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
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
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
T. 22 Car. Rot. IN an Assumpsit the Plaintiff declares that the Defendant in consideration of a Marriage Promise inter alia not good ought to set forth the whole Promise c. Inter al' promisit de payer tant puis Verdict pro Querent ' Judgment fuit done vers luy because he ought to set forth the whole promise which is entire Hinacre versus Lemon M. 22 Car. Rot. SLander Words charged with procuring Felony good The Defendant said of the Plaintiff she caused Mr. Langly's Servant to steal and purloin 30 and received them and sold them which was the cause why his Master broke and upon a Verdict and Iudgment in the Common Bench in a Writ of Error the Iudgment was affirmed because she is charged with procuring of Felony and receiving stollen Goods Haines versus Finch Debt upon a promise for bringing up Children good without saying they were the Plaintiff's AN Executor brought an Action of Debt upon a promise made with the Testator for bringing up of Children and Teaching and after a Verdict for the Plaintiff upon nil debet pleaded it was moved that Debt would not lie in the Case because it was not layed that they were the Plaintiff's Children But the opinion of the Court was for the Plaintiff for Debt will lie upon a promise made by a stranger Debt upon a promise of money to marry a poor Virgin as in N. B. 122. k. If one promiseth money to another for marrying a poor Virgin Debt lieth but the parties agréed and so no Iudgment was given And Roll said that in Trevilian's Case Servant retain'd an Attorney for his Master and promises him his Fees Debt lies against the Servant where a Servant retained an Attorney for his Master and promised he should have his Fées an Action of Debt was brought thereupon by the Attorney against the Servant in C. B. and the Plaintiff recovered but upon Error in this Court a rule was given for the reversal of the Iudgment notwithstanding the like President shewn in Bradford's Case but he said that the Iudgment was not reversed upon the Roll and his opinion was that the Iudgment was good Edwards versus French T. 22 Car. Rot. 675. Slander whereby he lost his Marriage And no agreement of Marriage or mutual Love alledged and the words were spoken only in the innuendo yet good SLander The Plaintiff declares that whereas there was a Communication of Marriage betwéen the Plaintiff and one Mary Hicks who was worth 300 li. and that she deferred Marriage with the Plaintiff q. d. that verisimile fuit that they should be Married the Defendant in the hearing of divers persons said Mary Hicks is Mr. Edwards his Whore innuendo the Plaintiff whereupon Mary Hicks was refused to Marry the Plaintiff And after a Verdict for the Plaintiff it was moved that there was no agréement of Marriage nor mutual love alledged betwéen the Plaintiff and M. H. 2. That the words were not alledged to be spoken of the Plaintiff but only in the innuendo yet upon good debate Iudgment was given for the Plaintiff Osborne versus Brooke Trin. 22 Car. Rot. 677. SLander Captain Osborne is forsworn Slander Is forsworn and his Oath appears upon Record Act ' gist and his Oath appears upon Record The Defendant as to the first words pleads not guilty and as to the latter justifies that he was forsworn in finding of an indictment of Forcible Entry and upon de injuria sua propria as to the justification both issues were found for the Plaintiff And upon motion of Latch in arrest of judgment First if the Words themselves were actionable Secondly if the Iustification made them good and actionable and upon great debate judgment was given for the Plaintiff in both points First the Court did take the words being spoken together to be the same as if he had said he is forsworn upon Record Justification explains the Parties meaning to be of perjury which is as much as to call him perjured Secondly his justification hath explained his meaning in them to be of perjury And Tuke and Condie's Case was cited for this where the Defendant in an Action brought for saying You are forsworn justified that he was forsworn in an indictment of Battery and the issue upon the justification being found for the Plaintiff he had judgment in Common Bank which was afterwards affirmed in this Court and now allowed for good Law by both the Iudges yet two Objections were made by Latch against this judgment First that the Declaration of it self being insufficent in substance could not be made good by the Defendant's bar Secondly that the ground of the Action is the disgrace that the Plaintiff incurs before the Auditors now they must understand the words according to the common acceptation as they were spoken and not in the sense wherein the Defendant justifies the speaking of them and he cited a Case 21 Jac. betwéen Wheeler and Abbot where in Slander for saying Thou hast stollen my Piece innuend ' a Gun the Defendant justified that the Plaintiff did steal his Gun and though the Iustification which shewed the Defendant's meaning to be of a Gun was found against him and Piece was a word of an incertain signification which could not be explained by the Innuendo Iudgment was given against the Plaintiff for the Reasons aforesaid Pasc 23 Car. Banco Regis Water's Case Ten in common makes a Wall against the house to prevent the others getting in no disscisin IN an Assise of a House in Westminster upon null ' tort c. pleaded and a tryal at the Bar the Evidence was that there were two Tenants in common of the House and one of them nailed up the Doors and made up a Wall against the House to prevent the others getting into the House and this was resolved no Disseisin and so the Iury were discharged But the point in Law would have béen that a Tradesman purchased Lands in fée to himself and his Wife and after became Bankrupt c. whether the Commissioners had power to sell so as to bar the Wife Taylor versus Usherwood Hill 18 Car. Rot. 87. Demise IN an eject ' firmae upon a special Verdict the Case was That one devised Land to one Elizabeth for her life and after her death to the eldest Heir male of her body and to the Heirs males of such Heir male so that he be of twenty four years of age at the time of the death of Elizabeth and if he be not of twenty four years of age at that time then that the Husband of Elizabeth shall hold them till he comes to that age and the profits to be disposed among the younger Children Elizabeth dieth her Heir male within the age of twenty four years and after he attained to that age and entred and demised to the Defendant And Hales argued for the Defendant That if the demise had rested in
certain Lands c. promised to pay to the Plaintiff 15 li. annuatim pro quolibet anno during four years if J. S. should live so long and after the first year the Plaintiff brought his Action and upon non Assumpsit had a Verdict and Iudgment though it was not averred that J. S. lived so long for the Action lieth after the first year Si being a limitation subsequent Shaw versus Huntly Trin. 21 Car. Rot. 321. IN Debt Debt against an Executor upon plene administravit pleaded and Issue thereupon the Iury found that the Testator devised that his Executors should sell certain Lands Mich. 23 Car. Banco Regis Blackwell versus Ashton Hil. 22 Car. Rot. 636. A Scire facias Scire facias was brought against three Bailees upon a Recognizance acknowledged by them and the principal joyntly and severally and upon a demurrer the Writ abated by good advisement because this being founded upon a Record the Pl. ought to shew forth the cause of the variance from the Record as that one was dead but if an Action be brought upon Bond in the like case there the Defendants ought to shew that it was made by them and others in full life not named in the Writ because the Court shall not intend that the Bond was sealed and delivered by all that are named in it and therefore the Defendants cannot demur upon it though it be entred in haec verba And so it is if an action be brought upon a Recognizance taken before the Mayor and Recorder c. by the Statute of 23 H. 8. because there the parties must seal and so hath it been adjudged Dyer 227. e. 28 H. 6. 3. c. 36 H. 6. 16. Fyner versus Jeffrys Trin. 23 Car. Rot. 1599. IN an Assumpsit Assumpsit the Plaintiff declares That where one Richard Brand had assaulted and beaten the Plaintiff c. the Defendant in consideration that the Plaintiff would not prosecute the said R. B. c. promised to pay him so much as the Plaintiff was damnified and averrs that he hath not nor yet doth prosecute the said R. B. c. And that he was damnified by reason of the same Battery in 30 li. which the Defendant though such a time and place required hath not paid and upon non Assumpsit and a Verdict for the Plaintiff it was moved that the Plaintiff hath not given the Defendant notice of what he was damnified in but yet the Plaintiff had his Iudgment because the Defendant hath taken upon him to pay the damage that the Plaintiff susteined which when the Plaintiff ascertains to him and requires him to pay the Defendant at his peril is bound to pay if in truth he were so much damnified Lodge versus Weeden Hil. 22 Car. Rot. 146. IN an Action upon the Case for killing of Cattel infected de quodam morbo mortali Angl. the Murrain and throwing their Entrails into the Plaintiff's Field per quod diversa averia of the Plaintiff's interierunt after a Verdict for the Plaintiff upon not guilty pleaded it was moved to be too uncertain because it doth not appear what nor how many Beasts perished but yet Iudgment was given for the Plaintiff because there néeds not such certainty in an Action upon the Case which is not brought for the Beasts themselves or the value of them but for damages sustained by their death through the Defendants means Sims versus Gregory and others Trin. 23 Car. or Pasch 22 Car. Rot. 247. IN an Action of Trespass Trespass upon the Statute of Monopolies made anno 21 Jac. the Plaintiff sets forth the Statute and that 13. Jul. 14 Car. proclamation was made by the King concerning Wines by colour whereof the Defendants procured the Plaintiff to be imprisoned and 200 Pipes of his Wine to be detained till he made Fine for them and that afterward viz. 15 Jul. 14 Car. another Proclamation was made colore hujus Proclamationis postea scil 7. Jan. 20 Car. the Defendants caused the said Plaintiff to be taken and imprisoned and that the Defendants not fearing the said Stat. postea scil 14. Jul. ann 20. supradicto tantas minas de imprisonamento corporis ipsius T. Sims adtunc ibidem intulerunt quod idem Th. Sims per longum tempus scil à praed ' 14. die Jul. anno 20. supradict usque diem impetrationis hujus billae scil 14. diem Jul. 21 Car. circa negotia sua necessaria palam intendere non audebat c. contra pacem c. contra formam Statuti c. The Defendant pleaded not guilty within six years and it was found for the Plaintiff And it was moved in an arrest of Iudgment that the Declaration was repugnant for the Imprisonment is laid to be 7. Jan. 20 Car. and then follows that the Defendants postea scil 14. Jul. 20 Car. tantas minas c. which is before the Imprisonment for the King began his Reign 27. Martii and the Iury have given damages with relation to the whole time whereas the Declaration is nought as to a great part of it And the Case being much debated it was agreed 1. That the Plaintiff in his Declaration need not answer the order of time wherein the Trespasses were done but may alledge that which was done 7. Jan. before that which was done 14. Jul. But yet 2. It was resolved that postea in the latter place must refer to the time immediately precedent and cannot leap over that and refer to the time wherein the Proclamation was made 3. It was resolved that the word postea in this case could not be void and the time brought in by the Scilicet stand absolutely because the word Scilicet is but explanatory and for instance and cannot contradict any thing that is precedent Hob. 172. But if the word Scilicet had been out and the time brought in by it had been alledged substantively then the word Postea would have been void being repugnant 4. It was resolved that the time brought in by the Scilicet was repugnant and void and the Declaration stands as if no such time had been alledged and then it runs thus That the Defendant's Postea tantas minas c. intulerunt quod idem J. S. per longum tempus circa negotia sua necessaria palam intendere non audebat and though this be uncertain for that no time is alledged yet it being not the substance of the Action but only for aggravation of damages and in as much as evidence could not be given of any threats after the reste of the Bill or damage by reason of them thefore being after a Verdict it was resolved to be good enough Lastly It was resolved That it shall not be intended in this case that the Iury have given damages with respect to the time brought in by the last Scilicet after per longum tempus which over-reaches the time that the threats were made the time brought in by the first Scilicet
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
party might deliver the Lease by virtue of the authority given him ore tenus notwithstanding the Letter of Attorney but then he must swear he did it by virtue of that for if he did it by virtue of the Letter of Attorney the other authority will not avail the delivery and it was said that he could not deliver it by virtue of both authorities quod quare Pasc 24 Car. Banco Regis Lawrence versus Kete and others IN an Ejectione firmae Ejectione firmae upon Issue whether it were a Devise by Will in writing or not between Mrs. Dunsh Widow and Edmund Dunsh the Heir The Case upon the Evidence was That Dunsh the Husband being sick said that he devised all his Lands to his Wife for life and limited several remainders of several parcels of them and about an hour after wished and desired that one Kete were there to write his Will whereupon the Wife without acquainting her Husband with it sent for Kete who from the mouth of the Witnesses which heard the Devise wrote the same but because they differed in their Testimony touching the limitation of the remainders he wrote two Wills and this was without privity of the Husband who before the writing finished became senseless and soon after died And the original Writings were both lost but a Copy testified to be of the same effect was produced and after much Dispute it was agreed by the Court and so given in charge to the Iury. 1. That an actual Devise by word is no sufficient ground for a stranger to write the Will but there ought to be an Actual Will and desire that it should be written and a bare wishing is not sufficient but there ought to be an actual willing 2. That this desire ought to be in some short space after the Devise so that it be as one continued act for if the Devise be at one time and at another time the Devisor sends for one to write his Will a new Declaration will be necessary to make it effectual 3. That an actual desire of the Husband that Kete were there to write his Will was a sufficient ground for the Wife to send for him though the Devisor gave no express directions to doe it 4. That the writing of the Will from the mouth of Witnesses was sufficient and it need not be from the mouth of the Testator 5. If Witnesses agree as to the Devise for life the Will stands good for that though they disagree as to the limitation of the remainders 6. Though the Devisor becomes senseless before the Will be written yet if it be written before he dies it is a good Will in writing 7. If a Will continue in writing at the time of the death of the Testator though it be lost or burnt afterwards it stands good but if it be burnt at the time of his death then the Devise is void And the next day the Iury gave a Verdict against the Will because the Evidence was not clear as to the desire of the Devisor to send for Kete but there was a motion for a new Trial upon pretence of partiality in some of the Iurors sed non praevaluit Hill versus Armstrong Hil. 23 Car. Rot. 931. IN an Action of Debt Debt upon a Bond with Condition to pay 300 li. to the Plaintiff and to adde 3 li. to every Hundred if it were demanded The Defendant pleaded payment of the 300 li. and that he added 3 li. to every Hundred secundam formam conditionis praedict ' The Plaintiff traversed the addition of 3 li. to every Hundred secundum formam conditionis praedict ' And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Plaintiff ought to have alledged a Demand And for this cause Iudgment was given against the Plaintiff for this being matter of substance without which the Plaintiff had no cause of Action was not helped by the Issue nor Verdict notwithstanding the words secundum formam conditionis which was pretended to imply a Demand Hill Uxor ' versus Bird alios LEtters of Administration of the Goods of Sir John Lamb Intestate were committed by the Prerogative Court to the Wife of Hill being near to the Intestate and upon a suggestion of a Suit there by others of equal degree for a distribution of the Goods of the Intestate according to agreement made by the Administration as was pretended Hale prayed a Prohibition and it was granted for the Statute wills that Administrator be granted to the next of kin for their advantage and when the Ordinary c. hath once executed his power according to the Statute he cannot alter it nor hath any power to compell the Administrator to make distribution notwithstanding the Agreement And Hale said that the Court there threatned to repeal the Letters granted unless she would bring in a true Inventory of the Estate of the Intestate and give a true account of her Administration to which Roll answered that the Court there may cite her to bring in an Inventory and to give an account but if it appear that they goe about to repeal the Letters for not doing of it you shall have a Prohibition which was not denied by Bacon And Hale would have had a Prohibition against all the Cosins as well those that sued there as others because the proceedings there being ore tenus the rest may joyn in the Suit when they will but the Court denied to grant any Prohibition quia timet c. Pasc 24 Car. Creswell Uxor versus Ventres Uxor Hil. 23 Car. Rot. 969. SLander Slander Thou didst and dost buy and didst receive stollen Goods witness a Featherbed-Tike thou hast in thy House and the Cloath thy mans Clothes are made of And I will prove it And thou didst know that they were stollen And after a Verdict for the Plaintiff upon the motion of Wilde That the words do not charge the Plaintiff with Felonious receiving And though she knew that they were stollen this doth not argue that she was consenting to the stealing for she might come by them honestly and rightfully as if they were sold afterward in Market overt Iudgment was stayd And Roll said he had known Iudgment arrested for the like reason Spatchurst versus Sir Mat. Minns Hil. 23 Car. Rot. 1407. IN Debt Debt by an Administrator for Rent reserved upon Assignment of a terme of years in a House in St. Martins in Campis by Déed made by the Intestate The Plaintiff alledges that the Defendant had enjoyed the House pro durante toto praedicto Termino and for 90 li. due at 1643. Termino adtunc nondum finito the Action is brought And after a Verdict for the Plaintiff it was moved by Boreman That this reservation is not properly of a Rent but of a Sum in gross and for a Sum in gross no Action lieth till the last day of payment now it doth not appear that the last day
Plaintiff to the Defendant should be released but the Defendants bond should stand for the award that Releases should be made of all Actions c. till the eighth of March is entire and cannot be apportioned in respect of time that is bind as to the time before the first bond and be void as to the time after But it was resolved that the award in this Case was a good award for the award that all Suits between the parties should cease is a good award on both sides and sufficient satisfaction for the money ordered to be paid by the Defendant and then though the award be void as to the Releases it is not material and the Case betwéen Vanbore and Trigge 14 Jac. in this Case was cited where an award that all Suits betwéen the parties should cease and that they should make mutual Releases one to the other till the day of the award was adjudged good as to the first part and void for the Releases because thereby the bond of submission should be released but where the award is that they shall make general Releases without fixing to any time this will be good because it shall be construed to the time of the submission only And it was agréed that the misrecital of the Arbitrators doth not prejudice their award And it was touched by the Defendants Counsel that the submission was void because at several times but not insisted on for the Court held it clearly to be good And an exception was taken to the Verdict for that they have not found the award to be made before Easter and the Court cannot take notice ex officio that the 15 of April was before Easter But to that it was answered that the Plaintiff in his replication hath alledged it to be before the Feast of Easter viz. 15 April And the Defendant in his rejoynder hath omitted the words ante festum Paschae so that the time is not in Issue And upon this reason Mr. Hales told me the Court rested for that point for he held that the Court otherwise could not take notice of the time ex officio though Mr. Weston said that the opinion of Roll was that they might if they pleased And Iudgment was given for the Plaintiffs in my absence through sickness but their Opinions were declared ut supra before Note Trin. 1649. The same Case came again in question upon an Action brought by the same Plaintiffs against the Defendants Son who became bound with his Father and it is entered Pasch 1649. Rot. 249. And there the Defendant in his bar sets forth the whole matter and the award verbatim with cujus tenor sequitur in haec verba in English And upon demurrer without argument adjudged for the Plaintiff because it ought to be set forth in Latin and so Roll then chief Iustice said it had béen ruled before and so it is in Case of a bond to perform Covenants in an Indenture they must be set forth in Latin And Roll declared the award to be good for the reasons aforesaid and so he said he and Bacon had delivered their opinions before and the manner of pleading it by cujus tenor c. was naught Dame Bowles versus Broadhead Hill 23. Car. Rot. 1578. IN an Action of Debt Debt for 200 l. upon the Statute of 2 E. 6. for Tithes of land in the Parish of Rinston alias Royston the Defendant pleaded the Statute of 31 H. 8. And that the Lands were discharged in the hands of the Prior of mount Bretton at the time of the dissolution and Issue joyned upon the discharge and upon a Trial at bar the Defendant not making good his Plee the Court ruled the value to be taken as confessed because the Issue is joyned upon a collateral point And the Defendant took not the value by protestation and so the verdict was given for Two hundred pounds but neither damages nor costs Amys versus Cowley Ejectment IN an ejectione firmae of Lands in Blandford Forum upon not guilty pleaded betwéen John Rogers and the Lord Rich who married his Brothers widdow the Case fell out to be thus The Lands in question were called Nutford farm and lay in the Tithing of Rushton within the Parish of Blanford Forum but not within the Borough of Blandford Forum R. being seised of that Farm and of other Lands within the Borough covenanted to levy a fine of both to certain uses and the déed of Covenant described the Lands to be in the Parish of Blandford Forum the Borough and Tithing being both within the Parish And accordingly a fine was levied of Lands in Blandford Forum generally not naming it a Ville or Parish but the number of Acres was sufficient to pass all the Lands within the Borough and Parish And whether an averment might be taken by the deed 2 H. 5. 7. h. that the fine was intended of Lands within the Parish for otherwise the fine must be taken as of Lands within the Ville only was a question directed by Bacon and Roll to be found specially if the Verdict passed upon that point And in this Case it was a question upon the evidence whether the receiving of Rent by him that hath a reversion upon an estate for life make a possessio fratris And the opinion of the Court inclined that it doth not and the Quaere in the Institutes 15 cap. was mentioned by Roll. Cases at Nisi prius in Guild-hall London before Hen ' Roll Justice de Banco Regis Term ' Trin ' 24 Car. Johnson versus Rawle IN an Action upon a Promise Assumpsit the Defendant pleaded a submission of all matters in difference to Arbitriment and an award c. the Plaintiff denied the submission modo forma and Issue being joyned thereupon the evidence was of a submission of all matters touching accompts and allowed good evidence and because the Plaintiff could not prove that there were other matters in difference but matters of accompt he was non-suited Hale and Mainard being of his Counsel Ludlow versus Beckwith Ejectment IN and Ejectione firmae upon not guilty the Case upon evidence was that A. devised a House to B. for life with power to make Leases for Twenty one years rendring Ten pound rent per annum payable at Michael ' or Twenty days after B. made a Lease for Twenty one years rendering Ten pounds rent per annum payable at Michaelmas And the questions were 1. Whether the words at Michaelmas or Ten days after were to be taken in sensu diviso and so the distribution to his power of making Leases or in sensu conjuncto and so the distribution to the payment of the rent 2. If taken the last way Whether he had persued his power in effect Mainard That the power was persued Hale e contra But Mainard agreed that if he had reserved the rent payable Ten days after Michaelmas then he had not persued his power because the reservation is not so