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
because she might have many Sons But yet upon good consideration Iudgment was given for the Plaintiff for the Court shall not intend that Mary had any other Sons besides the Plaintiff And Roll cited a Case where one said your Landlord Henley is a Thief and laid his Declaration only with an Innuendo of the Plaintiff then Landlord c. and adjudged good But in another Case where one said your Landlord without a Surname is a Thief in such an Innuendo it was after great debate the Court being at first divided in opinion adjudged naught But there if the Plaintiff had averred that he to whom the words were spoken had no other Landlord it had been good Vide French and Edward's Case su 3. More versus Clypsam IN a Replevin Replevin the Plaintiff declares That the Defendant cepit centum oves matrices vervices of the Plaintiffs The Defendant avows that his Father was seised in fee of the place where c. and died seised and that the Lands descended to the Defendant as Son and Heir by virtue whereof he entred and was seised in fee and took the Beasts damage feasant the Plaintiff makes a reply and concludes with a traverse absque hoc that the Defendant at the time of the taking was adhuc est seised in fee of the Land and issue thereupon was found for the Plaintiff And it was moved in arrest of Iudgment that the Traverse was naught 1. Because the title of the Avowant is not answered for that the dying seised of the Father and the descent and the seisin of the Avowant is but a conclusion upon that 2. Because the Traverse is larger then the Avowry for adhuc est refers to the time of the pleading which is more then is alledged or then is material To the first it was answered that though it be not formal yet it is substantial enough for if the Son were not seised there could be no discent to him and therefore it is made good by the Verdict and the Court inclined to this opinion But the other exception was holden to be material Then an exception was taken to the Declaration because it is for 100 Ewes and Wethers and it doth not appear how many there are of Ewes and how many Wethers and the Sheriff is bound to make deliverance of the one sort and of the other for his delivery must be according to the Writ And though he may receive information from the parties so that it is a good return to say nullus venit ex parte querent ' ad ostendend'averia c. yet he is not bound to require it but ought to have sufficient certainty within the Record And for this cause after great debate Iudgment was given against the Plaintiff but it was agreed that oves without addition had been good enough and the Sheriff might have delivered the one sort and the other But if the Writ be for oves matrices the Sheriff cannot deliver Wethers so if it be for Black Horses the Sheriff cannot deliver White but is subject to an Action of Case Now there being some Ewes and some Wethers and the number not appearing the Sheriff is left at uncertainty and upon the same reason a Formedon of 100 Acres of Meadow and Pasture hath been adjudged naught as Roll said Com. Northumb. vers Green Trin. 23 Car. Rot. 1198. IN Debt Debt for Rent the Plaintiff declares That one Cross made a Lease for years to the Defendant rendring Rent payable half yearly who granted the reversion to the Plaintiff and such a day which was the day wherein the Rent was due the Defendant attorned and for three years Rent and a half which included the Rent due the day of the attornment the Action was brought and upon nil debet and a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Rent was payable to Cross before the attornment for that shall be taken if worst for the Plaintiff to be after Sun-set but it was disallowed for the Court shall not intend it and if they should the Verdict supplies the averment of the contrary And both the Iudges said that if a Writ abate one day and another Writ is purchased which bears teste the same day it shall be intended after the abatement of the first Caly versus Joslin Uxor ' Trin. 23 Car. Rot. 1282. IN Debt Debt for Rent upon a Lease for years against the Husband and Wife Executrix which was laid in the debet and detinet Vpon plene administravit pleaded and a Demurrer thereupon the case was well debated by reason of contrary resolutions for Hargrave's Case was reversed in the Exchequer Co. 5.31 because the Action was in the debet and detinet but afterwards 7 Jac. between the Lord Rich and Frank. in C. B. upon great debate it was adjudged good in the debet and detinet And the like Iudgment was given 9 Jac. in C. B. in Sir Henry Carye's Case And after that Pasc 17 Jac. Rot. 346. B. R. between Paule and Moody it was adjudged good in the detinet only And the like 7 Car. in the Common Pleas and the same year in this Court between Smith and Nichols and the reasons of these contrary opinions was the inconveniency of the one side and the other for in as much as the Executors cannot waive the Term it were hard if the Rent should exceed the value of the Land and they having no assets that they should be charged in the debet of their own proper Goods and yet if the Action must be brought in the detinet only where fully administred were a good plea then may they retain the Land and with the profits thereof satisfie Debts upon specialty whereby the Lessor should be defeated of his Rent For the avoiding of which inconveniencies it was resolved that they may be charged in the debet and detinet for prima facie the Land shall be intended to be of greater value than the Rent and if it be otherwise Mich. 23 Car. Banco Regis Gilbert versus Stone Trin. 17 Car. Rot. 1703. IN Trespass Trespass for breaking of a House and Close the Defendant pleaded that 12 homines ignoti modo guerrino armati tantum minabantur ei quod de vitae suae amissione dubitabat and after requirebant compulsabant the Defendant to goe with them to the House quodque ob timorem minarum per mandatum compulsionem dictorum 12 hominum he did enter the said House and returned immediately through the said Close which is the same Trespass c. And upon Demurrer Hob. 134. c. without argument it was adjudged no plea for one cannot justifie a Trespass upon another for fear and the Defenant hath remedy against those that compelled him Also the manner of the pleading was naught because he did not shew that the way to the House was through the Close Mark versus Cubit Pasc 23 Car. Rot. 376. SLander
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
And if it were his Deed modo forma prout c. was referred to the Court. And Maynard argued for the Plaintiff 1. Inst 185. b. Dyer 133. h. That the Plaintiffs might declare as upon a Bond made to the Testator only because the Duty accrued to him only by survivorship And cited 35 H. 6. 38. h. where a Lease was made to two persons rendring Rent and one dying Debt was brought against the survivor as upon a Lease made to him only so where two Iointenants were joyned in a Lease and one released to the other in an Action of Waste he counted of a Lease made by himself only and adjudged good 46 E. 3. 17. c. 33 H. 6. H. 6. E. 3. 12. 4. h. so it is where a right only survives as Mich. 18 E. 2. in a Case not printed 2. Infants Iointenants joyned in a Feoffment and one died the survivor brought a dum fuit infra aetatem and declared that the Tenant had not the land nisi ex dono of the Demandant dum fuit infra aetatem And the Tenant pleaded in abatement that it was conveyed to him by them both the Demandant replied that the other was dead and adjudged for the Demandant Note the same Law holds where a charge survives as if two joyn in a Bond the Obligee may have Debt against the one only And it was no plea for him to say it was made by him and another unless he say he is in full life as appears 28 H. 6. 3. c. fu 11. a. But where nothing survives there the Case ought to be alledged as the truth was as if two Iointenants make a Feoffment and the one dies the Feoffor cannot plead this as a Feoffment made by the survivor only Otherwise where a Feoffment is made to two and one dies 14 E. 4. 1. h. 3. The matter of variance goes but in abatement and therefore cannot be pleaded in Bar also non est factum is no plea in the Case And Whelpdale's Case l. 5. 119. was cited and Iudgment was given for the Plaintiff without further argument Nota if the Defendant in this Case had demanded Oyer of the Deed and caused it to be entred in haec verba he might have demurred to the Declaration as should seem by 36 H. 6. 16. d. g. 32. a. l. 5. 76. e. And the Court ex officio ought to have abated the Bill So Note the difference And see Blackwell and Ashton's Case su 11. a. Royston versus Cordrye Trin. 23 Car. Rot. 1677. IN an Action of Debt Debt brought against an Executor upon a Lease for years made to the Testator for Rent due after his death in the detinet after a Verdict for the Plaintiff quod detinet it was moved by Hales in arrest of Iudgment that the Action ought to have been in the debet and detinet for the reasons in Hargrave's Case l. 5. 31. for nothing shall be Assets but the surplus of the value of the Land exceeding the Rent And therefore the profits of the Land proportionable to the Rent are taken to his own use and therefore he is to be charged as for his proper Debt and it cannot be presumed that the Land should be of no value but contrarily that they should be of greater value than the Rent And therefore in an Avowry upon an Abbot for Rent he cannot disclaim generally unless he shew that the Land is of less value then the Rent 43 Ass pl. 23. 16 H. 7. 2. so that if the Land here had been worth nothing or of less value than the Rent the Plaintiff ought to have shewen it in his Declaration for this cannot be made up by the Verdict for besides that the intendment is too remote to be supplied for which see King and Somerland's Case su 9. a. the Verdict is true though it be otherwise for he that is said debere detinere may well be said detinere 2. The Executor is now charged as Ter-tenant and not upon the privity of Contract with the Testator and therefore the Action will not lie against him after Assignment and for the same reason it ought to be brought where the Lands lies so that he ought to be charged in the debet and detinet in respect of the Land and the profits and not in the detinet as upon the Contract But yet upon debate Iudgment was given for the Plaintiff for the Executor demands his interest whereby the Charge accrues from the Testator so that he may answer the Rent out of the Testator's Estate and the sole inconvenience is to the Plaintiff himself who waives his advantage to demand satisfaction out of the Estate of the Defendant and contents himself with what the Testator's Estate will afford and therefore it was never doubted but that the Action might be brought in the detinet only but it hath been much doubted whether it might be in the debet and detinet Vide Caly and Joslin's Case su 15. Also Roll said that in many places the Land becomes of no value by reason of the troubles and then he ought to be charged in the detinet onely And the Verdict doth supply this Intendment Hil. 23 Car. Banco Regis Page and Harwood PAge and Harwood and one were indicted at the Assises at Nottingham upon the Statute 1 Jac. 8. for stabbing one And the Indictment Indictment was that stabb'd him and Page and Harwood were present abetting c. and contra formam Statuti and all there were found guilty contra forman Statuti and was hanged in the Countrey but Roll doubted whether these two were within the Statute and therefore adjourned them hither And Walker produced a President 16 Car. where one Welsh and five others were indicted at the Sessions in the Old Baily upon this Statute for the death of one Swinnerton and because all five were present and it could not appear upon the Evidence which of them made the thrust Bramston Chief Iustice Barkley and Jones directed the Iury to find them guilty of Manslaughter only at the Common Law for though in Iudgment of Law every one that is present c. is principal so that the Indictment may recite that any of them did make the thrust and the Iury should have found them equally guilty at the Common Law yet in construction of this Statute which is so penal it shall be extended only to such as really and actually made the thrust and not to those which by construction of Law only may be said to make it for the end of the Statute was to restrain the rage and cruelty of such persons as would suddenly stab another And accordingly it was resolved in this case that the offendors should have their Clergy Then another question was made upon the Indictment which is contra formam Statuti and accordingly they were all found guilty by the Iury whereas it appears that these are not guilty within the Statute But it was answered and
Action because they imply an act done And Roll said that where one said Where is that long lock't shagg-hair'd murdering Rogue And a stranger asked him who do you mean He said Greene of Fauseet the words were judged actionable so he said where one said Bring home the Cushion you stole the words were adjudged actionable But the Iudgment was stayed for further advice Dent versus Scott Trin. 22 Car. Rot. 1151. IN an Action of the Case upon an Indebitatus Assumpsit for Wares it was found by special Verdict Acc'on sur Case that the Wares were sold to the Defendants Wife for convenient Apparel which she wore and if c. And the Opinion of the Court was clear for the Plaintiff for the Wife may charge the Husband for Necessaries as Apparel Dyet and Lodging in case that the Husband doth not provide them for her But if the Husband allow a stipend to the Wife for these things and it be paid her then they held she could not charge him And Roll said that this was endeavoured to be proved at the trial and because it could not he would have had the Iury found generally for the Plaintiff And Bacon said that he and the other Iudges have lately certified the Lords in Parliament accordingly but for a flaw in the Declaration which was in considerat ' quod venderet deliberaret and no averment of any sale or delivery Iudgment was given against the Plaintiff because the Declaration was insufficient and so entered Note also that the promise in this Case is laid to be made by the Husband and the sale and delivery made to him but then it must be deliberasset for if it were in consideration quod venderet deliberaret to him then it may be questioned whether a Sale and Delivery to the Wife would make good the averment Dunsh versus Smith Hil. 23 Car. Rot. 37. IN an Action of Debt Debt brought by an Executor for the arrears of a Rent-charge upon the Statute of 32 H. 8. The Plaintiff declares that the Defendant in the life of the Testator did enter into the Land out of which the Rent was issuing and occupied it and took the profits thereof by the space of five years and demands the arrears of the Rent for the time And after a Verdict for the Plaintiff Mainard moved that the Action will not lye for the arrears against the Occupiers for the Statute gives it against the Tenants of the Land To which Hale answered That at the Common Law the Action lay against him that took the profits of the Land and against the Husband that was seized in right of his Wife C. 4. f. 49. 2. That this Action is given in lieu of a Distress and the Beasts of the Occupiers were chargeable to the Distress 3. That it would be convenient that the Plaintiff should be compelled to inquire out in whom the Estate was of right But Iudgment was stayed And Roll doubte◠of the Case but inclined against the Plaintiff Pasc 24 Car. B. R. Harvy versus Thorne Pasc 24 Car. Rot. 472. IN an Action upon the Case Case against an Executor the Plaintiff declares that upon a treaty of a Marriage it was agréed betwéen the Plaintiff and the Testator that he should pay to the Plaintiff 100 li. and whilst that should be unpaid he should pay the Plaintiff 10 li. per Annum which Agréement was made Anno 1618. And the Action was brought for all the arrears by the space of 28 years The Defendant pleaded the Statute of Limitations whereupon the Plaintiff demurred And upon the motion of Hale who advised the Attorney to bring the Action for all the arrears that it appeared that all could not be barred by the Statute Iudgment was given for the Plaintiff no Counsel being retained in the Cause for the Defendant Loder versus Hampshire IN Debt Debt upon a singel Bill of 50 li. the Defendant after Imparlance pleaded That after the last continuance the Defendant had paid the Plaintiff 5 li. parcel of the 50 li. and demanded Iudgment of the Bill Whereupon the Plaintiff demurred and because the Defendant did not alledge that he had an Acquittance which he ought to produce At the motion of Earle Iudgment was given against the Defendant that he should answer over c. C. 5 E. 4. 139. a. Dod versus Robinson Trin. 23 Car. Rot. SLander Slander The Plaintiff declares that the last of March 13 Car. he was Instituted and Inducted into a Parsonage in Ireland and executed the Office of a Pastor in that Church by the space of four years after and the Defendant said of him He was a Drunkard a Whoremaster a common Swearer and a common Lyar and hath preached false Doctrine and deserves to be degraded And after a Verdict for the Plaintiff it was moved by Hale in arrest of Iudgment 1. That the words in themselves are not actionable because the Crimes charged impute no Civil or Temporal damage to the Plaintiff for which he may have Action But the Opinion of the Court was clear for the Plaintiff in that point for that the matters charged are good cause to have him degraded whereby he should lose his Fréehold which is a temporal damage to him Then it was objected That he did not lay that he was Parson when the words were spoken To which it was answered by the Court That it should be intended he continued Parson because he had a Fréehold in the Parsonage during his life But it was further urged That inasmuch as he hath laid a special time during which he exercised the Office of a Pastor it shall not be intended that he continued so longer then himself hath laid it And of this the Court doubted but inclined for the Plaintiff Morefield Webb Pasc 23 Car. Rot. 51. Acc'on fur Case IN a Writ of Error upon Iudgment in the Palace Court at Westminster In an Action upon the Case upon a Promise and a Verdict for the Plaintiff It was moved for Error that the Habeas Corpora Jurator̄ was not returned served but that there was a Pannel of the Names of the Iurors annexed to it which Case is aided by the Statute of 21 Jac. which aids when there is not any return upon the Writs of Ven. Fac. Hab. Corpora et Distring so as a Panel of the Names of the Iurors be returned and annexed to the said Writs And two Objections were made 1. That this Statute extends only to such by Writ and in this Court it is by Precept and not by Writ 2. It appears that this Court was erected by Letters Patents 6 Car. which was after the Statute But it was resolved 1. That it is within the Intention of the Statute which doth provide amendment in any Action Suit Plaint Bill or Demand And Roll said that it is questionable if this Statute extends to the Grand Sessions in Wales and Iustice Jones was angry that it was made a Question
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
holds over his Term and pays his Rent quarterly as before he becomes Lessee at Will 4 Tenant at Will paying quarterly begins a new quarter over he shall pay that Rent although he determine his Will before the quarter expired ibid. Legacies Difference between Debts without specialty and Legacies 39 Executors not compellable by the Ecclesiastical Court to pay Legacies except Legatees give caution to repay them upon contingent covenants broken 39 Legacies devised in specie not to be taken without assent of the Executors ib. Where a Covenant is broken before the delivery of Legacies the Administration shall work a Devastavit 39 40 How far the Common Law takes notice of giving remedy to recover Legacies 40 M. Misnosmer IN a Demise if it appear to be the same person that demised though misnamed it is sufficient otherwise where the name is part of the Issue 59 N. Notice WHere notice is to be given to the Defendant in an assumpsit for so many goods bought by the Plaintiff for the Defendants use at such a rate 24 Condition of a bond to make an estate of inheritance to the obligee by such a day the Defendant ought to give the Plaintiff notice if for the making of a feoffment otherwise for the Plaintiff at his peril ought to attend 25 Where a Broker hath power to sell goods and the Owner sells them and afterwards the same day the Broker sells them he shall not be liable to an Action for detaining though demanded without notice given of the first Sale 24 Promise to pay so much as I. S. was damnified and good without giving notice how much 21 Promise to give the Plaintiff 2 s. for every Piece of Cloth he should buy and averrs he bought 100 Pieces for which he demands 10 l. not good without notice given to the Defendant 24 O. Obligation OBligation void because the condition was for maintenance 60 Condition to save the Obligee harmless concerning buying certain Goods at such a price this extends not to the Price but the Title 95 Office Where the Kings title is found by one Office it is a Record intire of it self and shall not be taken as it stands in comparison with another Office 30 Where the Kings intrest shall commence by Office before Seisure 30 Ouster le main Where land shall continue in the Kings hands for a third part till an Ouster le main sued though the Heir be dead 30 Where an Ouster le main is necessary a lease for years made before is not good ib. P. Perjury ONe convicted for Perjury and Fined 10 l. although there was no malice in it 79 Plea In Debt for Rent where it is no good Plea that Alien Enemies entred and expelled him 27 The difference where the Law creates a duty or charge and the party is disabled to perform it without any default in him and when the party by contract creates a duty upon himself ibid In Debt upon Bond the Defendant pleads the Statute of 23 H. 6. and that he was in custody and that the Bond was for his enlargment and concludes non est factum which ought to have been judgment Si Actio c. and held naught 58 In a Debt upon a single Bill the Defendant Pleads payment of part after imparlance and darrein continuance and not good without acquittance shewn 63 65. Where a Plea concludes in abatement it is not peremptory but if a Plea in abatement be pleaded in Bar it is peremptory ib. A Plea pleaded after Imparlance and Issue tendred upon it yet it is not Peremptory upon a Demurrer ib If after issue joined the Defendant pleads a Plea in abatement this is peremptory as well upon Demurrer as by Verdict 66 The diversity between a Plea in abatement and a Plea to have Aid ib Vpon fully administred pleaded and the Issue whether Assets or no and Assets found for part only yet judgment to recover the whole shall be good 37 Accord a good Plea in Covenant 39 A Bond made to two and the Survivor brings an Action in his own name non est factum is no Plea 42 Plene Administravit a good Plea to a charge by Judgment 48 Where an argumentative plea is insufficient upon a general Demurrer ib. Per dures where it shall be a good Plea to avoid a Bond fraudulently obtained 92 Of a Bond made in one County and the Declaration alledged in another upon the Statute of 6 R. 2. 17 Prohibition After administration granted the Ordinary hath not power to compel the Administrator to make distribution and if he go about to repeal the Letters for not doing it a Prohibition lyeth 56 Promise Vide Assumpsit R. Recognizance A Scire facias against three Baylees upon a Recognizance acknowledged jointly and severally and not good Otherwise in debt upon a Bond for there the Defendants ought to shew that the parties were in full life at c. 21 Releas In debt upon a Bond of 200 l. for payment of 104 l. a Releas of a Bond of 200 l. for the Payment of 100 l. is not good although it be averred there is no other Bond made by the Defendant 71 Rent Debt by an administrator for Rent upon Assignment of a term for years by Deed adjudged no Rent but a sum in gross 57 Debt upon the Statute of 32 H. 8. against Occupiers for arrears of a Rent charge 62. Lease reserving 7 l. Rent and there is 3 l. more behind the Lessor cannot demand 10 l. whereby to take advantage of a Condition because its an intire sum 95 Request Request where to be made by the Defendant before the Plaintiff is to make his Election 25 Request where it shall be well made 25 26 S. Sewers COmmissioners of Sewers Quaere if they may sell a Distress 92 Statutes To what Courts the Statute of 21 Jac. and the Statute of Jeofails shall extend 64 Stat. 1 Jac. 8. of Stabbing how construed where several are indicted and it doth not appear who gave the thrust 44 Surrender If Lessee for life accept of a Lease for years this shall be a Surrender of his Estate for life 59 Survivor A bond made to two and one survives he may bring the Action in his own name so if a charge survive otherwise where nothing survives as in feoffment 42 T. Trespass One cannot justifie a Trespass upon another for fear 35 Trover Trover will lie for money delivered by the Plaintiff to the Defendant to keep though not in Bags 91 Trust Vide Uses V. Varians IN an Action on the Case where one of the Jurors names was Lancester and in the Record it was Lancaster and ruled no Variance 91 Venire facias See Writs Verdict Where a Verdict shall not make a declaration good which wants convenient certainty 19 Where the Declaration varies from the Verdict and good 28 Where in an Action on the Case for words and shall not be supplied by exceptis his verbis 31 Uses What they were at the Common Law 14 Trusts are at this day ruled as Vses were at Common Last 15 Where the Husband shall have a Trust by Survivorship 16 Where a Trust of Copyhold land is forfeited to the King he shall have the Land it self 15 W. Wast TEnant for life the remainder for life and Tenant for life cuts down Timber trees he in the reversion may seise them although he cannot have an Action during the life of him in remainder 81 But where a Lease for years is made without Impeachment of wast such exception is good 82 Lessee for life with a contingent remainder is no bar to him in reversion to bring an Action of wast 16 Lessee for life cuts Timber trees he in Reversion to bring a Trover though he did not seise them ib. Lessee for years cuts down Timber trees and some distance after carries them away Trespass vi armis lies and in such case felony may be committed 83 Construction of Words Per unam acram ligni not only the the word but the soil it self shall pass 20 If where it shall be taken as a limitation subsequent 20 Where Postea shall refer to the time immediately precedent 23 Where Scilicet is but explanatory and for instance and cannot contradict any thing that is precedent 23 24 The word Rest in a devise how construed 28 The construction of the word for in an Action on the Case for words 31 Where the latter words qualifie the former 11 Where a man grants his land totum statum suum habendum for sixty years the habendum shall be construed repugnant 59 Lessee for life with power to make Leases for twenty one years at ten pounds per an payable at Mich. or ten days after whether these words are to be taken in sensu diviso or conjuncto 90 Habendum a die datus and for three years from hence forth how to be construed in a Lease for years 7 Decimae garbarum what is comprehended therein 80 Where words make a contingency by the intention of the party 8 Where words are general in a Bond yet may be limited 10 The difference between the words and and for Writs If a Writ abate one day and another Writ is purchased bearing Teste the same day it shall be intended after the abatement of the first 34 Where an alias Venire facias shall be awarded and not a Venire facias de novo 18 Where a Venire facias shall be awarded for insufficiency of the verdict 31 Scire facias to be brought where the Recognizance was taken but the usual entry in Banco Regis is to express before what Judge it was taken but no place where 13 Venire facias in Chancery retornable in Banco Regis 14 Where abundans cautela makes not the Writ vicious ibid. FINIS