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
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
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
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.
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
of payment is past For though it be alledged that the Defendant hath enjoyed the House during the whole terme this may be not till after the Sute commenced 2. That this being a Sum in gross and no Rent 7 H. 6. 26. a. 34. f 4 H. 6. 26. h. 3 H. 4. cas prim 20 E. 4. 2. a. 34 H. 6. 2. a. séeing parcel only is demanded the Plaintiff ought to acknowledge the receipt of the residue as upon an Obligation And the Case being twice moved the Court did both times agrée it to be a Sum in gross and no Rent properly and that the Reservation ought to be by Déed 2. That it being a Sum in gross no Action would lye till the last day of payment incurred but yet upon the first motion a Rule was given that the Plaintiff should have his Iudgment supposing that it appeared in the Record that the whole terme was expired For then they did agrée that an Action would lye for the Rent due at one day but after upon those two Objections the Iudgment was stayed Nota This Contract is in the Realty and the Debt ariseth in respect of the Profits and therefore it séems an Action will lye before the last day and so is it ruled in 45 E. 3. 8. b. and admitted 14 H. 7. 2. h. And so Hale told me was his Opinion Leech versus Davys Trin. 23. 1870. IN Debt Debt upon a Bond of 100 li. Condition that the Defendant should appear in this Court to answer in a Plea of Trespass commenced by the Plaintiff and to satisfie the Damages he should recover The Defendant pleaded the Statute of 23 H. 6. and that he was attached and in custody and that the Bond was made for his Enlargement and so not his Déed Whereupon the Plaintiff demurred specially upon the conclusion of the Plea which ought to be Iudgment si action ' c. And therefore the Plea naught and so agréed Also it was agréed that the Statute doth not extend to a Bond made to the Plaintiff himself and so Latch said it was adjudged 30 El. betwéen Raven and Stockden Bernard versus Bonner IN an Ejectione Firmae Eject Firmae of Lands and 200 Acres of Wood in Stanmore in Com' Middlesex upon a Lease alledged to be made by the Earl of Rutland and Geo. Sutton Domin ' Lexington and others upon Not Guilty it was moved by Mainard upon the Evidence in a Trial at the Bar That Sutton was no Péer of the Realm of England but only an Irish Baron and so not the same Demise and the Case in Dy. 300. a. was cited But it was answered and resolved by the Court That forasmuch as the Issue here is not whether G. Sutton Dom ' Lexington did demise as it was in Dyer where his Title is made parcel of the Issue and therefore a failure but here it is non cul So that it is sufficient that it be the same person that did demise though misnamed And so it hath béen resolved in the Case of a Demise alledged by Sir Ralph Euer Dom ' Euer who was no Baron And in another Case of a Demise alledged to be made per J. S. Dom ' Sinclere who was an Irish Baron upon Not Guilty pleaded c. And the Evidence procéeding the Case was That Sir Thomas Lake being seized in Fée of the Premisses levyed a Fine to the use of Sir Nich. Fortescue for 41 years if Sir T. L. lived so long the remainder to his Wife for life the remainder to Sir Nich. for the life of T. L. with other remainder over Sir Nich. granted the Land totum statum suum to one Page and Ducke c. habendum for 60 years And after Sir Nich. demiseth the same Lands to the said Page and Ducke c. by Indenture for 60 years if Sir Tho. Lake junior or his Wife live so long Page and Duck by Indâ—nture reciting this last Demise assign and grant the said Terme ha bendum the Land totum statum suum during the residue of the said Terme of 60 years to Sir Tho. Lake And the Opinion of the Court was That by the Grant of Sir Nich. his whole Estate his remainder passed and the habendum repugnant because no other ceremony was requisite he himself being Tenant for years Then it was moved that there ought to be an Entry by him but that was agréed not requisite for the Statute executes the Estate actually and such a Lessee may attorn before Entry and the Case was the stronger because his terme was not sufficient to satisfie the Grant for 60 years Then it was doubted what effect the Assignment of Page and Ducke had because the terme recited was a Lease by Estoppel for the Lessor only for the Lessor then had nothing in the Land And it was agréed in this Case that if Lessée for Life accept of a Lease for years this is a Surrender of his Estate for Life Hodson versus Sir Anth. Ingram Hil. 23 Car. Rot. 968. IN an Action of Debt Debt upon a Bond with condition to perform Articles of an Indenture which recited that where certain persons were obliged to the Earl of Holland in eight Obligations which the Earl had assigned to the Defendant to his own use now it is agréed that the Defendant should assign the Obligations to the Plaintiff to the Plaintiffs own use And the Defendant Covenants that the moneys should be paid at the several days limited by the Bonds or within eight days after And the breach was assigned that the sum of 50 li. payable by one of the Bonds was not payd the Plaintiff upon the first of March which was the day limited by the Bond and Issue thereupon was found for the Plaintiff and Hale moved in arrest of Iudgment that the Replication was insufficient for it might be paid within the eight days after also that the Condition was for Maintenance and so the Bond void and Iudgment was stayed Faldo Pindar Hil. 23 Car. Rot. 594. IN a Replevin Replevin the Defendant avowed for Rent-charge granted by Fine sur concessit for the life of J. S. to the use of Tho. Faldo and his Assigns for the life of the said J. S. And the limitation of the use being traversed and Issue thereupon joyned upon a Trial at the Bar the evidence was that it was to the use of him his Heirs and Assigns for the life of J. S. And the Court directed that it should be found specially for because the Fréehold is intire it may be a question whether it was the same Fréehold Chappel versus Goodhouse Hil. 23 Car. Rot. 1727. SLander Slander You are a Buggering Rogue go home and bugger another Mare And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the words would not bear an Action because the Plaintiff is not charged with any act done But the Opinion of the Court was that the words would bear an
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