Indebitatus for Rent reserved upon a Lease for years After a Verdict for the Plaintiff upon non Assumpsit Iudgment was given against him because the Action will not lie for Rent but he must have an Action of Debt for it Lawrence versus King and others In an Ejectione firmae Ejectione firmae upon a Lease of a House in Newington Common Oxon. Vpon not guilty the Iury appearing at Bar one was challenged because he was Tenant of a Manor to which there was a Court Leet of which the Plaintiff was Steward And the Court inclined that it was no principal challenge but for want of sufficient proof it fell off and the Court would not examine him upon a voir dire after it Another was challenged by the Defendant and being upon his Trial soit treit said the Plaintiff but not allowed for that must be upon the Challenge and not upon the Trial and therefore he was tried and sworn And the Case upon the Evidence was that Tenant in Capite of certain Lands and the House in question conveyed all as it was found by Office to his youngest Son and died his eldest Son and Heir being within age who attained to his full age and died before livery sued And the younger Son entred and made a Lease to the Plaintiff of the whole Land and whether this Lease was good for the whole was the question And the Plaintiff's Counsel offered to prove by another Office that other Lands were left to descend to the eldest Son which were more then a full third part of the whole Lands the Tenant had but it was not allowed for the Office wherein the House in question is found is a Record by it self and the King's Title must be taken as it is found in that and not as it stands by comparison with another Office 1 H. 7. 5. c. 2. It was a question whether a Lease made by the younger Son in this case before seisure for none could be proved were not good for the whole And it was holden to be void as to a third part and so it was though the third part were not set out by the Statute for the King's interest commenced by the Office before seisure and before setting out of the third part 3. Stamf. 35. c. l. 8. 175. c. 13 H. 4. 3. g. h. 14. a. 1 H. 7. 5. c. 21 H. 7. 7. b. It was agreed that the Land continued in the King's hands for a third part till an ouster le maine sued though the Heir were dead 4. It was agréed by all that where an ouster le maine is necessary a Lease for years made before is not good And Bacon said that where the Heir of the King's Tenant in Capite dies before livery sued that the Land is not Debtor for the Arrears which the King ought to have from the death of the Ancestour in such case till they are computed by an Officer in the Exchequer and made a Debt upon Record and then the Land is Debtor And after much dispute a Juror was drawn by consent of parties Dutton versus Eaton Hil. 22 Car. Rot. 929. Action sur le Case IN an Action of the Case for speaking divers slanderous words of the Plaintiff amongst which were these words Thou hast the French Pox upon not guilty the Iury found that he spake all the words in the Declaration exceptis his verbis thou hast the French Pox quoad the speaking of those words they find that he said thou hast had the French Pox si c. they find for the Plaintiff and assess entire damages And the opinion of the Court was clear that the variance was material Dyer 75. a. so that the Declaration was not maintained by the Verdict And both the Iudges inclined that the words found were not actionable for they do imply that the Plaintiff had that disease but was recovered Then an exception was taken to the Verdict because the Iury did not find that the Defendant did not speak the words in the Declaration And yet this defect was not supplied by the words exceptis his verbis And for this cause it was resolved that the Verdict was insufficient and a Venire facias de novo was awarded Vide Dyer 75. a. 171. e. Yearworth versus Pierce SLander Slander Thou art a Thief and hast stollen my Dung After a Verdict for the Plaintiff it was moved that the words were not actionable because Dung is an indifferent word to signifie either Dung in a heap which is a Chattel or Dung spread or scattered upon the ground which is parcel of the Freehold and then no felony may be committed of it But upon good debate Iudgment was given for the Plaintiff because the first words being plainly actionable the effect of them shall not be taken away by subsequent words ambiguous for when subsequent words should qualifie the words precedent they ought to carry in them a strong intendment that they were spoken in such a sense as was not actionable and then also Roll held they ought to be brought in by way of explanation by the word For as to say thou art a Thief for thou hast c. but if the words are thou art a Thief and hast stoln c. there the latter words are cumulative But Bacon denied the difference and cited Clerk and Gilbert's Case Hob. 331. where that difference is denied and said that 8 Car. in the Common Pleas where the words were thou art a Thief and hast robb'd thy Kinsman of his Land The Court was divided in opinion but after upon Conference with all the Iustices at Serjeants Inn it was adjudged for the Plaintiff And Roll denied both those cases to be Law and said that this latter case was resolved upon consideration of that in Hobert which hath been often denied for Law in this Court. And he said that he had conferred with Sir Robert Barkley and Sir John Bramston and their opinions concur with him in this point And Roll held that if the Defendant had said thou hast stollen my Dung without any other words they would have been actionable for Dung in Common parlance is understood of Dung in a heap which was agreed to be a Chattel of which Felony may be committed and goeth to the Executors but if it lieth scattered upon the ground so that it cannot well be gathered without gathering part of the soil with it then it is parcel of the Freehold Mich. 23 Car. Banco Regis Pierson versus Dawson SLander Slander The Plaintiff declares That the Defendant dixit Mariae Pierson Matri W. Pierson the Plaintiff your Son is a Thief innuendo the Plaintiff then the Son of the said Mary And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the words are not laid to be spoken of the Plaintiff but only in the innuendo which cannot sufficiently ascertain the Declaration Hob. 268. a. l. 4. 169. 17. f.
resolved that upon this Indictment they might all have been found guilty at the Common Law then when all are found guilty within the Statute the Verdict shall be taken as it may stand by Law And the substance of the Indictment being found the rest is but surplusage which hurteth not the Verdict And the Court held that the Indictment need not conclude contra formam Statuti because the Statute doth not alter the nature of the offence but only takes away the priviledge which the Common Law allowed in such case and therefore it is sufficient that the circumstances be expressed in the Indictment whereby it may appear that the offence is within the Statute and the Offendors had their Clergy and upon their reading were burnt in the hand in conspectu curiae Price versus Vaughan Trin. 14 Car. Rot. 1160. IN an Ejectione firmae Ejectione firmae upon a special Verdict upon not guilty pleaded the Case was briefly thus Walter Vaughan being seised in Fee of the Land in question devised it to Francis his eldest Son and the Heirs males of his Body the remainder to his second Son and the Heirs males of his Body with other remainders the remainder to the Heirs males of the Body of the Devisor provided if the eldest Son should die without Issue male but having Issue female then I do give full power and authority to the said Daughters to enter into the Lands and to take the profits thereof untill he that first shall have the Lands after the death of Francis shall pay to each of them 400 li. towards their Marriage and dies Francis dies without Issue male having a Daughter Elizabeth who entred into the Lands and died the 400 li. being unpaid her Administrator enters and Leases to the Plaintiff upon whom the younger Son of the Devisor enters and him ejects and if upon the whole matter the entry of the Administrator was lawfull they find for the Plaintiff And the question in Law was what Estate Elizabeth had and it was argued by Hale Maynard and Brown for the Plaintiff 1. That she had an interest 5 H. 7. 1. a. 27 H. 8. 16. 1. Dyer 210. d. Br. Devise 48. for an authority to take the profits implies as much as a devise of the profits which gives an interest 2. It is a Chattel like to the case where a feoffment is made rendring Rent with proviso that if it be arrear the Feoffor may enter and hold the Land till it be paid this gives a Chattel to the Feoffor And so it is if the arrears were to be satisfied out of the profits of the land And so it is in case of a devise to Executors till debts be paid And so Brown said it was resolved in a Case between Eire and Haggard Hil. 13 Jac. Rot. 868. C. B. where a Rent was granted out of the Lands and if the Rent were behind that the Grantor might enter into the Land and hold it till he were paid that this was but a Chattel 3. It was argued that this Chattel was transmissible to the Administrator because if the portion it self had been devised though it were toward Marriage it would have gone to the Administrator Now though the profits of the Land are but a gage till the portion be paid yet it follows the Portion as 20 H. 7. 1. a. as if a nomine poenae descend to the Heir with the Rent so if Lands are devised to Executors for payment of Debts it goes to their Executors and the Executors of Tenant by Elegit shall have an Assise for the remedy goes with the duty 2 Inst 396. e. And in this case if it should not be so the Portion might not be paid which were contrary to the meaning and letter of the Will for there is an express proviso that the Lands shall not remain over till the money be paid and Twisden and St. John Sollicitor argued to the contrary But St. John did admit it to be an Interest but that it was no Chattell 1. Because the devise is found to be in pursuance of Articles of agreement made for the like settlement to be made by the Testator in his life-time but if such a settlement had been made in his life it would have given a Freehold for life and not a Chattel 2. The devise was for advancement of Daughters and it is found by the Verdict that 1200 Acres of Land are devised in which if the Daughters should have an Estate for life it cannot but be intended to be as great or greater advancement than if 400 li. only had been devised to them and yet that the Testator lookt upon as a sufficient provision And therefore made the Estate determinable upon payment of that 3. It cannot be thought that the Testator intended to give the whole Land to the Daughters and to debar the Issue male of his younger Sons and yet as this Will is penned if it should not give a Freehold then if the first man dies before payment the Daughters shold have it for ever and Dyer 300 h. was cited And for this cause also it cannot be a Chattel for there cannot be a perpetuity of a Chattel upon no supposal and therefore there is no more reason to say it should be a Fee in them than a Chattel 2. If it be a Chattel it goes not to the Executors or Administrators 1. Because it is personally limited to the Daughters and not to their Executors and Administrators 2. It is limited to them for their advancement which doth not respect their Executors 3. If it should goe to the Executors then there would be a perpetuity of it As to the Cases objected by the Plaintiff's Counsel as 27 H. 8. 5. which was much insisted upon where cestuy que use Covenants that his Feoffees shall suffer one of his Executors and Assigns to take the profits of the Land till he or they be paid 100 li. by the Covenants c. if he dies before he hath received it his Executors shall hold it till they be paid It was answered that this was in case of a Vse which was then ruled meerly according to equity and by express words it was limited to the Executors and there it was for money paid by the Covenantee and so for a Duty which goes to the Executors And for the case of a Devise to Executors for payment of Debts there it is a Chattel in them which goes to their Executors because otherwise Debts should not be paid which is the special reason of that case for such an Estate made by Grant will be an Estate for life l. 8. 96. c. And in the case of retaining Land till a Rent be paid there the Land is taken but as a Distress till the Rent which is a duty issuing out of it be paid but in our case neither the person nor the Land is Debtor for no Legacy is devised to the Daughters the Devise is only that they shall hold the Lands untill
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
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