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
invaded the Realm with an hostile Army of men and with the same force did enter upon the Defendant's possession and him expelled and held out of possession from the 19 of July 18 Car. till the Feast of the Annunciation 21 Car. whereby he could not take the profits whereupon the Plaintiff demurred and the plea was resolved insufficient 1. Because the Defendant hath not answered to one quarters Rent 2. He hath not averred that the Army were all Aliens which shall not be intended and then he hath his remedy against them and Bacon cited 33 H. 6. 1. e. where the Gaoler in bar of an escape pleaded that Alien enemies broke the Prison c. and exception taken to it for that he ought to shew of what Countrey they were viz. Scots c. 3. It was resolved That the matter of the plea was insufficient for though the whole Army had been Alien enemies yet he ought to pay his Rent And this difference was taken that where the Law creates a duty or charge and the party is disabled to perform it without any default in him and hath no remedy over there the Law will excuse him As in the case of Waste if a House be destroyed by Tempest or by Enemies the Lessee is excused Dyer 33. a. Inst 53. d. 283. a. 12 H. 4. 6. so of an Escape Co. 4. 84. b. 33 H. 6. 1. So in 9 E. 3. 16. a Supersedeas was awarded to the Iustices that they should not proceed in a Cessavit upon a Cesser during the War but when the party by his own contract creates a duty or charge upon himself he is bound to make it good if he may notwithstanding any accident by inevitable necessity because he might have provided against it by his Contract And therefore if the Lessee covenant to repair a House though it be burnt by Lightning or thrown down by Enemies yet he ought to repair it Dyer 33. a. 40 E. 3. 6. h. Nota. Now the Rent is a duty created by the parties upon the reservation and had there been a Covenant to pay it there had been no question but the Lessee must have made it good notwithstanding the interruption by enemies for the Law would not protect him beyond his own agreement no more then in the case of reparations This Reservation then being a Covenant in Law and whereupon an Action of Covenant hath been maintained as Roll said it is all one as if there had been an actual Covenant Another reason was added that as the Lessee is to have the advantage of casual profits so he must run the hazard of casual losses and not lay the whole burthen of them upon his Lessor and Dyer 56. 6. was cited for this purpose Vide Co. 4. 82. g. that though the Land be rounded or gained by the Sea or made barren by Wild-fire yet the Lessor shall have his whole Rent And Iudgment was given for the Plaintiff Wheeler versus Walroone P. vel T. 18 Car. Rot. 600. By devise of all the rest of his Goods Chattels Leases Estates Morgages c. to his Wife passed but an Estate for life Crooke 3. part 447 449. 450. the reason In an Ejectione firmae Vpon a special Verdict the case was that one being seised of the Manor of D. and other Lands in Somersetshire by his Will in writing devised the Manor to A. for six years and part of the other Lands to B. in fee and then comes in this clause And the rest of all my Lands in Somersetshire or elsewhere I give to my Brother and the Heirs of his Body And the question was whether the reversion of the Manor passed or no for it was said that the word Rest did extend only to such Lands as were not devised before but it was adjudged for the Defendant that the reversion of the Manor passed by the devise Baker versus Edmonds Hil. 22 Car. Rot. 222. Action sur le Case In an Action upon the Case the Plaintiff declares That the Defendant was indebted to one Gode in the summ of 43 l. 1 s. for c. And being so indebted promised to pay him which Gode was indebted to the Plaintiff and became Bankrupt whereupon a Commission upon the Statute was sued forth and the Commissioners did assign debita praed ' Gode in quadam schedula continent ' praed ' summam 43 li. 1 s. to the Plaintiff c. the Defendant pleads that he made no such promise to Gode And by special Verdict it was found that the Defendant was indebted to Gode but in 41 li. 1 s. which he promised to pay and that the Commissioners assigned debita praed ' Gode mentionat ' in quadam schedula continent ' praed ' summam 43 li. 1 s. to the Plaintiff And if this be same promise that the Plaintiff hath declared upon they find for the Plaintiff And two Objections were made 1. That it is not the same promise because the Plaintiff hath declared of a promise to pay 43 li. 1 s. and the Iury find the promise to be but of 41 li. 1 s. That upon the whole Record it appears that the Plaintiff hath not made a good Title to his Action for he hath alledged the Assignment to be of a debt of 43 l. 1 s. whereas the debt was but 41 li. 1 s. And this being an entire thing will not pass by the Assignment of a greater sum But it was answered and resolved 1. That it is the same promise for if Gode himself had brought the Action he should have recovered upon this Verdict and the Assignment by the Commissioners vests the Debt in the Plaint And he hath the same remedy to recover as the Bankrupt himself had Dyer 219. g. 21 E. 4. 22. a. And the difference was taken between an Action upon the Contract it self c. for there if the party mistakes the sum agreed on he fails in his Action but if he brings his Action upon the promise in Law Br. Issue joyn 80. which arises from the Debt there though he mistakes in the sum he shall recover and so hath it been adjudged 2. The Assignment is not in question for the Issue and Verdict are concluded to the promise and so that which they find touching the Assignment is not material however the Assignment is not laid to be of such a sum as by that name for then it would have been a question whether good and the Court inclined that it would not have been good Mich. 23 Car. Banco Regis But the Assignment is laid to be of the Debts of Gode mentioned in a schedule containing that sum and so it was found by the Iury therefore the Court shall intend it to be in such a manner as that the Debt of 41 li. 1 s. might well pass thereby And after much debate Iudgment was given for the Plaintiff Munday versus Baily Trin. 23 Car. Rot. 83. or 82. IN an Assumpsit Assumpsit upon an
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
Statute of 27 H. 8. which reduces the possession to the Vse recites that by conveyances to Vse the King lost his escheats and purchases of Aliens c. l. 1. 124. a. Now Trusts being of the same nature at this day they are ruled according as Vses were at the Common Law and therefore if a Woman conveys a term in Trust for her self and takes Husband and dies he shall not have the Trust by survivorship but the Administrators of the Wife should have it 4. Inst 87. a. Witham's Case But Roll said that it hath béen since resolved that the Husband shall have it in that case And Mainard said that the Alien himself had no remedy in equity for the Vse at Common Law nor for a Trust at this day for he could not compell the Feoffees to execute it 2. If the King should have the Trust yet he cannot seise the Land by Law for the Alien himself had not that power his remedy if he should have any was only in the Chancery 3. The Land it self being Copyhold the King cannot have it 1. Because it is not transferrable by act in Law without the concurrence of the Lord for the prejudice that may accrue to him in losing his Fine c. 2. Because the King cannot perform the services incident to the Tenure and yet in default thereof the L. could not take advantage of the forfeiture as against the King 3. It would be an injury to strangers that should have right to the Copyhold for the King is not to be impleded in the Lords Court where only remedy is to be taken 4. The Estate is too base for the King to hold On the contrary it was said 1. That the King should have had a Vse limited to an Alien at the Common Law and by the same reason that he was to have the Land purchased by Aliens viz. That the Realm should not be impoverished by strangers and Vses at the Common Law were not properly things in action but Inheritances descendible by the rules of the Common Law and would have passed by grant or devise by the name of Hereditaments as Hale said And he said that the preamble of the Statute of 27 H. 8. is not to be intended as though the King should not have remedy for the profits when the Vse was discovered but that the Lands were so craftily conveyed that the Vse could not be discovered Now the case is the same of a Trust 2. The King be virtue of this Trust may seise the Land for though the profits only are given him by the Trust yet he hath not any direct means to be satisfied of those profits unless he may seise the Land And therefore 5 H. 5. 3. where a Manor with an advowson appendant was granted to the use of one who was after outlawed and upon an avoidance the King brought a Quare impedit and had a Writ to the Bishop And Hales said that 19 Jac. in Sir John Dacke's Case in Scaccar ' to whom the King granted a term to the use of the Lord who was attainted of Felony upon great deliberation with all the Iudges it was resolved and accordingly decréed that the Trust should be forfeited to the King and the interest of Sir John also 3. Now that the Estate of the Copyholder is fixed by the Custome there is the same reason for that as for any other Inheritance And this Term the Court took an exception to the Commission which was only to enquire what Lands c. the Alien had but no Capias in manus in it and therefore it was resolved that the seisure was unduly made and therefore they did not openly declare their opinion upon the matter in Law But Bacon said that an Alien at the Common Law could not compell the Feoffees to execute an Vse And Roll said that though the King should have the Vse yet he could not seise the Land it self by Law but by equity he might have a Decrée for the Land and so was Sir John Dack's Case And the Court doubted what Iudgment should be given the Verdict being found for the King And the rule was that cesset intratio judicii c. for they held that they could not give any Iudgment but afterward Termino Paschae 24 Car. the opinion of the Court being changed they directed the Case should be argued And Hale argued for the King that no Iudgment could be given against him because the Record of the Inquisition is still remaining in the Chancery and this Court hath no power to procéed but only to trial of the Issue and upon the Verdict for the very Record as to that is in this Court and yet he said that the Record after the Trial hath béen remanded into the Chancery and Iudgment given there but the tenour only of the Inquisition is here as appears by the Entry c. but if it had béen brought in per manus proprias of the Kéeper of the Great Seal then the whole Record had béen here and so Iudgment should have béen given upon the whole Record And he took this difference that when the tenour of a Record being removed the Court where the Original Record resides cannot proceed then the Court where the tenour is may procéed upon the tenour And therefore if the tenour of a Fine be certified upon a Certiorari out of the Tower or Treasury into the Chancery and sent into the Common Pleas by Mittimus Execution may be awarded there upon the tenour 39 H. 6. 4. a. So if the tenour of a Iudgment in a Writ of Annuity be certified out of the rescript in the Common Pleas into the Chancery and sent thither by Mittimus they may award execution there upon the tenour 34 H. 6. 2. d. because in those cases there are no other Iustices that can proceed upon the Record it self but where the Iudges where the very Record resides may procéed thereupon notwithstanding any tenour certified in such cases there can be no proceeding upon the tenour As if the tenour of a Iudgment in ancient demesn be certified in Chancery and sent by Mittimus into the Common Pleas no Scire facias lieth thereupon because the Court of Ancient Demesn may still procéed to execution upon the Record it self 39 H. 6. 3. h. c. So in our case the Chancery may still procéed to seisure upon the Inquisition affirming it to be good 14 E. 4. 7. a. And therefore this Court cannot procéed upon the tenour of it for thence might ensue a clashing of the Courts the one affirming it and the other quashing it and for these reasons he prayed that the former rule might stand But it was answered by Maynard and resolved by the Court that Iudgment ought to be given against the King because the whole Record is virtually here otherwise they should be bound up to the Verdict so that Iudgment should be given according to that though it appear upon the whole Record that the King had no
being taken to be void but that the time mentioned in both places being in Iudgment of Law taken to be void and as out of the Declaration it shall be taken to be out of the consideration of the Iury in taxing the damages and for this the Case in 20 H. 6. 15. was cited by Roll where a Trespass was laid with a continuando usque diem impetrationis brevis viz. 14. diem Febr. anno 17. whereas the Writ bare teste 12. Octob. anno 17. which was before the day alledged for the time of the continuance And yet the Plaintiff after a Verdict had his Iudgment And Hunt and Lawring's Case Hob. 284. a. where in Trespass c. per quod servitium amisit per longum tempus viz. per spatium 6 mens tunc proxim sequent ' And the Original bore teste within the six months and after a Verdict the Plaintiff had Iudgment for that the viz. was more then needs And Iudgment was given for the Plaintiff in the principal Case Tanner versus Lawrence Trin. 23 Car. Rot. IN an Assumpsit Assumpsit the Plaintiff declares That in consideration that the Plaintiff would buy certain pieces of Cloath for the Defendant's use the Defendant promised that he would give him 2 s. for every piece that he should so buy and averrs that he bought 100 pieces for the Defendant's use for which he ought to have 10 li. and alledges a special request of the said 10 li. to be paid by the Defendant according to his promise And upon non Assumpsit pleaded and a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Plaintiff hath no averred that he gave notice to the Defendant how many pieces of Cloath he bought for him to which it was answered that this special request to pay 10 li. according to his promise doth imply a giving notice of what he bought But it was resolved that notice is necessary in this case and not supposed by this special request for the Defendant cannot tell that so much is due as the Plaintiff requires unless he had notice of what Cloath he bought for him And Iudgment was given against the Plaintiff Brooke versus Brooke Trin. 23 Car. Rot. 580. IN Debt Debt upon a Bond of 40 li. with Condition That if the Obligor at or before the Feast of St. John Baptist next following the date should make an absolute estate of Inheritance to the Obligee of such Lands then c. the Defendant pleads that after the making of the Bond at all times before and at the said Feast of St. John Baptist he was ready upon the Land to make such an Estate to the Plaintiff c. And upon Demurrer it was adjudged for the Plaintiff because the Defendant ought to have given the Plaintiff notice that he would make him such a conveyance to the making whereof the presence of the Plaintiff was necessary but if the Condition had been for the making of a Feoffment then for that a day certain was appointed the plea had been good for the Plaintiff at his peril ought to attend at the day Vide Co. 5. 22. g. Parmenter versus Cressey Trin. 23 Car. Rot. 1034. IN an Assumpsit Assumpsit the Plaintiff declares That in consideration of twelve pieces of Stuff of the value of 42 li. 15 s. delivered by the Plaintiff to the Def. the Def. promised to deliver to the Plaintiff so many Pipes of Sack which the Defendant then had lying in a certain Cellar of a stranger in London as should be of the value of the said Stuff per praefat ' querent eligend ' And the Plaintiff averrs that at Norwich he did require the Defendant deliberare vinum praedict ' praefat ' querent ' ad eligendum so many of the Pipes as should be of the value of the Stuff c. And after a Verdict of the Plaintiff upon non Assumpsit pleaded upon motion in arrest of Iudgment it was so resolved 1. That a special request is necessary in this case because the Defendant cannot deliver the Wine in this case before the Plaintiff hath made his election and there is no reason that the Defendant should require the Plaintiff himself to make his election as he ought to doe if the promise had been to deliver them to a Stranger Then it was objected that the request was not well made 1. Because it was made at Norwich where the Defendant cannot deliver the Wines 2. Because the request was to deliver the Wines whereas the Defendant is not by his promise to deliver them till the Plaintiff shall have made his election But it was resolved that the request was well made for 1. The Plaintiff must make his request where he can meet with the Defendant and thereupon the Defendant ought to appoint a reasonable time when he will be ready to goe with the Plaintiff to the Celler that he might make his election 2. The request in respect of the manner was well for he hath directly performed the agreement which was to deliver them to the Plaintiff to be chosen and therefore it is as much as if he had required him to perform his promise which must be by shewing the Plaintiff the Wine in the Celler to the intent that he might make his choice which is not to be of the species of Sack viz. whether Canary or Sherry c. for then indeed the Plaintiff should have made his choice before he could have requested the delivery but of the goodness of it And therefore he must tast the Wine as Roll said and Bacon did not deny it before he need make his election And upon good debate the Plaintiff had his Iudgment Gurman versus Hill Pasc 23 Car. Rot. IN Debt Debt upon Bond with Condition to perform an Award of all Controversies Vpon nullum arbitrium pleaded the Plaintiff set forth an Award de supra praemissis that the Defendant should pay so much to the Plaintiff in satisfaction of all Controversies between them till the day of the Award made And upon great debate made it was adjudged a good Award for the Court shall not conceive any new Controversie arisen between the Submission and the Award unless the Defendant shews it And the rather because it was pleaded to be de supra praemissis which carries an intendment of an Award proportionable to the Submission And Browne and Goffee's Case Hob. 190. was cited accordingly Hil. 14 Jac. Rot. 593. C. B. the same Iudgment given between Paine and Lee. Mich. 23 Car. Banco Regis Paradine versus Jane Hil. 22 Car. Rot. 1178 1179. IN Debt Debt the Plaintiff declares upon a Lease for years rendring Rent at the four usual Feasts and for Rent behind for three years ending at the Feast of the Annunciation 21 Car. brings his Action The Defendant pleads that a certain German Prince by name Prince Rupert an alien born enemy to the King and Kingdom had