25 of March and delivered the same day demised the Land to the Testator which was to have and to hold from the day of the date for the tearm of Seven years from henceforth next and immediately following c. And upon this Verdict the Question was Whether the Lease in point of Computation was to commence from the making or from the day of the Date For if the Seven years commenced from the making then the Plaintiff had mistaken the Lease but if they commenced from the day of the Date then he had declared right according to the Lease And it was argued that the Seven years were to commence from the day of the Date and not from the making of the Lease for that the words will bear that construction for the words from hence forth may refer to the words from the day of the Date and so to the time of the commencement in point of interest And then the words shall be taken as if the Lease had béen to have and to hold from the day of the date from henceforth for Seven years excluding the day of the Date in the computation and this was probably the intention of the parties and not that the Lease should commence one day in point of computation and the next day in interest Also there is a Rent reserved during the tearm payable annually upon the 25 of March the last day of payment whereof would be out of the tearm if the Seven years commence upon that day And the Case in Dyer 261. was cited where an Abbot made a Lease for 31. years and after made a new Lease in these words Noveritis nos c. dictis 31. annis finitis et completis dedisse concessisse praed ' praemissa to the second Lessée habend'et tenend ' à die confectionis praesentium termin ' praed ' finit ' usque ad finem termini 31. annorum tunc immediate sequentium And it is there resolved by all the Iustices of C. B. that the Lease doth not commence in point of computation till it takes effect in Interest viz. till the first 31. years ended And yet there it might have béen said that the words praed ' termino finito should be a limitation in point of Possession or Interest and the words à die confectionis c. in point of computation But there it is said that the words à die confectionis refer to the Demise after the 31. years ended to have à die confectionis But note in that Case the Opinion of the Court of the Kings Bench was against that Opinion And in this Case two other points were moved and agreed by Roll 1. That where part of the Arrears demanded were due in the time of the Testator and part after his decease the Action in the Detinet was good for the whole as well as if all had béen due after the death of the Testator And that after a Verdict Quod non detinet the Land shall not be intended of any value as it is well known in these times in many places Lands have béen of no value and yet the Executor is liable to the Rent as far as he hath Assets and clearly if he hath Assets he cannot wave his tearm 2. That the Action being in the Detinet and the Defendant pleading Nil debet it is holpen by a Verdict And so it was adjudged as he said in this Court Trin. 10 Car. Rot. 1289. betwéen Porter and Gervise And he said If in an Action upon the Case upon an Assumpsit the Defendant plead Not Guilty it is well enough after a Verdict and as there your Action is placitum trn̄s super casum so here it is placitum debiti As to the principal point he did resolve That the Plaintiff hath mistaken his Lease for a Lease Habendum from henceforth includes the day of the making and a Lease Habendum from the day of the day excludes the day of the date And with this agrées Barwick's Case which he affirmed to be Law but he said That if such ancient Patents be given in Evidence the Iury by presumption to make the Patents good may find that they were made the last instant of the day of their Date and then they are good in Law And so hath it béen resolved in point of Evidence Now the Habendum being à die datus and for Seven years from henceforth c. to make all parts of it stand it must be construed to commence from henceforth viz. as to the computation of the Seven years that they shall begin upon the 25 of March and from the day of the date viz. upon the 26 of March in interest and possession And he resembled it to the Case of More and
Attorney different from the Authority given ore tenus he cannot execute his power by virtue of both 53 Avowry In Avowry the Traverse ought not to be larger than the Avowry 33 In Avowry for taking 100 oves matrices vervices and doth not shew how many Ewes and how many Wethers not good for the Sheriff is to make deliverance according to the Writ and he is not bound to receive information from the party ibid C. Copyhold WHERE the King shall have the Trust of a Copyhold 14 Construction of Words See Words Covenants Where the breach ought to be assigned when and where that it may appear to the Court to be legal 19 The difference between a duty or charge created by Law and when by Covenant or act of the party 27 A Covenant to pay mony upon several Bonds at the several days limited in the several Bonds or 8 days after no breach till after the 8 days 60 Covenants are common Assurances favoured in Law 38 Covenant no Duty nor cause of Action till broken and therefore not discharged by Release of Actions 39 Covenant to perform certain Indentures and to save the Plaintiff harmless he cannot plead generally performance of Covenants because some may be in the Negative and also he ought to shew how he saved him harmless 72 Covenant is intire and cannot be apportioned 9 Where the Contract is in the realty and the Debt ariseth in respect of the profits an Action will lie before the last day 58 D. Declaration DEclaration in Trespass the Plaintiff need not to answer the order of time wherein the Trespasses were done 20 In an Indebitat Assumpsit its set forth in the Declaration in consideratione quod venderet deliberaret and no averment of any sale or delivery not good 61 Demurr He that Demurs upon the Evidence ought to confess the whole matter of fact to be true and not to refer that to the Judgment of the Court 18. Devise By a Devise of the rest of all my Lands what estate passes 28 Where an authority to take the profits implies as much as a Devise of the profits which gives an Interest 45 A Devise to the Issue male with remainders to the younger Sons proviso if the eldest die without Issue male his daughter c. shall hold the lands until c. she shall have but a Chattle 46 47 An actual Devise by words is not sufficient for a stranger to write the Will but there ought to be an actual Will 54 Where the Devisor becomes sensless before the Will is written yet if it be written before he dies it s a good Will 55 A Will gnawn in pieces by Rats yet by help of the pieces put together was afterwards proved and good 2 Discent No Discent without dying seised 33 Discontinuance Where an Action shall be discontinued 20 E Error THE Venire facias bore Teste Pasch 20 Car. and Issue joyned Pasch 21 Car. no Error but holpen by the Statute of 18 Eliz. cap. 4. 20 In Trespass against three and one dies hanging the Writ Judgment against all three shall be reversed because entire 74. Otherwise in an Action at Common Law where damages are given by the Statute 75 Estopple Covenant pleaded by way of Estopple 79 Condition that if the Defendant would pay the Plaintiff so much for carrying so many Billets c. that then the Obligation should be void the Defendant pleads that the Plaintiff did not carry c. and upon Demurrer Judgment for the Plaintiff the Defendant shall be estopped to deny it 52 Executors Debt against Executors in the Debet Detinet 34 Where goods delivered to Executors shall be Assets in their hands where contingent Covenants happen after Executors shall be intended conusant of all contracts of the Testator as well contingent as certain 38 Executors not liable to pay Legacies without caution against contingent Covenants 39 Executors where chargeable in the debet detinet where in the detinet only 43 Where part of arrears demanded were due in the time of the Testator and part after his decease the Action in the Detinet is good for the whole 76 An Action brought in the Detinet against an Executor who pleads nil debet may be holpen by the Verdict Where Damages recovered shall be Assets 1 H Husband and Wife PRomise to the Husband and Wife it 's in election of the Husband to bring the Action in his own name or to joyn his Wife 36 Where the Husband is not charged in the Debet detinet because the Husband is Debtor but because the Husband and Wife are but one person in Law 73 Account by the Husband and Wife after marriage for goods bought by the wife when sole this Accompt doth not alter the nature of the Debt 73 Where the Husband shall be sued upon an Indebitatus assumpsit for necessary Wares sold to the Wife 61 I. Indictment WHere Indictment need not conclude contra formam Statuti 44 Where several are indicted in the Statute of 1 Jac. c. 8. of Stabbing and it doth not appear which gave the thrust they shall be guilty of manslaughter 44 J. S. was Indicted for not taking his Oath being chosen Headborough it must appear that he was warned before a Justice of Peace and there refused 78 Indictment quashed for repugnancy viz. quod pacifice intraverunt adtunc ibidem vi armis dissesiverunt 50 Indictment of forcible detainer and concludes contra pacem only and not contra coronam 49 Where it shall be manslaughter to kill another although he had no intention to do him mischief 12 Acts 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 ib. Infant Where an Infant comes to a stranger and boards with him the Law implies a contract for his Dyet Lodging c. but where another undertakes for his boarding this express agreement takes away the implied Contract 94 Inrolment Debito modo Irrotullat ' in Curia Canc ' c. not good without alledging the Inrolment to be within six moneths or secundum formam Statuti 19 Jury Juror challeng'd because he was tenant of a Mannor to which there was a Court Leet of which the Plaintiff was Steward and no principal challenge 29 Juror challeng'd by the Defendant soit treit said the Plaintiff but not allowed for that must be upon the challenge and not upon the Trial. 30 Jury bound over to the Star Chamber for not finding according to the direction of the Court. 12 L. Leases WHere an Ouster le main is necessary a Lease for years made before is not good 30 A Lease for years habendum from henceforth includes the day of making but habendum from the day of the date excludes the day of the date 76 77 A Lease habendum a die datus and for seven years hence forth how it shall be construed 77 Where Lessee for years
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
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
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