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
the Words so that he be of twenty four years of age at the time of the death of Elizabeth it would have béen a contingent limitation upon the being of that age at that time Where words make a contingency by the intent of the party but now that by a mean disposal of the Profits he fills up that space of time it appears he did not mean to make that limitation a contingency to the Remainder but upon that supposal to provide for the younger Children and the Case was adjourned Pasc 23 Car. Banco Regis Needler versus Guest Trin. 17 Car. Rot. 1324. IN an Action of Covenant Covenant for 2 s. for copying every Quire of Paper Breach that he copied four Quire and three Sheets for which 8 s. 3 d. was due And that there could be no apportionment for the Covenant was to allow him 2 s. a Quire but not pro rata If he had averred 3 d. to be the usual fees for copying three Sheets he might have helped himself The Plaintiff declares that the Defendant being an Attorney covenanted to take the Plaintiff for his Clerk and to allow him 2 s. for every Quire of Paper that he should Copy out and 1 d. for every Shéet that he should engross and so much for such and such things and all usual fées and among other breaches he alledged that he copied out a Bill containing four Quires and thrée Shéets for which 8 s. 3 d. was due to him which the Defendant hath not paid And upon a Verdict and Iudgment for the Plaintiff in C. B. it was moved for error that there could be no apportionment in this Case for the Covenant was to allow him 2 s. for copying a Quire but not pro rata And for this cause upon good debate the Iudgment was reversed but it was holden that if he had averred 3 d. to be the usual fée for copying thrée Shéets of Paper he might have helped himself upon that Clause Vincent versus Fursy Hil. 22 Rot. IN an Action of Trespass for entring into his House Trespass and breaking duas Cistas and for taking diversa genera apparatuum in Cista praedicta existent and for beating his Servant per quod Servitium amisit after a Verdict for the Plaintiff upon motion in arrest of judgment it was agréed First that one may have a general Action of Trespass and a special Action upon the Case in one Action Secondly that the words diversa genera apparatuum were too incertain of themselves but being referred to a Chest wherein they lay they were reduced to sufficient certainty but because two Chests were mentioned before and the Apparel was alledged to be in Cista praedicta in the singular number so that it appears not in which they were judgment was given against the Plaintiff Stoughton versus Day Hil. 22 Car. Rot. 486. IN Debt Debt upon a Bond with Condition That whereas the Plaintiff is Sheriff of Surry and hath made Cornelius Trapp his Bailiff of the Hundred of Brixto if he should execute his Office c. and make true returns of all Warrants directed to him then c. The Defendant upon Oyer pleads particularly performance to all the Plaintiff replies that process was directed to him to levy Issues upon J. S. and that he made his Warrant to Trapp to execute the same which Warrant he did not return and upon a demurrer Iudgment was given against the Plaintiff because he did not shew that the Issues were to be levied within the Hundred of Brixto for it was resolved that though the words of the Condition were general to make return of all Warrants directed to him yet it was to be understood of such only as were to be executed within the Hundred of which he was made Bailiff Capel versus Allen. Hil. 22 Car. Rot. 639. IN Debt Debt upon a Bond with Condition to perform an Award the Plaintiff upon nullum arbitrium pleaded by the Defendant sets forth that the Arbitrators did award de supra praemissis modo forma sequenti viz. That the Defendant should pay so much to the Plaintiff and the Plaintiff should pay for the Writings of the award and it was adjudged a void Award because but of one side for it did not appear that the other party was bound to pay for the Writings which was the only recompence for the Defendant And this also is matter subsequent to the submission and so cannot be intended a good recompence Johnson versus Barret auters IN an Action of Trespass Trespass for carrying away Soil and Timber c. Vpon Trial at the Bar the Question arose upon a Key that was erected in Yarmouth and destroyed by the Bailiffs and Burgesses of the Town and Roll said that if it were erected betwéen the high Water-mark and low Water-mark then it belonged to him that had the Land adjoyning But Hale did earnestly affirm the contrary viz. that it belonged to the King of common right But it was clearly agréed that if it were erected beneath the low Water-mark then it belonged to the King It was likewise agréed that an Intruder upon the King's possession might have an Action of Trespass against a Stranger but he could not make a Lease whereupon the Lessee might maintain an Ejectione firmae Whitacre versus Hillidell H. 22 Car. Rot. 1318. SLander Slander Margaret Whitacre is a Thief and stole my Wood and I will have her put in Bridewell and upon motion in an arrest of Iudgment after Verdict it was agréed by Bacon and Roll that those words she is a Thief and stole my Wood of themselves were actionable and Cases cited accordingly But Bacon held that the latter words qualified the former for the Statute 43 Eliz. cap. 7. enacteth that persons that steal Wood growing which is not Felony shall be whipped if they make not satisfaction now Bridewell is known to be a place where such penalties are inflicted so that upon all the words it shall be intended an accusation of such an offence the penalty whereof is whipping and not of Felony But Roll contra totis viribus because the words she is a Thief are single and the other accumulative being brought in by the word And but if it had béen for she stole c. then they are explanatory And this difference hath béen alwaies taken in this course But Bacon denied the diference and cited Clerke and Gilbert's Case Hob. 331. thou art a Thief and hast stollen twenty load of my Furzis and adjudged not actionable and no difference allowed betwéen and and for but Roll flatly denied that Case to be Law 2. To accuse one of petit Larceny will bear action and for that the offendor shall be whipped so that might be his meaning and he said that where the first words are a plain and direct Slander the subsequent words that should take of their effect ought to carry in them a very strong Intendment that they were
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.
Slander You are a Rogue you are a traitorly Rogue you cheated your Father you are a branded Rogue you have held up your hand at the Bar you have deserved to be hanged and I will have you hanged And after a Verdict for the Plaintiff for all the words except traitorly Rogue the question was whether the words branded Rogue would maintain the Action for it is clear none of the others would because as was pretended the most that they impart is if he hath been branded for a Rogue by virtue of the Statute of 1 Jac. cap. 7. then his punishment is past and consequently the words not actionable because they cannot be any damage to him But upon debate Iudgment was given for the Plaintiff for by the Statute if a branded Rogue wander again it is Felony and so the words put him in a nearer degree of Felony than otherwise he should be Brown Wood. ADministration was granted to the Sister of the half Blood of the Intestate and her Husband by the Prerogative Court and the Brother of the whole Blood sued there to have the Letters repealed and upon motion for a prohibition upon this suggestion it was agreed by the Court that the Sister of the half Blood is in equal degree of Kindred with the Brother of the whole Blood within the Statute And so was it resolved 1 Car. between Glascock and Wingate known by the name of Iustice Yelverton's Man's Case And if the Ordinary hath once executed his power according to the Statute he cannot repeal the Letters upon a citation but it was resolved that the Statute was not observed in the Grant of the Letters in this case because the Husband who is not of kin to the Intestate is joyned with the Wife and if she should die before him he should continue Administrator against the meaning of the Statute And for this cause a prohibition was denied but it was said that if it had been granted to them only during the Coverture perhâ—ps it might have been good because the Husband might have administred during the Coverture though it had been granted to the Wife only Hil. 23 Car. Banco Regis Hilliard Ux. vers Hambridge H. 22 Car. Rot. 1010. Action sur le Case IN an Action upon the Case against an Executor upon a promise of the Testator made to the Husband and Wife in consideration of their Marriage had at his request to pay 8 li. per annum to the Wife during the Coverture after a Verdict for the Plaintiff upon non Assumpsit pleaded it was moved Termino Hil. 22 Car. in arrest of Iudgment that it should be brought by the Husband only the promise being made after the Coverture because the whole benefit thereof is to redound to the Husband and thereupon Iudgment was stayed But this Term the Case being moved again Iudgment was given for the Plaintiff for it is in the election of the Husband to bring the Action alone or to joyn with his Wife as 43 E. 3. 10. 15 E. 4. 10. c. 7 E. 4. 6. a. 7. a. Br. Baron Feme 55. in case of a Bond made to them both after Coverture And the Case was held to be stronger because it is an Executory promise of a thing of continuance than if it had been to be done unica vice Vide 48 E. 3. 18. f. 16 E. 4. 8. e. Eels versus Smith SLander Slander She hath married the Husband of another Woman And after a Verdict for the Plaintiff it was moved in arrest of Iudgment that the words would not bear Action for the Plaintiff's Wife might be dead or beyond Sea by the space of seven years and then the Case is out of the Stat. of 1 Jac. cap. 11. And though it be alledged in his Declaration that he had no other Wife yet the words must be taken as they were spoken before the auditors And perchance the meaning might be that the Plaintiff was contracted to and so in Conscience was the Husband of another Woman and Iudgment was given against the Plaintiff Yates versus Lindall SLander Slander She is a Sorcerer and a Witch and can witch and unwitch she is a white Witch and can witch and unwitch And after a Verdict for the Plaintiff Iudgment was given against her because she is not accused of any offence within the Statute Gawdy Congham Mich. 23 Car. Rot. 348. IN a Writ of Error Error upon a Iudgment in C. B. in an Action of Debt against Executors who pleaded fully administred and the issue being whether Assets or no it was found that they had Assets for part onely and Iudgment was given for to recover the whole Debt And it was moved by Hales for Error that it should have been for so much only as was found in the Defendants hands and so are all the Presidents in that Court which he said he had caused to be searched but the Iudgment was affirmed for it is good either way and in this Court it is the course to give Iudgment for the whole according to Mary Shiplie's Case l. 8. 134. Eeles versus Lambert Mich. 22 Car. Rot. 357. IN an Action of Covenant Covenant the Plaintiff declares That Sir Moulton Lambert the Testator did demise to him a Wharf called the Wharf-ground near the Common Dike and other Tenements for 21 years and Covenanted that he might quietly enjoy them without the interruption of the said M. L. his Heirs or Assigns vel aliquar ' personar ' clamantium per praed ' M.L. haered ' vel assignat ' suos vel per eorum medium consensum vel procurationem nisi c. and assigns for breach that one Mich. Clavel clamans titulum à praed ' M. L. postea scil 20. Feb. 17 Car. did enter upon him and eject him c. the Defendant pleads plene administravit and Issue being joyned thereupon the Iury found that Sir M. L. 15. Jun. 1634. made his Will and made the Defendant his Executor and by the same Will dedit diversa legata bonorum in specie separalibus personis in dicto Testamento nominatis ac postea obiit post cujus mortem the Defendant 11 Car. bona praed ' sic ut praefertur in specie dat' ad valentiam 500 li. in executionem Testamenti praed ' praed ' separalibus personis in eodem Testamento nominat ' deliberavit and find the breach of Covenant to be six years after and that no other Goods of the Testators came to the hands of the Defendant si c. pro querent ' c. And the Case was argued by Green and Latch ex parte querentis that the Goods delivered for Legacies are Assets in the Executors hands as to this contingent Covenant 1. That the Executors shall be intended conusant of all Contracts and Duties of the Testators as well present as future as well contingent as certain and that therefore this contingent Covenant lay as a charge upon the
torn in pieces with Rats if a Stranger by laying the pieces together could make the devise appear good if gnawn before the death against the Will IN an Eject ' firm ' upon a tryal at the Bar the Evidence was that one Warner by his Will in writing devised the Lands in question to Henry Etheringham and the Heirs males of his body and bailed the Writing to the Scrivener to kéep and four years after died and about a fortnight after his death this Writing was found in the Scrivener's Study gnawn all to pieces with Rats yet he with the help of the pieces and of his memory and other Witnesses caused it to be proved in the Ecclesiastical Court and now the Court demanded of the Witnesses whether a Stranger that knew not the Contents of the Will before by joyning of the pieces together could tell that the devise of the Lands in question was to Etheringham and the Heirs males of his body for they did agrée that if this clause could be made out though by joyning of the pieces it were a good Will for all that But the Witnesses said that a Stranger could not make out that clause Whereupon the Court directed the Iury that if they found that the Will was gnawn before the death of the Devisor then 't was for the Plaintiff if after for the Defendant and the Iury found for the Defendant in favour of the Will Markham versus Adamson Words I accuse you to be a Witch c. IN Slander The Defendant said to the Plaintiff I accuse you to be a Witch and the next day said I desire to have you searched the Plaintiff asked why would you have me searched the Defendant said because I accuse you to be a Witch and after a Verdict for the Plaintiff judgment was given against him because the words did not import an Accusation of any offence within the Statute But it was agréed that if the Plaintiff had béen accused of bewitching a Man or a Beast though this were not Felony by the Statute the Action would have lain and so hath it béen adjudged Newman versus Zachary ACtion sur le Case The Plaintiff declares that the Defendant was his Shepherd and that two of his Sheep did estray Action sur le Case for his false practice creating trouble c. to the Plaintiff one of which being found again the Defendant affirmed to be the Plaintiff's whereupon the Plaintiff paid for the feeding of it and caused it to be shorn and marked with his own Mark and yet afterwards the Defendant malitiose machinans to disgrace the Plaintiff and knowing the said Sheep to be the Plaintiffs falsò fraudulenter affirmavit to the Bailiff of the Manor that had waifs and strays belonging to it that this Shéep was an Estray whereupon the Bailiff seised it to his damage c. And after a Verdict for the Plaintiff Latch moved that there was no cause of Action for there is no breach of trust in the Defendant as Shepherd and his words cannot endamage the Plaintiff for he shall have his remedy against the Bailiff of the Manor that seised the Shéep wrongfully But it was adjudged that the Action would lie because the Defendant by his false practice hath created a trouble disgrace and damage to the Plaintiff and though the Plaintiff have cause of Action against the Bailiff Upon slandering a Title though the party hath remedy vers Trespasser yet Action lies against him that caused the disturbance yet this will not take off his Action against the Defendant in respect of the trouble and charge that he must undergoe in the recovery against the Bailiff and Hales said that if one slander my Title whereby I am wrongfully disturbed in my Possession though I have remedy against the Trespasser I shall have an Action against him that caused the disturbance Sir Thomas Bowe 's Case If Lessee for years hold over and pay his Rent quarterly that makes a Tenant at will 21 H. 7. 38 E. 14 H. 8. 11. f. Dyer 62 a. 173. IN Debt for Rent upon a Lease at Will of Houses in London upon a Trial at the Bar touching the Title of Sir T. Bowes it was agréed and given in charge to the Iury by Roll that if Tenant for years holds over his term and continue to pay his Rent quarterly as before that this payment and acceptance of the Rent amounts to a Lease at Will Ten. at will begins a new Quarter over shall pay the Rent Inst 56. 69. 13 H. 8. 16. a. Kel 65. 6. 2. That if Tenant at Will rendring Rent quarterly begins a new Quarter and voluntarily determines the Will before the Quarter ended yet he shall pay the Rent for that Quarter Evely versus Livermore H. 17 Car. Rot. 1409. Stat. 3 Jac. that does not extend to a special Action upon his promise and to give a Ticket of his charges IN an Assumpsit the Plaintiff declares that the Defendant reteined him as his Attorney to follow his Causes in the King's Bench Chancery and Court of Request and gave him so much in hand to defray his charges and promised to pay him what more he should lay out and alledges that he layed out 10 li. more then he received for Fees of Counsel and other charges in the Defendants Suits which the Defendant hath not paid c. The Defendant pleads the Statute 3 Jac. 7. that the Plaintiff did not give a Ticket to him of his charges c. and after demurrer it was adjudged for the Plaintiff for the Statute doth not extend to a special Action upon a promise and so it was adjudged in Dobbins his Case Farrer versus Bates P. 22 Car. Rot. Arbitrement Debt and other Controversieslie in Arbitrement though Debt solely does not IN an Indebitatus Assumpsit for 9 li. upon an Insimul computaverunt the Defendant pleaded a submission of all actions and controversies to Arbitrement and that the Arbitrators awarded that the Defendant should pay the Plaintiff 4 li. in satisfaction of all Accounts and upon issue quod non se submiserunt Arbitrio it was found for the Defendant and upon motion in arrest of Iudgment it was agréed Where Arbitrement is no plea in Debt it is no plea in an Assumpsit upon the Debt that though Debt it self doth not lie in Arbitrament yet that and other Controversies doth 10 H. 7. 4. 4 H. 6. 27. But it was likewise agrréed that where Arbitrament is no plea in Debt it is no plea in an Assumpsit upon the Debt 2. Where it does not reach the thing demanded It was resolved that the Arbitrament did not reach the thing demanded for that was only of all Accounts and this is a duty upon the Account and so the Defendant could have no Iudgment then it was moved to have a Repleader Repleader denied but denied by Roll being then sole present Hil. 22 Car. Banco Regis Powel versus Waterhouse
spoken in a sense not actionable for it is very unreasonable that one should slander another in general words and then mitigate them by other words of a doubtfull interpretation sic pendet c. Sir John Chichester's Case Indictment SIR J. C. was indicted of Manslaughter and tried at the Bar and evidence was that he and his Man were playing at Foils and the Chafe of Sir John's Scabbard fell off unknown to him upon a thrust so that the Rapier went into his man's Belly and killed him And the Court directed the Iury that forasmuch as such acts are not warranted by Law the parties that use them ought at their own peril to prevent the mischief that may ensue for consent will not change the Case and therefore though there were no intention of doing mischief yet the thrust being voluntary was an assault in Law and death ensuing the offence was Manslaughter yet the Iury found it Chance-medly but the Court would not accept the Verdict but charged them if they varied from the Indictment to find it specially And Bacon said he had known a Iury bound over to the Star-chamber upon the like Cause whereupon they found him guilty and day was given him to procure his Pardon c. Pasch 23 Car. Banco Regis Andrews Harborn Mich. 22 Car. Rot. 483. Scire facias SCire facias was brought in Middlesex upon a Recognizance taken before Iustice Reeve at his Chamber at Serjeants Inn in London and Iudgment given in C. B. and upon a Writ of Error brought in this Court it was moved that it ought to have béen brought in London where the Recognizance was taken for though the Scire facias must be grounded upon a Record and the Recognizance be no Record till it be entred yet after it is entred it becomes a Record by relation from the time of the Recognizance And Hall and Winkfield's Case Hob. 195. was cited and the case was much debated and Roll Bacon absent said that the most ancient and proper course was to bring the Scire facias where the Recognizance was taken but he shewed in his hand a Certificate of all the Prothonotaries of the C. B. that of latter times they have allowed it the one way or the other and so the Iudgment was affirmed And Pasch 20 Jac. Rot. 210. B. R. betwéen Polting and Fairebank the like Iudgment was given upon a Recognizance taken before one of the Iudges of this Court in London and a Scire facias brought in Middlesex but it was said that the usual Entry in this Court is to express before what Iudge it was taken but no place where and then it might be brought in Middlesex without question Hilton and Plater Hil. 21 Car. Rot. 30. SLander Slander The Plaintiff declares That whereas he was Attorney c. the Defendant said to him You are a Knave you were Attorney for my Mother and set my Mother against my Husband and made him spend an 100 li. and such Knaves as you have made my Husband spend all his Estate And after a Verdict for the Plaintiff it was moved the last Term in arrest of Iudgment because no communication is laid of his Profession whereby the word Knave may be applied to that and the other words do not import any scandal of him in his Profession for he might lawfully set the Defendants Mother against her Husband as if there were cause of Action against him whereupon Iudgment was stayed And now this Term it was moved again And Bacon was of opinion against the Plaintiff for the reasons aforesaid But Roll contra because the subsequent words declare that the word Knave was intended of him in his Profession and therefore néed no colloquium of his Profession And afterwards the same Term ex assensu Baron ' mutata opinione Iudgment was given for the Plaintiff Trin. 23 Car. Banco Regis Paine versus Sheltroppe Hil. 22 Car. Rot. 740. IN an Action of Debt Debt upon a Bond with Condition That if the Defendant and his Wife should appear such a day at the Palace Court c. The Defendant upon Oyer of the Condition pleads that he himself did appear at the day prout apparet per record ' and that he was not married at the time of the Obligation nor ever after And it was adjudged to be no good plea because he is estopped to deny that he had a Wife Otherwise when the Condition is general as to enfeoffe one of all his Lands in Dale there he may say he had no Lands there Vide Dyer 50. f. 196. d. 18 E. 4. 4. f. 21 E. 4. 54. g. l. 2. 33. h. Dominus Rex versus Holland AN Office was found and returned in the Chancery That a Copyhold in Islington was 14 Car. granted to one John Holland and his Heirs at the will of the Lord c. in trust for one Margaret Taylor who was an Alien and her Heirs and that the profits were disposed according to the trust and that after M. T. died and this was by virtue of a Commission to enquire what Lands c. M. T. had and the Commissioners seised the Land whereupon Holland came and shewed his Title and traversed the seisin in trust for M. T. And Issue being joyned it was found for the King and note the Venire facias was awarded in the Chancery retornable in this Court and the Record sent hither for they try no Issue there And exception was taken to the Writ because it was quorum quilibet habet 4. libratas terrae and according to Stat. 27 El. cap. 6. which extends only to this Court C. B. Exchequer and Iustices of Assise to which it was answered That forasmuch as it is returnable in this Court it is well enough within the Statute but that Answer was not allowed but because this Clause was added by the Statute of 35 H. 8. cap. 7. which was in the affirmative that the Writ should continue quorum quilibet habet 2. libratas terrae And the Statute 27 El. adds that it shall be 4. libratas in such Courts but no negative words in either Statute therefore it is but abundans cautela and makes not the Writ vicious And Roll said that it was so adjudged Mich. 21 Jac. betwéen Philpot and Feilder The Questions in Law were 1. If the King should have the trust 2. If by virtue of that he might seise the Land 3. If the Case differ'd because Copyhold And it was argued the last Term by Mountague for Holland and Hale for the King and this Term by Maynard for Holland and Twisden for the King 1. That Vses at the Common Law were things partly in action so that they were not given to the King by general words of Hereditaments in Statutes as is agréed in the Marquess of Winchester's Case And they consisted in privity and therefore could not be transferred by act in Law as by escheat for Attainder c. And the preamble of the
because she might have many Sons But yet upon good consideration Iudgment was given for the Plaintiff for the Court shall not intend that Mary had any other Sons besides the Plaintiff And Roll cited a Case where one said your Landlord Henley is a Thief and laid his Declaration only with an Innuendo of the Plaintiff then Landlord c. and adjudged good But in another Case where one said your Landlord without a Surname is a Thief in such an Innuendo it was after great debate the Court being at first divided in opinion adjudged naught But there if the Plaintiff had averred that he to whom the words were spoken had no other Landlord it had been good Vide French and Edward's Case su 3. More versus Clypsam IN a Replevin Replevin the Plaintiff declares That the Defendant cepit centum oves matrices vervices of the Plaintiffs The Defendant avows that his Father was seised in fee of the place where c. and died seised and that the Lands descended to the Defendant as Son and Heir by virtue whereof he entred and was seised in fee and took the Beasts damage feasant the Plaintiff makes a reply and concludes with a traverse absque hoc that the Defendant at the time of the taking was adhuc est seised in fee of the Land and issue thereupon was found for the Plaintiff And it was moved in arrest of Iudgment that the Traverse was naught 1. Because the title of the Avowant is not answered for that the dying seised of the Father and the descent and the seisin of the Avowant is but a conclusion upon that 2. Because the Traverse is larger then the Avowry for adhuc est refers to the time of the pleading which is more then is alledged or then is material To the first it was answered that though it be not formal yet it is substantial enough for if the Son were not seised there could be no discent to him and therefore it is made good by the Verdict and the Court inclined to this opinion But the other exception was holden to be material Then an exception was taken to the Declaration because it is for 100 Ewes and Wethers and it doth not appear how many there are of Ewes and how many Wethers and the Sheriff is bound to make deliverance of the one sort and of the other for his delivery must be according to the Writ And though he may receive information from the parties so that it is a good return to say nullus venit ex parte querent ' ad ostendend'averia c. yet he is not bound to require it but ought to have sufficient certainty within the Record And for this cause after great debate Iudgment was given against the Plaintiff but it was agreed that oves without addition had been good enough and the Sheriff might have delivered the one sort and the other But if the Writ be for oves matrices the Sheriff cannot deliver Wethers so if it be for Black Horses the Sheriff cannot deliver White but is subject to an Action of Case Now there being some Ewes and some Wethers and the number not appearing the Sheriff is left at uncertainty and upon the same reason a Formedon of 100 Acres of Meadow and Pasture hath been adjudged naught as Roll said Com. Northumb. vers Green Trin. 23 Car. Rot. 1198. IN Debt Debt for Rent the Plaintiff declares That one Cross made a Lease for years to the Defendant rendring Rent payable half yearly who granted the reversion to the Plaintiff and such a day which was the day wherein the Rent was due the Defendant attorned and for three years Rent and a half which included the Rent due the day of the attornment the Action was brought and upon nil debet and a Verdict for the Plaintiff it was moved in arrest of Iudgment that the Rent was payable to Cross before the attornment for that shall be taken if worst for the Plaintiff to be after Sun-set but it was disallowed for the Court shall not intend it and if they should the Verdict supplies the averment of the contrary And both the Iudges said that if a Writ abate one day and another Writ is purchased which bears teste the same day it shall be intended after the abatement of the first Caly versus Joslin Uxor ' Trin. 23 Car. Rot. 1282. IN Debt Debt for Rent upon a Lease for years against the Husband and Wife Executrix which was laid in the debet and detinet Vpon plene administravit pleaded and a Demurrer thereupon the case was well debated by reason of contrary resolutions for Hargrave's Case was reversed in the Exchequer Co. 5.31 because the Action was in the debet and detinet but afterwards 7 Jac. between the Lord Rich and Frank. in C. B. upon great debate it was adjudged good in the debet and detinet And the like Iudgment was given 9 Jac. in C. B. in Sir Henry Carye's Case And after that Pasc 17 Jac. Rot. 346. B. R. between Paule and Moody it was adjudged good in the detinet only And the like 7 Car. in the Common Pleas and the same year in this Court between Smith and Nichols and the reasons of these contrary opinions was the inconveniency of the one side and the other for in as much as the Executors cannot waive the Term it were hard if the Rent should exceed the value of the Land and they having no assets that they should be charged in the debet of their own proper Goods and yet if the Action must be brought in the detinet only where fully administred were a good plea then may they retain the Land and with the profits thereof satisfie Debts upon specialty whereby the Lessor should be defeated of his Rent For the avoiding of which inconveniencies it was resolved that they may be charged in the debet and detinet for prima facie the Land shall be intended to be of greater value than the Rent and if it be otherwise Mich. 23 Car. Banco Regis Gilbert versus Stone Trin. 17 Car. Rot. 1703. IN Trespass Trespass for breaking of a House and Close the Defendant pleaded that 12 homines ignoti modo guerrino armati tantum minabantur ei quod de vitae suae amissione dubitabat and after requirebant compulsabant the Defendant to goe with them to the House quodque ob timorem minarum per mandatum compulsionem dictorum 12 hominum he did enter the said House and returned immediately through the said Close which is the same Trespass c. And upon Demurrer Hob. 134. c. without argument it was adjudged no plea for one cannot justifie a Trespass upon another for fear and the Defenant hath remedy against those that compelled him Also the manner of the pleading was naught because he did not shew that the way to the House was through the Close Mark versus Cubit Pasc 23 Car. Rot. 376. SLander
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
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
affirmed Trin. 24 Car. B. R. Freeborne versus Pincras Hil. 23 Car. Rot. 1375. Acc'on sur Case IN an Action upon the Case the Plaintiff declares that the Defendant in consideration c. did promise to joyn with him in a Surrender of certain Copyhold Lands for a Sale to be made of them to any person and avers that he had procured 2 Copyholders such a day to be present at a certain place within the Mannor and that the Plaintiff was then and there ready to have joyned with the Defendant in a Surrender of the Lands for a Sale to be made to one J. S. and that the 2 Copyholders were then and there ready to have received the Surrender c. and that then and there he did request the Defendant to joyn with him in a Surrender into the hands of the two Copyholders to be presented by them in Court to the use of the said J. S. c. Secundum consuetudinem manerij praed ' à tempore quo c. usitat̄ quodque sursumredditio sic requisita facienda fuit pro venditione of the said Copyhold Lands pro quadam pecuniae summa per praed ' J. S. solvend ' And that the Defendant non junxit with the Plaintiff in the Surrender licet ad hoc faciend ' postea eodem die per praed ' querent̄ requisitus fuit c. And after a Verdict for the Plaintiff upon Non assumpsit pleaded upon motion in Arrest of Iudgment it was resolved by Roll that the Declaration was insufficient 1. For that the Plaintiff hath alledged that he was ready to joyn in a Surrender with the Defendant and that then and there he did require the Defendant to Surrender but hath not alledged that he did give notice to the Defendant that he was ready to joyn with him and so it is no more then a bare request to the Defendant to make a Surrender which is not sufficient for that the Plaintiff was to joyn with him in it 2. The Surrender was to be for Sale to be made to J. S. and the Plaintiff hath not any way intimated to the Defendant that the intention of the Surrender was such And Roll said that the notice ought to be particular of the agréement and sum for which it was to be sold 3. The Promise is general to joyn in a Surrender and the Request is to Surrender into the hands of two Customary Tenants which being a particular way of Surrender grounded upon a particular custome is not within the intention of a promise generally to Surrender which is to be taken according to the common way of Surrender and so he said it was resolved Pasc 9 Car. in this Court betwéen Sims and the Lady Smith And so if a man be bound to another to make such assurance of Lands as the Obligée shall devise it is not sufficient for him to devise a Fine and to take out a Dedimus c. upon it and require his Conusants in that for this is but a special way of taking the Conusans and so he said it had béen ruled But if there were a Proviso that he should not go above five miles from his House then if his House be above five miles from Westminster he is bound to make his Conusans upon the Dedimus and that he said hath béen the difference 4. He hath not positively alledged that there was a custome in the Mannor to Surrender into the hands of two Copyholders which he ought to have done but hath too superficially pleaded And Iudgment was given against the Plaintiff Trin. 24 Car. B. R. Read versus Palmer Pasc 24 Car. Rot. 326. IN an Action upon the Case the Plaintiff declares Acc'on sur Case that whereas he had brought an Action of Battery against the Defendant and procéeded to a Trial at Guildhall London where a Iury was drawn by consent and the Plaintiff and Defendant submitted the Cause to the award of two of the Iurors infra unum mensem proxime sequent̄ fiend ' and that postea eodem die in considerat̄ that the Plaintiff did promise to the Defendant to performe omnia et singula quae praed'arbitratores ex parte ipsius querent ' de et super praemissis faciend'et observand'ordinarent et adjudicarent And here the Plaintiffs Attorney after Issue joyned without notice inserted infra unum mensem the Defendant promised in the same manner and the same Clause there inserted by the Plaintiffs Attorney And after Verdict upon Non assumpsit pleaded this amendment after issue joyned without notice was moved in arrest of Iudgment wherein the question was Whether this amendment were in a point material for it was agréed that if it were not in a material part of the Declaration then it could not prejudice the Plaintiff And Twisden urged that it was not in a material part 1. Because every submission to an Award implies a Promise to perform it and so the promise laid is no more then was implyed in the submission 2. The Promise is to perform what the Arbitrators should award which must be taken with relation to the submission which was to an award to be made within a month And so the words infra unum mensem are but an expression of that which would have béen implyed without them But it was resolved by Roll upon good deliberation that the amendment was in a material part For 1. Though a submission to an Award be good Evidence to induce a Iury to find a Promise to perform it yet in Iudgment of Law the Promise is collateral to the submission and not implyed in it 2. Though the Promise be collateral to the submission yet if it had béen laid to have béen made at the same time with it then it should have béen intended adequate and proportionable to it but being laid to be made at another time although it be the same day it cannot be so intended because it is not immemediately applyed to the submission but it might have inlarged or abridged the time limited thereby And he cited a Case betwéen Hodge and Vavasour 14 Jac. where the Plaintiff declared that the Defendant such a day became indebted to him for Wares and in consideration thereof postea eodem die promised to pay it And this was ruled good not as a promise in Law but as an actual promise raised upon a consideration continuing which he cited to shew that a little distance of time though the same day alters the intendment of Law and a new Trial was awarded Trin. 24 Car. B. R. Chace versus Gold Pasc 24 Car. Rot. 219. IN an Action of Debt upon a Bond of 200 li. with Condition for the payment of 104 li. at a day certaine Release made by the Defendant and two others joyntly and severally The Defendant upon Oyer and Entry of the Bond and Condition in haec verba pleaded that the Plaintiff did release praed ' scriptum obligatorium by the name of an Obligation in 200
another Writ is purchased bearing Test the same day it shall be intended after the abatement of the first 34 Action on the Case For infected Cattle per quod diversa averia of the Plaintiffs interierunt without naming how many and good because not brought for the Beasts themselves or value of them but for dammages sustained by their death 22 Where in an Action on the Case the causa causans of the dammages may be laid vi armis or without 84 Action on the Case for fraudulently selling a horse to the Plaintiff for his own c. 91 Against a Carrier for goods delivered although he do not know the Contents 93 Action on the Case for false practice in creating trouble c. to the Plaintiff 3 Vpon slandering a Title though the party hath remedy against the Trespasser yet an Action lies against him that caused the disturbance 3 Slander where he lost his marriage and no agreement of marriage or mutual love alledged and the words spoken only with an innuendo and good 6 Action on the Case for Words I accuse you to be a Witch and desire to have you searched c. not actionable because the Words do not import an accusation of an offence within the Statute 2 3. Words charged with procuring Felony actionable 5 To call an Attorney Knave when the subsequent words intend it of his Profession there needs no Colloquium of his Profession 13 I. S. is a Thief and stole my Wood. 11 Where latter words qualifie the former ibid I. S. is forsworn and his Oath appears upon Record an Action lies 7 Where in an Action of the Case for Words Justification explains the parties meaning ib. Thou hast had the French-Pox 31 Thou art a Thief and hast stollen my Dung actionable because in common parlance it s understood of Dung in a heap which is a Chattle 32 Your Son is a Thief innuendo c. and actionable because the Court shall not intend any other Son than the Plaintiff But to say your Landlord without a Sirname is a Thief is not actionable without averment he had no other Landlord 32 Traitorly Rogue is actionable so Branded Rogue 35 Thou didst dost buy and receive stollen goods c. not actionable because it doth not appear that the party was consenting to the stealing 57 You are a Buggering Rogue c. actionable 61 Of a Parson that he was a Drunkard a Whoremaster c. actionable because thereby he may be degraded which is a temporal damage 63 She hath married the Husband of another woman not actionable 37 She is a Sorceres and a Witch and can witch and unwitch not actionable because not accused of any offence within the Statute 37 Administration Administration granted to the Sister of the half blood of the Intestate not to be repealed by the Brother of the whole Blood otherwise if she be married 36 Administration executed cannot be repealed because the Administrator will not make distribution according to agreement 56 In retardatione Administrationis where it shall be a good Plea 1 Letters of Administration granted per Carolum Regem without saying debito modo 53 Amendment of a Record Where it is in a material part it shall vitiate the whole Record 70 Arbitrement Debt and other controversies lie in Arbitrement though Debt soley doth not 4 Where Arbitrement is no Plea in Debt it is no Plea in Assumpsit upon the Debt 5 Where Arbitrement doth not reach the thing demanded 5 An Award that the Defendant should pay so much to the Plaintiff and that the Plaintiff should pay for the writing of the Award and judged void 10 The Defendant to pay to the Plaintiff in satisfaction of all controversies between them until the day of the Award made and good for the Court shall not conceive any new controversie arisen between the submission and the Award unless the Defendant shew it 26 In Arbitrement where the Jury cannot inquire of the submission for that it is admitted by the Plea and to prove the Award void by matter extrinsical shall be adjudged a departure 86 An Award that all Suits between the parties should cease and make mutual Releases to the day of the Award is good for the first part but void for the Releases 87 Misrecital of the Arbitrators doth prejudice their Award ibid Submission to an Award not void although made at several times ib. An Award ought to be pleaded in Latin and so of a Bond to perform Covenants and the manner of pleading an Award by cujus Tenor c. is naught ibid A Submission of all matters in difference to Arbitrement and the Evidence proved a Submission of all matters touching Accompts and good 90 Where a promise to perform an Award shall be collateral to the Submission 70 De praemissiis pleaded in Awards how to be applied to the general words of the Award proportionable to the things submitted 52 Where Submission to an Award is not with an ita quod an Award to parcel of the things in controversie shall be good ibid Matter subsequent to the Submission shall not be intended a good recompence 10 Assumpsit Where the Husband brings an Action in his own name upon promise to the Wife and lays the promise made to himself 1 Vpon a promise for bringinging up Children without saying they were the Plaintiffs and good 6 Vpon promise of money to marry a poor Virgin ibid Against a servant who retained an Attorny for his Master and promised him his Fees and good ib. Assumpsit brought by an Attorny for Charges disbursed c. the Defendant pleads the Statute 3 Jac. it doth extend to a special Action upon his promise 4 Where a Promise inter alia is not good but ought to set forth the whole matter 5 Promise to pay 15 l. annuatim pro quolibet anno if I. S. live so long an Action lies after the first year without averring the life of I. S. if being a limitation subsequent 20 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 avers he bought 100 pieces for which he demands 10 l. not good without notice given to the Defendant 24 Assumpsit will not lie for Rent but Debt 29 Promise made to the Husband and Wife it s in the Election of the Husband to bring the Action in his own name or to join his Wife 36 A Promise or Bond not to use a Trade in a particular place is void if it be without consideration but if it restrein generally its void though there be a consideration 67 Where the Mother consents that the Daughter should marry I. S. is a good consideration of a Promise 68 Attornment Lessee for years attorns to the grantee of a Reversion the grantee shall have the Rent due from the day of the Attornment 34 Where Lessee may attorn before Entry 59 Letter of
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
Precedents both of Indictments and Actions upon the Statute did use to recite this Statute only but now the course is according to my Lord Coke's advice Co. 4. 486. not to recite the Statute but conclude it contra formam Statuti Vide Dalton cap. 129. And he said it would be very mischievous to subvert so many Precedents as have been this way but the best way had been to have writ it Statut ' with a dash for then it would have stood as by Law it ought 4. It was excepted that the Indictment is quod pacificae intraverunt c. eum adtunc ibidem vi armis disseisiverunt And for this cause after much debate this exception being at first allowed for the repugnancy the Indictment was quashed and re-restitution awarded nisi causa ostensa sit in contrar ' initio proxim ' Termini Doctor Bruce's Case UPon a Habeas Corpus Habeas Corpus Dr. Bruce being returned committed upon the Stat. of 1 Mar. ca. 3. for disturbing the Minister of Maidstone in Kent lawfully authorized in his publick Prayer and Preaching it was agreed that that part of the Statute of 1 Mar. which concerns disturbance in Preaching is not repealed by the Statute of 1 El. but as to disturbance in Prayer it is And the commitment for both is naught And for this and other gross faults in the return he was discharged SAmuel Hall was found dead before the Coroner that he passing a Bridge between Worthington and Billingford in Comitatus Hertf. by reason of a breach in the Bridge fell into a River where he was drowned and that the Bridge is in villa de in magno decasu by default of the Inhabitants there and it was holden that the Coroner may find such a nusance as occasions the death of a man and that the Township should be amerced thereupon but because it was not found here that the Town was bound to repair the Bridge the Indictment was quashed as to that Pasc 24 Car. Banco Regis Rose versus Spark Hil. 22 Car. Rot. 29. IN an Action of Debt upon an Arbitrement Arbitrement for 7 li. 10 s. the Plaintiff declares That whereas there were certain Controversies between the Plaintiff and the Defendant touching a Wine-license and the arrears of Rent issuing out of certain Land they did submit them to the Arbitrement of J. N. and J. S. super quo praed ' J. N. J. S. accepto super se mod'arbitrand ' de praemissis intellexerunt quod restabant debitae to the Plaintiff quindecem librae de quibus quidem 15 li. ordinaverunt that the Defendant should pay 7 li. 10 s. to the Plaintiff in satisfaction of 7 li. 10 s. parcel of the said 15 li. and should assign the Wine-license to the Plaintiff per quod actio c. And after a Verdict for the Plaintiff upon nil debet it was moved Termino Paschae 23 Car. Termino Hil. 23. And again this Term. 1. That the Award is not of the thing submitted for the submission is special of the arrears of Rent and a Wine-license And the Arbitrators find the Defendant indebted in 15 li. but it appears not for what he was so indebted so that it might be for some other cause than for Rent therefore the Plaintiff ought to have averred that the Debt was for the Rent or at least to have laid the Award to be de praemissis which perchance would have supplied it but this exception was disallowed for the Award being general ought to be intended according to the undertaking which was de praemissis and this Intendment is confirmed by the Verdict And it was said that the words de praemissis in pleading Awards hath been used but of late time but to good purpose to apply the general words of the Award proportionable to the things submitted Also the words super quo help the Intendment 2. Which was the principal exception It was moved that the Award was void for that the Arbitrators recite 15 li. to be due to the Plaintiff and award that the Defendant shall pay 7 li. 10. s. in satisfaction of 7 li. 10 s. parcel of the Debt and shall assign the Wine-license but this is not said to be in satisfaction of the residue so that here remains 7 li. 10 s. parcel of the Debt not satisfied nor discharged and Roll was of opinion and that as to the Assignment of the Wine-license that the award was void But Bacon held that it should be intended in satisfaction of the other 7 li. 10 s. But both the Iudges agreed that forasmuch as the submission was not with an ita quod c. the Award as to the parcel was good according to the Books Co. 8. 98. d. 19 H. 6. 6. h. 22 E. 4. 25. g. and so Iudgment was given for the Plaintiff Note here though the submission were of the Rent and a Wine-license the Award was only of the Rent which could not have been alone submitted Hart versus Buckminster Hil. 23 Car. Rot. 225. IN an Action of Debt upon a Bond with Condition reciting That whereas the Plaintiff had carried 12000 Billets for the Defendant to Dartmouth if the Defendant should pay the Plaintiff after the rate of 17 s. per 1000. then the Obligation should be void the Defendant upon Oyer thereof pleaded that the Plaintiff did not carry 12000 Billets to Dartmouth and upon Demurrer Iudgment was given for the Plaintiff for the Defendant is estopped to deny it Hobson versus Wills IN an Action of Debt Debt brought by an Administrator the Plaintiff declares of Letters of Administration granted to him per Carolum Regem c. without saying debito modo c. And upon a Demurrer to the Declaration it was adjudged good because the King hath universal Iurisdiction here Bamfield versus Brown IN an Ejectione firmae Ejectione firmae upon a Trial at the Bar evidence was given that Sir John Brooke Lord Cobham sealed an Indenture of Lease of Black acre Green acre and White acre and by Letter of Attorney reciting that whereas he had made an Indenture purporting a demise of Black acre and White acre omitting Green acre as by the same more at large appears c. gave power to deliver it as his Deed upon the Land and also by word of mouth commanded the Attorney to doe the same thing and Roll inclined that the Letter of Attorney was insufficient in respect of the omission but Bacon contra clearly because there is a description sufficient to shew it to be the same Lease but both agreed that in Debt for Rent upon a Demise such a mistake in the Declaration were fatal because there he takes upon him to recite the Demise upon Record as it was made upon a Contract which being entire an omission of part makes it not the same Demise and the Action is founded upon it but here he is only to describe it in pais but they held that the
But it was agréed that the Statute of Ieofails which doth provide amendment by Examination of the Clerks c. shall not extend to inferiour Courts in these points 2. It was resolved that this Statute extends to the Courts made after and so not within the Equity And after upon good deliberation Iudgment was affirmed Inicpit Term ' Trinitat 24 Car. B. R. Rolls only sate Judge this Terme Bacon being sick Beaton versus Forrest Hil. 23 Car. Rot. 355. IN an Action of Debt Debt upon a single Bill the Defendant after Imparlance pleadâ—d payment of part after the latter continuance petit quod billa cassetur c. the Plaintiff denied the payment and the â—efendant demurred And it was resolved by Roll that the Plea was insufficient although pleaded in Abatement only for that there ought to be an Acquittance which is controverted in the old Books where a difference hath béen taken betwéen such a Plea pleaded in Barr and when pleaded in Abatement Vide L. 5. E. 4. 139. 15 H. 7 10. e. 3 H. 7. 3. g. 7 E. 4. 15. e. But Roll said if he had had an Acquittance he might have pleaded it in Barr or Abatement at his election Then it was moved by Yard to have Iudgment peremptory 1. For that this Plea is pleaded after Imparlance 2. For that the Plaintiff hath tendered an Issue upon the Defendants Plea which he hath refused But it was resolved that the Plea was not peremptory For 1. Dyer 228. a. When a Plea concludes in Abatement it is not peremptory but if a Plea in Abatement be pleaded in Barr it is peremptory 2. Though it be pleadâ—d after Imparlance Hob. â—1 c. and Issue tendered upon it yet it is not peremptory upon a Demurrer 34 H. 6. 8. d. In a Writ of Entry upon a Disseisin made to the Ancestor the Tenant pleaded in Abatement that the Demandant himself was seized the Demandant denied his Seisin and concluded to Issue The Tenant pleaded an Estoppel to the Demandant which upon Demurrer was over-ruled and yet not peremptory Br. tit Peremptory But if Issue be joyned upon a Plea in Abatement then it is peremptory 50 E. 3. 20. J. Katesby et K. sa feme port assise the Tenant pleaded that long time before K. was married to J. C. c. And that she is still the wife of J. C. and not the wife of the Demandant J. K. and demanded Iudgment of the Writ and Issue being joyned thereupon the Tenant concluding to the Assise the Demandants demurred as to the Trial viz. that it ought to be by the BB. And it was awarded to be tried by the Assise Dy. 311. a. And the Demandant would have waved his Plea in Abatement and have pleaded in Barr the Marriage of K. with J. C. and a Release from J. C. but was not admitted because the Issue made it peremptory to him And so it is if after Issue joyned the Defendant pleads a Plea in Abatement Hob. 81. c. this is peremptory as well upon Demurrer as upon trial by Verdict because after Issue joyned no Respondes ouster can be awarded and with this agrées L. 5. E. 4. 139. where in Debt after Issue joyned the Defendant at the Nisi prius pleaded payment of part after the latter continuance in Abatement and the Iury being discharged and the Plea adjourned in Banke for that no place of payment was pleaded the Plaintiff had Iudgment to recover his Debt And 2 E. 4. 10. the Tenant in a Cui in via pleaded the Entry of the Demandant after the latter continuance and Issue being joyned thereupon the King dyed and upon a Resummons he pleaded a Recovery of part in an Assise after the latter continuance to which the Demandant pleaded an Estoppel and upon a Demurrer Iudgment was given for the Demandant to recover Seisin And Roll said That if after Imparlance the Defendant pleads a Plea in Abatement which is waved by the Imparlance the Plaintiff must not Demurr but move the Court that he may be compelled to plead in chief but if Demurrer be joyned upon it it is not peremptory to the Defendant although the Demurrer be adjourned till another Terme as it was in this Case 22 H. 6. 55. e. And a Respondes ouster was awarded in the principal Case Nota diversitatem betwéen a Plea in Abatement and a Plea to have Aide for if Issue be joyned upon a Prayer in aide and found for the Tenant the Iudgment is only that he have Aide 7 E. 3. 46. Vide StatÌ„ WestmÌ„ 2. cap. 6. for Counterplea of Voucher that if it be adjourned and adjudged against the Tenant it is peremptory to him 2. In. 242. c. 243. a. Prugnell Anne Gosse Pasc 24 Car. Rot. 217. IN a Writ of Error Error upon a Iudgment in the C. B. in an Action upon the Case for that the Defendant in consideration of a Marriage to be had betwéen the Plaintiff and her Daughter promised to give 100 li. to the Plaintiff and 10 li. for Apparel for her Daughter And whereas the Defendant had a Shop in Basingstooke with divers Wares in it she promised to assign over the Shop to the Plaintiff et transferre negotiationem suam angl ' her Trade to the Plaintiff and that she would not use her Trade any longer in Basingstooke And breach assigned in not paying the Money nor assigning the Shop and for that she used the Trade there still c. And upon Non assumpsit a Verdict for the Plaintiff and entire Damages given And Twisden moved for Error that the promise not to use her Trade was against Law and void and cited More 's Reports Pasc 20 El. p. 182. A Bond that one should not use the Trade of a Mercer in Nottingham is void Vide simile Mor ' Mich. 29 El. p. 284. et Hil. 44 Eliz. C. B. que est enter Mich. 42 et 43 El. Rot. 2217. entr ' Geggot et Batchelor A Bond with Condition that one should not use the Trade of a Haberdasher in Kent for four years was holden void Et Lib. 11. 53. h. et 2 H. 5. 6. And this was agréed by Roll for Law who took these differences that where a Bond or Promise restrains the exercise of a Trade although it be as to a particular place only yet if it be upon no consideration the Bond c. is void But if there were a Consideration for the restraint as if A. assign a Shop or sell braided ware to B. there in respect of the apparent prejudice which may accrue to B. if A. should continue the Trade such a Bond or Promise is good and so was it adjudged in Froward's Case upon a Writ of Error out of Bridgenorth But although there be such a Consideration yet if the Restraint be general throughout England it is void Another Exception was that the words transferre negotiationem suam were of an incertain signification but not allowed and so the Iudgment was