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V
^ THE / ''
REPORTS
SIR
KNIGHT AND BARON UT.TATE ONE OP THE
JUSTICES
COURT OF COMMON PLEAS,
OF DIVERS
SPECIAL CASES IN THE COURT OF KING'S- BENCH,
AS WELL IN THE LATTER END OF THE REIGN OF Q. ELIZABETH,
AS IN THE FIRST TEN YEARS OF K. JAMES.
FIRST AMERICAN,
FROM THE FOURTH .ENGLISH EDITION, WITH NOTES AND REFERENCES
TO PRIOR AND SUBSEQUENT DECISIONS.
BV THERON METCALF.
Multa ignoramus, quae nobis non laterent, ti veterum lectio nobis
esset familiaris. Macrob.
ANJMjTf^fl:
PRINTED BY FLJGG AND GOULD.
1820.
U3R,t 'Y CP TW
cu!f(*4-H-3
JUL 23 1901
DISTRICT OF MASSACHUSETTS, TO WIT I
Z>w*rict CZerfe'* Q^ce.
&f Gould
the court °(C?"riZrV(£e™£ ?Q EHzXto, M In th". tat ten year, of
a, wellm ^e JaUer end of the retgn 01 vt gU , h edition, with note, and re-
K. Jame.. Fir.t ^""^S' By Tberon Metealf. Multa ignora-
ference. to prior ^.^^^SSheti.'ndM. e.*et Tamilian.. Macrtb."
ma ., quae note mo laterent, •> *« e ™" t ^ Qf Wri en , it , ed
lDCODfonnitytotbeactoftheco D gre..oi ne . ^ ie8 of
V B . Art /h^ e S^taSKS and pTprie'to™ of .-chfopie. during the UnTe.
chart, and book., to the a ui a or. ■» p p supplementary to an
Jko. W. Davis, J o/ j^^,,,,.
ADVERTISEMENT.
Marginal abstracts of the cases, and references to prior and sub-
sequent decisions connected with the points adjudged and discussed
in the text, have been added to the present edition. Some marginal
references in the English edition, which were found to be imperti-
nent, have been expunged ; and no responsibility is taken for the
pertinency of those which are retained.
The following are the editions of the books cited, of which the
pages are not uniform in different impressions :
Barnes' Notes, 1st ed. 1764. 2 vols. 8vo.
Chitty on Bills, Philad. ed. 1809.
Chitty on Pleading, 2d Amer. ed. 1812.
Jones on Bailment, Boston ed. 1796.
Phiilipps' Law of Evidence, 3d ed.
Roper on Legacies, 2d ed.
Sugden's Law of Vendors, &c, Philad. ed. 1807.
Toller's Law of Executors, 3d ed.
Trials per Pais, 7th ed. 1739.
Sir Henry Yelverton was one of the most eminent lawyers of his
time, and his reputation is fully supported by his Reports and by his
Argument against the power of the crown to establish or enhance im-
positions on merchandise, without the concurrence of Parliament.
The following facts respecting him will be found in the books refer-
red to in the margin.
On the promotion of Sir Francis Bacon to the office of Attorney
General, in the eleventh year of king James, Sir Henry Yelverton
was appointed Solicitor General. (a) He held this office seven years,
when he was appointed Attorney General, upon Sir Francis Bacon's
being promoted to the office of Lord Keeper. In about four years,
having incurred the displeasure of the king, he was removed from
office, and sentenced in the star-chamber to be committed to the
tower. The offence with which he was charged, was the enlarging
of a charter given to the city of London, beyond the king's warrant.
(6) In 1621, while in the tower under this sentence, he was accus-
(a) Cro. Jac. 326. (&) 1 Maccauley's Hist. c. vi. Echard's Hiat. 393.
Hetl. 158.
ed by the commons of having drawn and supported patents for mo-
nopolies, and of other misconduct while he was the king's attorney.
His defence, which implicated the Duke of Buckingham, and was
thought to contain an improper reflection on the king, induced His
Majesty to repair to the House of Lords and require them to punish
the prisoner for his slander. A heavy fine was accordingly imposed
on him for his defence ; but it was afterwards remitted.(c) On the
accession of Charles I. to the throne, he appointed Sir Henry Yel-
verton judge of the court of Common Pleas, which office he held till
his death. He died on the 24th of January 1630; and the notices of
his decease give plenary testimonials of his learning, eloquence, in-
tegrity and piety.(d)
Sir Henry Yelverton's Reports were originally published in
French by Sir William Wylde, in 1661. A second edition was print-
ed in 1674. The third edition was published in English, in 1735,
and the fourth in 1792. His argument against Impositions was first
published in a volume in 1658 ; was republished in 1679, and has
since been inserted in Mr. Hargrave's edition of the State Trials, (e)
(c) 4 Carte's Hist. B. xxi. 1 Maccanley's Hist. c. vi. Hume's Hist. c.
xlviii. in notit, (d) Introd. to pro. Car. Echard's Hist. 448. Hetl. 158.
(c) Vol. xi. p. 52.
TO THE
READER.
TO the restitution of the Laws (which this age hath
most happily attained) we consecrate these monumental
Remains of Sir H. Yelverton : A person of so complete
judgment and renowned abilities in this most honourable
science, advantaged by the times wherein he both prac-
tised and judged, which were learned, and ennobled by
many eminent sages of the Law, his contemporaries ;
that we shall not need to direct your acceptance of
these his judicious Collections, which his own exquisite
pen hath commended to the world. The Cases are se-
lect, such as his curious choice out of the plenty of his
great observation preferred ; and in most of which him-
self was counsel, the weight whereof may well pass for
number. It is not therefore doubted but that they will
. find entertainment without a bespeaking dress, being so
excellent in their native beauty. We shall thus then
leave these Sir Henry Yelverton's Reports to follow
his fame.
Farewel.
WE all knowing the great learning and integrity of the
author do, for the common good, allow and approve
of the publishing of this book.
R. FOSTER,
ORL. BRIDGEMAN,
MATTHEW HALE,
THO. MALLET,
ROBERT HYD^
EDW. ATKYNS,
THO. TWISDEN,
THO. TYRRILL,
CHR. TURNOR,
SAM. BROWNE,
WADHAM WYNDHAM.
TABLE
OF THE
NAMES OF THE CASES.
Abraham v. Wilcox
Acton, Lewis v.
Aden, Ayer v.
Alban v. Brounsall
Alexander v. Lane
Alexander, Raynay. v
Allein v. Randall
Alsop, Shelley t.
Alsope v> Sytwell
Andrew v. H. de Lewkner
Andrews, Cromwell &
Andrews, King v.
Anonymous
Appleton v. Doily
Arnold v. George
Arundel v. Arundel
Arundel v. Tregono
Ashe v. Doughty
Ashton, Burges & Dixon v
Aske, Gomersal v.
Atkins, Brechely v.
Atkinson & Brook, Lee v
Atwood, BlanchfiWer v.
Austen, Grene v.
Austen, Higges v.
Ayer v. Aden
Aylet v. Choppin
Aylin, Goodman v.
Bagshaw v. Gaward
Baily v. Moone
Baily v. Taylor
Baker, Girling v.
Baker & Grendit
Baker & Bp. of P. tr Catesby 100
Balgy, Brinsby v.
Banks, Bradley v.
Barham v. Nethersall
30
Barker, Witham t>.
147
34
Barnard, Newhall v.
225
44
Barnehurst v. Yelverton
83
163
Barnes v. Worlich
31,59
137
Barnes v. Constantine
46
76
Barnes, Hutton v.
79
49
Barret v. Fletcher
152
77
Bartholomew, Dighton v.
2
18
Barton & Gore, Starkey v.
172
116
Barwick v. Foster
167
3,7
Baspole & Long
1
67
Bates, Nevil v.
64
166,168
Beale, Brasier v.
222
135
Beaumont, Harpur v.
67
16
Bedel v. Lull
151
33
Bedle v. Morris
162
116
Belcher v. Hudson
156
121
Bell v. Fox & Gamble
161
?. 128
Berelocke, Rede v.
29
133
Berisford v. Presse
197
10
Bettisworth v. Campion
135
172
Birket v. Manning
65
107
Blach, Everard v.
52
86
Blancbflower v. Atwood
107
152
Blithman, Martyn v.
197
44
Bogan, Kenicot v.
198
183
Boice, Darby v.
123
148
Boldroe v. Porter
22
96
Bolter, Bustard x\
8
69
Bonham, Reps v.
131
25
Booth, Edmonds v.
131
227
Bosden v. Thinne
40
7
Bradley v. Banks
204
sby 100
Bradley, Pure el v.
36
113
Brand v. Lisley
164
204
Brasier v. Beale
222
22
Brecheley t>. Atkins
10
VU1
NAMES OF THE CASES.
Brenley v. Todd 168
Bridges v. Einon 214
Brigges v. Tompson 60
Brigges, Riches & 4
Brinsby t>. Balgy 113
Briscoe, Hollis v. 64
Bristoe v. Knipe 206
Brode v. Owen 23
Bromley v. Littleton 112
Bromwich, Stone & al. v. 161
Broome t?. Wooton 67
Broth with, Hawkes v. 94
Brounsall, Alban r. 163
Brown v. Wentworth 92
Broxholme v. Thorold 177
Bullein, Godfrey v. 196
Burges & Dixon v. Ashton 128
Barton, Sadock v. 202
Bury v. Wright 126
Bustard v. Bolter 8
Butcher, Higgins v. 89
Butler, Salter v. 10
Campion, Bettisworth v. 133
Candish Lord, Savill v. 213
Carpenter v. Colins 73
Carter, Ventres v. 130
Catesby, Baker & Bp. of P. v. 100
Challenor v. Thomas 143
Chambers v. Mason 42, 47
Champernon v. Hill 63
Chanel v. Robotham 68
Chanudflower v. Prestley 30
Charnell v. Holland 49
Cheseman, Middleton v. 65
Chetwynd v. Meeson 220
Child, Durrant v. 217
Choppin, Aylet u. 183
Clark v. Sydenham 85
Clifford, Weaver v. 42
Cobb v. Hunt 119
Cogan, Wildbore t>. 93
Colier, Tompson v. 112
Colins, Carpenter v. 73
Collins, Oliver v. 1 26
Commyn, St. John v. 117
Constable, Sutcliffe v. 223
Constantine, Barnes v. 46
Cook, Dalby t>. 171
Cope v. Temple 146
Core v. Morton 28
Corne v. Pastow 16
Cottels, Pikard?. 56
iCottington, Saunders v. 164
Coveney v. Wooden 220
Cox v. Semor 102
Coxi?. Worral 105
Coxe v. Jennings 17
Crispe v. Viroll 13
Croft v. Walbanke 128
Cromwell's case 15
Cromwell & Andrews 3, 7
Crumpton x>. Smith 5
Crush v. Crush 80
Cushe, Stweton v. 36
Cutcliffe, Samford v. . 1 24
Dalby v. Cook 171
Dale, Parry v. 95
Darby v. Boice 123
Darby, Wallop v. 209
Davis, Gerry v. 105
Davis, Ratcliffv. 178
Davis v. Purdy 182
Dawson 5
Deane, Hinde v. 12
Denbaugh, Woodley v. 186
Dennis, Drury v. 1 06
Deuce v. Deuce 228
Dewclas & al. v. Kendall & al. 187
Dighton v. Bartholomew 2
Dismo t>. Sherley 108
Dixon, Harris v. 72
Dodson v. Kayes 193
Doily, Apple ton v. 135
Dorrington v. East 87
Doughty, Ashe v. 121
Doughty v. Fawn 226
Draper v. Fulkes 165
Draper, Rastell v. 80
Dromantv Westofer 158
Drury v. Dennis 106
Durrant v. Child 217
East, Dorrington v. . 87
Edmonds r. Bo oth 131
Egles, Vale v. 70
Einon, Bridges v. 214
Ellis v. Warnes 47
Everard v. Blach 52
Ewer v. Moile 140
Fairchild v. Gaire 60
Faldo v. Ridge 74
Farmer v. Hunt 201
Fasset, Newlyn v. 154
Fawcet, The King r. 99
Fawsett, Fernely v. 120
IX
NAMES OF THE CASES.
Ferneley v. Fawsett
120
Hern, Liburn v.
211
Field v. Hunt
103
Heyford v. Reve
39
Fish v. Richardson
55
Higgins v. Butcher
89
Fitzwilliam's case
32
Hinde v. Deane
12
Fludv. Rumcey
160
Hobbs, King v.
26
Ford, The King v.
99
Hoddesdon v. Gresil'
104
Freiston v. Shellito
165
Holcraft, Gibson v.
31
Freshwater v. Rois
51
Hollis v. Briscoe
64
Gaike, Fairchild v.
60
Holsworth v. Procter
110
Game & ux v. Harrie
50
Honyman, Tocock v*
6
Gerry v. Davis
105
Home v. Widlake
141
Gibson v* Holcraft
31
Hostler's case
66
Gill v. Glasse
227
Howse v. Webster
103
Girling v. Baker
227
Hudson, Belcher v.
156
Goddard v. Thorlton
170
Hughes v. Kerne
215
Godfrey v. Bullein
186
Hughes v. Phillips
38
Godley v. Frith
159
Hund.de Lewkner, Andrew v.
116
Gold v. Robins
145
Hunt, Cobb v.
.119
Gomersal v. Aske
133
Hunt, Farmer x;.
201
Gomersall v. Medgate
194
Hunt, Field v.
103
Goodman v. Aylin
143
Hunter, Massam v.
189
Goodwin v. Welshe & Over
151
Hutton v. Barnes
79
Goodwyn v. Goodwyn
39
Huys v. Wright
35
Goodyer v Junce
179
Jackson, Odingsall vi
224
Goring v. Goring
11
5qStbj v. Guy
78
Grene v. Gascoigne
36
Jemx, Martham v«
97
Grene v. Austen
86
Jennings, Coxe v.
17
Grene v. Eden
138
Jennings v. Haithwaite
106
Grendit & Baker
7
Jennings v, Hatley
20
Gresbam v. Grinsley
88
Johnson v. Turner
6
Gresham, Semayne v.
29
Johnson v. Procter
175
Gresil v. Hoddesden
143
Jones, Smith t?.
184
Gumons v. Hodges
12
Kayes, Dodson v.
193
Guie, Heines v.
107
Kerne, Hughes v.
215
Haithwaite, Jennings v.
106
Kendall &al, Dewclass &al, v.
187
Harburne, Wood v.
52
Kenicot v. Bogan
198
Hargrave v. Rogers
52
Ket v. Life
125
Harpur v. Beaumont
57
King v. Hobbs
26
Harpur, Redhead v.
114
King v. Andrews
57
Harrington v. Laundson
97
King v. Gosper & Shire
58
Harris v. Dixon
72
The King v. Fa wee t
99
Harrison v. Fulstow
108
The King v. Ford
99
Harrison. Rice r.
221
The King v. Matthew
90
Harvey t?. Young
21
The King v. Staverton
190
Harvie, Game & ux v.
50
Kenrick v. Pargiter
129
Hatley, Jennings v.
20
Knipe, Bristoe v.
206
Hawes v. Loader
196
Kniveton v. Roiley
182
Haukshead, Wood v.
14
Knot, Tompson 7?.
144
Hawkes u. Brothwith
94
Lacon, Lee v.
69
Heake v. Moulton
90
Lane v. Alexander
122
Heape, Stile v.
72
Lane, Alexander v.
137
Heines v. Gaie
1
107
Lane, West v.
137
NAMES OF THE CASES.
Lapworth v. Wast 77
Lathbury &uxd. Hum fry 115
Lea v. Minne 84
Lee v. Atkinson & Brook 172
Lee v. Lacon 69
Lewis v. Acton 34
Life, Ketr. 125
Lilburn v. Hern 211
Lieley, Brand v. 164
Littleton, Bromley v. 112
Loader, Hawes v. 196
Loggins v. Titheton 225
Long, Baspole & 1
Lovelace, Wilcocks v. tl
Lucas v. Fulwood 208
Lull, Bedell v. 151
Lasher, Paston v. 1 55
Man, Winkworth v. 114
Manning, Birket v. - 65
Martham v. Molineux 1&0
Markham v. Turner • . 155
Markham, Taylor v. 1 57
Martham v. Jemx 97
Martyn t?. Blithman 197
Mason, Chambers v. 42, 47
Massam v. Hunter 189
Matthew, The Kingt?. 90
Medgate, Gomersall v. 194
Meeson, Chetwynd v. 220
Middleton v. Cheseman 65
Miller's case 120
Milton, Tuthil v. 158
Minne, Lea v. 84
Moile, Ewer v. 140
Molineux, Martham v. 120
Molineux v. Molineux 169
Molineux v. Rigges 55
Moone. Baily v. 69
Moon, Pratt v. 82
Moore v'. Foster 62
Moore v. Hawkins 1 80
Mordant t>. Walden 110
Morgan v. Sock 219
Morley, Slade v. 21
Morris, Bedle v. 162
Moulton, Heake v. 90
Mouse v. 46
Musgrave •». Wharton 218
Nedham, Poole v. 149
Neale*. Sheffeild 192
Nethersall, Barnaul v. 22
Nevil v* Bates 64
Newhall v. Barnard 225
Newly n v. Fasset 154
Newsam, Pudsey v. 44
Newsam & ux, Smith v. 189
Newsam & ux, Tampiam v. 210
Nile v. Swanson 142
Norton, Rippon r. 1
Nowell Sir Aud. 81
Odingsall v. Jackson 224
Okeleyv. Salter &c. 176
Olliver v. Collins 126
Orde v. More ton 211
Owen x;. Williams 108
Paine's case 1 1 1
Paler k Bartlet v. Hardyman
& ux. 71
Palmer v. Welder 59
Pargiter, Kenrick v. 129
Parkehurst v. Palmer lt>4
Parry v. Dale 95
Pastow, Corne v. 16
Paston tv Lusher 1 55
Peirson v. Pountneys. 135
Perient, Tatem & Poulter v. 195
Persival v. Spenser 46
Phillips, Hughes v. 38
Pikardt\ Cottels 56
Pickas v. Guile 128
Pigot v. Pigot 64
Pincombe v. Rudge 139
Pirley, Woolby v. 213
Poole v. Nedham 149
Porter, Boldroe v. 22
Pratt v. Moon 82
Pridham v. Tucker 1 68
Prestley, Cbanudflower v. 30
Priestly v White 173
Procter, Holsworth t\ no
Procter, Johnson v. 175
Prohibition, case of 65
Prowse v. Turner 167
Pudsey v. Newsam . 44
Purcell v. Bradley 36
Purdy, Davis v. 182
Pye, Rosse v. 207
The Queen v. Fenton & al. 28
Randalls. Wale 38
Randall, Allein v. 49
Rastell v. Draper 80
Ratcliff v. Davis 178
Raynay t?. Alexander 76
Rede t\ Berelocke 29
NAMES OF THE CASES.
XI
Redhead v. Harpur
Relfe, Staverten v.
Reps v. Bonham
Rice v. Harrison
Richardson, Fish v.
Riche, Wilson v.
Riches & Bridges
Ridge, Faldo v.
Rippon v. Norton
Robotham, Chaneli v.
Rock v. Rock
Roiley, Kniveton v.
Rois, Freshwater v.
Rolls v. Yate
Ross v. Pye
Rudge, Pincombe v.
Rumcey, Flud v.
Sadock v. Burton
St. George's case
St. John v. Commyn
Sallowes v. Girling
Salter v. Butler
Saunders v. Cottington
Samford v. Cutcliffe
v. Scullard &
Sands & al
Dawby
Savill v. Candish
Scadding's case
Semayne v. Gresham
Slade v. Morley
Shaw, Whorewood v.
Sheffeild, Neale v.
Shelbury v. Scotsford
Shelley v. Alsop
Shellito, Freiston v.
Shire v. King .
Slocomb v. Hawkins
Smith, Crumpton v.
Smith v. Jones
Smith v. Newsam & ux.
Smith v. Smith
Smith v. Turner
Sock, Morgan v.
Soprani & Barnard i v. Skurro 19
Sparke v; Sparke 9
Spencer & Woodward v. Rut-
land 208
Starke v v. Barton k Gore 172
Staverton r. Relfe 160
Staverton, The King v. 190
Stile v. Heape 72
Stone & al. i\ Bromwich 161
114
160
131
221
55
1
4
74
1
68
176
182
51
177
207
139
160
202
63
117
203
10
164
124
109
213
134
29
21
25
192
23
77
165
32
222
6
184
189
130
104
219
Strickland v. Thorpe
Stweton v. Cushe
Sutclifle v. Constable
Sydenham, Clark v.
Taylor v. Markham
Talbot v. Godbolt
Tampiam v. Newsam & ux. 210
Tanner v. Small 95, 102
Tatem & Poulier v. Perient 196
Temple, Cope v.
Thtnne, Bosden v.
Tocock v. Honyman
Tompson, Brigges v.
Tompson v. Colier
Tompson v. Knott
Trough ton v. Googe
Trulock v. Rigsby
Tucker, Pridham v.
Tuerloote v. Morrison
Tuthil v. Milton
Vale v. Egles
Ventres v. Carter
Viroll, Crispe v.
Walbaicke, Croft v.
Walden, Mordant, v.
Wale, Randall v.
Wallop v. Darby
Ward v. Walthewe
Wames, Ellis v.
Wast, Lapworth v.
Weblin v. Mayer
West v. Lane
Weaver v» Clifford
Wharton's case
Whorewood v. Shaw
Wilcocks v. Lovelace
Wildbore v. Cogan
Wilehire v.
Wilson v. Riche
Wilson v. Weddell
Winkworth v. Man,
Winter Sir Ed.
Witham v. Barker
Wood v. Haukshead
Wood v. Harburne
Woodley v. Denbaugh
Wooiby v. Pirley
Wolfreston
Yaites v* Gough
Yate, Rolls v.
Yelverton, Barneburst t\
Young, Harvey v.
126
36
223
85
157
137, 147
126
40
6
60
112
144
166
185
153
198
158
70
130
13
128
110
88
209
101
47
77
153
137
42
24
25
27
$3
146
1
144
114
66
147
14
52
186
213
51
33
177
83
21
INDEX TO THE NOTES.
Abatement,
pleas in, mutt give a better writ
except when the matter might
have been pleaded in bar 1 12
See Joinienants.
Account,
what may be pleaded in bar, and
what before auditors £02
proceedings when plaintiff dis-
putes the matter alledged be-
fore auditors . 202
law of, in Pennsylvania 202
Actions,
local . . 12. a. 162. a.
if brought in wrong county
and it appear on the re-
cord, cause of demurrer 12. a.
lies for one in whose favor a
promise is made to a third per-
son ... 25
Administrators, see Executors.
how to plead after administra-
tion revoked . . 125
effect of revocation of their au-
thority . . 125
de bonis non, durante minore ae-
tate, and pendente lite, scire
facias by and against . 33
declaration by and against 128. a.
when their authority ceases 128. a.
Appeal,
law of, referred to . 204
Appendant & Appurtenant,
what properly so called 159. a.
existing right of way, will pass
by name of . • 159. a.
Arbitration,
of title to real property . 97. a.
pleading on bond for performance
of award . 98, 153
Assumpsit,
indebitatus first established on
its present principles . 21
lies on account stated 70
lies against executors, &c. on
promise of the deceased 21
consideration in 4. a. b, e, 11. a.
84. b. 184
Audita Querela,
to discharge from judgment re-
covered by administrator or
executor . . 125. a.
to avoid an irregular execution 179. d.
Autrefois acquit, &c.
how to be pleaded . 205. a.
Bail,
special not to be taken in actions
on penal statutes,unless author-
ised by statute on which suit
is brought . . 53
Bailees,
rights and liabilities of, actions
by and againt . 162, 172
may be guilty of larceny 172
lien of . . . 67./.
Baron & Feme,
actions by and against ;
when should join and be joined
in suits, and when not 90
trover against, how conversion,
should be alledged . 166. a.
how should conclude as to
damages, in different cases 90
verdict against, how judgment
to be rendered 106. a
when wife may be imprisoned
without husband 106. a.
of feme executrix, &c. 84. a.
rights and liabilities of husband
and wife, when she is execu- .
trix, &c. . 84. a.
difference between them and co-
executors, &c. . 84. a. 6.
husband cannot release promise
made to wife before marriage
to be performed after his de-
cease . . 156. a.
Bonds,
pass by gift or bequest of goods
and chattels . • 68. 5.
admit of no locality . 68.6.
may be demanded in writ, by
name of goods . 68. 5.
condition of, when good & when
void ... 197
of indemnity, when broken 207
good, though giv-
en to secure a-
gainst usurious
contract of obligor 47
Commencement of suit,
when, in Kiug's Bench . 7 1
when in N. York and Massachu-
setts . . . 71
if before cause of action, when
cause for demurrer, arrest of
judgment and error . 71
INDEX TO THE NOTES.
xui
cases on the subject, discussed 7l.a.6.
Commoners,
rights and remedies referred to 130
Consideration, see Assumpsit
necessary in all cases, to support
a parol promise . 4. a. 11. a.
one of two void, yet contract
good ... 57
one of two illegal, contract void 57
to indemnify against past illegal
act, good • • 197
past and executed, when suffi-
cient and when not . 41. a.
of moral obligation . 41. 6.
of forbearance . 84. 6. 184
how to be stated in pleading 4. 6. 57
77
See Pleas & Pleadings.
Covenant,
action of;
by one of several covenantees 177
joint and several . . 177
dependent and independent 77. 134.a.
general words in, restrained by
others . . . 175
for quiet enjoyment,generally ex-
tend only to tortious eviction 30
exceptions . • 30
breach of, what . • . . 77
Damages,
> cannot be recovered beyond a-
mount claimed . • 45. a.
may be remitted . • 45. a.
double, to be assessed by court 176. a.
or by the jury . 176. a.
some must be given on writ of
inquiry . . ' 152. a.
when may be assessed by court 152. a.
assessing, practice of, in differ-
ent courts . • 152. a,
against cotrespassers .68. a.
when assessed by court of error 76. a.
Deed,
date of ... 194
blanks in, filled by consent 96
to be prepared and tendered by
vendee . .45
Departure, see Pleas <$" Pleadings.
Detinue see Judgment
Devastavit,
of one coexecutor coadministra-
tor, does not render his com-
panion liable . • 84. a.
of wife, how chargeable to hus-
band . • 84. a. 6.
Discontinuance,
in pleading, helped by statute of
jeofails . • 6 $
Doors, see Sheriff-
Ejectment,
does not lie for a water course 143
ouster in, how laid 182. a.
Elegit,
tenant by, and his assignee, must
restore the term, if judgment
is reversed . . 180
Error,
effect of in nullo est erratum
pleaded to error in fact 57
assignment of, how to conclude 58
judgment in, on affirmance and
reversal • . 76
assignment of what is for party's
advantage, when allowable 107
lies to correct award of execu-
tion . . 179. d.
Estoppel, see Pleas £ Pleadings,
Estray,
may be fettered, if unruly, but
not worked ... 97
property in, when acquired 97
Execution, »
not to be superseded after it is
regularly begun . . 6
when writ of error supersedeas of 7
how awarded by court of error 76. b.
sa)e under, gives title to vendee,
though erroneously issued, if
the goods belong to judgment
debtor . . 180. a.
return of, necessary in Massachu-
setts, to give valid title to pur-
chaser under it . 180. a.
See Process.
Executors, see Administrators.
when liable for rent, as assignee
of testator . . 103. a.
when liable without assets 1 1
not released, by their appoint-
ment, from debt to testator 160
must all join in suit, though one
be under age ... 131
of full age, may make attorney
for those within age . 131
infant, cannot appear to defend
by attorney . . 131
feme covert, powers, &c. 84. a. b.
de son tort, what makes 138. 197
rights of . . 138
Fraud,
nude assertions no ground of ac-
tion . . . 21. a.
false affirmations, when ground
of action . . 21. a. b.
intentional deception necessary
to constitute actionable fraud 21. 6.
Heir,
not liable on simple contract of v
ancestor . . • 56
not liable on specialty, unless ex-
pressly bound . . 56
XIV
INDEX TO THE NOTES.
Highway, see Way.
Indemnity, see Bonds.
Innkeepers,
rights and liabilities of 67. a. o. 16 2. a.
power of by custom of London 67. a.
Inquiry, writ of,
when necessary and when not 152. a.
Insimul computassent,
no bar to genera) indebitatus or
quantum meruit . . 70
evidence of, what . . 71
first reported case of . 70
Joinder,
of promisees and obligees, neces-
sary . . 27. a.
neglect of, how to be excepted
to . . 27. a. b.
Serjt. Williams 1 rule questioned 27. a.
of executors &admini8trators84,6. 131
of partners, for slanderous words 129
See Covenant, Jointenants, and
Tenants in Common,
Jointenants,
must join in real and personal ac-
tions . . . 162
death or marriage of one abates
a real, but not a personal ac-
tion ... 162
Judgment,
in detinue, is in the alternative 219
when shall be rendered contrary
to verdict . . . 24
what given by court of error 76
erroneous when enforced, will
not subject the party . 42. a.
in former suit, when a bar 68, 174.6.
unsatisfied, against coobligor 68. a.
against cotrespasser 68. a.
Lien,
what / . . . 67. e.
on personal property . 67. e.
particular, what and who enti-
tled to . . . 67. e.f.g.
general, what and who entitled
to 67. h.
waver of, when implied by law 67. 6. i.
whether waved by contract for a
specific sum, discussed 67. b.c.d.e.
on real property . . 67. i.
waver of, what . . 67. Lj,
Lights, stopping of, see Nuisance.
Malicious Prosecution,
grounds of, and pleadings in 105. a.
anomaly noticed . . 105. a.
Master & Servant,
both or either liable for tort di-
rected by master . . 145
either may have action against
an innkeeper, or the hundred,
or an appeal of robbery 162
Months,
are lunar, in English statutes 101
in legal proceedings 101
are calendar, in law merchant,
ecclesiastical law, and statutes
in Mass. and Pennsylvania 101. a.
in matters of contract, are con-
strued by parties 1 intent 101 .a.
Notice, see Pleas o> Pleadings.
Nuisance,
in public or private ways, may
be abated by an individual 142. a.
by stopping lights, when action-
able . . 216. a.
Parceners, see Jointenanis.
Parliament,
prorogations, adjournment and
sessions of, how to be plead-
ed . . 127. a. b.
Pawns,
difference between, & mortgage
of goods . . . 179. a.
may be redeemed after pawnor's
death . . 179. a. b. c.
how and when redeemable, if no
time limited . 179. c.
how to be disposed of, if not re-
deemed . . 179. a.c.
Perjury,
cannot be when the court has no
jurisdiction of question tried HI
Pleas & Pleadings,
declaration ;
venue in 12. a.
reciting vicious original . 109
general allegation allowed, when
plaintiff has not means of par-
ticular knowledge . . 76
need not aver what is necessarily
to be collected from the' record 176
must aver performance of condi-
tion precedent . 77, 134. a.
of averring performance of con-
sideration ... 50
one of two considerations, if
void, need not be seated 57
of alledging matter of aggravation 90
on mutual promises, how to be
alledged . . . 134. a.
on statutes, recital and misreci-
talof . . . 127. a. b.
request, special not necessary if
cause of action is an existing
debt . . . 67. a.
necessary, if ac-
tion is founded on collateral
matter . 67. a.
notice, when to be averred 168. a.
in different actions ;
against heir on promise to pay
INDEX TO THE NOTES.
XT
debt of ancestor . 56
by and against limited adminis-
trators . . 128.. a.
in trespass, nee<J not set forth a
title . . . 148. a.
in replevin, most shew the locus
in quo .... 18*5
in trover , . 166. a. 174. a.
in case for stopping lights, need
not aver that the lights are an-
cient . . . 216. a.
against husband and wife, how
to conclude . 90, 166. a.
immaterial and impertinent aver-
ments . . . 195. 6.
pitas in bar ;
general statement allowed, where
defendant has not means of
particular knowledge . 76
misrecital of the time of statute
not fatal . . . 127. b.
by executor de son tort . 138. a.
repeal of authority of executors
and administrators . . 125
in debt for performance of an a-
ward .... 153
in replevin . . . 146. a.
in account, what pleadable 202
in assumpsit, account stated and
promise to pay balance, no bar 70
in trover, what good . 174. a.
reputation ;
de injuria sua propria, when good 158
when aided by verdict 158
that defendant is executor de
son tort . . 138. a.
to a plea of no award . 153
traverse ;
cannot be after confession and a-
voidance . . 148. a. 151
ought to be express . 171. a.
must not be too narrow • 195
need not be after quae est eadem 172
of command, allowable . 148
inducement of, must contain mat-
ter to defeat the other party's
title ... 148
not necessary, when one sued as
executor pleads that he is ad-
ministrator . . .115
necessary if one sued as admin-
' ministrator pleads that he is
executor . . . 115
may be of a precise allegation,
though unnecessarily made 195. a.
departure ;
in answering breach of award 153
in replication of custom to fortify
a plea founded on common law 15
estoppel ;
when party estopped to deny
matter in his deed . 227
usue;
no general, in account 202
similiter, want of cured by defence 66
amendable 65
not to be averred
against the record 65
Process,
civil and criminal 29. a. 6.
void and voidable 42. a.
voidable will not justify party in
whose favor it issues, after it
is vacated . . -j 42. «.
service of, whether void if doors
broken . . 29, 6. c. d. e.
Property,
of debtor, not changed by mere
seizure in execution . 44. a.
in estrays, not gained till year
and day past . . 97
of sheriff, in goods seized by him 44
Quo Warranto,
when and for what it lies . 190
process in 190
judgment in . . 192
Remainder,
when accounted as one with the
particular estate, and when as
a several estate ... 1
Replevin,
at common law, lies only where
trespass will « 146. a,
not confined to case of distress 146. a.
in Pennsylvania and Massachu-
setts . . . 146. a.
avowant must make good title
in omnibus . . . 149
Scire Facias,
by and against excutors and ad-
ministrators ... 33
Sheriff,
cannot take advantage of erro-
neous issuing of process 42. a.
cannot justify under process void
on the face of it . . 42. a.
authorized and compellable to
sell goods after out of office,
which he seized before . 44
acquires a special property in
goods by a seizure . . 44
when he may break doors 29. o. b.
whether service of civil process,
after breach of door, is valid,
discussed . . 29. b. c. d. e.
Similiter, see Pleas <$• Pleadings.
Slander, see Words.
Statutes,
penal and remedial, distinction
between . • 53
in suits on, when to.coaclude a-
gainst the form of the statute
XVI
INDEX TO THE NOTES.
162
90
97
or statutes • 116
punishment prescribed by, when
may be indicted 116. a.
how to be pleaded . . 127. a.
misrecital of, when fatal 127. a, b.
title and preamble of • 127. a.
public and private, how plead-
ed . . 116. 127. a.
Tenants in common,
must sever in real, and join in
personal actions
Tresi&s,
proper action by master for bat-
tery of servant, and husband
for battery of wife
merged in a felony, meaning,
reason and extent of 90.
will not lie against one who takes
an astray from the lord before
year and day past qu,
always lies where replevin will 146 a,
Trover,
by and against husband and
wife . . 166. a.
special pleas in, what good 174. a.
conversion, what . . 174. a.
Usury,
taking interest semiannually, not
other points
when to be pleaded and when
given in evidence under gen-
eral issue ... 47,
Variance,
in the consideration stated, and
that which is proved . 57
in not proving unnecessary aver-
ments . . . 195. 6.
In syllables and words, not to af-
fect party's rights . 95. 255
Venire de Novo,
practice of awarding, in differ-
ent courts . . 76. a. b.
Venue,
history of • . . 12
necessary as matter of form, in
a declaration . * 12. a.
want of, or wrong, cured by ver-
dict . . • 12. a.
unnecessary in pleas 12. a.
a.
12. b.
24
78
78
94
in local justifications
Verdict,
when judgment shall be contra-
ry to
ought to find the matter in issue
expressly *
will serve, if point in issue can
be concluded from the finding
cures defects in pleadings, 50. 65,
195. a. 164. 12. a. 21. a.
VlDELICIT,
what comes under, when to be
rejected as surplusage 94. 182. «.
if material, to be proved, and is
traversable
Warranty, see Fraud.
does not extend to patent de-
fects . . . . 21. c.
of soundness, not implied in sale
for a sound price, 21. b. c. oth-
erwise in S. Carolina &c. 21* c.
not especially implied in sale 'of
provisions . . 21. c.
remedies on . . • 1 15
Way,
may be termed appendant or
appurtenant . 159. a.
termini of public highway need
not be stated ; secus of private
way
manner of, must be stated
stopping of, remedy for
by prescription, not lost by non
user
assigning a new, does not justify
stopping an old
obstruction of, may be abated 142. a.
Words,
whole sentence to be taken to-
gether
innuendo, effect of
perjury and forsworn, difference
between, and reason
old difference between and Sifor
exploded
spoken in scandal of title, not
gonerally actionable in them-
selves ; supposed exceptions
imputing a punishable offence,
actionable in themselves 90. a
164
164
142
142
142
11
28
34
89
IN THE GOUET OF KING'S BENCH.
Termino Paschae anno quadragesimo quarto
Elizabeths Begins
Baspole & Long.
Cro. Elte. 879- Noy 42. S, C.
THE custom within a copyhold manor is, that npon a sur- proton that
vender made to one and his heirs, if three proclamations pass, *' 8U "ftnder-
and he doth not come to be admitted, the lord shall have it £*£ do°not
as forfeited. A surrender is made to the use of A. for life, the take it up at
remainder to B. in fee ; A. suffers three proclamations to pass, the next
and doth not come to be admitted; yet this doth not forfeit fw"* he shall
the estate in remainder, neither shall the lord have it upon ** ^f e ^. J*
this default of the tenant for life ; for here the estate of A. and ^ociaim oC
B. are divided estates, and the custom shall be intended of an tenant for
Entire fee-simple given to one person ; and the custom being life shall not
to bar an estate, shall be taken strictly. Adjud. (1) Quaere, if bar him in
such surrender is made to A. and B. and their heirs, and A. remainder.
comes within the time of the proclamations, and B. doth not, ! ?' ^wy**
if now A. shall have the whole, op that a moiety shall be for- 1 show. 3l!
feited? aS.2ialk.S86
(1) For the benefit of him in re* as a several and divided estate, and
mainder, his estate is accounted as shall not be affected by such act.
one with the particular estate: but as Godb. 309. Royden & Maulstafs
to any prejudice, which he may re- case. T. Ray. 402. Zingan & al. v.
ceive by the act of the particular Talmage. Bac. Abr. Remainder &
.tenant, his remainder is accounted Reversion, I.
WUson vs. Riche.
1 Brownl. 1*4. S. C.
BARON and feme join in a lease by indenture to B. yield- j^ ejectment
ing rent ; and it is for years, and they make a letter of attor- a i e age deliv-
ney to seal and deliver the lease upon the land, which is done ered ea the
2
Pasch. 44 Eliz.
land by let- accordingly : B. brings an ejectment, and declares upon a de-
ter of attor- m j ge mac | e by baron and feme ; and upon evidence to the jury\
ronandfeme' 1 was ratedb y P°pham chief justice, Fenner and Yelverton,
does not sup- that the * ease did Dot maintain the declaration; for a feme
port a decla* covert cannot make a letter of attorney to deliver a tease of
ration upon her land, although a rent is reserved upon it, but her warrant
a demise by of attorney is merely void: So this lease is only the lease of
both * the husband, which is not maintained by the declaration. (1)
Yelverton was of counsel with the defendant
(1) 2 Brownl.248. Plomerv. Hock- that of the text Adams on Eject
head. Noy 133. S. C. ace. Cro. Car. 1 75. By the common rule, the de-
165.— -v. Hopkins, 2 Bulst. 13. mise is now confessed as laid. Rusw
Anon, contra. The better opinion is on Eject 148.
Kippon v$. Norton.
Cro. Eliz. 881. 5. C.
That A. will THE son of J. S. assaults J. D. and his son. J. D. goes to
forbear4ore- a justice of the peace to complaints well on his own behalf
quire 8Uf j*"as on ^ behalf of his son : J. S. comes to- J. D. and desires
peace°on hit *" m to cease and forbear his complaint, and he would under-
own and B'stake that his son should keep the peace both against him and
account, a- his son. The son of J. S. afterwards breaks the peace upon
gainst C. is a the son of J. D. and the son of J. D. brings assumpsit against
good consul- j m g # an( j ded areg on the matter aforesaid; (1) and 'twas ad-
#ra V°2 "i judged by Gawdy, Fenner and Yelverton, that the action well
a promise * ajr ' am * *^ e con »Kieration precedent was sufficient for the
made by p. plaintiff to maintain his action against J. S. for although the
to A; and B. plaintiff himself did not complain to the justice of the peace,
may sue for a but J D. his father, yet because J. D. had cause to complain
breach of it. both for himself and for his son, and by reason of the com-
Freem n5 P laint matie in behalf °^ the * on the plaintiff, the son of J, S.
reem. ~ , m ^i De i n question before the justice of the peace, for that
reason the consideration is good ; for upon the defendant's
.promise, the complaint, by which his son might be brought in
question, was stayed. (2)
(I) In an action on this promise, ment was arrested. Cro. Eliz. 848.
brought by J. D. against J. S. judg- (2) See post 25. n. li
Dighton vs. Bartholomew.
Cro. Eliz. 881. & C.
A DIGHTON brought native hob. against Bartholomew in the
?° *" t 0B8 a J '. county, and it was removed by pane into the common pleas, at
pearing m the day of the return whereof Dighton did not appear; and
aativo hab-judgment was given that Bartholomew, &c. should be infrai*
Pasch. 44 Eliz.
chised forever. In a writ of error brought on this judgment « do, juJg-
in B. R. it was adjudged that it should be reversed; for the men f »«**»
judgment should be only that the plaintiff should be in nusere- £. ™ 18erecor *
cordia, and not that the defendant should be infranchised ; for 5 m a ^08,
the non-appearance of the plaintiff in the no*, hob. at the day is Atk 711.
of the return of the pone is but a nonsuit before appearance ; Wood's JnsK
for the action and the pone may be brought by some stranger, **•
as well as by the plaintiff; and although the pone says adpe-
titionem petent. yet that is but recital and supposal, which doth
not conclude the plaintiff in this writ of right Also the pone
issues out of the chancery, which is another court than that in
which judgment is given ; ami the pone is not any. declaration,
but at the day of the return of the pone, if the plaintiff and de-
fendant appear, the plaintiff ought to count on the writ of not.
hob. alledging seisin in. fee, esplees, and producing some of
the defendant's blood, who acknowledged himself to be villein; * Y*£:' & ' ?K
as appears by * 19 H. 6. 13 E. l.(a) Vill. Vide 12 E. 3. Vill. SH Sl^V*
44. (b) 12 E. 2. Vill. 19 E. 2. (c) ibid. 6 E. 2, (d) ibid. Yel- \ c j F itz. 32*.
verton. was of counsel with, the plaintiff* . (d; Fits. 26*
Croucherrs. Fryar*
Mo. 618. Cro. Eliz. 704. 784. S. C.
. A parson sued a copyholder in the spiritual court for tithes Copyholder*
arising upon the copyhold land ; he brought a prohibition and ? f s P iritua *
suggested that the bishop of Winchester, lord of the manor J^SJ^J.
whereof his copyhold is parcel, and his predecessors Ac. frora"^ decim-*
time whereof, &c. for themselves, their tenants and farmers, ando.
have been discharged of tithes arising upon the said manor ;
and shewed that he had been a copyholder of the said manor
from time whereof, &c. and prescribed in his lord, now bishop
of Winchester. And although here is a prescription upon a [ 3 ]
prescription, one in the copyholder to make his estate good,
the other in the bishop to make his discharge good, yet ad*
judged by Gawdy, Fenner and Yel verton, that the prohibition tfoy ^
lies. Yel verton, of counsel with the' plaintiff, alleged the
matter supra, which was allowed. Nota the reason ; for a pre-
scription in the lord ought of necessity in common intend-
ment to precede the prescription in the estate of the copyhold
der, and the discharge of the tithes in the lord, (which may
well be in this case, because he is a spiritual person) shall 9
trench to the benefit of the tenant,, who is the copyholder, for
by this means it is presumed that the lord has greater fines
and rents. Nota, Popham was against this judgment, because
the plaintiff, who is the copyholder, will have, in suo genere^
an estate of inheritance distinct from the estate of the lord,.
who is the bishop. (1).
(1) See 1 Rol. Abr. 653. 2 Co. Sydorvne v. Holmes. 3* Bur. 1273.
44. Bishop of Winchester's case. Mo. Stephenson v. Hill.
319. Branch's case. W. Jon. 308*
Parch. 44 Eli£
The Lord Cromwell k Andrews
Cro. Eliz. 891. Noy 44, S. C.
If an assize IF an assise between A. and B. is summoned before josH-
id 8UX Krf° ,i * ceB °* aB8 " e » aiw * tn€ y arc amoved, and the chief justice of
justices °of tne comm011 pi e »»» «nd another justice are justices of assise
assize and * n * ne *&me county, and the assise is taken before them,
they are re- and adjourned for difficulty into the common pleas, where
moved, and judgment is given for the plaintiff; and he against whom the
5* e" P * a88ise P* 8869 brings a writ of error in the Kind's Bench ;
another a wn * cn wr *' * 8 directed to the same chief justice of the corn-
appointed mon pic*** before whom the assise past, and recites the assise
Justices ef summoned before the justices of assise by name, as (reticra
tfssize, and fait) before Gawdy and Walmsley, and postmodum capta be-
the assize ta- fore the chief justice of the common pleas, &c. and does not
Iten before rec ft e how the assise came into the common pleas, sc. by ad-
journed 8 for J ournme nt, or for other cause; this writ of error is not good ;
difficulty in- for as D F * ne removal of the former justices of assise, before
to C. B. whom the assise was taken, the writ of error by a postmodum
where judg- ought to recite the assise taken before other justices of assise,
» cn t is given (and yet there is only a change of the justifies, and not of the
tiff, aEda court ) a f ortiari thcre ot, g ht to t* 5 in the writ of error anothe r
writ of error postmodum when it is adjourned into the common pleas ; for
Is brought in now both the judges and the court are changed. And a dif-
B. R. direct* ference was taken between the case of an assise and of a
6,1 p T the t uare itnpedit, for the assise ought to be originally commenced
c!b befb DC ^ ore tne J U8t * CC8 °f ass^e* and so by presumption and in-
whomthea™ te, "dment judgment also given before them, and not in the
size passed, common pleas, unless upon adjournment : And therefore, if
reciting the judgment is given in the common pleas, it ought to be speci-
assize sum- fied certainly how the record of assise came into the common
J? 00 ' 1 ! k?J OPe pleas. But in error to remove the record of a quare impedit,
of Assize fby tn€ *"* " not °^ 8UCn P rec * 8e f° rm ' because tne action orig-
r 4 V inally commences before the justices of the common pleas*
name) and and °y intendment judgment given there, although by the
postmodum statute to avoid a lapse judgment may be, given before the
capta before justices of assise. And Fitz. N. B. recites such form of a
c^if* J 'ii 0f w "* °^ erPOr » wm *ch recites the adjournment, &c. Adjudged
does not re* ^^ tot ' Cur ' ; yet aH the cur8 * tor8 were of a contra jy opinion,
cite how the ^ n< * a,8 ° m tne ca8e su P ra it was adjudged, that if an assise
assize came fo brought against four, and judgment is given against them,
into C. B. upon which they four bring a writ of error, and upon the scire
—the writ of fac. by the plaintiff (who recovered in the assise) quare Ere*
enw is not aaionem habere rum debet, one only appears, and the others
500 ' make default, and he who appears assigns errors per se y and
Cro. Jac. 94. the defendant in the writ of error pleads in nutto est erratum,
* Co. 69. b. this assignment of errors by the one only is ill ; for all ought
2 Bnlst. 171. to assign the errors together ; and therefore the writ of error
M0^%' N - ("* Po P nara 8a y0 * 8 discontinued ; for although a writ of er-
$.20. * * ror ' 8 out a commission to examine the errors, and may be
lodged in court seven years without being discontinued, yet
Pasch. 4* Elte.
After the parties have once proceeded upon it (as in this case)
it may be discontinued as well as any other action. And in
this case, when one of the plaintiffs in the writ of error ap-
pears, and the others make default, (1) be who appeared ought
to have prayed process adsequend. simul,and thereupon judg-
ment of severance ought to have ensued ; for before appear*
ance there can be no judgment of severance without process;
but it is otherwise after appearance ; per 38 E. 3. 3. b.
[4«]
(1) In such cases, the court will
grant time to assign errors, until the
others can he summoned and sever-
ed. 2 Stra. 793. Frcscobaltk v. Kim
aston. 2 Seilon's Pract. 404.
Riches & Brigges.
Cro. Eliz. S83. S. C.
IN an action on the case, the plaintiff declared that in con-
sideration he had delivered to the defendant twenty quarters
of wheat, the defendant promised upon request to deliver the
same wheat again to the plaintiff. And adjudged a good con-
sideration ; (1) for by Popham and UU cur. the very posses-
sion of the wheat might be a credit and good countenance to
the defendant to be esteemed a rich farmer in the country, as
in case of the delivery of 10002. in money to deliver again
upon request; for by having so much money in his possession
he may be preferred in marriage. Queere 9 for it seems an
Asiumps^
lies on a pro-
mise that in
considera-
tion of goods
being imme-
diately deli*
vered to A.
he would re-
deliver them
toB.
(1) The first reported case, in
-which it yras holden that a consider-
ation was necessary to support a
promise, is Walton v. Brinth, 2 H.
I V.3.b. Defendant promised to re-
pair certain houses of the plaintiff,
and had neglected to do it. The
plaintiff was nonsuited, because no
consideration was stated for the pro-
mise. The next case was against
a carpenter, stating that be had un-
dertaken to build a house for the
plaintiff and had not built it. It was
held to be nudum pactum, because
no consideration was ailedged. 1 1
H. IV. 33. a. The question wheth-
er an action would lie for a nonfeas-
ance, when there was no considera-
tion, was afterwards agitated in nu-
merous cases, and the same princi-
ple uniformly recognized. 14 H. VI.
18. b. 19 H. VI. 49. a. 20 H. VI.
34. a. 2 H. Vil. 11. 21 H. VII. 41-
Stath. Abr. Accions sur le cas. p!.
20. Fincb Descrip. of Com. Law.
159. Dr. & Stud. 177. Keilw. 78.
I Pew. Con. 330. 5 D & E. 143. EL
see v. Gattvdrd.
All contracts not under seal are
by the common law denominated
simple contracts, and there is no
distinction between those which are
written and those which are not
written. 4 Bro. P. C. 27. Rann v.
Hughes. 7 D & E. 350. n. S. C. 1
Fonb. Eq. 335 n. 3 John. Cas. 60.
Ballard v. Walker. A considera-
tion is as necessary to support an
action in the one case as in the oth-
er. 1 Saund. 211. n. 2. 1 East 104.
Johnson v. ColUngs. 4 Taunt. 117.,
Ballard v.TrusseU. Lawes PI. As-
sump. 49. 3 John. Rep. 214. Sears
v. Brink. 4 ib. 236. Burnett v. Bis-
co. 4 ib. 304. People v. Howell
The books, generally, suggest no
Pasch. 44 Eliz,
[46] hard j udgment ; for the defendant has not any manner ef profit
to receive, but only a bare possession. Nota> tbe truth of the-
case was (which doth not alter the reason supra) that the
plaintiff had delivered to the defendant the said twenty quar-
difference (as between the payee &
maker) betwixt promissory notes,
and other simple contracts ; a con-
sideration being as necessary to such
promise as to any other. Chitty on
Bills. 65. Bui. N. P. 274. 5 Mass.
Rep. 301. Thacher & al. v. Dins-
more. 7 ib. 22. Fowler v. Shearer. 7
John. Rep. 26. Pearson v. Pearson.
The acknowledgement of having
received the value is prima fade ev-
idence of the fact, and no other con-
sideration need be stated in tbe de-
claration. 1 Chit. PI. 295. 8 John.
Rep. 20. Leonard v. Vredenburgh.
But if it appear in evidence, either
that the consideration has failed, or
that the note was given without con-
sideration, the action cannot be
supported. 1 Fonb. Eq. 344. Kyd
on Bills. 276. 4 Mod. 242. Pearson
v Garrett. It is every day's pract-
ice, says Parsons C. J. notwithstan-
ding a promissory note is expressed
to be for value received, to admit
tbe promissor, in an action by the
promissee, to prove that there was
no consideration. 6 Mess. Rep. 434.
Barker v Prentiss.
The effect of the statute of Anne,
which is a part of the common law
of Massachusetts, is not to make
the note evidence of a debt ; for
this it was before the statute ; but
to make it conclusive between the
maker and third persons obtaining
it by indorsement ; though between
the original parties the considera-
tion is open to discussion. 1 Fonb.
Eq. 346.
In Bowers v. Hurd, 10 Mass. Rep.
427, the court decided that a note
given without consideration cannot
for that reason be avoided by the
promissor, in an action by tbe prom-
issee, if no fraud or imposition has
been practised ; any more than if
having paid over tbe amount of such
note, he can recover it back, be"
cause he repents of his generosity.
That was an action against the ad-
ministrator of the promissor, who
wishing to avoid the expense of a
wilt, made the note and placed it
in the hands of a third person, to-
be delivered to the promissee after
the promissor's death — intending it
as a gift in the nature of a legacy*
The court adopted the opinion sug-
gested by Livingston J. in Living-
ston v Hastie, 2 Caines Rep. 246*
and said that in all the cases, in
which notes or other written con-
tracts had been avoided for want of
consideration, the ground of defence:
was not that there originally was no
consideration, but that it had failed,
or rested in mistake or misapprehen-
sion ; what was supposed to be a
consideration turning out in fact to
be none.
In Tate v. Hilbert. 2 Ves. Jr. 1 1 K
two bills were brought in chancery
against an executor ; one to compel
payment of a check on a banker,
and the other payment of a promis-
sory note ; both made by the testa-
tor and delivered by him to the sev-
eral plaintiffs, and intended as im-
mediate gifts. Lord Loughborough,
in the course of the argument, asked
why the holder of the check did not
bring an action at law, and intima-
ted his opinion that an action might
be sustained. After advisement, he
decided that the plaintiffs could not
have any relief in chancery ; that if
they had any claim on the execu-
tor, (on which point he gave no o-
pinion) they must enforce it at law.
Their counsel, the attorney general,
stated that no hope was entertained
of recovering at law upon the check,
but that as to the promissory note,
they had the opinions of common law-
yers in favor of an action.
Trin. 44 Elis.
ter* of wheat to deliver over to J. S. to whom the plaintiff
was indebted in so many quarters, and the defeudant promised
to deliver the same quarters of wheat to J. S. (2) And be-
cause they # were not delivered, the plaintiff brought his ac-
tion, ul supra ; and adjudged ut supra. But nota, the judg-
ment was reversed in the exchequer, (3) Mich. 44 & 45
Wiz. aa Hitchamtold Y elver ton.
[4c]
In People v. Howell, ubi sup. the
Supreme Court of New York say
that a check, given voluntarily and
without consideration, imposes no
-obligation on the drawer of it to
pay it. And in Pearson v. Pear-
son, ubi sup. in an action by the
promiasee against the maker, the
same court say the validity of the
note cannot be supported on the
ground of its being a gift, for a gift
is aot perfect untH a delivery of the
thing promised. A parol promise
to pay money as a gift is. no more a
ground of action, than a promise to
deliver a chattel as a gift. If there
was no consideration for the note,
it was a nude pact and void as be-
tween the original parties to H. See
also 1 Brown's Civil Law. 358. n.
Plowd. 302. Evans on Bills 103. 1
IStra. 674. Jeffries v. Austin. 1
Caines Rep. 386. Union Turnpike
v. Jenkins. 1 Caines Cas. in Er. 86.
S. C. 4 John. Rep. 280. Bailey &
aL v. Freeman. Bayl. on Bills 124.
Any advantage, however trifling,
-to the promissor, or disadvantage
to the promissee, will form a suffi-
cient consideration to support a
promise. Dr. & Stud. 179. 1 Saund.
211.5.n.lSelw.N. P. 39. 40.
If an undertaking be merely vol-
untary without consideration, tho'
the party is not bound to perform
it, yet if he enter upon the execu-
tion of his agreement, he is bound
to perform it faithfully and accord-
ing to the terms of it. 1 Rol. Abr.
10. 2 Ld. Raym. 909. Coggs v. Bar-
nard. 11 Mass* Rep 113. Limerick
Academy v. Davis. 2 John. Cas. 92.
Rtdgers & al. v. Lucet.
If the party commence the per-
formance of such undertaking, and
leave it, an action lies to enforce
the completion. 14 Mass. Rep.
172. Farmington Academy v. Allen.
So if such undertaking induces a
third person, from the confidence
reposed in it, to part with his prop-
erty, it will be binding. 3 Mass.
Rep. 1. Wilson v. Clements. 12 lb.
190. Homes v. Dana. See also 13
Ves. 148. Crosbie v. M'Doual.
(2) And was so stated in the de-
claration, according to Croke's re*
port of this case. Cro. Eliz. 883.
(3) This reversal was erroneous.
The decision of the king's bench
was subsequently recognized, and
conforms to the present established
doctrine. Cro. Jac 668. Wheatly v.
Lots. Palm. 281. S. C. Winch 25.
Vanheath v. Turner, per Mobart C.
J. 2 Ld. Raym. 920. Coggs v. Bar-
nard. Jones on Bailm. 71. 1 Selw.
N. P.* 40. n. 2 Bay 551. Bolan v.
Williamson &al.
Dawson.
in
Cto. Elie. 888. S. C.
AN action on the case for these words : Thou art an arrant Not acttona-
knave, for thou hast bought stolen swine, and a stolen cow, b,e *° chares
knowing them to be stolen. And adjudged against the plain- 0tte Wlt *
Trin. 4ft Eliz.
[ 5 ] tiff, for the receipt or sale of goods stolen is not felony, not
buying stol- makes any accessory, unless it is joined with a receipt or abet-
en goods, raen t of ^e felon himself. And in some case it is lawful to
them "to S be rece * ve 8to, « n goods, as if the lord of a manor or his bailiff,
stolen. wno nas bona waviala, meets with a suspicious person who
Aleyn 57, has stolen goods, and stops the goods, and the party confesses
them to be stolen, and flies, in that case, it is a receipt of
goods stolen, knowing them to be stolen ; and yet it is not
any slander, if any one should say to him, You have taken sto-
len goods, knowing them to he stolen. By Gawdy, Fenner
and Yelverton; Popham absents. (1)
(1) Since tjie statute 3&4W.& one with being a receiver. And e-
M. has made, the receiver of stolen ven without that statute, the charge
goods an accessary to the fefony, would now be actionable. See Bac.
and punishable like the principal, Abr. Slander B. 6. 1 Hale P. & 619,
it is doubtless actionable to aharge 2 Hawk. c. 29. § 30.
Crumpton vs. Smith.
In debt, if DEBT, the plaint b of tt. 14*. 2d. and declares that the
the plaintiff money became due by reason of two several contracts, sal.
certain sum* So n,uoh bv * ne one » and s0 much D ^ tne atneP » and ** a P"
and state P eare hy computation of those two sums, that they ace more
that it be- by 3d. than is contained in the plaint. The defendant pleads,
came due by as to 6/. 145. 2d. nil debet, &c. and it is found for the plaintiff,
two con- a Qd judgment in an inferior court that the plaintiff should re-
much'b* C one COVer ^ roirf narravit ; and thereupon error is brought, and the
Tad so much ma<:ter supra assigned for error; for 3d. more is given by the
by the other; judgment to be Recovered, than was found by the jury to be
though those due ; and although the defendant pleads only to the sum con-
sums are tained in the plaint, yet the sum specified in the declaration
wore than ^ ttiat whereof the issue and trial should be; and it seemed
for he C can- c,ear ^ Dy tenner and Yelverton to be error. And there
not recover seems to be a difference, where the plaint (for the purpose) is
more. of 10/. and he declares, viz. for 10/. for an horse, and 5/. for
another contract, and the defendant pleads nil debet to 10/.
and nothing to the other, and it is found ; yet that is good ;
for the 51. in the declaration is but surplusage, because the
plaint was answered in toto with the principal contract laid
in the declaration, sett, the horse; but in the principal case
the money mentioned in the declaration being upon several
contracts, and none of the contracts tantum, & per se amount-
Cmnb28S * ng . to the sum 8 P ecifie< * * n tne plaint, every part of the decla-
Poph. 209.* rat * on * s made material ; and so being found short by the ver-
Hob. 279. diet, the judgment thereupon seems to be erroneous ; quod
1 Lutw.SSS.Gawcly non muUum impugnavit. (1)
(l)SeeGilb.onDebt.387. 1 H. 4. Hulme v. Saunders. Doug. 0.
B. 249. M'Quillinv. Cox. ibid. 550. Walker v. Witter. 2 B1. Rep. 1221.
Rudder v. Price. 1 Saund. 288. n. Aylett v, horse. Latch 175. Risly
Moore 298. Smith v. Vow. 2 fcev. v, H*yn$. Clayt, 129. Child's case.
Trin. 44 Eli*.
Johnson v$. Turner* [ • ]
1 Brownl. 19& S. G.
TRESPASS for breaking his house, and taking and carry- On a writ af
ing away hisgpods. The defendant justified the whole. The "V"* da -
plaintiff quoad fr actionem domus and taking of the goods, nec~ JJJ^ajJj^
non materia in ea content*, demurred upon the defendant's bar : ^ f or an*
The defendant joined in demurrer in hoc forma, quia piadtum thing that Is
prcrdictum quoad fractiormn domus, and taking of the goods, not put in is*
suffidens, &c. demanded judgment, &c. and thereupon jadg*** *J **•
ment given in the Common Pleas for the plaintiff, and a writ JJ^" 1188 **
to enquire of damages; upon which damages were assessed
for the breaking of the house, and for the taking and also for
the carrying away of the goods. And thereupon a writ of ei*
ror was brought, and the judgment reversed ; because in the
offer of the demurrer ex parte querentis, nothing is said in
special, but quoad the breaking of the house, and the tak-
ing of the goods : And although the words subsequent, sciL
necnon materia in ea contcnta, go to the whole matter in the
bar, vis. to the carrying away also; yet when the defendant
joins in demurrer with the plaintiff, he joins but specialty, vis*
quoad the breaking of the house, and taking of the goods, and
■ays nothing t>f the carrying away ; so as to the carrying
away nothing is put to the judgment of the court ; yet the writ
of inquiry of damages is for the whole, and the judgment al-
so ; and the carrying away being part of the matter, and for ( a ) Tide
which greater damages are adjudged, and that not put to the t Rol. Rep.
Judgment of the court by the demurrer, for that reason the *35. 176.406.
judgment is erroneous ; (a) for as to the carrying away (which ** ?* [^*
is part of the matter) there is a discontinuance. This case j jV ^ iw: 149$
concerned Air. Darcy of the Privy Chamber for his patent oft i^v. \$. y
cards. Yelverton was of counsel with the defendant in the Post. 225. ft
writ of error. oaare.
Tocock vs. Honyman.
IF a man recovers in debt on bond, and has & fieri facias to Goods seized
the sheriff to levy the debt, and the defendant brings a writ of °" *j e /[ *■£•
error upon the judgment, and has a supersedeas thereupon to ^» a ^™-
the sheriff; so much of the defendant's goods as the sheriff gedeas is af-
has taken into his hands, by virtue of the fieri facias before terwards a-
the supersedeas came to him, shall remain to satisfy him who warded,
recovered, aad a venditioni exponas shall issue thereupon ; but
after the supersedeas comes to the sheriff, be cannot proceed
further upon the fieri facias. Per Mam curiam. (I)
(1) An execution is an entire facias, the defendant shall not have
thing, and cannot be superseded af- restitution, though he afterwards
ter it is regularly begun If there- bring a writ of error and deliver to
fore a sheriff seizes goods on a fieri the sheriff a tvrit of supersedeas, be-
3
Trin. 44 Elk.
m
The Lord Cromwell & Andrews.
Cro. Eli*. 892. 6. C.
A record re- IN a writ of error upon a judgment given in assise before
mains in B. the justices of the Common Pleas, upon an adjournment by
R *d bv Cm " tne J u8tice$ of assise, although the writ of error do not mention
writ of error now the™ 00 "* canw into tne Common Pleas, viz. for difficulty
that abates. <* otherwise, whereby the writ abates by judgment, yet it was
Ante 3. adjudged that the record, removed out of the Common Pleaa
Post 219. by this ill writ, remained in the King's Bench : And the par-
ty shall have a new writ of error coram nobis residen. for the
writ of error recites the record of assise truly, both in the names
of the parties, and of the land ; otherwise if there was any
mistake in the matters aforesaid. And upon a scire facias
aued by the defendant in the writ of error, quare cxeeutioncm
habere nan debet, this scire facias is merely collateral to the
record removed, and yet by matter ex post facto may become
a reeord ; as if the plaintiff, upon the scire facias returned, ap-
pears and pleads a release, or other matter, as he well may,
then it is a record annexed to the first record removed. But
if upon the return of the scire facias the plaintiff appears and
assigns his errors, or otherwise by rule of court has day until
another term to assign his errors, vis. by the rule entered with
the clerk of the papers, and upon this record assigns his er-
fbre the sale. Dyer 98. b. Milton v.
Eldrinsien. Cro. Eliz. 597. Charter
v. Fitter. Moore 542. Anon. 1 Vent.
255. Baker v. Bulstrode. 1 Sal k. 321.
Perkins v. Woolaston. 6 Mod. 298.
Clerke v. Withers. 1 Salk. 322. S. C.
Willes 271. Meriton v. Stevens. 9
John. Rep. 66. Blanchard v. Myers.
So on a warrant to levy a penalty, if
the goods are distrained before a cer-
tiorari is awarded to remove the
conviction, they shall be sold after.
2 Ld. Raym. 990. Regina v. Nash.
1 Salk. 147. S. C.
But if a writ of error is sued out
before the goods are seized on the
fi. fa. it is a supersedeas from the
time of its allowance, and not from
the time of the service of the allow-
ance. Restitution, in such case, is
awarded after seizure. 1 D & E. 280.
Jaques v. Nixon. 2 Bos. & Pul. 370.
Meagher v. Vandyck. 2 Saund. 101.
g. n. See also 1 SeJlou's Pract 542
to 546. 5 Taunt. 82. Sumpayo v. De
Payba. 1 Price SlZ.Smarty.Taylor.
In Connecticut, a writ of error is
not a supersedeas till it is served.
2 Day 371. Phelps v. Tjandon.
Formerly a supersedeas did not
entitle one to a discharge, who had
been committed on a cap. ad sat
whether it was awarded before or af-
ter the arrest Fitz. N. B. 237. Jenk.
92. 1 Vent. 2. Anon. For the judg-
ment is completely executed by the
commitment. Willes 280. Lord
Willes, however, doubted whether
this doctrine ought to prevail since
the statutes of Jac. and Car. regu-
lating the putting in of bail on bring-
ing a writ of error, ib. And from
a case in Barnes' Notes, it ap-
pears that defendants are now dis-
charged from custody, if committed
after a writ of error is sealed and al-
lowed. 1 Barnes 275. Hannot v. Fa-
rettes. See also 2 ib. 175. Incledon
v. Clarke, where the court held that
a defendant should be discharged,
if bail in error are perfected after
his commitment.
Trifi. 44 Eliz.
tors insufficiently, now all the other proceedings are upon the
record which is removed, and now the first scire facias quare
exeadumem habere nan debet, is but a piece of paper filed to
the record removed, and no proceedings thereupon ; where-
fore upon errors assigned insufficiently, he who recovered in
the Common Pleas shall have execution without another scire
facias quare, &c. although it is after the year ; for after the
writ of scire facias quare, &c. once sued out, the party shall
never have another. But if he, who sued the writ of error,
doth either not appear upon the return of it, or appears and
assigns his errors insufficiently, whereby a default in him ap-
pears to the court, he who first recovered shall have execu-
tion without another scire facias. Atijud. Nata, in this case
a precedent M. 4 H. 5. Rot was shewn, which agreed with
this judgment, both for the abatement of the writ of error, and
also that notwithstanding that, the record is' well removed*
Grendit ft Baker.
6 Co. 29. S. C.
THE Lord Paulet tenant for life of an advowson, the re* Presentation
saainder in fee to A; tenant for life presented D. who was ad- b y the ki "S»
mitted, instituted and inducted ; but for default of reading the ^J^ J]£
articles according to the statute of 13 Eliz. the benefice was no notice of
void, but D. continued in the church, and was by reputation [ 8 ]
parson for his life ; the Lord Paulet died ; the queen after the the avoid-
death of D: reciting her title to be by lapse, presented C. who ance, igvoid-
-was instituted and inducted ; he in remainder presented S.
who was admitted, instituted and inducted, and brought an
action of trespass against C. the queen's incumbent. And it
was adjudged (upon a special verdict finding the matter afore-
said, and also that D. continued in during his life, and died*
and that no notice was given the patron of the voidance of the
church for not reading the articles) for the plaintiff, and that
the queen's presentation was merely void, as if she had presen-
ted to a church full ; for as to the patron it is full until he has
surceased his time after notice given ; and it is all one, as if
the patron had drawn a presentation in writing and put his
seal to it, and let it lie in his study, and the party, who should
he presented, takes it without the privity or licence of the
patron, and carries it to the bishop, and is thereupon institu-
ted and inducted, it is merely void and no presentation at all.
And the court held in this case, that the presentation by him
in remainder was good, although it was objected that it be-
longed to the executors of the tenant for life, because as ta
the tenant for life himself, the church was full until notice.
Migh. 4* fc 45 Eli*
Btifttard w. Bolter.
4 Co. 121. Cro. Ells. 902, 917. Mo. 665. & C.
Bxcfcange of THE ease briefly is : Bustard exchanged the fourti) part of
hinds in fee the manor of Barton in the county of Oxford with Savage
it defeated and Daston for the moiety of the manor of II bury in fee ; both
by the evic-Qgiog j B poggegrion and in demesne; Justice (the wife of one
party pur Jw ^' Dormer) evicted *"• moiety of the manor of llbury by
eater vie. reason of her jointure, for life : Wherefore Bustard entered
upon Sheldon, lessee of Savage and Daston, in the fourth
part of the manor of Barton, which he gave in exchange, and
Stop. Touch, hroogh* trespass against Bolton, Sheldon's servant, and ad*
299. 2 Atk. judged maintainable : For the exchange being of land in pos*
969. 2 Bl. session and in demesne at the time of the exchange, this evic*
Jf*Pj - 95 ?1, .tion of the estate for life* which takes away the whole recom-
174 £8i! [pence for the time, defeats the exchange for ever, as well as
in the case in 4 H. 7. where twenty acres are exchanged, and
one is recovered by elder title, the whole exchange is defeat-
ed * for although the whole estate exchanged is not defeated,
but continues as to the reversion, yet because the exchange
was possession for possession, demesne for demesne, and this
recompence of the possession, which was the motive of the
exchange, being evicted, the whole is evicted ; as if an es*
[ 9 ] tate tail is evicted, it leaves the reversion, hut it leaves but a
dry recompence, and therefore (per Yelverton justice) defeats
(he exchange in the whole. The same law (per Popham) if
J. S. makes a lease for 1000 years of land to commence at a
day to come, and afterwards conceals this lease, and exchanges
this land as in possession, for other land in possession, and af-
terwards the lessee enters, this defeats the whole exchange ;
lor in exchange warranties are implied, which warrant pos-
session for possession ; yet there is no doaht but that a reversion
may be exchanged with a possession, hut that is apparent at
the time of the exchange. And nfiia, Yelverton vouched
Hugh Sponsor's case 42 Ass. 22, where it seems that an evic-
tion of an estate for life after partition, defeats the partition:
fftod cur. conces. otherwise Telverton conceived, where rent
only is evicted out of land exchanged, or land divided by
parcels, as 10 £. 3. 9- i*. Yelverton waa of counsel with the
8pft?ke V8. Sparke.
Cro. £lis. 841. S. C. Mo. 666. & C.
▲ leaie for A MAN made a lease for Afe, and afterwards demised to
y eawi8made A. for ninety-nine years, if he should so long live, to com-
aft£Tfea^ meDC * after the dcath rf the tcnant for ,ife ' and if A ' diedt
lor life, and during the term of ninety-nine years, or that the term other-
!f the Ienee wise determined, and after the death of the lessee for life,
Mich. 4* fc 45 Eli*.
then the lessor granted for himself and his heirs, that the land for yean die
should remain to the executors of A. for twenty years ; the within Jjj e
lessee for life died, A. demised for twenty years yielding^' to J,*!
rent, and died intestate : B. took administration, and brought ma j n to ^
debt for the rent ; and adjudged that it did not lie ; for Ga w- executors for
dy and Yelverton conceived that this contingent lease of the SO years:
twenty years never vested in A. but that if A. had made ex- The lessee
ecutors, that they should take by way of purchase («x e c u tors^ lir ^^
being a name of purchase, as Cranmer's case 14 El. Dy. 309.) f or year8 de .
But if it had been limited to the executors for payment of the mises for 30
debts of A or the like, it seemed then by the intent apparent, years & dies
it should be an interest in A. and in the executors to the use * nteB **te ;
of A. Popham aud Fenner agreed for the matter in law a » *<> ^ a \or cai£
the action of debt : But yet they conceived that the execu- not briam
tors of A. should never take; for the estate ended before the debt for rent
interest commenced or arose to the executors. But quaere on the lease*
that; for if A. made executors, in the instant of his death the
remainder took effect in the executors (as 7 H 4 is) so that J* 6 ™*!. **'
it could not take effect as a remainder, for that ought to de- \ f~ ZjL
peed upon a former estate ; but by them two, if it took effect m . 100.
at all, it ought to be by virtue of the lessor's grant, and that 2 Leon. 5.
Qannot be, because the executors are not parties to the deed ; Post. 85.
and therefore, if a man leases for life, and by the same deed
grants that after his death, J. S. shall have for twenty years, L 10 ]
it is of no avail to J. S. because he is not a party ; as in the
books 19 E 2. Covenant 25. 19 E. 3. Covenant 24. 22 Ass. N °y liv
37. 49 E. 3. 11 H. 4. 34. M. Dy. 151. Nota ; the chief rea-
son was, because the term for twenty years is but a possibili-
ty. Yelverton was of counsel with the plaintiff.
Baiter vs. Butler.
Cro. Eliz. 901. Mo. 664. Noy i6. 8. C.
IN an action on the case on trover of cattle, the defendant If rent be
justified by reason of a rent granted to A. his executors and granted to
assigns for the life of B. out of Black Acre, and shewed that A - his e * c<>
A. was dead, and that he as adnjinistratorof A. distrained for J?*™ ^« s "
the rent in B. Acre arrear after the death of A. and averred t |jJ, \{fa f Jf.
the life of B. and adjudged that the justification was ill, both and A. die
for the matter and the manner; for by the death of A. the intestate be-
rent is determined, and cannot come to the executor or* ad- fore wtui
ministrator ; for it was not a thing testamentary, but a free- ^ ue v ' e « l *
hold ; and so not like where it is granted to A and his heirs ™™ e . e h £
for another's life; yet by Popham, and agreed per cur. if a administra*
rent is granted to A. for the life of another, the rem tinder to tor cannot
B. although A. dies, whereby the rent determines in interest c,aim * ltQer
as to the perception of it, yet forasmuch as the tertenaut M ** s,?nee
during that time holds the land discharged of it, that is suffi- vaugh! t9o!
cient to support the remainder, (1) Also it seemed to th? 7 East 186.*
(1) See Fearne Cont. Rem. 232. Wcfeild. 3 P. W. 264. n D. 1 Scho.
Barnard. Ch. Rep, 46. Kendal r. & Lef. 289. Campbell v. Sandys.
Mich. 44 fc 46 Eli*.
court, if the rent had continued, then the taking of a lawful
distress for the rent was no conversion at all ; otherwise if the
distress was not lawfully taken.
Brecheley vs. Atkins.
4 Co. 18. b. Mo. 666. S. C.
In actions ACTION on the case, becanse the defendant spoke of the
JaUhewordJ P ,alntiff these words ? Th&u ar * on old perjured knave ; that is
are to beta> he P rwed by a stake that parts the land of J. S. and J. D.
ken togeth- 8 ™* (°y Gawdy and Popham) the action doth not lie; for al-
er. though the first words (perjured knave) are of themselves suf-
ficient to bear the action, yet they are so qualified by the sub-
Port. 34. sequent words, which do not sound in any apparent slander ;
for it is as much as to say, Thou art a perjured knave, but none
in the world can prove it; which will not bear an action: So
it is in this case, the proof of the perjury being referred to a
stake, which is a thing insensible, and impossible to produce
any proof, qualifies the precedent words Fenner and Yet-
verton contra ; and that the former words are sufficient to
maintain the action ; and the subsequent words are as void
and idle ; because there can be no proof in a stake ; as if he
had said, Thou art perjured, though I cannot prove it; or thou
,[H] art perjured, and that I will prove by J. S. where there is no
such J. S. in rerum natura, or J. S. is dead ; yet the action
lies on the former words. Qumre. (1)
( 1 ) It appears from Coke's report for though part of the words may be
of this case, that judgment was giv- actionable, yet they may be so ex-
en for the defendant. 4 Co. 19. In plained by the others as not to sup-
the construction of words, the whole port an action. Esp. Dig. *1 1. Bac.
sentence is to be taken together; Abr. Slander. R.
Goring vs. Goring.
A promise H. GORING was indebted to Smith in 205/. upon simple
to an execu- contract: Smith made J. Goring his executor and died; J;
iSOi bv P,ay Go " n S tne e *ecutor agreed, and was contented to take of H.
Btalments^n G °" ng for the 205 *' ! 50 ^« and aI «° a g reed to take the 160/.
satisfaction D 7 20 *- P er annum, in consideration whereof H. Goring un-
of a debt of dertook, and promised to pay the said J. Goring the said 150/.
9051. due to by 20l. per annum, and for nonperformance of the promise, J.
the testator, Goring brought assumpsit against fl. Goring; and upon non
cLn7^£ flM,a, * wa P^aded, it was found against H. Goring. And
eration to ** ide move ^ *n arrest of judgment, that the consideration to
support an take 150/. for 205/. is not sufficient, because for any thing
assumpsit, that appears, H. Goring remains still charged with the 205/.
and subject to the plaintiffs action for the 205/. and therefore
he ought to have shewn that he had discharged the defesdaqt
Mich. 44 & 45 Eliz.
of the 2052. But turn allocat. for. the 2052. being due to the
plaintiff as executor of Smith, the action for it ought to be in
the detinet ; but now, by this agreement to take 1502. of the
defendant, and the defendant's promise to pay it, it is made
the plaintiff's proper debt, and the action for it maintainable
in his own name, without being made executor ; and although
(by Yelverton justice) 1502. is not any satisfaction of 2052.
because they are both of one nature, and it is otherwise of
things collateral to the debt, as an horse, a cup, &c. yet in
respect that the nature of the action is changed, it proves the
nature of the debt to be changed ; and therefore a good con-
sideration. (1) For if the executor is indebted to J. S. in
1002. and J. S. comes to demand the money, in this case, as
the debt now is, the executor is chargeable only in respect of
the assets, and not otherwise ; but if he promises to pay it at
[11a]
(1) It is laid down in Co. Lit. 2 12.
b. that " where the condition is for
payment of 202. the obligor or feoff-
or cannot at the time appointed pay
a lesser sum in satisfaction of the
whole, because it is apparent that a
lesser sum cannot be a satisfaction
of a greater. But if the obligee or
feoffee do at the day receive a part,
and thereof make an acquittance wi-
der his seal in full satisfaction of the
whole, it is sufficient, by reason the
deed amounteth to an acquittance
of the whole. If the obligor or les-
sor pay a lesser sum, either before
the day or at another place than is
limited by the condition, and the
obligee or feoffee receiveth it, this is
a good satisfaction." Littleton § 344
says, " if the feoffor payeth the feof-
fee a horse, or a cup of silver, or a
ring of gold, or any such other thing
in full satisfaction of the money,
and the other receiveth it, this is
good enough, though the horse or
other thing were not of the twenti-
eth part of the value of the sum of
money." These passages contain
the distinctions, which have been
recognized and confirmed by nume-
rous judgments. Perk. § 749, and
the Year-Books there cited. 5 Co.
117. PinneVs case. 2 Rol. Rep. 96.
Covill v. Qeffery. 4 Mod. 88. Adams
v. Tapling. 2 Lev. 81. Abbot v.
Chapman. 1 Stra. 42«. Cumber \.
Wane. 2D£E.24« Eeaffwte r.
Crookshanks. 5 East 230. Fitch v.
Sutton. 2 John. Rep. 448. Harrison
v. Close & al.
The priuciple of these decisions
is, that an agreement to accept a
less sum in satisfaction of a great-
er, if it is not under seal, is with-
out consideration and nudum pactum
unless there is something collateral
to shew a possibility of benefit to
the party relinquishing. But a dis-
charge under seal imports a consid-
eration, which the party is estopped
to deny.
Though when a creditor simply
agrees to accept less from his debt-
or than his just demand, it does not
bind him; yet if on the faith of such
agreement a third person is induced
to become surety for any part of the
debts, on the ground that the party
will be thereby discharged from the
remainder ; or if other creditors have
been induced by the agreement to
relinquish their further demands, on
the same supposition; the creditor
cannot recover the residue, for it
would be a fraud upon the surety or
other creditors. 1 1 East 390. Stein-
man & ah v. Magnus. 2 Caropb. 1 24.
S. C. See also the authorities cited
in that case; and 1 Esp. Rep. 236.
Butler v. Rhodes. Peake's Cas. 238.
S. C. 13 Mass. Rep. 424. Eaton v.
Lincoln. 5 John. Rep. 386. Waticin* .
son v. Inglesby <£• al. J2c . fcrfL^.yv
Mich. 44 & 45 Eliz.
a day to come, it is now made his own debt, and to be satisfy
ed by his own goods (2) And per curiam, the consideration
alledged is sufficient for another reason; 'for although the
plaintiff has not shewn that he has discharged the defendant
of the 205/. yet if the defendant should be afterwards charged
with it, he might have assumpsit against the plaintiff; for the
plaintiff agreeing to take 150/. for 205/. is a promise on his
part 9 and so one promise against another.
(2) The distinction here taken is
well established, If an executor, in
consideration of forbearance, prom-
ise to pay a demand on the testator's
estate, he is bound, though he hare
not assets, and is chargeable person-
ally. 1 Rol. Abr. 24. 1 Vent. 120.
Davis v. Wright & al. 2 Keb. 758.
2 Lev. 3. S. C. 1 Bid. 89. Scott v.
Stevens. 1 Saund. 210. n. 2 ib. 137.
«. n. But a promise to pay general-
ity, is nudum pactum unless there be
assets. 5 D & E. 6. Pearson v.
Henry. 4 Bro. P. C. 27. Rann v.
Hughes. 7 D & E. 350. n. S. C. 1
Ves. 125. Reech v. Kennegal. If
there be assets, it is a good consid-
eration for a personal promise of the
executor, and he will be charged
de bonis propriis. Cro. Eliz. 91.
Trewinian v. Howell. Cowp. 289.
Hamkcs & ux. v. Saunders. 5 Bmaey
33. Clark & al v. Herring. 2 Call
203. Taliieferro v. RM.
C12]
A promise,
in considera-
tion that the
plaintiff
would en-
deavor to
procure per-
mission for
the defend-
ant to pos-
sess a mes-
suage, is
good ; & the
place of pro-
curement
need not be
alledged.
Gurnons vs. Hodges.
Cjo. Eliz. 906. S. C.
THE plaintiff shewed, that whereas one J. S. was possess-
ed of a messuage by virtue of a decree in Chancery ; in con-
sideration the plaintiff conaretur procurare J. S. to permit the
defendant to have the possession and profit of the said mes-
suage, the defendant promised to give the plaintiff 20/. si
ipse procurare potuisset & procuraret the said J. S. to permit
the defendant ut supra. The plaintiff layeth in facto, that he
did procure the said J. S. ut supra, and that the defendant did
enjoy the messuage, &c. (l) The defendant pleaded non as*
sumpsit, and it was found for the plaintiff, and it was alledged
in arrest of judgment that there was no place but where the
procurement was, and that was a matter issuable per se : But
non allocatur, because the issue is taken upon the assump-
sit, which is another matter ; but if the issue had been upon
the procurement, then it would be otherwise; (2) andjudg-
(1) See Com. Dig. Pleader. C.
58.
(2) The common law required
every issuable fact to be alledged,
not only within a county, but also
within a parish, town or hamlet,
that if issue were taken on the fact,
it might be tried by a jury of the
visiie or neighborhood of the place
where it was alledged. This was
not mere form ; for unless four at
least of the hundred, in which the
place was situate, were included in
the panel returned by the sheriff,
it was good cause of challenge to
the array. Or if four such did not
attend to be sworn, the polls might
be challenged for the same default.
And if the visne appeared on the
record to be from a wrong place, it
Mick 44 k 4* EUr.
ment was given for the plaintiff: Another exception was ta-
ke a, because it appeared that the consideration was only up-
on a conaretur procurare, which is no effectual consideration ;
for an endeavour to do such an act, without doing it in fact,
is no benefit to the defendant ; sed nun allocatur ; for (by
[12*]
was a mistrial, and ground for ar-
resting judgment or reversing it on
error. The inconveniences, which
were occasioned by these rules of
the common law, induced the in-
terference of parliament. The stat-
ute 2*. Jac. I.e. 13. aided a ver-
dict, where the visne was awarded
out of too many or too few places
in the county named. The 16 &
1 7 Car. 2. c. 8. cured the defect of
visne wholly, if the jury came from
the proper county, without regard
to the part of the county from which
they came. Still either party
might object to the default of hun-
dredors at the trial. The 4 <fc 5
Anne therefore directs that every
venire facias shall be awarded from
the body of the county where the ac-
tion is triable. Harg. & But!, note
•n Co. Lit. 125. Clayt. 130. Ben/on
v. Dawson. See also 4 Amer. Law
Journ. 83. Livingston v. Jefferson.
If the defendent pleaded to a
transitory action matter whieh was
transitory, he was formerly obliged
to lay it at the place mentioned in
the declaration. 1 Chit PI. 508.
1 Saund. 85. n. 4. 247. n. 1.
But it is held, since the statute
of Anne, that the distinction be-
tween laying no venue at all in a
plea, and being obliged to lay the
same venue as in the declaration, is
a distinction without a difference.
The principle now is, that the place
laid in the declaration draws to it
the trial of every thing that is tran-
sitory. A venue is now alike un-
necessary in pleaB in bar or in a-
batement, or in replications. £ H.
B. 1 61 . Ilderton v. Ilderton. 7 D
& E. 243. NeaU v. De Garay. But
in declarations, a venue is still a
necessary part of technical form,
and must be laid in the county where
4
the action is to be tried. And
when it is necessary, in order to
prevent a variance, to state in the
declaration that the cause of action
happened out of the county, the law
has invented a fiction, by which the
party, after first setting oat the de-
scription truly, may give a venue
for form and for the sake of a trial,
by a videlicit, in the county where
the action is brought. Cowp. 177.
Mostyn v. Fabrigas. Since the
statute 16 & 17 Car. 2. want of ve-
nue in a declaration, or a wrong ve-
nue, in transitory actions, is matter
of form merely, and can tie excepted
to only by special demurrer. 3 D
& E. 387. MeUor v. Barber. 5 Mass.
Rep. 96. Briggs v. Nantucket Bank.
In local actions, if the venue is
wrongly laid, and the objection ap-
pears on the record, the defendant
may demur generally. 1 Wils. 165.
Thrale v. Cornwall. 6 Mass. Rep.
331. Ldenow v. Ellis. If it do not
appear on the record, it is a ground
of nonsuit on the evidence at the
trial. Gowp. 410. Bruckshaw v.
Hopkins. 2 Campb. 266. Pope v.
Dames. 1 Chit. PL 284. Or per-
haps it is cause for setting aside or
amending a verdict, on the judges*
report, if the exception is taken at
the trial. 4 East 385. BuUerfieldv.
Windle & al. It is not stated in this
last case, that the objection was made
at the trial ; but unless such were
the fact, the case seems to impugn
a perfectly settled rule, viz. that
even in local actions, the fault of a
wrong venue is cured by verdict
taken without objection. 1 Saund.
246. Craft v. Boite. 1 Freem. 33.
Anon. 2 Lev. 164. Adderly v. Wise.
1 Ld. Raym. 330. Leving v. Cat-
verly. Cartb. 448. S. C. Willes 431.
Bailiffs &c. of IMchfdt v. Slater*
Mich. 44 & 45 Eliz.
[12 5] Popham) his labor and pain* may deserve (he money due up-
on (be assumpsit ; and also in this case it appears that a pro-
curement in fact is annexed and knit (o the consideration, so
may and ought both the sentences, viz. of the endeavor to
procure, and of the procurement in fact, to be joined together.
Yelverton was of counsel' with the defendant.
7 D & E. 583. Mayor of London v.
Cole.
In an action of replevin, which is
local at common law, and also by
statute in Massachusetts, a verdict
was held not to cure the fault, and
judgment wars arrested. 7 Mass. Rep.
353. Robinson v. Mead. The rea-
sons of this decision are not stated
in the report.
It is still a rule in England, that
jf to a transitory action a ZocaZ justi-
fication is pleaded, the defendant
must lay the venue in the county
where the matter arose ; and for-
merly the cause must have been
tried there, otherwise it would have
been error. 1 Sauhd. ubi supra.
But now the action is tried in the
county where the venue is laid in
the declaration. 1 Ghitty ubi sup.
The necessity and even the pro-
priety, in such cases, of laying the
venue where the justification ari-
f es, seems therefore to have ceased.
The great distinction, which pre-
vails in all cases respecting the ve-
nue, is between local and transitory
actions. It is a distinction, which
exists all over the world ; actions
transitory follow the person of the
defendant ; territorial suits must be.
discussed in the territorial tribunal*
3 Bl. Com. 384. Wherever the
cause of action necessarily must
have arisen in any particular coun-
ty, or wherever the parties to the
suit become such by mere privity
of estate, such action is local, and
must be brought in that county
where the cause of action arose, or
where the estate lies, upon which
such legal privity attaches. It fol-
lows that a transitory action must
be such as may have arisen in any
county. 1 Sellon's Pract. 243, 244.
Actions which are transitory at
common law are sometimes made
local by statutes, and vice versa.
See 1 Sellon's Pract. 246. Bac. Abr.
Actions Local and Transitory. I
Chit. PI. 277. 15 Mass. Rep.
Sumner v.
Hinde vs. Dearie.
Noy 47. Cro. Elis. 797. % And. 170. S. C.
Asubsequent MACHIN entered into a recognisance of 20002. to Hinde,
conusee may and afterwards entered into a statute of 1000Z. to Deane.
have an au- Deane extended his statute upon the manor of D. which was
dita querela Machin's, he having also several other lands; afterwards
tL improper Hinde 8ued execution of the recognisance, and had the moie-
execution of tv of the manor of D. first delivered to Deane in execution,
a prior re- but omitted several other lands out of his extent, wljich were
cognizance. Machin's at the time of the recognisance : Wherefore Deane
brought audita querela against Hinde in the Common Pleas,
and had judgment; and upon error brought by Hinde in the
King's Bench, it was affirmed; for Deane being in by judg-
ment, and upon title by the extent on the statute, ought to
have bis land liable to the extent upon the recognisance but
Mich. 44 & 45 Eliz.
pro rata; and therefore Hinde ought to have included all the
other lands of Machin in his extent, as well as the land of
Deane : but if Deane had not had his land by title, but by [ 13 ]
disseisin, or by other tortious means, then he ought not to be
relieved upon audita querela; vide 13 H 7. 19 E. 2. Execu-
tion. 2 R. 3. & Nota in this case by Yelverton justice strenu-
ously, Hinde ought to have sued scire facias against Deane
before he removed his possession, because he was in by title 5
but queers that, for the books are contrary.
Grispe v$. VirolL
Cro. Eliz. 910. S.C.
AN appeal by Crispe against Viroll, late of Sandwich, in In an appeal
the county of Kent, for the murder of the plaintiffs brother of murder,
committed in Sandwich by the defendant, who jgave the**"* ^"j^jT
plaintiff's brother a mortal wound there, of which he instant- ca °" n otbete-
ly died : and this appeal is brought by original in B. R. to k en away by
the sheriff of Kent, who upon cepi corpus brings in the defend- plea to the
ant, who pleads that Sandwich, within which the murder in writ that the
supposed, is parcel of the Cinque Ports, ubi breve domince re- s«PP°«<l
giwB nan currit, qui quidem partus de Sandwich nan est in "Emitted 1
cam, Cantice, and demands judgment of the writ, and pleads within one of
over to the felony; (1) and adjudged an ill plea; for altho'the cintp*
the Cinque Ports have several great liberties, yet the reason ports.
of the grant of those liberties, was for the ease and benefit of
the inhabitants, and not for their prejudice ; and therefore in * J 081 * JOT-
50 E. 3.— by Belknap, if a stranger comes into the Cinque ^aiS?" ?!«'
Ports, and commits a transitory trespass, and afterwards goes Co mD .' 468.
out of their jurisdiction, he to whom the trespass is done may Cro. Car.
have an aetion at the common law ; for it is more for his ben* 24T. 1 Sid.
efit to have the suit at the common law, than within the 66 - 5 L,d -
Cinque Ports; for they have no power to summon any* ft y m# ** 9 ^
man that is out of their jurisdiction, viz. in the county of
Kent, or elsewhere, into the limits of their jurisdiction. An-
other reason here was, because the defendant having commit-
ted the murder in the Cinque Ports, and flying out of the
Cinque Ports, if the pleading here should be good, it would
be in failure of justice, for they of the Cinque Ports cannot
try him, because he is not there : but by Popham. if the de-
fendant had shewn that at the time of the murder supposed,,
and ever since he had been, and was an inhabitant, and lived
within the Cinque Ports, whereby he had by his plea given
jurisdiction to the court there, aqd they as judges might have
seen that the defendant, if he was guilty, might have received
a satisfactory judgment, viz. death for death, then the plea had
been good : but the defendant has not shewn any such things
whereby it appears that that court has such jurisdiction. (2)
(1) See 13 Mass. Rep. 455. Cam* (2) See Tremaine'g Pi. Cir. 23*.
momvcaUh v. Goddard. 6 JEast 600. The King v. Johnson. T
Mich. 44 & 45 Eliz.
A third reason was added by Gawdy, Fenner and Yelver-
[ 14 ] ton, justices, because this court of King's Bencli is the high-
est court of justice, and of greatest sovereignty ; and although
the kings have heretofore granted conusance of appeals to the
barons of the Cinque Ports, yet that does not give away the
queen's interest concerning herself; and in this appeal the
queen has an interest by a means, for if the plaintiff is non-
suited after declaration, or releases (as 29 H. 6. Corone — is)
yet the defendant shall be arraigned at the suit of the queen :
also per totam curiam the defendant's plea is double and re-
pugnant ; one is that Sandwich is parcel of the Cinque Ports
ubt breve domina regime nan currU, which is a matter in law
put in judgment of the court ; the other that it is not in cam.
Cantia, which is a matter in fact triable by the country : also
by the appeal brought, Sandwich is expressly supposed to be
within the county of Kent, which by the first plea is not de-
nied, vis. by saying that it is parcel of the Cinque Ports, &c.
yet by the other part it is utterly denied to be within the
county ; so repugnant; and also re vera all the Cinque Ports
are, parcel of the county, although they are by their charter
exempted from being drawn in plea, within the county gen-
Cro. Bl. 69f . erally : and in the case of Watts and Bray nes upon a murder
TTS. committed by Braynes within the Cinque Ports, Watts enter-
ed his appeal against him by bill being in custodia marcscaUi,
and adjudged good, being within the jurisdiction of this court,
and Braynes was hanged upon it.
Woods vs. Hanksbead.
•Limed t! u£ ACTION on the case against Haukshead for taking of toll
der letters 1°* passage of the west end of the bridge of W. and shews for
patent, a sta- title the letters patent of H. 6. An. 20. to the college of A11-
tute of re- Souls, in Oxford, for them (heir tenants and farmers to be quit
sumption °*of toll, and conveys to himself as farmer to the college, yet
^^J w b had the defendant such a time taken toll of him against the
those letters form of the patent, <fcc. The defendant pleads in bar the stat-
it pleaded ; ute of 28 H. 6. of resumption of all liberties and franchises
a replication formerly granted by H. 6. The plaintiff by way of replica-
of a subse-tian pleads the statute 4 H. 7. whereby all letters patent gran-
2te n conSJil ted by H, * # to this colle * e are made S 00 * 1 ' the 8te tutc of 2*
lag "those **• & of resumption notwithstanding ; and thereupon the de-
letters the fendant demurs. And the only question is, whether this rep-
statute ofre-lication is a departure from the matter contained in the dec-
sumption laration ; and adjudged that it is not ; (1) for there is no new
notwithstan- matter contained in the replication otherwise than was in the
JJJJl^^* declaration; for the plaintiff's title still rests upon the letters
* patent, and he relies on them, and a departure is always
where the matter touching the point in action is different
(1) Cro, Car. 257. Butler v C6L Lit Rep. 169. S. C. 1 Lev. 81.
lege of Physicians. W. Jem. 282. Mole v. Wallis. ace.
Mich. 44 & 45 Eliz.
in the replication from what it was in the declaration: as in [ If ]
debt for rent on a lease for years, or in an avowry for a rent
charge granted by A. if after a bar pleaded, the plaintiff will
reply and enforce his action or his avowry by a cestuy que
use, it is a departure, because at first by the declaration it is
intended a lease and a rent by coarse of the common law;
and now by the replication the title appears to be only by an
authority given by tbe statute of 1 R. 3. The same law, if a
man intitles himself by the feoffment of one A. and the other
shews that A. was an infant at the time of the feoffment, if
the plaintiff will now induce a custom to make, tbe feoffment
good, it is a departure ; (2) for both the use in the first case,
and the custom in the second are matters of title, and in esse
before, and at the time of the plea pleaded, quod vide 4 H. 7.
— & 37 H. 6.— But in this case the title shewn in the decla-
ration and replication are all one, viz. the letters patent, as
(by Popbam) in the case of Sellenger, 3 H. 7. if a man inti-
tles himself to land by the feoffment of J. 9. and the defend- *
ant pleads that before the feoffment J. S. was attainted; now
if the plaintiff shews an act of parliament before the feoffment,
whereby the attainder ef J. 8. is made void, it is no depar-
ture ; for the matter of title is not changed, but remains all as
it was at first, viz. by the feoffment. But Gawdy justice con-
tra ; and he took a difference between actions in which the
plaintiffs are bound to a precise form, and where not ; as in
formedon, if the demandant intitles himself by a gift, and the
tenant pleads no gift, the demandant may enforce the count,
and maintain it by a recovery in value, and so a gift, as 3 H.
7. 5. is, and that is no departure, because the plaintiff in for-
medon is bound io a precise manner and form of count : but
in an action on the case, as here, it is otherwise ; for as his
case is, so ought the plaintiff to declare : and therefore (by
him) the plaintiff in this case ought to have declared on the
letters patent, and to have shewn the statute of resumption,
and the statute of 4 H. 7. of reviver, and all this in his decla-
ration : for now he enforces the matter of his declaration by a
statute, which is another and a new thing; quod curia negavit.
And in this case also it was agreed per curiam, although the
grant of H. 0. to be discharged of toll, &c fvit ionium pro
seipso 9 and not for him, his heirs and successors, yet it is
good against the successor, as well as in case of the grant of
the interest, which in Sir Thomas W roth's case, in the Com- PlowcL 15&
mentaries— is agreed to be good. Yelverton was of counsel
with the plaintiff. • "
(2) Although there are cases to fortified by a special custom. Co.
the contrary [See Godb. 122. Anon. Lit. 304. a. Com. Dig. Pleader. F.
T. Ray. 60. Mould v. Waltis] yet 0. Keilw. 75. 2 Saund. 84. a. n.
it is well settled, that a plea foun- 1 Lev. 81. Mole v. WaUis.
ded on the common law cannot be
Mich. 44 * 45 Eli?.
The Lord Cromwell's Case.
An indict- THE Lord Cromwell was indicted upon the statute of 8
ment found H. 6. of forcible entry into an bouse, and certain land or one
[16] Andrewes, and expelling and disseising of Andrewes ; but in
conditional- the conclusion of the indictment it was si domus pradicta non
Iy ig void, fifo fa fossesm*nc dontinm regtnm nee pro damina regina, then
the jury found, htta vera. Etper totam curiam, this is no in-
dictment at all ; lor it is as a condition precedent to the ver-
dict, and as if they bad found, upon such matter of indictment,
that if J. S. was at Paula such a day, then bitta vera ; or (as
Popham said) as if they had found, if the freehold is in An-
drewes, then bUla vera; which is the same thing as if they
had found nothing.
Corpe vs. Pastow.
Cro.Eliz. 894.6. C
If after the PASTOW brought trespass against Come and before issue
venire is a- tried, the sheriff was challenged, and the venire facias issued
warded to tp tfec coronerg> &c. at the nisi prius for want of jurors, a
sheriff return ia ^ 5 was P ra 3 re<i *° r ^ e plaintiff, and as it appeared by the
a tales, it fcpostea returned, the tales were returned by the sheriff, and
error. ' that per mandat. jusiic. ** the usual form is ; and judgment
was given in the King's Bench for the plaintiff, the verdict
being for him. But upon error brought, it was reversed in
the Exchequer upon the aforesaid matter assigned for error ;
for when the process is once awarded to the coroners, they
shall serve all the other mean process, and they ought to
have returned the tales, and not the sheriff: and it is not aid-
ed by the statute of jeofails : for it is the award of the court
to command the sheriff to return the tales : The same law if
the sheriff of the county of York returns the paneF upon a
triaf in Middlesex, it is error, and not aid<jd by the statute of
jeofails ; yet it is but a misconveying of process. And Trin.
* Mo. S56. 36 Eliz. the same case was between *Wie and Morgan ; for
Cra El. 574. the venire facias was awarded to the coroners, and the jury
134"' was impanelled by the sheriff, and this matter assigned for
error, and reversed. Yelverton was of counsel with the
plaintiff in error.
Arnold vs. George.
If a copy- ON a motion made to the court, it was agreed by all the
holder sur« fo^ j U8 tices, that if a copyholder surrenders to a stranger, and
whom tC> the the steward wi * 1 not admit nim ' and the stranger enters and
steward re- occupies the land ; if the lord makes a lease to a stranger
faseg f ad- to try the title, he to whom the surrender b made (although
Mich. 4* k 40 Eliz.
he is not admitted) may well plead not guilty: and it shall ■"** and the
be found for htm against the lord. Quart raliomm; for it is] ord make a
in respect of the possession, the lord's title seems to be eWer,|JJJJ ^ ^
for the lord's title is good and lawful to the freehold, and by try ^ ^
reason of the freehold to the profits of the freehold, unless the tie; A. may
stranger can make title to the profits, which seems hard in [17]
this case without admittance. Quare, if the reason is not plead not
because the lord is pariiceps criminis, quia it shall be intend- guilty aQd lt
ed he would not suffer the steward to admit the stranger, who** 11 , **
is defendant. Nota also in this case, the* surrender was but h °™ %& i^
of the copyhold to him & tribus assignaiis suts; so that by the lord.
his death the estate in the copyhold was determined ; and he
to whom the surrender was intended had nothing in interest,
nor otherwise by course of law before admittance, Yelver-
ton was of counsel with the defendant
Coxe vs. Jennings.
THE plaintiff in his declaration shewed the custom in the A. declar *-
University of Oxford to have from time whereof, &c. a court tl<m . on a
which held pleas iu any personal action, &c. (except may- J^™ ,8e tQ °
hem, appeals and suits of freehold) and further declared, by plaintiff
custom there, if any scholar or privileged person sued any harmless for
txtraneum, that this exiraneus ought to put in bail, which bail being bail to
ought to pay the condemnation, si, &c. he further shewed a defendant
that the defendant was sued there in the court of Oxford w*^e* Oxford
placito trajisgr. super casum nuncupate, in [curia Ma] causa University
injuria, and that this plaintiff was bail there for him, and court,where-
that the defendant undertook and promised to save the plain- of the corn-
tiff harmless from the bail ; and further declared that the said m ° n ' Iaw
suit in iantum persequebaiur, that the defendant there was J^ s Jj^ 1 ^
condemned, and the plaintiff obliged to pay the condempna- c - lte n \\ tll€
doc, and so upon breach of the promise, because he is not proceedings
saved harmless, he brings this action: and by Popham and in that court.
Telvertou the actien well lies r*for he need not recite in his
declaration all the proceedings of the suit in the court of Ox-
ford ; but it is sufficient to say, such plaint was entered and
prosecuted till, &c. for that is but a conveyance to the ac-
tion, and merely collateral to the point in question, which is
the promise. See such matter as to the recital of the record
34 H. 6. 4. b. But by Popham, if it had appeared by the dec-
laration that the suit and plaint in Oxford had been entered
only in causa injuria, which is a suit merely according to the
civil law, whereof the judges cannot take conusance without
shewing of it, then it had not been good. But it is explained
by the declaration to be in trespass upon the case nuncupate
in [curia iUa\ causa injuria. So it is such action whereof the
common law takes notice, and then 'it is sufficient to shew
that a plaint was entered, & in tanto prosecut. till the defend-
ant was condemned. Fenner contra, and that the plaintiff
ought not only to shew that a plaint was entered, but also
Mich. 44 k 45 Eliz.
that the plaintiff there declared upon it, Ac. quod Popham ut-
terly negcurit : sed because Gawdy was absent, and the parties
poor (ne dhrthis pendeai) it was pat in arbitrium magistri
Kemp.
I n 3 Alsope w. Sytwell.
agreement THE plaintiff declared that in consideration he would marry
with a third the defendant's niece, the defendant undertook and promised
person igftft- to give the plaintiff as much in marriage with his said niece,
ted only ag M before agreassei dtre in maritagio with the said niece to one
totheTfen- Jarvi * Arer ' aod """IS"* *»/«*• that the defendant had a-
dant'Bpron>S r€e d to give Jarvis Ayer 1006/. si ipse maritare vellet the
he, it is §uf- said niece; and alledged in J 'ado that the plaintiff, relying
icient to upon this promise, had married the said niece, yet, &c to his
•tat* H gen- damage 1000/. and upon non assumpsit pleaded, it was found
er ? ly 'rta^ for the P ,aintiff to the damage of 1000/. And it was moved in
ty oTname arre8t °^J u dg naent ' tna * the declaration was not good, but in-
. er persan. certain ; because it was not all edged with whom the defend-
ant agreed to give 1000/. to Jarvis Ayer, if he had married
the said niece. And (per Fenner and Yelverton) it is a good
exception ; because for any thing that appears in the declara-
tion, it is but the defendant's report to give Ayer 1000/. si t
Ac. and no agreement; for that ought to be perfect, and that
perfection rests between two persons at least, and there is no
person named with whom the defendant agreed to give Jarvis
100&!. si, <fcc and that is material, and a point traversable :
but Gawdy and Popbam clearly to the contrary ; for the a-
greement is bat a thing collateral, and only an inducement to
the promise, which is the principal cause of the action ; and
•inducements need not be alledged so certain in a declaration
as those things ought to be which are the foundation of the
action. (1) And therefore it is sufficient to alledge induce-
ments generally, without certainty of name, place, or person ;
for in this case in question, if the defendant would plead that
he did not agree to give Jarvis Ayer 1000/. in marriage, <fcc.
then might the plaintiff soon enough for time by way of repli-
cation make the agreement certain in the person with whom
it was made, and in such other circumstances, but the declara-
tion is good without such certainty at the first. As if J. S.
in consideration of 1000/. agrees to pay all the debts of J. D.
in that case it is sufficient for J. S. to declare that he agreed
to pay all the debts of J. D. in consideration whereof the de-
fendant promised to give him 1000/; and it is good, without
alledging with what person the agreement was, or what debts
in certain he had paid ; yet the payment of the debts is a
matter traversable; for if the defendant alledged any debt in
special not paid, the plaintiff may by way of replication make
it certain. Yelverton was of counsel with the plaintiff.
(1) See 1 Chit. PI. 292. 293. 10. 18.LawesPl. Assump.31 Szseq.
Com. Dig. Pleader. C. 31. 43. E. ace.
Mich: 44 & 45 Ella.
Soprani fif Barnardi vs. Skarro. [ id ]
SOPRANI and Barnardi brought assumpsit against Skur-It murt ap-
ro, and declared that it was agreed between the plaintiffs and P?* p m Pj 6 **
one Zanches, that Zanches should demise to one Welsh a t£ 8 isior as
messuage in the Dukes Place for the term of seven years, and we n ^ i ei8ee
that it was also agreed that Welsh during the said term should sealed the in-
repair the house with tile and glass only ; and it was agreed denture of
that these and other covenants should be put into an widen- 1 * 6111 *** °* n-
ture between the said Welsh and Zanches, and that the pWn-^^"^"
tiffs should be bound in 100/. for the performance of the cov- and t j£ ^^
enants on the part of Welsh; and they further shewed thatenants do
an indenture was drawn, and because there were more cove- not bind ; &
nants put into the indenture to be performed on the part qfa bond given
the said Welsh, than were at first agreed, vie. that Welsh "J J *™"
should be bound to all manner of repairs, Welsh refused toforma^ce^of
seal the hfHenture, and the plaintiffs refused to seal the bond covenants in
#f 100/. for performance, &c. they further shewed that in the the indent*
said house there was a great wall, parcel of it, ruinous and « re is not
likely to fall within the said term; and that Skurro the de-J? rfci ^ d b £
fendant in consideration Welsh would seal the indenture, *^ n eti©ctto
the plaintiffs the bond of 100/. undertook and promised the perform
plaintiffs that he would maintain the said wall durante prm- them.
dicto temtino ? annorum : they shewed that in tonsideratiom
inde Welsh sealed the indenture as his deed to Zanches> and
that the plaintiffs also sealed the bond of 100/. to the said
Zanches : and said in f ado that the wall of the said house fell
for want of repairs within the said term ; and shewed in cer-
tain when, both after the sealing and delivery of the said in*
denture by Welsh, and of the said bond by the plaintiffs (via.
in hiis verbis y durante prmdicto 7 annorum per indentur. prmd*
dismiss.) whereby they had forfeited their bond, to their dam-
age 200/. (I) and upon noh assumpsit pleaded, it was found for
the plaintiffs. And it was moved in arrest of judgment, that
the declaration was insufficient ; for the aetion is founded on
a breach of promise in the defendant for not repairing a wall
parcel of the house agreed to be demised to Welsh by Zan-
ches; but it is not expressly alledged that Zanches did de-
mise the said house ; and if there is no demise, then there is
no possibility for the defendant to repair it during the term ;
for non constat that there is any term ; and a good exception
per totam curiam ; because, for any thing that appears in the
declaration, the indenture sealed was only on the part of the
lessee, and not on the part of Zanehes the lessor; and if the
lessee seals his part, and not the lessor, nihil operate neither
in respect of the interest, nor in respect of the covenants; for
the covenants depend upon the lease, and the plaintiff's bond [ 20 ]
upon the covenants ; and if there is no lease, there is no cov-
enant, and by consequence no breach of the covenant, where-
by the plaintiffs can in any sort be damnified ; for if the lease
(1) See post. 207. Rosse v, Pyt % and the note to that case.
5
Mich. 44 & 49 Eliz.
had been made, and afterwards surrendered, all the covenants
and the bonds for performance of them had been void also :
(2) and adjudged quod qucrentes nil capiant per billam. Yel-
verton of counsel with the defendant.
(2) What the precise condition of making the defence suggested. See
the plaintiffs' bond was, does not Com. Dig Estoppel. A. 2. 2 Bos.
appear. It might have been such & Pul. 299. Hosier v. Searle^ and
as to have operated as an estoppel, the cases there cited,
and thus have precluded them from
Jennings v$. Hatley.
Cro. Eliz. 909. S. C.
The plaint- THE plaintiff declared that such a day and year he recov*
iff>s forbear- ered against one Basset in the Common Pleas in an action of
ing to exe- <j e bt on a bond of 50/. and upon that recovery he took forth a
Cllte a ca P ia8 special cap. utlagat. for the body, goods and land of Basset ;
a ^uffi«!e!it aild Bnewed * nc tenor <* tnat w «* specially, and the defend-
coosidera- ant perceiving the plaintiff intended to serve the said writ on
tion for a the goods of the said Basset, desired the plaintiff to stay the
promise execution of the said writ till such a day ; and if Basset did
made by A. no t that day pay the plaintiff the 50/. in consideration of such
debt** costs 8ta ^ °* exccution °f * e sa * d writ, and for 2*. Ad. to be given
recovered a- tne defendant by the plaintiff for renewal of the said writ of
gainst B. if capias, the defendant promised, if Basset by the day limited
B. does not did not pay the 50/. that he would pay it the plaintiff : and
P*?* alledged in facto the stay of the execution at the defendant's
request, and the giving of the 25. Ad. for the renewal of the
said writ, and that Basset did not pay the 50/. at the day, &c.
to bis damage 100 marks, and upon nan assumpsit pleaded it
was found for the plaintiff; and it was alledged in arrest of
judgment, that the consideration is not good, but void and
against law; for the capias utlagat. is the queen's suit ; and
therefore a promise made in consideration to stay the queen's
suit is not good : for if goods are stolen from J. S. and a stran-
ger promises that in consideration J. S. will not prosecute
any indictment against him who stole them, that he will give
him so much money, this is a void promise ; for it is in hin-
drance of the queen's justice and benefit : But by Gawdy,
Fenner and Yelverton the consideration is good ; for this
capias utlagat issue\i upon the original suit of the party, so
the benefit which the quee% is to have is by means of the par-
ty, and he is at the charge of suing it forth, and hath the car-
riage of the writ ; and if the party is taken he shall be in ex-
ecution at the suit of him who recovered ; and if the queen by
virtue of the capias utlagat. has any goods, she is to satisfy
the party at whose suit the outlawry came; but no/a, Popham
contra in the csue supra; for it is merely the queen's suit,
which the party neither can, nor ought to delay : for the
queen's attorney may take such goods, although be that re-
Mich. 44 & 45 Elk.
covered will not sue for them. But judgment was entered [ 21 ]
for the plaintiff according to the opinion of the three justices.
And in this case it was said to be adjudged between G anions
and Lay ton, that if a man is taken on a capias utlagat. after 5 Co. 89. b.
judgment, be is in execution for the party ; and if he escapes, Jj*"** ^|*
although be was taken at the queen's suit, yet the party na * Comb 373
such an interest in the body, that he shall have escape against
the sheriff. Quod nota ; Yelverton was of counsel with the
plaintiff.
Slade vs. Morley.
4 Co. 92. b. Mo. ASS, 667. S. C.
AN action on the case on an indebitatus assumpsit lies well ; Indebitatus
for every debt implies a promise, and is a good consideration assumpsit
in facto to found an action upon. (1) But for a debt by simple »>PP or t« d *
contract due by the testator no assumpsit lies against the ex-
ecutor ; (2) and this was openly delivered by Popham chief jus-
(1) See this case fully reported,
A Co. 91. The action was assump-
sit for goods bargained and sold for
a certain price, to be paid at a giv-
en day ; and the declaration con-
cluded with an averment of gen-
eral damage for non-performance of
the promise. The courts of King's
Bench and Common Pleas were
divided on the question whether
the action was maintainable, and it
was argued before the twelve jud-
ges ; who, after many conferences,
resolved that the plaintiff should
have judgment.
Though Lord Coke (4 Co.* 94.)
cites seven or eight precedents in
support of the judgment given in
this case, yet Lord Loughborough
says it was the first case where ^n-
eral damages for the non-perform-
ance of a contract were laid as the
cause of action. In the previous
eases, the declaration did not state
a general indebitatus assumpsit, for
they were not brought merely on a
promise, but for a special damage for
a non-feasance, by which a special
action on the case arose to the
plaintiff. 1 H. B. 550. 551. Rudder
v. Price. An examination of the
cases cited by Lord Coke, will ful-
ly warrant Lord Loughborough's
assertion. See also Soprani & at.
v. Skurroy ante 19. Accordingly
Slade's case has generally been con-
sidered the first which established
the action of assumpsit on its pres-
ent principles. For the history of
this form of action, see 3 Reeve'*
Hist. 2 Comyn on Contracts 549
to 556. Rudder v. Prise ubi sup.
* •
(2) Divers reasons were urged,
in early times, against making ex-
ecutors liable to the action of as-
sumpsit. It was however solemnly
decided in Norwood v Norwood &
al. PJowd. 181. and in Pinchori*
case. 81 Co. 86. b. 2 Brown!. 137.
S. C that assumpsit well lies for
the non-payment of money due from
the testator ;, and in Garten v Fo3r
sett* "Palm. 329. that it lie* for
breach of a collateral promise made
by the testator. The question, has-
been, at rest since, both as to exec-
utors and administrators. But debt
will not lie, in England, against an
executor or administrator on a sim-
ple contract of the deceased. 1 N.
R. 293. Barry v. Robinson. Nor
any other action wherein the de-
ceased might have waged his law.
Mich. 44 & 4S Eliz.
[ 21 « ] tie* t Not. 44 fills, to be the resolution of all the justices of
England, and this to be a precedent for all subsequent cases.
Cro. Ells. 557. Hampton v. Beyer*
ibid. 600. Bowyer v. Garland. But
exception most be taken by demur-
rer to the declaration. If the de-
fendant pleads over, and a verdict
is found against him, he cannot take
advantage of it either in arrest of
judgment, or by writ of error. Plowd.
182. a. Yelv. 5«. Fish v. Richard-
son. 1 Sid. 333. Palmer v. Jjawson.
1 Lev. 200. S. C. Vaugh. 99. Ger-
mayne v. Ro/&, cited. 4 Dallas 10&.
Carson v. Hood's Executors, ace.
Goldsb. log. Hughson v.
contra.
Harvey vs. Young.
Node antr- J. 8. hid a term for years, and there being a discourse be-
iiont, tko'tween him and J. D. about buying that term, J. S. said and
no ^ouadTf affirraed to J ' D that the term wa> worth l50L to *** 8old »
action. upon which J. D. gave J. 8. 1602. for the term: and after-
wards J. D. offered and endeavored to sell the term again,
and could not obtain, nor get for the term 100/. whereupon
he brought an action on the case in nature of a dieceit against
J. S. and declared ut supra, and that J. S. asseruit to him,
that the term was worth so much, to which assertion J. D.
fidem adhibens, did buy the term for so much money, but could
not sell it again for so much money as was given at first in
fraud and deceit of the plaintiff to hfe damages, Ac. and upon
not guilty pleaded, it was found for the plaintiff, and alledged
in arrest of judgment, that the matter precedent did not prpve
any fraud; for it was but the defendant's bare assertion that
the term was worth so much, and it was the plaintiff's folly to
give credit to such assertion. But if the defendant'had war-
ranted the' term to be of such value to be sold, and the plain-
tiff had thereupon given and disbursed his money, there it is
otherwise ; for the warranty given by the defendant is a mat-
ter to induce confidence and trust in the plaintiff. Between
Harvey and Young, Mich. 39 Eliz. as Towes of the Inner
Temple said at the bar, and that he was of counsel with the
defendant Quod nota. ( I )
(1) Bulier J. in the case of Pas-
ley v. Freeman, 3 D & £. 57, com-
menting on this case, says " if the
court went on the distinction be-
tween the words warranty and af-
firmation, the case is not law : for
it was rightly held by Holt, C. J.
in the subsequent cases, and has
been uniformly adopted ever since,
that an affirmation at the time of a
sale is a warranty, provided it ap-
pears on the evidence to have been
so intended. The true ground of
the determination was, that the as-
sertion was of mere matter of judg-
ment and opinion, which in such
tsase imply no knowledge."
Where the affirmation is a nude
assertion ; that is, where there is
no warranty intended, and where
the party deceived may exercise
his own judgment ; as where it is a
mere matter of opinion, as in the
text ; or where he, by common
prudence, may ascertain the truth
of the assertion $ if he is deceived,
Mich.
it iss his own foirit, and he has do
remedy. 3 Bulst. 94. Baity v.
Merrel. Cro, Jac. 386. S. C. 5 John.
Rep. 354. Davis v. Meeker. The
same rule prevails in the civil law.
1 Domat 85.
Hence there is no remedy against
a vendor for falsely affirming that a
person bid a particular sum for an
estate, though the vendee is there-
by induced to purchase, and is de-
ceived in the value. 1 Rol. Abr.
101. Sugd. Vend. 3. But a court
of equity will not compel the exe-
cution of the contract. 3 Iktk. 383.
Buxton v. Cooper. A distinction
has been taken between the value
of land and the value of rent ; and
it has been decided that a vendor
is liable for a false affirmation of
rent, on the ground that is a matter
within his own knowledge, and the
tenants may refuse to inform the
purchaser what rent they pay, er
may combine with the landlord to,
misinform him. 1 Sid. 146. Leakins
v. Clissel. 1 Lev. 102. S. C. 2 Ld.
Raym. 1118. Lysney v. Selby. 1
Salk. 211. S. G. 3 D & E. 58. per
Buller J. This distinction is not
recognized in Scotland. 1 Col. of
Decis. 332. Kenmrd v. Lord Dean.
Sugd. Vend. 4. n.
With respect to defects in the
quality or quantity of the thing
sold, the rule is the same in sales of
real and personal property. But
with respect to the tide of the sel-
ler, there is a difference in the ap-
plication of the rule. In the sale
of a personal chattel, affirmation of
title by the seller is sufficient
Common prudence does not require
that the purchaser should investi-
gate the title ; and if he is deceiv-
ed, the seller is liable in damages.
Cro. Jac. 474. Furnis v. Ijekester.
Carth. 00. Crosse v. Gardner. 1
Salk. 210. Medina v. Stoughton. 1
Ld. Laym. 593 S. C. 3 D & E. 57.
per Buller J. 1 John. Rep. 274.
Defreeze v. Trumper. But the pur-
chaser of real property is at his per-
4* & 45 Eliz.
il to see to the title-deeds, and is
not considered as using common
prudence, if he rely on any other
security. Cro. Jac. 196. RosweU v.
Vaughan. 1D&E. 762. QoodtiOe
v. Morgan. 3 ib 56. 64.
It is well settled that the vendor
of personal chattels is not liable for
defects in the article sold, unless
he makes an express warranty or is
guilty of fraud. Dyer 75. n. Cro.
Jac. 4 Chandel&r v. Lojms. Aleyn
01. SpringweU v. Allen. 2 East 448.
n. S. C, more fully stated. Peake's
Cas. 123. Dunlop v. Waugh. 2 East
314. Parkinson v. I*e. I Starkie's
Rep. 384. Bluett v. Osborne & aL
Hammond's N. P.' 202 to 302.
This rule is adopted in Massachu-
setts. 10 Mass. Rep. 107. Emerson
&al. v. Brigham & at. In N. York.
2 Caines Rep. 55. Seixas v. Woods.
1 John. Rep. 96. Snell & al. v. Mo-
ses. 4 ib. 421. Holden v. Dakin.
And in Pennsylvania. 3 Yeates
262. Khnmel v. Lkhty. That the
rule applies to sales of real proper-
ty, as stated above, see Sugd. Vend. *
105 to 204, where the cases are
collected. The remedy, however,
is generally in chancery, and not
at law. See 2 Day 128. Sherwood v.
Salmon.
By fraud in the vendor, which
wHl subject him to an action for
damages, is meant an intentional
deeeption. The rule is exempli-
fied by Popham C. J. Dyer 75. n.
thus — u if i have any commodities,
which are damaged, (whether vict-
uals or otherwise) and I knowing
them to be so, sell them for good,
and affirm them to be so, an action
upon the case lies for the deceit ;
but altbough they be damaged, if I,
not knowing that, affirm them to
be good, still no action lies, with-
out I warrant them to be good."
To support the action for deceit,
the affirmation or representation of
the seller must be proved, and that
it was intentionally false. 10 Mass.
Rep. uhi sup. So if a seller know
Mich. 44
[21 «]
of latent defects, and do not disclose
them, he is guilty of fraud, and lia-
ble to answer for the deception.
Pake's Cas. 1 15. Mellisk &aLv.
Motteaux & al. This rule extends
to incumbrances on real property,
which do not appear on the title-
deeds ; 1 Ves. 06. Arnot v. Biseoe.
Belt's Sup. to Ves. 50. but would
not apply where the law requires
that deeds shall be registered.
If a chattel has a patent defect ;
tint fa* a defect which is visible and
obvious ; neither a false affirmation,
nor ev en an express warranty will
extend to it Fits. N. B. 04. C. Bui.
N. P. 31. 3 Bl. Com. 165. And if
a false description is given of real
property, in any particular, which
is an object of the senses, the pur-
chaser cannot, in equity, obtain
compensation, nor avoid specific
performance of his contract 10
Ves. 505. Dyer v. Hargrove. But
if the vendor, during the treaty for
the purchase, industriously conceal
a patent defect, specific perform-
ance will not be decreed. 1 Bro. C.
C. 440. Shirley v. Stratum.
U|M>n a sale by sample, with a
warranty that the bulk of the com*
modity answers the sample, the
law does not raise an implied war*
ranty that the commodity shall be
merchantable, though a merchanta-
ble price is given: As where a
quantity of hops were thus sold,
and at the time of sale fairly ans-
wered the sample, but afterwards
became unsaleable by heating and
corrupting, in consequence of hav-
ing been fraudulently watered by
the grower; of which fraud the
vendor was ignorant ; it was held
that the vendee had no remedy a-
gainst the vendor. Parkins** v.
i*<\ ubi. sup. But a sale by sam-
ple Is tantamount to a warranty
that the commodity in bulk is of
the tame Aimtas the sample. Thus
where the defenduut sold several
flunk* of cloves by a sample of Cay-
enne cloves, aud the casks were
k 45 Eliz.
found to contain a mixture of Cay-
enne and East India cloves, the lat-
ter of which were of an inferior spe-
cies ; it was held that the vendee
was entitled to recover the differ-
ence in value between the cloves
sold by sample and those which
were delivered; though the jury
found that there was no fraud iu the
vendor. 13 Mass. Rep. 139. Brad-
ford v. Manly. So where goods
were entered in an invoice as
" scarlet cutting*," it was held that
they must answer the known mer-
cantile description of that article ;
otherwise the vendor is liable to
pay the difference in value. 1 Star-
kie's Rep. 504. Bridge v. Wain.
In South Carolina, North Caro-
lina and Connecticut, it is held that
a sale for a sound price implies a
warranty of soundness in the thing
sold. 1 Bay 310. Timrod v. Shook
bred. 2ib. 330. Whtiefidd v. ATLeod.
1 Hayw. 464. Galbraitk v. Wythe.
2 Root 407. Bailey v. Nickols.
This rule has long been rejected in
England, as too loose and unsatis-
factory a ground of decision. Doug.
20. Stoortv. Wiltons. 2 East 322.
per Grose J.
Blackstone says, (3 Com. 164.)
that in contrasts for provisions, there
is always an implied warranty that
they are wholesome. But Popham
C. J. ubi sup. places provisions oh
the same ground with other arti-
cles. And the distinction has been
denied and rejected in Massachu-
setts. It is there held that there
must be an intentionally false affir-
mation or representation, or a con-
cealment of a defect known to the
seller, as in other cases, to entitle
the purchaser to a remedy. The
only difference is in the proof re-
quired. In the case of a victualler, ,
the offer to sell is, in the nature of
the bargain, a representation of the
soundness of the article, unless the
contrary is expressed; and his
knowledge of the falsehood of the
representation is to he presumed
ir~
Mich. 44 & 40 Eiiz.
from the nature and duties of his Express warranties extend to all
calling : But this presumption may ' except patent defects, whether
be repelled. 10 Mass. Rep. 201. per known or unknown to. the seller.
Sewall, J.
Boldroe vs. Porter. [ 22 ]
ANNA BOLDROE brought her action against Porter, " Thy father
that whereas she was bona famed, &e. the defendant, such a * aid thou
day and year spoke these words of the plain tiff: Thy father ™\™™ er l
said thou hast murdered thy husband {innuendo such a man by £ and » ^
name jam defunct.) and a Hedged ubi re vera her father spoke actionable,
no such words ; whereby the plaintiff had lost her good name, tho' the fa-*
and was in danger of losing her goods and life, to her damage, ther did not
&c. And upon not guilty pleaded it was found for the plain- s P ea £ lhe
tiff, and alledged in arrest of judgment, that those words, al« wor 8 *
though they import in themselves a slander, yet it is not ex-
pressly alledged in the declaration that the plaintiffs husband *
was dead at the time of the words spoken. And if a man
says of J. S. that he has murdered J. D. and J. D. was then
alive, although he die afterwards, the words will not bear an
action. But per Yelverton justice, if the words are, Thau
hast prisoned J. S. although J. S. is alive, yet the words will
bear an action, and sound in slander ; for a man may be poi-
soned, and yet not killed, for the poison may break forth oth-
erwise ; as in biles, vomiting, &c. And. the exception supra
was allowed, and judgment entered nil capiat per billam. The Cr. £1. £97.
same case was adjudged between Butler and Painter; where Palm. 69.
Butler brought an action on the case against Painter for words
•poke against Butler as justice of peace ; and it was not ex-
pressly alledged that Butler was a justice of peace at the time
of the words spoken, and so adjudged according to Trin. 2
Ja. B. R. between Grey plaintiff against Medcalfe, in an ac-Cr.Car.SS2.
tion for calling him bankrupt, whereas he was, and had been
per multos annos jam uli. elapsos a merchant ; and because it
did not appear expressly that he was a merchant at the time
of the words spoken, hut tantum argumentative, it was adjudged
against the plaintiff.
Barham vs. Nethersall.
4 Co. 20. a. 8. C.
THE plaintiff declared that whereas, <fcc. the defendant Words not
such a day spoke these words : T. Barham (innuendo the plain- enlarged by
tiff) hath burnt my barn (innuendo my barn at such a place full an innuendo.
of corn) and that with his own hand; and upon non culp. plea-
ded, it was found for the plaintiff, and alledged in arrest of
judgment, that the action did not lie ; for these words, the
plaintiff hath burnt my barn, are no slander ; for such burn-
iogof an house is but a trespass, and all one as if he bad said,
Mich. 4* & 45 Eliz.
the plaintiff hath cot down my trees, and such like ; for to
say a man has committed a trespass, is no slander: and then
[ 23 ] the innuendo (my barn foil of corn) will not help the matter;
for it is the nature of an innuendo to explain doubtful words,
where there is matter sufficient in the declaration to maintain
the action. But if the words before the innuendo do not sound
in slander, no words produced by the innuendo will make the
action maintainable ; for it is not the nature of an innuendo to
beget an action. (1) And all this was allowed by Gawdy and
Telverton justices (being alone in the King's Bench) and
judgment quod nil capiat per billam.
(1) For the office and effect of to 346. 1 Saund. 243. n. 4. 2
an innuendo, see March on Slander Dallas 58- Rue v. Mitchell. 5 John.
102 to 115. Starkie on Sland. 334 Rep. 211. Fan Vetohten v. Hopkins.
Brode vs. Owen.
1 Brownl. 82. S. C.
Under the LAW was plaintiff against Brode in Chancery; and upon
statute 5 £1. the bill and answer such matter appeared to the lord keeper,
* rto db rty t ' ,at bv an order t^ere ^e mwte one Laborer be as party to
fepositioiTin the *"" against Brode ; and afterwards a commission went
chancery ^ orth in Chancery between Laborer and Brode to examine
must have a witnesses : upon which commission Owen the now defendant
bill pending was examined ex parte Laborer, and deposed directly for La-
againtt him, ^rer against Brode ; wherefore an order and decree was
by him! * ma(,e and conce5ved * n Chancery against Brode ; and upon
this matter Brode brought an action of debt against Owen
upon the statute of 5 Eiiz. as a party grieved by the oath
and deposition of Owen. And Owen the defendant demurred
in law. And by Gawdy and Telverton justices, the action
does not lie ; for the words of the statute are, where a man is
grieved and damnified by a deposition in a suit between par-
ty and party ; and in this case it appears, that Laborer was
not party to the suit, but came in a latere, by an order, and
no bill depending either against him, or brought by him ; so
out of the statute ; for it being penal is to be taken strictly.
Qttctre, if upon an aid prier he in reversion joins, and he is
grieved and prejudiced by an oath and deposition, if he can
maintain an action upon this statute ? for clearly by the com-
mon law he may have attaint.
Shelbury vs. Scotsford.
to re P deiu!» THE Pontiff declared that whereas he was possessed of
a horse to an horse, and lent it the defendant to ride to Y. and after-
the plaintiff wards to deliver it back such a day, the defendant promised
the defend- in consideration thereof to redeliver the horse on the daj
Mich. 44 k 45 Eiiz.
mentioned in the declaration. The defendant by way of bacant may
confessed the former matter, but laid the true property of the P***" , t "? t
horse to be in.J. S. before the plaintiff had any thing in it, ^ t *£™
and that when the defendant had rode to Y. and u?as ready f rQin him by,
to have delivered back the horse to the plaintiff, the said .J- A. the true'
S. tp & armis & contra voluntatcm of the defendant, retook the qwoer.
horse, which matter, &c. The plaintiff, by way of replication [ 24 ]
said, that the defendant suffered the said J. S. by fraud and -
covin to deceive him, to take the horse, and thereupon issue
joined; and it was found for jtfre defendant; and it was mo-
ved in arrest of judgment, that notwithstanding the verdict
• had found the issue with the defendant, yet judgment ought
Co be given against him on bis own confession by his plea in
bar; (1) but by Fenner and Yelverton contra; for the matter
alledged by the , defendant does in la w -discharge the promise W. Jon. 179*
by reason of the former property of the horse in, J. S. and
then it is as an eviction of the horse ,out of the defendant's
possession, which discharges, the promise, as welt as an evic-
tion of the lessee for years discharges all rents, bonds and
covenants in any sort depending upon, the interest. Ante 19.
(l)When it appears from the men t was rendered for the plaintiff,
whole record, that the plaintiff 13 en* , Coni.T JRep. 540. Craven v. Hanky.
titled to judgment, it will be render- 1 Barnes 186. S. C. So where in
ed for Jiim, notwithstanding a ver ? trespass guare clausumf regit the de-
dict returned against him. As in fendant justified under a custom,
debt, if the defendant plead that he which was void. for uncertainty and
delivered the deed as his deed, to be unreasonableness ; though a verdict
delivered on condition performed, was found for him, on a traverse of
and not else, and so it is not his the custom, the court rendered judg-
t'eed; on issue joined and found that ment for the plaintiff. Wi lies 364.
it is not his deed, yet judgment shall Broadbenl v. . Wills. 2.Stra. 1224.
be given for the plaintiff upon the .1 Wils. 63.. S. G. affirmed on error,
matter confessed. Hob. 56. per Ho- 2 D & £. 758. Selby v. Robinson.
bart C. J. So where the defendant See also Carth. 319. Phillips v Bu~
confessed the trespass alledged in ly. 1 Salk. 173. Jones v.Bodenhatn.
the declaration, and pleaded in bar 1 D & £. 123. 26S. Kirk, v, NowtU.
.matter which did not avoid the tres- As to the form of entering judgrnent
pass; though on a traverse of tjie in such, cases, see Towns. Judgm.
bar, issue was found for him, judg- 170. J 74, Willes ubisvp.
Wharton's Qfuse.
Noy48.S*C.
FQTA, upon the. arraignment Wharton, Young and Pure- if a trial is
foy being indicted of murder for the death of one Halakinden, stayed for
; it happened that, at the first, day when the prisoners were to wantofafull
>be tried, eleven of the jury appeared and were sworn \ butP*^ 1 ' a ^
.one was challenged hy the prisoners, and so for. that time theP^ Jj£
trial was stayed. Upon a tales taken for the queen at anoth- gworDf t h e
er day when ths jury appeared, one of Ibejuwtra.who bad ap- crown oaa't
Mich. 44 & 45 Eliz.
challenge at peared before, and was sworn the first day, was now chal-
the day of | eD g e d for a cause that was in esse the first day, but then not
c" hich ^ nown *° *^ e <l ueen » *>ut which came since to the knowledge
existodwheo of tne queen's counsel. And' upon a doubt conceived by
the oath was the court of King's Bench, Telverton justice went into the
administer- Common Pleas to know their opinion ; and the opinion was,
ed. In such that the queen could not have the challenge now, no more
case, all the than she could have had it the fir%t day, after the juror had
•worn at the Deen 8Worn ' although the same cause continues yet, viz. that
day of trial, the juror the first day, and yet is within the distress of one
tho' part of Mr. Cromer master to Wharton, who stood indicted; another
them were matter of doubt was, whether those who were first sworn
sworn he* should be sworn again, or that the panel should be perused,
ore * and the jurors sworn as they stand in order in the panel ? and
2 Hawk, c *' was a g ree ^ tne 7 should be sworn as they stand in the pan-
43, * el without having respect to those who were sworn at first ;
and upon this indictment all the parties above were found not
guilty of the murder. Wherefore Popham, Gawdy and Fen-
ner/uerunt vaUe irati, and all the jurors committed and fined,
and bound to their good behavior, &c.
[25]
Whorewood v$. Shaw.
Cro.Eliz.T29. Ow.127. Mo. 667. 1 Brownl. 8S. S. C.
Abillofdeht in debt by Shaw executor of A. against Whorewood ad-
acknowledg^ ministrator of Field, upon a bill of debt made by Field to A.
es that he whereby Field acknowledged to have received of one Prettie
has received forty pounds to be equally divided between A. and B. and to
40/. to the their use. And upon judgment given in the Common Pleas
use of A and Whorewood brought error, and the judgment was affirmed.
be^vided° The matters moved were two, 1. Because the 40Z. was given
creates a ' *° ^ e equally divided between A. and B. ergo they are tenants
debt of 20/. in common thereof, and Shaw ought to have joined B. with
to each, on him in the suit, because tenants in common ought to join in
which each personal actions. But it was overruled, because in this case
may sua, thev are gevera i debts, viz. 20Z. to one, and 20/. to the other ;
as in the case of 10Z. reserved upon a lease, viz. 5Z. at Mich- .
aelmas, and 51. at Lady-day ; yet it is one rent to be divided
in payment. And this case is not to be compared to cases
of interest, as 20 Eliz. where land or a lease is given to two
equally to be divided ; for there they are tenants in common :
The second matter was, if debt or accompt lay ? And ad-
judged, although no contract is between the parties, yet when
money or goods are delivered upon consideration to the use
of A. A. may have debt for them. (1) So is the opinion of
(1) There is some contradiction third may maintain an action upon
in the old cases on this subject, but it. Sav. 23. Sadler v. Paine. Aleyn
it is settled as a general rule, that if 1. Bafeildv. Collard. 1 Freem. 284.
one person makes a promise, to an- Corny & al. v. Collidon 1 Vent. 318.
other for the benefit of a third, the 332. Button & ux. y. Pool T. Ray.
Mich. 44 & 45 Eliz.
Montague 28 H. 8. Dyer 20, 21. in Core and Woody'* case.
And also a precedent of such action of debt in the book of
entries.
302. 1 Freem. 471. T. Jon. 102. son. 1 John. Rep. 130. Schemerhorn
2 Lev. 210. S. C. Cowp. 443. Mar- v. Fanderheyden. 2 ib. 204 Morgan
tyn v. Hind. 1 Bos. & Pul. 102. n. b. v. Van Ingen. This rule, however,
3 ib. 149. n. a. 15 Mass. ftep. 286. does not extend to contracts by spe-
Walson V.Cambridge. 1 Cranch429. cialty. See Rolls v. Yate, post 177.
Appx. 3 ib. 492. Lawrason v. Ma- and the note to that case.
Baily vs. Taylor.
Cro.Eliz; 899. S. C.
THE condition of the bond was, That whereas Edward A party i§
Taylor had bargained, &c. to the plaintiff a close of pasture not required,
called Owserby, and whereas the said Edward Taylor hath* n P^ding,
already by indenture of mortgage mortgaged to Jerome Smith ° JU^Jj?
divers lands in Gomerby, whereby the close of pasture above- f wn ich by
mentioned is either mortgaged, or supposed to be mortgaged, intendment
upon condition for payment of a certain sum at a day yet to be cannot
come ; if therefore the said close of pasture, at the day men- h * ve krtowl -
tioned in the said indenture of mortgage, be redeemed and ge *
set free, and discharged from all tithes, &c. which may grow
by reason of the said mortgage, that then, &c. The defend-
ant pleaded in bar, that the close mentioned in the condition '
was not mortgaged to Jerome Smith, & sic dicit quod clausum
prccd. &c.fuit redcmpL liberal. & ex oner at. &c. The plaintiff
replied that the close was mortgaged to the said Jerome
Smith ; and thereupon issue was joined, and found for the
plaintiff And it was moved in arrest of judgment, that the
replication was not good, for the plaintiff ought to have re-
plied that it was mortgaged to the said Smith, and not re-
deemed ; and not to have said only, that it was mortgaged ;
for although it was mortgaged, yet the condition by the mort-
gage alone is not broke ; for it may be, nan obstante the mort-
gage, that before the day limited it was redeemed. Like the
case of debt upon bond to stand to the award of J. S. if the de-
fendant pleads nullum fecit arbibrktm, the plaintiff by way of [ 26 ]
replication ought to shew the award in certain, and assign a
breach, and yet the defendant shall have no answer to the
breach. (1) But on the other side it was said, that this case
in question was not like the ease of an award ; for there the
defendant's plea is so general that he does not offer any issue ;
therefore the plaintiff by his replication ought to shew the
whole in certain, and lay a breach ; for otherwise no cause of
action appears to the court ; and there also the offer of the issue
comes from the plaintiff. But in this case of the mortgage,
(1) See Barret y. Fletcher, post. 153. & n.
Mich. 44 & 43 EKz.
(be defendant by his* plea offers an issue, vtz. that the efos*
was not mortgaged, which is a particular 1 point to which the
plaintiff ought to answer; and so he does when he replies,
&c. that the close was mortgaged ; and then are the parties
at a certain issue, and so he need not a I ledge that it was not
redeemed ; for no redemption shall be intended, because the
defendant pleads it was not mortgaged. Like the case where
an award is made, that if J. S. pays tor J. D: ten pounds, then
J. D. shall assure to J. S. the manor of D. and they are
bound to perform this award. In debt brought upon this
bond against J. D if he pleads that J. S. has not paid him
the ten pounds, it is a good replication for J. S. to say that
he has paid him the ten pounds, without saying further, that
J. D. has not assured' the manor of B ; for when the plaintiff
has given a direct answer to the special matter all edged in
the bar, be need not make airy further addition. The same
law if J. S. is bound to marry the daughter of J. D. on Easter
Day next ; in debt oh this bond if J. S. pleads in bar, that
the daughter of J. D. died before Easter, it is a good plea;
and it is likewise si good replication to say, that the daughter
was alive on Easier Day, without saying farther, that he did
(a) Post. 78. not marry her ; (a) because a special plea m bar is always an-
1 Saund. 103. swered with a special replication in that point which is al-
lLu°tw 528 ,et,ge<l; and ( by p ?P nam <$hief justice) it is a good replica-
Cro^El! 320. t * on * n tn ' B ca8e > because the mortgage is supposed to be"
Hardr. 377. made between' a stranger arid the defendant, to which the
lSalk.158. plaintiff is not privy; and therefore he shall never speak of
2 Show. 359. any redemption, for by presumption he cannot have any no-
tice of acts done between the defendant and Jerome Smith si
stranger; and accordingly judgment was given for the plain*
tiff by Popham, Fenner and Yelverton. But Gawdy contra-
Yelverton of counsel with the plaintiff.
King vs. Hobbs.
Cro. Eli*. 913. Noy 47. S. C.
A warrant THE sheriff made a warrant to four men & cuilibet corum,
directed to quod ipsi caperent J. S. two of them take him, and J. S. prom-
four, and eo- | 8eg j m i) m a t whose suit and request he was taken, that if he
^^J^wpuld.dischaijgehim from the arrest, he would pay him 10/.
cuted \Zquando requisites, &c. J. D. discharged him from the arrest,
two. and brought assumpsit for the 10/. and it was found for the
plaintiff. And Lowe moved in arrest of judgment, that the
[ 27 ] consideration is not good, because the arrest was not lawful,
the arrest being made by two; whereas by the authority
given by the sheriff it ought to be by four, or one only ; and
then a promise to pay money to be discharged from an illegal
arrest, is no good consideration ; for false imprisonment lies
on a tortious arrest : quodfuit concessum per cur. if the arrest
(a) Co. Lit. was illegal. But per Gawdy and Yelverton the arrest is (a)
l«t. h. well made ; for warrants in this kind are not to be compared
Mich. 44 & 45 Eli*.
to other cases of authority to mate 6r take livery; for if a [ 27 ct]
letter of attorney is made to three cortfunctirtt & dimsim, two Palm. 52.
cannot make Kvery by 38 Hen. 8. Dyer 62 a. and 27 H. 8. J^V^f
6. ft. The same Jaw in the case of a bond, where three are H||t ' ^
bound Sb qaihbet edrum, the bond cannot be sued against two. 3 Bulst. 209.
(1) But a warrant to make execution, 6t such like, ought notCr. Jac. 165.
to be construed so strictly? for the sheriff's intent was to 1 363. Hardr.
nave the party arrested, whether by all or any of them ipsi 1SS *
nan refert; then the arrest being lawful, the consideration iff
(1) S6 per Buller J.3D&E.
782. Streatfield& id. v. llalliday &
til. " if three be bound jointly and
severally in a bond, the obligee
cannot sue two of them only, but
must either sue them aPI, or each of
fhem separately." But exception
to the non-joinder of a joint oblfeor
must be taken by plea in abate-
ment, as well in an action against
two of three obligors on a joint and
several bond, as in an action against
one of two obligors on a joint bond.
27 H. VIII. 6 pi. 29. 1 Saund.
291. e. n. Oaulton v. Ckalliner & at.
The obligee may consider such
bond either as joint or several, and
proceed according to his election.
If he sues one or each of the obli-
gors, he acts upon it a* a several
bond. If he sues all of them, he
proceeds upon it as a joint bond.
If he sues two only of the three, he
still proceeds upon it as a joint
bond ; for he can only sue one or
each of them upon a several bond.
If he elects to proceed upon it as a
joint bond, there is no difference
between suing two only of three
joint obligors, and one only of two
joint obligors. It is now well set-
tled, that in all cases of a joint obli-
gation or deed, or a joint contract,
whether written or unwritten, or
ex quasi contractu, if only one be
sued, he must plead the matter in
abatement, and cannot take advanr
tage of it afterwards upon any oth-
er plea, or in arrest of judgment, or
give it in evidence. Per Lord El-
don,' 1 Bos. &Pul. 72. Scott v.
Godwin. 1 Saund. 291. b. n. 1
Chit. PL 30. 2 John Cas. 382.
Zitle Sb at. v. CampbelTs Ex'rs.
10 Mass. Rep. 377. Converse vs.
Symmcs. But if it appear on the
face of the declaration, or Other
pleadings of the plaintiff, that anoth-
er jointly sealed the bond with the
defendant, and thai both Ore stili
living, and both these facts are ad-
mitted by the plaintiff, the court wilt
arrest the judgment ; because the
plaintiff himself shews that another?
ought to be joined, and it would be
absurd to require the defendant to
plead facts which are admitted on
the record. The rule is thus laid
down and insisted upon, by Ser-
jeant Williams in a note to Cabell
v. Vaughan, 1 Saund. ubi sup. It
does not appear, however, that it
has been adopted by the courts in
England. The general rule of ev-
idence is, that a party is presumed
to be living till the contrary is
shown, except in some cases, after
a lapse of a certain number of years.
Mr. Chitty in his treatise on Plead-
ing ubi sup. in a note, states that
there seems to be an exception to
this rule, in the case of non-joinder
of joint contractors. But he cites
no authorities to establish the ex-
ception, besides the note of Ser-
jeant Williams, who relies upon the
case of Horner v. Moore cited by
Aston J. 5 Bur. 2614. in which it
is stated that it appeared on tho re-
cord that another jointly sealed the
bond and was still alive — not that
it must thus appear, in order to en-
title the defendant to take the ex-
ception. ' And in The King v. Young
& al. 2 Anst. 448. where a scire fa-
cias was brought against two on a
Mich. 44 k 45 Eliz.
[21 b] good. Fenner contrary; for an authority to restrain liberty
shall be taken strictly ; and in this case, when the arrest is
made by two only, it cannot be determined the arrest of
which of them it is ; as (by him) it was lately adjudged in
• 2 Inst. 380. Chancery on a * commission to six, four or two; and it was
executed by three, and awarded to be void and without war-
rant. Nota ; in this case the venue was mistaken, viz. Wes«
port for Weslport, with (t); and therefore the judgment was
stayed. (2)
recognisance which appeared in the
declaration to have been entered
into by four, and the defendants ob-
jected that two only were sued
without averring that ike others were
dead; Macdonald C. B. said it was
clearly a valid objection, and judg-
ment was given for the defendants,
on demurrer. So in South v. Tan-
ner & all Taunt. 254. where two
only of three joint obligors were
sued, and it appeared on the record
that another executed the bond,
though it did not appear that he
was still alive; the court said ex-
ception might be taken by demur-
rer, in arrest of judgment, or by writ
of error. But they decided that it
was not a ground of nonsuit on the
plea of non est factum. The same
point was decided in Gaulton v.
Chidliner &al. ubi sup. Gil. Ev. 171.
It has been decided in Virginia,
that if it appear on the record that
one, who is not sued, executed the
bond, and it does not appear that he
is dead, it is error. 1 Hen. & Mun.
61. Leftwiche & al. v. Berkeley.
So where a declaration against
three averred that the defendants
and three others, " by their certain
writing obligatory," &c. judgment
was reversed on error. 1 Mun&
555. Newell v. Wood.
If the defendant plead the non-
joinder of a joint obligor in abate-
ment, it is well settled that the plea
must show that the other sealed the
instrument, and that he is living.
1 Saund. 201. a. n. 2. Pleas in a-
batement are not favored, but are
subject to the strictest rules.
(2) See Ante 12. n. 2.
Wilcocks vs. Lovelace.
Cro. Jac. 8. S. C.
On an issue REPLEVIN ; the defendant avowed by reason the plain-
on the ten- tiff held certain land in D. of him, by fealty and certain rent,
ure of a ma- as f n i g manor of D. and for such service arrear he avowed
nor, the ve- ^ e taking ; and issue was joined between the plaintiff and
de* vidncto ^ e defendant upon the tenure, and the venire facias was a-
de manerii. warded to D. and it was found against the avowant; and up-
on judgment given in the Common Pleas, the avowant brought
a writ of error in the King's Bench, and assigned for error,
that the venire facias ought to have been as well from the
manor of D. as from the vill of D. for notice upon the trial
(the issue being upon the tenure) arises as properly out of
the manor of D. as out of D. where the land lies ; and this
was allowed for error. Nota; the place where the land
lay was called Kingsdowne, and the manor of which the ten-
ure was, was called the manor of Kingsdowne. And (by
Mich. 44 & 45 Eliz.
Fenner justice) the difference is, where the tenant holds his
land as of a manor, and where he holds as of a seigniory in
gross ; for where the avowant has but a seigniory in gross,
there the venue shall be only where the land lies ; but where
of a manor which is local, and which by intendment has free-
holders, there the trial shall be as well from the manor, as
from the place where the land lies. And a difference was
likewise taken and agrreed, where it appears by the record,
that the land lies in D. and is held of the manor of D. in D.
and where of the manor of D. only ; for in the first case the
venue from D. only is sufficient, because both the land and
the manor appear to be in D. but in the other case the venue [ 28 ]
ought to come from both; quia non constat, that the manor
and land lie in one vill, and the manor of D. may be in S. or
V. as well as in D. and for this reason the judgment was re-
versed. And precedents were shewn accordingly.
Gore vs. Morton*
Cro. Eliz. 905. S.C.
THE plaintiff declared, that whereas he was a good and Charging a
loyal subject, and of a good reputation, &c. the defendant # man with be-
spoke these words of him, Thou art a false and forsworn knave, ;ng forsworn
and that I null prove, for thou forswore thyself against Pcter™^ <? urU»
Rumball in the hundred court : And upon non culp. pleaded, no t actiona-
it was found for the plaintiff; but adjudged quod nil capiat per hie,
Milam ; for the words, as they are laid, will not bear an ac-
tion ; for forsworn, by itself, does not import slander ; other-
wise of the word perjured. And forasmuch as the -plaintiff in
this action did not shew that there was any action depending
in the hundred court between Peter Rumball and some other,
in which the plaintiff was produced for a witness, which might
have induced the word forsworn to have been equivalent to
the word perjured ; (1) for this reason it was adjudged against
(1) To say of one that he is per- Adams v. Fleming. 1 Brownl. 13;
jured has always been held actiona- Hut. 34. S. 0. Winch 3. King v.
ble, " because it must be intended Bowen. Aleyn 7. Osborne v. Brooke.
contrary to his oath in a judicial 1 Freem. 17. Myanv. Okey. But
proceeding ; but for calling him far- if the court mentioned has not power
sworn, no action doth lie, because to administer a judicial oath, these
the forswearing may be extrajudic- words are not actionable. Winch
ial." 3 Inst. 166. The case in the ubi sup. 3 Inst. 166. 2 Caines Rep.
text is overruled. It is now settled 91. Green v. Long. " You swore
(though it was denied by Wylde and falsely at the trial of A. B." are ac-
Vaughau Js, 1 Freem. 55.) thatcal- tionable words. 12 Mass Rep. 501.
ling a man forsworn in a court is Fowlev. Bobbins. So "forsworn be-
actionable, without a colloquium of fore a justice of the peace." 3 Lev.
a suit there depending. 1 Leon. 127. 166. Gruneth v. Berry. See also
Brooke & Doughtie's case. Cro Eliz. 2 Dallas 58. Rue v. Mitchell. 1 Bin-
185. Plaice v. Howe. ib. 297. Green ney 537. Shafter v. Kintser. 2 ib.
v. Dancy, and Lee v. Secombe. ib. 60. Packer v. Spongier. 1 John. Rep.
609. Shaw v. Thompson. Hob. 283. 505. Stafford v. Qnen.
Mich. 44 & W EUs.
the plaintiff; for perhaps in discourse between Rtimball and
the plaintiff in the hundred court, voluntarily between them-
selves, the plaintiff might swear something falsely ; and the
defendant might thereupon say, that he was forsworn; which
does not sound in any slander.
The Queen v$. Fenton £f al.
Existens te- THE jurors presented that Fenton, Pecke, &c. 20 Aug. 44
nementuxn, E|i 2 . vi & armis & manuforti unum messuag. in Fenton in com.
«T adtunc '^ ta JB[ or ^' ^stens solum & liberum tenementum cujiisdam Ja.
sufficient i^Skrimshire, iUicite & contra formam staluti, &c, ingrcssumfece-
an indict- run U etc prafatum Skrimshire a possession sua, &c. tunc & ibid.
ment for aexpulerunt & diss. &c. And two exceptions were taken to
forcible en- this indictment ; 1. Because it is found that Fenton, &c. unum
trv * messuagium ingressumfecerunU where it should be (in) unum
messuagium ; for as it is in the indictment, it is not good Lat-
in : otherwise if it was unum messuagium ingressi fuerunt ;
sed nan allocatur, for either is sufficient ; and also it is not
false Latin, although it is not so elegant and good Latin, as
if this preposition (in) was in the indictment 2. Exception
was, because the indictment is (existtns) and does not say *
• Palm. .426. adtmc existens; so that non constat whose freehold it was at
SRol. Rep. the time of the entry. Sed \ non allocatur ; for when it ip
65. Noy 131. found that such a day they entered into a messuage (existens)
Hette 73 &0 ^ ,um ■& liberum tenementum, &c. this word (existens) must ne-
tComb 29l. ce ** &vl ly re ^ er to the time and day of the entry. So has it
1 Bulst. 177. Dee n taken before, upon an indictment for the murder of one
4 Mod- 292. Savage, where the indictment was, that J. S. such a day and
Cr.Jac. 214. year inipsum Savage insultum fecit & per ens sit, dans eidem
unam plagam mortalcm ; and adjudged good without saying
(adtunc) dans. Otherwise if the indictment had been percus-
sit & dedit, for then without the adverb (adtunc) it would not
be good ; for the first stroke, and the mortal stroke, might
[ 29 ] well be at several times ; but where the participle (dans) is
joined to the word percussit, there it cannot be taken but that
all was at one time. Yelverton of counsel in maintenance
of the indictment to be good.
Semayae vs. Grresham.
Cro. EUz. 908. 5 Co. 91. Mo. 668. S. C.
A defendant GRESHAM and one Beresford were jointenants of an
nay shut his house in London, in which house Beresford had several goods ;
door against and being indebted to Semayoe, and judgment given against
the sheriff n j m f or { ne debt, died possessed of the said goods, in the said
seize 116 £? house. Gresham continued possessed in the house by survi-
goods on a fi. vor 5 Semayne took execution for the goods of Beresford ; the
fa. and the sheriff of London, taking taking with him a jury to praise the
Mich. 44 & 45 Eliz.
goods of the said Beresford, came (o the said house to serve [ 29 a ]
the execution ; which Gresham perceiving, before the sheriff sheriff can-
had entered the house, shut the door of the said bouse, and " ot Je p J| y
would not suffer the sheriff nor the jury to enter to view and ™f lt °"
praise the goods ; whereupon Seroayne brought an action on* 1
the case against Gresham for disturbing the said 4 execution,
and declared upon all the preceding matter. And (by Fenner
and Yelverton) the action does not lie; for Gresham has done
nothing but what he may lawfully justify, viz. shut his own
doors. And although the execution had been for the debt of
Gresham, yet before the sheriff's entry into the house it had
been lawful for him to shut the door; for, unless it was upon
Sl capias utlagaiam, which is the queen's suit, for the contempt
of the party, it is not lawful for the sheriff to enter the house
unless it is open ; as 18 £. 4. 4. is : Conccssum by all the justi-
ces, contrary to the book 18 E. Execution. And also in this
case (per Fenner) if the sheriff himself might have entered,
yet it is not lawful to bring a jury into the house to praise the
goods ; for it was very inconvenient to have so large a com-
pany in an house, and might be prejudicial to the party, by
the loss of the goods, &c. Popham contra, because by this >
means justice is hindered ; for execution is the effect of the
whole suit ; and if execution cannot be made, but is prevented
by this means, then it will be in vain to sue : and therefore he
conceived the book in 18 E. 2. Execution, is better law than
18 E. 4. and he was of opinion that upon an execution be-
tween party and party, the sheriff might enter and break the
door ; to which Fenner justice answered, that if the sheriff
might by law in such case break the house, then also clearly
the action does not lie ; for then, although Gresham shut the y i( j jfetlet
door of the house, it was the sheriff's fault that he did not 96. m
break it. Quod Yelverton granted afterwards. Trin. 2 Jac ~
Judgment was given against the plaintiff per totam curiam. (1)
(1) The point decided in this writ of habere facias. 5 Co. & Bac.
oase — that an officer cannot legal- Abr. ubi sup. Or to arrest, or seize
ly break an outer door in order to the goods of one, who has sought re-
execute a fieri facias— has never fuge in another's house ; as the priv-
since been called in question. It ilege extends only to the owner
is a doctrine as well established as and his inmates, and to goods law-
any in the books, that the outer door fully in the house without fraud and
of a house cannot be broken in exe- covin. 5 Go. 93. Foster 136. 320.
cution of civil process generally. Or to retake the owner, if after be-
1 Sid. 186. Penfonv.Bronm. Cowp. ing legally arrested, he escapes to
1. Lee v. Oansel. Lofft 374. S. C. bis house. Foster 320. 2 Rol. Rep*
1 Esp. Rep. 99. Hopkins v. Night- 138. White v. Wiltsheire. Palm. 53.
ingale & al. Com. Dig. Execution. Cro. Jac. 555. S.C. 7 Mod. 8. Anon.
C. 5. Bac. Abr. Sheriff. N. 3. In 1 Salk. 79. Oenner v. Sparkes.
criminal process, the officer may When lawfully in the house, the
break outer doors, after demand and officer may break inner doors in ex-
refusal of admittance. 5 Co. 93. ecution of civil process. 1 Browal.
4 Leon. 41. Kemp & Windsor's 50. Anon. White v. Wiltsheire, obi
case. T. Jon. 234. Or to execute a sop. 2 Show. 8f . The King v. Bird.
7
Micb. *4 k 45 feliz.
[2#o]
3 Bos. & Pul. 223, Ratclijfe v. Bur-
Ion. 1 Bay 358. The State v. Tkack-
am&al. 5 John. Rep. 352. Wit-
tiams v. Spencer. And he need not
previously demand admittance. 4
Taunt 619. Hutchinson v. BiVdi
By breaking an outer door, to ex-
ecute civil process (except as a-
bove) the officer becomes a tres-
passer; and to kill him in the act
of breaking is not murder, but man-
slaughter only. March 3. King &
Coke's case. W. Jon. 429. Cro Car.
537. S. C.
In Bac. Abr. Sheriff. N. 3. Exe-
cution. N. and in several other books
it is said that although the officer
is a trespasser if be breaks an outer
door to execute bfi.fa. yet the ser-
vice by him, after such breach and
entry, is legal and valid. Lord
Coke's report of the case in the text
(5 Co. 93.) is cited in support of
this position. The same doctrine
is incidentally recognized by Par-
sons C. J. in an obiter dictum, 5
Mass. Rep. 155. From Lord Coke's
report, however, it is by no means
clear that the court recognized this
doctrine. Several points were re-
solved ; " but the great question" as
Coke states, " was, if by force of a
capias or fieri facias at the suit of
the party, the sheriff, after request
made to open the door, and denial
made, might break the defendant's
house to do execution, if the door
be not opened." After stating the
arguments on this question, he says
" it was resolved that it is not law-
ful for the sheriff (on request made
and denial) at the suit of a common
person, to break the defendant's
house, to execute any process at the
suit of any subject ;" and subjoins
the reasons of the resolution. He
then cites 13 £. 4. 9. where the dis-
tinction was taken between process
at the suit of the king, and the suit
of the subject; and 18 E. 4. 4.
where he says "it was resolved by
Littleton and all his companions,
that the sheriff cannot break the de-
fendant's house by force ofufi. /<*•
but he is a trespasser by the break-
ing; and yet the execution, which
be then doth in the house, is good.' 9
This case was obviously cited by
the court (or more probably added
by Lord Coke) merely to support
the resolution that an outer door
cannot legally be broken in execu-
tion of civil process. If it was ci-
ted by the court, and they meant to
recognize the latter clause, it was
wholly extrajudicial. But the con-
nection, in which it stands, shews
the purpose for which alone it could
be pertinently cited, either by the
court or the reporter. And it is to
be noticed, that Yelverton, Croke
and Moore, in their several reports
of the same case, are silent on this
point All therefore that can fairly
be. inferred from Lord Coke's re-
port, as to this point, is, that either
the court or he understood that Lit-
tleton and his companions had de-
cided that the service of an execu-
tion is legal, though the officer ille-
gally breaks the house to execute
it. Lord Mansfield, in the case of
Lee v. Gansel, Cowp. 6. seems to
have understood the Year-Book in
the same way; and also to have
supposed that the court, in 5 Co.. 93.
had recognized that doc tribe. But
he was manifestly dissatisfied with
it, and the judgment which he pro-
nounced strongly indicated his o-
pinion that it was not law.
The whole case in 18 E. 4. 4. ii
thus — " Catesby came to the bar,
and shewed that a fi. fa. was direc-
ted to the sheriff of Middlesex, to
do execution for one J. upon a re-
covery by said J. against one B. &c.
and afterwards the said B. put all
his goods into a chest locked and
closed, and afterwards the sheriff
broke the door of the house and en-
tered into the house, and took the
goods with him &c. and whether the
sheriff did any wrong or &c- Lit-
tleton and his companions held that
Mich. 4*
the party might have a writ of tres-
pass against the sheriff for the break-
ing of the house, notwithstanding
this ji* foe. For the fi. fac. will not
excuse the breaking of the house,
but the taking of [the] goods only
&c. quod notaP How the case a-
rose does not appear, nor what the
action was; or whether it was a
mere application to set aside the
seizure in execution. All that seems
clearly to be collected from the case
is, that a fi. fa. authorizes only a
seizure of goods, and net a breach
of a house — not that the seizure, in
that particular case, was rightful as
to the goods. The words of the o-
riginal, " mes del prisel des biens
tantum," mean indifferently either
taking of goods* or of the goods.
The sense of the court seems to be
the same either way.
The doctrine, therefore, which
this ease has been supposed to es-
tablish, seems not to be fairly dedu-
cible from it. Bit if it were, yet
there are subsequent decisions, by
which that doctrine is directly im-
pugned. In Bac. Abr. Sheriff N.
3. (edit, of 1762) in margine, it is
said that " it seems to be the modern
practice, on complaint by affidavit,
to discharge sueh execution- [served
after breach of an outer door] and
to grant an attachment against the
officer." And in Gwillim's edition,
ubi sup. and Execution. N. in mar-
gine 9 it is stated, that in Trio. 1 7
Geo, 3. in the case of Yeates v. Dc-
lamayne, the court of Exchequer set
aside an execution levied on the
defendant's goods in his dwelling
house, because the officer forcibly
broke into the house to execute the
writ. In the case of Lee v. Gansel,
Cowp. 1* the defendant applied to
be discharged from custody, on the
ground that the officer broke into
the apartment of the house where
he lodged, and that he was therefore
illegally arrested. The defendant
rented several apartments in the
house, as a lodger, and the owner
& 45 Eliz.
[29 c]
lived in another part of it ; but there
was only one outer door to the
house, at which the owner and the
defendant both entered to go to
their respective apartments. One
ground of defence against the appli-
cation was, that the door of the de-
fendant's apartment was not an ou-
ter door, and was therefore right-
fully broken. It was also conten-
ded, on the authority of the Y ear-
Book 18 E. 4. ubi sup. that a wrong-
ful breach of the door would not in-
validate the arrest. After advise-
ment,. Lord Mansfield gave an elab-
orate and learned opinion, and res-
ted the judgment of the court en-
tirely upon the ground that the door,
which was alledged to have been
broken, was not an outer door with-
in the intention of the law on this
subject, and was therefore legally
broken open.
It is not probable that the couft
would have expended so much re-
search on this question, and have de-
termined it on the single point above
stated, if they had considered the
arrest legal notwithstanding a tres-
pass committed by the officer m
breaking open the door. If they
had recognized that doctrine, there
was a ready and decisive answer to
the defendant's application, whether
an inner or outer dcor had been
broken. Lord Mansfield avoided
giving any direct opfnion on the
question of relief in case the arrest
had been illegal ; but he evidently
inclined to hold that a party would
be entitled to summary relief, in
such case, unless he had been guil-
ty of gross misbehavior.
These cases have greatly shaken*
if not entirely over tamed the doc-
trine supposed to be contained in
18 £. 4. 4. and to be recognized in
5 Co. 93.
There are also well established
principles, and decisions in analo*
gous cases, which seem wholly in*
consistent with the supposed doc-
trine of tfae Year-Book.
Mich. 44 fc 45 Eliz.
[2Qd]
When a license or authority is
given to any one by the law, and
he exceeds or abuses it, he is a tres-
passer ab initio. Perk. § 190. 101.
Lane 00. v. Gibson. 8 Co. 146.
The Six Carpenter" s case. Yelv. 06.
Bagshaw v. Q award. The reason
sometimes assigned for this rule, viz.
that the abuse is proof of a wrong-
ful original intention, is not satis-
factory ; because it would equally
apply, in most instances, to an a-
buse of a license or authority given
by the party injured ; in which case
the rule of law is different. A much
more sensible reason is given in
Bac. Abr. Trespass. B. viz.— .that
the law, in order to secure the ob-
jects of it from abuse, makes every
thing void when there is an abuse,
and leaves the party abusing in the
same situation as if he had no au-
thority. This reason seems to com-
prise the true spirit of the maxim
actus legis neminifacit injuriam.
In the case of Luttin v. Benin, i 1
Mod. 51. Lord Holt says "if a man
is wrongfully brought into a juris-
diction, and there lawfully arrested,
yet ought he to be discharged ; for
no lawful thing, founded on a wrong-
ful act, can be supported: 9 Upon
this principle, a defendant, who was
taken and confined without any
■writ, and arrested on a writ, while
thus under detention, was dischar-
ged unconditionally. 2 Anst. 462.
Barlow v. MaU. 2. H. B. 29. Love-
ridge v. Plaistow. S. P. So where
the defendant was carried by force
to a house, and there arrested, he
was discharged by the court. 1 N.
R. 135. Birch & ah v. Prodger &
al. So where the plaintiff detain-
ed the defendant from Sunday till
Monday morning, and then procur-
ed his arrest, he was discharged on
tiling common bail. 1 Anst. 85.
Lyfordv. Tyrrel. This was all
the defendant asked, or he doubtless
would have been unconditionally
discharged. See also 5 D & E. 25.
Atkinsm v. Jameson, S ib. 187.
Hall v. Roche. These modern ca-
ses seem to have entirely overrnled
some earlier ones, in which the
court are reported to have refused
to discharge the defendant, and left
him to seek redress by action a-
gainst the officer. See 5 Mod. 95.
Wilson v. GuUery. 6 Mod. 9fi. Lift-
ford v. Thomas, ibid. 105. Anon.
Witnesses, parties, jurors and all
persons, who have relation to a
cause, which calls for their atten-
dance in court, are privileged from
arrest, eundo, inorando et redevndo,
if they attend bona fide ; and if they
are arrested, the court interpose by
discharging them from custody, and
sometimes also by punishing the
officer. Sty. 395. 413. Anon. Com.
Dig. Privilege. A. 1. 3. Bac. Abr.
Privilege. B. 2. Phillipps Evid. 6.
Cowp. 9. per Lord Mansfield. 1
H. B. 636. Meekins v. Smith. 1
Campb. 229. Solomon v. Underhill.
1 Maule & Selw. 638. Rimmcr v.
Green. 3 Mass. Rep. 288. MTNeiPs
case. 1 Caines Rep. 115. Graver v.
Green. 2 John. Rep. 294. Norris v. .
Beach. 7 ib. 538. Bours v. Tucker-
man. 4 Dallas 387. Hursfs case. 1
Binney 77. Miles v. M'Cullough.
And when the first arrest is illegal,
all detainers lodged under it are al-
so illegal. 4 Ves. Jr. 691. Ex parte
Hawkins. 5 ib. 2. Bromley v. HoU
land. 8 ib. 598. Ex parte Ledwich.
ib. 69. Sidgier v. Birch. When
there is an irregular arrest, and an
advantage is taken of the irregular-
ity to charge the party in custody
at the suit of andther person, the
court will discharge him from both.
1 Atk. 152. Ex parte Wilson.
So members of parliament, who
are privileged from arrest, are dis-
charged from custody on motion, or
by suing forth a writ of privilege.
Jenk. 118. Rep. Temp. Hardw.28.
37. Holiday v. Pitt. Com. Rep.
444. 2 Stra. 085. S. C. Jefferson's
Manual § 3. In May 1628, the
Committee of Privileges in the
House of Lords made a report
/
Mich. 44 & 45 Eliz.
** that the goods of a privileged per-
son taken in execution ought to be
redelivered and freed, as well as
the person " W, Jon. 155. This
seems to have been the law, previ-
ous to the statute 10 Geo. 3. 4 Inst.
24. 1 BI. Com. 166. Sty. 223. More
v. Earl Rivers. Bac. Abr. Privi-
lege. C. 2. By that statute, the
privilege of parliament exempts the
members only from arrests and im-
prisonment. See 1 Dallas 296. Bol-
ton v. Martin. 3 ib. 478? Coxe v.
M'Cknachan. 4 ib. 341. United
Slates v. Cooper. 2 John. €as. 222.
Lends v. Elmendorf.
Ambassadors and their servants
are privileged from suits, by the
law of nations. Grotius Bk. 2. c.
18. § 8. 9. Burlamaq. Pt.3.c. 15. §
10. And if they are arrested, the
courts discharge them, or cancel
their bail-bonds. 4 BI. Com. 70.
Cas. Temp. Talb. 281. BarbuWs
case. Fitzg. 200. Widinore v. Alva-
rez. 3 Bur. 1478. Triquet & al. v.
J&rffe. 3 D & E. 79. Hopkins v. De
Roebeck.
So servants of the king are dis-
charged frem custody, on account
[ 29 e ]
of privilege, even though committed
on execution. 5 D & E. 686. Bart-
Ictt v. Hcbbcs.
Quod fieri non debet, scd factum
valet, is a maxim that has some-
times been cited in support of the
dictritie now tinder review. But
the maxim was originally applied
to arrests and levies made within
certain verges and liberties, in con-
tempt of the authority or to the in-
jury of the rights of the proprietor
of the peculiar jurisdiction : The
rights of the party arrested, or
whose goods were seized, were not
infringed. See Yelv. 52. Wolfrestorts
case. Gilb. H. C. P. 27. 3 D & E.
740. The King v. Stobbs. These
cases, therefore, may be analogous
to that of a stranger, who takes ref-
uge in another's house; but are not
applicable to an arrest of a man, or
seizure of his goods, after a breach
of his own castle.
The doctrine seems, therefore, to
be unsupported by any adjudication
or analogy, and to be repugnant to
well established maxims and the
principles of numerous modern de-
cisions.
Rede vs. Berclockc.
Cro. Eliz. 734, 822. S. C.
JUDGMENT is given against Berelocke in debt of 100/.
in the Common Pleas ; and after the Judgment he enters into
a statute to J. S. and dies intestate ; his widow takes admin-
istration, and removes the record of the debt recovered a-
gainst her husband into the King's Bench by error, and pen-
ding that suit pays the debt upon that statute to J. S. and af-
terwards the first judgment is affirmed. And in a scire facias
against the administratrix to have execution, she pleaded pay-
ment of the statute, beyond which she had not assets. And
thereupon the justices of the King's Bench being divided, viz,
Pophamand Gawdy against Fenner and Yelverton, it was re
ferred to the opinion of the other justices; and by the grea-
ter part of the justices joining with Fenner and Yelverton, it
was adjudged a good plea, and that the payment of the statute
was no devastavit (1) for at the time of the execution of
(1)12 Mod. 43. Anon. Bui. N. P. 142. Toller 268. ace.
An adminis-
trator may
pay a debt
due by stat-
ute, before a
debt upon a
.[303
judgment on
which a writ
of error is
pending.
Ld.Ray.47.
Co. Ent.152.
2Brownl.39.
81.1 Sid. 21.
4 Co. 59. b.
.2 And. 157.
Hil. 45 Viiz.
the- statute she could not plead the judgment in the Common
Pleas, because it was doubtful whether it would be affirmed
or not ; then the payment and discharge of the statute was
no fault in the administratrix, for she could not have audita
querela, nor any other remedy to be freed from the payment
of the statute at the time of the execution sued.
Abraham v$. Wilcox.
The king TENANT in tail of the King's gift, by deed deUbrral. de
2eT nJ tll t ,wtr ^l^dem remanens, conveys his land to the king in
£" the en- ee : ^ ni * MMged g°°d» although the deed be not enrolled ;
rotaenL " * or the king does not take by the enrolment, but by the deed ;
so that the deed is the principal, and the enrolment but a proof
that the deed is of record ; and although it it usually said ia
the books that the king cannot take unless by deed enrolled,
that is to be understood, unless the deed made to the king
is recorded ; yet it is not sufficient to make a deed of land to
the king, and throw it into the Exchequer, or other court of
record ; or after such deed is made, to leave it in court ; but
the party ought to deliver it of record in court, and to be en-
dorsed by the officer, quodvenit J. S. tali die, and delivers in-
Brook'a new to court such a deed to the use of the king ; and then that
cases. 118. countervails enrolment. Vide for this the books 37 H. 6. 10.
• Xcilw.lS, an< j j 2 H. 1.- Vavisor in Croke's Reports;* and in this
case per tot. curiam, nuUo conlradiccnte.
Ghanudflower vs. Prestley.
Cro. Eliz. 9*4. Noy 5p. S. p.
In covenant A MAN covenanted upon payment of 10/. by J. S. that
for quiet en- t g # should have so many tons #f copperas, and enjoy it
«khIs nt a ™ thout 'awfol disturbance by any person : J. S. brought cove-
breach that nant » aiM * shewed the payment of the 1 Ol. but that he was inter-
ihe plaintiff rupted and disturbed in the enjoyment of the said copperas :
wasintermp- And it was moved by Croke, that the breach is not well as*
* c< *» ** . n f 8 H5 De d > because it is not shewn by whom he was disturbed,
©ut shewi nor *^ at ** e was kgtiimo mod disturbed, according to the ver
a / ai ^ w / ^ry words of the covenant; for though the plaintiff in cove-
?urbance. Dant neec * not shew in special the title by which he is distur-
bed, because by presumption he cannot know it ; yet in as-
signing the breach he ought to pursue the words of the cove-
nant : Et allocatur per curiam. ( 1 )
(1) Had the word "lawful" been by title only. Winch 25. Hunt t«
omitted in this covenant, yet the Allen. Hob. 35. Tisdale v. Essex. 1
plaintiff could not have recovered. Brownl. 23. Moore 861. S. C.
Genera] covenants for quiet enjoy- Vaugh. 118. Hayes v. Bickerstajf.
ment of land do not extend to a 3 D & E. 584. Dudley v FollioL
tortious eviction, but to evictions In case of personalty, such cove*
Hil. 49 Bill;
Barnes vs. Worlicfa.
Noy 41. Mo. 644. Cro. J*o. 25. S. C.
[313
J. S, lent 1092. for * year, and took SI. interest at the end Taking ia-
*f six months: Popham and Gawdy justices were of opinion, terest *"»■-
that this is not usury ; for it is not ultra 10/. for the 1002. "">«a"y «
for although J. S. took Si. interest at the end of six months,™* £otute
yet that is not ultra the rate, for it will be as if the 100/. had against two-
been lent but for six months : Like as if a man lends 100/. tarry.
a year, and takes the profits of a manor to the value of 10/.
per ann. although the profits are received every day of the
year ; yet that is not usury. But Fenner and Yelverton jus-
tices contra $ for this case in question is not to be compared to
a mortgage ; for the statute, which allows the mortgage, must
necessarily allow the profits to be taken as they naturally a-
rise : But here, when 10©/. is lent for a year, the statute in*
tends that the profit and increase of the 100/. ought not to be
received till the end of the year ; for if the 51. interest is re-
ceived at the end of the six months, then he to whom the
100/, is lent, has but the use and profit of 95/. for the whoto
year; and the statute is to be taken strictly against the offen-
der, and largely in punishment of the usury ; and therefore
If 100/. is lent for a year, and he who lends it within two
days after takes back 10/. it is usury : And in this case when
J. S. takes Si. interest at the end of six months, now it is to
Hants extend only to lawful distur-
bances.
In a suit for breach of such cov-
enant, the plaintiff must aver that
the person evicting or disturbing
bad a lawful title before or at the
time of the grant to the plaintiff.
See Wollon v. Hele, 2 Saund. 177.
&n. 10. Sdw. N. P. 413 to 418.
where the manner of averring title
in the party evicting, and the sev-
eral authorities are stated.
A covenant to indemnify a pur-
chaser against a particular person
by name extends to entries and dis-
turbances by that person, by droit
or tort. Cro. Eliz. 212. Foster &
al. v. Mopes. Hob. ubi sup. Skin.
160. Dod v. Jenkinson. 1 Freem.
103. Lucy v. Leviston. 1 Stra. 400.
Perry v. Edwards. So a covenant
against all claiming or pretending
to claim any right, extends to a tor-
tious eviction or disturbance. Com.
Rep. 230. Souihgute v. Chaplin. 19
Mod. 384. S. C. 1 Stra. ubi sup.
And if the covenantor himself does
any act asserting title, it is a breach
of his covenant, though be cove-
nant only against lawful disturban-
ces, and the act done by him be tor-
tious and the subject of trespass. 2
Show. 425. Crosse v. Young. 1 D
& E. 671. Lloyd v. Tomkks. 1
John. Rep. 376. Sedgwick v. Hoi-
lenback. But a recovery in tres-
pass would be a bar to an action on
the covenant, and vice versa. 5 D
& E. 333. 334. Burt v. Moore, per
Bailer J. In case of a covenant
to indemnify against the acts
of a particular person, it seems that
the covenantee has a double reme-
dy ; one on the covenant, and a-
nother against the trespasser. Sty.
300. Whittvay v. Pinsent. Vaugh.
122. per Yaughan C. J. But see
3 Bur. 1345. Bird v. Randall
Hil. 45 Eliz.
be presumed, he will lend this 51. and take interest Tor it
-within the year, as he well may, which is more than the sta-
tute allows : for the utmost gain of 100Z. in money for inter-
est ought to be by no means but 10/. by the year. And judg-
ment was given, by the opinion of all the justices of England,
against the plaintiff. (1) Yelverton of counsel with the de-
fendant.
(1) It appears from Croke's re- Bulst. 17. Anon. Cro. Car. 283.
port of this case, (Cro. Jac. 25.) Grysill v. Whichcott. ace. This
that it was an audita querela to a- doctrine nas been considered as set-
void execution upon a statute, and tied ever since. Though in Dalton's
that upon an issue sent out of chan- case, Noy 171. it was said by Pop-
eery, the facts substantially as ata- ham J. that an agreement, at the
ted in the text were proved. By time of making the obligation, that
the 'judgment against the plaintiff," the interest shall be paid before the
therefore, it was decided that tak- expiration of the year, is within the
ing interest semiannually is not statute ; yet the law is clearly other-
within the statute against usury. 1 wise. Ord on Usury 53.
Gibson v$. Holcraft.
There need IN a prohibition, the suggestion to stay the suit in the spi-
net be a tra- r i (ua i court for tithes was, that the abbot of Vale Royal in
Sere'iia8u^ Che8hire wa * seised of lhe 8aW P ar80na S e of W « and of the
llcient con- £ ran (? e °f Darnal, whereof tithes were demandei by the pro-
fession and sent parson of W. and that the said abbot and his predeces-
aroidance. sore from time whereof, &c. were seised of the said parson-
age of W. and of the said grange of D. in their demesne as, dec.
in right of their abbey; and ratione inde shewed the unity of
possession in discharge of the tithes, upon the statute of 31
H. 8. To which the defendant pleaded that the said abbey
was founded 5 £. 1. (which is within time of memory) and
*"* shewed and confessed the unity of the parsonage, and of the
Grange after the time of the foundation. And upon the mo?
tion of Coke the attorney general, {per totam curiam) the
_..... plea in bar is good ; and it is not necessary to traverse the
f Co. 48.* prescription, for the shewing of the foundation of the said ab-
11 Co. 14. b. hey to be after the time of memory is a sufficient confession
Mo. 528. and avoiding. ( 1 ) But if the defendant, against the suggestion
of the perpetual unity, would shew that the demesnes before
the statute, and in the time of the abbot, were in the hands
[ 32 ] of the farmers, &c. there he ought to traverse the prescrip-
tion ; for although the possession was chargeable in other
hands, yet as to the fee-simple which remained in the abbot,
it is a discharge in right.
(1) See post 151. n.
Hil. 45 Eli*.
Fitz- William's Case.
Cro. Eliz. 915. S. C,
WILLIAM FITZ-WILLIAM was indicted npon the *«">«* of
statute of 8 Hen. 6. and that indictment being in force, he * certiorwi
was indicted again upon the statute upon the same day, and . sticcof^tae
upon the same entry. The first indictment was removed by ge^,^ l9m
tertiorari into the Kind's Bench ; and upon the second in- prohibition
dictment the justices of the peace in the county of Essex, to them ail.
where the indictment was taken, awarded restitution ; and _
before it was executed, a certiorari was delivered to SirpJJ^Jj
Thomas Mildmay, one of the justices of peace, who refused Bco. Certfat-
Id open it before fie had spoke with his companions, and did ran. 19.
not grant any supersedeas, whereby restitution is made ; and Bro. Reeor-
afterwards the indictment is removed into the King's Bench, dare * &
and re-restitution prayed for William Fitz- William ; and it
was granted per totam curiam upon great deliberation ; for
the certiorari coming to the hands of one of the justices, is in
itself a prohibition to them all, (for the very words are, coram
nobis volumus tenmnari, <fc non alibi) and thereby the hands of
the justices are tied up ; and it was a misdemeanor in Sir
Thomas Mildmay, that he did not obey the writ ; for it is,
cuilibit eorum ; and he was severely reprimanded by the
Court. Vide 1 R. 3. 4. certiorari to remove an indictment,
which indictment bore date after the certiorari ; and • Hen.
7. 16. per Keble, if after the certiorari delivered the party does
Hot sue for the removal, but lets it lie, yet the justices can-
not proceed in execution : But Hub. contra there. But Bro.
in abridging the case, agrees with Keble. And 7 Eli*. Dyer
245. in such certiorari, although the day of the return is past,
yet it is a supersedeas by reason of the words (coram nobis
i non alibi.) Vide 34 Ass. 8. Yelverton of counsel with
William Fits- William.
Shire vs. King, an Attorney.
Cro. Eliz; 914. S. C.
A MAN spoke of an attorney these words, Thou art a pal- Actionable 1
try fellow, thy credit is fallen, thou dealest on both sides, and to charge atr
dost deceive many that trust thee. And affirmed upon error, ^j^ 6 .?
that the words give cause of action ; for although an attor -^both5d«f
Hey may deal on both sides as an arbitrator, yet all the words
being coupled together, ought to have reference to his calling,
and cannot be taken but in malam partem. Yelverton of
counsel with the plaintiff. (1)
(1) See March on Sland. 57. 58. Phillips v. Janseru 8 John, ftepw
Bac. Abr. Slander. B. IV. 3. Esp. 64. Foot v. Rimvn.
Dig* 408. 499. 2 Esp. Rep. 624.
8
Pascb. 1 Jac.
[ 33 ] Yaites vs. Gough.
Mo; 680. Cro. Jao. 3. S. C.
Administra- GOUGH was indebted to Cowper in 20f. who died intes-
tor de bonis ^ te . an( j Pfanceg his widow took administration, and recov-
have a*»rire ere ** ^ judgment against Gough ; but before execution died
facias on a intestate ; whereupon Yaites took administration of the goods
judgmentob- of Cowper, and brought a scire facias against Gough upon the
tained by the judgment. And by Popham, Fenner and Yelverton, it does
first adminie- no t \\ e . for ( n e one administrator is not privy to the other ;
deb? r dutTto am * ***** ***** f ac * as ***&% grounded upon a record, he, wha»
theintestate. wHl navc an act ' on u P on *hk record, ought to make himself
* privy to him who was before party to the record, which can-
Mo. 4. 159. not be in this case (I) for each administrator claims by cora-
N. Be*. 4. mission, and quasi by a collateral authority one to the other ;
1 And. 29. and therefore the opinion of /Fits* Herbert 26 Hen. 8. 7. is not
law. And Benlowes Serjeant cites a case 28 Hen. 8. adjud-
ged contrary 4o the opinion of Fitz-Herbert But (by Pop-
ham) if an executor brings trespass for goods taken out of his
own possession, which were the testator's, and recovers and
makes his executor, and dies, although the record is general ;
so that non constat whether the goods, for which the trespass
was brought, were the testator's or not ; yet if the executor
sues execution, he shall have them to the use of the first tes-
tator ; for so were they adjudged in bis testator to be assets,
▼is. the damages for the taking of the goods : But if an ad-
ministrator brings such general action for goods which re vera-
were the intestate's, and recovers and dies, his administrator
shall have execution of the judgment, quia non constat by the
&
1) Benloe 1$. Level v. Lewken. Abr. 800. S. C. So on an infant
BrudeneVs case. 2 Brownl. executor's coming of age, he may
144. Kemp & al. v. Lawrere & aL sue a scire facias on a judgment re-
Yelv. 83. Barnehurst v. Yelverton* covered by the administrator dur»
Latch 140. Postal v. Wards. March ante minaritate; 1 Rol. Abr. 888.
9. Anon. Sty. 251. Anon. 4 Mass. Wright's case. 2 Brownl. 83. Bear-
Rep.Q\2.QroMty.Chamberlin.&cc. block v. Head, or by an executor
But now by statute 17 Car. 2. made durante tninoritate. Ow. 134. Kempt
perpetual by 1 Jac 2. administra- & al. y. Laurence. So an executor
tors de bonis non may sue a scire may sue a scire facias on a judg-
facias on such judgment So in raent recovered by an administra-
Massachusetts, by statute of 1 8 1 2. tor pendente Ute. 2 P. W. 58 7. Walk*
c. 106. they may sue and be sued, er v. Woolaston. And if judgment
in all cases where the first admin- be recovered against an adrainis-
istrator or executor might. And by trator durante tninoritate, a scire fa-
the common law, if a judgment be cias on the judgment lies against
recovered against an executor, who the executor, after he comes of age.
dies intestate, a scire facias lies a- Garth. 432. Sparkes v. Croft. 1 Ld.
gainst the administrator de bonis non Raym. 265. S. C. See also Pre.
of the testator. W. Jon. 214. Nor- Cb. 175. Jones v. Basset. Mitf. PI.
gate v. Snapes. Cro. Car. 167.1 Rol. 61 .
Pasch 1 Jac.
record to whom the goods belonged : But when he recovers ,
then the administrator of the first intestate shall compel him
in a court of equity to pay him as much money to the use of
the first intestate, as he had recovered before. Quod nota.
Witty diversity.
Arundell vs. Arundfil.
Cro. Jac. 10. S. C.
THE cognisance of a fine was taken by Roger Manwood, If tfac *>nu-
Esq. one of the justices of the Common Pleas, who was af- ? nc f ? f . a
terwards made a knight and chief baron of the Exchequer ; b ° e a ?/*
afterwards the party sued forth the fine, as is usual, and took w ho is stiiedl
a dedimus potestatetn (which must of necessity in date over- koight,when
reach the cognisance) to Sir Roger Manwood, Knt. who re- he is not a
turned it, respond infranommat. Rog. Manwood; and after- !"ds nt » y«*
-wards the fine is made perfect, and received by the justices assfcned fo*
of the Common Pleas. And now it is alledged for error in err( f r to re .
fact, that Roger Manwood, who took cognisance of the fine, verse the
-was not a knight according to the authority given him by the fine, for it
dedimus, &c. And adjudged that it should not be assigned for wou,d ** an
error; for it is contrary to the record, and contrary to that av S™"l a ~
which the court has accepted; and by the same reason he !- ngt ] hc
might say that there was no such Roger Manwood in verum ^co r d #
naiura ; which cannot be r because the record is otherwise,
which is an estoppel ; and moreover it is uncertain how this Cro. EI. 677.
error assigned in this manner shall be tried, whether by the Cruise 82.
country, or by the heralds, who make a register of the knights. i Wils. 27.
It would likewise be mischievous to suffer such assignment of
errors ; for this averment may be taken to all fines acknowl-
edged by dedimus potestatetn, although they were past 100
years ago. And (by Popham) there are but two sorts of cog-
nisance of fines, viz. by commission, i. e. dedimus potestatetn,
or in the court of Common Pleas ; if a dedimus potestatem is
awarded to two, and one of them takes the conusance of a
fine, and this fine is afterwards drawn up in the Common
Pleas, yet the party may well have error upon this fine, viz.
that the conusance was without warrant ; for this is not con-
trary to the record, for the dedimus posestatem is parcel of the
record, and the assignment of errors agrees with it ; Bat if
such erroneous cognisance on dedimus potestatem is taken,
and the fine is afterwards drawn up as a fine acknowledged
in court, now no mistake in the dedimus potestatem shall avoid
it ; for it shall be adjudged as a fine acknowledged in court
only. And if J. S. has a warrant of attorney for J. D. and
it is taken by a judge in the Common Pleas, and the record is
accepted in court, it shall not afterwards be averred that there
is no such J. S. because contrary to that which the court has
recorded ; yet if the judge had been informed of it at first, he
wdlild and ought to have stayed it And in the case of a T. Jon, &.
sheriff, although a man cannot aver contrary to that which
Pasch. 1 Jac.
lit returns, yet he may say, that he who has endorsed hi*
name on the back side of the writ, &c. was not sheriff; be-
cause by the common law, until the statute of £. 2. no sher-
iff nor officer used to put their names to their returns ; and
therefore this averment, that he who made the return is no
true officer, is not taken away by the statute, but remains as
a thing at the common law.
Lewis w. Acton.
4 Co. 18. 19. Mo. 666. 6. C.
In slander, THOU art a perjured knave, and that will be proved by a
tie first gtake that standetb between the ground of J S- and J. D. and
W °alified *bv ^"^K^ not maintainable ; for although the first words by
Sic ' subae- themselves will bear an action, yet they are qualified by the
quent eoti. subsequent words ; and this word [and] is as much as thia
word [for] ; and so it appears, that this perjury wherewith the
plaintiff is charged, is referred to the proof of a thing insensi-
ble, vis. a stake : As if the defendant had said, Thou art a
Thief, and that will be proved by the apples thou stolest off
of my trees ; this is no slander, for the subsequent words ex-
plain the former intent ; and stealing apples from the tree is
not felony. (1)
(1 V See Erechdey v. Atkins, ante v. Pierce. Sty. 115. Wainewright v.
10. & n. In some of the old cases, Whitly. This distinction is now
and was held to be cumulative, and exploded. Hob. 331, Clearke v. Gil*
for explanatory. 2 Brown). 280. bert. 2 Ld. Raym. 900. Baker v.
Ayre'scase. Cro. Jac. 114. Miners Pierce. Hammond's N. P. 259. n.
v. Leeford. Aleyn 31. Yearworth
[ 35 ] Huys vs. Wright.
Though a
judgment re- THE plaintiff declared, that whereas several suits, &c.
lates to the were between the plaintiff and defendant, they submitted
J™ 1 dav °*them to the award of J. S. and promised each other to perform
a breach ^of**' an< * snewe ^ further, that in Easter term, such a year, in
an award, & super 20 Maii, J. S. awarded that the defendant should im-
made on *posterum surcease such a suit, and also release to the plaintiff
day after the all demands; and alledged in fatto that after the said 20
commence- faqfc j n t |, c game Easter term, the defendant did not surcease
term that A the 8uit ' but P^secuted it, and had judgment; and also that
should sur- ne did not release, &c. And upon non assuntpsit pleaded it
cease his was found for the plaintiff. And Tanfield Serjeant moved in
suit, is well arrest of judgment, that the declaration was not good ; for it
pleaded by appears by the plaintiff's own shewing, that the defendant had
that d A nS r J u< te meil t * n Easter term, and every judgment has relation to
terwards* " the ^ rst ^ av °* tne term » tben tne 20 ***** being in the mid-
prosecuted die of Easter term, and the award being that the defendant
his suit. after that should surcease his suit, J. S. has awarded a thing
Paach. 1 Jac,
which could not be performed ; for the suit was ceased before
by the judgment, which relates ad initium termini, and so
•ould not be stayed by the defendant ; then this matter before
being assigned for one breach, upon which to have greater
damages ; and the award being in that point impossible to be
performed, the plaintiff ought not to have his judgment : But
it was resolved per totam curiam, that the plaintiff should
have judgment for two reasons. 1. Because if the exception
should be taken as before, viz. that by the judgment relating
to the beginning of the term, the award to surcease the suit is
void ; then it is as if such thing had never been awarded, and
then the assignment of the breach of the award in that point
is also void; (1) and so no damages given as to that point,
but only for the other breach assigned for not making the re-
lease. 2. (By Popham) although in judgment of the law ev-
ery judgment relates to the first day of the term; yet in this
case, the plaintiff having expressly alledged in his declaration
that after the 20 Merit the defendant prosecuted the suit to
judgment, although it appears to be all in one term ; yet the l Sid. 375.
defendant ought to have taken advantage of it by a special
demurrer thereupon, because it is specially laid down in time
one after the other ; (2) and he having in this case taken is-
sue upon the point of the action, viz. non assumpsit ; the other
matter alledged in the declaration is only collateral, and but
inducement; and the court cannot now judicially take no- Cro.Car. 53.
tiee of it, without resorting to another record, viz. the record
of the judgment; which they ought not to do, because the
plaintiff has precisely alledged it to be after the 20 Maii in
time.
(1) See Jenk. 264. Kyd on Aw. (2) See Kycton Aw. 273. 274.
280. 2 Saund. 148. /. n.
Grene vs. Gascoigue. [ 36 ]
1 Brownl. 83. S. C.
IN debt on a bond of 100/. the defendant pleaded, in bar 1 ? aftCP *
to the action, outlawry in the plaintiff, and shewed it in cer- ^P 1 "* 11 ™
tain ; the plaintiff replied nul tiel record, upon which the de-J^"^ , to ie a
fendant had a day until the next term to bring in the record; p] ea in bar
and in the meantime the defendant reversed the outlawry, of outlawry,
whereby it is now become in law nul Hel record: According the outlawry
to 4 H. 7. 12. Yelverton moved the court for the defendant, jf reve ™; d
that although this is in law a failure of record, yet the defend- ^1° aligned
ant ought not to be condemned, but a respondeat ouster shall f ar bringing
be awarded : According to 6 Eliz. Dyer 228. a. who puts the in the dec-
ease, that the failure of the record is not peremptory; and so ord, a r:s-
adjndged per curiam; for in fact there is no default in the de- pondeatous-
fendaut, his plea being trae at the time of pleading it. ^^ a *JJ^i
Pasch. 1 Jac.
Purcell vs. Bradley.
Cro. Jac. 46. 1 Brownl. 192. S. C.
In trespass THE plaintiff declared, quart such a day the defendant
tie bonis as- upon him insultum fecit y necnon unam eqvam pretii 6/. a perso-
portatis, then* ipsius (the plaintiff) adtunc & ibidem cepit: And Yelverton
declaration moved f or the defendant in airest of judgment, that the dec-
property ^n ,ara ^ on *■ not g°°d ; for the plaintiff does not alledge any
the plaintiff; property in the mare, but he ought to have said equam sitam
or it will be or equam ipsius qnerentis ; for now, as it is laid in the declara-
bad after tton, it may have two intendments ; 1. That the mare was
verdict. the defendant's, and then the taking was lawful ; or that it
was the plaintiff's, and then tortious ; and being indifferent in
construction, it shall be taken strong against the plaintiff; for
it is not a defect in form which is aided by the statute 34 E.
3. but it is defective in matter; (1) and then the jury having
assessed entire damages for both the trespasses, and for one
tresspass supposed no cause of action is given, the verdict is
not good. QjuodJuU concessum per Fenner and Telverton
justices, being only in court.
(1) Sty. 53. Wood v. Salter. 2 der. 3 M. 9. 1 Chit. PI. 365. an*
Saund. 379. n. 13. Com. Dig. Plea- the cases there cited, ace.
Stweton V8. Cushe.
Ow. 114. Mo. 680. Cro. Jac 9. 1 Brownl. 155. S. C.
On a condi- J. S. demised an house for eighty years, in which there is
tion that the a condition, that the lessee, his executors and assigns, shall
leasee *hal! maintain it in repairs; and if upon lawful warning given by
in*"^ Tv l * ,e l essor > n * 8 heirs and assigns, that the said house is in de-
timc fafter ca y' ** * 8 not re P & ired, & c - within six months, then it shall be
lawful war- lawful for the lessor, his heirs and assigns to enter ; the lessee
[ 37 ] for eighty years makes a lease of the house to A. for thirty
ving, the years, and A. demises it to Wilmore for fifteen years ; the
warning assignee of the reversion comes to the house, and seeing it in
must be giv-^ eca y g | veg warn i„g to Wilmore, then possessed of the said
en to him. * °. . ,® ,. , , j., . r . .... ..
who has the nou8e » *° re paw it; which he did not do within the six
entire inter- months : Whereupon the assignee entered for the condition;
est, and not and upon non culp. pleaded, the matter aforesaid is found by a
to an under- special verdict. And it was adjudged against Sir William
lessee., Wade the assignee of the reversion; for the warning tore-
Skin 891 P a * r * ne house being given to Wilmore, who was but an un-
a Co. 92.' der-lessee, was not good ; for he was not assignee of the term,
Co. Lit. 153. for he had but a small interest under the grand lease, upon
211. 220. whom no avowry could be made for the rent, nor any action
of waste brought against him; for immediate privity is want-
ing. And in this case a difference is to be taken between .
rent and a condition for repairs ; for this condition is merely
Fasch. 1 Jae.
collateral to' tbe land, and merely personal; so (hat warning
is not of necessity to be given at tbe house, but notice of the
want of repairs ought to be given to tbe person of the lessee,
who has the grand interest. And a difference is to be taken
between a certain time in which a thing is to be done, and
an incertain time : As in case of rent reserved payable at a
certain day, the demand ought to be upon the land only, be-
cause the (and is the debtor ; and yet (by Popham) in such
case, if the lessor comes to demand tbe rent, and there meets
with J. S. a stranger, and says to J. S. pay me my rent, this
is no good demand; for4ie has mistaken the person, for J. S.
is not chargeable with it ; but in such case a general demand
of the rent, without reference of it to any person, who is not
chargeable, bad been good. And (by him) if a man demises,
rendering rent by the year quandocunque the lessor shall de-
mand it ; in that case, if the lessor comes to demand it before
the end of the year, his demand upon tbe land is not good,
unless the lessee is also there ; for the time being incertain
whenrthe lessor will demand it, he ought to give notice to the
lessee of tbe time : And if he comes to the lessee, and de-
mands it, that is likewise insufficient; for although notice
ought to be given to the lessee in person, yet the land is the
debtor ; and therefore the law ties the lessor to the land, as
to the place in which it shall be paid : But if the lessor stays
till the end of the year, then the lessee ought at his peril to
wait on the land to pay it ; for the end of the year is the time
of the payment prescribed by the law. Quodfuit concession,
Serj. Tanfield and Stephens of counsel with the defendant,
for whom the judgment past
Hughes vs. Phillip*. [ 38 ]
Cro. Eliz. 754. Cro, Jac 13. a C.
HUGHES of Grayes-Inn brought audita querela against *■ audita
Rice Phillips, to whom he had acknowledged a recognisance J" ere,a ». *J
of 300/. upon a defeasance, that if Hughes paid to Jo. Bush died^ a
3Q0L in six years, viz. by 50/. per ann. at such a place, that tender and
then the recognisance should be void; and pleaded that he no one ready
was ready every day at the place in which, <fcc. to have paid to receive it,
the 50l. to Bush, but Bush was not there adexigendum& red- * n f ^ha de-
piendum. Phillips said, that he ought not to be thereby har- ,^^ *
red; quia protestando that Hughes was not ready to have h e was ready
paid, &c. to Bush, pro placito idem Jo. Bush dieit, that he was and travel
ready at the place in which, &c. to have received the 50L ac- sea the ten-
cording to the indenture, absque hoc, that Hughes was there ? er » nw P lea
ready to have paid it; and upon this plea Hughes demurred," bad "
and shewed for cause, that whereas he had offered a sufficient % g tPa# 781>
issue triable by the country, viz. that he was ready to have T.Kay. 199.
paid the 50/. if Bush had been there ready to have received
it, Phillips does not say that Bush was there ready to re-
ceive, & de hoc ponitse super patriam ; but traverses, that
Pftsch. 1 J&c.
Co. Lft. 126. Hughes turn obtulit to pay ; and upon this demurrer was join*
lSanncLlO&e^ And it was adjudged for tbe plaintiff in the Common
1 Mod 289 PleM " And al8 ° upoD emr brou S nt b y Phillips in the King's
'Bench, the first judgment was affirmed by all the justices;
for although it was objected, that the plea in bar by Phillips
being ill (quia Phillips says pro placito, that Jo* Bush aHcU 9
which is as if Phillips had told a tale out of Bush's mouth)
the judgment in the Common Pleas ought to have been upon
nihil <&of, and not upon the bar ; yet it was answered, that
the bar being entered as a plea by Phillips, and the demurrer
being drawn up upon it between the parties, the judgment is
upon an ill bar ; and in pleading it is not all one, fdhil dicere*
ac insufficienter diccre ; for then upon every insufficient bar
judgment would be upon nihil dicit, which is not so. (1) Then
it was objected, that, because it is but an apparent mistake in
the record, it should be amended ; to which it was answered,
that, as the case is, tbe court has not power to amend it ; for
this fault in the bar is shewed specially for cause of demurrer
by Hughes, and then judgmenr passing upon the special cause
•hewn in the demurrer, ousts all amendments. Then it was
objected, that the declaration by Hughes is not good, because
he says tbat Bush was not at the place ad exigendum & reap**
** ul8t *®£endun% and the money is to be paid without demand. To
CroCarls? wh * cn ** wa » *n»wered, that this word exigendum is void, and
595.' ' the other word recipiendum sufficient. Then it was objected,
8 Lev. 39. that Hughes ought to have said that Bush, nee alius alius was
6 Mod. 263. there for him to receive it To which it was answered, that
Hughes ought not to plead so, as this case is, because Bush is
[ 39 ] a mere stranger to the recognisance, and it is no duty in Bush,
but is as a penalty inflicted upon Hughes, that he shall pay it
to Bush. And so being a collateral duty payable only to
Bush a stranger, Bush ought to be there in person, or by at-
torney to receive it, and Hughes is not obliged in this case to
exceed the words of the condition of the defeasance. Per
totam curiam in omnibus. Yelverton of counsel with the
plaintiff.
(1) See Willes 480. Bullytiwrpe y. Turner. ZcJ*£r*. 2c6
Mich. 1 Jac. apud Winton.
Goodwyn w. Goodwyn.
A legacy is A MAN by his will bequeathed 20J. to his daughter; the
extinguished executor entered into a bond of 40/. to the daughter for pay-
by the exec- ment thereof according to the will ; the daughter married,
Tatar's giving her husband sued the executor in the Spiritual Court as for a
legatee for * e S ac y » tne executor pleaded payment according to the bond,
the payment anc * because the Spiritual Judge would not allow this plea,
•f it. the executor brought a prohibition, and shewed for surmise
the matter aforesaid, &c. And Tanfield Serjeant moved for
Mich. 1 Jac. apud Winton.
a consultation, because the suit was for a legacy, which is
spiritual ; and although the executor pleads payment, which
is not allowed there ; yel he ought not to have a prohibition,
because payment is a good plea in the court there; and if the
judge will not allow it, the other may appeal to the superior
judge; and if this is suffered in case of a legacy, then the
Spiritual Court will try nothing. But (by Gawdy, Fenner
and Yelverton justices) the surmise is good : For the execu-
tor by his entering into bond to the daughter for payment of
the legacy has extinguished the legacy, and has made the 20J.
bequeathed a debt merely at the common law, and not suable
there. (1)
(1) 2 BrownL IK Anon. Hetl. 2Rol. Rep. 1 60. Gardner's case, per
166. Champue's case. 8 Mod. 328. Dodderidge J. contra. See 2 Vern.
Cuband v. Detvsbury. I Bay 112. 31. Luke v. Aldcrne. 2 Roper on
M'Teer v. Ferguson's Exors. ace. Legacies 591.
Heyford vs. Reve.
REVE distrained six kine of one Heyford, and impounded i n assumpsit
tbem at Basingstoke, for a quit-rent due to the bailiffs of on a promise
Basingstoke ; wherefore Reve, in consideration of the money to shew a
paid ,for the redemption of the cattle, promised upon request sufficient re-
to shew Heyford, or any person he should name, a sufficient ^q Ues # Up °J[
record to charge his land with such quit-rent to the bailiffs ; breach is
upon this Heyford brought assumpsit against Reve, and shew- well laid, if
ed the matter aforesaid, and that he such a day appointed B. it is averred
to view the record, and requested him to shew it to B. and said that the de-
in facto, that Reve did not shew B. any sufficient record to [ 40 ]
charge his land, &c. Reve pleaded nan assumpsit, and it was fendant did
found against him. And Yelverton moved in arrest of judg- noi sh *^ a *
ment, that the breach of the promise is not well laid ; for the "^ 8 ^ cien
matter and substance of the promise is always issuable ; and
in this case (as the plaintiff has laid the breach) the sufficien-
cy of the record will be referred to the jury, which belongs
only to the judges of the law ; as if the defendant had plead-
ed, that he shewed tale recordum, which is sufficient : But the
plaintiff ought to have said that the defendant did not shew
any record ; and to that the defendant might have pleaded,
that he shewed such a record which was sufficient : And then
the jury should not try the sufficiency of the record, but only
find the record which was shewn : Sed (per Gawdy, Fenner
and Yelverton) nen allocatur: For although the plaintiff
might have laid the breach generally, as before, viz. that the
defendant did not shew any record ; yet, as it is laid, it is Ante 3t.
gfjod enough ; for it is sufficient, and more proper for the
plaintiff to lay the breach as the promise was made : And in
this case the defendant might have pleaded, that he shewed
tale record, and recited it, and then concluded that it is suffi-
cient, and upon that bar the plaintiff might have demurred in
9
Mich. 1 Jac. apud Winton.
law. Quod not a. By the assignment of the breach in special
as it is, the parties would never come to issue upon the mat-
ter of the promise, but only come and put themselves in the
judgment of the law.
Bosden vs. Sir John Thinnc.
Cro. Jac 18. S. C.
A past con- THE plaintiff declared, quod cum adspecialem instantiam
will^pport ^" 6 defendant, he had procured credit for one Flud for two
assumpsit on pip** °f wine amounting to 51/. and Flud svper credentiam&
a promise, Kper medium of the plaintiff, at the request of the defendant
the consider- emisset of one Roberts two pipes of wine for 51/. and supetindc
atton wasuKpMntiff rife pj^ entered into bond of 100/. to Roberta
tb^speciat for P a y meilt °f * ne Wid 51/. at a day to come, which was not
request of P*** at the day ; and thereupon Roberts sued the plaintiff up-
the defend- on the bond, and recovered, and had a capias against him,
ant whereby he fuit coactua to pay Roberts 67/. de solutions of
which 67/. causa praattegata he notified to the defendant, who
in consideration prazmissorvm promised to pay the plaintiff
the 67/. at Michaelmas ; and shewed the failure of payment
of the 67/. at the day, &c. And upon nan assumpsit pleaded,
it was found against the defendant. And Yelverton moved
in arrest of judgment, that the action, upon the matter shewn,
does not lie, because the consideration was past, and execu-
ted before the promise, and the defendant had no profit by it,
[ 41 J but all the benefit was to Flud a stranger ; like the case 10
Eliz. Dy. 272. where J. S. was bail for the servant upon an
arrest, and signified all to the master after the bail entered
into, who promised to save him harmless; and although the
bail was condemned, yet no assumpsit lay against the master,
because the consideration was past before the promise : And
it seems that upon the first request only to give credit to
Flud for two pipes of wine, no assumpsit lies ; for a bare re-
quest does not imply any promise : As if I say to a merchant, I
.pray trust J. S. with 100/. and he does so, unless 1 say, I will
see you paid, or the like. And it seems likewise, that the
promise shall not have relation to the first request of giving
credidto Flud; because the entreaty for the credit was but
for two pipes of wine amounting to 51/. and the promise is for
67/. and so they differ in the sums; as if I request J. S. to
enter into bond for J. D. for 10/. and I will see him paid;
now if J. S. enters into bond of 20/. for the payment of 10/.
for J. D. which 20/. is recovered against him, he shall not
charge me on my promise but 10/. But non allocatur per
Fenner, Gawdy and Popham; for although upon the first re-
quest only assumpsit does not lie, yet the promise coming af-
ter shall have reference to the first request ; and although the
request was but for two pipes of wine amounting to 51/. that
Flud might have credit for that ; yet when Roberts, who sold
the wine, would not take (as appears) security but by bend
Mich. 1 Jac. apud Winton.
of 100Z. for payment of 51/. and all this matter is signified af-
terwards to the defendant, who agrees to it, and promises to
pay the 67/. this shall charge him ; because it has its essence
and commencement from the first request made by the defeat
dant. As (per Gawdy) if I request one to marry my cousin*
who does so, and afterwards tells me of it, and thereupon I
promise him lOOZ. this is a good promise to charge me, al-
though the marriage was past, which is the consideration ;
because now the promise shall have reference to the request,
which was before the marriage. Vide this case, Dy. 272. b.
The same law (by him) if I entreat one to be bail for my ser-
vant, and he thereupon becomes bail, and is condemned, and
afterwards tells me of it, anoM promise him to save him harm-
less, it is good, and be shall recover his damage in toto:
Wherefore judgment was given for the plaintiff. But Yel-
verlon justice was contra clearly. (1)
[41 a]
(1) If the consideration is exe-
cuted, and does not go along with
the contract, but is entirely past, it
is not sufficient to support a prom-
ise : As a promise to pay 20l. " for
that thou hast built me a house ;"
or in recompence of a trespass done.
Dr. & Stud. 181. Plowd. 5. 2 Leon.
30. Harford & Gardiner's case.
Godb. 13. Anon. Clayt. 45. Anon.
1 Pow. Con. 348. If the thing be
promised for a cause which is past,
by way of recompence, it is rather
an accord than a contract ; Noy's
Max. 00. and no action lies upon
an accord, but the thing must be
delivered in hand. Dr. & Stud.
181. Assumpsit in consideration
that the plaintiff had delivered
twenty sheep, the defendant prom-
ised to pay 51. After verdict,judg»-
ment was arrested, because the con-
sideration was past. Cro. Eliz. 442.
Jeremy v. Goochman. So where
the defendant, in consideration that
the plaintiff had become bail for the
defendant's servant, promised to
save the plaintiff harmless, judg-
ment was arrested for the same
cause. Dyer 272. Hunt v. Bate. So
where in consideration of work done
by the plaintiff for the defendant,
he promised to pay, judgment was
reversed on error. 2 Stra. 933. Hayes
v. Warren. 2 Barnard. Rep. B. R.
141. S. C. So in assumpit, where
the consideration of the promise
was that the plaintiff, before the al-
ledged promise, had sold and con-
veyed a farm to the defendant, the
declaration was holden to be bad,
because the promise was founded
on a past consideration. 7 Johf>.
Rep. 87. Comstock v. Smith.
But when the consideration, tho'
past, was executed at the request of
the promissor, it is sufficient to sup-
port a promise. Cro. Eliz. 42. Sid-
natnv.fforthington.GoAb. 31. 2
Leon. 224. S. C. Cro. Eliz. 282.
Beaucamp v. Neggin. Hob. 105.
Lampliegh v Brathwait. 1 Brownl.
7. S. C. 2 Leon. 111. Marsh &
RainsforoVs case. Sty. 465. Hardres
v. Prowd. 1 Caines Rep. 583. Lhh
ingsion v. Rogers. See Ow. 144.
Doggett v. Dorvell. contra. And
where the consideration is benefi-
cial to the promissor, the jury may
from that circumstance infer a pre-
vious request. 1 Fonb. Eq. 336. 1
Saund. 264. n. 1 H. B. 90. Jenkins
v. Tucker. II Mass. Rep. 37. James
v. Bixby & at. 14 John. Rep. 192.
Oat field \. Warring. 10 ib. 244.
Moore v. Fox. But it is necessa.y
to aver a special request in the dec-
laration. 1 Saund. ubisup. In each
of the cases cited in the preceding
paragraph, except perhaps the case
from Dyer, if the consideration had
been alledged to have been execu-
Mich. 1 Jac.
ted upon request, the jury might
have inferred it, and the verdict
would not have been disturbed.
It is said that some cases of past
consideration are exceptions to the
rule which requires that the request
shall be averred in the declaration
— vix. those in which a beneficial
consideration and a request are ne-
cessarily implied from the moral ob-
ligation under which the prornissor
was placed: 14 John. Rep. 382.
Doty v. Wilson. 7 ib. ubi sup. As
a promise to pay for having /buried
the promissor's son; Church v.
Church, cited T. Ray. 260. or for
having cured his son Style v. Smith,
cited by Popham J. 2 Leon 211.
See 3 Bur. 1671. 1672. per Wilmot
J. 1 Fonb. Eq. 336. Hut. 84. Frank-
tin v. Bradell. Clayt. 43. Merri-
welhefs case.
. ^ Assumpsit upon a promise to pay,
in consideration of being indebted
in a certain sum, was held good ;
the being indebted implies that the
consideration was executed at the
request and for the benefit of the
prornissor. 1 Rol. Rep. 413. Hodge
v. Vavisor. This is now a com-
mon form of declaring.
The reason assigned by Serjeant
Williams and repeated by Kent J.
(1 Saund. 1 Caines Rep. ubi sup.)
why a past consideration must be
laid to have been performed upon
request, is, "that it is not reasona-
ble that one man should do anoth-
er a kindness and then charge him
with a recompence. This would
fee obliging him whether he would
or not,^ and bringing him under an
obligation without his concurrence."
This may be a good reason for not
charging a defendant upon an im-
plied promise, but it seems to be no
reason for not charging him upon
an express one ; and the form of de-
claring is the same in both cases.
When one is surety for another
and compellable to pay the whole
debt, and he is called upon and pays,
he may recover of the principal,
apud Winton.
though not requested by him to pay.
2D&E. 104. Toussaint & al v.
Marlinant. 8 ib. 310. Exall v. Par-
tridge & al. 1 Mass. Rep. 139. Ford
v. Keith. The declaration, howev-
er, states a request, and the law in-
fers it from the other facts. A pre-
vious legal obligation will support
an action upon an express or im-
plied promise, ibid. 3 Mass Rep. 438
Salem v. Andover. 5 ib. 325. Bath
v. Freeport. 6 ib. 43. Andover &
McdfordTurnpike v. Gotdd. # A pre-
vious moral or equitable obligation
will support an express promise,
but not an implied one. 2 Bl. Com.
445. 1 Fonb. Eq. 345. As a prom-
ise to pay a debt contracted during
infancy; before bankruptcy and dis-
charge ; &c. Cowp 288. Atkins v.
Hill, ibid 290. Hawkes & ux. v.
Saunders. 2 East 505. Atkins & al.
v. Banwell&al. 2 Caines Rep. 150.
Stewart v. Eden. 7 John. Rep. 36.
Scouton v. Eislord. 13 ib. 382. Tio-
ga v. Seneca. 5 Binney 38. Clark &
al. v. Herring. 1 5 Mass. Rep. 94.
Davenport v. Mason. But see 3
Esp. Rep. 91. Simmons v. Wilmott
& al. 3 Bos. & Pul. 247. WennaU
v. Adney. •
The term moral obligation is not
used to express vague undefined
claims, arising from nearness of re-
lationship — but those imperative
duties which would be enforceable
at law, were it not for some positive
rule, which, with a view to a gen-
eral benefit, exempts the party in
that particular instance from legal
liability. An express promise,
therefore, it would seem, can only
revive a precedent consideration,
which might have been enforced
through the medium of an implied
promise, had it not been for some
positive rule of law ; but can give
no original right of action, if the
obligation on which it is founded;
never could have been enforced at
law, though not barred by any legal
maxim or statute provision. See 3
Bos. & Pul. 252. in nofis.
JMipb. 1 Jac. apnd Wiatoa.
A promise, by the owner of land, the moral obligation to repay was
to pay for labor done upon it by one a sufficient consideration. 14 John,
who entered without his consent or Rep. 468. BentLy v. Morse. So an
any color of right, and held posses- assignment of a chose in action,
sion against nim. was holden to be with notice to the debtor, imposes
void for want of consideration— as on him an equitable obligation to
the owner was under no moral obli- pay the money to the assignee;
gation to pay for such services. 5 and though an action in the name
John. Jlep. 272. Frear v. Harden- the assignee cannot be supported
burgh. A promise to pay damages on an implied promise, yet upon an
for the detention of money, beyond express one it may be— even tho
the amount detained and interest, the contract may have only been
was held void for the same reason, delivered to the assignee without
2 John. Rep. *442. Phettyplace v. an assignment in writing by the as-
Steere. But where money had been signor; the obligation forming a
paid and a receipt taken, and after- sufficient consideration to support
wards the party, to whom payment the promise. 2 Bl. Rep. 1269. Fenr
was made, brought an action for the net v Hears. 10 Mass. Kep. 316.
same money, and recovered through Crocker v. Whitney. 1 2 lb. 28 1 .
the omission of the defendant to Mowry v. Todd. 13 ib. 307. Jones
produce the receipt in his defence; v. Witter. 15 ib. 388. Cooltdge v.
a subsequent promise to refund the Russett.^i.43?z£j*&4** /&~
money was held valid— of which
Weaver vs. Clifford. C 42 3
Cro.Jac.3. 1 Browal. 83. 118. 2 Bulst. 62. S. C.
IF upon two nihils returned against the recognisor in ™e sheriff*
Chancery, a capias is awarded against him out of the Chan- egcapeof(me
eery, by virtue whereof he is taken by the sheriff, and suffer- comm itted
ed to escape ; yet no action of debt lies against the sheriff on a capias
upon this escape; for a capias does not lie on a recognisance, erroneously
but a scire facias only : And therefore when the party is taken i88ued -
by the capias, he is not a prisoner by course of law ; for the
law has not ordained any such means to arrest him, and be-
ing in custody without warrant, it is not an escape ; for that
is only upon a lawful commitment : And so is the statute W.
2. to be construed, which gives the action against the gaoler,
viz. where the party is in execution by course of the law, and
that he is not in this case, because the law does not give a
capias on a recognisance ; and although the Chancery has
such course to award a capias on a recognisance, and has sev-
eral precedents of it, yet this is the use of that court only,
which does not close the mouths of the judges of the common
law, but that they ought to adjudge according to the law.
Per Yelverton, Gawdy, Popham, justices : Fenner hasitavit ;
because he conceived the award of the capias enly erroneous,
and not void: And^ in this case Tanfield Serjeant, and the
Attorney General shewed a precise judgment in the case, 21
Eliz. in the Exchequer, Clement Paston's case, who was char-
ged for an escape, where he being sheriff had taken one on a
Mich. 1 Jac. apud Winton.
[ 42 a ] capias on a recognisance, and suffered him to escape ; and
yet there the recognisor was in prison for felony before the
capias on the recognisance was awarded, and came to the
sheriffs bands ; and yet adjudged an escape to the party, al-
though he was also the queen's prisoner for the felony : Yet
the three justices held their opinion strenuously as before.
Quodnota. (1)
(1) See 1 Brownl. 120. S. C.
- where it is stated that the court de-
cided that the sheriff could not take
advantage of the erroneous issuing
of the capias. This agrees with
f ^l the whole current of authorities.
:£fc*0*: Cro. Eliz. 188. Bushes case. ib. 576.
£QL Canter's case. Bridgm. 6. Moor v.
/ Reynel. 1 Salk. 273. Shirley v.
Wright, ib. 319. Wdf\. Davison.
5 Mod. 200. S. C. 1 Lutw. 121.
Slipper v. Mason. The general
rule is, that when the process, on
which a defendant is arrested, is
erroneous and voidable merely, the
sheriff is answerable if he suffer an
escape ; otherwise if the process is
void. Cases supra. March 8. pi.
20. 3 Mod. 324. Gold v. Strode.
Carth. 148. S. C. 1 Freem. 193.
Squib v. Holt. 2 Mod. 29. S. C. 10
John. Rep. 138. Warner v. Shed. 1
Con. Rep. 47. Grumon v. Raymond.
8 Mass. Rep. 79. Albee v. Ward.
So if the process is voidable mere-
ly, the sheriff cannot excuse him-
self for not serving it ; otherwise if
it is void. 8 Mass. Rep. 86. per
Sedgwick J. So one is punishable
for a rescue, though the process, on
which the prisoner is arrested, is
erroneous and voidable. Dalis. 1.
Anon.
Erroneous and voidable process,
after it is vacated, will not justify
the party who procured it to be is-
sued, but he will be liable in tres-
pass to the party arrested. 3 Wils.
341. Parsons v. Lloyd. 2 Bl. Rep.
845. S. C. T. Ray. 73. Turnor v.
Fclgate. 2 Lev. 95. 2 Sid. 125. S.
C. 1 Stra. 509. Philips v. Biron &
of. While the erroneous process
continues, without being set aside
by the court, the party suing it out
may justify under it. 3 Caines Rep.
267. Reynolds v. Corp. See 15 East
615. n.
It seems that where the judgment
is erroneous, as it is the fault of the
court, and not of the party, trespass
does not lie against the plaintiff in
the suit, for an arrest of the defend-
ant. Stra. & East uhi sup.
Where process is void on the face
of it, the officer cannot justify under
it, even though it may be an intri-
cate question of law whether it is
void or not. As where the court
has no jurisdiction, &c. See 2
Brownl. 124. Hall v. Stanley. 10
Co. 69. Marshalsea case. March
118. Dye & Olive's case. 8 D & E.
424. Brown v. Compton. 3 Cranck
330. Wise v. Withers. 4 Mass. Rep.
234. Nichols v. Thomas.
In Brandling v. Kent y I D & E.
62. Buller J. expressed a doubt
whether a jailer is liable for false
imprisonment, though the arrest be
illegal on the face of the writ. His
doubt seems to have been suggest-
ed by the case of Bodkin v. Powell
& oL Cowp. 476. where it was held
that a pound-keeper is not answer-
able, though the beasts are illegally
impounded. But the cases seem
not to be parallel. In case of an
impounding, there is no judgment,
no direction, no written warrant or
examination to be had by the pound-
keeper. He is obliged to receive
and keep whatever is committed to
him, till it is legally taken from
him or discharged. Cowp. ubi sup.
Hil. 1 Jac.
Chambers vs. Mason.
Cro. Jac. 34. S. C.
IN an action of trover for certain tithes severed from their a lease «f
nine parts, upon now culp. pleaded the jury found, that the the tithes of
prior of Worn bridge in Comitate Salop, was seized of the rect- * rectory be
ory of Loppinglon, &e. and by indenture 12 H. 8. demised [ 43 ]
the tithe corn and hay to Milward for eighty-oue years, yiel- maJe . at a
ding Al per ami. payable to Wombridge ; and by the same ^tea^vU
indenture granted to the lessee and his assigns dare& raftferti nan t that the
yearly 3s. Ad. lor portage : The priory is dissolved, and by lessee shall
mean disceots comes to queen Eliz. who 20 Junii anno 37. bring the
demises the rectory with the appurtenances, & omnes domus, rent ^ tJ| e
terras glebales, &c. cum pertinen. ad rectoriam prod, spectan. & Jj^thg fc*-
cum eadem recioria usualiter dimssa, locate^ vel occupata ante- m shall
hoc pro arwuali reddit. 3L 16s. &d. to Johnson. Habend. from thereupon a-
Mickaclmas next, si nulla dimissio tunc de rectoria Jkierit in hate him so
esse ; and yielding 31. Mis. 8*/. per arm. &c. ct si aMqua dimis- mu £ h on
sioy &c. then habendum from the end of such demise, yielding, eacQ t P?"
ut supra. The jury further found, that Johnson assigned his not n a ' tle f a |,
interest to the plaintiff, that 3/. 16s. 8*/. were only paid to H. cation of the
3. queen Mary, and Eliz. yearly pro rectoria pmdicta ; that rent, hot a
Milward's lease by the prior ended 43 Eliz. that the corn tak- mere co*®-
en by the defendant is part of the tithe of the rectory severed ™ n * for aU
from the nine parts, &c. et si, &c. So the whole matter rests owaace *
upon the plaintiff's title: And in this case Yelverton moved Post. 47.
for the defendant in argument against Serjeant Coventry. 1 .
That the rent reserved by the prior is Al. and although 3s. Ad.
is to be paid to the lessee for portage, yet that is no part of
the principal rent to be retained by way of defalcation ; for
the words are, quod prior ', &c. concedunt dare& reddere, so the
whole Al. ought to be paid, and by way of covenant the les-
see is to receive 3s. Ad. by the hands of the abbot for portage,
quod curia concessit. 2. Yelverton moved, that the lease by
the queen is bad ; for there being no consideration expressed,
for which the queen should make such lease, it shall be in-
tended that she meant to part with no other possession than
the abbot had demised before, and to have the same recom-
pense which the abbot had ; and in this case it appears, 1 .
That the queen has demised the rectory, whereas the prior
demised but part of the fruit of the rectory, viz. the tithe corn
and hay. 2. She was induced to demise the whole rectory
with the appurtenances for 31. 16s. 8rf. thinking that bad been
the usual rent formerly reserved by the prior, whereas the
prior's rent was Al. So in both these points she was deceiv- 1 Co. 43.
ed : for the recital of the rent in the queen's case is material, 2 Co. 54.
where no other consideration is mentioned in the patent. 3.
It is uncertain at what time the queen's lease should com-
mence, for she intended that the whole lease should have the
same commencement ; and in this case as to the rectory, the
lease by the queen might commence immediately, for of that
Mil. 1 Jac.
[ 44 ] nulla dhnissio est ; but as to the tithe corn and hay it could
Bot commence till the abbot's lease ended, which is found by
the jury to be ended anno 43. So by matter apparent in the
verdict, one and the same lease, which was intended to be
entire, would have several commencements, which shall not
be. Quodfuit eoncessum per curiam ; Fenner being absent
Ayer w. Aden.
Mo. T5T. Cro. Jao. T3. S. C.
Goods seized AYER being defendant in debt at the suit of J. S. k fieri
on a fi. fa-facias issued to the sheriff to levy the debt tor J. $ ; the sher-
Ca kM> J* iff by virtue thereof seized the goods, but did not return the
■heriff^fter w " 1 : ^he sner ^ * B afterwards discharged, and a new sheriff
he is out of ™ a de: The ancient sheriff after his discharge sells the goods
office, qu. to Aden the defendant, against whom Ayer brought an action
on the case on trover, &c. and the aforesaid matter was found
by verdict. And adjudged pro querente ; for the sale by the
old sheriff after his discharge is void, for his authority ceased
with his Office; (I) and in such cases where (he sheriff has
seized the goods by writ of execution, and is afterwards dis-
charged, be ought to turn over the goods to the new sheriff, as
he does bis prisoners ; and by the seizing of the goods the
owner's property is not altered; for the seizure is not any ex-
ecution, but only the beginning of it; (2) and the sheriff after
(1) This case is misreported by
Yelverton. Judgment was render-
ed for the defendant. Cro. Jac. 73.
Moore 757. S. C. 2 Saund. 47. Wit-
braham v. Snow. The sheriff, after
he is out of office, not only has au-
thority but is compellable to sell
goods, which be seized while in of-
fice. 34 H. VI. 36. a. 1 Rol. Abr.
893. 2 Saund. 344. MUdmay v.
Smith. 6 Mod. 299. Clerke v. With-
ers. Holt 303. 646. 2 Ld. Raym.
1074. 11 Mod. 35. 1 Salk. 323. S.
G. 1 Barnw. & Aid. 231. Doe v.
Donston. 1 Bay 179. Osborne v.
Huger. 2 ib. 120. Gibbes v. MitcML
Und. Sheriff 362. 2jb?f*>. tf S8*
When the sheriff returns " seiz-
ure ad valentiam" and " remanent
pro defectu emptorum? if he contin-
ue in office, a venditioni exponas
shall go ; but if he be out of office,
a distringas nuper vfcecomitem goes
to the new sheriff to distrain the
•ld sheriff to sell. There are two
sorts of distringas in this case ; one
to command the old sheriff to sell
and bring the money into court ;
the other to command him to sell
and to deliver the money to the new
sheriff. Holt 646. 6 Mod. 296, 11
ib. 35. The former is the most usual.
6 Mod. 299. per Holt C. J.
(2) It is laid down in many of
the books, that the defendant's prop-
erty is altered by a seizure in exe-
cution — that the debtor loses his
goods, &c. This seems, however,
to be incorrect. The sheriff, by
the seizure, acquires a special prop-
erty; 2 Saund. 47. Wilbraham v.
Snow, 5 Mass. Rep. 401. Caldwell
v. Eaton, but the general property
remains in the debtor. This posi-
tion is warranted by the old cases.
It was so held by the court in Mil-
ton v. Eldrington, Dyer 99. a. and
in Shetton's case, Dyer 67. b. n. In
1 Bfownl. 41. it is said " if the sher-
Hit. 1 Jae.
seth seisure ought fo return the writ executed in fax**, and
cannot by the law deliver them in pais to the plaintiff; for as
the writ of execution is warranted by the roll, so likewise
ought the discharge and executing of it to appear of record ;
and the sheriff after the seizure, although he had continued
[44«]
iff shall by virtue of a fi-fa. levy
the debt aud damages of a man,
and make return that the goods re-
main in his hands for want of buy-
ers ; the property remains still in
the defendant, although the sheriff
bath possession of the goods," In
Waller v. Weedaie, Noy 107. the
judgment debtor supported detinue
against a sheriff, who bad returned
fieri feci &denario& habeo, when he
had not sold the goods. The court
held that the sheriff could not keep
tile goods and pay the debt with his
own money. It would be difficult
to account for this judgment, if the
debtor had lost his property in the
goods by the seizure.
The notion, that the debtor's pro-
perty is changed and lost by a mere
seizure in execution, seems to have
been derived from obiter dicta in
the case of Wilbrakam v. Snow* as
reported in 1 Mod. 30. 1 Lev. 282.
1 Vent. 52. and the case of Clerke
v. Withers, 6 Mod. 293. Holt 64*.
1 Salk. 323. See also 3 Salk. 150.
In 6 Mod. Powell J. is reported to
have said that " the property by the %
execution is out of the defendant
whose goods they were." In 1 Salk.
it is said to have been resolved that
by the seizure of the property, it is
devested out of the defendant. Ex-
pressions of the same import are as-
cribed to Lord Kelyng; 1 Lev. 282.
and to Lord Holt Holt 647. In 1
Mod. 31. Moreton J. says the pro-
perty, after seizure, is not in the
defendant. In 4 Mass. Rep. 403.
Parsons 0. J. says " by a lawful sei-
zure the debtor has lost bis goods."
It was never supposed that the
property in an estray, or in goods
distrained, is lost or altered by the
seizure; nor that goods pawned,
with a limited time for redemption,
10
cease to be "the property of the paw-
nor. Yet in each of these instan-
ces, there is an inchoate act, which
renders the properly liable to be al-
tered and lost by the party's negli-
gence or inability ; but it may bo
saved by his seasonable interposi-
tion. This would seem also to be
the true state of property seized on
a fi. fa. For Parsons 0. J. say*
(2 Mass. Rep. 517.) the special pro-
perty of the sheriff is defeasible by
the debtor's paying the money due
on the execution. Trowbridge J.
speaks to the same effect. 14 Mass.
Rep. 475* And Powell J. ubi sup.
says, if by any accident the exe-
cution determine, the debtor shall
have his goods again. See also 1
Keb. 655. Lrfans v. Moregreen.
As it is perfectly clear from the
authorities, that the sheriff acquires
only ft special property by the sei-
zure, and the judgment creditor
none at all ; (16 £ast 274. 2 Mass.
Rep. 516.) where is the general
property, in the interim before the
sale, if not in the debtor ? Powell
J. says, " I cannot tell but it may
be in abeyance ;" and according to
Salkeld, it was resolved that it is in,
abeyance. Parsons C. J. asserts the
same. 2 Mass. Rep. 517. Ladd v.
North. These notions, however,
are repudiated. T he decisions sub-
sequent to those of Wilbraham v.
Snow and Clerke v. Withers, as well
as before, shew that the general pro-
perty remains in the debtor until
the sale : And in neither of those
cases was the jndgment at all in-
consistent with such doctrine.
In Lowthal v. Tonkins, 2 Sq. Ca.
Abr. 381. Lord Hardwicke says the
property of the goods continues in
the defendant till execution executed*
The same was held by the court hi
fill. 1 Jac.
itt Ms office, could not have sold the goods without a writ of -
venditioni exponas, and that is not grantable till it appears by
the sheriff's return, that remanent pro drfectu emptorum. Ad-
judged by Popham, Feaner and Yelverton ; Gawdy being
absent
tho ease of Payne v. Drewe, 4 East
523. See also I East 338. Butler v.
Butter. Parker's Rep. 126. The King
v. Cotton. Bunb. 8. Rex v. Peck.
In 7 Mass. Rep. 506. Blake v. Shaw,
the court say the general property
tn the goods is not changed until a
levy and sale ; and they say, In hod-
den v. Lcamtt, 9 Mass Rep. 105.
that the general property is in the
defendant. See 1 Bur. 20. Cooper v.
Chitty. 8 John. Rep. 520. CatUn v.
Jackson. 5 Binney 266. IMUe&al
v. Lessee of Delanoey. 3 Har. & M'
Ben. 616. DaridsmFs Lasses v. Be-
atty. /Jl-Zaftsr* « 403
The omtion has been much dis-
cussed, whether at common law and
by statute 33 H. 8. the crown is en-
titled to priority, when an extent,
tested after seizure of goods on a JL
facias, is put ioto the sheriff's hands
before the sale. [See all the cases
collected and canvassed, 16 East
254. Thurston v. Milk.] In the last
reported decision which has been
found on this subject, Lord C> B.
Macdooald says, " I observe that in
the case of Rorke v. Dayrell, [4 D
& E. 402.] it seems to be assumed
in a part of the argument, that as
soon as the execution was begun to
be executed, the property was al-
tered. 1 take that to be erroneous.
1 take it the property is in no sense
and to no purpose in the world al-
tered, either by the delivery of the
writ, or by the actual taking posses-
ion of the goods." 16 East 282. The
King v. Wells & AUnutt.
Ptidsey vs. Newsam.
Mo.68t. iBrownl.84.S.C.
In debt on DEBT of 500/. with condition, if the defendant before
bond with a Michaelmas do make, acknowledge and suffer, &c all and ev-
conditien to ery guc j, reasonable act and things, whatsoever they be, for
able actTfor tbe S°°d am * IawfuI Assuring and sure-making of the manor of
the lawful *>. to J. S. and his heirs, that then, <fec ; the defendant plea-
assuring of ailed that before Michaelmas the plaintiff ratidnabititer nonre-
manor, tbe quisivit the defendant adfactendum, &c. aliquas rationabilia ac-
defeniant turn & acta, qua forent pro bona <fc Ugitima assurantia of the
[ 45 1 manor of D. &c. The plaintiff replied, that such a day be-
plcaded that fore Michaelmas he requested the defendant, quod ipse convex*
had Sot nt £. aret& asswraret maneriwn de D. to J. S. &c. secundum teno-
quested fatal r * yfl con( htioni& (1) and upon thnt they were at issue, and it
to do any was found for the plaintiff, and alledged in arrest of judgment,
reasonable that no sufficient breach was assigned; for the plaintiff ought
(1) In England, the purchaser of
land procures the conveyance to be
written, and tenders it to the ven-
dor to be executed; and without
doing this (unless in case of a spe-
cial agreement) he cannot maintain
an action for breach of contract by
the vendor. 1 Lev. 44. Webb v.
BetiteU per Windham J. Forrest's
Rep. 61. Baxter v. Lewis. See also
2 Smith's Hep. 543. Martin v.
Smith. Zo^TTiSh.'Ly
Hit. 1 Jae.
to have required an assurance in certain, via. a feoffment, or f45 a }
fine* or, &c. and not to have requested that the defendant act or tets,
eonveiaret ; for the condition being special, all and every act **\ li w *f
and acts, the request ought to have put the assurance to a ci e ent J£L\\l
certainty, what ought to be made. But non allocatur ; but cation that
the issue adjudged good, and the condition broke ; for by the the plaintiff
condition the defendant is to do all and every act whatsoever had request*
for the assurance of the manor of D. So that if the plaintiff** thc de f en-
. requested a fine, a feoffment, a recovery, a bargain and w'^Jj?] / 00 "
the defendant. ought to do all ; but it was held, tbat he is not g^ethe mT-
to execute any bond, or recognisance for the. enjoying of the nor accord-
manor, for that is but a collateral security, and is no assur- ing to the
ance : Then when the plaintiff requested the defendant to tenor of the
convey the manor in general, the defendant ought at his peril condlti °n-
to do it by some kind of assurance; and if upon tbat request v . , c
the defendant had made a feoffment of the manor, yet if the E j ! 370,371.
plaintiff had after that requested a fine, the defendant ought
also to have acknowledged a fine, and so upon every several
request, he ought to make several assurances ; and therefore
in making the request in general he has well pursued the Ante 39.
words of the condition, and upon that the defendant ought at
his peril to make some assurance. Per Mam curiam.
Persival vs. Spencer.
IN an action on the case on a promise, the plaintiff declar- If the jury
«d for 10/. damage, and upon issue tried, the jury gave 13/. assess higher
which is more damage than the plaintiff declared, and judg- dama 8*
ment was given accordingly, viz. that the plaintiff should pe " pla/ntHT He*
cover 13/. by the jury assessed ; and this judgment was re- mands, it is
versed for this reason in the King's Bench ; for the plaintiff is error* unless
in law taken to have the best knowledge of his own damage, he remits the
and he shall never recover more than what he declares for ; excess,
but if after such verdict the plaintiff had released all the dam-
ages, but those for which he declared, and then had judgment*
that bad been good : (1) This record was removed out of the
court of Northampton.
(1) Inactions sounding merely in greater amount than the damages
damages, the plaintiff can recover laid in the declaration. 5 Bin. ubi
no more than the amount laid in his sup. Where the sum demanded de-
declaration. If a verdict is found pends upon a deed or other instru-
for more, he may release the sur- ment, and upon nothing extrinsic,
plus, and take judgment for the a- ' there cannot be a remittitur, as it
mount declared for; but if judgat&lfc would work a variance. 1 Saund.
be entered for a greater amount, it ubi sup. Nor can a remittitur be
is error. 1 Rol. Abr. 784. Ow. 45. entered at a term subsequent to that
Anon. Sayer on Damages 238. 1 in which judgment ia entered. 2
Saund. 285. n. 6. 5 Bihney 564, Stra. 1110; Wrav v. Lister. 2 Bl.
Grate v. Phillips. But in the ac- Rep. 1300. Chevely v. Morris.
tion of account, the plaintiff may In Massachusetts, the Supreme
have judgment for arrearages to a Court allow a remittitur to be eater-
Hil. £ Jac.
«d, by way of amendment of the Jac. 128. Starting v. Long. ibid.
record, after a writ of error is 629. Eardley v. Turnock. In
brought; if Uie judgment sought to Virginia, if damages are laid high
be reversed was rendered by that enough in the writ, though the jury
court. 10 Mass. Rep. 262. assess more than are laid in the de-
If the ad damnum n laid higher claration, the writ may be referred
In the count than in the writ, the to for the purpose of amendment,
variance is not fatal after verdict; and judgment entered according to
but damages cannot be recovered the verdict. 3 Hen. Si Mun. 502.
beyond the amount in the writ. Cro. Palmer & aL v. Mill.
[ 46 ] Mouse vs. — —
It arast ap- IF an inferior court holds plea, and it does not appear in
ptar in the the stile of tbe^ourt how they hold it, viz. by charter or by
itl !® fe ^ r an prescription, the proceedings in that court are erroneous, and
court how a ^ * na * ensues thereupon ; far all jurisdiction to hold plea
they hold re8ls >Q the crown, and therefore the king's court ought to
plea. be informed, how that power is derived from the crown.
Dyer 262. b. Adjudged upon a record removed out of the court of Graves-
Owen 50. ^ B<L
Triii. » Jac.
Barnes vs. Constantino.
Cro. Jac. S3. 8. C.
The caption AN action on the case in the nature of a conspiracy : He
of an indict- d ec i ar€( i that whereas, &c. he was indicted before such justi-
" try before ? 8 addiversas f elon ^^. necnon adpacem conservandam as-
jurticeB* o(^S nai ' as a common barretor, and thereupon pleaded nan
the peace is "*/?». and was lawfully acquitted, &c. The defendant de-
. good, with- manded oyer of the indictment, which was certified to be
out adding taken before such justices ad pacem conservandam, &c. assig-
neenon di- nfl ^ # an d upon tbat demurred, because the indictment certified
Lw^aHdien" varied from tne indictment shewn in the declaration ; forup-
dwn,&c. Qu! on tne matter it is an acquittal before justices, who have oth-
er power than such as is signified by the declaration ; fo?
those are ad diversas f el onion, &c. necnon adpacem, and the in*
JPostea 117. dictment certified is befor^ justices ad pacem tantum. And
Style 3T2, yet adjudged that the aei^o^Iay ; for they are not merely
$**• justices of another nature of power than those which are men-
tioned in the declaration ; for both are justices of peace, and
such as have power to receive such manner of indictment :
(I) But H^he declaration had mentioned justices of assize,
(1) In Bac. Abr. Justices of the tied, that justices of the peace have
Peace. £. 2. it is said to be now set* no power to hear and determine lei-
Triti. » Jac
and th» ©ertifieate had been of a thing taken before justices
of goal-delivery, it had been merely different ; for they are
distinct in power. Moreover this action is but for damages
for a slander, which well lies, although the indictment is erro-
neous ; or, as it has been adjudged (as Yelverton justice said)
if a bill is offered, and ignoramus found. (2) Not a that. Peri Salk. 14.
Fopham, Gawdy, Fenner and Yelverton* But Williams 5 Mod. 406.
contra.
onies, unless they are authorised by (2) See Cro. Jac. 400. Payn v.
the express words of their commis- Porter. Sty. 10. Anon. Hetl. 162.
nion. The case in the text, there- Nurse v. Pounford. 2 D & E. 232.
lore, cannot now be considered as Morgan v. Hughes. 1 Marsh. Rep.
law. See Rex v. Carter, cited in Bac 12. Byne v. Moore.
vM sup. and in a note to Cro. Jac
32. {Leach's edit.)
Ellis w. Warnes. t ** ]
Ho. 752. Cro. Jao. 83. 1 Brownl. 85. S. C.
IN debt for 120/. the case upon the pleading was, that If * creditor
Warnes was indebted to Alder in 100/. on an usurious w n-**k e , j^J
tract, and Alder was indebted over to Ellis the plaintiff in ^"debtor ft
100Z. just debt; for which debt Warnes and Alder were another, i*
hound to the plaintiff. In debt on this bond Warnes pleaded satisfaction
the usury between him and Alder to avoid the bond ; Ellis of his debt,
the plaintiff replied, that Alder before the bond was indebted u «?"•* *•
to him in 100/. just and true debt ; for the payment of which pj^that it
Warnes and Alder were bound to him in the bond in suit, and was upon a
that he was not seiens in any sort of the uBury between usurious
Warnes and Alder; and upon that Warnes demurred: And it con tract be-
was adjudged per Gawdy, Telverton and Williams for the t JJ! en th £
plaintiff; for this is not usury in the plaintiff, but only be-^'^JJ;
tween Warnes and Alder, by which the plaintiff, not being \ s not p r f vy
privy, shall not be prejudiced ; for although the statute of thereto,
usury is to be taken strictly to suppress usury, yet it ought to
he between those persons who use corruption, and not to pun-
ish the innocent, as the plaintiff is ; (1) for there can be no
(1) So when a surety joins in a tage of it in an action on the origi-
security, and the principal gives nal security, he cannot recoverim /
him a counter-security to indemni- his counter-security../2%7*. &/&0
fy him, such counter-security is If a usurious security is transfer-
good, though the original security red to a third person, for a valuable
is usurious. 2 Leon. 160. Basset & % consideration, without notice of the
Prorwfs ease. 2 And. 151. Button usury, and the borrower afterwards
v. Donman. Noy 73. Cro. Eliz. gives a new security to such third
642. Moore 308. S. C. But it person for the amount, the tatter
seems from Polkm's ease, 3 Leon, security is good. 8 D & E. 300.
63. that if the surety is privy to the Cuthbert v. Haley. 4 Esp. Rep. 1 1.
usury, and neglects to take advan- Turner v. Hulme. 9 Mass. Rep. 45.
Trio. 2 Jac.
[47 a] shift in him, having a debt due precedent; but if there had
been no debt due to the plaintiff before, then clearly it had
been usury in 4he plaintiff, for there was no lawful cause to
make the bond to him, but only to countenance the cerrup-
tion between Warnes and Alder ; and also (by Yelvertoa
Bearce v. Barstow. 2 Caines Rep.
152. Stewart v. Eden.
When a security tainted with u-
sury is given up, and a new one
substituted to evade the statute, the
substituted security is void- 3 D Si
E. 637. Tate v. Wettings. So is a
fresh security given for the balance
of a debt originally usurious. For-
rest's Rep. 72. Pickering v. Banks.
But if a security, legal in its in-
ception, is transferred on a usuri-
ous agreement, and afterwards
comes into the hands of a bvnafide
holder without notice, it cannot be
avoided by the intermediate trans-
action. I East 02. Parr v. Eliason
& a!. 1 Esp. Rep. 274. Daniel v.
Cottony. 2 Caines Cas. in Er. 66.
Bush v. Livingston &al.\ Bay 479.
Toltz v. Mey. See also 10 John.
Rep. 185. Jackson v. Henry.
It is not generally necessary, in
order to avoid a security, that the
parties to it should be privy to the
usurious bargain, if the original in-
tent be to secure such bargain for
the use of the real lender. 1 Campb.
141. Young & ah v. Wright. 2 ib.
509. Ackland v. Pearce. 2 John.
Cas. 60. Jones v. Hake. 3 ib. 66.
WiMcie v. Roosevelt But unless the
usurious borrower is a party, it
seems from the cases cited above,
to be necessary, in order to avoid a
security, that it ahould be given as
collateral to a subsisting usurious
contract ; so that a recovery would
tend, directly or indirectly, to en-
force the usurious contract against
the borrower.
In the case of Bridge & al. v.
Hubbard, U Mass. Rep. 06. A. be-
ing maker of a note to B. which
was void for usury, asked for credit
beyond the maturity of the note,
and B. agreed to give further credit,
if be could have other security. A.
obtained and furnished for that pur-
pose a new note made by C. paya-
ble to and indorsed by I), which
was received by B in exchange for
the former note, which was given
■p and cancelled. A majority of
the court held that this latter note
was void in the hands of a bona fide
indorsee without notice— ibeing a
mere substitute for the first note.
Two of the judges held that the
transaction was a payment and dis-
charge of the usurious contract, and
that the plaintiff was entitled to re-
cover.
If a usurious security is given up,
and a new one taken between the
same parties, for the principal and
legal interest only, the latter secu-
rity cannot be avoided. I Campb.
165. n. Wright v. Wheeler. 2 Taunt.
1 84. Barnes & el v. Hedley & al.
In this last case, the opinion of
Charabre J. at Nisi Prius, 1 Campb.
157. was overruled by the court of
Common Pleas, Charabre J. con-
curring. A similar decision has
been made by the Supreme Court
of Errors in Connecticut. KUburn
v.Bradley* Ord on Usury 103. c.
(Day's edU) See also 10 Mass. Rep.
121. Chadboume v. Watts.
Mr. Plowden, in his treatise on
usury, p 213. thinks the principle,
on which the case in the text was
determined, has been abandoned in
those later cases, where it is deci-
ded that a security given to the
lender is void against the borrower,
in tbe hands of an assignee for a
valuable consideration, and without
notice of the usury. Doug. 736.
Lome v. Waller. But Mr. Ord ve-
ry justly remarks that there is a
material distinction between the
cases. In the text, the security
Triii. % Jac.
justice) if this plea by the defendant should be goad, then ev+-
ry man might be defrauded of his just debt; for the creditor
generally demands a surety : And by this case, if the bar
should be good, by corruption between the debtor and the
suiety, to which the creditor is a mere stranger, a man would
lose his debt, which would be mischievous. But Pop ham and
Fenner doubted ; for they conceived the plaintiff ought to
have taken a traverse to the defendant's plea, which in truth
cannot be; foe he cannot traverse a thing which does not lie
in his conusance, nor to which he is no party.
was originally given to one who .294. FerraU v. Sham. & n. 1. 1
-was not privy to the usury, and for Freem. 253. per North C. J. 1 H.
a valuable consideration. In the B. 462. Gray v. Fowler & al. 3
case of Ijowcv. Waller, and otber Anst. 941. per Thompson B. 8
cases like that (2 Bay 23. Payne Mass. Rep. 101. Gardner v. Flagg.
▼. TrezevanL) the security was ori- ib. 256. Thompson v. Woodbridge.
ginally given to the usurer; and In actions of assumpsit, the de-
being void at first, the subsequent fendant may give usury in evidence
assignment could not corroborate it, under the general issue ; but inac-
though made to one not privy to tions on a specialty, it must be
the usury, and for a valuable con- pleaded, as in the text. So in as-
sideration. And this distinction is sumpsit, if it appear on the face of
coufirmed by the cases on the stat- the declaration that the contract
utesof gaming, which correspond was usurious, the plaintiff cannot
with the statutes of usury. See recover; abler in actions on a spe-
Ord on Usury 197. cialty, even though there be a spe-
A security, which is originally cial demurrer for that cause. 1
valid, cannot be avoided by a sub- Saund. 295. A. n.
sequent usurious contract. 1 Saund.
Chambers m. Mason.
Cro. Jac 34. & C.
IN an action of trover for tithes, &c. the case was, that 1116 k >»&'*
the prior of Wombridge demised the tithes of the corn and *%£% h*T
hay of Loppington in com. Salop, to A. for Ah per ann, and by Reived Va
the same indenture of demise covenanted dare & reddere to his intent,
the lessee, &c. for portage of the rent to the priory 3s. 4d. per
ann.: The priory is dissolved, and comes by mean discents Ante 42.
to Q. Eliz. who an. 37. demises to B. for years the rectory of
Loppington, with the appurtenances, and all glebe-land,
houses, &c. spectan. adrectoriam prccd. & cum eadem rectona
antehac usuaUler dimissa> pro rcddttu 31. 16s. 8<£ habend. from [ 48 ]
Michaelmas next, if no demise for life or years be in esse of
the said rectory ; and if any demise thereof be, then from the J y CV V*3gi
end of the term ; and it is found by special verdict, that the
prior's lease was then in esse, and did not end till anno 43
Eliz. And it was adjudged for the plaintiff, who had pur-
chased the inheritance of the said rectory, and that the queen's
lease made to B. under which the defendant claimed, is void
Trit. % Jatf.
for two reasons. 1. BeMwe the queen w«* deceived fai bet
consideration, viz. in the rest reserved ; for she intended to
have the same rent which had been reserved before ; and the
rent by the prior was 4/. for the 3*. 4d. for portage was not to
be defalked out of the rent, but only to be paid by way of
covenant, which covenant by the dissolution of the priory U
gone ; so the queen ought to have been answered 41. yearly ;
and then when she recites the rent to be 3/. \6s. 84. where
it really was 4/. and intends <o reserve as much as was re~
served before, which was not ; for there wants 3*. 4<£ the
queen is deceived: And (by Popham) the difference is, where
the queen is deceived in her intent, and where she is mista-
ken in her information; for if she grants the manor of D. of
tt Ce. lit. the value of 10/. where it is of the value of 20/. it is ill ; for
*• b - she is deceived in her intent, for the smallness of the value
March 32. geenig tQ ^ the groun( j (> f feer patent : But if she grants the
manor of D. antehac demised for 10/. where it was really de-
mised for 20/. and she reserved 20/. it is good. And if she-
grants the manor of D. quod quidetn maneriumest of the value
of 102* and it is in fact of the value of 20/. yet it is a good pa-
tent; for in that she is deceived only in her information, and
not her intent The second reason was, because it appears
to the court, that the tithes of the corn and hay were parcel
of the rectory demised by the queen, and in lease by the pri-
or's lease : Then the queen's lease for the tithes demised by
the prior could not take effect presently, for there is a lease in
being; and for the rectory itself it migjht take effect immedi-
ately, for that is not in lease at all; but that is contrary to
the queen's intent, that her lease should take effect by parcels*
viz. for the rectory immediately, and for the tithes of the com
and hay in reversion, and infuturo; for she intended to have
all that which she demised in possession at one and the same
time. Quod nota. Per totam curiam.
[ 49 ] Mich. 8 Jac.
Gharael! w. Holland.
Cro. Jac. 43. S. C.
If words are th e p i a i nt iff declared, that the defendant such a day and
pTace & ££ J ear *"* of tne P ,aintiff » Thou hast stolen three sheep of one
tified ia *n- T. Diggins, and laid the words to be spoke at Witham in
other, a ve-com. Essex. The defendant justified, and that at Dagnam in
nire facias the same county Diggins had three sheep, and the plaintiff
awarded 8 t j e them and carried, &c. wherefore he spoke the word*
good. 1§tem P are 9*°* & c « aiM * u P°n tone, * injuria sua propria absque
tali causa ; the venue was awarded from Witham and Dag-
Cr. El. 870. nam, and found for the plaintiff. And Yelverton moved in
arrest of judgment, that the venue was mistaken; for it ought
Mich. 2 Jac,
to be front Dagnam only; for by the justification the words
are confessed, so that the matter in issue is now only upon
the cause, on which the words were spoke, and that was the
plaintiff's stealing of the sheep in Dagnam ; so that the join-
ing of Wit hum in the venue makes it vitious; for no part of
the cause in issue comes from Wilham. But if the words
had been laid in one county, and the cause of justification in
another county, then the trial should be from both. Quodfuit
concessum in omnibus per Ga wdy, Yelverton and Williams, y t #•
justices. But upon view of precedents both ways, from both *g 5 C ComB.
places, and also from the place only where the justification 472.'
was, judgment was given for the plaintiff. Bat where the de- lSauad. 446,
fendant justifies in another place, if the venue be from the
place where the words are supposed to be spoken only, it is
not good: Quo d vide adjudged in one Cage's case.
Allein vs. Randall.
THE plaintiff declared, quod quoddam colloquium & bargBr^ '^^
ma habit* fuer* between him and the defendant for the wood mm\^ U in
in such a place, and that in consideration of 105. paid, and 20/. considera-
te be paid on 20 Decerab. after, in the house of A. and in tion that the
consideration that the plaintiff at Che same time and place plaintiff
asportaret snfficientem hominem fore obliged, to the defendant ^ 0H ^ ffi ^5
for payment of 20/. at a day to come, the defendant promised ^an "to™ So
that the plaintiff should have and enjoy the said wood to his bound to the
own use ; and shewed that he on 20 Decemb. at the house of defendant,
A. obtulit to the defendant the 20/. which was to be paid, <fcmust ihow
adtunc & ibidem asportavit B. sufficientem hominem fore obligor no " * ae EnaB
turn to the defendant for the other 20/. &c yet the defendant L ° J
had sold the wood to Hare, whereby, &c- and upon non ^3^# &*tliat
sumpsit pleaded, it was found for the plaintiff: But judgment, he - offered
yuodquer. nil cap. per billam ; for the plaintiff ought first to himself to
have shewn, quomodo B.fuit sufficient : That it might appear the defend-
to the court to be according to the consideration and agree- fjj 1 to °*
ment. (1)2. He ought to have shewn not only that he aspor- j?* ~^ 505
iavit Before obligatum, but to have alledged in facto that he Hob. 70. 77*
and B. became bound, Sb obtulerunt se ipsos obligari ; for per- 1 Bulst. 16&
(1) It is very questionable wheth- writ of error was brought, and it
«r this point was correctly decided, was objected that the declaration
In a subsequent case, T. Jon. 125. did not shew how the plaintiff had
Prideaux y. Rawlins, where the discharged A: It was held that the
plaintiff alledged the consideration objection should have been taken
of the promise to be that he wonld by demurrer, and that after verdict
accept the defendant as paymaster it must be intended that a sufficient
of a debt due from A. and would discharge was proved at the trial of
discharge A. from the debt, and a- the issue.
verred his acceptance of the defen- This seems conformable to the
dant and discbarge of A. generally; principle, that a title defectively
after, verdict on non assumpsit, a set forth is cured by verdict.
11
Mich. 2 Jac.
baps B. came to be bound, and yet, being tbere, refused. Per
Gawdy, Fenner and Williams ; Popham and Yelverton being
absent. (2)
(2) See Com. Dig. Pleader. G. 58. 60. Lawes PI. Assump. 147. 172.
Game & Ux. vs. Harvie.
A coast in THE plaintiffs declare, in consideration that the wife dum
^T P th t >it 5ofa ' &c ' 1 Jim * 43 E,iz * at the in8tance of the defendant
mver'thatin flCComww ^ r ^ to tne defendant 30/. to be paid upon request,
coDiidera- the defendant promised to pay prackctas 302. to the wife quan-
tioQ that the do requisites esset. The plaintiffs laid in facto the 30/. to be
plaintiff had lent to the defendant 1 JunH 43 Eliz. and that he bad not
1 h° t A°r' 5°P ald the 30 ^ to the wife i&mjo/a, &c. nor to the plaintiffs post
ant Mit^V "*^ although he was by both the plaintiffs requested
mised to pay at B. 1 Man 44 Eliz. &c. And upon non assumpsit pleaded,
the mid 30/. it was found for the plaintiffs : And in arrest of judgment Tel-
en demand, verton shewed that the consideration was not sufficient ; for
it is to pay prouHctas 30/. and that upon request ; so that
it appears that the defendant was not to have any benefit by
it, for it might be lent with one hand, and immediately de-
manded ; and moreover it ought to be the same 30/. in specie,
for so mueh is implied in this word prcedictas. But tota curia
clearly contra ; for when the intent of the parties may stand
with the law, it shall be expounded accordingly ; and the
meaning of the parties here was to have praedictam summon*
30/. and not the same money in specie, & to magis quia (as
Popham said) the promise is grounded on an accommodation,
viz. a loan, which implies an use of the 30/. by the defendant.
Then it being agreed between them, that the defendant should
use the money, it is impossible for him to pay the same mo*
mey in specie that he received. But if a man delivers to
J. 6. a bag sealed with money, and the defendant promises to
redeliver it upon request, ne assumpsit lies upon this ; for the
defendant has not any benefit by it, for the money being in
a bag sealed, J. S. could not have any use or employment of
the money at all ; so there he has only a charge imposed by
the keeping, vide P. 44 Eliz. before, the case of Riches and
Brigges, which Yelverton cited to be reversed, and Gawdy
and the court said it was erroneously reversed. (1) Quod not*.
(1) See ante 4. c. n. 3. 2 Brownl. 40. Anon.
[ 51 ] Freshwater vs. Rois.
Mo. 685. 1 Brown!. 193. S. C.
If tenant ia <• TENANT in tail covenanted to stand seized, in consider-
tail, in con- a ^ Q tf a ma rriage to be had by his son with the daughter of
uderation of J# s# to ^ ^ rf fai|Q8elf ^ ^ j^ m ^ ^^^ Aad ,
Mich. S Jae.
and afterwards to the use of himself for life, and afterwards to the intended
the use of his son and his wife, the daughter of J. S. and the marriage of
heirs of their bodies, and suffered a single recovery to that £ lfl ^anTer
purpose, and died without issue. Adjudged that the entry cf ^^na^f to *
him in remainder dependant on the estate tail is congeable ; stand seized
for first, in this case there is no consideration to raise the use, to the use of
for the consideration is only the marriage of his son with a himself k hit
stranger ; which, as to change the possession, is not any ben- m ^" ia *" £
efit to the father, but he is in a manner a stranger to this per- afterwards
sonal and peculiar consideration : But if the consideration had to his own
been for the establishing of the land in his name and blood, use for life
it had been good ; for that merely concerns the father. Sec- * c « and su f-
ondiy, the single recovery, as appears IS E- 4. binds only the fers a .![? c ° v *
estate in possession and present, and then coming in this ^^^"j
case after the transmutation of the possession by the covenant, j t does not
when he was not seized in tail, does not bind the remainder, bind the re-
(1) But it was agreed by all the justices, that notwithstan- mainder de-
ding such covenant by tenant in tail, although as to himself it pendent on
is an alteration of the estate, yet to all strangers he remains ^
tenant in tail ; for if he marries, after such covenant to stand
seized to the use of himself for life, his wife shall be endowed. Noy 46.
And (by Williams justice) it has been adjudged, if tenant in
tail bargains and sells his land to J. S. by indenture enrolled,
and J. S. sells it again to tenant in tail ; he is tenant in tail
as he was at first. Vide according to this resolution in Sir ^ 342 **
Hugh Chumleis's case,* fo. 52. a. Blithman's case,f H. 3& tCr! EL 279.
Eliz. 1 And. 991.*
(1) Moore in his report of this Holt 666. 1 Show. 370. S. C. Com.
•ase, says the covenantor was ten- Rep. 1 19. Machell v. Ckrk. 2 Salk.
ant in tail as before, notwithstand- 619. 2 Ld. Raym. 778. S. C. 1
ing the covenant. See Hetl. 110. Atk. 2. Stapilton v. Stapilton. 3
BromefieUTs case. 4 Mod. 1 . Symonds Bur. 1 705. Goodright v. Mead.
r. Cudmore. Skin. 284.317. 328.
Wolfreston.
UPON a latitat awarded against Wolfreston, the sheriff re-
turned a rescous tali die ; but in the return of it there was no in a return
place mentioned where the rescous was. And therefore ad- of a rescue,
judged void ; for nan constat whether the arrest and rescous tbe P lace of
were within the county and jurisdiction of the shesiff, to tne ^ scue
whom the process was directed. But in the case of one J^ rta "
Winch, the sheriff returned a rescous upon him at Dale in
comitatu Buck, which was the county to which the process
was awarded ; and exception was taken, because he did not
aay, infra ballivam meam ; & turn allocatur ; for if it is within
the county, it cannot be otherwise taken, but tabe within his r 52 1
bailiwick : And although the arrest wa& within a liberty in L '•*
the same county, yet the rescous is illegal, because the arrest
Is good, and no offence except to the lord of the liberty. (1).
Quad vide 11 H. 4. 2. 14 H. & Quare Imptdti.
(1) See ante 29. e. n.
Mich. 8 Jae.
Wood vs. Harburne.
Jb^^Siriff . W00D Serjeant at arms recovered on a bill of debt a-
make* a pre- £ ft * n8t Harburne, and had a capias ad satisfac. to the sheriff of
•epttoabai- Middlesex, who made a precept to the bailiff of the liberty of
liff with a the Dutchy, viz. the Savoy, and the mandate was, ad cap.
mandate ea. Harburne ad respond. Wood, where in fact it should be adsat-
whMtom* ty aC ' and the bai,lff returne< ? tne Precept served, and the sher-
ved accord- ^ returned to the court, cepi corpus secundum exigentiam bre-
Ingly— the^w? and Yelverton moved for Serjeant Wood to have a new
plaintiff may capias ad satisfac. against Harburne; for although the sheriff
have a new by his return has charged himself to the plaintiff, so that he
th* ■■• th ?£may demand the execution against him, yet where the defen-
fcas returned < * an * wa8 rca, 'y never taken in execution for the debt, as in
• eepi corpus tn ' 8 cn8e > but was onl ) r taken ad respond, there the plaintiff is
at liberty to take new process against the defendant.. Quod
Cr. Car.240»fafa curia concessit
Everard vs. Blach.
aot^rtated BLACH took out a latitat against Everard in the time of
hy the king's queen Elizabeth, which was served in the time of this king,
death. and Everard rescued himself, and this rescous was returned
by the sheriff of Essex, to whom, <fec. And Bartlet moved
7 Co. 30* a. the court, that upon the matter this is no rescous, because the
latitat by the death of the queen is abated and lost; so the
arrest ill. But (per curiam) contra, and that a latitat is with-
in the statute IE. 6. which is not lost by the demise of the
queen ; for it is no original writ, but is in the nature of an
execution grounded on a record precedent ; for every latitat
is founded on a bill of Middlesex precedent, and supposes
that the party cannot be taken by the sheriff of Middlesex,
quia latitat & discurrit in another county ; so the latitat issues
on a suit or queritur supposed to be depending.
Hargrave v*. Rogers.
Cro. Jac. 40. 1 Bwwnl. 85. S. C.
If bail are THE bat! entered into a recognisance for A. that upon S
b ™md that days warning A. compareb. to any action to be brought by B.
the defend- for guch a debt . if €emm$ tnat if A 8nou!d ^ coddeiIiaed j Q
[ 53 J the action, and should not pay, that they would answer to B.
ant shall ap- the condemnation. B. brought an action against A. in
PCa ht d P ° D which A * waS condemiied > and <Hd not pay ; wherefore B.
Mich. 2 Jac.
ton he need not shew it ; for the condition of (he recognisance gtfn»t ihm;
depends upon two clauses; the one the appearance u P? n £ p^ *£
eight days warning, the other is the satisfaction by the bail, warncd . f()r
if A. does not pay the condemnation, comprehended in these j t j s a con di.
words (nccnon ;) And in this case the action is brought upon tion precc-
the second clause, via. the default of A. that he has not ans-dent
wered the condemnation ; and therefore it is needless to med-
die with that part of the condition, which goes to the appear- ^Kol. At»r.
ance to the action. But if the action had been brought on Cro '.El.T29.
the first clause, then B. ought to have shewn in certain the Har ^ r# 314 .
warning to have been given by eight days. But Popham,2Lev.229.
Gawdy, and *Williams contra; and that the plaintiff ought of
necessity to shew the warning to have been by eight days ;
for first it is not a condition to be performed between the par-
ties, but between strangers ; for A. is a stranger, and then the
bail are bound only to answer such condemnation in such ac-
tion in which eight days warning shall be given, for that is
tile ground of the whole; and th< re is no reason that A. by
his voluntary appearance without such eight days warning
should prejudice his bail ; otherwise if the condition had been
between A. and B. for there if A. had appeared without su<-.h
Training, it is his own folly, & volenti nan fit injuria. And ac-
cording to this opinion the plaintiff discontinued his suit, and
the defendant ordered to put in new bail. Quod nota.
St. George's case.
NOTA, the practice in the King's Bench : That in all ac- ** ~*|£
tions brought against any person upon any penal statute, the ^^ defen ^
defendant shall put in common bail only, and not special dant ' not
bail; and this was one St. George's case of Norfolk, upon an held to epe-
action brought against him on the statute of 13 EHz. of fraud- cial bail.
ulent conveyances, where the rnie supra was shewn by the
justices. (1)
The same practice in the King's Bench ; that an executor
(1) 1 Barnes 81. Whittingham v. cial bail in suits on those statutes.
Coghlan. Com. Rep. 75. Presgrave See 3 Bur. 1569. B£X v. Rebord. I
v. 12 Mod. 231. Anon. ace. D & B. 705. Davis v. Masstnghu
" Because," says Gilbert, u the pen- In actions on remedial statutes, tho
alty on a statute is in the nature of defendant may be held to special
a fine or amerciament set on the bail. Andr. 70. Turner v. Warren.
party for an offence committed, and 2 Stra. 1079. S. C. A statute is
therefore no person ought to suffer considered remedial rather than pe-
any inconvenience by reason of nal, when the whole penalty is giv-
such law, till he is convicted of such en to the party grieved. Willes 601,
offence; for then the defendant Myddlcton v. Wynn. 5 Bur. 2698.
would suffer an action of a penalty Wilkinson v. Cottey. 2 D & E, 154.
before it ought to be set," Gilb. H. Woodstate v. Knatchhull, per Ash-
C. P. 37. hurst J. ibid. 155. n. SpUres v.
Several modern penal statutes in Frederick. 1 N. R. 179. Lake v.
England authorize the taking of spe- Smith,
Micli. 2 Jac.
1 Teat S55.or administrator shall put in only common bail, because they
1 Sid. 63, are to fa charged but with the goods of another, viz. of the
aw# intestate.
[54 J Pigotw. Pigot
Cro. Jac. 44. 1 Brownl. 183. 8. C.
To an avow- REPLEVIN ; the defendant avowed, that Ellen Enderbjr
ry under a was seized in fee of three acre* in D. and took F. Pigot to>
grant of a hasband, by whom she had issue Thomas ; Ellen died, the
rent-charge husband in by the curtesy ; and Thomas, the heir in reversion,
whom the ^ grante<1 the reot °* l0 °*' ° ut ° f the threC aCrCS to the avow "
tote descend- an ^ an< * *° r 8 ° rauch arrear, &e. The plaintiff in bar said,
ed from A. that before Ellen bad any thing, one Fisher was seized ia
in fee, the fee, and gave it to John Enderby in tail : John had issue El-
plaintiff may ten, &e. who after the death of her father entered, and was
A P wa **£- ****** * n tail ' and took husband, ut supra, and had issue
ed ingulf & Thomas, ut supra* and died ; and Thomas being in reversion,
that it de- ,n ,he 1'fe °f the tenant by the curtesy, granted, ut supra, ab-
scended toB.«?"i Jwc quod Ellen Enderby was seized in fee of the three
and traverse acres ; and upon that issue was joined, and found for the a-
B's seizin in vowant ; and it was shewn in arrest of judgment, that in ef-
the 'seizin of ^ eei ^ ere was no tone joined r for the traverse of the seizing
A. is t»e°f Ellen Enderby is idle, for no title to the rent is derived
most materi- from her; but he ought to have traversed the seizing of
al. Thorn as the grantor; wherefore the issue ought to be of such
a nature, as might make an end of the matter in doubt, which
is not in this case, no more than if the tenant in nformedon
£ r ' ?*' *T?: would plead non culp. : But (per curiam) although an apter is-
Hanfrio 69 8Ue mi ^ ^ taken, and the traverse is not good, yet it is ai-
i Lev. 196. ded by the statute of jeofails ; for the estate of Ellen Enderby
i Saund. 227 was in a sort and by circumstance material ; for if she was
T.Bay. 458. seized in tail, and it descended to Thomas the grantor, then
by his death the rent is determined ; but if the fee-simple de-
scended from Thomas to Ellen, then it enables the estate of
Thomas to be such, out of which he might grant a sufficient
charge; and although it may be imagined and intended that
after the fee descended from Ellen, that Thomas had changed
it into an estate-tail ; yet (per Popham) the court will not in-
tend it now, because the parties are agreed to doubt nothing,
but whether Ellen was seized in fee or not when she died ;
and that doubt is resolved by the verdict : As if the defen-
dant will plead the feoffment of J. 8. to A. and B. and that .
A died, and B. survived, and enfeoffed the defendant, if the
plaintiff will say, that J. S. did not enfeoff A. and upon that
they are at issue, and it is found against him, although it is
no proper issue ; yet it is aided by the statute, because the
parties doubt nothing but the manner of the feoffment of J. S.
whether it was made to A. or not. (1) And of that opinion
were Popham, Fenner, YeJverton, Williams. Gawdy contra.
(1) See Bac. Abr. Verdict. K. cited. 2 Saund. 319. n. 1 Hen. &
1 Chit PL 631. and the cases there Mun. 153. Hunnicutt v. Car sky.
Mich. S Jac.
The Case of a PrbhiM
THE suggestion of a prohibition was, ^___^
from time whereof, &c. had paid for tithes of wool and Iambs "«» . of P ro *
2d. and in proof of his suggestion per testes, spoke nothing of ^J^?J tio *
wool, but only that 2d. had been paid for tithes of lambs ; f OT p two
and thereupon Henden moved the court to have a consulta- things it
tion as well for the lambs as for the wool, because the surmise good as to
is of a joint prescription & tnodo deeimaruh for wool and lambs; one > though
and now no proof being for the wool, he has failed in the th * other is
whole : But {per curiam) there is a difference between a sug? no P rove *
gestion to have a prohibition, and a prescription comprised in
it, and a prescription made in defence, or by way of plea in Cr.E1.736.
any original action ; for in the latter case of a joint prescrip- Moore 911*.
tion made for two things, a failure in one destroys the whole ; 1 &aund.M2»
because that is by way of title : But otherwise here, because * Vent. 107*
this prohibition is only to give jurisdiction to the king's court ; ^*°J *^? #
and therefore, although the plaintiff supposes that the court c r# j* a 501.
ought to hold plea both of the tithes of the wool and of the i BLRep. 81
lambs ; and for the wool it remains payable in kind, and so to
be determined in the Ecclesiastical Court ; yet for the lambs,
in which the modus decimandi is proved, the court shall retain
jurisdiction ; for now upon the proof it shall be taken, that the
prescription, which makes the plea temporal, was only for the
lambs. Quod nota. Per Fenner, Yelverton and Williams,
the others being absent.
Molineux vs. Rigges*
Cro. Jac 12. S. C.
MOLINEUX as administrator of one Mering, extended a The <
statute on the land of one Rigges, and before his acceptance may oblige
prayed that the land might be delivered to the extendors ; *h e «x**nd-
wherefore process issued accordingly ; and before the return?™, to t t ^
of the writ, Yelverton moved the court, that the extendors ^lue^xtea*
could not have the land; because since the extent Rigges is ded, though
dead, his heir within age, and in ward to the king ; so the the conusor
king now in possession, and the land in another plight than it Rafter the
was at the time of the extent; but non allocatur per curiam -•f?*f ,1 f . ai ? d
And (by Popham) the extendors ought to sue to be .relieved ™J^ eur M m
in the court of wards. Quod nota.
Fish vs. Richardson.
Gro.Jac.47.aC.
THE case was such; Pish had a debt owing to him by Forfeearanc€
the testator Richardson on a simple contract; and came to^ a g00 4
the defendant and told bin of it ; who said, that if the plain- conMtra.
Mich. 9 St*.
[ 56 3 tiff would forbear suit against him for a time, he promised to
tion for a pay him ; it is a good promise in law ; (1) for although the
promise by defendant might wage his law in an action brought against
toDavTdebt ** im Dv tne * aw > because it is of another's contract ; yet in
of the teita- ' aw 9Ucn debt on simple contract remains a debt, and is not
tor. absolved by the testator's death : And according to the book
10 Hen. 6. an action of debt lies against the executor for it ;
and if he pleads to it, and doth not demurr upon the declara-
Ho. 702,155 tion, judgment shall be given against him ; (2) and the court
Cr. E|. 804. ex officio will not abate it without the challenge of the party ;
L^n Vyi? DUt ** tne n " r P ron " 8€8 on forbearance of suit to pay such
' ' * debt, yet no assumpsit lies against him ; for there is no con-
sideration, because the heir is liable to no debt without spe-
cialty. (3)
(\) See ante 11. n. 2. promise to pay money due on such
f 2) See ante 21. n. 2. contracts, the declaration must a-
(3) HetL 107^ BrisUnve's case, ver that he was thus bound, or it
ace. The heir is not liable, even will be bad after verdict. 2 Saund.
on the sealed contracts of his an- 137. Barber v. Fox. and Serjt.Will-
cestor, unless he is expressly bound, iams' note 2. where the whole doc-
Co. Lit. 208. a. T.Ray. 121. Hunt trine is accurately stated. See also
v. Swain. Sty. 387. Newton v. Os- 4 John. Rep. 237. Elting v. Van-
born. 1 Freem. 125. Porter v. Bille. derlyn.
And in a suit against him, on a
Pikard vs. Cottels.
^deration" ^ HE plaintiff shewed that he was possessed of an house in
necessary to London, in which Sebastian Underholster had a chamber ;
support a that Sebastian was indebted to the plaintiff in one hnndred
contract. pounds, and died possessed of the chamber, and of sundry
Though one wr ni n g g ^ n< j 9umg ^ money ibid, remanen. ; and that the
^deraUons" plaintiff after his death, for the recovery of his debt, attached
be void the* nc goods, &c. being in the chamber, in the king's court, be*
contract u fore the mayor, &c. in the plaintiff's hands for his debt, ac-
▼alid. cording to the custom of the city ; and that the defendant, in
consideration the plaintiff at his request would permit the de-
fendant to enter into the chamber, and take and carry away
the goods attached, necnon omnia scripta obUgat. there being,
promised the same day to pay the plaintiff his one hundred
pounds: And upon now assumpsit pleaded, and found for the
plaintiff it was moved in arrest of judgment, that the promise
was upon no consideration ; for, for any thing that appears,
the debt was but upon simple contract, with which the defen-
dant is not chargeable ; for he is a mere stranger, and no ex-
ecutor or administrator, for any thing that appears : Also part
of the consideration being the discharge of the attachment,
the plaintiff ought to have shewn that an action of debt was
* depending at that time ; for there ought to be some person a-
gainst whom an action of debt should be brought ; otherwise
there could be no attachment ; To which it was answered,
Mich. 8 Jac.
that the shewing of the attachment was but the conveyance,
and not the substance of the action ; and moreover the con-
sideration is not that the plaintiff shall discharge or release
the attachment, but only that he shall permit the defendant
to enter into the chamber, and take and carry away the goods
attached ; and also there being two considerations expressed,
the one the carrying away of the goods attached, the other the
carrying away of certain writings obligatory, which were not
attached, although the first part of the consideration should he
void ; yet the other would be sufficient to maintain the action ;
(1) and judgment accordingly pro auer. P. 2 Jac. Yelverton
«pd Serjeant Tanfieid of counsel with the plaintiff.
[57 ]
(1) Though one of two consider-
ations be void, yet the contract is
good. 1 Comyn on Contracts 26\
and the cases there cited. 8 Mass.
Rep. 51. per Sedgwick J. But if
one of the considerations be unlaw-
ful, the whole contract is void. ibid.
3 Leon. 208. Fetherston & HuUch-
inson's case.
The consideration of a promise
must always be stated in the dec-
laration, whether the promise be
written or unwritten; and where
there is' more than one considera-
tion, the whole must be stated, or
there will be a* variance between
the contract proved and that which
is alledged, and the plaintiff will
fail. 6 East 570. Clarke v. Gray &
al. 8 ib. 7. Miles v. Shervard. i2 ib.
3. heeds v. Burrows. 3 Caines Rep.
286. Lansing v. M'KiUip. 2 Day
22. Hosmer v. Hollenbacfc. But if
one of two or more considerations
is void, it need not be averred ; and
if averred, it need not be proved*
Cro. Jac. 128. Crisp v. QameL See
Godb. 154. Anon. 1 Chit. PI. 295.
Lawes PI. Assump. 56.
If the plaintiff declare upon a pro-
mise on one consideration, and the
jury find the promise, but that it was
made upon a different consideration,
he cannot have judgment; 3 Leon*.
91. Anon nor if they find that it
was made upon the consideration
alledged, and some other thing be-
side. Cro. Elis. 79. King v. Robin-
son. See, as to the form of stating
the consideration, 2 Bos. & Pul.
265. Ward v. Harris. 13 East 102.
Andrews & aL v. Whitehead & al.
King vs. Andrews.
Cro. Jac. 43. S. C.
THE case : That after the parties were at issue in trespass,
and an habeas corpora awarded against the jury, the Common
Pleas where the action depended, awarded a supersedeas quia
improvide, &c. which was delivered to the sheriff, who not
withstanding returned the jury before the justices of assise,
who proceeded ; and it was found for the plaintiff: And Tel-
verton assigned the matter aforesaid for error; and the defen-
dant pleaded, in nutio est erratum : And it was adjudged error ;
for the error assigned is a matter in fact depending on a mat-
ter of record; and then the defendant by pleading in nullo est
erratum has confessed it, viz. that such supersedeas was awar-
12
It is error, if
the sheriffre-
turn a babe-
as corpora
after a super-
sedeas deliv-
ered to him.
"In nullo est
erratum"
confesses the
fact assigned
for error.
Mich. £ Jac.
Cro. CI. S3, ded, and delivered to (he sheriff before the trial : (1) Whence
Cr. Car. 161. j t fo]| owg| that after the supersedeas delivered, the sheriff's hands
were closed, that be could not proceed to distrain the jury,
nor to return the writ before the justices of assise. Vide 5
. Eliz Dyer 222, 223. a supersedeas directed to the sheriff upon
Mo. IS an ex *g en t> aD <Z th e coroners proclaimed him outlawed when
the sheriff had the supersedeas ; and it seems to be error if the
proclamation & quinto exodus be after the supersedeas deliv-
ered.
(1) In nuilo est erratum pleaded be tried by the country,
to an error in fact, which is prop- When a fact contrary to the rec-
erly assignable, has the effect of a ord is assigned for error, in nullo est
demurrer T. Ray. 231. Okeaver v. erratum has the effect of a demurrer
Overbury. 1 Bur. 410. Sheepshanks where an estoppel appears on the
& ux. v. Lucas. 1 It admits the fact, record. I Vent. 252. Anon. I Stra.
but denies the legal inference. If 684. Helhitt v. Held. 9 Mass. Rep.
therefore the defendant in error 532. Whiting v. Cochran. It de-
would not admit the fact assigned, nies the party's right to assign such
he should traverse it, that it may matter. See post 58. n.
HiL S Jac.
Sir John Harpur vs. Beamont.
Cro. Jac 56. S. C.
"A. threw I WAS at Sir J. Harpur's house, and John Harpur his so*
his dagger at drew me forth to see a gelding, and then Thomas Beaumont
j*Mi *? hav ® did throw his dagger at me twice, and thrust me throqgh the
and this was b peec hes twice with his rapier to have killed me ; all this was
done at the done by the instigation of Sir John Harpur, and I can prove
instigationofit. And upon damages given to 100/. and in arrest of judg-
B» B. canrnent, Popham Chief Justice and Yelverton were of opinion
sustain an t j, a t t he words would not maintain an action ; for when the
thescTwords^ womJs spoken by the defendant contain matter of fact, and
' matter of intention ; as the matter of fact was, Thomas Beau-
Cro. El. 191. mont threw his dagger at me twice, and thrust me through the
[ 58 ] breeches twice ; the matter of intention was, what the defen-
dant collected from this fact, viz. that it was done to have kil-
led him ; and then concluded, all this was by the instigation
of Sir John Harpur; they shall be taken in the milder sense,
id est, that what was done, was done by the instigation, &c. and
that was only the flinging of the dagger, and the running him
through the breeches, which is no slander, but an imputation
of a trespass ; and shall not be taken to refer to that which
was but in the intention of the speaker, viz. that it was done
to kill him : As if one should say, J. S. lay in wait for me,
and his intention was to kill me, and be did it by the procure-
ment of J. D. These are not words of slander to J. D. for
HilSJac,
they extend only to laying in wait; for that is the fact, and
the intention of the laying in wait is a by thing meant to be
coupled with the other. But Gawdy, Fenner and Williams
contra: For the words shall not be taken dividedly, but alto- Cro. El. SOI.
gether as they were spoken, and so import slander ; as if he ** 9 * _
had said, Sir John Harpur procured Thomas Beamont to cast ^' ar *
his dagger at me, to kill me ; and then there is no question t stra. 194.
but the words are actionable. Quodfuit concessum ah omnibus ; Carth. 214.
and judgment entered accordingly against the defendant Hob. 126.
King vs. Gosper and Shire.
THE defendants in replevin, against whom judgment was An asngn-
given, assign for error, that where there Were two avo wants rrotnt of er-
One of them was within age, so he ought to have appeared by rars ia f & °t
guardian, and not by attorney ; but in the assignment of the shou,d » ot
error, it is not concluded to the country, viz. et hoc paratus w ™* " e ^j.
est verificare, &c. and the defendant in error pleaded in nullo fication. Q*L
est erratum. Et per totam cur, (Popham being absent) the
judgment shall be affirmed ; for when a man assigns error in 9 Co. 30. b.
fact, he ought to put it to the country ; for the jurors only
shall be triers of it, and not the judges ; and then in this case
by not concluding to the country, it is an error not triable by
the court, but in its proper nature by the country ; so it can-
not be adjudged ; wherefore it is tantamount, as if no error at
all had been assigned ; for the defendant by pleading in nullo
est erratum, has not confessed it to be error, but has only pat
himself upon the judgment of the court ; and the court in this
ease cannot be triers of it (1} Quod nota bene.
(1) This case is overruled by many of the entries, however, there
the decision in 1 Bur. 410. Sheep- is not even this averment. The
shanks & ux. v. Lucas. See also plaintiff, after assigning the errors,
Howard v. Taylor, and Reynolds v. concludes " and so the judgment a-
Seymour. 1 Lil. Ent. 220. 231. foresaid is erroneous,'* and prays
where the assignment of errors con- that it may be reversed. 1 Lil. Eat.
eludes with a verification. 225. 228. 230 : In one of these ca-
In 1 Bur. 413. Denison J. says <ses, the defendant in error travers-
the case in the text " is so far true ed ; in one he pleaded in nullo est
(and can mean no more than) that erratum; and in the other he de-
it ought to be put in a method of murred. In Dennis v. Dennis, 2
being tried by a jury; and here the Sauud. 332. the plaintiff in error
plaintiff in error has done so : He concluded as in the cases last men-
says he is ready to verify." In tioned.
Pfttcli. 3 3kt.
[ 50 ] Palmer vs. Wcldct.
CroJac.66. 5 Co. ttt.S.C.
Valor marl- ADJUDGED una vor-e that the value belongs to the lord
tegii is doe without tender; for it may happen that the infant may be el-
^M^ction ^ 1 ***' or ht may trave - be Jond sea in his father's life- time,
to recover it, th.it the lord en h not come to tender; and the statute witch
Hit not ne-s ivs, de merojure, shews, that the value is not any thing giv-
eemry to pq by law special, but by the common law and rule of reason,
ailed** a ; n recompence of the lots of the services, Which the lord sus-
tender of tains by the nonage; and also in this action the tender is not
k^h'tTmai traversable. Quod nota.
traversable. 6 Co. W. b. Gr».Eibs. (468.) % Bl. Com. TO. 88. Dong. 6C8.
Barnes vs. Worlich.
Cro. J«c. 67. 8. ti.
If one h ra- IN an audita querela brought by the plaintiff, Mfcs&ey and
rety for a others being his bail manueeperunt habere the plaintiff in Chan*
plaintiflPiap- ccr y BUC h a d ay ad standum juri in hue parte; and that the
^ pearance, pi t | n tiff prosequereter cum effeetu, viz. quilibet eorum sub poend
juri in hac tooL to the UB * rf th « *™& a n (I 2001. to the use of the defen*
parte, and dant, according to the statute 1 1 Hen. 6. cap. 10 quas concesse*
that he chall runt & quUibei eorum concessit de terris, Sec. according to the
prosecute statute faun, si prmfat. the plaintiff before the king in Chan*
witheflfect^ cerv on 8ucJ j a dHy tn ftriMg praiheta non habtierint; as H
that he shall t( *? m t * le P Ja * n tiff nis writ against the defendant t» forma proz-
pav the con- ^ cta non prosequitur cum rffecta ; and the plea was prosecuted
demuation if to issue, and judgment, quod qwtr. nil caperet per breve suum*
the plaintiff <£*. prmdictus tamen the plaintiff after the judgment kucusque
does not pay has not satisfied the defendant the 200/. nor rendered himself
Sue wUhef" t0 P™ 8011 til1 h * * hal1 Bf *tisfy the iieb\juxta juris in hac parte
fat. 'e&fgtntuan, & sk idem the plaintiff non stetitjuri in hoe parte,
whereby the bail have forfeited their recognisance ; and there*
upon the defendant dent titled exec at ion against them : And
upon this scire facias t>rou*ht against the bail, they demurred,
supposing thdt no sufficient breach Of the recognisance is as<<
signed ; for (per Godfrey) where the condition is parcel of tM
reeognisance, there he who su>s execution thereon ought to
shew the court that the condition is not performed; which
was not in this case; for the recognisance stands npon two
conditions; I. if the bail have the plaintiff in Chancery such
a day, &c. 2. If the plaintiff prosecutes cumeffectu; and the
[ 00 J first of these conditions is not shewn to be broken, viz. that
he did not appear at the day, &c. in Chancery ; but the breach
is assigned m a point out of the condition, viz. that the plaint-
iff has not paid the 200/. &c. but per Popham & totam curiam
adjudged contra ; for the words in the begiuning of the recog-
nisance, viz. Istandumjuri] import the whole, and include all
"^•^•"^B^
Pftsefe. S Ja*.
that if to be done, vlt. as well in the com** of the prosee*
tion* as in the effect of the suit, viz. execution ; for to prosO-
eutecttf* effectu, H to follow the suit, tilt judgment, and that m
but part of the plaintiff* standing to the law; but finis juris
in this case is to \wy the condemnation ; and therefore these
words in the end of the recognisance, si idem the plaintiff his
writ, &c. do not make any new condition, but only in some
sort expound in part these words (in forma prxdictu) twice in-
serted, which words refer to Uaniumjuri ; for that is the form
mentioned before* -
Brigges v$. Totnpson.
IK this term, between the king and one Tompson, in an Judgment
information upon the statute 21 H. 8. for taking to farm land stayed when
by spiritual men ; the award of the venire facias to try the is- ^ . wri * . of
due was made returnable coram nobis, omitting these words doeg notcon :
ubicunquc, Sic. so that it did not answer the award on the roll ; f orm to the
and the King's Bench is removable, so that coram nobis is al- award of it
together in certain, and out of course ; and judgment was staid on the roll.
On this point.
IWchild vs. Gtaire*
Cro. Jae.63. IBrownl. 201. Ma, 765.6. C«
TRESPASS for tithes of the church of B. on the verdict A resigna-
the case appeared to be, that the defendant was collated to tlon to oae
this church, being a donative, by A. and B. the patrons ; and r^n^f a P do"
that this church is exempt from the jurisdiction of every na tive, and
ordinary. The defendant resigned to A. and to C. who is a to a stranger
stranger, & quibuscunque aUis persmis s who have interest, ec- and all oth-
clesiam suam de B. eum omnibus juribus, &c. both the patrons c * l nter ****
passed their estates to D. who collated and invested the plain- *^' d " &*°r •
tiff in the church ; whereby he seised the tithes in question, nation of the
and the defendant took them; and concluded* si constat curia, church ex-
that the resignation is good, then, fro quefenle, otherwise fro tends to all
defend. Etper totam curiam, judgment pro querehte; for the t . he posses-
resignation is good, both in respect of the thing which is re* sions of **•
signed, and of the persons to whom; for this donative being [ 61 ]
exempt from ordinary's jurisdiction, the resignation cannot The ordina*
be into his hands ; and the incumbent shall not be compelled r y ma y co1 ^ m
to keep the church nolens volens, if the patron will accept it ; pel l J? e PJ*"
and therefore there being no person to whom the resignation ^ive t * C( £
can be made, but into the hands of the patron, it is good ; and late a clerk,
although the resignation is to one patron and a stranger, yet
it is good to both the patrons, and void as to the stranger ; and L <J- Ray. 8,
the rather by reason of the words subsequent (quibuscunq. aliis J ^ 0< ** **•
personisi) which words include all that have any maimer of ^ ^[^
interest. Then when it is found, that D. who collated the Cowp. Sli.
« plaintiff, had the estate of both the patrons, although no agree- 2 Wili. 150.
Pasch. 8 Jac.
1T.R 4M.aent is found of the patrons to the resignation, it is not nrat*-
\ c ' ^h^ 5 * " a * ' for t * IIB ^ n< ^ n S °* ^ e £ rallt over to ** implies as touch
Co- 51 * *• in a verdict ; then this investing of the plaintiff in the church
by D. is good to give him power to take the profits by reason
of the first possession ; and although the defendant resigned
only the church, yet that goes to all that belongs to the
church, and that the defendant had as rector there ; and there-
fore E. 3.— is, that if the patron grants ecclesiam, it passes
the advowsoo. (But nota, Herle there said it was in ancient
Co Lit. 17 t* me ' ^8° ** '* not g0 at tn * 8 ^ av ' *° wmcn * oe court seemed
to agree :) Et per curiam, the resignation is the sole point
5 Co. 97. a. WD > cn * De court is to determine in this case, for of that alone
Cro. Car. tS. the jury doubted; and that is only referred to the court. But
Cro. El. 238. per Popham Ch. Jus. if the patron of such donative will not
Mo. 267. collate, there is no remedy to compel him; hut it is left to
his conscience, and he may in time of vacation take all the
profits, and sue for the tithes in the spiritual court : For this
Bo* loi ^ d° native S rew a * nre * by coD»ent of all persons who had any
y manner of interest, viz. the ordinary and parishioners. But
Gavvdy, Fenner, Yelverton and Williams contra, and that the
ordinary might compel him to collate some clerk; for recto-
ria is only exempted from the jurisdiction of the ordinary, and
not the patron ; and it goes only to charges to be taxed upon
the church for the ordinary's attendance in visitations, and
such like : And per Popham, although the church in the exe-
cution of the charge be spiritual, yet the patron may collate a
mere layman, as well as the king may make a temporal man
a dean, quodsccpe accidit: But all the other justices contra, in
case of the person which is merely spiritual ; but as to the
deanery tbey granted that ; for that function is temporal :
And yet Williams justice said, that lay-men, who have dean-
eries, ought to have and always have bad dispensations from
the archbishop : And if the incumbent, in this case of the do-
native, preaches heresy, or, &c. by the Attorney General and
[ 62 ] Popham, the ordinary may correct him ; for rector is not ex-
SLd. Raym. empt from the jurisdiction, but rectoriaoaly : But per Gawdy,
1205. Fenner, Yelverton and Williams, the ordinary cannot medV
die with him, for the person is privileged in respect of the
place ; but the patron may by commission in its nature exam*
ine the matter, and oust and deprive him upon cause ; quod
nota : And sic accidit in the case of one Covert, as Gawdy
and Williams said, where the bishop of Winchester was dona*
tor of such donative. Yide 13 E* 4.
Sir George Moore vs. Foster.
Cro. Jac. 65. 8. C.
It is action- sra Q e01 ^ e Moore (with others) being a commissioner to
charee a examine witnesses on a suit in Chancery between A. and B.
commission- A. one of the parties (posito the defendant) said to him, that
•r for exam- he was a corrupt man, and that B. had set him on horseback
Patch. 3 Jac.
iwith bribes' to suppress justice, truth and equity; and upon "ring wit-
th« se words Sir George brought an action; and this matter nMse * w *ta
appeared in the declaration, and it was found for the plaintiff i.^J^^S
And (by Fenner and Williams) judgment ought not to be for bribes,
the plaiuthf; for the being a commissioner by the mutual as-
sent and election of the parties, is not in any judicial course, Palm. 67.
but only arbitrary whether he will be or not ; and also by the Jr. ^* r - * 8 **
common law of the land, the misusage and the miscarrying of^lj' ™£
a commissioner of the business is not punishable ; for he is
not sworn to do any thing, but it is only voluntary ; also it
does not appear that the commission was returned ; and so all
former proceedings frustrate ; and although the misdemeanor
of the commissioner may be punished in the Star-Ghamber, 9 ^ 7a b#
yet that is hut discretionary, and not de rigore juris. But 71. a .*
Fopham chief justice, Gawdy and Yelverton contra strenu-
ously ; for the commission in this case to the commissioners
issues under the great seal, and is a special trust and confi-
dence which the court and the king (as appears by the stile
of the commission) repose in the commissioners ; and to falsify
this trust is a great offence ; and for bribery to suppress truth,
is a heavy slander. And if J. and F. are arbitrators between
A. and B. and A. says to J. that he has taken such bribes of
B. that he is fallen from hearing any thing on his side, it is a
slander punishable ; for by the common law such corruption
in matters of reference may be punished by indictment ; and
so may forgery be punished at the common law ; otherwise
the law would be defective, to suffer such offence without pun-
ishment : And although the commissioner is not sworn, nor
the commission returned, yet that does not extenuate the [ 63 }
slander ; but the defendant's malice appears the same* And
judgment was given accordingly.
Sir Richard Ghampernon v& Hill.
Cro. Jac. 68. 1 Brownl. 86. Mo. 914. Noy 3. S. C.
IN an action on the statute of 2 E. 6. for not setting forth An actios
•f tithes; the plaintiff shewed that the rector of Modbury had lies on the
two parts of the tithes in three parts to be divided, and that ^ tut g h *
the vicar of the same place had the third part of the tithes; —J^ ' by o *
and laid it to be by prescription as to the manner of the re- t j t h e s, upon
ceipt of the tithes by the parson and the vicar, from time several ti~
whereof: He further shewed, that the parson and vicar, had ties.
by several leases demised the tithes to him; and so he being
proprietarius of the tithes, the defendant sowed so many acres Cro * M * aw#
within the parish, viz. wheat, rye, &c. and carried them away
without setting forth decitnam partem decimarum prxdictarum
to his damage, &c. And upon nil debet pleaded, it was found
for the plaintiff; and in arrest of judgment it was shewn, that
the plaintiff has in this writ comprised several actions upon
the statute ; and this appears by his own shewing ; for he
does not claim the tithes under one title, but under the ser- '
Paach, 3 Jae,
eral titles, of the parson, v», of tbe two parta, and of the ▼{*
car* via. of the third part; and no more than the parson and
vicar can join in this writ, by reason their titles are divided f
no more can the plaintiff; who claim* severally uqder them,
And it seems, that the parson eannot have this action against
several tenants for not setting forth their several tithe*, though
all the tithes belong to him, beeause he cannot comprehend
two actions in one ; fuod Feoner cmcedU ; but all the other
justices cordra ; for although the vicar and the parson in this
case eannot join, because they claim the tithes severally by
divided rights, yet when both their titles are conjoined in one
person, as they are here in the plaintiff, then the matter of
the title is likewise conjoined in one ; and it is sufficient to
anew generally, that the plaintiff kfirmams or prcprietarms
of the tithes, without saying by what title ; for this is but a
personal action founded merely upon toe conteraj>t against
the statute, in not setting forth the tithes ; and also he doth
Post 127. not demand any tithes by this action, so that the title cannot
come in debate ; but the defendant is only to excuse himself
of the contempt : Yet it was agreed by all, that the plaintiff
should recover the tithes in damages, and should not demand
them again, by Any suit alter bis recovery m this action.
Qtwdnota.
[ 64 ] Doctor Nevil w. Bates.
Cro. Jac. 64. S. C. «emft.
Venire fac. AFTER Issue between the parties, the venire facias, upon
& diftring. which the trial was, was made returnable quind. HiU. and bore
jurat, which teste 12 Feb. which is tbe last day of Hillary term; and yet
^ th ^ 8 ^(^C«riaiii) it shall be amended in the date of the teste,
turn of them* viz% to * 88UB ^ Drto before the return of it, and that in favour
amended; of trials; for it is but the default of the clerk. And a prece-.
being a mere dent was shewn where the venire fmas bore teste 24 Feb.
clerical mis- which is out of term returnable in the term time ; and it was
prision. amended. And also in the casein question the Ostr. jurat.
Cro El. 564, H^ 61 *" 86 oore teste J2 Feb. which is the same day of the teste
Cro. Car. 38. of the venire facias ; and this distr. in its nature isaues after
90. the venire facias returned ; and amended also in that point,
Hob. 68. f er it is but a misprision of the clerk : But in the same case
1 fitra. 138. t ^ tefID> between (a) Lee plaintiff against Lacon for a tres-
np fi pass in cam. Salop : After issue' between the parties, and a ve-
W ° 8 'rare facias awarded on the roil, (which award is always gen-
eral) the writ of venire facias was made (vicecomiti) omitting
(Salep) for a space was in the writ for it; but yet it was real-
ty executed by the sheriff of Salop ; and it was alledged in.
arrest of judgment, that the venire facias was vicious for that
reason : But by Gawdy, it shall be amended; and per Fenner
% Salk. 454. and Williams, it is as no writ, because it is not directed to
any officer, and then it is aided by the statute of jeofails.
Pasch. 3 Jac.
Sir John Hollis vs. Briscoe.
Cro. Jac. 58. S. C.
HE keeps thieves and traitors to do mischief, and gives tfotactiona*
tHem nothing for their labour but blue liveries : And by Pop- bleto say of
hams the words are actionable ; for the words (do mischief) a man that
shall be intended in that kind, and according to the qualities he keeps
of the persons spoken of before, viz. to do theft and treason ; * ?* es *2
as if he had said J. S. keeps a perjured fellow in his house J^hief.
for his purpose, to serve his turn withal ; it shall be intended,
to serve his turn in perjury. But tola curia contra in both ca- 1 Vent. 259*
«es ; for a man may keep thieves and traitors, and not know Hob. 117.
them to be of such condition ; and likewise be may keep them Cro.El. 52.
to do hurt and mischief, and yet not in theft or treason; as to J Sl?'!?^"
break down his neighbour's hedge, to chase his cattle, <fcc.
and judgment was entered, nil capiat per billam. (This case
was adjudged in Term. Hill. 2 Jac.)
Birket vs. Manning. [ 65 ]
Cro. Jac. 67. 1 Brownl. 87, S. C*
. DEBT by J* Birket against William Manning, as adminis* Clerical ais-
tyator of J.S. The defendant pleaded pUne aihninistravit; trite, in the
The plaintiff replied, that he ought not to be barred by any tender of an.
thing said per prediction Williehnum ; for he said prcedictus J. * s *{ e » am * n '
habit, & die impetraHonis, &c. habuit, diversa bona, &c. & hoc verdict.** *'
petit, &c. And it was moved in arrest of judgment, that there
was not any issue joined; for the plaintiff ought to have re- Dyer 261.
plied, that the defendant had assets, and he says that he him- Cr. El. 752.
self has assets, which is not the matter in question ; but (per Palm. 524.
curiam) it shall be amended, for it is but the default of the f*£ l \/ 6 J t '<,.
cJerk : As 9 Eliz. Dy. where it is said & predict, defendens si- * ,Kf7W "
militer. where it should be predict euerens similiter ; and that
has been often amended. (1)
(!) Cro. Jac. 587. Thomas v. merly held to be errqr : Jenk. 8.
WiUoughby. 8 Co. 131. b. Black- And it may be doubtful whether
amore's case. Skin. 591. Greenwood the defect is cured by any of the
v. Piggon. 1 Stra. 551. Rawbone v. statutes of jeofails. Cowp. ubisup*
Hickman. 3 Bur. 1 793. Harvey v. But if the parties go to trial, and
Peake. ace. So if a party neglect defence is made, the verdict will
to add the similiter, it may be a- not be set wside. 1 Barnes 331.
mended after verdict. Cowp 408. Grave v. Cliff. Bac. Abr. Verdict
Sayer v. Pocock. So if to a rejoin- Y. Though the similiter is not
der concluding with a verification, added, yet if the record state that
the plaintiff adds the similiter, and issue was joined, the court are
the defendant obtains a verdict ; bound by it, and will not reverse
the court will not grant a new tri- the judgment 9 Mass. Rep. 532,
al, but will amend the record. 1 N. Whiting v. Cochran. See 2 Saund.
R. 28. Grundy v. MelL If the si- 319. n. 6. 2 Day 392. Babcockr.
mtitcr was not added, it was for* /duntimgton. N
I?
Triih 3 Jac.
• fee i Mod. Middleton w. Cbeseroaiu *Rot 7*3.
If the plain- IN an action of covenant to deliver iron, the defendant
tiff d «™Jpleaded two pleas issuable, viz. a delivery of the iron accord-
teveral pleas ' n £ *° * ne covenant, and by his third plea be pleaded a con-
"qnodjrfoci-Cord; opon which the plaintiff demurred generally *et (ficit
lum pnedkt.quodplacitwn prctdict. minus strgk. She, And {per curiam) it
minus suffici- jg a discontinuance of the whole matter; for this word(j>f<wi-
ens » H ii *tum) is uncertain to which of the three t ileas H shall be rHTer-
anoTof °the re ^ 9 ** * at a8 *° two D,eas P' ca ded, tne defendant remains
whole mat* unanswered : (l) Also if it should be taken that this word
ter. Qu. (plaetium) goes to the last plea only, because the pleading of
the concord is the matter only doubtful in law, the other two
pleas being only issuable, upon which it shall not be presumed
that the plaintiff would tender a demurrer, then the plaintiff
not descending to issue upon the other two pleas, nothing is
done as to them, *o the record is imperfect, and by conse-
quence a discontinuance of the whole matter. Per totam
curium*
(1) The word placUum is namen Co. 7. Hob. 187. Freestone v. Bow-
generalissitnvm, and refers to all the yer. Cro. Jac. 353. Watts v. King*
pleas; 1 Saund. 338. Hancocke v. Hardr. 331. Workman v. ChnppeL
Prowd. Skin. 554. Wilson v. Laws. 4 Mod. 246. EUery v. Hicks & nx.
which cases have overruled that in ace. Carter 51. Ayre v. Glossem*
the text, as to the discontinuance, per Bridgman C. J. contra. But it
Under the statute of jeofails, 32. is fatal on demurrer, ibid. Com.
H. 8. c. 30. a discontinuance in Dig. Pleader. E. 1.
pleading is helped by verdict. 11
[ 66 ] Sir Edward Winter.
An indict- gjp; Edward Winter, and several others were indicted for
nuisance* £ erectra ? a Wear Up ° n the fiver Wye> wnercD y tne P awa g e °f
rected in the * ne subjects with boats, &e. was stopped and hindered ; and
"time of one it was laid to be in the time Elis. anno 43. and for the con-
king, & coo- tinuance of it ad nocumentum of the subjects of the king that
tinned' dur- n0 w is; and so the jurors conclude, that the said wear was
i! fi- thC time erected and continued contra pacem regis nunc, &e. and the
sor M SouM indictment adjudged void, (1) because it is not as well contra
conclude *-pucemnuper regince, as contra pacem regis riunc; for the com*
gainst themencement of the tort was in the time of the queen, and that
peace of was an offence to the thrown at that time; for although the
both. parties might be indicted for the continuance of this tort only,
without alledging tit facto, or expressly, when the tort com-
menced, yet the scope of this indictment is not to make the
offences several, as they urtinse; because although the ju-
rors have concluded upon both, yet they have found the peace
(1) 2 Hale P. C. 188. 189. 2 Rex v. lookup, 1 Stark. Crim. PI.
Hawk. c. 25. § 05. 3 Bar. 1903. 197. ace.
Trin. 3 Jac;
of this king only to be broke. But, by Pophara Chief Jus- Comb. 16S.
tice, if the conclusion of the jury had been upon the con ^ nu "i S g°i^ , fM
ance of the tort only, then it should be taken in law to be ao Lutw. IWil
indictment to that purpose only, and the other matter of the
finding of the erection of the said wear to be but an informa-
tion quomodo res gesta fuit : Or if the jurors had found, that
whereas Sir Edward Winter, &c. had in the time of the queen
erected, &c. they continued it in the time of this Jung, contra
paccm regis nunc, it bad been good; because the express
matter found was only the continuance of the tort, and the
other but a recital or introduction to the matter found. Quod
*uria concessit. Yelverton was for Sir Edward.
The Case of an Hostler.
IN an action on the case on assumpsit, the plaintiff declar- When the
ed, and shewed himself to be an hostler, and that the defend- £ ause °J a a ^
ant brought his horse to him, and agreed to give b</. livery f or e5dsUngdebt #
day and night ; and because the horse had been there for so ttte declara-
mauy days and nights, as amounted to 20/. the plaintiff brought tion need uot
the action, and declared, licet soepius requisitus, without al- aver a spe-
ledffiog a request in facto: And it was adjudged good; for cia * request
where the ground of the action is for a debt, in which case to p ^£ j. ea
the law implies the promise, there the request is not issuable, w ^ en t b ere
nor parcel of the consideration : Otherwise where the action is an agree-
is founded upon a mere collateral matter, and not upon a duty, ment for a
for there the request is issuable, and ought to be expressly al- specific gum.
ledged; ami although the agreement was for 6d. day and^"' ,
night, and the plaintiff has joined so many days and nights as I- J
amount to 2i)l. and demanded a recompense upon the promise
accordingly, yet it is good ; for the plaintiff shall not be com-
pelled to bring his action for every 6d. but the promise is in-
tire in itself, viz. to pay all that the horse shall take secundum
rotom 6cf. day and night. And it is not to be compared to a~ _
single bond, on which the action does not lie till all iiie days c^jlit. 47.
are incurred ; for there the writing is simple in the whole : b. 292. b.
And in this case it was said by Popbam Chief Justice, that if Cr. Jac. 505.
a man brings his horse to an inn, and leaves him there in the * H. B » 550.
•table without any special agreement what to pay, there the
innholder is not bound to deliver the horse, till the party and
owner has defrayed his charge for the horse but he may justi-
fy the detainer of the horse for his food and keeping : And af-
ter the horse has eat as much as he is worth, the innholder,
npon a reasonable praisement, may sell him, and it is a. good
sale in law. Bui in the case supra, although the horse had
eat oat his double price, the innholder could not sell him; for
be has relied upon the promise to pay 6</. day and night, and
he must rest upon that.. So if a tailor has my apparel to
make, and he makes it accordingly, he is> not obliged to deliv-
er it till he is paid for the making of it; but although in that
case he may detain till he is paid, yet for default of payment
be cannot sell it, as in the other case he may sell the horse;
Triii. 3 J«c*
[ 87 a ] the reason is, because the keeping of the horse is a charge,
because he eats; but the keepiug of the apparel is not any
charge. (1) Quodtota curia concessit.
(1) There is no doubt that the
principal point adjudged in this case
is law; viz. that the declaration
was good without all edging a spe-
cial request ; upon the ground that
where the cause of action is an ex-
isting debt, the request is not issua-
ble, and the general averment "licet
sctpe requistus" is sufficient as matter
of form. I Saund. 33. Birks v. Trip-
pet, and n. 2. Bui. N. P. lol.l Chit.
PI. 322. 323. 3 Leon. 200. Abbott's
case. Winch 2. Bartlei v. Bartlet.
ibid. 103. Brown & al. v. Barker.
Hetl. 148. Mosse's case. 1 John.
Cas. 319. Ernst v. Bartle. AUtcr
where the action is founded on a
collateral matter. Sav. 72. PulUson
T. Barnard, and cases supra.
But some of the incidental dicta
attributed to Popham C. J. deserve
examination. In the first place, it
k said that he helc^ that where a
horae is brought to an inn, " after
the horse has eat as much as he is
worth, the inholder upon a reason-
able praisement may sell him, and
it is a good sale in law." This is
true bj the custom of London and
Exeter, and perhaps also of some
other places; but as the. general
custom or law of the realm, the au-
thorities are the other way. In
Waibrook v. Griffith, Moore 376.
which was case against an inn-
keeper for conversion of a horse,
the defendant pleaded a general
custom of the realm, after appraise-
ment to sell a horse that had re-
mained so long at the inn as to
bave eaten as much as he was
worth, and a justification of the sale
accordingly. On demurrer to the
plea, the court held that there was
no such general custom, but only a
particular custom in London and
Exeter. In 2 Brownl. 254, the
case is reported to have been deci-
ded in favor of the defendant on the
custom of London. But in 2 Rol.
Abr. 86. pi. 4b. the same account
is given of (lie case as in Moore ;
and in I Vent. 71. Anon, it is sta-
ted — " Nota, though every inn-
keeper may detain a horse until he
is paid for his meat, yet he cannot
sell him, for that is goo) only by
the custom of London." The same
account is given of the custom of
London in 1 Bulst. 207. Moss v.
Townsend. Poph. 127. Robinson v.
Walter. 1 Rol. Rep. 449. 3 Buist.
269. S. G. Skin. 648. Gilbert v.
Berkley, and in Bac. Abr. Inns. D.
where also it is denied to be the
general custom of the realm. In
Jones v. Thurloe, 8 Mod. 173. Pratt
C, J. is reported at the argument
to have held that though an inn-
keeper may detain a horse for hi*
meat for one night, yet be cannot
sell the horse and pay himself, and
if he does it is a conversion : for he
cannot be his own carver Id 1
Stra. 556, the same case is report-
ed by the name of Jones v. Pearle,
and there the point is stated to have
been expressly adjudged. There
was another point on which the
case might well have been decided,
viz. that there was a waiver of the
lien by parting with the possession j
but still the general doctrine was
recognized. So that upon the whole,,
it is very clear that the doctrine as-
cribed to Popham C. J. cannot be
supported, if it was meant to extend,
to the general law of the realm.
In the next place, the doctrine
asserted by him "that if a man
brings his horse to an inn and leaves
him there in the stable without any
special agreement what to pay,
there the innholder is not bound to*
deliver the horse till the party and
owner has defrayed his charge for
the horse, but he may justify the
detainer of the horse for his food and
Trta.
keeping w *-is now perfectly estab-
lished ; and indeed seems to have
been recognized as law, in the time
of the Year-Books. 5 Ed. IV. 2. 3
Bulst. & Popb. ubi. sup. 2 Ld. Ray.
866. Yorke v. Grenaugh. 1 Salk.
388. S. C. i Bulst. 8 Mod. and 1
Stra. ubi sup. Vin. Abr. Inns. D.
Bac. Abr. Inns. D. 6 D & E. 14.
Kirhnan v.Shaacross. And this
lien attaches, although the owner
of the horse does not himself stay
at the inn, and although the horse
has been left there by one, who is
not the owner, or who stole him. 2
Ld. Raym. 1 Salk. ubi sup. But
the lien is confined to the food of
the horse, and he cannot be detain-
ed for a previous debt of the owner.
1 Bulst. 8 Mod. 1 Stra. ubi sup. It
seems also by the better authori-
ties, that an innkeeper has a lien
. upon the person of his guest and
upon his goods, until he has defray-
ed the ex|iense of his own lodging
and food. Fortesc. de Laud. 82. n.
b. Bac. Abr. Inns. D. Burns Just.
Alehouses. §15. and authorities cited
in Whitaker on Liens 117. and w-
pra. If however an innkeeper once
waive his lien for the keeping of a
horse, he cannot afterwards detain
him u[K>n the same account. What
circumstances amount to such wai-
ver is a matter not free from diffi-
culty, on account of the looseness
of language used in some of the re-
ports If the innkeeper once vol-
untarily parts with the possession
of the horse without payment, it is
clear that he cannot subsequently
detain him; for his lien is gone. 8
Mod. 1 Stra. 2 Brownl. ubi sup—
arguendo in Compcrv. Andrews, Hob*
41. 42. So if he make a special
contract with his guest for payment
which is inconsistent with the de-
tainer of the horse, or the existence
of a lien, or which shews that he
relies exclusively on the personal
credit of his guest: As if he stipu-
late for payment at a future day, or
in particular commodities, or in a
8 Jae.
particular mode, or receive other S9-/0 ffu- /&
curity — it may be admitted that the
lien is extinguished. This seems
consonant with reason and is analo-
gous to the doctrine applied to oth-
er cases of liens, as will appear be-
low. But in the text, Popham 0.
J. is reported to have extended the
doctrine further, and to have held
that the mere circumstance that
the party contracted for a specific.
sum, instead of relying on the im*
plied contract for a reasonable re-
ward, constitutes of itself an extin-
guishment of the lien. The Ian*
guage imputed to him is, " but in
the case supra, although the horse
had eaten out his double price, the
innholder could not sell him, for he
has relied upon the promise to pay
Qd. day and night, and he must rest
upon ihat." A similar doctrine it
stated in Bac. Abr. Trover. E &
2 Rol. Abr. 02. Justification, pi. 2»
The case in the text, and Cro. Car*
271. Chapman v. Atten> are cited to
support it. The citation from Roll*
gives no additional authority to the
doctrine, for it rests entirely on the
dictum in the text, attributing it to
Williams J. instead of the Chief
Justice. The case in Cro. Car.
manifestly rests on the general
ground that an agister of cattle has
no lien on them for the pasturage ;
and no such distinction is there pre-
tended, as that the mere circutn-
stance of an agreement for a spe-
cific sum would of itself make a dif-
ference in point of law ; and the
case is expressly distinguished and
said not to be like that of an inn-
keeper or tailor. There are, how-
ever, other authorities, which strong-
ly countenance Ihe doctrine. In
Bui. N. P. 45, it is laid down, that
" no person can in any case retain
where there is a special agreement,
because then the other party is per-
sonally liable ;" which, with great
submission, is no reason at all ; for
in most if not all cases of lien, there
is a personal liability of the party.
Trio.
[07c]
The author, la support of this post*
lion, cites Brennan v. Ctfrrmi, Say-
•r 224. S. C. cited 3 Selw. N. P.
1103. and 3 Bur. 1499. In that
case, the plaintiff agreed to pay a
farrier a half guinea for curing his
horse of a distemper, and also a rea-
sonable sum for keeping h until it
should lie cured. After it was cured,
the plaintiff tendered the half guin-
ea to the farrier, who refused to de-
liver the horse, unless the plaintiff
-would also pay for the keeping.
The owner brought trover for the
horse, and the question was wheth-
er the defendant had a right to de-
tain it until paid for the keep. The
court were of opinion that he had
not Lord C. J Ryder, in deliver-
ing the opinion of the court, declar-
ed that although a farrier might
have a right to detain a beast de-
livered to him to be cured, until
paid for the cure (a point, however,
on which no ojwuion would be giv-
en) yet it was clear that the farrier
in that case had no such right ; be*
cause the general right, if it exist-
ed, was waived by the special a-
greeoient to pay a specific sum for
the cure ; and for the same reason,
the horse could not be detained for
the keeping, because there was a
special agreement that it was to be
for a reasonable sum. In Selw. N.
P. ubisup. the court are said to have
relied upon the authority in 2 Rol.
Abr. above referred to, and the ca-
ses of Stone v. IJngwood, 1 Stra.
651. and Collins v. Ongley, before
Lord Holt, in 9 William 3. where
he is said to have held, that " if
goods were delivered to a manufac-
turer, he might detain them for
what he deserved for his labor ; but
if there was an agreement for the
price, be could not ; in that ease
he must rely upon the contract and
be in the same condition as other
creditors." So far as can be gath-
ered from the report of this case in
Selwyn, this opinion was clearly
extrajudicial, and not at all con-
3 Jac.
nected with the facts before the
court The case in Strange, if it
were law, is not to the pur|iose ;
but its authority was expressly de-
nied by Lord Mansfield in Green v.
Farmer, 4 Bur. 2218. So that af-
ter all, the case of Brennan v. Cur-
tint was decided upon the mere
obiter Seta of Lords Popbara and
Holt. Still, the language of Lord
Ellenboroogh, in Stevenson & at. v.
Blakelock, 1 Maule and Selw. 535.
543. if taken without reference to
the case before the court, would
seem to favor the doctrine in Say-
er. He says, " I take the general
rule of law to be, that when there
is an express antecedent contract
between the parties, a lien, which:
grows out of an implied contract,
does not arise. But in the absence
of any express contract, there may
be a lien, and a right of action on
an implied contract" But this:
must certainly be understood with:
reference to the question before
him, which was of a lien of an at-
torney for his general balance when-
he had taken security by accept*
ances, which turned out to be bad ;
as Lord Ellenborougb could not in-
tend to assert as a general proposi-
tion, that the mere existence of an
express contract which involves no
terms inconsistent with the exist-
ence of a lien, does per se destroy
it : For the rule, if it exist in any
case, is very far from being univer-
sal. In eases of Hen for freight, the
contract is almost always express
and for a specific sum ; yet this li-
en has never been held to be waived
by the mere fact of the existence of
such express contract ; and there
are judgments in which his Lord-
ship has directly recognized it in
such cases. 15 East 547. Phillips
&al.\. Rodie&al. 3 Maule and
Selw. 205. Birley v. Gladstone. 2
Merivale 401. S. C. 4 Campb. 298.
Mitchell v. Scaife. Abbott on Ship-
ping Pt 3. c. 3. § 11. - And the
same is true of the lien of a vendor
Triii.
for the price of good* sold, while
they remain in his possession. 6
East 614. Hanson & al v. Myers.
And of the lien for seamen's wages.
Abbott on Shipp. Pt. 4. c. 4. And
in cases of liens for a general bal-
ance of account, there is in most
cages an express contract leading
to that balance. 1 n Cornell v. Simp-
son> 1 6 Ves. 275, where the ques-
tion, how far the taking of a subse-
quent security was a waiver of the
lien of a solicitor on iris client's pa-
pers for a balance of account, was
much discussed ; the whole reason-
ing of Lord Eldon proceeds upon
the ground, not that an express
contract of itself destroys the lien ;
but such an express contract, (wheth-
er antecedent or subsequent is whol-
ly immaterial) as involves terms
inconsistent with a lien — as a con-
tract for taking a security payable
in future, or for giving credit, orfor
a particular mode of payment. And
in a still more recent case, where
all the preceding authorities were
cited in argument, and the dictum
in the text, and Brennan v. Cur*
rint, Bui, N. P. 45. and Birky v.
Gladstone were particularly relied
on to establish the proposition, that
where there is a special agreement,
it is 4i waiver of the lien, and that
upon this ground, in the case then
before the court (which was a case
of freight under a special contract)
the lien for freight was gone — Gibbs
C. J. said, " there is always a. spe-
cial undertaking to pay freight, by
the bill of lading ; and yet gener-
ally speaking, a lien exists for
freight: But when a certain time is
allowed for the payment, the lien
is discharged. There is a passage
in Bac. Abr. Trover. E. which sup*
ports the general doctrine, on which
the plaintiffs rely" — and after ci-
ting it and adding that 2 Rol. Abr.
Cro. Car. and the case in the text
are <sited in support of it, he pro-
ceeded-—" I have always been in-
dined to consider this doctrine a*
3 Jac.
[67rf]
applicable to an agreement, which
is inconsistent with the right of Uen."/a £fk, /Pi
" If there be an agreement to pay
by bills, such agreement takes a-
way the right of lien" And after-
wards, in delivering his opinion, af-
ter argument, he further said—
" The first ground rests on the au-
thority of a dictum in Bui. N. P.
[45] from which it is contended that
wherever there is a special agree-
ment for the freight, the party, who
is to be paid in that special man-
ner, has no lien on the goods. I
do not think that that doctnne can
be supported to the extent, to
which those generajl terms would
carry it ; and I am by no means
prepared to say that in a case like
the present [a special contract] the
owner would not be entitled to hie
Hen." 2 Marsh. Rep. 339. Hutton&
al. v. Bragg. It may therefore be
fairly inferred as the opinion of
Lord C. J. Gibbs, that an express
agreement is not a waiver of a lien,
unless it import something incon-*
sistent with the existence of a lien*
This point came incidentally before
the Circuit Court of the United
States, in the first circuit, in a re-
cent case, Ex parte Lewis, 2 Gal lis.
483. and it was manifestly the o-
pinion of Story J. that there was
great reason to doubt the accuracy
of the doctrine asserted in the text
and in Say er. The conclusion is,
that courts of law at present incline
to hold the same limitations to the
doetrine, which are suggested by
Lord C. J. Gibbs ; and that an ex-
press contract for a specific sum is
not of itself a waiver of a lien ; but
that to produce that effect, the con-
tract must contain some stipulation
inconsistent with a lien, or from
which a waiver of it may fairly be
inferred. A recent case before
Lord Ellenborough strongly war-
rants this conclusion. 4Campb. 146.
Railt v. Mitchell Ss aL See also 3 /r p s?
Anst. 881. Brook v. Wentnorth.J^lO^J:/8i
This view of the doctrine seems
Triii.
[Bit]
Awnded in solid feme, Mid furnish-
es an intelligible principle on
which to rest the eases in which
Kens may be justly held to be wai-
ved: And it agrees with the civil
law, in which the law of lien prob-
ably originated. By that law, if
credit be given by the vendor of
goods, his lien is gone—upon the
ground that a credit is inconsistent
with a lien. Dig. lib. 18. tit. 1. c. 19.
.And a doctrine exactly similar is
found in the Tear-Books. In 5
Ed. IV. 2. pi. 20. it stands thus—
" Nota also by Hayden, that a host-
. ler may detain a horse, if his master
will not pay for his meat. The
same law is if a tailor make a gar-
ment for me, he may retain the
garment until he is paid for his la-
bour. And I he same law, if I buy
of you a horse for 20 shillings ; but
if I em to pay you at Michaelmas
next following, there you cannot de-
tain the same until you are paid."
The same doctrine is asserted in 17
Ed. IV. 1.
It may not be useless to present
a summary view of the doctrine of
liens as applicable to personal and
real property, and to persons enga-
ged in particular occupations.
First, as to personal property.
In respect to personal property,
a Hen is a right to detain property
until some charge or claim is satis-
fied. This right is created either
by the common law, or by custom,
or by the usage of particular trades.
It is called a particular lien, when
It is a right of retainer for a charge
in respect to the identical property,
which is detained ; and it is called
a general lien, when it comprehends
the right of retainer for other claims,
as for a general balance of accounts.
Liens by usage and private con-
tract differ from each other in
nothing essential ; the former being
founded upon a contract by law
from general usage ; the latter upon
a contract expressly stipulated be-
8 Jac.
tweea the parties, or implied by
law from their particular mode of
transacting business with each oth-
er.
In respect to particular liens* (1)
Innkeepers, as appears above, have
such a lien, upon the most ancient
principles of the common law. (2)
So a tailor has a lien upon the gar-
ment left with him, for the price of
making it. 5 Edw. IV. 2. Hut. 101.
Mackerneyv.Enfrin.2Rol Rep. 438.
Rosse v. Bramsteed Cro. Car. 271.
Chapman v. Allen. 9 East 433.
Hussey v. Christie. (3) So a farri-
er, for the price of shoeing a horse
or other cattle. 21 Hen. VI. 55. 56.
Keilw. 50. Bac. Abr. Trover E.
Selw. N. P. 1163. But it seems
doubtful whether this lien extends
to the price of curing a horse of a
disorder, or for keeping him while
under cure. Sayer 224. Brennan v.
Currint. 1 Atk.228. Ex parte Deexe.
ib. 236. Ex parte Ockcnden. (4) So
common carriers have a lien for the
price of transportation of goods. 2
Lord Rayro. 762. Skinner v. Up*
sharv. ib. 867. Yorke v. Grenaugffu
6 East. 510. Rushforth &aLv. Had-
field &al. 7 ib. 224. S. C. And
this lien exists against the true ow-
ner, even when the goods have
been tortiously taken, or stolen
from him, by the person who left
them with the carrier. Yorke v.
Grenaugh, ubi sup. (5) So owners
and masters of vessels have a lien
for freight upon goods transported.
4 Mass. Rep. 91. Lane v. Penniman.
6 ib. 427. Portland Bank v. Stubbs.
11 ib. 72. Lewis v. Hancock & aL
ib. 4 1 5. Cowing v. Snow. Abbott on
Shipp. Pt. 3. c. 3. § 11. Also a
lien upon the luggage of a passen-
ger for his passage money. 2 Campb.
631. Wolf v. Summers. And a part
of the goods may be detained for
the freight of the whole which be-
long to the same owner. Sodergren
x v. Flight & aL cited 6 East 622.
Abbott on Shipp. ubi sup. So in
Massachusetts and New York, the
Trin.
master hag a lien on the freight for
his expenses and disbursements. 4
Mass. Rep. ubi sup. 2Caines Rep.
81.84. MUward v.Hallet. See also
4Esp.Rep.22. White y. Baring S^aL
(6) In general, it may be asserted
that bailees for hire have a lien for
the priee of the work done and the
expense incurred on the goods bail-
ed to them. Christian's note to 2
Bl.Com.457. lAtk.tt6isup. 3 Esp.
Rep. 86. HoulditchScaL v. Milne.
Such as fullers ; ib. lEast 4. Sweet
&ah v. Pym. Dyers 5 6 D & E. 14.
Kirkman v.Shawcross. sSelw.N.P.
1163. Collim v. Ongley. Millers;
lAtk.235. Ex parteOckenden. iBJ.
Rep. 653. Greeny. Farmer. Pack-
ers ; 1 Atk. 228. Ex parte Deexe.
Wharfingers ; 4 D & E. 260. Syeds
v. Hay. 3 Esp. Rep. 81. Spears v.
Hartly. 1 Bl. Rep. 413. 423. Ste-
phens v. Coster <§• al. and Calico-
printers. Cook's Bank. Luw 429.
Ex parte Andrews. 3Esp.Rep.268.
Weldon v. Gould. But there are
exceptions to the rule above stated.
An agister of eattle has no lien upon
them for the price of the agistment.
Cro. Car. 271. Chapman v. Alien.
Nor a livery stable-keeper, for the
keep of horses at livery. sLd.Ray.
866. Yorkev.Grenaugh. Esp.Dig.
584. Hunter v.Barktey. Perhaps
also farriers, for the cure of horses
of diseases. Sayer ubi sup. (7)At-
tornies and solicitors have a lien
for their costs upon all the papers
of their elients,which come to their
possession in the course of their
business. 12Mod.554. Anon. Do us?.
104. Wilkins v. Carmiehael. 4 D &
E. 123. Mitchell y.Gldfield. 2Scho.
&Lef. 279. Ex parte Nesbitt 13
Ves. 160. Merrywether v. Mellisfu
ib. 1.95. Twort v. DayreU. Attor-
nies have also a lien for their eosts
upon judgments recovered by them.
Doug. Rep. 238. Welsh v. Hole. 4
D & E. ubi %up. 15 Ves. 72. Taylor
v.Popham. But the lien on judg-
ments is not in all eases absolute ;
for though a payment of the judg-
14
3 Jac*
[vrf]
ment by the debtor, after notice of
the lien, will not be allowed to pre-
vail against it ; Doug, ubi sup. 6 D
& E. 361. Reed v. Dapper, nor a
collusive discharge by the creditor
to the debtor ; 2 N. R. 99. Swaine
v. Senate. 2 Ves. 25. Anon. 1 East
464. Ormerod v.Tate. 3CainesRep.
165. Pinder v. Morris, yet a bona
fide compromise, or payment of the
debt before notice of the lien, will
be held valid against it. Doug. & 2
Ves. ubi sup. 8 D & E. 407. Pyne v.
Earle. lTaunt.341. ChapmanSfal.
y.Haw. 5 ib.429. Graves v.Edes. 5
Mass. Rep. 309. Getchill v. Clark.
8 John, Rep. 335. People v. Harden-
burgh&fal. lTidd's Pract. 321. But
see Forrest's Rep. 109. Gifford
v. Gifford. There is too some di-
versity of practice, in the different
courts in England, on this subject.
In the King- s Bench, the lien of an
attorney upon a judgment does not
yield to the debtor's right of setoff.
8D&E. 70. Glaisterv. Hewer. ±
Muule & SeJw. 240. Middleton v.
HillSfaL 2 Sellon's Pract. 451. 1
Tidd's Pract. 320. The Court of
Exchequer seem to recognize the
same doctrine. Forrest's Rep. ubi
sup. But in the Common Pleas, it
yields to all equitable claims of the
debtor, and of course to a setoff. 1
H. B. 23. Schoole v. Noble Sf al. 2
ib. 440. Vaugkanv.Davies. "ib.587.
Denniev. Elliot. 2N.R. 102. Swaine
v. Senate. 1 Tidd's Pract. 321. n.
Bee also 2 Bos. & Pol. 29. Hall v.
Ody. The same rule prevails in
Chancery as in the Common Pleas.
15Ves. 72. Taylor v. Popham. In
Massachusetts and New York, the
rule, as to setoffs on judgments, ex-
ists as in the Ring's Bench ; in the
former state, by the statute of
1810, e. 84 ; in the latter, by the
principles of the common law. 11
Mass. Rep. 236. Baker v. Cook. 2
Caines Rep. 105. Cole v. Grant. 3
Johu.Rep.247. Devoy v. Boyer. see
also 8 John. Rep. 357. Porter v.*
Lane. The lien of an attorney ex-
Triii. 3 Jac.
tends alw to the money levied by
the sheriff on an execution issued
on (he judgment ; 1 H.B.122. Grif-
fin v. JEyles. llMass.Rep. ubi sup.
and also to a sum of money award-
ed on an arbitration. lEast464. Or-
7nerodv/rate,¥orre%C»Rep.ubi sup.
But it seems that in New York, the
lien of an attorney does not extend
to fees for extra services, nor to
eouusel fees. S John.Rep.8d5. Peo-
ple w.Hardenburgh tir al. (8)Clerks
in ehaneery and in the eommon law
courts have a lien upon papers in
their hands, for fees due to them.
2 P. W. 460. Farewell v. Coker. 2
Stra. 1126. Waldron's case. 2Ves.
111. Taylor v. Lewis. 3 Atfc. 727.
8. C. 3 Bur. 1313. MexY.Smollet.
(9) So bankers have a lien upon all
papers and securities left in their
possession by their employers. 5 D
&E.483 • Davis 8[ al.v.Bowsher* 1
Eap. Rep. 66. Jourdaine v-Lefevre
SfaL (to) So factors and brokers
have a lien not only upon the goods
but also upon the papers of their
principals held by them* 2B1 Rep.
1154- Zinckv- Walker Sfal Cowp.
201. Drinkwater <$• al. v. Goodwin.
8 D & E. 119. 783. Kinloch $al- v.
Craig- 1 John. Cas- 437. n. (11)
So salvors of property at sea have
a lien for salvage upon the property
saved, l Ld. Raym. 393. Hartfort
v. Jones- 2 Salk. 654. S. C. 8 East
57- Baring S[ al.v. Day. 3 Rob. 355.
'.Che William Beckford. 2 Cranch
240- Mason Sfal v. Ship Blaireau.
1 Mason's Rep. 372. y Rowe v Ship
Abbott on Shipp. Pt. 3. c. 10.
§2. But salvors of property on land,
or on water within the body of the
county, have no lien for salvage,
even where they may be entitled to
remuneration; the policy of the law
having been supposed to forbid such
alien. 2 Bl. Rep. 1117. Binstedv.
Buck- 2H-B. 254. Nicholson v.
Chapman. (12) Lords of manors
have a lien upon beasts seized as
estrays, for the expense of keeping
them. 2 Rol. Abr. 92* Taylor v.
Jones. BuL N. P. 45. Whitaker oa
Liens 26. (13) So seamen have a
lien upon the ship for wages. Abbott
on Shipp. Pt. 4- e 4. % tiallig. 398.
Lewis v.Boit. And this lien is priv-
ileged before all others. 4 Craneh
328* Blaine v. Ship Charles Carter.
(14) So material men, for supplies
and work done on foreign ships,
or ships owned in other states. 4
Wheat. 438. The General Smith.
(15) So persons lending on bottom-
ry have a lien upon the ship for re-
payment. Abbott on Shipp. Pt. 2.
c. 3. § 15. 8 Rob. 240. The Gratitu-
dine. 4 Cranch ubi sup. 2 Gal I is.
191. The Jerusalem. But the same
does not apply to money at respon-
dentia on goods. 4 East 319. Busk
v. Fearon $ al. Abbott on Shipp.
Pt. 2. c 3. § 19. and the American
editor's notes. (16) So the vendor
of goods has a lien on them for the
purchase money, as long as he re-
tains possession,though the proper-
ty is changed hy the sale. 2 E. IV.
49. 5 E. I V,2. Noy's Max 88. 2
Bl Com- 448. Hob- 41. Cowperv.
•Andrews- 1 Salk. 113. Langfortv.
AduCx of Tiler. 1 H B- 363. Mason
v. Lickbarrow- 7East 571. Hinde v.
Whitehouse $ al. (17) And from
the very nature of the contract, the
pawnee of goods has a lien on them
for the sum for which they are pled-
ged. 2 Bl. Com. 451. 1 D & E. 153.
Fitzroyv.Guillim- Vin-Abr-Pawns.
But he has such lien only when the
pawnor has authority to make the
pledge, either as owner or by the
owner's consent. 3Atk. 44. Hartop
v. Hoare. 2 Catnpb. 336. n. Parker
v. Gillies. Hence a person not so
authorized-as a factor or broker —
cannot, by pledging the goods as
his own, create such a lien, though
the pawnee does not know that the
pawnor is not the owner. Pay ley on
Princip. & Agent 151. iVern. 407.
Marsden v. Panshall- 2 Stra. 1178.
Paterson v. Tash- 5 D & E. 604.
Daubigny Sf al. v. Duval & al. 5
Yes. 211. DeBouchoutv.Goldsmii.
Trin. 3 . Jac
2 Starkie's Rep. 21. Graham v.
Dyster. 1 Mason's Rep. 440. Van
•Amringe v. Feabody. 2 Mass. Rep.
398. Kinder $ aL v. Shaw Sf al. %
John. Rep. 103. Urqufiart v. M'-
Iver 4* a/. Lord Kilenborough, in
the cases of Pickering v. Busk Sf
al. 15 East 44. and whitehead <y
al v. Tuckett, ib. 409. expressed
dissatisfaction with the above rule,
in the ease of factors, and intimated
that it might require revision. But
in a subsequent ease, the court of
King's Bench, though they thought
the rule badly settled, held that it
was too late to correct it. 1 Maule
6 Sel w. 140. Martini v. Coles Sf aL
The liens, which have been enri-
merated,whether of aneient or mod-
ern origin, may be now considered
as recognized by the common law,
and growing out of its doctrines.
They are particular liens,which the
law inclines to favor. But general
liens have their foundation in the
usages of trade, or the particular
dealings between parties, and are
regarded with much less favor. Be-
fore they are admitted, they must
he established by clear evidence.
When, however, they have been
frequently established as general
usages,courtsof law will not permit
their existence to be again question-
ed. 1 \tk.228rEx parte JJeeze. ib.
23d. Ex parte Ockenden.i Esp.Rep.
109. Naylor v. Mangles SfaL 3 ib.
81. Spears v. Hartly. 3 Bos. & Pul.
42. Oppenheim Sf aL v. Russell, ib.
126. Richardson v. Goss. ib. 494.
Houghton v. Matthews. At present
there seems to be a disinclination
jn the courts to originate a lien in
any ease. See 3 Bos.& VuX.uhi sup.
7 East 229. Rushforth Sf al. v.
HadAetd Sf al. 9 ib. 426. Hussey
v. Christie Sf al. 15 Mas. Rep.
490. Mien v. Megguire.
In respect to general liens,or liens
fqr balances of general accounts —
they have been held,by the usage of
trade, to exist in favor of attornies
*nd solicitors $ 12 Mod. 554. dnon.
4D&E.123. Mtchellv. Oldfield.
2 Scho. & Let*. 279. Ex parte JVes-
bitt. ib. 115. Furlong v. Howard.
15 Ves.297. Ward v. Hepple.Qierkn
of courts ; 2 P. W. 4>GQ.Farewell v.
Coker. 3 Atk.7 '27. Taylor x. Lewis.
2 Yes. 111. S. C. Backers ; 1 Esp.
Rep. 66. Jourdaine v.Lefevre Sf aL
5 D & E. 488. Davis v. Bowsher.
Factors and brokers ; Ambl. 252.
Kruger v. Wilcox. 1 Bur. 494. Go-
din Sf al. v. London Jlssur. Comp
Cowp. 251. Drinkwater Sf al. v.
Goodwin. 2 H.B.501. Hollingworth
$ aL v. Tooke. 6 D & E 262. Walk*
er Sf al.v. Birch Sf a/. Packers*, who
are of the nature of factors; Ex parr
te Deeze, ubi sup. Wharfingers ;
JSTaylor v. Mangles and Spears v.
Hartly ,uh\ sup.and Calico-printers.
3 Esp. Rep. 268. Weldon v. Gould.
Cook's Bank. Law 429.
On the other hand,these general
liens have been held not to exist in
favor of earners either by land or
water ; 6 East 5t%.Rushforth Sf al.
v. Hadfield Sfal. 7 East 224. 8. C f
nor to Dyers ;4 Bur.22 to. Green v,
Farmer. 6 East 52$. n. ace. 4 Esp.
Rep. 53. Savill v. Barchard Sf al.
semb. contra. Farriers; Sayerw&i
sup. Innkeepers ; 2 Brownl. 254.
Warbrook v. Griffin. 8 Mod. 172.
Jones y. Thurloe. l Stra. 556. 8.C.
Millers ; Ex parte Ockenden, ubi fftfr_ r -
sup.nor to Pawnees.i6.15Mas.Rep.
397. per Wilde J. In case of paw-
neesjthe civil law seems to be dif-
ferent. Ueinec. El. Jur. Ft. 4. $ 48.
As to Hen s, either general or par-
ticular, arising from the particular
mode of dealing between parties—
these are matters of evidenee.fonnd-
ed on presumptions, and properly
belong to a treatise on evidence. It
may however be observed that proof
that the parties have before dealt
on the footing of such a lien, is prU
ma facie evidence that they con tin?
lie to deal on the same terms. Pre.
Ch. 680. Downam Sf al.v. Matthews
•Sf al. Ex parte Ockenden n ubi sup,
6 D 8p E. 19. per Grose J«
Trio. 3 Jac.
167 i]
Lien* founded on express eon- bona fide purchaser without notiee :
tract depend altogether on the eon* As when a bottomry bond was not
struetion of the terms of the eon- enibreed, and the ship passed to a
traet itself, and require no partic- new owner. 4 Craneh 332. Blaine
uiar elucidation. v. Ship Charles Carter.
Except in the instances already For further information respect-
stated, of innkeepers and common ing liens on personal property, the
earriers,whieh stand upon peculiar reader is referred to Whitaker on
reasons of policy, no person can ae- Liens, where the subject is discus-
quire a particular iien,unless by the sed with considerable minuteness,
authority or consent,express or im- As to real property.
plied, of the owner ; and a mere By the common law, a judgment
wrongdoer,or other person aeting in is a lien on real property from the
fraud of the owner, cannot, though time of its rendition ; and it binds
in possession of the property, fasten as well after-purchased lands, as
such a charge upon it. And it does lands then possessed by the judg-
not appear that in any case what- ment debtor. Sugd. Tend. 306. 446.
ever a general lien can be created This is a Hen recognized at law.
without such authority or consent. But another lien of extensive eon-
The cases, in which the law will sequence is recognized and enforc-
imply a waiver of a lien, may be ed in equity only ; viz. the lien of a
reduced to the following.(l) Where vendor upon the estate sold for the
there is a special agreement, incon- unpaid purchase money. The early
sistent with the existence of such eases of Chapman v. Tanner, *Vern.
Hen— such as an agreement to give 267. and Potlexfen v. Moore, 8 Atk.
credit ; or where a distinct securi- 272.may have proceeded upon their
ty is taken ; or the possession of own special circumstances. But it
the property is acquired for another is now established as a general rule
specific purpose, and that only. 16 in equity,that this lien exists with-
Yes. 275. Gowell v. Simpson. 4 out any special agreement for (he
Campb. 146. Raitt v. Mitchell, and purpose,and that it equally applies
cases cited supra. (2) Where the whether the estate,which is sold, is
party entitled never has the pos- actually conveyed or not. 2 Dick,
session of the goods, or voluntarily 730. Smith v.Hibbard. 9 Mod. 152.
tsbttjtf parts with the possession. Ambl.< Charles Sf al. v. Andrews. 6 Ves.
v and 1 Stra. ubi sup. 1 Atk. 234. 762. Nairn v. Prowse. 15 Ves. 35*.
Ex parte Shank Sf al. Doug. 101. Mackreth v. Symmons. 1 Scho. &
Wilkins v. CarmichaeL 1 East 4. Lef. 132. Hughes y.Ebarney.i John.
Sweet Sf al. v. Pym. 7 East 5. Mc> Ch. Rep. 308.Garson Y.Green $ al.
Combie v. Daisies. 4 Campb. 291. And this lien is not waived bygiv-
Heywood <§• al. v. Waring Sf al. 2 ing a receipt or taking a covenant,
Eden 181. Ex parte Cheeseman. 5 bond, or note of the vendee himself
Binney 398. Clemson v. Davidson for the purchase money. Gary's
Sf al. 8 Amer. Law Journ. 128. Rep. 26. Hearle v. Boteters. 2 Ves.
But the possession of an agent or 389. Harrison v. South cole <§* al. 3
servant is.for this purpose .the pos- Eq. Cas. Abr. 682. n. Gibbons v.
session of the bailee himself.2 East Baddall. 2 P. W. 291. Coppinv.
629. Man v. Shiffner $ al. 7 East Coppin. 1 Bro. C. C. 420. Black-
ubi sup 4 John. Rep. 103. Urqu- burn &[al. v. Gregson $ al. 1 John.
hart v. M'lver $al(z) When the Ch. Rep. 6 Ves- 16 Ves. 1 Scho. &
parly fails to enforce hi* lien in a Lef. ubi sup. Nor by the taking
reasonable time and is guilty of la- of bills of exchange drawn by the
ches, and the property passes to a vendee on a third person, as a mode
Trin. 3 Jac.
of payment, if the bills are return- JYhirn v. Prowse, & Mils v. Grant
ed unpaid. See three last cited nbi gup. It is questionable wheth-
eases, and 2 Yes. & Beanie 309. er the authorities sustain this doe-
Mills v. Grant. 1 Maddoek's Rep. trine ; and the American decisions
346. Ex parte Feake : But see l seem to establish the general prin-
Mason's Hep. 192. And the rule ciple, that the taking of a distinct
seems to be carried to this extent—- and independent security is per se
that prima facie the purchase mon- a waiver of the lien. 2 Wash. Rep.
ey is a lien, and the burden of proof 141. Cole v. Scott. 4 Wheat, ubi- s
lies on the vendee to shew the con- sup. See Sugd. Vend. 853. A&.&jfoaA Q/K
trary. ibid. But if the vendor take This equitable lien for the pur-
a distinct and independent security chase money is not, however, per-
for the purchase money, the lien is mitted to prevail when it would
gone. Thus if he accept stock, work injustice ; and therefore the
with an agreement, lhat if it should estate, in the hands of a bona fide
not within a limited time produce purchaser without notice, is dis-
the sum named, the purchaser shall charged from the lien. But it of
make up the sum ; the lien is ex- course prevails against the vendee
tinguished. 6 Ves.. 752. Nairn v. and his heirs,and all persons claim-
Frowse. So if the vendor accept ing under them with notice, though
a mortgage of another estate ; ibid, they are purchasers for a valuable
or take a mortgage of the estate consideration. 2 Yes. 622. Walker
sold, for a part of the purchase v. Preswick. 3 Eq. Cas. Abr. ubi
money ; he has no lien for the resi- sup. 3 Bos. & Put. 181. Elliot v.
due. 2 Vern. 281. Bond v. Kent: Edwards. 6 Ves. 95. n. Bowles v. ^f */
See 1 Scho. & Lef. 135. So if he Rogers, Sugd. Vend. 364. S % (?pto.(x*&C
take a note, with an approved in* The question how far this lien
dorser, payable at a future day. shall prevail against an equitable
1 Mason's Rep. 192. Gilman v. title by deposit of title-deeds with-
Brown. 4 Wheat. 255. S. C. Lord out notice, does not seem to have
Eldon, however, seems to consider been fiually decided ; though Mr.
that in none of these cases is the Sugden inclines to think, upon the
mere taking of a distinct security authority of Stanhope s-Earl Ver-
decisive of* the question whether ney 9 that such an equitable title
there is a lien or not ; but that it will give the party a preferable
must depend upon all the eircum- equity, and overreach the lien of
stances of each ease, whether they the vendor. Sugd. Vend- 365* But-
demonstrate the intention of the ler's note to Co* Lit* 200* b* Nairn
vendor to rely exclusively on such v. Frow$e 9 ubi sup* 2 Eden 181.
security. Mackreth v. Symmons, Ex parte Cheeseman*
Broome vs. Wooton.
Cro. Jac. 73. Mo. 762. S. C.
IN trover of certain goods in particular ; the defendant In trover a-
pleaded that the plaintiff* had brought the like action S ain8t A * a
against J. S. for the same goods before (his action brought, *° rmer re . co *
in which suit he so far prosequutus est against J. S. that ^ for co^ver-
he had judgment and execution against J. S. and averred s ; on f ^
that the goods contained in both actions were the same same goods,
Trin. 3 Jac
& execution goods. Upon which the plaintiff demurred ; and it wai
>Ued en!**' " a dj u, lgcd against the plaintiff. And a difference was taken
a goo ar. ^ ^ w | |0 | e cour t 5 where the demand and recover} is of
a thing certain, and where of a thing ineertain. \s where
4 2A ror °' 3 ' tw * are u <>und ia tool, to J. S. jointly and severally, there
Dalison 33. rccover y anc * execution against one is no bar against the
2 B & P. 70. other ; for execution is not any satisfaeion of the KM)/, de-
manded $ according to the books, 4 H. 7. 22. £. 4.— and
f 68 ] E. 4.— and Br. eases. But where a trespass is committed
> *»-V..t .>> * by two, which rests only in damages, and the plaintiff re-
covers against one, ana has execution, there it is a good
bar against the other- Immo it was agreed, that the very
judgment is a sufficient bar; for transit in remjudicatam, and
the thine ineertain is now by the judgment made certain,
and so altered and changed into another dature than it was
at first ; and therefore he cannot resort to demand the in*
certainty again, for the first judgment shall be a bar to it.
The law is the same of a battery committed by several,
and a recovery against one; in an action afterwards against
the other for the same battery, the first recovery is a bar 9
as it was this very term agreed between Hiekman plain-
tiff, and Sir John Poyns and his servants for the battery of
Hickman*(l)
^l) No case has been found, in the property by the judgment is as-
„...*! t which the precise point adjudged signed by Fenner J- as one reason
in the text— -vie* that in the action why it is a bar to a subsequent ae-
of trover^ former recovery against tion. However this may be — the
one of two or more joint tortfeasors distinction taken between the de->
for the same conversion, and a writ mand and recovery of a thing cer-
of execution sued out, is a bar— tain and of a thing uncertain is not
has been otherwise decided- In supported by the authorities. In
Mams v. Broughton, Andr* 19. 2 Claxton v. Swift, 2 Show* 441- 494.
Stra. 1078. which was an action of Skin. 255. 3 Mod 86. Lutw. 882.
trover, the defendant was diseharg- which was assumpsit, (and accord-
ed upon common bail, on the ground ing to the forms of law eaually
that the plaintiff had recovered sounding in damages) it was decid-
judgment for the same conversion ed that a recovery, without satis-
against another defendant ; though faction, against the drawer of a
that judgment was stayed by in- bill, is no bar to an aetion against
junction. The court said the prop- the indorsee The same ground
erty was vested in the first defend- was taken by the defendant's conn-
ant, by the recovery against him, sel in that ease, which is assumed
the plaintiff having damages in lieu by the court in the text; that thething
•v, thereof, and therefore the action uncertain was made certain by the
r .S$£jyj2 could not be supported* See also 2 judgment, and had passed in rem
Ld. Raym* 1216. Lamine v> Dor- judicatam- But it was disregard*
rell. If this principle be correct, ed by the eourt ; and the principle
the decision in the text may be then laid down has been confirmed
supported, though the reasons as- by an uniform course of decisions,
signed for it seem to be unfounded. The doctrine of transit in rem ju-.
Indeed in Croke's report of the dicatam seems to relate only to the
case, (Cro. Jac. 74.) the change of particular cause of action in which
Trio.
judgment is recovered, and to op-
erate merely as a change of reme-
dy from its being of a higher na-
ture than before*
The distinction taken between a
recovery against one co-trespasser,
and one of two or more joint and
several obligors, is equally unsup-
ported by the books. With regard
to co-obligors, the earliest author-
ities shew that a judgment and writ
of execution sued forth is not a bar,
without satisfaction. 2 Brown!.
316. per Foster J. and the Year-
Book cited by him* In 4 H VII.
8. & 45 E 111. 4* it was held that
taking the body of one co-obligor
in execution was no satisfaction,
and that the plaintiff might im-
plead the other and commit him
also. Brook's New Cases- ill.
112* And so is the law at this day.
Bae. Abr. Obligations* D- 4. In 2
Show. 394- Dyke v. Mercer,it was
decided that the seizure and sale
by the sheriff on a fieri facias, of
the goods of one j >int and several
obligor, was no bar to an action a-
gaiust the other — that there was
no satisfaction, unless the plaintiff
had received the money* See also
Cro- Car* 75. Whiteacres v. Ham-
kinson- So in a very recent case
in the King's Bench, where to an
action for use and occupation the
defendant pleaded that before ac-
tion brought, the plaintiff took and
detained, as a distress for the rent,
goods of value sufficient to satisfy
the same ; the plea was held bad
for not shewing that the rent was
satisfied* 1 Bamew. & Aid- 157.
Lear v- Edwards* The doctrine
asserted in the text — that a recov-
ery and execution against one co-
obligor is no bar to an action against
the other, because it is not a satis-
faction — is therefore well estab-
lished. The law is the same in
relation to co-trespassers- In Bro.
Abr* Judgment, pi. 98. it is laid
down that " if two commit a tres-
pass, I ean have several actions
3 Jac.
[68 a]
against them and recover entire
damages against each and have ex-
ecution ; and one defendant cannot
plead that the plaintiff has recov-.
ered against the other for the same?'
trespass and taken him in exe
eution." In Morton's case, Cro,
Eliz. 30. the court doubted at first
whether judgment with execution
and satisfaction against one co-
trespasser could be pleaded by an-
other ; and though they held that
it might, yet they seem to have
considered it clear, that without
satisfaction the plea could not a-
vail. In Cocke v. Jennor, Hob. 166.
it is said that the plaintiff may
bring several actions against co-
trespassers, and elect de melioribus
damnis ; but that he can have but
one satisfaction. And this is the
settled doctrine, as appears from
the current of authorities. 11 Co.
5. Heydon'scase. W. Jon- 337. Cor-
bet v. Barnes- Hetl. 20. Hat son 19 s
case* Sty. 20- Barkery* Martin* 3
Bur. *353. per Lord Mansfield. 1
John. Rep. 290. Livingston v. Bish-
op- Bae* Abr- Damages. D- In
Drake v. Mitchell & al 9 3 East 258.
Lord Ellenborough says, a judg-
ment recovered in any form of ac-
tion is but a security for the orig-
inal cause of action until it be made
productive in satisfaction to the
party; and therefore till then it can-
not operate to change any other col-
lateral concurrent remedy, which
the party may have.
As to the rules for assessing dam-
ages and taxing costs in joint and
in several suits against co-trespass-
ers, and electing de melioribus dam-
nis, see Bae Abr. Damages* D« 4.
Bui. N- P. 20. 11 Co. ubl sup- Cre.
Car- 54. Player v. Warn & al. 1
Wils- 30- Sabin v. Long* 5 Bur.
2790. Hill & al- ▼. Goodchild* 4
Esp. Rep. 158. Brown v. Mien &
ah 4 Mass. Rep. 419. Propers of
Kennebeck Purchase v- Boulton &
al. 1 John. Rep. ubi sup- 6 ib. 26.
Thomas v. Ramsey* 1 Hen- & Mm*.
Trio. 3 Jac
168 6]
488. JlmmaneU v Harris & af. 2 joint only, or if the second suit is
Lil. Ent. 018. against both, a former recovery
Though a judgment,without sat- against one is a good bar fur both.
isfaetion, against one of two joint 6 Cranch 253. Shehytkal. v. Man-
and several obligors or promissors, deville. 13 Mass. Rep. 148. Ward
is no bar to a recovery against the v. Johnson & aL/$/Qc&9.
other; yet if the engagement is £/
Chanel vs. Robotham.
IN trespass, quare bona et catalla sua cepit, viz. urtum
A b d Bcriptum obligatorium, in quo continetur, quod 3.8. tenetur to
not °be °d6- tne pl*" *^ in * 00 ^ an( * declares of several other goods in
manded by special, and among others, de una harna, Anglice. a crow of
the name of iron ; and upon non culp. pleaded, it was found for the
goods and plaintiff, and damages assessed. But adjudged, nil capiat
chattels. Qu. ^ r billam; for by Fenner, Yelverton and Williams, when
a man expresses in Latin a thing to be taken by wrong, and
Englishes it ; if the Latin word has no such signification
as is Englished, it is not good ; and in this case hama is not
Latin for a erow of iron, but for an engine with which a
house on fire is pulled down ; but if he declares on a Latin
word, which has no perfect signification, nor so elegant as
mucht be ; vet upon his Englishing of it whereby the plain-
tiff's meaning appears to the court, the plaintiff shall re*
eover, and the jury shall he intended to give damages ac-
cording to the declaration in Latin, not having respect to
the Englishing; hut when there is a proper Latin word to
express the thing taken, there if the plaintiff declares by
another word, it is not good. But that was taken by Pop-
ham and Oawdy to be too nice, and to tend to the subver-
sion of several former judgments. But per totam curiam
the action does not lie; because he declares of divers goods
and chattels ; aud among others, he declares of the taking
of a bond $ for a bond, or the value of it cannot be demand-
ed by the name of goods and chattels ; for by such general
name a bond does not pass contrary to 25 H. s. Dy. 5. the
. opinion of Pitzherbert.(l) And although it was objected,
that the parchment and wax are bona et catalla, and may
pass by that name ; yet for as much as the debt included
(1) It is well settled, according that place at the death of the tes-
to Fitzherbert's opinion, that bonds tator. 1 Bro. C C- 127* Moore v.
pass by a gift, grant or bequest of Moore. 1 Ves- 273- Chapman v.
goods and chattels- Dyer 5> b. n. Hart 1 Scho. & Lef. 3 18- Fleming
>,. /+ 4 Mod- 156. Cook V'Boslnger. 1 P. v. Brook.
W. 367- Anon- 2 Roper on Leg. Trover lies for conversion of a
239- But as bonds admit of no lo- bond : Cro. Car. 262. Wilson v.
eality, a bequest of goods and that- Chambers. Holt 498. Arnold v.
tels in a particular place will not Jefferson.' 1 Ld. Ravm. 276. 8. C.
pass bonus, which happen to be in But as it lies only for conversion
TrJn. 3 Jac-
and wrote upon it is the principal, the words of the grant v [ 60 ]
ought to comprehend the name of the principal. But (per Cr.Jac. 637.
Popham) if a man grants to J. S. all his goods and chattels H ? r ^5' **l*
in such a box, and there are bonds in that box, there the "St" ^
bonds pass by reason of the special reference expressed by Cr. El. 723.
the grant Quod curia concessit.
of personal goods & chattels, there modern practice. The case in the
can be no reason why a bond should text, therefore, may be considered
not be thus denominated in the de- as wholly overruled. 4 Mod. tiki
olaratien. And such is the uniform sup.
Lee vs. Lacon.
Cro. Jac. 70. 1 Brownl. 202. S. C.
TRESPASS ; the action was laid in com. Salop, and op** Venire facias
on non culp. pleaded, & venire facias was made vicecom. with directed to &
a space for Salop, but Salop, was not named at all, and by sheriff, omit-
virtue of this writ the sheriff of Salop, empanelled the jury, J^theco^tr
who found for the plaintiff; and the matter supra was al- may be £.
ledged in arrest of judgment, viz. that the venire facias was mended after
vitious, so a mistrial. But by Fenner & Williams justices, verdict,
it is as if no venire facias had been awarded, and so aided by
the statute of jeofails ; for inasmuch as the county, (viz. Ante 64.
Salop.) is left out and omitted, the sheriff of Salop, had no
power nor authority to summon the jury, because the writ,
which is his warrant, was generally (vicecomiti) and is not
of any county. But per tot am curiam, the better way is to
amend it. In which this difference was taken, where the
aetion is laid in com.Salop. and upon pleading specially, the
issue is drawn to a foreign county, there the entry and the
award of the venire facias upon the roll is special, viz. to
the sheriff of the eounty where the issue to be tried arises ;
and therefore in sueh ease a writ of venire facias vicecomiti
(with a blank) will not be good, because it stands indifferent
to the sheriff of which county the venire facias was intended
to be awarded ; and upon that ineertainty it will be ill. But
where the general issue is taken, or the matter is triable in
the same eounty where the action is laid, there the venire
facias in the award upon the roll is only, fiat indejurata,
whieh ought of necessity to be to the sheriff of the eounty
where the action is brought, and cannot be intended other*
wise ; and therefore it is but the fault of the clerk, whieh
shall be amended: And so it was. Yelverton pro quer. (1)
(1) See ante 12. n. 2.
13
Trin. 3 Jac.
Baily vs. Moone.
1 Brown). 203. S. C.
Judgment TRESPASS of battery in Plymouth before the mayor
reversed, be- and bailiffs there; upon non culp. pleaded (which issue
cause daroa- appeared afterwards to be waived, and judgment to be
writ °of in- 8 lven * or tne plaintiff) a writ of inquiry of damages
quiry were wag directed to the Serjeants of the maee there, th At per
[ 70 ] sacramentum 12, &e. they should inquire &e. and it was
found before made returnable ad proximam curiam before the mayor and
one officer, bailiffs : And upon a writ of error brought in the Ring's
when the Bench, it appeared by the record returned, that the writ of
writ wai dl " inquiry of damages was taken before the mayor of Plymouth
other? ° aD " wno * 8 a k° J 00 ^ °f tne court, and for that reason it was re-
versed ; for the writ warrants the inquiry of the damages to
be before the Serjeants at maee, who for this purpose by
the writ are made distinct officers ; then an inquiry before
the mayor is not warranted by any writ, and by consequence
judgment to recover such damages taxed before a wrong
officer, to whom the writ was not directed, is erroneous.
(fuod tota curia concessit. Yelverton pro qnerente.
Vale vs. Egles.
Cro. Jac. 69. S. C.
Assumpsit THE plaintiff declared in the eourt of Coventry on an
Jiesforabal- assumpsit, that whereas the plaintiff and defendant such a
takied^pon ^ av * ns * mu l computassent) viz. i Mali, and the defendant
an insimul was f° una * i° arrears loL he in considerations inde promised
computas- to nay it 10 Mail after ; and declared that the defendant
tent. had not paid it the same 19 die, although requisitus ; to his
Judgment damages 10/. And upon non assumpsit pleaded, it was found
reversed be- f or the plaintiff, and damages given to toL and for costs 20s.
peareVonthe an< * J UQ S nie,lt accordingly; and a writ of error was there-
record that u P on brought. And 1. It was assigned, that this action does
plaintiff had not lie, because no certain duty or sum of money appears
no cause of to be due, upon whieh to ground the action. But it was
action when answered by the court, that by the accompt between the par-
he entered t j egj t jj at wn j c h wag before uncertain is reduced to a certain-
ls p am . t ^ an( j o f guc | i emulation in law, that the party may have
his action of debt, and by consequence an assumpsit on the
consideration in law, viz. the debt precedents 1) 2. It was
(l) It is believed that this is the 2 Mod. 44. 1 Freem. 195. S. C.
first reported case, in which inde- that an account stated,and a prom-
bitatus assumpsit on an account sta- ise to pay the balance found due,
ted, was supported* might be pleaded in bar of ah ac-
It was deeidcd in the ease of tion of assumpsit on a general
Milward v. Ingram, 1 Mod. 200. indebitatus and a quantum meruit
Trin. 3 Jac.
moved, that the party has recovered more than he has de-
clared for 5 for he has declared to the damage of 10/. only, c EJ
and he has judgment to recover til. To which it was an- 668 '
swered by the court, that the judgment is good ; for the 2 Rol.
judgment for the damages is not more than the plaintiff has 447.
declared ; for the jury have severed the damages and the
costs, viz. damages tol. and costs 20s. and accordingly shall
the judgment be taken to be ; and damages and costs are
given in the action for several causes ; damages for the
loss sustained before the action brought, and costs for the
trouble and expense in suit ; otherwise it is a true rule, that Anle 45
the plaintiff shall not reeover more in damages than accord-
ing to his declaration ; for the plaintiff is by the law taken
to be best conusant of his own damage, and so are the books
13 H. 7. 2 H. 6. 3 H. 6. to be understood. 3. Error was
moved that the plaint was entered 16 Maii 44 Eliz. and the
plaintiff declares on an insimul computassent 4 Maii the
same year, and that the defendant was then found in ar-
rears, and in considerations inde he promised to pay the
plaintiff the lof. 19 Mail after. And thereby it appears that
the plaintiff at the time of the entry of his plaint, which
was 16 Maii had no cause of action ; for till 19 Maii past,
in which the promise was to pay the lol. there was no
. breach of promise, and by consequence no cause of action.
And for this reason, being apparent within the record cer-
tified, the judgment was reversed.' Yelverton pro defen*
dpnte.(2)
544.
Rep.
[71]
That case was overruled, Id Mod.
538. May v. Kins* Sayer 269. JMh-
erly v. Evans, l Bur. 9. Roades v.
Barnes. 1 Bl. Rep. 69. S. C. on the
general rule that one simple con-
tract does not extinguish another.
In Knowles & at v. Mickil & al.
13 East 248. it was held that an
admission by the defendant, after
he had taken goods of the plaintiff,
that he had agreed to pay a cer-
tain sum for them, would support
a count upon an account stated.
But a mere confession by the de-
fendant, that he owes the plaintiff
a certain sum, will not support
such a count. Clayt. 87. KHrbie v.
Emerson.
(2) When it appears on the face
of the record, that the cause of ac-
tion accrued after the commence-
ment of the suit,the defendant may
demur, move in arrest of judgment,
or bring a writ of error. This is
the general rule. 1 Tidd's Pract
295. 1 Chit. PI. 265. Carth. 113.
Venables v. Daffe. Doug. 61. Ward
v. Honeywqod. 1 Caines Rep. 69.
Lowry v. Lawrence. 3 John. Rep.
42. Cheetham v. Lewis. In this
last case, the court say, " though
generally the day may not be ma-
terial, yet this must always be un-
derstood with this limitation, that
it is laid to be before the com- ^a
mencement of the suit." £ 2. (2fer>7« ki-
ln Massachusetts and New York,
issuing the writ is the commence-
ment of the suit 5 and the teste of
the writ is prima facie evidence of
the time of its issuing. 4 Mass.
Rep. 263. Bemis v. Faxon. 1
Caines & 3 John. Rep. ubi sup. In
the King's Bench, filing the bill is
the commencement of the suit ; the
previous steps are mere process to
bring the party into court. Cowp.
454. Foster v. Bonner. 7 D & E. 4.
Best v. Wilding. Hence it is no
Trin.
T7iaJ
objection in England, that the writ
issued before toe cause of aetion,
if the bill is not filed till after-
wards ; though if the defendant is
arrested before the cause of aetion
exists, he may perhaps be entitled
to a remedy against the plaintiff.
4 East 75. Swancott v. Jrestgarth.
If the bill is entitled generally
of the term, it relates prima facie
to the first day of the term ; and if
the cause of aetion does not arise
till afterwards, the defect is fatal.
But the true time of filing the bill
may be shewn, and if the cause of
aetion is prior thereto, though af-
ter the commencement of the term,
judgment will not be arrested nor
reversed on error. In modern prac-
tice, the court give leave to file a
new bill and amend by it. Sty. 72.
Symone v. Low. T. Jon. 87. Dod*
son Y.Bell. 3 Keb. 698. 2 Lev. 176.
8. C. 8 Lev. 17. Tatlow v. Bate-
man. 8 Salk. 9. Sawen v. Hulbert.
iD&E. 116. Fugh v. Robinson.
7 ib. 474. Dickenson v. Plaisted.
See Bac Abr. Pleas & Pleadings.
B. B. in notis. 2 Saund. 1. n. l
Tidd's Praet. & 1 Chit. PL ubi
sup. Forrest's Rep. 110. Attorney
General v. Brown. When it ap-
pears in evidence that the eause of
action arose after the suit was
commenced, the plaintiff will be
nonsuited, ibid.
In Bemis v. Faxon, ubi sup. it
was decided, on the authority of
Sorrel v. Lewin, 8 Keb. 364. that
a declaration, laying a promise af-
ter the teste of the writ, is good af-
ter verdict, though it woula be bad
on special demurrer ; on the ground
that a verdict could not have been
found for the plaintiff, but on evi-
dence of a promise made before
the commencement of the suit. In
Waring v. Fates, 10 John. Rep.
119. it was held that where a bill
is entitled generally of a preceding
term, & the cause of aetion is laid
on a day subsequent, it is bad on
general demurrer. See also cases
3 Jac.
supra. The decision ia Bemis v.
Faxon seems to impugn the doc-
trine established in England and
recognized in New York. It is di-
rectly contrary to the ease of Ven-
ables v. Daffe, and seems not to be
parallel with Sorrel v. Lewin,
which stands thus-—" Indebitatus
assumpsit 1 Jan. 26 Car. 2. which
is not yet come ; to which the de-
fendant pleaded infancy; the plain*
tiff replied it was for necessaries,
on which there is issue and ver-
dict." The defendant's plea put
the ease upon the sole ground that
the goods were not necessaries,and
therefore, as it would seem, ad-
mitted a pre-existing debt for them,
if they were necessaries : The re-
pugnancy in the declaration seems
to have been cured by the defend-
ant's admission of a past contract.
Besides— if the time alledged was
before the verdict, it was as if no
time had been stated, and a spe-
cial demurrer only could have
reached the defect ; as will appear
by cases cited below.
Nor is it readily perceived why
the jury, in Bemis v. Faxon, could
not well find a verdiet for the
plaintiff without proof of a prom-
ise made before the commencement
of the suit. The time alledged in
the declaration was past at the day
of trial. The issue was on the
promise in manner and form as the
plaintiff had declared; and it being
laid in the declaration as made be-
fore the trial, though after the
commencement of the suit — why
should the jury hesitate, on proof
that the promise was ever made, to
find for the plaintiff? The prom-
ise was not in writing, and the day
alledged was not material. Proof
of a different day would not have
effected a variance $ though if the
proof had been of a promise after
the teste of the writ, the plaintiff,
(see cases supra) might have been
nonsuited, if the objection had been
taken at the trial.
Trin. 3 Jac.
day
There is a class of eases on torts, day is immaterial. But the
in which a digtimtion is made be- is equally immaterial in most
tween a time not yet come, and a eases of parol promises. Where
time after action brought, but be- the day is material, as on promis-
fore verdict If the time is alledg- gory notes, &e. it is presumed, af-
ed after action brought, judgment ter verdiet, that they were proved
will be arrested. But a time not as laid ; and error lies if the date
yet come, as it is an impossible is prior to the commencement of
time, is considered as if no time the suit. Doug. 61. Ward v. Hon*
had been alledged ; and this being eywood. See 10 Mod. 341. Stafford
mere matter of form, cannot be ob- v. Forcer.
jeeted to after verdict. 2 Salk. 662. The principle of these cases of
Acton v. 2fcZs.Com. Rep. 12. Carth. trespass seems to militate with the
389. 6 Mod. 102. 3 Salk. 8. 9 case of Bemis v. Faxon, and also
Mod. 286. S. C. Wall v. Duke, with the reasoning of the court in
«ited Com. Rep. 13. These were Sorrel v. Lewin. See 2 Saund. 170.
actions of trespass, in which the Hambleton v. Veere, & 171. a. n. 1.
Paler & Bartlet vs. Hardyman & his Wife.
1 Brown!. 87. S. C.
THE plaintiffs brought an action of debt in the Common A judgment
Fleas against Paler &4iartlet, quod reddent eU unum doli- j D the di ?-
um ferri, ad valentiam 01. and declared upon a bill, prue- ^Jj^ Ui jj
dictum dolium deliberandi within sueh a time ; and that the i8 error {f a
defendants had not delivered it accordingly, to damage, capias is ta-
&c. and upon non est factum pleaded, it was tried against ken out be-
the defendants ; whereby judgment was given, quoaquer. fore the re
recuperent dolium ferri, vet valorem ejusdem, ad damna, Sfc.
and thereupon a writ issued ad distringend. the defendants,
quod reddant proedictum dolium ferri vel valorem ejusdem,
et si non reddant dolium, tunc per sacrament, $c. inquirat
quantum idem dolium valet, and before any return of this
writ of inquiry of damages, the plaintiffs in the Common
Pleas took a capias upon the judgment, and an exigent upon
that ; wherefore the defendants brought a writ of error up-
on the matter aforesaid ; and it was adjudged error for two
reasons : 1. Because the judgment is in the disjunctive, quod g' g / &c '
quer. recuperent dolium ferri, vel valorem inde $ which ought
not to be, but only, quod recuperent dolium ferri et si non
valorem inde; as in detinue ; for in this case it appears by
the judgment that the plaintiffs may elect which they will
have, viz. dolium, vel valorem, which should not be;(f)
for if the ton of iron is to be had, they shall recover that
only ; but if it is not to be delivered, tunc valorem inde, and R . R
not* before. 2. Because the judgment is not perfect before 12 6.°Noy 8o!
the writ returned, which issued to the sheriff to distrain the styie 109.
defendants rafrferc dolium, and if not, to inquire of the val- l And. 144.
(1) See 1 Craneh 207. n. per monwealth v. The Pejepscut Pro-
Chase J. 7 Mass. Rep. 414. Com- prietors.
turn of the
writ of in-
quiry.
E»J
Trin. 3. Jac.
ue; and before the return of the writ, nothing in certain
appears whereon to ground a capias, or other writ of exe-
cution ; for the judgment comprehends no certainty, but is
to be made certain by the return of that writ. Quod iota
curia concessit. Yelverton pro quer.
Mich. 3 Jac.
Stile vs. Heape.
Cro. Jac. 80. 120. S. C.
To say of one THOU hast most perjuredly presented me at the visita-
thatheperju- tion. Upon these words the plaintiff brought the action,
redly preien- and showed that he was a sidesman in the parish of D.
d^s*notkn' w kere, ^ an< ^ was • wora *° cxeeute his office trnljr > and
port a cer- to P reg€nt offences within the parish ; and that he, vinculo
tain charge juramenti astrictus 9 presented the defendant at the bishop's
of perjury. visitation, wherefore the defendant spoke the words. And
it was found at the assises for the plaintiff; and it was
1 Sid. 2*0. moved in arrest of judgment, that the words are not action-
able. 1. Because the defendant does not precisely affirm
any perjury to be committed by the plaintiff, but speaks by
a term of similitude (viz. perjuredly;) as if one says, Thou
hast thievishly taken .my money out of my purse ; these
are not actionable. The same law if one says, Thou hast
dealt traiterously with J. 8 ; no aetion lies : But qumre, if
they were, Thou hast dealt traiterously with the king ; by
Yelverton justice. The second reason was, because the
plaintiff does uot show what presentment he made at the
visitation, so that it might appear to the court to be within
the compass of his office ; for if the plaintiff presents one
at the visitation for a quarreller, or for a thief, it is out of
the bounds of his office, and no perjury, although it be
false, because it is a matter not examinable there. By
Fenner, Yelverton and Williams ; Popham being absent.
Harris vs. Dixon.
Cro. Jac. 158. S. C.
ed 'and^su- FRANCIS Harris hath procured and suborned on Smith
borned S. to to come thirty miles to commit perjury against his father,
commit per- before my lord of Winchester, and gave Smith 10l. to that
jury, & gave purpose : and 40/. damages given to the plaintiff. And in
S. 10/. to arreg t of judgment Yelverton moved that the words are not
pose 71 *are acl ionable, because it does not appear that my lord of Win-
that
actionable Chester had any commission or authority to take an oath,
words. and then it cannot be perjury; for he is not any judge
Mich. 3 3ac
known competent to take an oath, unless by virtue of some Cr.Car. 337 ^
commission, which ought to be shewn to the court. Quod
fuit concessum per Fenner, Yelverton and Williams ; Pop*
ham being absent Yelverton for the defendant.
Carpenter vs. Colins. [ 78 ]
Mo. 774. 1 Browol. 88. S. C.
J. NORR1NGTON had issue a son and a daughter, and A devised
devised that his son should have his land at the age of twen- t fj at 1 ^ i8 . ,on
ty-four, and gave 40/. to the daughter, to be paid at the age Jg° ,*J \™
of twenty-two ; and further willed that Carpenter the plain- the age f
tiff should be his executor, and should repair his houses, twenty-four,
and have the oversight and doing of all his lands and move- and hit
able goods till the several ages aforesaid, and died. Car- daughter 40/
penter the executor demised the land to Colins at will, ha- £™ *** * f
bend, afesto die Mich, quamdiu partibus placuerit, yielding a^that'the
yearly Si and brought debt for the 32. and shewed that executor
Colins entered and occupied a festo die, Sfc. usque ad fes- should hare
turn Mich. And upon nil debet pleaded, the jury found the the oversight
matter supra, and that the son died, (but did not find of *? d doi y °£
what age he was at the time of his death, but only that g 8 odg a ^ th *
the daughter, at the time of the death of the son, was nine- J aid 8eve ral
teen xj- non amplius.) And found the lease made by the plain- B gei; the ex-
tiff, and that the lessee by virtue thereof entered, and con- ecutor took
tinued possession a festo die Mich, for a year and more ; no inte r «*t
and found that within that year the daughter entered, and in the ,w ~*
that the defendant attorned to the daughter, and refused h adth?ove£
to continue tenant to the plaintiff. And by Fenner, YeU 8 j g ht for the
verton and Williams, judgment was given against the plain- use of the
tiff; for, by Fenner and Yelverton, the plaintiff took no son.
interest in the land by the will ; for the oversight and do-
ing of his lands shall be intended only in the right of the
heir, and to his use, because the testator thought not his
son of discretion and government till twenty-four years,
and in the mean time appointed the executor to oversee
and order the land to the profit of the heir who wanted
discretion ; like to 28 H. 8. Dy. 26, where cestuy que use
declared, that J. S. should have tarn pubernationem, Sfc. cro. EI.678.
puerorum, quam the disposing, setting, letting, and order- 734.
ing of his lands : and per cur. J. S. has it only to husband
for the profit of the children, and not otherwise. (1) But
Williams justice conceived that he had an estate on a HnY-
itation to be determined at the son's age of twentf -four,
and beeause it does not appear at what age he died ; (for
that is not found by the verdict) ergo it is incertain, and
therefore the entry of the daughter lawful ; for the limita-
(l) See Bae. Abr. Leases. 1. 10. 147. Ex parte DavUs. 9. Mass.
Pow. on Dev. 200. 301. 302. and Rep. 372. Reed & aL v. Reed. 2
the cases there cited. Yes. Jr. Day 338. Everts v. Chittendon.
Mich. 3 Jac.
tion goes oily to tbe age of the ton, and not to the age ef
the danehter ; for the daughter's age shall be intended to
be set down for the receipt of her legacy of 40& and for
no other purpose. Then it was moved that within the
time, in whien this rent demanded is supposed to be incur-
red, the defendant has determined his will 5 as appears by
. the verdict, he attorned to the daughter, and refused to be
tenant to the plaintiff. But by Fenner and Williams, it
is found by the verdict, that by force of the lease made by
the plaintiff, the defendant entered and occupied for all the
time contained in the declaration, and more : and also that
.. a tenant at will cannot determine so short a time before
I ; * J the end of the year $ for that would be mischievous to the
lessor, that his tenant at will should determine his will,
and deny the occupation two days before the end of the
year, when he has taken the whole profit of the year.
# Kejl 65#b (And re vera, vide £1 H. 7. Croke's Reports,* and there
" potet that lessee at will cannot determine his will within
Aleyn 4. the year, to the prejudice of the lessor, but that he shall
Cro. El. 775. answer the whole rent reserved.) But Yelvertun contra ;
% Bur. 1034. and also (by him) the declaration is not good ; for by the
3*1?* E* 3 i3 P' a * l| tiff ,, ovn shewing it appears, that there wants a day
462* °^ ^ e oeeo P a tion for a year; for he declares that the de-
fendant occupied it afesto die Mich* usque adfestum diem,
Sfc, whereby Michaelmas day is excluded. But nota, that
it does not appear the lessee was expelled by the plaintiff
Cr. Jac. 300. wno wa * lessor; and no entry of a stranger upon him (al-
1 Salk.209. though it be by his agreement) shall determine the lease
Ld.Ray. 171 against the lessor ; for it is covin, if the lessor is not privy
and acquainted with. Quod fuit concessum by the other
justices. But all agreed in the title against the plaintiff.
(Quod nota) Popham being absent; who on tbe report of
the case by Thomas Warr (as Warrsaid) was of opinion,
that the plaintiff took an interest by the words of the will.
Nota, Yelverton pro quer.
Faldo vs. Ridge*
Cro. Jac. 206. Noy 129. S. C.
in bar of & THE plaintiff declared for a trespass in Great-long-
treipass by mea de in D. 12 Mail anno l. with continuance, to his data*
efficient" a S e ' &e * The dejfendant Ponded protestando, that the
for the^de- trespass is not continued modo et forma, Sfc. pro placito,
fendant to that at the time of the trespass he was possessed of a close
plead gen- called Wood-end in D. for a certain term adtunc et adhuc
tratiy his ventur. cuidam clauso, called Little-long-meade, contigue
possession of adjaeeii. and that Great-long-meade to the same close,
that he*' ut ea " ea * Little-long-meade, similiter est contigue adjacens et
in the cattle eadstens in D. prcedicta. Quodque the plaintiff similiter
to feed— tempore mio, Sfc, was possessed of the said several closes,
without itat- called Little-long-meade and Great-long-meade, for a cer-
Mich. 3. Jac.
tain term then to come; and that the plaintiff jfltoiftcto ing upon
tempore quo, <§*c rfcfaift reparare, facere%and manutenere whose lease
sepe$> Sfc. tarn inter the close called Wood-end, and the °. r for * hat
close called Little-long-meade, quam inter Little-long- tl , n i c; IR . l \
neade and Great-long-meade ; and that the defendant »o J^ffiS
possessed of the close called Wood-end, tempore quo, #c. erfl j/y that
poeuit averia sua prmd* into the same close called Wood- the plaintiff
end, to feed there $ and said in facto, that the plaintiff ought to re-
tempore quo, $c.permi$it sepes et fensuras inter the dose P air the fe*-
— -~|«— -ww~— - ~~._..w. t ^pw. >^__ 7 .w,« . ww.. «...w ....... woat title &
im* rtparat. $ whertbt the eattle aforesaid pat by the de- in Whatman-
fendant into Wood-end, per fracturamsepium^ $c. between ner.
the said close called Wood-end, and the said close called
Little-long-meade, in, per et trans, et extra Little-long*
meade usque in Great4ong-ineade in quo, $c. entered, and
the plaintiff's grass adtuncand ibidem crescen. in the same*
elose, in Which in default of sufficient reparation, &e. con*
culceverunt and consumpserunt modo and forma prout the
plaintiff has declared, which is the same trespass, &*•
And two exceptions were taken to the bar. i. Because
the defendant pleads generally, that he was possessed of
the elose called Wood-end, and does net shew of whose*
lease, nor for what time $ and that is issuable and travers-
able on the part of the plantiflf, as appears 21 Eliz. Dy. Dyer 365. b.
But per cur. he need not, because the interest of the close
called Wood-end is net in question ; bat is merely collat-
era! to the thing in question, and is but a conveyance to ^ Mod^Vo.
the subsequent matter ; for whether the defendant is pos- 3 Mqq] j3£ a
sessed or seised by title or by tort, the possession and oeeu- Vide Ltrtw.
pation of the land is sufficient to justify ihe putting in of 1492. coot.
the cattle into that elose whereof he is possessed, although
it be bat at wilh(l) The second objection was, because
the defendant says only quad quer. debuit repatare, $c. and
does not shew by what title, and in what sort; as 19 H. 6.
83 b. and 21 H. a. & a. are ; where also this word {debuit)
cannot make an issue triable by the country 5 for every
man's ground has an enclosure in law, the bounds whereof
his cattle ought net to pass without shewing a special rea-
son, as covenant or prescription to make an enclosure in
faet. Bat per curiam nan allocate ; for the difference is,
where the right of enclosing to charge the inheritance w
in question, and where the plea goes only in excuse of a
trespass $ as in curia claudenda, he ought. to shew the title
in the debet et solet; for that is only in the right, and
hinds the inheritance forever. 22 £. 4. curia claudenda 2.
(1) See l Sannd. 846. n. 2. 2 ing in such cases is clearly stated,
Saund. 118. a. n. 1* 284. n. 8. Com. and the authorities collected and
Dig. Pleader. 3 M. 30- 1 Chit. PI. compared. 1 Freem. 3O0< Serle v.
356. 868. 2 ib. 587. n. 8 Selw. N. Summons,
P. 1081. where the form of plead-
46
Mich. 3 Jac.
it E.4. 7. and 8* H. 6. Barre 168. bat in this ease it goes
only in excuse of a trespass hac vice ; and also the defend-
ant is a stranger to the plaintiff's title, and cannot be pre-
sumed to know by what title he ought to repair ; as 19 H.
6. 33. b. if the tenant in a real aetion pleads jointenaney
on his own part, he ought to shew of whose feoffment or
gift, because he well knows how he came to the land ; but
if he pleads jointenaney on the part of the plaintiff it is
otherwise; for he may well know that a stranger has title
with the plaintiff, and yet be ignorant by what title. So
here, the defendant may well know that the plaintiff ought
to repair the fence, ana yet not know by what title this
[ 76 ] reparation ought to be made.(£) And (per Popham) it is
good policy for the defendant in this case to be sparing in
setting down the plaintiff's title lest he should mistake it,
and so be tricked ; and therefore the bar is good by the
v manner. And judgment was given accordingly by Pop-
ham, Fenner and Velverton ; Williams being of a contra-
ry opinion. Yeiverton mo defend. Hill. 5 Jac. this judg-
* Nov 189 ment was reverse ^ * n "* e Exchequer,(3)* and ^ upon the
1 Sbow.127. record returned into the King's Bench, they gave judgment,
t Cr.EI.74e! that the plaintiff should recover, contrary to the first judg-
4 Bur. 2156. ment : for otherwise they said the law would be defeet-
8490. ire*(4) And a precedent was shewn in fWinehcomb's
case, 38 Eliz. where the same course was taken.
(2) See 2 Chit. PI. 349. n. b.
557. n. c. and the cases there cited,
which shew that the general alle-
gation of the defendant's obliga-
tion to repair, is sufficient in a dec-
larationi because the plain tiff is not
supposed to know the nature of the
defendant's obligation. The same
reason seems to apply to a plea, as
in the text, where the defendant
cannot be supposed to know the
nature of the plaintiff's obligation.
3 D & E. 768. Rider v. Smith, &
the cases in the preceding note.
(3) The cases cited in the notes
above shew that this reversal was
erroneous, and that the decision of
the King's Bench conforms to the
present established rules of plead-
ing.
(4} Where
>r the
jment is given
for the plaintiff^ and the defendant
brings error, there shall only be
judgment of reversal ; but where
the plaintiff brings error, if the
judgment is reversed, the court
shall give such judgment as the
court below ought to have given.
1 Rol. Abr. 774. 2 Saund. 256.
Green v. Cole. 1 Salk. 262. Farker
v. Harris.
In tfie case of Phillips v. Bury,
Skin. 514. 1 Salk. 403. Carth. 319.
1 Ld. Raym. 10. Lord Holt says,
" there would be a difference where"
judgment was given upon demur-
rer, and where upon a special ver-
dict : Where it is upon a demur-
rer, the courts above ought to give
a judgment for the plaintiff (if
they reverse that for the defend-
ant) and then it is sent down, and
a writ of inquiry goes ; and upon
that the court below gives a final
judgment. But where it is upon a
verdict, then, if they reverse a
judgment, they ought to give the
same judgment that ought to have
been given at first ; and that judg-
ment ought. to be sent to the court
below." Accordingly, where judg-
ment on a special verdict in eject-
Mich.
meat was given for the defendant,
in the King's Bench, the court of
Exchequer Chamber, having re-
versed it, gave leave to enter up
judgment of reversal, and also that
the plaintiff should recover his
term, damages and' costs. 1 Bos*
& Pul. 80. Denn v. Moore. Serjt.
Williams, in a note to the case of
Jaques v. Cesar, 2 Saund. 101. u.
says, " when a judgment against
the plaintiff is reversed on a writ
of error brought in the King's
Bench, that court, having the re-
cord before them, may in all cases
give such a judgment as the court
below should have given ; and if
neeessary, may award a writ of in-
quiry to assess the damages. And
so when a judgment is given a-
§iinst the plaintiff, in the King's '
ench, on a special verdict, oy
which the damages are assessed,
the Exchequer Chamber or House
of Lords may, in ease of reversal,
give a new and complete judgment
for the plaintiff to recover the
damages. But where the damages
are not assessed, as when judgment
is given on demurrer, the last men-
tioned courts, not having the rec-
ord before them, but only a trans-
cript, cannot give a new and com-
}>lete judgment, but only an inter-
oeutory one quod recuperet, and
the transcript being remitted, the
court of King's Bench will award
a writ of inquiry and give final
judgment." He cites Phillips v.
Bury, and the case in the text.
It is generally said in the books,
that the House of Lords and the
Exchequer Chamber have only a
transcript of the record before
them, but that the King's Bench
have the record itself. March 72.
pi. 109. Kent C. J. says the Su-
preme Court of Errors inN. York
have only a transcript of the rec-
ord of the Supreme Court ; but the
Supreme Court have the record it-
self of the inferior courts. lCaines
9ep. 587. Livingston v. Rogers.
3 Jac.
[7*a]
But though in legal intendment
there may be a difference in the
eases, there seems to be none in
fact There is only a transcript
in any case. See 2 Saund, 101. nu
b. March 10. pi. 27.
The true reason, why the Ex-
chequer Chamber and House of
Lords cannot enter the new judg-
ment in cases where the damages
are not assessed, seems to be that
they have no jury, and cannot a-
ward a writ of inquiry. The
King's Bench have a jury, and
therefore when the judgment of
the Common Pleas is reversed in
that court, they award a writ of
inquiry, in cases that require it,
which, when returned executed,
informs them of the sum for which
judgment is to be rendered. The
King's Bench also, as they have a
jury, may award a venire facias de
novo, in cases that require a fur-
ther trial. Doug. 731. Grant v. «<0s-
tle. 2D&E. i25.JDavies v. Fierce
& al. The House of Lords direct
& venire de novo to be awarded by
the King's Bench. 4 Bro. P. C.
27i. Kynaston y. Mayor, &c. of
Shrewsbury. 2 Stra. 1051. S. C 2
Stra. 1124. Haswell v. Chalie & al.
1 D & E. 783. Parker v. Wells. 5
ib. 86?. Lickbarrow v. Mason. So
the Supreme Court of the United
States direet the Circuit Court : 3
Dallas 425. Clarke v. Russell. 7
Cranch 56 0. VoungJkaU v. Stack.
And the Supreme Court of Errors
in New York, the court whoso
judgment they reverse. 1 Caines
Rep. ubi sup. In Massachusetts,
when the Supreme Court reverse
the judgment of the Common
Pleas, a venire denovo is awarded
returnable at their own bar, where
the new trial is had. 5 Mass. Rep.
391. Keyes v. Stone. 10. ib. 223.
Witter v. Witter. So in the Cir-
cuit Court of (he United States,
on reversal of a judgment of the
District Court. 1 Gal J is 103. Uni-
ted States v. Sawyer. In the Su-
Mich,
nreme Cpurti of New York and
Pennsylvania, a venire de novo is
awarded to tbe court below, and
the record remitted. 3 John. Rep.
4*S. Brown v. Clark. 8 ib. 84. 4r-
nold v. Crane. 1 Biuney 240. Ster-
rett v. ItoM. ib. 473. ifofcn* v.
JEbrnser.
While a writ of error to the
King's Bench in Ireland was re-
turnable irito the King's Bench in
England 5 if judgment was affirm*
ej, the court of error did not a-
ward execution, but directed the
King's Bench in Ireland to award
it. 2 Hoi. Rep. Si. Anon. This
was done by a mandatory writ re-
citing the whole record and pro-
ceedings and commanding them to
do execution ; by which the cause
was restored to that court. Cowp.
84?. Vicars v.Haydon. So if judg-
ment for the defendant was revers-
ed and a new judgment entered lor
the plaintiff, a mandate went to
the C. J. in Ireland to tee execu-
tion done. 4 Mod. 127, Bo if the
judgment of the King's Bench is
affirmed in the Exchequer Chara-
\ ber or in the House of Lords, the
record is supposed to be sent back,
and execution is issued by the for-
mer court. Colles 69. Dighton v.
QrenvUle. Cowp. ubi sup. 3 Saund.
3 Jac.
101. x. n. Palm. 186. Potter v.
Turner. So when the House of
Lords reverse the judgment of the
King's flench, in cases that re-
quire the entry of anew judgment,
they direct such judgment to be
entered and enforced by the King's
Bench. The practice of the Su-
preme Court of the United States,
in case of affirmance and of revert
sal of the judgments of the Cir-
cuit Courts and of the Stat*
Courts, is similar to that of the
Bouse of Lords. 3 Dallas &4$.
Clarke y.Harwood. ibid. 286* Ware
v. Hyltonk aL * Wheat 715.
Dartmouth College v. Woodward.
In the case of rhillips v. Bury*
before cited, the House of Lord*
gave a new judgment, on refusal
of the King's Bench to enter it.
Show. P. C 07. 4 Mod. 128. And
in the case of Noell & al. v. JVeJ-
son 9 2 Saund. 2Z&. they not only
affirmed the judgment of the King%
Bench, but gave judgment for costs
and charges sustained by the de*
fendant in error in consequence off
the delay of execution by the pros-
ecuting of the writ of error. Such
also is the practice of the Supreme
Court of the United States. 3 Dal-
las 170. Talbot y. Jansen & aL
ibid 304. Cotton v. Wallace.
In declaring
on a promise
tbe plaintiff
must aver
performance
of a condi-
tion prece-
dent, or it is
bad after
verdict.
Ranay vs. Alexander*
THE plaintiff declared, that whereaa the defendant was,
possessed of seventeen tod of wool, and whereas colloqui-
ufn fuU betwixt them for fifteen tod of the seventeen tod,
to be chosen by the plaintiff ; the defendant in considera-
tion of 6& to be paw on such a day, &c. promised to de-
liver the plaintiff preedictas fifteen tod of wool, and said i»
facto, that he was ready at the day to pay the 6/. yet the
defendant had not delivered the plaintiff the fifteen tod of
wool, to his damage, &c. And upon nan assumpsit plead-
ed, it ivas found for the plaintiff; and it was shewn in ar-
rest of judgment, that the declaration was not good, be-
cause the plaintiff had not shewn, that be had* chosen fif-
teen tod out of the seventeen, and that is quasi a condition
precedent ; and an act to be first performed by the plain-
tiff, before the defendant is bound by bis promise to do any-
Mich. 3 Jac
thing. Quod fint cmce&sum per tatmrn euriam.{i) Bat,
per Popham chief justice, if the defendant had sold one
of the tod* of wool before election made by the plaintiff,
that had destroyed the election, and made the promise ab-
solute, and had been a breach of it (a) The same law if r p. AM
the defendant woald not have permitted the plaintiff to see JJ£
the wool, that he ought make election ; for that had excus-
ed the act to be done by the plaintiff, and had been a de-
fault in the defendant And the matter aforesaid is much
enforced by the word prmdietas in the declaration 5 for that
ean be referred to nothing bat the eommunieatien, by which
the plaintiff of his own shewing ought to make election.
Then the plaintiff omitting it in his declaration shews the
fault is in himself, which ought to be removed before he
ean charge the defendant. But if the cemmumcation bad
been, that the plaintiff sould ehuse fifteen tod of the sev-
enteen, and the plaintiff had declared the promise to be
to deliver fifteen tod generally, without saying proedictas,
there, if the promise had been found, the plaintiff should
have judgment ; for the colloquium, might have been eondi- j- *,„ ,
tional, and the promise absolute. Quod noia. But the «• 7 J
judgment was, nu capiat per killam.
(!) When the consideration of cut five trees/ In an action on the
the defendant's contract is exeuto- covenant, it was held that the eut-
ry, or his performance depends on tins was a breach, as the lessee
some act to be done or forborne by bad thereby hindered the lessor
the plaintiff, or on some other e- from making his election* So in
vent, the plaintiff must aver per- divers other cases, it has been de-
formanee of such precedent eondi- cided that if the defendant, by his
tion, or shew some excuse for the own voluntary act, puts it out of
nonperformance. Aleyn 61* Bent his power to fulfil his engagement,
▼• Scott. Com* Dig- Pleader- C. he is liable for a breach thereof. 5
01, 02. 1 Chit PI. 809- 1 Saund. Co- 21. Maine's case* Jenk. 266.
320* n-4- and the eases there cited. Poph. 109. 2 And. 18? Moore 402.
/& £Ucl#. /<£>r~ S. C T Ray. 464. Griffith v.
(2) 1 /Freem. 397. Moterton Goodhand- T- Jon- 191- S-C- Cro.
v. Jotfi?^ lessee covenanted with Bliz- T- Teat's case* T- Ray. 28.
lessor that the latter might cot Bobinson v-Jlmps- 1 Sid. 48. S-C-
twenty of the best trees on the de- Skin- 39. Anon. 11 MassRep.302.
mised premises, at any time during Hopkins v. Young* See also Oodb.
the term. Afterwards the lessee 33d. Waterer k Mountague's case.
Lapworth vs. Wast
Cro. Jac. 86. 1 Brownl. 203. S. C.
THE plaintiff declared for taking of certain corn, hay, If totre8paiB
beans, &*. severed from the nine parts at Ethorp in Com. on land in A>
War. to bis damage, etc. The defendant as to the part of tbedefendant
the tithes taken, pleaded non cul. and the plaintiff simili- pleads not
, Mich. 3. Jac.
guilty at to ter ; and as to the residue pleaded a devise of the parson,
parton which age whereof, fee. from Thomas Lapworth to the defendant
M j oe i§ /i oi ?" at Wapenbury in the same county. And to enable the de-
li th J ^i" vise of lhe tithes in Ethorp, alledged Ethorp to be an ham-
due by a de- let of Wapenbury, to the intent that all the tithes might
vise or tithe* pass; and upon turn devisavit being in issue, the venue was
in A. alleg- only from Wapenbury ; and it was found for the plaintiff,
iog A. to be ^wrf Thomas Lapworth non devisavit jand the other issue
a hamlet of Q f non ^ tllC y f 0U|jd for the defendant- And it was
h taken*™* moye ^ * n arrest of judgment, that the venue was mistaken ;
on the de- because it was from Wapenbury only, and not from Eth-
vise ; the ve- orp ; and they of Wapenbury cannot find or try a matter
nire should in Ethorp. And although it was answered, that trespass
be awarded lies for a trespass in an hamlet, and that the defendant him-
to A. and B. gelf hag by Wg p] CJ| eo nfessed that Ethorp is but an ham-
let ; yet per curiam the venue is mistaken ; for when the
plaintiff declares on a trespass in Ethorp, that by general
intendment is presumed to he a vill, by whieh vill the mat-
ter whieh is there in issue ought to be tried. And although
the defendant has alledged Ethorp to be an hamlet, yet
that is only to enable the devise, and does not extend to
the issue before, whieh is non cul. for part ; for in that is-
sue the parties are both agreed that Ethorp is a vill, and
that is a perfect issue by itself, which has no eoherenee
with the other issue, non devisavit $ but if the defendant
had pleaded his excuse by the devise to the whole trespass,
and had alledged Ethorp to be an hamlet of Wapenbury,
1 Sand. 246. an( * tna * on ' y Dao< been in issue, there the venue awarded
Comb. 472. by the manner had been good. But in this ease the ve-
6 Mod. 405. nue was adjudged to be misawarded, and that the plaintiff
should have a venire facias de novo. Quod nota. Yelver-
ton pro guer.(l)
(1) See ante 12. n. 3.
Shelley vs. Alsop.
In an issue ^ an act * on on tne case brought on a promise supposed
oo non as- to be made by the defendant, on non assumpsit pleaded, and
sumpsit, a tried in a base court in the town of Stafford ; the jury found
verdict that that the plaintiff by non-performance of the promise ea?
th* plwniiff parte of the defendant bad sustained damage 50s. and as-
♦ • sessed costs, and judgment accordingly ; and upon error
6ft" damage brou S nt thereon, it was reversed on the first motion by
by the non tenner, Yelverton and Williams ; for the verdict given by
performance the manner is no verdict ; for they have not found the mat-
of the prom- ter in issue, with which they were charged, viz. whether
ise, without the defendant assumpsit, necne ; so it is altogether ineer-
fadMn^'that tain am * im P cr ^ eet ' For this finding by the manner, that
the '"defend- tnc plaintiff nA8 sustained damage 50s. by non-perform-
ant promts. ance of the promise, is but a finding of the assumpsit by
ed, is bad & a foreign implication, which is not good on any general is-
Mich. 3 Jac.
iiie i no more than in trespass, on nan cul. pleaded ; thd will not war-
jury find that the plaintiff is damnified bl. by the entry of rant a J ud &-
the defendant ; this is not good 5 for they ought to give ™ enl there "
their verdiet precisely according to their charge. (l) Quod on '
nota. Yelverton of counsel with Alsop.
(1) Though the jury ought reg- stand. Foster J. states a principle,
ularly to find the matter in issue 3 Bur* 7oo,which has been adopted
expressly; Bae. Abr .Verdict. R. yet in Massachusetts, viz* that the ver-
if the point in issue can be conclu- diet is to be supported if the jury
ded out of the finding, the court could not have found it, unless the
will work the verdiet into form & party, against whom it is found,
make it serve. Per Hobart C J. had failed in proving his elaim or
Hob. 54. Foster v.Jackson. 2 Bur. defence. 9 Mass. Rep. 319. Hodges
698* Hawks v. Crofton 5 and the v. Raymond. See 10 Mass- Rep.
ease of Mlam v. Toe there cited 66. Porter v. Rummer y. The ver-
by Denison J. in which the prin- diet, in the ease in the text, would
ciple was stated, that verdicts are seem, on these principles, to be
not to be taken strictly* like plead- sufficient to warrant judgment on
ings, but the Court will collect the it. See 2 Rol. Abr. 693. Vaugh.
meaning of the jury, if they give a 75. 76. Rowe v.Huntington. 5 Bur.
verdiet which the court can under- 2662. Recc v. WoodfalU
Jeffrey vs. Guy.
1 Browol. 89. S. C.
DEBT on bond; the condition was, that if Jeffrey the {f to d ^" e °"
defendant performed all covenants in such an indenture, fo^mance^of
that then, &e. and one covenant was, that he should per- covenants,
mit Guy the plaintiff de tempore in tempus, to come to see the defend*
if reparations were made oi an house demised by Guy and ant tenders a
Katherine his wife to Jeffrey for years. In which the case ■pecialmate-
was, that John Bill and Katherine his wife were tenants ™ ,88 ^£
in tail of the house, and had issue William ; John died, ig8ue - s j oin .
Katherine married Guy the plaintiff, they made a lease by e d and found
indenture to Jeffrey for twenty years, yielding to them and for the plain-
their heirs 8/. rent per annum, with such covenant as above 5 ti ff ; it is no
and Jeffrey pleaded in bar the former intail, and the death S roun( ! f £ r
of Katherine, and that William the issue in tail such a 'YudgmLt
day entered, before which entry no eovenant broke. Guy t h at tne
replied, that William came with him npon the land to see plaintiff has
if reparations, &c. absque hoc, quod William intravit modo not alleged a
et forma, Sfc. and issue thereon, and found for the plain- breach of co-
tiff, and judgment in the Common Pleas. Wherefore Jef- venant -
frey brought error in the King's Bench, and the judgment
was affirmed. But. the error assigned was, that Guy had
not laid any breach of eovenant in Jeffrey, and so had not
shewn any cause of aetion. But, per curiam, he need not
in this ease ; for by the * special issue tendered Jeffrey, he # An(e 25
has obliged the plaintiff to make a., special replication to
that point tendered ; and then the plaintiff cannot proceed
Mich. 3 Ja<J;
farther. And therefore it is not like the ease of an award,
where in debt on a bond to perform it, the defendant pleads
non fecerunt arbitrium, there the plaintiff in his replica-
tion ought to shew the award, and assign a breach ; be-
cause the defendant's plea is general. (1) But in such ease*
f ?• j if the defendant pleads a release of all demands after the
award, whereby he offers a speeial point in issue, here it is
sufficient for the plaintiff to answer the release, or other
speeial matter alledced by the defendant without assigning
any breach ; so in this ease the defendant's special plea
has disabled the plaintiff that he cannot assign any breach
of covenant, but must of necessity answer the special mat-
ter alledged. Quod Nota. Yelverton pro Guy.
(1) See Barret v. Fletcher, post. 158. fc n.
Hutton vs. Barnes.
When the HUTTON being sued in the Spiritual Court in Ddr*
defendant ham for tithes, brought a prohibition there, and suggested
prescribes in t fat the prior of Durham was seised of the grange of Ses-
non .c^fin- gersonwiek in right of the ehurch, viz. the priory 5 and
necessary prescribed in the prior and his predecessors to hold that
that the §ug- grange without payment of any tithes ; and shewed the
gestion for a dissolution of it, and how it came to H. 8. and the statute
prohibition 34 H. g. to hold it as the house of religion held it before;
ih,< th th *7- an ^ derived to himself a lease for fifty years from queen
bcl: AiiUr ^' z< an( * a ^ ter *"• prescription laid in non decimando,
where the shewed how the defendant sued him in the Spiritual Court
suggestion is for the tithes of forty fleeces of wool. To this thede-
on a modus fendant pleaded that he sued the plaintiff for the tithes of
decimandi. 4^ fleeces of wool, and prayed a consultation 5 and for
the variance between the libel and the suggestion, the jus*
„ tices of assise awarded a consultation, andadjudged double
Hob. 300; eogtg to t he j efen tfam Am | Yelverton, assigned both these
matters for error. And per curiam they are error ; for
the variance is not material here, because the plaintiff
prescribes in non decimando, and thereby ousts the Spiritu-
al Court of all manner and power of jurisdiction for any
tithes arising from this grange, because it is discharged in
se ; but if the suggestion had been on a modus decimandi 9
then it would be otherwise ; for there the suit for tithes
belongs originally to the Spiritual Court ; and therefore
there the suggestion ought to agree with the libel 5 for if
the parson libels for tithe of hay, and the other will sug-
gest a custom for tithe of corn, that is not to the purpose j
for it is not for the same thing. The same law where
they vary in the quantity of the tithes demanded, because
the suggestion is grounded upon the libel, and the plain*
tiff is to stay Jthe proceedings there but for one cause cer-
tain. But in the ease supra the suggestion discharges the
Spiritual Court from all manner of power for any tithes
mmm
Mich. 3 Jac.
At all $ and therefore the variance not material. 2. The
judgment for double costs was error on the express letter f 80 ]
*of statute 2 E. 6. which gives double costs onfy for want
of proof of the suggestion, and for no other cause, ({nod
noto.
Crush vs. Crush.
THE plaintiff declared, that whereas he was seized of It is not &c*
certain land, in which he had good right and title, &c. tionableslan-
The defendant malUiose to hinder the plaintiff in the sale «! er of tit ^
of it, and also to discredit the title in it, uttered these iayheTwould
words. He had rather buy the title of Thomas Crush ra ther buy
(who was the plaintiff's younger brother) than the title of the title of
the plaintiff; and he further said, that he had seen an in- the younger
denture to lead the use of a fine, whereby it appeared, brother than
that the plaintiff had no authority to sell the land ; and J^Jg^I
declared to the damage of 190/. and upon non cul. plead- t Jj e ; °p| a ^ntiff
ed, it was found for the plaintiff And it was moved in nai no au-
arrest of judgment, that the words import no slander to thority to
the title ; for as to the first words, they do not import any sell.
colour of action ; for they show only the private and par-
ticular inclination of the defendant, who in his own choice
had rather buy the land of the younger than of the elder
brother, and that might well be without any impeachment
fo the plaintiff's title ; for perhaps the inheritance was in
the younger, and the freehold only in the elder, or the like ;
and for the other words, they are not any discredit to the
plaintiff's title in the land ; for the title may be good and
sure, and yet the words true, viz* that he has no authority
to sell it 5 for it may well be, that the land is tied with a
perpetuity, that he cannot sell it, and yet the estate and
title good. Quod fait concessum per Fenner, Yelverton
and Williams ; Popham being absent. And nil cap. per
billam entered.
»
Rastell vs. Draper.
Cro. Jac. 88. Noy 13. 1 Browol. 90. Mo. 775. S. C.
DEBT; the plaintiff demanded 39/. and declared that In debt on a
he 1 Maii anno 1. sold to the defendant twenty northern contract for
eloathes for «o/. Flemish, to be paid on request, which 60/. k^JfVT"
Flemish attingunt se to 39/. English; and that the defend- ration should
ant, licet scepius requisitus, had not paid the 39/. ad damp- demand the
num, ^c.The defendant pleaded nil debet $ and it was found sum accord-
for the plaintiff, and moved in arrest of judgment, that the in S .to the
plaintiff ought to have demanded the sum according to the Ens,i !^'2? 11 "
contract, which was for 60/. Flemish, and to have shewn ghewthe con-
that it amounted to 39/. English. But per totam curiam, tract for for-
non allocat. ; for the debt ought to be demanded by a name eigu money
17
Mich. 3 Jac.
amountingto known* and the judges are not apprized of Flemish mon-
^® *" n * 1 *jd. er . ^h! a j g0 w hen the plaintiff has his judgment, he can-
Carth 322* not ^ ave exeeQ ^ 011 D J 8uen name ; for the sheriff cannot
Cr.EI.536. know how to levy the money in Flemish; and moreover
[ 8* ]' '* * 8 now ma ^ e S°.°^ D J tne ver ^* ct * f° r they have found the
debt demanded, viz. 39/. But if the contract had been for
so many ounees of Flemish money, or for a bar of silver or
gold, there it could not be demanded by the name of 20l.
or such sum ; because it is not eoin, nor is used in trade
or merchandize ; but there he ought to have a writ of det-
inue, and thereby he shall reeover the thing or the value.
As also Lib. Intr. 158. is the precedent, where debt was
brought on two several bonds, and demanded 2Sl. and de-
clared severally on each bond, that he debet 19/. 18s. de
moneta Flandrice. And 34 H. 6. 12. agrees, and 9 E. 4.
42. But nota in this case, the plaintiff if he would might
Latch 4 77 nave declared in the detinet, and good also ; for the preee-
84. ' ' dents go to both. Quod nota. Yelverton for the plaintiff.(l)
(1) See 3 Dallas 868. Brown v. Barry.
Sir Aud. Nowell.
J. S. and several others were indicted for a forcible en-
try into an house parcel of the manor of D. which was
Ona convic- tne freehold of Sir Aud. Nowell, and whereof one Fracy
dMe^entry" was CU8tomar y tenant, and for disseizing Sir Aud. and ex-
restitution Piling Fracy therefrom, &c. and although in this case
shall be gran- Sir And. endeavoured and moved that no restitution should
ted to the be had, (for in truth the entry of those who were indicted,
copyholder wag by the command of Sir Aud. upon Fracy, who had
relte* ai t ho' forfeited his copyhold) and that it was objeeted, that res-
it is against titution is only to be made in respect of the freehold ; and
the will of Sir Aud. who is supposed to be disseized of the freehold,
the freehold- does not require it, but the contrary ; yet per curiam res-
er. titution was granted in respect of SVaey the copyholder;
for in regard the indictment is a record, by which the dis-
seizin of Sir Aud. and the expulsion of Fracy appear, the
court in discretion, and the jury also, ought to reform the
wrongs in their several degrees, and that is to restore Fra-
cy first who was expelled ; and thereupon the restitution
to the freehold follows ex consequents But if the indict-
ment had been only of a disseizin, without an expulsion,
there no restitution could be, unless on the prayer of him
who had the freehold. And (by Williams justiee) accord-
ing to this case was it likewise adjudged in the case of the
lord Norris, who having made a lease for years to A.
and several being indicted for a forcible entry upon the
possession of A. and disseizing the lord Norris, and ex-
pelling A. and although the lord Norris withstood the res-
titution, yet nolens volens it was granted, to redress the
wrong done to A. the termor, who by the indictment is
found to be expelled. Quod nota.
Mich. 3 Jac.
Pratt vs. Moon. f 8 * ]
6 Co. 39. a. 1 Brownl. 184. S. C.
IN replevin of cattle taken in D. the defendant avowed Of the expo-
as bailiff to H. Finch. And the ease was such ; J)ame «tion of
Finch, the mother of H. granted a rent-charge to H. out of g™ t8 > ™
her manor of N. and out of all her lands in D. 8. and V. won j 8 aut
in com. Cantice, ant alibi in dicto com* Cantice dido ma- necnon kuna
nerio spectan. sen pertinen. $ and the plaintiff, to destroy cum thai) be
this rent, pleaded an abatement in II. Finch, in the lands taken.
in D. and it was thereupon demurred ; for the lands in D.
nonfuerunt spectan. nee pertinen. to the manor of N* A \nd 6 °^ n r *
it was adjudged for the defendant, for no land is charged
by this grant, unless it be pertinen. to the manor ; and that
for two reasons, l. Because by the words aut alibi, it ap-
pears that it is all but one sentence, and the aut conjoins
the precedent words, viz. all her lands in D. 8. and V. in
com. Cantice, with the subsequent words, viz. alibi in dicr
to com. dicto manerio pertinen., and the sentence is not
perfect till it comes to the last words {dicto manerio per*
tinen.) for if the rent be issuing out of land in O. &c.
which is not pertinen. to the manor ; then the sentence
ought to be perfect at these words {com. Cantice) and then
{aut alibi, Sfc.) must begin a new sentence, which was nev-
er seen, that {aut) should be the beginning of a sentence ;
and therefore it is not like the case of * Bacon and Baker, * Cro. Jao,
2 Jac. on the prohibition, where queen Elizabeth granted 48.
all her tithe corn, &c. in St. Edmund Bury in* com. Sws- JJ 001 ^ 7 ^
sex, necnon all her tithe hay, &c. within the liberty and ^^7
precinct of St. Edmund Bury, dicto nuper monasterio spec- * *
tan. et pertinen., et quae nuper per eleemosynarium aicti
monasterii collector fuerunt ; for there the first sentence is
perfect and complete at these words, {in com. Sussex) and
the {necnon) which follows is a new sentence ; apd there-
fore the last clause {et quce per eleemosynarium, Sfc.) goes
only to the tithes following the {necnon) and not to the tithes
contained in the first sentence. Otherwise if the (necnon)
had been [una cum] (as in truth the patent was, but was
mispleaded) for there the una cum conjoins the whole, and
makes it all but one sentence.* The 2d reason was in res-
pect of the nature of the thing granted, which is but a rent ;
and therefore if rent is granted out of a manor percipiend.
de una acta, it is good ; and nothing is charged to distress
but that acre, 17 Ass. But in case of land it is otherwise ;
for a feoffment of a manor, habend. one acre, is a void ha-
bendum ; so here, for it appears that the intent of the Lady
Finch was only to charge the manor, and such lands only
as were pertinen. to the manor. But Popham contra; for [ 83 3
he conceived, because D. 8. and V. in com. Cantice were
particularly named, and bounded in by the name of the
Mich. 3 Jac.
plate and county, that therefore they should be charged,
although they are not pertinen. to the manor. As if a man
EmU all his lands in D. 8. and V. in com. M. and in
wn in the same eounty, whieh be has by deseent from
his father; (by him) all the lands by what title soever
pass, whieh are in D. S. and V. and these words (which
he has by deseent, fee.) go only to Down. Quodfuit neg-
stumper curiam; but he strenuously persisted in it. And
also, by Popham, by the first grant of the charge out of the
manor, all lands parcel of, or pertaining to the manor are
eharged ; and therefore the subsequent words, if they should
be restrained ut supra, are idle and frivolous, nut per
Yelverton, these words (dicto manerio spectan. sen periinr
en.) shall be taken to extend to land occupied with the
manor, although it is not parcel of it. Quod Fenner and
W illiams concesserunt. And so judgment, that the defend-
ant should have a return. Quodnota,
Hil. 3 Jac.
Barnehurst vs. Sir Charles Yelverton.
1 Brownl. 91. Noy 15. S. C.
If after an DEBT ; the plaintiff sued as administrator of J. 8. on a
admuiitra- b oll( | ma( j e by the defendant, and had judgment ; and after-
cover'djad*- wanJs the administration was revoked : but not withstand*
ment hit ad- in 5 that > ^ e plaintiff proceeded and took the defendant in
minutratioD execution. And upon a motion to the court, concessumper
it revoked, totam curiam, that the execution was void, and that the de-
he caDDot le- fendant ought to be discharged, quia erronice emanavit ;
ot a t ( ^ or * e ' ettero °* administration being revoked, the plain-
execution. 9 *^ 8 P ower " determined ; for he prosecutes the suit in
another's right, for he is* but as the ordinary's servant ;
Co.Eotr. 89, then the ground of the suit being overthrown, viz. his eom-
90. mission, he has no authority to proceed further ; and so
2 1Mb' «fi'ft t * lc execut * on awarded without warrant. The same law
* 6 • ° 68 - (pg r curiam) on a judgment had by an administrator, the
second administrator snail not have execution upon it, for
he has not privity to the record. Quod nota.(i)
(1) See ante 33. n. 1. post 125. n. 2 Saund. 148. Turner v. Davits.
Lea vs. Minne.
Cro. Jac. 110. S. C.
[8*3
On a prom- THE plaintiff married with one Alice, executrix of J.
iie to a hut- 8. her former husband ; the defendant was indebted to J..
Hil. 3 Jac.
[ 84 a J
8* in 160/. and promised the plaintiff that if he would for- band to pay-
bear any suit against him on the debt, which was by bond, & debt due to
until Michaelmas following, that then he would pay the h " w . lf< ? V
plaintiff the debt.(l) The plaintiff brought assumpsit up- executnx ' m
(1) A feme covert may be an ex-
ecutrix or administratrix with the
consent of her husband. It is of*
j ten said in the old books, that she
*7 / may administer without his eon-
L sent ; but the contrary seems now
* to be well settled, even though she
is entitled to administration by
statute, as next of kin. 2 Bl. Rep.
801. Thrustoutv. Coppin. If she is
executrix oradministratrix,wheth-
er appointed before or during cov-
erture, her husband has a joint in-
terest with her in the effects of the
deceased. Finch Deserip. Com.
Law 149. Sty. 48. Fremling v.
Clutherbook. Off. Ex. 199. Toller
241. When she is executrix or
administratrix before marriage,her
husband is joint executor or admin-
istrator with her after marriage. 7
Mass. Rep. 510. Barber Sf ux. v.
Bush. Their rights and liabilities,
however, differ in some particulars,
from those of eo-exeeutors & co-ad-
ministrators generally. These dif-
ferences result from the legal rights
acquired, and liabilities incurred
by the husband, on the marriage.
1. Co-executors are regarded in
law as one person, representing the
testator ; and acts done by any one
of them, which relate to the effects
of the deceased, are deemed the
acts of all. Off. Ex. 95. Dyer 23.
b. n. The law was formerly said
to be otherwise with regard to co-
administrators ; but it is now de-
cided that there is no difference, in
this respect, between them and co-
executors. 2Ves. 267. Jacomb v.
Harwood. But in the case of hus-
band and wife, executors or admin-
istrators as above, she cannot re-
lease the debts or dispose of the ef-
fects of the deceased, without the
husband's concurrence ; 5 Co. 27.
b. RusseWs case. 1 Bid. 188. Cookee
v. Bellamy. 1 Salk. 306. Wankford
v. Waukjord $ though he may do
these acts without her consent. 3
W ils. 277. Thrustoutv. Coppin. 2
Bl. Rep. sol. 8. C. 1 Salk. ubi sup.
1 Roper on Legacies 253.
2. Upon the death of one co-ex-
ecutor or co-administrator, the in-
terest in the effects of the deceas-
ed, and the right and power of ad-
ministration vest in the survivor.
2 Vern. 514. Adams v. Buckland.
Cas. Temp. Talb. 137. Hudson v.
Hudson. But on the death of a
feme covert, administration does
not survive to the husband, inas-
much as it belonged to him only
in her right as representative of
the deceased. 1 Ld. Raym. 369.
Yard v. Eland. On his death, how- ,
ever, it survives to her. Dyer 831.
Hunks v. Alborough. 1 And. 22.
Benloe 219. S. C.
3. When co-executors or co-ad-
ministrators sue jointly and obtain
judgment, and one dies before exe-
cution, the other may sue out exe-
cution. But if the wife dies, in
such case, the husband cannot
have execution on the judgment,
for it belongs to the representative
of the first testator or intestate ; 1
Rol. Abr. 889. Cro. Car. 227. Bea-
mond v. Long. W. Jon. 218. S. C.
Cro. Car. 464. Anon, though the
wife may sue out execution if the
husband die after judgment.
4. One co-executor or co-admin-
istrator is not liable for a devasta-
vit committed by his companion.
Dyer 210. a. Anon. Cro. Eliz. 318.
Harethorpe v. Milforth $ <jZ.
Bridgm. 37. Toumley v. Sherborn.
1 Barnes 323. Champneys v.
Browne. But if an executrix mar-
ry, and her husband eloigne the
goods, or is guilty of any other
species of devastavit, they are both
Hil. 3 Jac.
r •* b 1
consider*- on this promise, and shewed all the matter aforesaid; and
tion of for- that the defendant was not molested, nor vexed, nor com-
k e S[ aD 5 e,l,?e pelled until Michaelmas, &c. to pay the debt. And upon
his decisis^ non ******?*** pleaded, it was found for the plaintiff; but
tion, mast n *l cap*** per billam entered. And the peremptory excep-
aver the life tion was taken by Tanfield justice because the plaintiff did
of hit wife, not aver the life of his wife,(2) who was executrix to J.S.;
Q u - for the defendant's promise was made in respect of a debt
in another right, which was to Alice as executrix, and not
in respect of any debt to himself; then the promise follows
the nature of the debt, viz. to the use of J. S. and shall be .
assets. And although it was in the power of the plaintiff *
to release the debt, which would be a devastavit, yet now
it appears that the true intent was to have the debt paid ;
and for the non-payment thereof, according to the promise,
was the action brought. Then, forasmuch as the damages
to be recovered go to the satisfaction of the debt due to the
testator, and upon a suit had on the bond, may be pleaded
in bar ; that shews and manifests the promise to be to an-
other use, and so he ought to aver the life of his wife who
answerable therefor during the In Massachusetts, by statute
coverture ; and the wife after the of 1783. e. 24, if a feme sole is
coverture is dissolved. Dyer £10. executrix or administratrix jointly
. ^ n. Vaughan v. Thompson <$* ux. with one or more persons, & after-
\Cifo. Of. Cro. Car. 019. Mounson v. Bourn, wards marries, her power and au-
//.^ iScho.&Lef. 257. ddairv. tihaw. thority are determined, and devolve
/ ** If an executrix commit a devasta* on the other executor or adminis-
vit before marriage, the husband, trator.
as well as she, is chargeable for it
during the coverture. Moore 761. (2) It appears from Croke's re-
Hey ward's case. Cro. Car. 403. port of this case, (Cro. Jac. 111.)
Kings v. Hilton Sfux. See 1 Saund. that the exception was that it was
219. c. n. not averred that the wife was alive
The above distinctions apply at the time the promise was made.
where administration devolves on Such exception was clearly fatal,
the husband by operation of law, The husband had no authority, af-
as a consequence of his marital ter her death, to act as executor
rights and liabilities. But when (see note supra) and a promise, in ,
administration is originally com- consideration of forbearance, where
mitted to husband and wife jointly, there is no cause of action, is void,
it survives to him on her decease. Yelv. 184. Smith v. Jones. Poph.
Aleyn 36. Brown v. Wood. 3 Salk. 178 Goodwinv.WUloughby. M&rch
21. Jlnon. How far, in such cases, 202. Hammon v. Roll. T. Ray. 32.
(he other incidents of co-adminis- Traverse v. Meres. 1 Saund. 210.
t rat ion apply to husband and wife, Forth Sf al. v. Stanton. Welles 484.
does not appear from any decisions n. 1. 2 Binney 506. Hamaker v.
that have been found. ' Eberly.
Like other executors and admin- By statute 21 Jac. I. cap. 13.
istrators, husband & wife must join after verdict, no judgment shall be
& be joined in all suits brought by stayed for want of an averment of
or against them in their representa- the party's life, provided he be
tive capacity. lChit.Pl. 22. 29. 43. proved to be alive.
HU. 3 Jac.
was executrix to J. S. for by her death the action on the
promise is determined ; and although the plaintiff cannot
join his wife with him in the action, because the promise
was particular and personal, yet he ought to aver the life
of his wife, because the plaintiff shall recover nothing to
his own use.(3j Quod note, fuit conces&um.
(3) Croke states,(Cro.Jac. 110.)
that an objection was made by the
eounsel,that the wife ought to have
joined in the suit, and that it was
overruled. A similar decision was
made in the case of Yard v. EUard,
1 Salk. 117. Carth. 462. u Mod.
207. 1 Ld. Raym. 369. S. C. on tbe
ground that the wife was not privy
to the contract, nor the person to
whom the money was to be paid.
And in Sewel v. Reignalls* March
72. where the wife joined in the
suit, it was held, on motion in ar-
rest of judgment, that the husband
ought to sue alone. In the former
case, the plaintiff averred that she
was alive at the time of aetion
brought; and according to Salk-
eld's report, the court considered
the averment essential. This,how-
ever, seems questionable* The
husband had authority to release
the defendant, or in any other way
to discharge him, as well at to give
him forbearance* Besides — the
promise, on which the suit was
brought, was merely collatera1,and
being by parol, would not bar an
aetion on the bond by the wife, af-
ter the husband's death, or by the
administrator de bonis non after
the death of the wife — unless the
husband, during his life, had re-
covered the amount of the bond in
a suit on the promise. Further-
according to the reports in March,
Ld. Ray in. & iz Mod. the court
held that the money, when recov-
ered on the promise, would not be
assets of the testator's estate ; and
in the two latter books, that if the
husband died before execution su-
ed out, his representative, and not
the wife, must sue execution.— It
being then a contract, to which the
wife was not privy ; which would
not survive to her, and which her
death would not affect ; it seems
unnecessary to aver or prove her
to be alive at the commencement
of the suit. But see Lawes PI.
Assump. 06,
Pasch. 4 Jac.
[«•]
Clark vs. Sir John Sydenham.
1 Brownl. 136. S. C.
IN ejectment brought by the plaintiff on the lease of one A. leaied
Master Prowse and B. upon non culp., and the jury at the £ nd !j? **:
bar, the evidence for the defendant was, by reason of a jaurtttx *for
lease made of the land in question by the abbot of Cleve, theirlives by
before the dissolution, to William Dovill, Johanna his indenture, &
wife, and Frances his daughter, for their lives, by inden- therein cor-
ture, and by the same indenture the abbot covenanted, en anted,
Pasch. 4 Jac.
granted and granted and confirmed to the three lessees, that the land
confirmed to should remain to the assignee of the survivor of them for
'fh 9 * *Sl1 ninety-nine years. Frances survived and married one Hill,
land ihouW who 2 BKiz * S 1 ^ 1 ^ his e8Ute for life to '• 8 - *** a11 bis
remain to the interest in remainder, and all his power for the whole
assignee of term; and this by mean assignments "came to the defend-
the turrivor ant ; and whether any interest passed in remainder by the
of them for abbot's lease, was the question. And by all the five jus-
H id ye th"t ** ees > ** *• a S°°^ interest in possibility, and to be reduced
there was a * nt0 a ocrta ' nt y * n the person of the survivor. As land is
good interest given to three, and to the right heirs of the survivor; this
in potiibili- is a good limitation of the inheritance immediately, but in
ty, in the re- expectancy till the survivor is known, and then the fee is
attainder, to executed in him. And Popham vouched a case of expe-
rJto re ° u ced rience 17 Eliz. in which serjeant Baber was of counsel ; a
tainty^/the * ease was ma ^ e to husband and wife for life, and for forty
person of the years to the survivor of them ; the husband and wife join-
snrritor. • ed in a grant of this interest, and although it is certain one
of them will survive, yet the grant is void, beeause at the
l ^t AA*h t ' mc °* *• 8 ran * there was not any interest, but merely a
l last. 46. b. possibility in each of them ; and although in the case in
question the remainder is not limited to any of the three
lessees, but to the assignee of the survivor j yet (per curi-
am) that is not a bare nomination in the survivor, to ap-
point what person he shall please, but a term and an inter*
Ante 9. con- est. In which, per Popham, the difference is, it a lease be
tra * made toJ.S. for life, ana after his death to the executors and
Ante 9. assigns of J. 8. this is an interest in J. S. to dispose ; but
if it was limited to J. S. for life, and afterwards to the ex-
ecutors and assigns of J. D. there it is a bare power in J.
D. and his executors ; beeause they are not parties, nor
privies to the first interest. Quod fuit concessum. And
also it was agreed, that whether it was an interest, or a
power of nomination only, it is saved to the party by the
statute of 81 H. 8. of monasteries, which gives the houses
dissolved to the king, but in the same quality, degree, &e.
[86 J ag the abbot had them ; and the abbot himself was eharged
by this power given by himself, and so is the king. Quod
nota. Yelverton with the defendant.
Grenevs. Austen.
Cro. Jac. 116. S. C.
Payment of AUSTEN, vicar of Aveley in Essex, libelled in the Spir-
titbesto the itual Court for tithes of herbage, and agistment of cattle
P a ™° n '* a on the grounds there after harvest ; this was against Grene,
charge a- w ^° * )ro,, S' lt a prohibition, and laid a custom within the
gainst the vi- parish, quod qucelibet persona habens et possidetis aliquod
car. . A cos- pratum fivefundum in aliquo uno anno infra Parochiam prm-
tern it good, diet., unde fanum eodem anno nactum fuit five provent. a
Pasch. 4. Jac.
tempore cv/tu, be. usafuit et consuevit, aptis temporibus anni Uiatpayment
illius, gramen super hujusmodi pratisfive fundi* crescent, ad °f tij hc of
expenses was propria* tuetere et defaUare, et gramen sic me*- ** sha " dic-
tum potlea ad similia custagia, ©>c. in cumulos, vocat. cocks, tithe 0/°™
eongerere, et quendibet decimum cumulum sic itide congest, a gUtment of
cmteris novem cumuli*, ©>c. ad usum rectoris ecclesioe parochu the tame
al. pnsd. sive ejus firmarii, o>c. dividere et exponere, in pie- land {0T the
not* et integrum contentationem* solutionmn, satisf actionem, et 8ame year '
exonerationem ac nomine et loco omnium et singular, decima- Bunb. 314#
rum quarumeunque dein vel super aliquibus hujusmodi pratis Ld. Raym.
$ive fundi* undefoenum in hujusmodi anno nactumfuit, eodem 242.
anno surgen. renovan. &c. quern quidem decimum cumulum, ^ P '™' 6 ^ 2 '
&c. in forma, o>c. congest, fyc. otnnes et singuli rectores, o>c. „£' Ca,Abr *
in plenum et integrum contentationem, #c. ac nomine et loco,
fyc. acceotuverunt, frc. And all edged in facto a perform-
ance or the custom, the same year in which the vicar li-
belled, &c. and thereupon the defendant, being vicar, de-
murred ; and it was adjudged for the plaintiff. And two
points were resolved. 1. That payment of the tithes to
the parson, is a sufficient discharge against the vicar, be-
cause all tithes of common right belong to the parson, and
the vicarage is derived out of the parsonage ; so that no
tithes de jure belong to the vicar, but only on an endow- Lutw. 1071,
ment or prescription, which ought to be shewn ex parte of 1074.
the vicar, and the court cannot intend it ; for the vicarage 2 Inst. 652.
is a diminution and impairing of the parsonage, of which £* 0, j'S"
the court will not take notice, unless the parties shew it. j^ I°^ " *
2. That the custom supra is good ; for in regard the own- Hob 250.
er of the ground pays tithe of hay, he is thereby discharg- Cro. F.I. 71.
ed of common right from the tithe of agistment of the same 139, 277.
land in the same year ; beeause one land shall answer but 12 M °d- 498 *
one tithe for one year, and the agistment is but the profit f 87 J
by the mouths of the beasts of the same land, of which be-
fore the parson had tithe of hay. And Tan field justice
said, that it was adjudged in one Edolphe's case de com.
Oxen* that paying tithe of rye or wheat by the sheaf, he
cannot afterwards pay tithe of halm of the same land ; for
this halm is but part of the stalk on which the tithe sheaf
grew. According to F. N. B. 03. b. Yelverton pro quer.
Dorrington vs. East.
IN consideration the plaintiff would procure 6/. to the The cootid-
defendant for one whole year, the defendant promised to eratioo of a
make a lease to the plaintiff of such house from Michael- promise was
mas next for three years; the plaintiff she wed that 23 A- ! ^ at ,J e pPff
pril he procured J. S. to lend the defendant Bl. pro una an- Jure 6/. P for
no integro, et 24 Junii after he procured J. D. to lend the x ^ e <j e fend-
defendant zL pro uno anno integro, which the defendant ant for a
accepted, and yet dicit in facto, that the defendant has not year. It is
made the lease, &c. And upon non assumpsit pleaded, it not sufficient
18
Pasch. 4. Jac.
that the pPff vu found for Ihe plaintiff. Bat in arrest of judgment
procure! 3/. Yelverton shewed that, the declaration was not good; for
and? at so- * l ^P 6 *" b 7 tlie plaintiff's own shewing, that the eonsid-
other." " eration on his part is not performed, because the %L were
not lent all at one time, but 3f. at one time, and 3& two
months after, which is not according to the agreement ; for
now it appears to the eourt that the defendant had not the
benefit of 6/. for oae whole year, whieh was the intent of
the parties, neither could the defendant raise such, profit
to himself by having the %l. at such divided times, as he
might if he had them altogether ; then the consideration
on the plaintiff's part not beiog performed is as a dissolu-
tion of the promise ex parte of the defendant. And although
it appears by the declaration that the defendant accepted
the several 3/. vet that is not material; forasmuch as it
is not performed according to the agreement ; but if the &L
had been lent by several persons, and at several times in one
and the same day, it had been good ; for the law makes no
division of a day, but in ease of necessity; but in general in-
tendment, what is done in a day is done at the same time.
And if the consideration had been to have lent the defendant
2QL in gold, and he declares and shews iOL of the 20l. to
have been in silver, although in substance of the matter if
is performed, yet it is not according to the letter, which
being put and expressed in specie, gives direction how it
shall reeeive construction. Quodamim Juztic. concesser.
in toto 9 and new bail entered into by the defendant to an-
swer to a new declaration. Quod nota. Yelverton for the
defendant, (l)
(1) See Com. Dig. Pleader. C. 69. 1 Chit. PL 816.
r g8 i Randall vs. Wale.
Godb. 149. Cro. Jac. 59. Noyl6. S. C.
There most RANDALL, being an infant, entered into a reeognis-
be a second anee to ^ale of 30o£ and brought audita querela in the
opon a nihil Common pleas within age, and upon inspection was ad-
cias by an in- Wale ; and as appeared by the record, on one nihil only
fantinanau- returned, the judgment was that the recognisance should
dita querela be cancelled. Upon which Wale brought error in the
against .a King's Bench, and assigned the error aforesaid, that there
infant cont£ ou 8* lt t0 ue either two nihils returned, or a scire feci;
sor cannot f° r two nihils amount to a garnishment, and without gar-
have a new nishment and hearing of the party to whom the recognis-
audita que- ance was made, it ought not to be adjudged to be cancel-
rela after he Jed ; and for this reason it was reversed. Whereupon
to™ete«e 5C a Randall, being at full age, brought another audita quere-
statote. ^ * n ^ e &' n g' s Bench, and comprehended all the matter
aforesaid, and shewed that the first judgment was only re-
Pasch. 4 Jac,
versed for error in the proceedings, and not in the princi- F.N. B. 104,
pal matter ; and upon that Wale demurred. And it was ji?* ^ar.
adjudged that the audita querela did not lie ; for the judg- g3 264.stra.
ment of reversal is general, and not for any special reason, iq75. Cowp.
hut that the party shall be restored to all that he lost by 728.
the first judgment; so (he recognisance set on foot again.
2. The judgment of inspection, although it be but an
award, yet it is not of force but in the same court where
the proof per testes, and the inspection was ; and that
does not conclude the judges of the Ring's Bench, who are
in court, but that they ought to have a re- inspection, which
cannot be in this case, because the party plaintiff is now of
full age ; and if in this case on the first judgment reversed,
Randall being within age had brought a new audita que-
rela in the Common Pleas, he ought to be inspected again ;
because it is a new original, and all the former proceed-
ings are dissolved by the reversal of the judgment. Quod
nota.
Sir Thomas Gresham vs Grinsley.
March on Slander 66* S. C.
THF brother was a fool, and was never born to do him- In an action
self any good ; for that he could not hold his hand from for slander of
ratifying and sobseribing to his father's will : notwithstand- Jjmajce 6
ing 1 have that to show in my house, that, if his heir Eliz- m ^ be a j.
abeth Gresham do not any such act as he hath done, it ledged.
shall bring her to inherit Titslev. Upon this Sir Thomas
brought the action against the defendant, and shewed that Co. Ent. 35.
his father was seized of the manor of Titsley, and of other
lands, and by will devised them to A. his wife, remainder
in tail to the plaintiff, and that the father had issue Wil- [ 89 ]
liam the elder, who had issue Elizabeth his daughter and
heir, and this plaintiff the younger son, and that A. is dead,
and the plaintiff entered afterwards, and the defendant in
slander of his title spoke the words aforesaid ; and shew-
ed further that he had an intention to make a jointure to
his wife, and to pass several parcels of the land to him de-
vised to his younger children for their advancement, and
was hindered in that intent by those words, to his damage
iOOl. And upon non cul it was found for the plaintiff to
20l. damage, out judgment that nil cap. per oillam. 1.
Because it does not appear by any thing in the declaration
that the plaintiff is damnified, viz. that he was about to
sell it, or had entered into a bond to make a jointure to his
wife, which by reason of such words of the defendant
would not be accepted ; and some special matter ought to
he shewn in which damage might be apparent/, as in the ~
case of Gerrard, 32 Eliz. 4 Co. 18. a f for on such general
Pasch. 4 Jac>
d Bulit 75. words no special slander can be imposed, (t) At if a
lease for life be made with condition of re-entry, and
J. S. will say, that he can shew that which wilf bring
him in reversion to the possession 5 this is not any Slan-
der, for the very lease itself by indenture, by whieh
the land was demised, will bring him to it, either by the
condition, or by the determination of the estate. 2. It ap-
pears by the plaint ifTs own shewing, that Elizabeth is heir
at the common law, and that the plaintiff himself has but
an estate tail, and upon that determined, Elizabeth will
have Tistley as general heir; and the defendant does
not shew any time certain when Elizabeth will have it,
but indefinitely, and that shall be taken in meliori sensu.
Quod nota; Yelverton of counsel with the defendant
(l) The general rule is, that
words spoken in scandal of title to
land are not actionable in them-
selves, and that to support an ac-
tion for them, special damage must
be all edged and proved. March on
Slander 73. Cro. Eliz. 197. Ger-
rard v. Dickenson. Cro. Jac. 397.
Smead v. Badley. ibid. 484. Tas-
burgh v. Day. Cro. Car. 141. Lawes
v. Har wood. Ley 82. W.Jon. 196.
Palm. 080. S. C. Sty. 169. 176.
Cane v Goldin$. 3 Selw. N. P.
1069. Ballentine on Lim. 101.
The following cases seem to be
contrary to those above cited. Cro.
Car. 469. Humphrys v. Stanfleld.
Godb. 451. S. C. W. Jon. 388.
Banister*. Banister. Cro. Jac. 213.
Vaughan v. Ellis, ih'id Ab2.Elborow
v. Men, Dodderidge J. dissenting.
To reconcile these eases, Mr.
Starkie, in his treatise on slander,
p. 143. states this distinction— viz.
words affecting the present title to
an estate are not actionable in
themselves ; aliter of imputations
tending to defeat the prospects of
an heir apparent. In Sheppard's
Aetions of the ease for Slander, p.
30. the law is thus stated — " when
the words are spoken to the preju-
dice of the plaintiff's inheritance,
the action may be maintainable
without averment of any present
damage, albeit the words be spok-
en before the ancestor's death, or
after the plaintiff has the land in
possession, and although he have
no special loss by the speaking of
the words."
There must be malice, express
or implied, to support an action
for slander of title, as well as for
any other slander. 4 Bur. 2422.
Hargrave -v. Le Breton. 8 Taunt.
246. Smith v. Spooner. 1 Maule&
Selw. 645. Pitt v. Donovan.
Trin. 4. Jac.
Higgins vs. Butcher.
1 BrowDl. 205. Noy 18. S. C.
After the THE plaintiff declared that the defendant assaulted
wife's death, and beat, &e. one A. his wife such a day, of whieh she
the husband died such a day following; to his damage, &e. And it was
Trin. 4 Jac.
moved by Foster Serjeant, flfltt the declaration was not
good ; because it was brought by the plaintiff for beating
his wife ; and that, being a personal tort to the wife, is now
dead with the wife : And if the wife had been alive, he
could not without his wife have this aetion ; for damages
shall be given to the wife for the tort offered to the body
of his wife. Quod fuit concessum.(i) And by Tanfield
justice, if a man beats the servant of J. S. so that he dies
of that'battery, the master shall not have an aetion against
the other for the battery, and loss of the serviee be-
cannot main-
tain an ac-
tion for a
tort to her;
and during
her life, she
must join in
r»<>]
the suit.
1 Rol. Rep.
360. Lit.
Rep. 285.
(1) As this aetion was brought to
recover damages for the personal
injury sustained by the wife, it is
very clear that it could not be sup-
ported. 1 Freem.224!.&mithv.Sykes.
Had the wife been alive at the
time of action brought, the decis-
ion must have been the same. They
must have joined in the suit, and
must have concluded " to their
> damage." Thel. Dig. 206. 1 Sid.
887. Horton *§• ux. v. ByUs. So
in other actions when husband and
wife sue for an injury to her.
March 212. Chambers S[ ux. v.
Ryley. Gilb. Cas. 286, Chilcot #
ux. v. Davis. * If in such suit the
conclusion is " to his damage" on-
ly, it is bad on demurrer and after
verdict. 2 Ld. Raym. 1209. JVeio-
ton $[ ux v. Hatter, But an inju-
ry to the husband only may be stat-
ed in the declaration, by way of
aggravation. 6 Mod. 127. Russell
v. Corn. 1 Salk. 119. S. C. 1 Stra.
61. Dix. v. Brookes. In many oth-
er instances, a plaintiff may well
alledge, by way of aggravation,
facts which alone would not sup-
port the action as brought, and
even facts which alone would not
support any aetion. See 1 Sid. 223.
Sippora v. Basset. 1 Show. 179.
Clayton v. Coatsworth. 2 Salk. 642.
Mwman v. Smith Seal 11 Mod.
264. Todd Sf ux. v. Bedford. Fort.
377. Read v. Marshall. 3 Wils.294.
Chamberlain v. Greenfield' Andr.
246. Smalley v. Kerfoot & al. 2
D & E. 166. Bennet v. Mlcot. 2
Manle & Selw. 77. Bracegirdle v.
Orford Sf al 3 Mass. Rep. 222*
Hemmenway v. Saxton S{ al.
Besides the aetion whieh hus-
band and wife may have for inju-
ries received by her — the husband
is entitled to an action for the in-
jury sustained by himself alone,
from the loss of her society and as-
sistance. Cro. Jae. 536. Hyde v.
Scyssor. Cro. Car. 90. Youns v.
Pridd. 2 Stra. 946. Smith v. Hix-
on. This action should be laid " to
his damage" alone, and he may
join any other trespass committed
upon himself. Cro. Jac. SOU Guy
v. Livesey. 2 Rol. Rep. 51. S. C.
2 N. R. 482. Woodward v. Wal-
ton. If it is laid to the damage of
the husband and wife, the declara-
tion is ill on demurrer and after
verdict. Gilb, Cas. ubi sup. The
loss of service is the gist oi this ac-
tion, and must be proved. If the
per quod is omitted in the declara-
tion, the defect is fatal on demur-
rer, in arrest of judgment, and on
error. 9 Co. 113. Mary*s case. 10
Co. 130. Osborne* s case. Bridgm.
48. J)Torris v. Baker cj al. 2 Ld.
Raym. 1031. Russell v. Come. 5
East 45. Dean v. Peel. 11. ib. 23.
Irwin v. Dearman. 2 Binney 287.
Gordon v. Kennedy.
Though the damage sustained
by the husband, from the loss of
the wife's society and service, is
consequential ; yet according to the
form in the Register, his appropri-
ate aetiou is trespass vi <y armis,
where the injury received by her
is direct and by force. So is that v
fwa]
Trin. 4 Jac.
eaase the servant dying of the extremity of the bat-
tery, it is now become an offence to the erown, being con-
verted into felony, and that drowns the particular offence,
and private wrong offered to the master before, and his ac-
tion is thereby lost (2) Quod Fenner and YeLverton con*
cesserunt.
of a master for loss of his servant's
service. Clayt. 17. Swallow v. Ste-
phens. Sty.94. More v. Stone. 1 Ld.
Raym. 374. per Lord Holt. 3 Bur.
1878. PostlethwaUe y. Parks. 2
Manle & Selw. 436. Ditcham v.
Bond. 2 Gaines Rep. 292. Jtkerly
t. Haines. Bridgm. & 2 N. R. ubi.
sup. In South Carolina, the own-
er may recover, in an action of the
ease, for the battery of his slave,
without alledging loss of service.
2 Bay 70. White v. Chambers.
.If husband and wife join in an
action for an injury to both, the
declaration is bad after verdict and
on error. E. IV. 60. 01. March
47. pi. 70. Sty. 139. Stradlinp &
ux. v. Boreman. 6 Mod. 149. Cole
v. Turner. 3 Binney BBS. Ebersol
v. Krug Sf ux. See l Vent. 328.
Jlnon. Separate actions should be
brought ; one by the husband alone,
for the injury to him (in which he
inay count also for the loss of his
wife's soeiety &c.) and one by the
husband and wife, for the injury to
her. Sty. 113. Smith v. Hobson.
And if the husband does not choose,
in an aetion for the immediate in-
jury to himself, to proceed also for
the loss of his wife's soeiety &c. he
may sue for that in a third aetion.
(2) The old maxim, that a tres-
pass is merged in a felony, has
sometimes been supposed to mean
that there is no redress by civil ac-
tion for an injury which amounts
to a felony. But after the defendant
is convicted of the felony, he is lia-
ble to a civil suit of the party injur-
ed. Latch 144. Markham v. Cobb.
froy 82. W. Jon.147. S.C. Stv.346.
Dawkes v. Coveneigh. 1 Mod. 282.
Lutterell v.Reynel $ aUHale.P.C.
546. So also he is liable after aO
ouittal, unless it is obtained per
fraudem. 12 East 409. Crosby v.
Lens. But where it appears that
a felony has been committed, it is
perfectly well settled in England
that the sufferer cannot maintain a
civil suit against the offender, till
he has been tried for the felony.
ibid. 1 Sid. 37 B. Cooper v. Witham
$ ux. 1 Lev. 247. S. C.
Sewall J. directed a nonsuit, in
an aetion of trover for goods which
had been stolen from the plaintiff
—an indictment being then pend-
ing against the defendant for re-
ceiving them, knowing them to be
stolen. Talbot v. Fr ederickson finji.
J ud. Court of Massachusetts, Nor-
folk County, October 1813.
The policy of the law requires
that before the party injured by
any felonious act can seek civil re-
dress for it, the matter should be
heard and disposed of before the
proper criminal tribunal, in order
that the justice of the country may
be first satisfied in respect to the
fiublic offence. The object of the
aw is to stimulate the party injur-
ed to bring the offender to trial,
and prevent a compromise, by de-
nying him all redress for the pri-
vate injury, till judgment has been
passed upon the offence. 12 East
ubi sup. SeeRelyng48.Rep.Temp,
Hardw. 330. Harris v. Shaw. Lofft
88. Golightly ?. Reynolds. 2Y). & E.
VdO.Horwoodv. Smith. Hammond's
N. P. 63.
Buller J. says the doetrine is not
extended beyoud actions of trespass
or tort. 4 D £ E. 333. See 1 U. B.
083. 088. 094. 10 Mass. Rep. 78.
Man. Sf Mech. Bank v. Gore & at.
ibid. 336. Boardman v. Qore of al,
Triii. 4 Jac.
Heake vs. Moulton.
THOU aft a common barretor, and deservest (o be Not actiona-
hanged : And, per curiam, no action on these words: For We to ?£ a 2 e
the words (common barretor) are no slander; for the of- ? ne w ^^
fence is only made finable, and he is to be bound de se bene jj^j Q b ara ( 0r "
gerendo : And to say that a man has broke the peace, or q Ut
is a common rogue, or a common hunter of deer in parks,
and a breaker of forests, are not actionable ; for they are Cro. Elis.
net slanders, but sound only in disgrace. The same law 171.
to say,f J. S. would have killed me, is not actionable, be- Hob. 140.
cause no act is done, but rests merely in conjecture : Oth- lj £* « jv*
erwise to say,$ he did lie in wait to kill me ; for the lying 1 g tr ' a# ^
in wait is punishable, and a slander, as being an introdue- Carter 214."
tion to a more wicked intent. The same law to say, he t Ante 57.
prepared poison to kill J. 8. although he never gave the Cro. JacJti.
poison, yet the very preparation is a slander. And for the * Cro » EUl#
other words (he deserveth to be hanged) they are too gen-
eral and extravagant to ground an aetion upon them ; be-
cause it is not shewn what act was done to deserve hang-
ing : And, per Fenner justiee, it was adjudged, that to say,
thou art as very a thief as any is in Warwiek goal, will
bear an action, with a particular averment that such a one '
by name at the time of the words was a thief in Warwick
goal ; but, because the plaintiff in such case had alledged
the averment of such a one who was not in the goal for
felony, but only as accessory to felony, for that reason there
was entered nil capiat per billam.{i)
(l)This decision is contrary to the special damage. Stark, on Slander
present established rule viz. that 46. 49. 50. 1 Freem. 46. Mayne v.
to impute any crime or misdemean- Digit. 3 Wils. 177. Onslow v.
or for which corporal punishment Home. See also Portman v. Sto-
may be inflicted by a temporal well, cited Moore 428. Finch's Law
court, is actionable without proof of 185.
The King vs. Matthew.
Cro. Jac. 123. 1 Brown). 166. Sr C.
IN a writ of error, on a judgment given in a ^uare Im- The Kiog
pedit against the king in the Common Pleas, totthe ehurch cannot be
of A. the point was only, whether a double usurpation on P ut °?* °£
the king put him in such a manner out of possession, that he ^dvowswi
should be put to his writ of right? And it was adjudged in the M r ^ i
Common Pleas, against the opinion of Anderson, Chief Jus- by any nam-
tice there, that the king is put to his writ of right : But ber of usur-
error being brought on that judgment, it was reversed in pations*.
Trin. 4 Jac.
the King's Beneh by the opinion of Popham, Chief Justice,
Yelverton, Williams and Tanfield ; Fenner being contra.
And tbey alledged two reasons ; 1. that the right of the
patronage, and of the advowson itself being an inheritance
in the crown of record, the law so protects it, that it ean
be divested by no tort committed by a subject ; for in the
king's ease there ought to be the saute means to divest it
out of the king, (viz. a reeord) as there is to entitle him.
And here is no matter of reeord against the king ; for the
presentation by a subject is but matter in faet, whieh act,
although it is mixt with the judicial act of the bishop, viz.
institution, yet that does not prejudice the king ; foras-
much as it is grounded only on the tort of a subject. 2. Rea-
son was; no man can shew when, and at what time the
usurpation on the king commences ; for there is no doubt,
but after the six months past of the incumbency, he may
well present ; for plenarty is no plea against the king, and
nullum tempus occurrit regi : And after such usurpation,
it is not doubted per curiam, but that the patronage is yet
in the king to grant. And per Popham, a confirmation
made by the king to such presentee is good to establish his
possession against a recovery in a (fuare Impedit by the
king afterwards; but it does not enure to any purpose to
amend the estate of the usurper ; for he gains no posses-
sion by the presentation against the king; but the release
to him by the king is merely void for want of possession ;
and during the life of the first presentee it is not questioned
(by them all) but the king might present ; then the incum-
bent's death cannot make that be an usurpation, whieh
was not so in his life ; for his death is a determination of
the first tort, which shall rather aid than hurt the king.
And (per Tanfield) according to this resolution was it. like-
Hob. 142. wise resolved 23, 24 Eliz. in the Common PJeas in one*
•l A d^" Yard' 6 *' 8 case, although there was not any induction in
Owen43. * tne case ' wnicn was "W reason that the opinion of the
Mo. 338.' j ua *§t* was not delivered in point of judgment ; but they
6 Co. 30. a. were all of opinion, as they in this court now are ; and no
Noy 18. book in the law is contrary, but only glancing opinions in
43 E. 3. 19. E. 3. & 18. E. 3. And in this case Popham
said, that Quare Impedit was at the common law, but that
was only on a presentation without induction ; for on the
disturbance at the common law the Quare Impedit lay.
But if the incumbent had been inducted, then at the com-
mon law a writ of right of advowson only lay. Quod no-
ta ; quia verum est.
[ 92 1 Amiger Brown vs. Went worth.
The spiritual BROWN administrator of one R. Brown his uncle,
court have gue< j j n tne gpintual court for a legacy of 300/. by one
of^hTSSes- Wentworth, who claimed this legacy by the will of R.
tion of the Brown. Amiger Brown, the administrator, pleaded a re-
Trin. 4 Jkc*
vocation of all former wills by R. Brown, by writing tin- revocation of
der his hand, and offered to prove it according to the course a WM 7 \ and a
of the common law, by one witness, comparison of hands P^ hlblt J ^
and such like, which proof the ecclesiastical judge would Ranted unt
not allow ; upon which Armiger Brown brought a prohi- less that
bition in the King's Bench containing the matter afore- court disal-
said : and upon the defendant's motion to have a consul- low common
tation, it was well argued by all the judges there. And by ,aw P roof '
Pbpham and Williams strenuously, that a consultation
ought to be awarded : For the will in this case is the prin-
cipal, of which without doubt the spiritual court has ju- p ogt# 135
risdictiou, and the revocatipn is a thing merely depending 173 * '
and waiting on the will, and but accessory to it ; and there- Cro. Jac.
fbre shall be there also tried ; for in regard the suit there 269
is but for the legacy, which is merely ecclesiastical, and
for which the party cannot have relief by the common law,
there is no matter contained in the suggestion to entitle the
king's court either to the thing demanded in the spiritual
court or to jurisdiction. But if the will had contained
land and legacy also, and it had appeared by the suges-
tion, there because there might be crossing in proof, to 6Co.23.a.b.
prevent this contrariety, that the proof in the spiritual Het1, 12 °*
court might be no evidence at the common law, nor any
inducement to a jury, it is usual to grant a prohibition.
But nunquam where the entire matter contained in the
suggestion belongs to the spiritual court But Fenner, Yel-
verton and Tanfield resolved to the contrary, i. Because
the revocation is merely a temporal act, which discharges
the spiritual court from having any intermedling with it,and
is not in any sort dependant on the will ; for they are called
dependants whieh go in affirmance of the will, and not they
which disannul and disaffirm the will,as the revocation does;
for this revocation is an exemption of the will, which shall
not be ventilated there, by their strict kind of proof, where
there ought to be two festes vmm exceptione majores ,• for a re-
vocation before one witness is sufficient in our law. 2. Al-
though the spiritual court has power both of the will and
of the thing- demanded there, viz. the legacy; yet in its
original nature the will itself was temporal. As appears
by 2 R. 3. Testament 4. And a thing which goes in
abridgment of the common law shall be taken strictly, and
shall not have any favour in construction, so that the revo- [ 93 J
cation, being a thing merely collateral to the will, remains
at the common law as to proof. As 1 R. 3.— a man by ***
will gave an horse to J. D. and afterwards by delivery
with his own hand gave the'same horse to J.S. If J.D. sues in
the spiritual court for the horse as for a legacy, and the
other pleads that the testator gave it him in his life-time,
this shall be triable in the spiritual court also, for by com-
mon intendment the judge there will do right to the par-
ties. But, per Yelverton in that ease, if the judge will not
allow such proof as the common law allows, a prohibition p ph. 58.59.
shall be granted; and yet the common law cannot deter- Hutt. 22!
10
Trin. 4 Jac.
Latch 117. mine the thing demanded; yet it prohibits the judge till
217. he submit* himself to the allowance of such proof as the
Cr. £liz. 88. eomil | |i law requires. And this point being precisely put
Mo 413 907. * D t * ie 8U gg est i° n i yiz * refusal of such proof as the corn-
Hob. 188.' mon * aw admits, was, as Tanfield said, the chief ground
S47. of his opinion ; for now the plaintiff complains in a point
1 Rol. Rep. certain and of such nature as by the common law ought to
12 - be redressed : whereas if he had omitted such special mat-
2 Rol. Rep. ter> T ' lZm digallowanee of the common law proof, a eon-
1 Show. 158. *°lt a ti° n ought to issue ; for so was the case 29 Eliz. in
172. B. R. where in a suit for a legacy the party defendant
3 Mod. 283. pleaded a release, and because the judge would not allow
2 Salk. 547. it, he brought a prohibition, and suggested nothing but that
the judge would not admit the release, and did not rely on
the manner of the proof used there, and for that reason a
consultation was awarded ; for the court there may try
the release, and by refusal of the release only by the judge,
the party is not grieved in any temporal sort and kind ;
but ne may well be relieved by appeal ; but if he had ex-
I tressed his grief by rejecting such proof as the common
aw allows, then stet prohibiiioni. Quod nota. Yelverton
of counsel with the plaintiff.
Wildbore vs. Cogan.
pe? 1 * bXm THE plaintiff declared on three several assumpsits, and
entered be- ' a ^ ^ e " rst assumpsit 1 Aprilis anno 44 Eliz. the second
cause the assumpsit 1 Junii anno 44 supradicto ; and the third as-
plaintiff, in sumpsit in this manner, cumque postea, scilicet 12 Feb. an-
declaring on no 44 supradicto, &fc. And upon non assumpsit pleaded,
several as- ft wag f oun d f 0P the plaintiff. But nil cap. per billam en-
tered "' the * ere< * Decause *^ e promise, which was prior tempore, is pat
last (under a ov the declaration to be posterior ordine et tempore also,
postea tcili- by reason of this word {scilicet) annexed to this word (post-
[ 94 ] ea) for as by the word (postea) the promise which follows
cet &c.) on a is to be intended of a promise after the first assumpsit, so
day before being joined with this word (scilicet) which makes the
toe others. wor d (postea) which of itself is general, to be now special,
^ M * referring to a eertainty, cannot receive any construction,
Cr. Jac. 97 DBt ^ at ^ e ^' r ^ P rom i se was a ^ er tne other promise,
450 618. ' vy hich by expressing the time to be 12 Feb* 44. is repug-
nant and contrary ; for Feb. 44. is before April 44. But
by Popham chief justice, where there is a certainty ex-
pressed in time, as the day of the bill purchased, which is
always set down, and afterwards the plaintiff will say in
his declaration, that the day of the bill purchased, scilicet
such a day in certain, and mistakes the day, in that case
the (scilicet) is idle and void, by reason of the former cer-
tainty appearing of reeord ; but in this case the (scilicet)
denotes only the certainty which was not expressed before,
and that to be subsequent in time to the former premise,
Trin. 4 Jac.
which appears otherwise ; and therefore the plaintiff can-
not have judgment, for damages are entirely given for all
three promises ; and it appears that one of them is not well
laid.( l) Quod nota. But if (scilicet) had not been joined
to (postea) then the declaration had been good, and the
(posted) only per se had been void. And Tanfield justice
said, that according to this resolution, it had been adjudg-
ed before in the case between Drake and Younge.
(l) The established rule now is, day were stated. 1 Saund. 119.
that if what comes under a videli- Cutler v. Southern. See 9 East
cet is impossible, or contrary to 160. Pur cell v. Macnamara.
the preceding matter, it shall be When a videlicet contains mat-
rejected as surplusage, unless it is ter that is material and necessary
material and necessary to be al- to be alledsed, it is considered as
ledger!. 1 Saund. 169. Skinner a direet and positive averment, and
v. Andrews, ibid. 286. Duppa v. the matter may be traversed as if
Mayo. 2 Saund. 290. Dakin's no videlicet had been inserted 5 and
case, & n. 1. Lawes Plead. 64. it must be proved. Cases supra
The omission of the day, in most and Gilb. H. C. P. 131. 1 Chit
cases is not material, but matter of PI. 308. n. b. 1 Mason's Rep. 66.
form merely, and to be excepted to 1 V. States v. Burnham. . 4 John,
only by special demurrer; and by Rep. 450. Vail v. Lewis Sf al.
rejecting it as laid under a videli- 1 Starkfe's Rep. 3. Preston v.
cet j the declaration stands as if no Butcher. 1 Stark. Crim. PL 289,
Mich. 4 Jac.
Hawkes vs. Brothwith.
IF a parson grants to a parishioner his own tithes by A parson
way of retainer, although it be not by deed, but only by may grant a
parol, it is good ; and a prohibition shall be maintained on P&rUhioner
this grant by way of suggestion, if it be for years ; other- " a jj, f ^ r
wise if it be as long as the parties live, or such like; for ^ay^of re^
although it does not sound in interest by way of contract, tainer, with-
out only by way of discharge, yet it is good without deed ; out deed.
for it is in the nature of a personal composition, which d titer of a
may be without writing, only by parol. But between* grant for life.
Nelson and Woodward and Prettiman it was ruled, that #c r £j jog
if a parson by way of contract by parol agrees that J. S. 249'
shall have all his tithes for three years, or such term, Owen 103,
by virtue whereof J. S. takes the tithes and is sued for 2 Leon. 29.
them in the spiritual court, J. S. shall have a prohi- [ 95 )
bition on this matter; for although it does not enure Cro.jac.669,
by way of interest to make it a lease of the tithes, be- I L i v, f 4 '
cause it is without deed, yet the coutract between them un ' *
shall bind as to the perception of the tithes, of which eon-
tract the temporal court shall judge 5 but if he assigns the
Mich. 4. Jac
benefit of hii contract over to J. D, J. D. shall not haves,
prohibition on a suit in the spiritual court, because no in*
terest was transferred by the eontraet, but only a persona)
bond between them, which runs oulv in personal privity
of the eontraet, and does not extend to a stranger. Ac-
cording to the principal ease was Rolls and Rolls, a Corn-
wall ease, that on the agreement to retain tithes, if it be
without deed, a prohibition will lie.
A composi-
tion to retain
tithes for
7 years, ren-
dering 50*.
per annum,
is good with*
out deed.
•Cr. Jac.
137. 668.
Hardr. 203.
Tanner vs. Small,
NOT A, Paseh. B Jae. between Tanner plaintiff, and
Small defendant in a prohibition, the plaintiff suggested,
that he being a parishioner compounded with the defend*
ant to retain his tithes for seven years, rendering 60s. per
ann. and it was moved that it was not good, because it is
not alledged to be by deed : But tola curia contra, and
they took a difference" between such composition, to have
for vears, and to have for life; the first is good without
deed, the second not. And* so it has been often adjudged.
It hath been since resolved, that no prohibition will lie upon any
composition, whether for life or years, for any tithes ; and
therefore the proper remedy is to appeal to the Arches, if the
Consistory Court should refuse a plea of composition.
Car the* 70.
Hii. 4. Jac,
Parry w, Dale,
Cro. Jac. 146. Hob. 119. S. C.
Ifthepjf.de-
clare on a
bond of 500/.
and on oyer
it appears to
be " quin-
qucgintit,"
THE plaintiff declared on a bond of 000 J. The defend-
ant demanded oyer of the bond and condition, which were
entered in haze verba, Sfc. Noverint, Sfc. the defendant
teneri et firmiter obligari to the plaintiff in quimquegint.
libr. Sfc. and per totam curiam, prater Williams, justice,
nil capiat perbUlam entered,(l) for although false Latin in
a bond will not make it void or vitious, as it will do in a
(l) A writ of error was brought
on this judgment in the Exehequer
Chamber, and the question many
times debated ; but the eause was
ended by the mediation of the
judges. ." For myself," says Lord
Hobart, " and most of the judges
were of opinion the bond was good
for five hundred pounds." Hob.
119. In modern times, the courts
have not permitted mistakes in
syllables and letters to affect the
rights of parties. See S Mod. 281;
Crumweltv. Grunsdale. ±2 Mod.
193. 1 Ld. Raym. 830. Holt 123.
502. 2 Balk. 462. S. C. Cowp.
229. Rex v. Beach. 2 Binney
76. Douglas Sfal. v. Beam Sf aL
Hil. 4 Jac
writ, id H. '7. because a ana* may purchase a «ew writ at H m * fatal
his pleasure, but not a new bond ; yet words which have variance,
not any sense or signification, or which are not omnia vtr- V 4-
ba Latvia, will not bind any man, and liere the ward
(qwimque) with an (») is no Latin word, and although in
sound it resembles (qvinque) which is (five) yet, by the en*
try of the bend in hone verba, the court ought to judge of _
every letter and syllable, and it is not like 9 H. 6. wiginti I 96 1
Ubri 9 which is taken to be good, beeause in every (w)
there is a single (»•) So here if it had been (quinnque)
with a double (n) or, as Popham ehief justice said, (quijn*
que) with two dashes over the head, it would be but incon-
gruous Latin. But (quimque) with an (at) is no word at
all. So it is as if J. S. is bound in libris with a spaee,
without shewing quantum, whieh is not good. (2) Quod
nota. Yet nota in this case I vouehed a preeeedent of a ease
between Waiter and Pigot * in the Common Pleas 43 Eliz. * Hob 115
where the writ of debt was brought pro septingentis libris. Mo. 645.
and upon oyer of the bond entered, the oond itself was Cr. £1. 896.
septuagentis libris, and a variance pleaded between the
writ and the bond, and yet adjudged good ; whieh judg-
ment was affirmed upon error ; and yet there is no such
word as (septuagent.) but because (septua) is a part of a
good Latin word, as (septuaginta) for (seventy) therefore
(septuaj joined with (gentisj viz. wrote with an (e) and
not with an (i) is good. It was said per cur. they be not
alike : but if it had been septuamgentis with an (m) aliter
senserunt.
(3) But if the party executes a 2 Ch. Rep. 187. Vagot v. Fagot
deed, leaving a blank spaee for 1 Anst. 228. Teocira v. Evans,
the sum, which is inserted after- eited by Wilson J. 5 Mass. Rep.
wards by his consent, he will be 038. Smith v. Croeker Sf al. 4
bound by it. Moore 547. Mark- Binney 1. Moore Sc al. v. Leesee
ham v. Gonaston. Cro. Eliz. 626. ofBickham <§• al. 9 Cranch 28.
S. C. See also 1 Vent. 185. Speake Sf al v. U. States. /. tf&./y^
Zouch v. Claye. 2 Lev. 35. S. C.
Bagshaww. 6a ward.
Noy 119. Cro. Jac. 147. S. C.
THE plaintiff declared for an horse taken at B 14.
Nov. 3 Jae. Tbe defendant pleaded, that he the same J° r J£* n pa "
fourteenth day, &e. seized it within his manor of D, &e. hone, if the
as an estray, and shewed that he had title to estrays there deft, jmti-
and that the plaintiff the same fourteenth day, retook the fies as for an
horse and was thereof possessed again. The plaintiff replied c J* ra y» •*£*•
that 16 day of November the defendant used and rode the ^deHt us-
horse at B« &c. and upon that it was demurred, and ad- ed the h ' org ^
judged for the plaintiff; for the matter alledged in the » not a de-
replication is no departure, but agrees, and is of the same parture ; for
Hil. 4 Jac.
he thereby nature, with the trespass supposed by the declaration (l)
becomei a for although at first by the declaration in common in tend -
trespasser ab m entthe plaintiff is to recover the value of the horse in
damages because trespass disaffirms property; and al-
though the defendant shows that the plaint iff has the horse
again, yet that is but mitigation of damages ; for now he
recovers only for the detainer. Bnt when the defendant
hy his demurrer has confessed that he rode the horse 16
November, although the taking of the horse as an estray
is justifiable, and no trespass ; yet because by the seisure
as an estray he has not the property, bnt a bare custody ;
therefore the riding is a misdemeanor, and makes the seis-
ure tortious ab initio ; for it is a misuser of the license in
law (2) as if a man distrains corn in sheaves, and threshes
it, 21 E. 4. or eomes into a tavern and steals a cup, 43 E.
4. or the lessor eomes to view waste and breaks the hedge,
in these eases they are trespassers ab initio, and the very
[17] entry is punishable, which at first by the license in law
was good, 2 H. 7. It is otherwise of a license in fact, as
Yelverton justice said, for that excuses the entry, although
a tortious act ensues, and the party shall be punished only
for that in which the act is tortious, and for nothing more.
(fuod notas{Z)
(1) Concerning the doctrine of In Burdet v. Mathewman, Clayt.
departure, see Com. Dig. Pleader. 107, it was held that the lord gains
F. Bac. Abr. Pleas &e. L. 1 Chit no property in an estray, till the
PI. 618. 1 Saund. 117. n. 3. 2 ib. year and day are past : and there-
84 a. n. 1. 186. n. 3. Clayt 72. fore cannot maintain trespass but
Priest v. Gaunt. case only, against one who takes
the estray from him. See also
(2) Though an estray may not Brook's New Cases 110. Finch
be worked, yet he may be fettered, Descrip. of Com. Law 147. Com.
if he is unruly $ for the lord of the Dig. Waife. F.
manor is answerable for trespasses
done by an estray. Winch 68. 124. (3) See ante 29. d. n.
Pkadalv. Gosmore. Hut. 67. S. C.
Harrington vs. Launsdon. N
NoylSO. S.C.
f f uH ft of a Xe' LAUNSD0N recovered in the court of Shrewsbury in
dePt. a writ trover for sheep against Harrington by default, and a writ
©f inquiry is was awarded to inquire of the damages, returnable at the
awarded, & next court, ad quern diem the plaintiff appeared, and the
the plf. does writ was returned served, but iurata ponitur in respectu
n ° l th api \ ear usque ad proximam curiam, which is put in certain ; and
given ow a< tnat ^ay the plaintiff appeared again, and the jury pon-
tile whole & ur * n res ptctu, and day given over till 10 Junii, &c. and
matter is on 10 Juniijurata again ponitur in respectu ; but the plain-
discontinued tiff did not appear at that day, nor had another day over ;
^^^^«^^
Hil. 4 Jac.
[•'•J
and at the day given to the jury they appeared, and gave though the
20L damages. Upon which the plaintiff had judgment for J ur J inquira
the ml. damages, and costs. And Yelverton assigned for * nd a89eM
error, that the plaintiff not having day on the last adjonrn- d&ma & e8a
ment over, that the whole matter was discontinued ; for by g r . £1. 144.
the first judgment the defendant was out of court, yet the 774.
plaintiff ought to attend from day to day, because his judg-
ment is not perfect till the damages enquired : Then when
the plaintiff had day till to Junit, &c. and did not appear
at that day, the court ex officio, without the prayer of the
plaintiff, ought not to have made a continuance of the jury;
for that ought always to be ex petitions of the plaintiff.
Telverton also assigned another discontinuance in the case,
viz. because the jurv was continued over by a ponitur in
respecta, which should never be, but on an issue to be tried
between the parties ; for the jury on a writ of inquiry of
damages is but an inquest of office, which has no other
continuance but hv a non misit breve by the officer, or by
the sheriff Quod/nit concession per totam curiam, in both 2
And thereupon the judgment was reversed.
Marthatn vs. Jemx.
1 Brownl. 92. Cro. Jac. 149. 9. C.
. IN debt on bond, the condition was to stand to the award, An awanJ
arbitrament, &c. of Master Pooley of Grays-Inn about the that one par-
title of a copyhold tenement(l) Mr. Pooley awarded, &c. ty shall pay
(1) It is often said in the old
books, that title to real property
is not arbitrable ; that arbitrators
cannot award the freehold of one
to another, &c. March on Arbit.
±54. 155.
During the feodal restraints on
alienation, it might have been rea-
sonable that the possessor of land
should not be permitted, by refer*
ence to an arbitrary tribunal, to
infringe the collateral rights and
reciprocal restraints of the lord
and vassal. But, as Mr. Kyd just-
ly observes, there is nothing in the
nature of real property itself, which
makes it an unfit subject of arbi-
tration ; and at this day, when the
expressions above mentioned, and
similar ones, are used, they mean
no more than that land cannot be
transferred, or a division made of
it, by the mere magic of the words
of an award ; but it is necessary the
award should order such acts to
be done, as would, if done by vol-
untary agreement of the parties,
amount to a proper transfer or par-
tition at law. Kyd on Awards 80
to 62- See also March en Arbit.
263. where an award is stated at
length, directing a copyholder to
surrender to the lord, and the lord
to assure and convey to the copy-
holder by copy of court-roll, ac-
cording to the custom of the manor,
or otherwise as the copyholder or
his counsel should advise ; to hold
according to custom.
In Massachusetts, referees ap-
pointed by submission before a jus-
tice of the peace, under the statute
of 1786. cap. 21. have no authority
to determine the title to real prop-
erty. 8 Mass. Rep. 1. Fowler v.
Bigelow 3f «*• but where a sub-
till. 4 Jac.
«oths2lstof that the defendant should pay the plaintiff el on SI Maiu
Majf ft that 3 jfo. 04 gM h a place, via. io the ehureh porch of Rattles*
to other deD; ^dftjptte,. awarded, &e. that the plaintiff by hie
on * t/uwid deed * hoaW release to the defendant totem jus, $c. super
r 98 J prcBttictum primum diem JMosi, at the same place on the
lit of May, day meat ot%L and in another clause in the award he award-
is void. ' ed the plaintiff should make further assurance to the de-
fendant for the extinguishment of his title, as should be
devised, &e. And Velverton moved, that this arbitrament
was void, and that it is in a manner no award ; for it ie>
repugnant and insensible ; for although it is certain on
what day the defendant shall pay his of. jetneseUur Quan-
do, nor on what day the plaintiff shall release to the de-
fendant, for there is no suth prcedictum primum diem Maiit,
m the whole award, and it is not bound or tied to any year
of the king, so that it is altogether ineertain ; and al-
though it may be collected that the arbitrator intended the
twenty-first, day of May, by reason that it is limited to be
made super solutionem of the 6l. whieh was 21 Mail, yet
that is but by way of inference and implication ; and al-
though it was objected, that admitting the award void in
that point, yet it is good in the residue, which is to be per-
formed by the plaintiff, viz. the making of better assurance :
To whieh Yelverton answered, that all the clauses in an
award are material, and this clause of further assurance
depends on the repugnant clause of the release to be made $
for the arbitrator intended that the release limited to be.
made super prcedictum primum diem Maii (where there is
no such day) should be the first assurance, and the assur-
ances which are to be made by the subsequent clause tend,
in the arbitrator's intention, only to the strengthening of
the release. Quod fuit concessum. Et per totam curiam
there is a difference between wills and deeds, and between
awards 5 for deeds, &c. shall be construed according to
the intent of the parties, and upon the words to be col-
lected on. the deeds;, but an award is in the nature of* a
judgment and sentence, in whieh there ought to be plain-
ness, and no collection of the intent of the arbitrator^ 2):
mission . is made under a rule of tie to lands in dispute, though it
court, in an action pending, refer- has not the effect of conveying the-
ees have the same power as a jury, lands, yet it will prevent either-
and judgment is rendered on their party from stirring the controversy,
report as on a verdict. If they in an ejectment, . by concluding-
state the facts on which they form them from disputing the title af-
their conclusion, and make a wrong firmed by the award. 3 East 15. Do*
legal inference, the eourt will set ex dem. Morris <$* aL v. Ressen
aside their award. See 10 Mass.
Rep. 464. Cummings v. Wymaru {2) More liberal rules are now
2 Harris & MoHenry 477. Oliver adopted in the construction of
& al. v. Heap Sf at. By a recent awards, and they are interpreted
decision in England, if a suborns* according to the intention of the:
sion and award be made of the ti- arbitrators. Kyd 228 to 248.
Hil. 4 Jac.
Jbr it ought to be his judgment and not the judgment of*
another on the arbitrator's words ; and therefore by Tan-
field justice, it has been adjudged, * where an arbitrator *5 Co.77,78.
awards that one of the parties shall become bound to the Cr. EL 432.
other in the sun of , and mentions no sum in cer- Mo# 359#
tain, but leaves a space for the sum, it is void; and if the
award is void in one clause, although it is good in all other
clauses, yet it is in law no award ; for a judgment ought
to be full and perfect in omnibuses) Quod JSTota. But if
the arbitrator awards that one of the parties, and t J. 8. a *
stranger, shall do such a thing, it is good as to the party, 3*i*eon?62.
because within the submission, and void only for J. S. who 5 c . 78. a.
is a stranger.(4) Quod vide 19 E. 4.
Keilw.43.
45. b.
(a) This was the old rule, but it
is now different. When an award
void in part, shall be good for the
rest, see Kyd 243 to 264. 7 Cranch
006. Thornton v. Carson.
(4) In an action on a bond for
the performance of an award
which is void in part, the plaintiff
should assign as a breach the non-
performance of that part which is
good, without noticing the part
which is void. March on Arbit.
189. cites 18 Ed. 4. per Brian,
Neale & Choke Js. Bo in the case
of Willmer v. Oldfield, Bav. ISO. 1
Leon. 804. Owen 103. S.C. where
the award was that the defend-
ant should pay the plaintiff 123/.
or procure a stranger to be bound
in a writing obligatory in 200/. for
the payment of 12/. annually to
— — duriug the life of the defend-
ant and his wife and the survivor
of them ; the defendant pleaded
performance generally, to which
the plaintiff replied that the de-
fendant had not paid him the 128/ ;
on demurrer to this replication, it
was held to be good. The court
said the plaintiff need not notice
" the article of the arbitrament
which was in the disjunctive, 9 ' for
it was void " and ougfit not to be
regarded by either party." 1 Brownl.
03. 95. Rayson v. binder. 8. P.
So in assumpsit, where the plaintiff
set forth au award which ordered
the defendant to pay the plaintiff
several sums of money at several
times, and that he should give the
plaintiff bond with surety, to secure
payment— and shewed for breach
that the defendant had neither paid
nor riven bond, it was held that
the declaration was good, without
negativing the giving bond with
surety. 2 8aund. 337. Cooke v.
Whorwood.
For other points of pleading, in
actions to enforce the performance
of awards, see Kyd. eap. vi.
The King vs. Fawcet.
Cro. Jac. 148. Noy 119. S. C.
[99]
FAWCET, and others, were indicted on the statute 6 In an iodict-
H. 6. for a forcible entry on the freehold of the earl of ■*■* for for -
Lincoln, and it was for au entry and force before the last ^ e £? n 2j
pardon by parliament: And Croke moved to have resti- pardon of the
tution ; and per curiam, nonpotuit $ for the statute 8 H. 6. force pre-
provides two means to punish offenders, one at (he suit of vents resti-
the party by way of action, the other at the king's suit by tation*
20
Hit 4 Jac.
Indictment : and in ease where the king is party, the force,
which is the offence against the crown, is the principal,
and the restitution is but accessary, and depends upon that;
then when the king has pardoned the force, the strength of
the indictment is gone ; for the party is not to have resti-
tution but by means of the king, and the king has given
away his title (viz. his fine) by the pardon. And by Wil-
liams justice, so was it ruled before between the lord Staf-
ford and Thinn for lands of the lord Stafford, which Thinn
was indicted for entering with force, but obtained the
queen's pardon of the force, which pardon he shewed to the
court and pleaded it in bar against the lord Stafford to pre-
vent restitution : Bt sic fecit, per opinionem curia.
The King vs. Ford, &c.
Cro. Jac. 151. S. C.
If tbe grand FORD, and others, were indicted on the statute 8 H. 6.
jury, when for a forcible entry, and also for a forcible detainer of a
indictment messuage, &e. in com. Essex, being the freehold of Rieh-
ertry & de- ard Hariakcnden 5 and thi » indictment wss preferred at
tainer if pre- * ne *e*sions to the grand jury ; and they returned it in this
ferred, in- manner, viz* as to the entry with force, ignoramus ; as to
done igno- the detainer with force, billa vera : But this endorsement
ramus ai to not being spied, but being taken by the justices of peace for
f* e & F L^ a fuIi indietment in b °th points, they awarded restitution
rerTaftothe to Harlakenden ; but afterwards, this indictment being eer-
detainer, it tified into the king's bench by certiorari, and the endorse-
is no indict- ment returned in manner ut supra, they awarded re-resti-
mentatall. tutien; yet Yelverton moved, that they ought not to re-
gard the endorsement, for the court did not send for it, hut
Sav. 68. f or th e indictment; and this endorsement makes it no in-
dietment at all ; so the clerk of the peace has done more
than he was commanded to do ; but per curiam, the en-
dorsement is parcel of the indictment, and the perfection
of it ; and the court sent for the indictment cum omnibus
idtangen. and the endorsement touches it principally, for
I 10 ° J it is the life of it. And in this case, per curiam, after such
finding of the jury, Harlakenden ought to have preferred
a new indictment for the forcible detainer only ; for now
being made one intire indictment, and the jury finding only
the last, it is no indictment at all. Quod nota.(\)
(l)Where an indictment contain- finding billa vera as to one count,
ed two counts, one for a riot, en- and rejecting the other, left the in-
dorsed ignoramus— \he other for dictment just as if there had orig-
an assault and battery, returned inally been but one count. Cowp.
billa vera— -the court refused to 825. Bex v. Field. See 2 Hale P.
quash the indietment, and said the C 163. 173. 1 Stark. Crim. P1.37.
Pasch. 5 Jac
Baker and the Bishop of Peterborough vs.
Catesby.
Jenk. 282. 6 Co. 62. Cro. Jac. 141, 166. S. C.
FOSTER, parson of Whiston in com. Northampton, The6month$
was deprived 15 Jan. 1604. The bishop of Peterborough, a,,owed . for
as ordinary, gave notice to Catesby the patron 24 Feb. fol- P r e«entw|to
lowing, and afterwards 12 August next collated Baker, are calendar
upon which Catesby brought a Q. Impedit, and recovered months,
in the common pleas, which judgment was affirmed on er-
ror in the king's bench. And the sole question was, wheth-
er tempus semestre which is limited to the patron by the
statute W. 2. c. 0. should be accounted a full half-year, or
six months, according to twenty -eight days in a month ?
And it was adjudged that it should not be accounted by
months, but for a full half-year, by dividing the .year into
days, viz. 182 for the patron, and 182 for the bishop ; and
for the odd day in the year, that the law does not regard
it ; and so much also appears by the general course of
the law, which gives the lapse to the Metropolitan after
the year : which is a demonstration that the first year is
to be divided between the patron and the bishop. And
although the statute W. 2. in one place speaks or the tern'
fus semestre, and in another place of the dimidium anni ;
it was held that the one expounds the other, the first being
spoke in verbo artis concerning prelates, the other in plain
terms which concerns the common people for the punish-
ment. But it was held that in some statutes where (a
month) by name is mentioned, there the account shall be
by twenty-eight days to the month ; as on the statute of 2 lost. 674.
27 H. 8. of inrolments. And in this case Yelverton jus- Dyer 218.
tice vouched Spilman's abridgment 21 H. 8. adjudged ac-
cording to this resolution ; and said that Walmesly jus-
tice in the common pleas vouched a manuscript of the time
£. 1. next to the statute according thereunto, that tempus
semestre should be accounted the full half-year ; therefore
in the case supra on computation, it appears that the bish-
op's collation was twelve days infra tempus semestre. [ lot j
Wherefore Catesby recovered in the common pleas, and
had his judgment affirmed in the king's bench ; nullo con*
tradicente in either court(l)
(1) In English statutes, the term Adderly. There is an exception to
month, used generally, means a lu- this rule, as in the text, when a
nar month, unless from the context statute speaks of six months in a
it appears that calendar months matter which concerns ecclesiasti-
are intended. 1 Esp. Hep. 240. La- eal proceedings. Com. Dig. Ann.
con Sf al. v. Hooper Sf at. 6 D &E. B. So "a year" is twelve calendar
224. S. C. Esp. Rep. 169. Hurd months, ibid,
v. Leach. Doug. 463. The King v. . In all legal proceedings, a month
Pasch. 5 Jac.
[lOiflJ
means twenty-eight days. 3 Bar So in the law merchant. Evans
1405. Tullet v. Unfidd. % Bl. Com. on Bills li. Kyd on Bills 5. Chit.
144. " A twelvemonth" is a full on Bills c. vi. Abbott on Shipp.
year* 4 Co. 62. In matters of eon- 276. (816.) 1 Esp. Rep. 186. JoUu
tract, months are construed to be v. Young. 1 John. Cas. 09. Lef-
lunar or calendar, according to the fingwelltif al. v. White.
intent of the parties at the time the In Massachusetts and Pennsyl-
eontraet is made. 1 Maule&Selw. tania, a month, mentioned gener-
111. Lang v. Oale. ally in a statute, is a calendar
In the ecclesiastical law, months month. 4 Mass. Rep. 461. Avery
are computed by the calendar : S( al. v. Pixley. % Dallas 303.
Per Denison J. 8 Bur. and per Le brudeneU <$* al. v. Vaux S( aL 4
Blanc J. lMauIe&Selw.tt6is»p. ib.148. Commmwealthy.Chambre.
Ward vs. Walthewe.
Cro. Jac. 173. Noy 122. 1 Brownl. 137. S. C.
What shall THE Bishop of Exeter tempore H. 8. by deed gave land,
be a jointure & e . to Nicholas Turner and Bybill his cousin, m consid-
•tatute UH erat * on °f »ervieedone by Turner, and other considerations
7.-who shall ^ m mov > n 5» to them and to the heirs of their bodies, and
take advan- died j they had issue Jo. and William ; Turner died ; 8y-
tage or a for- bill married one Clapham ; they alien the land; &e. to Jo.
leiture- and in fee ; Clapham died* Bybill entered, Jo. levied a fine to
it here a pre- Walthewe, in fee of the land, &c. 8ybill afterwards ,en-
cuTes V ao ill feoffed William the younger son, who enfeoffed Edward
count. Willoughby $ Jo. entered and demised to Walthewe, and
afterwards Walthewe entered ; and Willoughby, to try the
title, sealed a lease to Ward, who declared of so many
Pigott od acres of land, &e. in Sutton Coefield; and the matter su-
Rec. 81. pj.^ u -j on non cuipafoiis pleaded, was found by verdict.
Rec. rt> l60. On ^ n "* at the bishop dedit tenementa prcedicta ver factum
suuniy cujus quidem facti tenor sequitur, Sfc. and dj the deed
it appeared that the land was m parva Sutton tnfra do-
minium de Sutton in Coefield. And, per cur. the plain-
tiff shall recover; for 1. It was held, that it was not any
jointure within the statute 11 H. 7. for it is not any such
' gift as is intended by the statute ; for the bishop was not '
any ancestor of the husband, and the husband gave noth-
ing for it, but it is only a voluntary recompenee by the
bishop given in acceptation of past service ; and the stat-
ute intends a valuable consideration and gift in fact ; al-
so the bishop might well intend the gift for the advance-
ment of the wife, who appears to be the bishop's cousin ;
and, per Tanfield, if it should be a gift within the statute
It H. 7. it could be but for a moiety, for the gift was be-
fore the marriage, when they took by moieties, and the
husband dying first, the wife does not come to any part by
the husband, but by course of law by surviver. (jucere of
this conceit ; for the other justices did not allow it. 2.
Pasch. 5 Jac.
They all held, that the fine of Jo. the elder son of Sybill
levied to Walthewe destroyed the entry of John and of
Walthewe 5 for although in truth the fine passed nothing
but by conclusion, yet against the fine the son Jo. and Wal-
thewe his eonusee shall be estopped to claim any thing by
way of forfeiture on the part of the wife, on any title ac-
cruing after the fine 5 for they have no new right, but Jo.
being the son to whom the land was intailed, is barred by
the fine* 8. Although upon view of the deed made by the
bishop, the land whieh by the declaration is granted in
Sutton Coefield, by the deed appears to be in parva Sutton r 102 1
&e. yet that is aided by the finding of the jury, who find
expressly that the bishop dedit tenementa infrascripta ; so
that being so precisely found, the deed is not material.
quodnotm.(l)
(l) See Bae. Abr. Discontinuance. D. in notis.
Mich. 5 Jac.
Cox vs. Semor.
IN a suit for tithes of lambs and wool, &e. for sheep Suggestions
depastured in a close called Greenhil in Balking in Com. not 1"™^"
Berks. Tbeplaiatiffbroughtaprohibit^ £K
that Greenhil had always paid 105. in discharge of all tithes g00 d apoD a
of lambs, wool, &c. And Yelverton moved lor a consulta- new libel.
tion, beeause the same suggestion had been made before in
four several prohibitions lor the same close, and the same
manner of tithing alledeed, and a consultation always
granted for want of proof within six months ; yet, per cu-
riam, it being only for want of proof, and not on the right
or trial of the custom, and being also for the tithes of an-
other year, whieh were not in demand before, the sugges-
tion is good 5 for the statue 50 £. 8. goes to a suggestion
made upon the same libel, and to a consultation duly grant-
ed, whieh is not done in the ease above, but only for neg-
ligence in not having his prooft ready. JSTota.
Tanner vs. Small.
SMALL sued for tithes, and the plaintiff suggested a Aconcor d
concord and agreement (he being a parishioner) for 40s. f or retaining
yearly to retain his own tithes, and aid not prove it with- tithes need
in six months. And per curiam, he need not, for such proof not be proy-
goes only to a modus decimandi, and not to another sug- ^ ^"? ,IX
gestion on a lease or contract. And so is the experience
in the king's bench.
Mich. 5 Jac
!>»] Fields Hunt.
IBrownl.M. Noy 123. 8. C.
Judgment HUNT recovered id Worcester court in debt on a eon-
reverted for tract for twenty sheep, and had a verdict there, and judg-
want of a mcn t. & afterwards it was removed bv error into the king's
certain* to°a bench, and assigned generally that judgment ought to have
common in- been for the defendant, where it was entered for the plain-
tent tiff. But upon the opening of the errors, it was shewn,
that there was not any declaration in Worcester court ;
for the declaration was, Raphael Hunt queritur versus H.
Field de placito quod reddest ei £01. quas ei debet et injusU
detinet, et unde iiem quer. per M. Attorn, suutn quod cum
prcedict def. tifc. And per Fenner, Williams and Croke,
this is no declaration, for there wants the word (dicit) and
the sense is imperfect $ and although Yelverton objected
that the declaration is sufficient, if it is good to a common
intent, and that the word (quer) breviter scriptum may be
queritur, and then it is (unde idem queritur.) Yet per cu^
riam, that will not aid it, for then it is not certain, to
whom this word (idem) refers, whether to the plaintiff or
to the defendant, and it shall be rather referred to the
defendant, becanse ad proximum antecedens ; and this tier
curiam, is matter of substance, which is wanting, therefore
1 Inst. SO. b. it is ill ? but if it had been (unde idem Raphael quer.) bre-
viter scriptum, it had been good, because the party plaintiff
is certainly named, and then (quer*) can have no other
sense than queritur. And the judgment was reversed.
Quod nota.
Howse vs. Webster.
Executor of IT was agreed by Yelverton, Williams and Croke jus-
lessee for tices, that if a man demises land by indenture to J. D. for
years is lia- years yielding rent, and J. D. dies making A. his executor,
ble in debt i \ ie i eg sor may have debt against the eieeutor for the rent
rearafterles- reserve ^j ani * nrrear after the death of the lessee, although
see's death, the executor never entered nor agreed j for the executor
represents the person of the testator, and the testator by
the indenture was estopped and concluded during the term
to pay the rent upon his owu contract, and therefore al-
though the rent is higher than the profit of the land, vet
the executor cannot wave the land, but notwithstanding
that he shall be charged with the rent. Vide the opinion
of Ascue, 21 H. 6. 24. and 11. H. 4. contra; but it was de-
nied to be law.(l)
(l) For the executor's liability years to the testator, and when the
for rent reserved in a lease for writ should be in the debet et deti-
Mich. 5 Jac.
L 103 a J
net, and when in the debet or deti- the rent. 1 Show. 848. Buck v.
net only, gee Bae. Abr. Extars & Barnard. Carth. 519. Ti/wgv v.
Adm'ors. P. l. and the eases there JYbrris. 1 Ld. Ray in. 553. 8. C. 1
eited. If the executor enters and Wils. 4. Lyddal v. Dunfopp. 13
retains possession, he is assignee Mass. Rep. 405. Montague Sfal.v.
of the testator, and may be count- Smith. See also Mareh 200. Com-
ed against as such, in an action for wins v. Massam.
Parkehurst vs. Palmer. [ i04 ]
AN assumpsit laid at Maidston in Com. Kent, and upon Venire a-
non assumpsit pleaded, the venire facias was de vis. villm warded from
et Faroch. de Maidston. And it was adjudged error, and p£ c j*™ t *
an insufficient trial ; for the trial ought not to be from a
larger precinct than the plaintiff himself has supposed the Ante 77.
substance of his mattter to be ; and this per totam curiam.
Smith vs. Turner.
Cro. Jac. 202. S. C.
THOU art no true subject to the king; and, per totam "Thou art
turiam, after verdict against the defendant, the action does no true sub-
not lie ; for the words are too general to bear an action, J* ct fl t0 tne
for they do not touch the plaintiff any way in his loyalty {^*ble "
particularly or otherwise ; and no man is so true or good 10D&
a subject as he ought. And if an accountant deceives the Cr. £1. 268,
king, or his lessee is arrear with his rent, he is not true in 621, 638.
that ; for he has broke the trust reposed in him, and there* 1 Sid. 132.
fore is not a true subject ; the same law, if a subject does
not pay his subsidy. But if it had appeared by the decla-
ration, that the words had been spoke upon any discourse
•f the plaintiff's loyalty, then the opinion was otherwise.
Hoddesdon vs. Gresil.
Cro. Jac. 195. 1 Brown). 208. S. C.
TRESPASS for entering the plaintiff's close ealled B. A commoner
at Leighton Bussard, and taking two conies. The defend- ^ an ° ot J U9t j;
ant to all the trespass, except the entry into the close, plead- kiijin^conies
ed non cul. and to the entry justified, that he had common damage fea-
in the close called B. and that he had five cows ready to gant ; but if
put upon the common ad utend. the common ; and because the lord tur-
quamplurimi cuniculi were there feeding, spoiling the com- char S e the
mon, he in preservation of his common entered ad fugan- ™ j mm ° n ,,he
dum et occidend. the conies*. And the plaintiff demurred ^ a ction & for
upon the bar; and the justification was adjudged ill ; for the disturb-
a commoner cannot enter to chase or kill conies ; for al- ance.
Mich. 5 Jac.
Cr.Jac.tC9. though the owner ef the toil has no proper!/ in the conies,
Ct\H. 876. yet as long m they are in his land he has possession, which
SLeon loi. u &** *8****t the commoner. For, if the lord surcharges
4 Leon*. 7. * *^ e to** 1011 with beasts, the commoner cannot drive them
2 Baht! 1 10. out, but the cattle of a stranger the commoner may distrain
Owen 114. damage-feasaat, or drive them oat of the common, for the
Com.Aep 34 stranger has no colour to have his beasts there. And also
conies are matter of profit to the owner of the soil for
house-keeping. Therefore forasmuch as it appears that
I 100 J the cause of the entry was to chase and also to kill, which
is unlawful as to the lord who is the plaintiff, therefore the
justification is not good in matter; for if the lord sureharg-
es the soil with conies, the commoner on this particular
Jf2 tW | In "° 88 * mav fc* ve an action on the case, which is a sufficient
roiiea i«. rcmfdj against the plaintiff. Qu«i nota. Upon full and
considerate deliberation of all the judges, they being all on
the first day of the argument of the contrary opinion. P.
48 Eliz. Hot. 134. between Bellewe and Laueden, and >
28 Eliz. Conny and others agree, as George Croke vouch*
ed it, ex relatione Jo. Walter.(l)
(l) Bee post 129. Kenrick v. Pargittr, & n. 1.
Gerry vs. Davis.
Cro. Jac. 190. 8. C.
A bond de DEBT on bond ; the plaintiff declared on a bond de sex*
sexgintit li- eentis libris $ the defendant demanded oyer of it, whieh
bris does not was entered, and it appeared to be, that the defendant was
Tow* on a bou ! ld to the P laintiff in ^xginHs libris, and adjudged nil
bond de tex- enpiat per billam, for sexgintis is a word of no signification,
eentis. &nd therefore the bond itself does not warrant the decla*
ration.
Cox vs. Worrall.
Cro. Jac. 193. S. C.
In an action THE plaintiff declared, that whereas he was of a good
for a mali- reputation, and so had lived free from all felonies, rapes,
cious prose- &c. yet the defendand/afoe et malitiose preferred an indict-
cution, the ment for the rape of A. an infant, at such assises, upon
plaintiff most w hich jj e wa8 arraigned et legitimo modo acquietat /(I) the
Fee and want defendant justified and shewed, that A. was his daughter,
of probable an( * °' ^ e a S e °' e '5^ lt years, and came to him, and with
cause. tears complained that the plaintiff had ravished her, and
(l) Want of the averment that Skinner v. Qunston Sf aL Gilb.
the first suit is terminated is cured Gas. 168. Parker v. Langley. Say-
by verdict, though it is a good er 192. Pantsune v. Marshall*
cause of demurrer. 1 Saund. 228.
Mich; 5 J aa
thereby very much hurt her, whereupon the defendant went
to J. S. a justice of peace, and took his daughter with him,
and complained of it to the justice, who thereupon sent for
the plaintiff, and upon examination of the matter bound the
defendant to appear at the assises, and to prosecute against
the plaintiff, and bound the plaintiff to appear there like-
wise; wherefore the defendant came to the assises, and to
save his recognisance preferred an indictment of rape a-
gainst the plaintiff, which was found by the grand jury:
and shewed that he took his daughter to the assises also to 2>
give evidence, prout ei bene licuik(2) Upon which bar the
(" 105 a j
(2) The grounds of the action
for a malicious criminal prosecu-
tion, and fora vexatious civil suit,
are malice and want of probable
eause, and they must concur, aqd
be proved, or the plaintiff will fail.
Sayer 1. Goldingy.Crowle. 4 Bur.
1974. Farmer v. Darling. Gilb.
Cas. 201. Jones v. Givin. 10 Mod.
214. S.C 1 D & E 543. Sutton v.
Johnstone. 2 ib. 231. Morgan v.
Hughes. 5 Amer. Law Journ. 514.
Murray v.M i Lane. Malice will be
inferred from want of probable
eause, unless the defendant rebut
the presumption ; but want of pro-
bable cause cannot be inferred from
malice. Facts shewing probable
eause were formerly pleaded, as in
the text ; but it is unnecessary, and
the modern practice is to give them
in evidence under the general issue.
3 Selw. N. P. 943.
It is an anomaly in pleading,
that a fact, which goes to consti-
tute the gist of the action, need not
be averred in the declaration ; yet
it was solemnly adjudged in the
ease of Jones v. Givinjubi sup. that
jthe omission of the averment of
want of probable cause could not
be excepted to even by demurrer. '
And no subsequent case has been
found in the English books? which
overrules that decisiou. The mod-
ern precedents, however, all con-
tain the averment ; and Mr. Ham-
mond, in his Nisi Prius,p.250. says
it ought to be inserted. Roane J.
says there is considerable contra-
riety and diversity in the old books
and entries on this subject; but
21
that the averment, at this day, is a
sine qua non. 2 Munf. 23. In 4
Mass. Rep. 435. White v.Dingley,
Parsons C. J. says that malice and
want of probable eause must both
be alledged and proved. See 2
Chit. PI. 242 to 255.
It has been decided in Virginia,
that want of probable cause, as
well as malice, must be averred
in the declaration, or it will be ill,
even after verdict. 3 Call 3. Ellis
v. Thilman. ibid. 452. Young v.
Gregory. It has also there been
decided, that this averment is e-
qually necessary in an action on the
case for a conspiracy to prefer a
false and malicious prosecution. 2
Munf. 10. Kittley v. Deck $ ah
This last point, however, has been
decided differently in Pennsylva-
nia. lBin.172. Griffith v.OgleSfal.
It is not necessary that want of
probable cause should be alledged
totidem verbis; equipollent expres-
sions are sufficient — as absque ali-
qua causa ; but absque justa causa
is not good. 2 Show. 154. Box v.
Taylor. 3 Call ubi sup.
As to the rules of evidence to
prove want of probable cause,
see Hammond's N.P.244. &Taiint.
&80. Hurley v. Bethune. 1 Marsh.
Rep. ±2. Byne v. Moore. 9 East
361. Purcell v. Macnamara. 1
Caropb. 203,204« in notis.
In what cases an action will lie
for a malicious prosecution, and for
a malicious and vexatious suit, see
Bui. N. P. 13- Esp. Dig. 525. 3
Selw. N. P. 935. Notes on Co.
Lit. 161. a. (Day's edit.)
Mich. 5 Jac.
plaintiff demurred. And it was adjudged against the plain-
tiff, and that the justification was good; for the plaintiff *
5 rounds his action on the malicious prosecution of the in-
ietment by the defendant, and the defendant shows how,
by degrees lawful and justifiable, he came to exhibit the
} indictment. As, 1. that it was on his daughter's complaint,
ywhoni nature obliges him to pity; and the tenderness of k qg
[ 10G J A's age proves that there was no malice in her, and thej^^
defendant being her father could do no less. 2. On this
1 Rol. Rep. complaint the defendant did not noise it abroad, hut took
3 3 BnUt 28A ."?!? f JV* ? mirBft nf f Matige ' and did "^hine* but in a course
Cr EI 900 °* J U8 tiee, performing the condition of his recognisance ;
1 Silk. 15. * n " in 6 E. 3.— it appears that the father may justify the
maintenance of his daughter in suing of an appeal. And,
a. the offence, which the daughter complained of ? is a vice
committed Tin secr et T which haa nn witnesses; and there-
fore on the daughter's complaint, which is but conjecture,
the father might well exhibit the complaint to the justice,
and the indictment at the assises ; and so it was adjudged.
Jennings vs. Haithwaite.
1 Brownl. 208. S. C.
The statute IN trespass, on not guilty pleaded, the jury found the
of lSEliz. re- defendant vicar of D- and that he such a day, &c. demised
tpectiognoD- jj-g v i cara g e ( j t g. f or t nree years rendering rent, whieh
iTpuMcsta- '• 8 * a88 *S neo * one acre P a «el thereof to the plaintiff; and
tute. lb** the defendant was absent by several quarters in a year
sixty days in each quarter ; but they did not find the stat-
1 Mod. 204. ute 13 Eliz. yet it was adjudged for the defendant, for the
4 c ° d 7fi 56, 8tatute 18 Eliz. is a general law, although it extends only
120.°b B * to tno8e wno ^ a ^e cure of souls, by reason of the multipli-
city of parsonages and vicarages in England ; and being a
general law the judges ought to take notice of it. And ad-
judged accordingly. (1) The same law of the statute of £1
H. 8. of non-residence.
(l) See 1 Anst. «8. Atkinson v. FoOces <$* al.
Drury vs. Dennis.
1 Brownl. 209. S. C.
tf id trespass TRESPASS against husband and wife ; and declared
for a tort that they beat a mare of the plaintiff, and committed sev-
C0 " ,m " te 'J eral other trespasses ; upon now cu£.pleaded, the jury found,
w^fe the ju- that the wife beat tbe mare ' and for the residue lhe y found
fy find 6 tbe *° r tbe defendants. And, per cur* nil capiat per billam en-
wife guilty & tered; for the verdict is altogether imperfect, for they
give no ver- have found the wile guilty of beating the mare, and havo
Mich. 5 Jac.
f 106 a ]
given no verdict ag to that touching the husband, either by diet as to th«
way of acquittal or condemnation : and the finding pro re- husband; or
sid. non cul. or for the defendants, extends only to the oth- fin ? him not
er trespasses contained in the declaration, and not to the ^judgment*
battery of the mare. And also, by Williams and Croke can |e ren-
Jg. where battery is brought against husband and wife, sup- dered. Qu.
posing that they both beat the plaintiff or the plaintiff's
mare, and upon non cul. it is found that the wife only com-
mitted the battery, and not the husband, this verdict is
against the plaintiff ;(l) for now the plaintiff's action ap-
(1) This case has been overrul-
ed. When husband and wife are
sued for a joint tort, the jury may
find one guilty and the other not
guilty, and the verdict will be good
as in other cases of several tres-
passers. Cro. Jac. 203. Hales v.
White. lVent. 93. Anon. Sty. 349.
Burcher v. Orchard, l Show* 350.
Dare v. White 8f ux. But judgment
is rendered against both, if the
wife only is found guilty, as in ca-
ges where both are sued for a tort
committed by her alone ; and both
may be taken in execution. Cro.
Car.' 406. Mayo v. CogshiU. 1
Vent. 01. Jackson v. Gabree. 1
Barnes 142. Berriman v. Gilbert Sf
ux> Sayer 149. Wilmot v. Butler
Sfux. 2 Stra. 1167. Pitts v. Mel-
ter frux. ibid. 1237. Finch Sfux.r.
Doddin Sfnx. 1 Wils. 149. Lang-
staff v. Rain Sfux. 3 ib.124. Anon.
In 3 Bl. Com. 414. it is said, "if
judgment be recovered against hus-
band & wife for the contract, nay,
even for the personal misbehavior
of the wife during coverture, the
capias shall issue against the hus-
band only" — and this is cited as
law by Yeates J. 0Binney40. But
it cannot be supported. In Judge
Reeve's law of Domestic Relations,
p. 69. it is said, that in legal pro-
ceedings against husband and wife,
" if on the trial the husband be ac-
Suitted, no judgment can be ren-
ered against the wife, although
there be a verdict against her."
The reason assigned is, that the
. wife cannot be imprisoned without
her husband.
When the wife marries pending
a suit against her, she may be im-
prisoned without her husband. The
judgment is against her only, and
the execution conforms to it. Cro.
Jac. 323. Doyley v. White. 4 East
021. Cooper v. Hunchin. 3Mau2e
& Selw. 057. Doe v. Butcher. 4
Mass. Rep. 660. Haines v. Corliss.
Judge Reeve thinks this is the only
instance in which the wife can be
imprisoned, on civil process, with-
out her husband ; and that if she
alone is taken in execution of a
judgment against both, she shall
be held only for a reasonable time
to ascertain whether the husband
can be taken ; and if he cannot,
that she shall be discharged. Do-
mes. Rela. 70. With great defer-
ence, however, it is submitted,
whether the foregoing authorities
do not shew, that the wife may, on
final process, be imprisoned with-
out her husband, unless there is a
design to screen him, or collusion
between him and the plaintiff to
keep her in jail.
In S. Carolina, a feme covert,
taken on a ca. sa. which issued on a
judgment rendered against her and
her husband, on a bond executed
by hoth during the coverture, was
discharged on motion ; the whole
proceedings against her being con-
sidered void. 2 Bay 112. Wallace
v. Ripvon Sf ux. If this decision
need defence, it may be found in
the fact, that writs of error are
unknown in the practice of that
state. See 2 Bay 333. Surtell v.
Brailsford.
Mich. 5 Jac.
pears to be false, for the husband shall not be joined in
[ 107 ] sueh case but for conformity. And there is a special writ
in the Register to such purpose. And it is not like a bat-
tery charged on J.D. and J. S ; for there one of them may
he acquitted, and the other found guilty, and good ; for
they are in law several trespassers,
Blanchflower vs. Atwood.
Actionable THE defendant said of the plaintiff; I will hang htm,
to charge one f or ne nat [j 8 p ken words which be high treason. And
in words" Yelverton moved in arrest of judgment, that the words are
which are to ° general to bear an action ; for nan constat what the
treason. words were, and the law does not determine any words to
be treason. But non allocatur per cur. for words * may be
Godb. 153. treason $ as to say, the king is a bastard, or that another
* p j 8tea 12l* h«w a better title to the crown, for that may draw subjects
1 BuUt. 148.' * rom tne ' r allegiance, and create mutiny in the kingdom :
Hutt. 75. * * n <l the first words enforce the slander, in saying, 1 will
hang him ; and then bv the subsequent words he shews the
reason why ; for he hath, &c. and, by Fleming chief jus-
tice, it is not safe for the plaintiff to set forth in certain
what words 'be spoke, for words which are treason are
arcana imperii, and not to be publicly spoken and uttered,
but are only to he discovered to the king or his counsel, or
other magistrate, for otherwise by his ordinary report of
the words, without discovering them, he may endanger
himself.
Heines vs. Guie.
it is error if ERROR on a judgment given in assumpsit in the court
the judgment f fewksbury on a verdict given, where the jury gave 8/.
does not inh ,j ama g e g 5 an( f 2d. costs ; and the judgment was, ideo const'
co"ts given ^ eva ^ esi quod the plaintiff recuperet damna sua per jurat
by the jury, prmdict. assessa in forma pr&dicta ad 8l. necnon 20s. pro
misis et custag. de increment, curim. And adjudged error,
because no judgment is given for the 2d. costs given by the
jury, but only lor the 8/. which was for damages, and so
the costs assessed omitted, and the other costs which fol-
low are but the act of the court ex officio, without any ref-
erence to that which was assessed by the jury.(l)
(1) It is probable this writ of See also 2 Show. 06, 88. Anger v.
error was brought by the original Brookhen. It is a general rule,
defendant. In Holmes v. Tw\ste, l that a party cannot assign for er-
Rol. Abr. 759, on precisely the ror that which is for his ad van-
same case as in the text, the origi- tage. 9 Go. 39. Tey-s case. 8 Co 59.
nal defendant brought a writ of Beecher's case. Pitz. N. B*. 21. F.
error, and judgment was reversed. " JJut this rule," says Lord Hard-
Mich. 5 Jac.
wicke, "must be understood with Beecher's case, ubi sup. lLeon.150.
this restriction, viz. where the er- The Queen $ Buckberd's case. Cro.
ror arises from some fault in the Jac 207. Strickland v. Thorp.
process, delay &e. but where the Yelv. 126. S. C. So where the de-
error is in the manner of giving fendant was not amerced. Jenk.
judgment by the court, there, for £11. So if one defendant be cbar-
the sake of regularity, it may be ged with the whole of the daraa-
assigned." Rep.Temp.Hardw.51. ges and costs, this may be assign-
Kent v. Kent. 7 Mod. 189. sStra. ed for error by the cither defend-
971. S. C. Law of Errors 46. 47. ant. Kent v. Kent, ubi sup. So a
Hence if a misericordia was enter- plaintiff may assign for error the
ed where a capiatur ought to have want of jurisdiction in a court,
teen, the defendant, before the sta- though he chose to resort to it. 2
tute of jeofails 16 & 17. Car. II. C ranch 126. Capron v. Van Jfoor-
might have assigned it for error, den.
Owen vs. Williams. I ios 1
IN replevin by Owen against Williams, Price & Labo- Where one a-
rer, of an horse taken, &c. Williams avowed, and the vows,&oth-
others made conusance, to take the horse for llrf. rent ar- er8 . make
rear of a rent-service due by Owen to Williams : and it C °^^jiy
was found for the defendants, and ^d> damages given by damages'
the jury to all three defendants, and the judgment accord- should be
ingly, that they three should recover dampna suaprcedicta given only to
per jur. assessa, Sfc and forasmuch as Price and Laborer the avowant
made cognisance generally, and did not make it as bailiffs
or servants to Williams, and the eognisanee is in itself a
title and justification in another's right, and damages giv-
en to all three, and they two who make cognisance have
no cause to recover any thing; therefore the judgment re-
versed.
' Dismo vs. Shirley.
THE defendant in the common pleas appeared the first Where the
day that he had by the summons, and afterwards the plain- whole mat-
tiff recovered by non sum inform, but the defendant nihil ter is begun
in misericordia quia venit ad primam summonitionem ; in and en< Jf d 1 ^ a
error on this judgment ifwas alledged, that there was no game^term 6
original, and thereupon a certiorari issued for the original an original of
in that term in which the original action commenced,which another term
is certified that in that term there is no original between will not
the parties ; and it was said that the original might be en- >erve.
tered of another subsequent term ; therefore the certiorari
was too strict to tie it to one term in specie : but per cur.
in this ease, if there be any original of another term, it will
not serve, because the whole matter was begun and ended
in one and the same term, as appears by the judgment of
nihil in misericordia, quia, ut supra ; but where the defen-
Mich. 5 Jac
dant does not come the first day, but by mean process,
there the judgment is, that he shall be in misericordia,
and there an original, certified between the parties of any
term pending the plea, is sufficient. Quod nota, by expe-
rience.
Harrison vs. Fulstow.
Cro. Jac. 186. 1 Brownl. 96. S. C.
An origins! FULSTOW brought debt of 86 J. in the common pleas
tho' it vary against Thomas Harrison, and entered his plaint against
*■ {J 16 na ? ie Thomas Harrison, and the capias continued accordingly
riaH bTtak- a S ail,9t Thomas. But the pturies was against William
en at an ori- Harrison (which was the defendant's trne name) and that
gioal in the was but for 8Bl. which varied from the first entry, and up-
cawe, and a on the exigent William Harrison appeared, and the plain-
[ i09 J tiff declared against William, and they pleaded, ana were
Tcrdict does at issue by the name of William, and there was a verdict
not core the p ro ^ eTt a|M | judgment accordingly against William ; and
€rror * now iu error it was assigned that the original did not
maintain the proceedings ; for that is against Thomas,
whereas the proceedings are against William, and although
the plaintiff's counsel would excuse it, that this judgment
being against William, and the original against Thomas,
as it is certified, that that could not be the original against
William, and so the first judgment against William is
without an original, which is aided by the statute alter
verdict ; yet, per cur. it is error ; for there is a difference
between a bad original and no original ; for the want of
an original is aided, but not a vitious original 5(1) and if
the original in this case was not against Thomas, then
there was not any continuance, nor obtulit se omnino : and
also diminution being alledged, it is certified as the orig-
inal in this suit : and therefore the judgment was re-
versed.
(l) Cro. Jae. 479. Pollard v. the clerk had misrecited it. 1
Blight ibid. 670. Reynel\. Kelsey. Saund. 817. Redman v. Edolph.
Cro. Eliz. 722. Greenfield v. Den- By the statute 8 Geo. I. judgment
fits Sfux. aec. But where the dec- shall not be reversed for any vari-
laration recited a vitious original, anee, in any writ original or judi-
and no original was on file, the cial, from the declaration or other
court intended, after verdict, that proceedings,
there was once a good one, & that
Mich. 5 Jac.
The Lord Sands & Swayne vs. Scullard &
Daw by.
1 Brownl. 209. S. C.
TRESPASS wag brought by the plaintiffs against the when jadg-
defendants for an entry into their elose. Dawby had judg- meat is giv-
ment against him by nihil dicit ; Scullard pleaded to issue en against
non cut. upon which a venire facias is awarded upon the on ® °C c ^°
roll between the parties tarn ad triand. exitum quam ad en- n n {hii dicit
?wirend. de dampnis, and the plaintiffs take their venire it j 8 error jf
lacias ad triand. exitum between the two defendants and the vea. fac.
the two plaintiffs, and the hob, carp, et distring. were ac- is awarded
eordingly ; but the plaintiffs (knowing Dawby to be dead) for . tri8j of
took their reeord of nisi prius against Scullard only, and ! hei88ue j£~
he is found guilty : and in arrest of judgment, Yelverton pontiff and
shewed, that the ven. fac. was vitious, for there was no is- defendants.
sue to be tried between the plaintiffs and Dawby ; for It should be
judgment being given on nihil dicit against Dawby, the writ for trial be-
ought to have made mention only of the issue between the twe . en .ir **?
plaintiffs and Scullard, and to have been an inquiry for &" defen-
damages between the plaintiffs and Dawby according to da ® t WD q
the award upon the roll, which is the ground of the ven. pleads to is-
fac. And it was likewise shewn that the jury have not sue.
done all that for which they were summoned, for they have
given their verdict only against Scullard, and no verdict
at all against or for Dawby ; just as if two matters had
been in issue, and they give a verdict for the one, and no-
thing for the other, it is ill for the whole. And that was
the opinion of the whole court prceter Williams Just, who
relied on 9 El. Dy. 260. b. Sir Ant. Cooke & Wooton's
case : where, in partition against two, one confessed the
action, and the other pleaded to issue, and yet the ven. fac.
was to try the issue between the plaintiff and the two de-
fendants, and by the opinion it was amended. But nota ;
there is a difference; for no damages are to be recovered in r -,
partition; but it is otherwise in trespass: therefore in L * '
Cooke's case the court said, it was as if a mere stranger
to the record had been named in the venire facias.
Holsworth vs. Sir Stephen Procter.
Cro. Jac. 188. S. C.
A VERDICT was found for the plaintiff at the assises, The omission
and he prayed his judgment ; but in' arrest of judgment, of the sher-
Yelverton shewed that the distringas was album breve, iff^nameon
without an indorsement, viz. executio istius brevis 9 1ke. and jjj£ ia "<,"£
without the sheriff's hand set to it. And, per cur. it is a me ndable.
good matter to have anew trial, for it cannot be amended :
Mich. 5 Jac<
1 Stra. 136. and by the statute of York the sheriff ought to put his
Cro.El.310. name ou the baek of the writ. (fuod vide 8 H. 6. And
M 86ft 443 * J ur y De * D 5 taken on this distringas in pais, they come
°* in without any warrant at all ; and although the writ is
made returnable in initio of this Mich, term (nisijustic. ad
\ assisas prius venerint) and it was objected that the whole
term being but one day, that the court might call in the
sheriff to amend it, yet it was answered, that the jury being
past in pais, the tenure and substance of the writ is past,
and that this court cannot amend it, for that was to make
the trial good which was taken without warrant, for now
upon the matter there was no distringas at all,, and so no
commission to the justices of nisi prius to take it. But if
the trial had been in court this term, the court might call
in the sheriff to amend it before the verdict passed, or af-
ter in the same term ; because they sit by patent, and not
by commission. Vid* Rowland's case, 5 Co. 41. b. judg-
ment reversed, because the sheriff's name was not to the
N 0,8t ' 220, *venire facias, and yet the jury was not taken on that writ,
1 Qjr * but on the distringas, which is a stronger case*
The Lord Mordant vs. Walden.
Judgment in THE plaintiff shewed that Lewes lord Mordant the
assumpsit plaintiff's father was seised of the manor of D. of divers
reversed for lands, &e. in D. in fee, and in consideration that the now
uncertainty plaintiff with his father sigillaret quondam indenturam per
ration. ~ auam tne ' or ^ Mordant barganizaret,&w. the said manor, &
the said lands and tenements in D. to the defendant, the de-
fendant promised to pay the plaintiff 100/. and shewed in
facto, that the plaintiff such a day, &c. sigillavit indenturam
prcedictam; yet the defendant had not paid the ±OOL &e.
("ill ] And on non assumpsit pleaded it was found for the plaintiff,
and he had judgment aecordingly in the common pleas ; but
it was reversed by error for two reasons ; 1. Because
(diversa terras et tenementa in D.) are incertain, and do not
comprehend all the lands in D. therefore the plaintiff ought
to have shewn in certain, and particularly what lands were
contained in the indenture : as if a man promises to convey
to J. S. all the lauds descended to him from his father, he
ought to shew in specie (what lands) and that they are (all.)
2. The plaintiff has not laid the performance on his part
certain and sufficiently, because {indenturam prcedictamj
2 Leon. 53. cannot be good because (prcedictam) ought to refer to some
3 Leon. 91. certainty before, and nothing is certain before, for fquan-
dam indenturam) at first is incertain ; for it is all one as
if he had said (unam indenturam) and then the (prcedictam)
which follows could not be good ; for that is incertam per
incertius : but the plaintiff ought to have shewn in certain,
that he had sealed such an indenture in certain, per quam
Lewes lord Mordant & the plaintiff barganizarent, de ver-
Mich. 5 Jac. .
bo in verbum, prout it is laid iii the premises of the declar-
ation ; as if a man promises to execute quoddam scriptum
obligatorium whereby he will become bound to J. 8. in iOOl.
in an action on this promise, it is no plea to say quod {fecit
$criptwn obligate prcedictum) beeause no bond in certain was
mentioned before ; but if in this ease it had been a perfect
indenture in date, in nomination of the parties, and limita-
tion of the land, then it had been good to say, that he had
sealed {indent, prcedictum) because by the premises it ap-
pears to be a true and perfect indenture in facto. But here
it is bat a pretended indenture. Quod nota (1)
(l) See Bac. Abr. Pleas and Pleadings. B.v. 8.
Paine's Case.
1 Botgt. 107 . Noy 114. S. C. id
NOTA ; per Williams Justice, that it was resolved by all False swear-
the justices of England in the star-ehamber in the case of ing, before a
one Paine of Middlesex, who was sued there for perjury in f ourt *bich
the court of requests on his deposition in a case there de- Action of "he
pending, where the conveyance and title of. land and free- question
hold came iu question, that this perjury was not punishable; tried, is not
for it is but a vain ami idle oath, and not a corrupt oath, perjury.
because the court of requests have nothing to do with, nor
can examine titles of land, which are real, and are to be
discussed and determined in the king's courts.(l) Quod nota.
(i) " Where the court hath no perjury cannot be committed." 3
authority to hold plea of the cause, Inst. 166. See Brockenb.&Holmes
hut it is coram non judice, there 265. Commonwealth v. Calvert.
Tompson vs. Colier. f us ]
1 Brownl. 138. S. C.
THE plaintiff declared on"a lease made by Robinson and Plea in a-
Stone of a messuage and 40 acres of land, in the parish of batementnot
Stone in the county of Stafford ; the defendant imparled to allowed after
another term, and then pleaded that within the parish of & e ° eral in *T
Stone there are 3 vills, A. B. and C. and because the plain- m^^giVe a
tiff did not shew in which of the vills the land lay, he de- better writ.
manded judgment of the bill, et quod ob causam pradict. .
billa prcedict. cassetur: and the plaintiff demurred upon the
plea ; and it was adjudged for the plaintiff: for t. The de- * Lutw. 24.
fendant * cannot plead in abatement of the bill after an im- 2 Show. 145.
parlance, for he has admitted it to be good by his entering 1 SaIk * **
into defence, and by his imparlance. 2. The matter of the
plea is not good beeause the defendant does not shew in
22
Mich. 5 Jac.
which of the villi the messuage and 40 acres lie ; and that
he ought to do ; for where a man pleads in abatement, he
ought always to give the plaintiff a better writ* (1) Quod
nota. But per tot. cur. this plea does not go in bar, but on-
ly a respondeat ouster. And by Williams Just, the differ*
enee is, where the plaintiff demurs on a plea in abatement,
and where he goes to issue upon it ; for if they go to issue
2 lost. 242. || p (m g||C | l p| e&9 an j n j g f 0UD( ] against the defendant, it
is peremptory, and he loses the land ; But upon a demurrer
it is not peremptory, but only a respondeat ouster. Quod
nota. Vide 22 1 11. 55. b. Foxley's Case, 5 Co. ill.
(l) Except when he pleads in Baines v. Blackbourne. 3Bur.l423.
abatement matter whieh might be 1433. Combe v. Pitt. Orne ungues
pleaded in bar. As when, in re- gardein, in an action of account,
pterin, he pleads property in him- Com. Dig. Aecompt. £. 3. Or non
self or a stranger. Winch 26. A- tenure. 1 Mod. 250. Anon. 8
non. 1 8alk. 5. Presgrave v. Saun- Mass. Rep. 312. Hunt Sf ux. v.
ders. 6 Mod. 41. B.C. Or, in ape- Sprague. 14 ib. 239. Otis v. War-
nal aetion, the pendency of a prior ran. Or a disclaimer. 13 Mass.
siiit. Sty. 417. Anon. Sayer 216. Rep. 439. Prescott v. Hutchinson.
Bromley vs. Littleton.
Dowager not MRS. Littleton, the wife of Gilbert Littleton, recovered
entitled to her dower in the common pleas by default, and had a writ
damages ona of seisin to the sheriff of Stafford, and a writ of inquiry
writ of dow- whether the husband died seised, and of what estate, wbeth-
hMbaaTdie Cr in feeor fee tail ' the J nrv 'omul, that the husband died
siezecTof an »e»ed, but whether in fee or in tail, ignorant $ and found
eitate of in- the value of the land, &c. and quantum tempus elabitur, &e,
heritance. whereupon judgment was given, that she should recover,
Writ of er- &c. and her damages to 60/. And thereupon a writ of error
!S r K 0t 2 ba K was brought ; and after the record removed Mrs. Littleton
of defendant tlle first P ia ' ntiff died $ wherefore the plaintiff sued scire fa-
in error. c * as a 5** n8t Sir Thomas Cornwal, Mrs. Littleton's execu-
tor, against whom two nihils were returned, upon which
the plaintiff proceeded and assigned errors, viz. that no
judgment ought to be to recover damages, because the jury
have not found any dying seised of any estate of inheritance
in Gilbert according to the purport of the writ; for without
i 1 Inst.32.b. a dying § seised of such estate the wife shall not have dam-
and n. 4. ages ; as if the husband aliens and retakes fur life, and dies,
R 7 ' 284* the wife shall have dower, but no damages from this dying
Reg. Jud. 4. ge i se( ] 9 f or n wag on }y f the freehold ; and this was adjudg-
r , ed error.(l) Then the doubt was, if by the death of Mrs.
I 113 J Littleton the writ of error was not abated, and, that a new
writ should be sued out against the executors. And,jper cu-
riam,, the writ shall not abate. And there is a difference
between the death of the plaintiff, and the death of the de-
(1)1 Coxe's Rep. 125. Fisher v. Morgan, ibid. 453.
Sheppard v. Wardell. ace.
Mich. 5 Jac
fendant; in the first case it shall abate 2 R. 3. but not in
the other case. And it was likewise held, that the execu- Postea 2G&
tors, by the scire facias and two nihils returned, which 2 Keb « 694 »
amount to a garnishment, are made parties to the writ of *J c °- 135 *
error well enough; for because the damages in the first %°{ sit '231.
judgment are to go to the executors, therefore they ought to Comb. ,263!
be warned ; for although the plaintiff in the writ of error, 441.
hy die death of Mrs. Littleton is discharged of the title of
dower which lies on the land, yet he is still to be eased of
the damages, which ought to be against the executors, who
are to be made parties by this means of the scire facias. . R , R
And several precedents were shewn accordingly in person- 23. ° P *
al actions, where damages are to be recovered, and error is
sued, and the defendant in error dies, his executors have
been made parties to the first writ of error by the suit of
of the scire facias. Quod nota $ per tot cur* without con-
tradiction.
Brinsby vs. Balgy. .
THE plaintiff shewed, that whereas she was of a good Held not ac-
reputation aud a pure virgin, and sought in marriage by one tionableCtho 4
Dunne, &c. Dunne interrogavit the defendant, why the plain- *P eciaJ dan J-
tiff did not come to church ; the defendant, respondendo dix* f^e^ytoiay
it, It is no marvel she comes not to church,for it is thought of | woman
she is with child, and 1 fear it is too true : Whereby she 4t is thought
lost her marriage with the said Dunne, to her damage, &c. she is with
Upon noil cuL pleaded it was found for the plaintiff; But cni, d* and I
f Yelverton moved in arrest of judgment, 1. Because the J ear \ l " t0 *
\ plaintiff did not shew that the defendant was sciens of the rue *
n marriage between the plaintiffand the said Dunne, nor doth
I it appear in the declaration that the words were spoken
^malittose. 2. It appears by the plaintiff's own shewing, that
the defendant had uot any intention to slander the plaintiff;
for the defendant's words arose not from himself but on a
question propounded by Dunne, a third person, concerning
the plaintiff's not coming to church, to whieh the defend-
ant answered ; which answer does not import any direct
slander, for her honesty was not questioned, but absence
Cfrom church, whieh is collateral; and moreover the de-
j fendant affirmed nothing precisely, but his thought and his
L fear: whieh imply that the defendant rather wished there 3 Bulst. 83.
was no such cause : So that the defendant's words depend
merely upon an ecclesiastical cause viz. her absence from
ehnrch: But if J. 8. asks J. D. concerning a robbery com-
mitted, and J. D. answers that he thinks the robbery was
committed by A. and he fears it is too true ; it is a slander; [ *t4 ]
for the inducement, viz. the question, is circa such a tem-
poral and infamous act, as the defendant by his answer has
detected of A. wherefore it seems that A may have his ac-
tion. Quod fuU concessum per totam curiam, prceter Fenner,
And nil capiat per bittam entered.
Mich. 5 Jac.
Winkworth vs. Man.
1 Brown). 210. Noy 125. Cro. Jac. 183. S. C.
A verdict in THE plaintiff declared on a trespass in an aere of land in
tretpaM,fiod- D. and abutted it East, West, North and South; Upon
iDg the de- non cut the jury found the defendant cut. in dimidio acres
feodaot guil- infrascript. ; and it was moved in arrest of judgment, that
tv ** • moie " upon the matter no trespass at all is found : for there is no
mentioned^ §ucl1 moiet y funded, as the plaintiff has declared, for the
-pod. ' * intire aere is only bounded, and the plaintiff eontiuing his
trespass within certain bounds, the defendant ought to be
1 Sid. 229. found a trespasser within those bounds; aliter it is not good ;
3 Lev. 334. and it is impossible for the moiety of the aere (q be within
H h no tnose bounds,whether the acre be taken in length or breadth,
o .119. or w ^ at wft y goever . pg r totam curiam prater Fenner, the
plaintiff shall have judgment; for if the plaintiff lays the
trespass in one aere, and the jury fiud it only in a foot of
that acre, it is good : And here they have found the tresptss
in the moiety or the aere bounded, and that is sufficient in
this aetion where damages pnly are to be recovered • but
if it was in ejectment, the verdict had been ill ; for it is
incertain in which part the plaintiff shall have his habere
facias possessionem.^)
(l) See Adams on Eject e. 2. and p. 104. n. c.
Redhead vs. Harpur.
Noy 124. S. C.
To an action THE plaintiff declared, that 12 Octobr. anfio 2, at Staines
for a frandu- j n Middlesex, there was a communication between them
ty 0t r^leT ab ° Ut Do y' n 8 " 00 ew<n> and 14 r * m8 5 and . tnat the defen "
which avers dait affirmed, and warranted and promised them to he
that the arti- sound et tunc bene valere 9lper score, and if they should not
cle was as it be of such value to the plaintiff to be sold, the defendant
was warrant- would make them worth vl. a score in ready money; yet
ed ' " bad > the defendant sevens them not to be sound, nor of such val-
7mene of ue ' 80,d them l0 the P ,aintiff tJ,e the game dav for 130/ * P aid
the warran- *W. / 7** tne plaintiff said in facto that 100 of the ewes
ty & disceit. at the time of the bargain were rotten, and died before 34
March following of the rottenness, and the other 200 at the
time of the bargain were not worth %L a score, nor could be
sold for more than 4-L a score, so the defendant had deceiv-
ed him to his damage 100/. The defendant said that the
bargain was for ewes and rams then going in Wild more in
v the county of Lincoln, which were sound and worth 9/. a
( 115 ] score, and might have been sold for that price, and that he
averred; upon which the plaintiff demurred ; and it was ad-
judged for the plaintiff ; for the defendant has not answer-
ed the matter in the declaration, viz. the warranty and pro-
mise, which is the cause and ground of the action, and the
disceit laid to the defendant's charge, and that of necessity
ousht to be traversed and denied by the defendant. The
defendant's plea is likewise idle and vain; for the agree-
Mich. 5 Jae*
ment and bargain for tie sheep, being a tiling transitory
and not local, it is not material where the sheep Here at
the tioie of the bargain, whether in Lincolnshire or in Mid*
dlesex; and so was the opinion of the whole court. (l)
(l) For the remedies on warran- Rep. 502. ttmball v. Cunningham.
ties, and in ease of fraud & deeeit, ±5 ib. 319. Conner v. Henderson.
see Selw. N.P.Deceit. 2 Comyn on 6 John. Rep. 138. Executers ofEv-
Con. 263 to 287. 1 Chit. P1.139. 2 ertson v Miles, ^ib. 550. Bayard
ib. too, 276. Com. Dig. Action on v. Malcolm. 2 Caines Rep. 216.
the ease for a Deeeit. A. 8. Ross Bollock v. Powell. Ante 21. a. n.
on Vendors 281 to 296. 4 Mass.
Lathbury and his Wife administratrix of Wil-
liam Ridges vs. Michael Humfry.
1 Brown). 97. S. C.
DEBT as administratrix on a bond of forty marks dat- ^° an * c **"
ed 4 Apr. 30, made bv the defendant to the intestate : The admmUtra-
defendant pleaded that Ridges the intestate 1 Octobr. 1 tor, a plea
Jac. made his will, and made the defendant executor, and that the sup-
bequeathed the bond and the money therein contained to P°ied intes-
one Humfrey the defendant's son, and died; after whose tate made his
death the defendant took upon him as executor, and ad- ^jj ^J sg "
ministered several goods of Ridges, and that he is ready to traverse his
aver: Upon wbitfh plea the plaintiff demurred generally; dying intes-
and it was adjudged for the plaintiff, for the defendant's tate.
plea is not good without a traverse that Ridges died intes-
tate; for the action being brought as administratrix, and \ | a, o? 8,
they declaring on a dying intestate, it is sueh a material c " gj 1( J 2
supposal in the declaration, that it being the ground of the
action ought to be traversed ; as 9 H. 6. 7. Debt against
one as administrator of J. and declared that J. died intes-
tate ; the defendant pleaded that J. made his will, and
made him executor, and because the plaintiff declared that
J. died intestate, it was held no plea without a traverse of
it The same law 7 H. 6. 13. Debt against one as execu-
tor of R. The defendant pleaded that R. died intestate at
sueh a place, and held no plea ; for if the plaintiff main-
tains that R. made the defendant executor, and the other
says that R died intestate, that will not make an issue ;
and therefore the defendant ought to traverse(l) viz. that
(1) In Fooler v. Cooke, 1 Salk. he says all the precedents and the
297. Holt C. J. took a distinction be- reason of the thing are against the
tween suing one as executor and case cited in the text. Holt 307.
as administrator; and said, if one 556. Carth. 363. S. C. In London
is sned as executor, and pleads that v. Bes&ingham, Com. Rep. 156. the
he is administrator, he need not point decided in the text was re-
traverse; but if he is sued as ad- cognized and coiifirmed. See also
ministrator and pleads that he is Clayt 66. Preston v. Hall. 2
executor, he must traverse the dy- Brownl. 184. Lauryv.Aldred tifal.
ing intestate. In 5 Mod. 145. S.C. Com. Dig. Pleader. 2 D. 4.
Mich. 5 Jac.
iCdied intestate, absque hoc that he made him executor.
And 4 H. 7. 13. a. this very case in question is adjudged,
that sneh plea in bar is uot good without a traverse viz. to
say absque hoc that Ridges died intestate. 3 H. 7. 14* A-
gree. And this per totam curiam without argument.
1 116 1 Andrew vs. Hundred de Lewkner io Com.
Oxon.
Cro. Jac. 187. Noy 125. S. C.
A declare THE plaintiff declared on the statute of Winton 13 E.
tioo oo the i. and shewed that he had performed the limitations and
statute of ordinances in the statnte 27 El. and eoneluded contra for-
Wiotoo, re- mam stofati pradictij and the issue being found for the
hueLd cry P ,aintiff ' >* wa » alledged in arrest of judgment, that the
were made declaration was not good, because he having declared on
according to two statutes, viz. the statute 13 E. 1. and the statute 27
27 Elis. pro- Eliz. he ought to have concluded contra formam statuto-
ry con- rum prcedictorum. But non allocatur per totam curiam,
eludes coo- b ecauHe t h c ae tion in this case is given and grounded only
Jnuuti pra> on the »*atute 13 E. i. and the statute 27 Eliz. is rather
dicti. in restraint and hindrance of the aetion than otherwise $
for whereas before the statute 27 Eliz. the party might
Comb. 160. have had his action generally to have charged the- hun-
dred on any robbery, now certain circumstances are to be
performed by the statute 27 Eliz. before the party sball
have his action, aud before he can charge the hundred, viz.
the taking of the oath before a justice, that he was robbed,
and that he does not know the felons, &c. So that the
statute 27 Eliz. was made in ease of the hundred, and not
in advantage of the party robbed : therefore it is sufficient
to conclude contra formam statuti, which shall of necessity
have reference to the statute 13 E. 1. which gives the
suit : And several precedents were shewn accordingly in 28
E1.& 3d El. And, per curiam, if the plaintiff had concluded
contra formam statutorum, it had ii0t been good, because
the statute 27 Eliz. does not enable the party to gue.(l)
(!) When one statute prohibits one, and adopts and continues the
a thing, and another gives the pen- provisions of it, the declaration or
alty ; in an action for the penalty, indictment should conclude contra
the declaration should conclude formam statuti. Hale P. C. ubi
contra formam statutorum. Plowd. sup. 1 Lutw. 212. Barnaby v.
206. Stradling v. Morgan. 2 East JYandikt. So where, as in the
333. Lee v. Clarke. Esp. on Penal text, a thing is prohibited by sev-
Stat. ill. The same rule applies eral statutes, if one only gives the
to informations and indictments. 2 action, and the others are explan-
Halc P. C. 172. 2 Hawk. c. 25. § atory or restrictive. Rep. Temp.
It7. Owen 135. iter v. West. But Hardw. 409. Merrick v. Hundred
where a statute refers to a former of Ossulstone. Andr. 115. S. C,
Mich.
2 Saund. 877. Pinkney v. Inhabi-
tants de Motel.
When the aet prohibited was not
an offence or ground of action at
common law, it ig necessary, in all
cases, criminal and civil, to con-
clude against the form of the stat-
ute or statutes. 1 Saund. 135. n.
3. 2Easttt&isi*p. lChit.P1.368.
1 Saund. 249. Faulkner's case. 7
East 516. Earl of Clanricarde v.
Stokes. 2 Mass. Rep. li 6. Com-
monwealth v. Northampton. 7 ib.9.
Commonwealth v. Springfield. 11
ib. 480. Commonwealth v. Stock-
bridge. l6allis.30. Crossv.U.St's.
But if the act prohibited by
statute is an offence or ground of
action at common law, the indict-
ment or action may be in the com-
mon law form, and the statute need
not be notieed, even though it pre-
scribe a form of prosecution or of
action : The statute remedy is
merely cumulative. 2 Inst. 200.
2 Bur. 808. Rex v. Robinson. 4ib.
5 Jac.
[ 116 a J
2351. per Aston J. 3 ibid. 1418.
Brown v. Chapman. 2 Wils* 146.
Chapman v. FickersgiU. 2 Leach
3d edit. 622. The King v. Harris.
13 Mass. Rep- 615. Green Y.Kemp.
Where a statute only inflicts a
punishment on that which was as
offence at common law, the punish-
ment prescribed may be inflicted,
though the statute is not notieed in
the indictment. 2 Binney 332*
Commonwealth v. Searle.
If an indictment, for an offence
at common law only, conclude " a-
gainst the form of the statute in
such case made and provided"—
or " the form of the statute 99 gen-
erally ; the conclusion will be re*
jeeted as surplusage, and the in- Q _ ,
dictment maintained as at commonifflfe^''^
law. 1 Saund. 135. n. 3. Secus if /f
it conclude against the form of "the u
statute aforesaid," when a statute
has been previously recited, i
Chit. Crim. Law 276. 289. See
post 127. n. 1.
Arundell vs. Tregonc.
THE plaintiff declared, that whereas he was of a good
reputation, &c. free from theft, yet the defendant at the
general sessions of the peace, &c. held at Truro in Comi-
tatu Cornubiie 7. Jan. 3 coram Thoma St. Jtwyn et Johanne
Arundel et sociis suis tunc justiciariis 9 Sfc. malitiose, Sfc.
quondam billam indlctamenti against the plaintiff scribi
jecit 9 continent that the plaintiff amongst others broke and
entered the house of A. and stole half a bushel of wheat;
and exhibited it to the said justices ibid, who caused it to
he openly read, and delivered to the grand jury; and after-
wards the defendant at the same time affirmed the matter
in the said bill contained to be true, whereby the plaintiff
is damnified, &e. The defendant pleaded an insufficient
justification, on which they were at issue, and it was found
for the plaintiff. And Yelverton moved in arrest of judg-
ment 5 1. because it does not appear that the justices be-
fore whom the indictment was preferred, were justices of
oyer and terminer, but only justices of peace, who could
not arraign the plaintiff and put him in any jeopardy :
Who was answered by the court, that as this case is, the
declaration is good enough, for the plaintiff has laid it to
be adgeneralem sessionem, which has auch strong intend-
In an action
for malic-
iously pre-
ferring an in-
dictment a-
gainst the
plaintiff, the
declaration
must show
how the in-
dictment was
disposed of.
Ante 105.
[117]
Mich. 5 Jac.
ment to carry this circumstance, that it was before justices,
who had sufficient authority :(l) And the rather, because
io4his action their authoritj cannot come in question or
debate. Otherwise if it was on an indictment, for there
such general stile had not been good, but their authority
ought to appear in certain, because the party shall be put
to answer to it Then Ycivertou moved, that the plaintiff
has not shewn sufficient cause of action ; for the defeud-
t n C D ,4# «i aot ^as ^ onc nolnin S 0llt in a * e o ur » e of justice to prefer
Pali I 188 aD i,M, » l,troent ' **& that ■» 'awful; for if men should be
180. * ' punished for preferring indictments, it would be a great
Mo. 8*0. nindrance of justice : And, as 43 £. 3. — is, a man shall
never be punished for bringing a false action $ and the
rather here, because non constat what was done on the in-
dictment, whether the plaintiff was acquitted or arraigned
upon it* or not : And if nothing was done upon the indict*
ment, the plaintiff will clear himself too soon, viz. before
the fact tried, which will be inconvenient $ qiwdfuit conces-
sion per totam curiam, et nil capiat per billam entered. (^)
(1) Bee 2 Bl. Rep. 1050. Butliy (2) See ante 105. n. i. &2.
v. Watson*
St. John vs. Commyn.
A record sent SAINT John brought Eject, firma in the common pleas
from Ireland in Ireland on the lease of ft. G. against Commyn, and de-
remftins inB. elared de castro, villa et terris de Kilbrough in sueh a
£ \* h*?*" countv 5 an< l U P 0!1 * ssu * pleaded, it was found for the plain-
cateofrever* ***> a#m * ne na< * J u< lgmeot there; upon which Commyn
•al of the brought his writ of error in the king's bench in Ireland,
judgment of and assigned for error the want of an original, to which St
the court in John rejoined and pleaded, that such a day an original
Ireland, the wr jt wag delivered to such a one, &c. and concluded to the
ca^t °award coun1r Y* an d tne judgment was reversed there for want of,
^xecutioo' an or >S' na ' : Whereupon St. John brought a writ of error
but they of the judgment of reversal in the king's bench herein
make a man- England ; arid the judgment given in the king's beneh in
date to the Ireland was reversed here, because the matter was diseon-
court there tinned : for when the plaintiff in the writ of error in Ire-
tioflTdone CU " * an< * asg ' 8 » ne ^ h* 9 errors, and the defendant there replied
and concluded to the country (where in truth the mafter
of his plea should be tried by the record, viz. whether the
original writ was delivered or not, for that appears of re-
cord) & then the plaintiff in error there did not reply or de-
mur on the defendant's plea, the whole matter was thereby
discontinued ; for there was no full record of the proceed-
ings before the justices of the king's bench there, because
[ 118 ] the plaintiff had not rejoined to the defendant's bar there.
And now it was moved to have the record remanded into
Ireland, with a certificate of the judges of their reversal
Mich. 5 Jac.
i
here, to be made to the justices of the king's bench in Ire-
land, that he who first recovered might have his execution :
For they pretended that by the reversal of the judgment in
the king's bench there, the first judgment in the common
pleas there was affirmed 5 to which Yelverton answered,
1. That the record should not be remanded ; for although
83 E. d. Error 83. is, that out of Ireland no more shall be
certified than the transcript, and according to that is 34
Ass. yet the law is not so at this day ; for the writ of er-
ror, which goes out of the chancery here to the king's
bench there, commands the record to be sent ; and the re-
turn of the justices there does likewise prove it, which is
in hoBc verba, record missum. Also for the reason why at J~ r ' Ja g«w •
first the transcript is said to be sent only, is for fear it j t*'r. 279.
should be destroyed by the sea in the carriage. But when g Rol. R. 81.
such fear is over by the safe arrival of the record, and by
the entry of it iu the rolls here, then it ceases to be a re-
cord in Ireland, and is a perfect record here. Quod fuit
concessum per curiam ; and Mr. Man the secondary shew-
ed precedents in 9 H. 6. that a record sent out of Ireland
remains here ; and so of another reeord in 32 H. 8. But
if the judgment had been reversed on the truth of the mat-
ter, although the judges here cannot award execution, be-
cause they have no officer that is subject to their command,
yet they shall make a mandate to the chief justice there,
that he sees execution dt>ne ; and that is the course. Quod
fuit conce$sum.(i) Then Yelverton and Mr. Stephens mov-
ed to have a new writ of error here of the first judgment
in the common pleas there ; for although, as 5 E. £. Error
89, a writ of error cannot immediately be brought here of
a judgment in the common pleas there, but it ought to come
here by degrees, viz. first into the king's bench there, and
then into the king's bench here, because such is the usage
there, yet this reeord being come by such degrees into the
king's bench here, it seems they may have, and the court
after great debate granted they should have a new writ,
quod coram nobis residet, de bene esse ; for the reversal here,
as appears before, was upon a collateral point, because for
want of a demurrer, or other replication to the defendant's
plea in the writ of error in Ireland, the whole cause was *Cr.Car.573
discontinued 5 for this court perceived the first error, viz. ^ °' 4 fl ,7 1 < ?"
want of an original, to be cause sufficient to reverse the 1 show.' 338.
first judgment in the common pleas there, as also for an- 4 Mod. 97. *
other apparent error in the declaration, viz. that the action Salk. 254.
is brought de castro, villa et terris in Kilbrough * without Comb. 198.
expressing the number and certainty of acres, which is in-
sufficient; for upon such general demand no habere facias [ 1*9 ]
possessionem ean be awarded and executed. Quod nota bene.
Per curiam,
(l) See ante re. n. 4.
23
Hil. 5 Jac.
Cobb vs. Hunt
1 Brown!. 98. S. C.
? 0vta i IDI j^ COBB sued a prohibition in the common pleas against
auetterf but Hunt, parson of D. in Kent, and suggested a modus deck-
there must mandi as to part of the tithes demanded against him in the
be a judg- spiritual court, and as to the residue suggested a contract
meat to re- executed and performed between him and the parson, in sat-
co?er them, igfaetion of the residue ; and because he did not prove his
for the ^ca*- su S5 e8t ' 011 within 6 months, Hunt the parson had a consul*
not be* us" I**' 011 & C08ts assessed by the court to 60s. & damages 00s.
tamed. which by statute 2 E. 6. shall be doubled, but in truth there
was no judgment given to reeever them, viz. ideo consider'
at. est quod recuperet, was omitted ; yet Hunt thinking that
all was perfect, brought debt in the common pleas for the
costs, &c. and declared on the whole matter supra, and
Ash. 445. that damages were assessed, super quo tunc considerate fuit
a'^io2 72 " V uo ^ recu P €re t* eic * an< * tDat tne C08t8 were not P a M»per
Cr. EI. 347. Vf°^ flrfio accrevi ^ e ' c - alM * thereupon he recovered against
Cobb bj non sum informatus. And thereupon Cobb brought
error tarn in recordo et processu 9 etc. of the prohibition, as
of the debt for the costs ; and assigned generally for error,
that the judgment in the common pleas should be for Cobb
where it was for Hunt. But Yelverton all edged two errors
in special, l. That there was no judgment in the prohibi-
tion to recover the costs, but only an assessment of them,
without more, which is not sufficient ; for the assessment
alone is but matter of office in the conrt, but no judgment
of the court that will bind. Quod fuit consessum per totam
curiam. 2. Error, that no costs at ail ought to be assessed
or adjudged in the case supra ; because the prohibition is
grounded as well on a modus decimandi, which wants
proof, as on a contract between the parties, which does
not want proof; and the suggestion being intire, and part
of it wanting no proof, they cannot give any costs at all ;
for that is only where the whole matter in the suggestion
wants proof ; so the joining of the contract with the man-
[ 120 j ner of tithing privileges the whole as to costs: But they
may grant a consultation as to that part of the suggestion
of the manner of the tithing, and stabit pro residuo. Quod
fuit concessum. So both the judgments reversed. Quod nota.
Sir Robert Miller's case.
Noy 128. S. C.
win?not°r a SIR Robert Mi,,er was d * fendai,t in a bin in t,,e Star -
able^bein* Chamber, and being examined on the interrogatories, the
dieted od the plaintiff supposing that he had committed perjury on his
i
Hil. 5 Jac
examination procured him to be indicted on the statute 6 statute 5 El.
Eliz. and per totam curiam, he cannot be indicted on the for hls an ~
statute, because he is not testis, but remains defendant yet, JJJ™ *° \ n '
although it be upon interrogatories ; for if he confesses ° ga onel
matter against himself upon the interrogatories he shall be Cr. £1. 148.
condemned. Quod nota. DaJis. 84.
Martham vs. Molineux.
1 Brownl. 99. S. C.
MOLINEUX entered his original in the common pleas Judgment
against Markam in an action of debt on a bond, by the r *„ orie ? J* 6 "
name of J. Markam Alderman of D. and all the mean ent additions
proeess was continued against him by the name of Alder- were give a
man ; Markam appeared, and the plaintiff deelared against to the defen-
him by the name of Markam of D. Esquire, and the par- dant in the
ties were afterwards at issue and it was found for the or, §^ DaI ft nd
plaintiff, and judgment given ; and it was now reversed for ^uon *
error, because non constat that this Markam is the same
Markam, against whom the original was entered,' and the l Salk. 6,
process continued, but rather that he is another person by
reason of the several additions of Alderman, and Esquire.
Quod nota.
Fernely vs. Fawsett.
Cro. Jac. 203. S. C,
FERNELY brought an action on assumpsit against If a cause
Brome in the court of Norwich, and had Fawsett and J.S. be removed
for his bail there ; a corpus cum causa issued 19 Junii*Z. fr . om Hn jj^ m
out of the king's bench to appear before Popham chief "ab.Toro. ft
justice 9 Julii next at Norwich ; afterwards a procedendo bail accept-
issued the same 19 Junii, notwithstanding the first writ ; ed on the re-
Popham 9 Julii took bail at Norwich, and discharged the turn, the bail
sheriffs there of Brome ; afterwards 20 Julii the proceden* b * ,0 .w & the "
do was delivered to the sheriffs of Norwich : They pro- {JJJJJL <]"!
eeeded, and judgment was given there against Brome, who c harged,tho'
brought error in the king's bench, and the judgment was the bail-
affirmed, and after two niiiils against the party the plain- piece was
tiff sued out a scire facias against Fawsett one of the bail, not filed, and
who pleaded the matter supra, and the plaintiff replied and ™* cau "
showed the procedendo, and so a demurrer upon that; and ^ as reman<; »" , N
it was adjudged that Fawsett the bail is discharged ; for r ±2 i ]
by the taking of bail by Popham, the bail in the inferior
court at Norwich is absolutely discharged ; although the
bail taken by Popham was not filed in court; for that
could not be till term ; and although a procedendo issued,
whieh might have been ^supersedeas to the first habeas cor-
pus, yet that not being delivered before 20 Julii, which
Hil. 5 Jac. •
was after the bail taken by Pophaut, the body of Krone
•% was lawfully discharged by tht bail taken at Norwich ; at
_ if the body eomes by habeas corpus, and because he cannot
find good bail, the judge commits the party to the Mar-
Bro. Main- g h a |, that discharges the bail. But they all agreed, that
Cr'jac 363 *' * ne f roee ^ en ^ " a( ^ been delivereil to the sheriffs before <
1 Sid. 313. * 9 JulU 9 which was the time in which Popham took the
Hob. 328." bail ; then it had been a supersedeas to the first writ, and
then the bail in the court of Norwich should stand.(l)
(1) See Highui. on Bail 120.
Ashe vs. Dought j.
Licet is an THE plaintiff showed that he and the defendant, and
affirmative several other tenants (copyholders of the manor of D. in
well issuable Norfolk ) werc Pontiffs in chaneery against R. Wood lord
as the words °f tne manor > to nave their fines made certain by decree,
in facto. No- and that in consideration the plaintiff at his costs and la-
lice oeed not bour should procure a decree there for the enjoyment of
be averred their copyholds at a fine certain, the defendant promised
wh ® n . ||j e to pay the plaintiff after such decree obtained 3/. when he
meaDi of 8nould ** Wl 1 "*^- The plaintiff shewed in certain that
knowledge. ne at his C08t8 anQl labour obtained the decree accordingly,
and licet the plaintiff such a day and place requested the
defendant to pay the 3/. yet he denied it, &c. The de-
fendant pleaded non assumpsit, and it was found against
him: and it was moved in arrest of judgment; 1. That
the request was not well laid, for the request, being parcel
of the promise, ought to be alledged in facto, and not by
this word licet, which is but argumentative, and not direct-
ly ; but it was resolved, that licet is a word affirmative,
und being conjoined with time and place certain, is as well
issuable as the word in facto ; as appears by Buckley's
Plow. 127.b. case Com., and by several precedents in eourt.(l) 2. It
was moved, that there is no notice laid to be given to the
defendant of the deeree in chancery, and the 3/. are to be
given to the defendant for and in recompense of the decree:
ut it was resolved, in this ease no personal notice is ne-
cessary to V e given the defendant of the deeree, because it
appears by the declaration, that the defendant was one of
the plaintiffs in chancery on the suit, in which the deeree
was granted; so that he himself is party to the decree;
T 122 1 an< * lt * s not *^ e tne ease of Street and Wheeler lately ad-
judged in this court ; for there Wheeler promised Street
upon the marriage of Wbeejer's son with Street's daugh-
ter, ad maritagium to give iOOL to the son ; the parties in-
termarried, and Wheeler did not pay the tool, and in as-
sumpsit brought by Street against him, because it did not
appear by the declaration, that Wheeler had notiee of the
(l) See ante 66. n. Lawes PI. 33. n. 3 Leon. 67. Kirle # Lee's
Assump. 142. 238. 240. 1 Sannd. case. 1 Saund. 117. n. 4. ace.
Hil. 5 Jae.
marriage, and he being a stranger to the marriage could
not pay lOOL at the marriage without having notiee of it,
therefore there Street was barred : but in this ease the de-
fendant is party to the first bill, and therefore might have
as good and full notiee of the success in the suit, and de-
cree, as the plaintiff* had; wherefore judgment was given
for the plaintiff.(2)
<2) See post 168. n.
Lane vs. Alexander.
Cro. Jac. 202. 1 Brown!. 140. 8. C.
THE plaintiff declared on a lease made to him by Mary A traverse of
Planten for three years : the defendant said, that the land a §T Hnt of a
&e. is copyhold of the manor of Fawkenham in Norfolk, co ? y on f ^
whereof Queen Eliz. was seised in fee, and long before the fo r "h e 18 g r a n t
lessor had any thins, viz. such a day, &e. by J. S. her an( j no f ^ e
steward, at a eourt, etc. granted the land to the defendant day is the
by eopy in fee according to the eustoin ; and so justified material part
the entry on the plaintiff. The plaintiff' replied and said, of lbe i8S,,e -
that long before the eopy granted to the defendant, viz. at
a eourt of the manor held sueh a day, &c. anno 43 Eliz.
the Queen by eopy, &e. granted the land to the lessor for
life according to the custom, by virtue whereof 'she enter-
ed and demised to the plaintiff, &e. The defendant by
way of rejoinder maintained his bar, absaue hoc, that the
Queen at the court of the manor by J. 8. ner steward such
a day, &c. granted the land to the lessor; and thereupon
the plain ti fir demurred in law generally. And Yelverton
moved, that the traverse was good in sueh special manner,
of the day and of the steward*, &c. wherein the difference
is where the act done may be indifferently intended to be
on one day or another, there the day is not traversable ;
as in ease of a feoffment by deed sueh a day, the day of the
feoffment is not traversable, for it passed by the livery and
not by the deed ; and the livery is the substance, and the
day but of abundance, 10 £. 4. 6. The same law of the day
in trespass, the day is not traversable ; for although it be on
another day it is not material. Bat where a man makes his
title by a special kind of conveyance, as in this ease the .
plaintiff makes his title by a eopy, there all that is contained
in the copy is material, and the party cannot depart from it,
for he eannot claim this land by any other copy than that
which is pleaded ; as 18 H. 6. 14. in an action .against J.
S. for taking his servant, and declares that he by deed re-
tained his servant the Monday in such a week ; in sueh
ca<e it is a good plea tor the defendant to say, that the [ 133 ]
servant was retained with him the Friday after, absque hoc,
that the plaintiff retained him the Monday. The same
law, as it seems, of letters patent, the day and place are
trasversable, because they are the special eonveyance of
the party, from which he cannot depart. It seems like-
Hil. 5 Jac.
wife here, that although the day in this ease be traversed,
yet on a general demurrer the statute 18 Eliz. of demur-
rers aids it, for the day here is not of substance but of
form. Bat, per toiam curiam, the day is not traversable
here, bot whether the Queen granted an elder eopy to the
lessor of the plaintiff before the eopy granted to the defend*
ant, so the traverse should be absque hoc, quod Domina Re-
tina concessit modo et forma to the lessor of the plaintiff.
The same law in ease of letters patents before ; the tra-
verse should be, absoue hoc, quod Dominus Bex concessit
modo et forma, and the day and plaee does not come in the
traverse(i) Fenner justice contrary, for the reason given
before by Yelverton. And also (by him and the chief jus-
tice) it is aided by the statute 18 Eliz. for it is but form;
for if the jury find an elder grant by the Queen to the
lessor of the plaintiff, although it be at another court,
it is sufficient; and by consequence the day is not material
in substance. Quod n&ta.. But Williams justice contra-
ry. And by all. but Fenner, adjudged, that the traverse
is ill ; for the jury are thereby bound to find a eopy on
such a day and by such steward, which ought not to be :
and also it is matter of substance not aided by statute 18
Eliz.
(1) See post 195. n. Com. Dig. n. 2. 812, and h. B. 2 Saund. 206.
Pleader. G. if. i Saund. 269, and a. n. 22. 2*.
Darby vs. Boice.
1 Brownl. 141. S. C.
bargainsand ^ ejectment for an house in London, on non cuL plead-
selU lands ; ed, the jury found a special verdict, and the case was such:
indentures of tenant in tail of several messuages in London 7 Jan. 44
covenants Eliz. bargained and sold them to J. S. and delivered the
are made to deed off of the land: 8 Jan. the same year indentures of
very suffered covenailt8 were nia ^ e io nave a comn i 011 recovery suffered
of them; & a °f those messuages ; 9 Jan. afterwards a writ of right was
writ of right sued in London for those messuages returnable at a day to
is sued for come ; and 10 Jan. the same year, the tenant in tail
them. The made livery of seisin to J. S. of one house in the name of
bargainor a || ? wnere t ne tber messuages were in lease for years,
live" y ofw!- ftm * tne * e9§ees never attorned. The question was, if the
zin of them meMuajres passed by the bargain and sale, or by the live-
to the bar* ry ? and it was adjudged, that they passed by the bargain
trainee. The anjl sale. And a difference was taken by Yelverton be-
lauds pass by tween several conveyances, both executory", & where one is
and 8 af r * aiDexecute d immediately; a* in Sir Rowland Hay ward's case,*
8a e * where several lands were given, granted, leased, bargain-
r ^21 1 e| 1 ai) d *°ld to several for years, the lessee was at election,
either to take by the bargain on the statute 27 H. 8. or by
* Poph. 95. demise at the common law. But -it is otherwise, where
Hil. 5 Jac.
the one is executed at first ; for there the other comes too 2 And » *°2.
late; as in this case, by the very delivery of the bargain 2Co » 35 * a »
and sale the land itself passed by the custom of London
without enrolment (for, nota, the custom was found in the
verdict) and so much is expressed by the statute of enrol-
ments, which excepts London ; then being executed, and
the conveyance perfect by the delivery of the deed, with-
out any circumstance, the livery of seisin comes too late;
for it is made to him who has the inheritance of the mes-
suage at the time ; and possession executed hinders pos-
session executory. As if a bargain be of land, and before
enrolment the bargainee takes a feoffment, that hinders the
enrolment, because the taking of the livery has destroyed
the use which passed by the bargain. ($uod fuit conces-
sit™. Another reason was given, because it appears that
the intent of the parties was to have the land pass by the
bargain, because it was to make a perfect tenant to the
Praecipe, as appears by the acts subsequent, as the inden-
tures of covenants, the bringing of the writ of right, &e. .
all which would be frustrated, if the livery of seisin should
be effectual : and when the act is indifferent, it shall be
taken nearest to the intent of the parties ; as if a man has
a manor, to which an advowson is appendant, and makes
a feoffment by .deed of the manor cumpertin. and delivers
the deed, but does not make livery of seisin ; although the
deed perse is sufficient to pass the advowson ; yet, beeause
the party did not intend to pass it in gross, but as append-
ant, if the manor does not pass, the advowson alone does »Dy.311.a.b
not pass ; as it was agreed 14 Eliz. in* Andrew's case. 1 And. 17.
Quodnota. Per totam curiam. And judgment given ac- J? ', 1 !^.
cordinsly, that the defendant, who claimed under the bar- e
gain, should enjoy the land.
Samford vs. Cutcliffe,
COVENANT brought by the heir in reversion against An accord
the executor of tenant for life for a breach of covenant in certain tex-
tile testator in not repairing the house demised ; the de- ecoted may
fendant pleaded, that the testator, tenant for life, died 10 * e ]' b * ple **
Martii, and that 22 Martii concordat et agreat. fuit inter Jition ° for
the plaintiff and defendant, that the defendant should qui- breach of a
etlv depart and leave the possession to the plaintiff, and covenant to
in considerat inde, the plaintiff agreed to discharge him repair ; be*
from the breach in non reparande. And showed that 25 cause l [j e ac "
Martii he quietly departed and left the house to the plain- ^ ££1%
tiff f and shewed an execution of the concord, as he sup- only t0 ]. e .
posed, and demanded judgment si actio: upon which the cover dama-
plaintiff demurred in law. And it was adjudged for the ges.
t plaintiff; for, per Fenner, the concord is void, for there is [ 125 }
not any recompense, nor quid pro quo for the plaintiff; for
the executor has not any interest in the house after the
death of the tenant, for life, but only a license in law, to
Hil. 5 Jac.
[125 a J
enter and take away- the goods, &c. then the accord, that
he shall leave the house, is to no purpose, because he has
no interest in it. And, by Yelverton and Croke, the plea
is not good ; because the time is ineertain oh this agree-
ment, when he shall depart, and although the defendant
shews that he really departed within five days after, yet
that will not aid the first incertainty ; for the concord is
the foundation of the whole, whieh ought to be certain,
when it shall be performed ; therefore, by them, the con-
cord ought to have contained a certain time, in which the
defendant should depart, if he would take advantage of it
And, by Williams justice, it is not a goed concord as it is
pleaded ; for the time being indefinite, when the defendant
should depart, he ought to shew a present execution of it,
viz. that he instantly departed : as if a man comes into a
shop to buy, ho ought instantly to pay, otherwise it is no
contract executed. But all three, prmter Fenner, agreed,
that if the defendant's plea in the time of the departure
from the house had been certain, and executed according
to the certain agreement, it had been good ; because al-
though the action is grounded on the deed, yet it is only to
Noy 110. recover damages. And so agrees with Blake's case, 6 Co.
Cro.Jac.99. 43. b.(i)
(i) See Bae. Abr. Accord and Assump. 649 to 656. Ante 11. n.
Satisfaction. A. C. Lawes PL 2.
Pasch. 6 Jac.
Ket, administrator of J. S. vs. Life.
IT after ver- IN trover, after verdict, and before the day in bank, the
diet the defendant pleaded, that the plaintiff, who brought the ac-
plaintifPsad- tion as administrator of J. S. being eited in the spiritual
!• '"revoked court » na<J P er debitam juris formam, the letters revoked,
the 'defend- aD< * administration committed to another. And, per CU'
ant can be r ^ am ^ Tl ° plea ; for it is a matter only wherein the defend -
relieved only ant shall be aided by audita querela, on the letters of ad-
by audita ministration, and not by plea; no more than in the case of
querela. a release, &c. 21 H. 7. (1)
(1) When after judgment reeov- when a defendant is in execntion
ered by an administrator, his ad- at the suit of an executor, if the
ministration is repealed, he cannot will be annulled, an audita querela
legally take ont exeeution, and an lies. Dyer 203. b. Moyer v. Car*
audita querela lies to discharge the vanell. 8 Go. 144. Dr. Drury's
defendant from the judgment as case* Go. Ent. 89. a. So it was
against the first administrator. 2 held, 8 Leon. 278. Anon, that an
Saund. 148. Turner v. Dairies. So audita querela lies for one who is
Pasch. 6 Jac.
in custody on execution at the suit
of an administrator durante minor-
itate, if the executor comes of age
while he is in jail.
In Barnehurst v. Yelverton, ante
83. the defendant, taken in execu-
tion after the plaintiff's adminis-
tration was repealed, was discharg-
ed on motion ; but in PatneU v.
Brooke, Sty. 417. where adminis-
tration was repealed before the
rendition of judgment, the court
refused to stay execution on mo-
tion, and put the defendant to his
audita querela.
In Lister v. Mundell, 1 Bos. &
Put. 428. Eyre C. J. says it is the
modern practice to interpose in a
summary way in all cases where
the party would be entitled to re-
lief on an audita querela.
While an action brought by an
administrator is pending, repeal or
other determination of his author-
ity may be pleaded in any stage of
the case before verdict. Cases su-
j»ra&lLntw.34& Clare S{ Hedge's
case cited. But it is said by Par-
sons C. J. that when an action is
rightly commenced against an ad-
ministrator, a determination of his
power, pending the action, shall
not defeat it; for he may retain
against his successor sufficient to
satisfy the judgment. 5 Mass. Rep.
278. Jewett v. Jewett. A dictum
of Holt C. J. (Comb. 465.) is cited
in support of this general position.
But that dictum was uttered with
reference only to the case of an
administrator* durante minore ai-
tote, when the executor comes of
age pending the suit. And even
in such case, it was decided in
Ford v. Glanvile et ux Gouldsb.
13a. that the administrator might
well plead the coming of age of the
executor. 1 Lutw. ubi sup. So a
repeal of administration, pending
the suit, was held to he a good
plea for a defendant whose power
was not thus limited. 27 H. VIII*
26. Bro. Abr. Administrator., pi. 3.
and after considerable research,
it has not been found that the doc-
trine of the Year- Book has been
denied. But however the law may
be in England, on this point, it is
in Massachusetts a good plea in
bar for an administrator, that since
the commencement of the mi it, he
has been removed from office by
the court of probate. 5 Mass. Rep,
ubi sup.
Bury vs. Wright.
C 1*6 J
BEAR witness, mistress, that he hath stolen my hair " Bear wit-
cloth : and per cur. nil capiat per billnm : for it is no di- ? e89 that he
rect affirmation to charge him with the stealing of it, no j* ^f**"
more than if he should say, mistress, you will bear witness tiooable
that he hath stole my horse ; for thereby the party who words.
speaks does not slander the other, but leaves it to the tes-
timony of others for the proof of it; as if he should say, Pahi* 68.
J. S. will prove yon stole my horse ; these words will not ,
maintain an action. Quod nota.
24
iPasch. 6 Jac.
Strickland vs. Thorpe.
1 Brownl. 211. Cro. Jac. 207. S. C.
Trespass THORPE brought trespass against Strickland, quart
with a con- clausum f regit, Sfc. 20 Junii anno 8. with a continuance
«naaodo;the ti || 6 jybvemft. after; upun non cuL a verdict was found
tS*?reipaM for the plaintiff, and judgment given: but it was entered,
to the time nifl ^ define quia pardonatur. And upon error he assign-
or itsincep- ed, that the judgment ought to be capiatur $ because by
tion ; no ca- reason of the king's pardon by parliament anno 3. which
piatur it ne- pardons all offences before 25 tieptembr. preceding, he al-
^"continu- l ed 5 e< ** tnat Dut P art of tne tre8 P a « 8 wa « pardoned, viz.
aodo^oniy * rom 20 ^unii to 25 Septembr* following; but that the tres-
for increase P*** from 25 Septembr. to 6 Nbvembr. is not pardoned ;
of damages, therefore as to that there ought to be & capiatur. Butter
curiam, the judgment is well entered, for the first entry in
I *B° 4 ^76* tre8 P aM being only vi et armis, that being pardoned, all
coat.**' that depends upon it is pardoned ; for the first entry only
makes the trespass. It appears likewise by the declara-
' tion, that the continuance of the trespass is not laid in the
entry, but only quoad depasturat. et consumptionem herbce,
which is added only to increase damages to the party ; but
not for the king's fine.
Oliver vs. Collins.
1 Brownl. 100. S. C.
Statutes e- THE plaintiff brought debt on the statute for not setting
iracted at a forth of tithes, and shewed that he is parson of the parish
session of church ofparva Lavar in Com. Essex, and that the defend*
he*d bTpro- ant ^ ac ^ 8e manv acres infra paroch. de parva Lavar sown
rogation may w ' tn wheat, whereof the tenth severed from the nine parts
be stated in came to 28/. and shewed that the defendant apud parvam
pleading to Lavar prazdict. took and carried away the wheat, not set-
[ 127 ] ting out the tithes contrary to the statute, whereby he for-
have been e- feited fiO/. which the plaintiff demanded treble value, &c.
fiT** 1 a™ to nis dama g e i00 *- and on nil debet it was found for the
of such **l P ,aintiff > an « hedged in arrest of judgment, 1. That the
tion. statute was misrecited ; for where the plaintiff declares,
quod cum 4 Novembr. 2 E. 6. it was enacted, &c. it was
said, there is no such statute, for the parliament began 1
E. 6. and continued per ptorogationem till 4 Novembr. 2
E. 6. So the plaintiff is mistaken in it. Sed non allocatur;
for 1000 precedents are contrary ; and in respect of the
continual use to lay the statute in this form as the plaintiff
has declared, the court said, they would not alter it, for
Pasch. 6 Jac.
that would be to alter a!l the judgments that were ever
given in this court.(l) 2. It was objected, that (he matter
[±&a]i
(1) It is not necessary to recite
a public statute ; Cro. Eiiz. 236.
Vanderplunlcen v. Griffith. 2 Mod.
99. Shaftsbury v. Digby. Wilies
310. Wheeler v. Home ; but if it is
mis recited, whether in time or oth-
er cireu Distances, the misrecital is
fatal, even after verdict, if the plea
of the party " be tied up to the
statute ;" that is, if the conclusion
be contra formam statuti prcedicti:
But if the eonclusion be contra for-
mam statuti generally, or contra
formam statuti in hujus modi casu
editi et provisi, it is good notwith-
standing the misrecital; because
the general conclusion sets the mat-
ter at large, and the court is bound
to take notice of public statutes,
and will refer (he pleading to such
statute as is apt for it. Sav. 42.
Bradshaw v. Lowe Sf al. Brook's
New Cases 77.224. Plowd. 79.
84. Partridge v. Straunge. Hetl.
119. Jenkins case. Carter 117.
per Archer J. Sty. 185. Archer v.
Holbidg. T. Ray. 192. Rex v.
Wild. 1 Lutw. 140. Birt v. Roth-
well 1 Ld. Raym. 210. 343. S. C.
1 Freem. 311. Anon. 1 Ld. Raym.
382. Piatt v. Hill. 1 Stra. 214.
Palgrave v. Windham. Fort 372.
8. C. Doug. 94. Boyce v. Whita-
ker. 2 D & B. 655. Watson v.
Shaw & al. 6 ib. 771. King v.
Mar sack. 1 Chit. Crim. Law 276.
Esp. on Penal Stat. 106.
The title is no part of a statute ;
and it was formerly held that mis-
recital of the title, being mere sur-
plusage, did not vitiate the plead-
ings. Hardr. 324. Attorney Gene-
eral v. Hutchinson Sr al. 1 Ld.
Raym. 77. Chance v. Adams. The
established rule, however, in Eng-
land, now is, that if a party will
take upon himself to recite the
title of a statute, he must do it
eorrectly, or the pleadings will be
bad on general demurrer. 2 Salk.
609. Mills v. Wilkins. 6 Mod. 62.
S. C. 2 Bl. Rep 1104. per Gould
J. 1 Chit. Crim. Law 2:9. But a
verdict cures the fault. Bro. Abr.
Parliament, pi. 87. r 2 Mod. 241.
Spring v. Eve. 1 Chit. PL 217.
In New York it has been decided
that misrecital of the title of a pub-
lic statute, in a part which does
not alter the sense — if the date be
truly stated — is not a cause for ar-
resting judgment, nor is it error.
3 Caines Rep. 41. Murray v. Fitz-
patrick. In Parker's case 9 Hut. 57.
Winch and Hutton Js. inclined to
the opinion that misrecital of the
preamble to a public statute is fa-
tal after verdict ; Hobart C. J. con*
tra.
The court do not ex officio take
notice of private statutes ; they
must be recited in pleading and
proved by an exemplified copy, un-
less the opposite party, by his
pleading over, admit them. The
court know nothing of the statute
except as it is recited. And a
misrecital cannot be taken advan-
tage of on demurrer, any more
than a variance in setting out a
bond or note. By the plea of nul
tiel record, the party relying on a
private statute is put to prove it
as recited, and a variance will be *
fatal. Or if the statute is spread
upon the record, and it varies from
the recital, a demurrer will reach
the defect, as in the case of a bond
set forth on oyer. See 4 Co. 76.
Holland's case. March 117. pi 193.
Piatt v. Hill) and Spring v. Eve 9
ubi sup. 3 Harris and M'Henry
388. Whetcroft v. Dorsey.
If the time of holding the par-
liament be misstated, it is cause of
demurrer and even arrest of judge-
ment, in case of private as well as
Kublic statutes; for the court are
eld to take notice of the com-
mencement, prorogations and ses*
Pasch. 6 Jac.
fi*7J]
was mtstried, and there ought to be a new trial, because
the venire facias wm de parva Lavar, where by their pre-
tence it ought to be from the parish de parva Lavar ; to
which Yelverton answered, that the trial was good, for by
this action no tithes are demanded nor recovered, but the
defendant punished only for the contempt against the stat-
ute in not setting forth his tithe; and this wrong, which
the plaintiff complains of, is laid only in the town of parva
Lavar, and not in the parish *% for all the places in the de-
claration, where the parish is named, are but conveyance
to the action, and not of the substance of it ; because that
only is, where the tort and grievance to the plaintiff aris-
en, which is only in parva Lavar. Quod, fuit concession
per curiam, upon great debate at several days: and the
judgment was given for the plaintiff. The like judgment
between Barnard and Costerdam in an aetion on the same
statute, for the last point of the venue: Quod nota well
adjudged in this point: but in the ease of Costerdam,
•ions of parliament. Moore 551. 113. an indictment was quashed,
pi. 7 h2. Anon. A Lev. 396. Rex because it averred a statute to have
v. tV'ld. It is said, Doug. 97. n. been enacted at a parliament held
that mtsreeita! of private statutes, in June— the time when the writs of
in other particulars, can be notie- parliament were returnable— yet
ed by the court only when there is being prorogued till October, the
a plea of nul tiel record. The true session did tint commence till then,
rule, however, seems to be this-— if Dyer 203. Walgrave's case. Jenk.
the party by his pleading admits 223. S. C. ace. In the case of
the statute as recited, the court Spring v. Eve, obi sup. the same
will not examine it, and it need rule was held to apply to an ad-
not be produced ; but if the plead- journment, though it was alledged
ings do not admit the statute, then t<* have been by prorogation. But
it must be produced in evidence, Atkins J. did not not eoneur with,
and a variance is fatal, whether the other judges, and expressed
nul tiel record or the general issue dissatisfaction even with the rule
be pleaded : For on the general is- adopted in Plowden. And in 19
sue, the plaintiff must first prove Mod. 602. Anon. Holt C. J. says if
the statute, in order to support his an action be brought upon* an act
ease. Cro. Jac. 138. Read v. Pot' of parliament, and it is set forth to
ten. 1* Sid. 356. Holby v. Bray, have been held by prorogation,
ft Mod. ubi sup. Cowp.is7ii.Rann when it was by adjournment, it will
v. Green. be fatal. In Smith v. Langham, 2
The decision in the text was Show. 334. it was held that the
founded on the case of Partridge v. misreeital of the title of a statute
Stvaunge. Plowd. 79. and subse- as to the adjournment of parlia-
ment cases in which that had been ment is immaterial, if the proroga-
jo I lowed. The ground of it was tions are rightly alledged.
that every meeting of parliament, It was ruled in Woisey v. Shep-
after a prorogation, is a new ses- pard, 1 Brownl. 196. that the mis-
sion, and that a statute relates back recital of the time of a statute is
no further than to the first day of not prejudicial in a plea in bar,
the session. 4 Inst. 7. And in The though it must be laid truly in a
Queen v. Hiekerivgill, 11 Mod. count
Pasch. <J Jac.
whieh concerned the Earl of Klenriehard (with whom
Yelverton was counsel) it was resolved, that the issue be*
ipg on the custom of tithing, whieh is found against the
defendant, he shall pay the value expressed by the plaintiff
in his declaration : because by the collateral matter plead*
ed in bar, the declaration is confessed in the whole.
Trin. 6 Jac. 1 1*8 1
Pickas vs. Guile.
THE plaintiff declared, that the defendant in consider- A promise to
ation the p I ai n tiff adtunc et ibidem at the defendant's re- re-deliver
quest deliberavit to the defendant four broad cloths, and goods,in con-
two packs and a half of wool of the plaintifTs to the value t^ddl^ry
BOl. promised the same broad cloths and packs of wool to j 8 yo ^ t qJ*
the plaintiff upon request to redeliver: the plaintiff said in
facto that he did deliver them to the defendant; yet the
defendant had not, although he was such a day, &c. re-
quested, redelivered them : and on non assumpsit pleaded,
it was found for the plaintiff: and Yelverton shewed in ar-
rest of judgment, that there is no consideration laid in the
declaration to draw a promise from the defendant* for 'he
defendant had no benefit by the cloths. &c. but nudam ens-
tod, whieh is rather a charge than a benefit: for the de-
fendant could not use them ; and therefore it is to be re-
sembled to 9 E. 4. where delivery of the evidences to the
true owner is no consideration, for the owner ought to have
them of common right. Quod fuit concessum per totam
curiam. (t) And nil capiat per billam entered.
(1) See ante 4. n. 2. 2 Brownl. 40. Anon.
Croft vs- Walbanke.
. # Adeclarn-
AN action is brought against the defendant as adminis- tion against
trator of J. S. during the minority of D. and issue joined an adminis-
and found for the plaintiff; and all edged in arrest of judg- tratordunm-
ment, that the declaration is not good, because non constat, te m ^ norlta ^
whether D. be at the time of the aetion under 17 years, at ££ J^ e e a ,"
which time the authority is determined. But it was ad- e cutor's mi-
judged, that it need not be shewn.(l) 1. Because the plain- nority.
(1) See 2 Rol. Rep. 466. Amy v. Bee. 1 Ld. Raym. 408. Beal r.
v. Whisteler. Hob. 25t..Carverv. Simpson. 1 Lutw. 627. 8. C. ace.
Haselrig. Cro. Jac. £90. Walthall But where an administrator duran-
v * JUdrich. Vaugh. 93. Edgecomb te minore estate of an executor is
[128 a]
Trin. 6 Jac.
tiff is a stranger to the power given the defendant, and
cannot know of what age D* the infant is. 2. Because the
defendant by joining issue has admitted that his power
continues ; for otherwise the exception taken by the defen-
dant should be pleaded by the defendant in discharge of
himself, for it lies properly in his notice, and it is for his
benefit to alledge it
plaintiff, he must aver that the ex-
ecutor is within age, or the decla-
ration will be bad on demurrer and
after verdict. 5 Co. 29. PiggoVs
ease* 1 Ld. Raym. ubi sup. Bo an
administrator durante absentia must
aver that the absence continues. 6
Mod. 304. Slater v. May. 2 LA.
Raym. 1071. l Balk. 42. S. C.
Bo an administrator pendente lite
must aver that the suit is still de-
pending. 8 Keb. £12. Buclcly v.
Welsh. Bo an administrator de
minore estate of the next of kin, or
other person entitled to adminis-
tration, must aver the continuance
of the minority. Com. Rep. 110.
Freke v. Thomas, ib. 19ft. Ed-
mund v. Shaler.
Before the statute 88 Geo. Ill,
c. 87. the administrator during the
minority of an infant executor must
have averred that the executor was
within the age of seventeen years ;
at whieh age an executor bv the
civil law and law of England was
competent to act : B Co. ubi sup.
See also 2 Brownl. 247. Bromehead
Sf aL v. Rogers. An averment
that the executor was within age
generally, was not sufficient ; tbo'
the defeet was cured by the defend-
ant's pleading over other matter, 1
Ld. Raym. ubi sup ; or by verdict.
Cro. Car. 240. Wells v. Some. By
that statute, where an infant is
sole executor, administration shall
be granted to another person till
the infant shall attaiu the age of
twenty one years. There is no
Sound, therefore, at present, for
e application of the rule above,
in England ; and it never applied
in those states in the Union in
which an executor cannot act till
he is of full age. And in England,
when administration is granted
duriug the minority of the person
entitled to administration, it was
always held to continue till the in-
fant was twenty one years old.
Com. Rep. ubi sup. 1 Ld. Raym.
667. Freke v. Thomas. 1 Balk.
39. B. C.
As administrators durante absen-
tia and pendente lite may be sued
as well as sue, in the same manner
as administrators de minore cetate,
2 Show. 69. Impey v. Pitt. T. Jon.
183. 8. C. 2 P. W. 083. Walker
v. Woolaston. Rich, on Wills 460.
it is presumed the same distinction
would prevail as in the text ; and
that when sued it would be unne-
cessary for the plaintiff to aver the
continuance of the absence, or of
the suit. The reason of the dis-
tinction in the one ease applies
equally to the other ; viz. that the
plaintiff is not supposed to know
the faet ; whereas the administra-
tor himself must know it and con-
sequently is bound to aver it.
Burges & Dixon vs. Ashton.
Several def'ti THE defendant, vicar of A. libelled severally against
in suite for tne plaintiffs in the spiritual court for small tithes, and
tota?nVpro! a,8 ° for herba S e '. wood > mi,k * the plaintiff joined in prohi-
hibition. bition, and surmised for all (but for small tithes) a custom
Trin. 6 Jac.
ef tithing. And, per totam curiam, the prohibition is not [129 J
well brought in both their names ; for the suit below being
upon several libels, they eannot join in a prohibition^ 1)
for the tortious vexation of the one does not extend to the
other, no more than two ean join in an aetion for slander-
ous words ;(2) as appears, Dyer.— -Quod nota. Yet the
court did not grant any consultation, because the matter
being on a custom triable by the common law, they of the
spiritual court were justly prohibited, though not in such
due form as they ought to be ; and therefore they awarded
that the plaintiffs should make several declarations, and
so proceed as upon two prohibitions.
(1)1 Leon. 286. Gerard v. Sher- spoken of partners in trade, where-
rington. 2 Brownl. 7. Parker's by they are injured in their trade,
case ace* Owen 13. Bartue's case, a joint action lies at their suit. 3
contra. Bos. and Pal. ±50. Cook 8{ al v.
Batchelor. See also 2 Saund. 1 1 7.
{2) If defamatory words are a. n.
Kenrick vs. Pargiter.
1 Brownl. 187. Cro. Jac. 208. Noy 130. S. C.
THE defendant justified the taking of cattle damage- if the lord
feasant, on surmise of a custom, that the plaintiff being surcharge a
lord, and enjoying the place where, &c. solely to himself stinted com-
till Lammas-day, after that day it should be common for mon ' the
the tenants, and the plaintiff should put in but three horses, ££ ™"Zt-
&c. and because the plaintiff after Lammas-day put in more t j e damage
cattle than three horses, &c. he took them damage-feasant, feasant,
as he lawfully might. And they were at issue on the cus-
tom, and it was found against the plaintiff. And Yelverton 2B1. Rep.
shewed in arrest of judgment, that the defendant could not 1233.
take the cattle damage-feasant, for it appears the defend- ? B t row ?Lo < *
ant is but a commoner, arid it likewise appears that the Godb. jsl '
place where, &c. is the plaintiff's soil, and his cattle can- Lj t . ft 484.
not be taken damage-feasant in his own soil ; no more than
the tenant ean have trespass against the lord vi et armis,
in respect of his seigniory, as Lit. and 5 H. 7. are : But
per curiam, the matter of the taking of the cattle damage*
feasant will not come in question, because nothing is in is-
sue but the custom, which is tried against the plaintiff. But
if the plaintiff would have taken advantage of it be ought
to have demurred ; and although he had thereby confessed
the custom, yet whether a commoner might take the lord's
eattle damage-feasant bad then properly come in debate :
And, by Fenner, Williams & Crooke, such taking damage
feasant is good; for by the custom, the lord is excluded from
having but his stint, and the lord may well be stinted, and
the whole vesture & benefit of the soil is to the commoners,
and they have no remedy to preserve their interest in feed-
Trin. 6 Jac.
tog their cattle but by taking the lord's rattle that offend :
And the custom here has made the lord as mere a stranger
[ 180 J ax any other, and the cattle of a stranger clearly a torn*
moner may take damage- feasant. 10 H. 7, &e. the ehief
justice and Yelverton doubted ; and that as the tenants by
eustom have gaiued a sole feeding in the lord's laud, so
they ought to alledge custom and usage also to distrain
the lord's cattle, and that had been good. Quod nota.(t)
(i\ See 4 Bur. 2496. Hall v. lays down with great precision the
Harding Sf aL i Bl. Rep. 678. rights and remedies or fellow eom-
S. C. where Lord Mansfield, upon moners as between themselves, and
- *.! _* _ll .L- ...L..V... _l l.„* _„ .1 1*1.-1 J
Ventres vs. Carter.
Noy 129. S. C.
The law does AN aetion of covenant brought in a base court, and judg-
not give a ment given there by nihil die it, and in error brought t be re-
hab, corp. a- 0Df t ne y assigned two errors ; 1. That on the writ of inqui-
who 8 do ar °ot r ^ °f damages, the jury not appearing, they awarded an Aa-
appear on a ^a* corpora, and upon that the damages were found. And
writ of in- adjudged error, for the law does not give any habeas corpo-
quiry of da- ra in <wieh case, but only where the principal matter eomes
m *S e8 - . in debate and in issue ; for if the jury does not appear at
Videtur, li- tne fay prefixed on the writ of inquiry of damages, there
ium are^not 8na ^ * 9 * ue an a ^ as and P^ res ou h* & c ' Dut Dot an ^ ia ^ ea8
properwords corp, ^ ne second error was, that the judgment was ideo t?t-
of judgment, detur cur. And that was likewise adjudged error 5 for it
ought to be ideo considerat. &c. for that alone is the word
of effect, whieh imports the judgment to be on great advice;
But videtur* or liquet, or concessum is not good . And up*
on this word concessum another judgment given in Norwich
was this term reversed. But note, in fact the words in
this last case, were, ideo inconcessumfuit, where it was said
by Davie* of Lincolns-lnn, that the word in was- void, and
the judgment good by the word concessum. But. per totam
curiam, if concessum had been a proper word, inconcessum
had made the judgment erroneous; for that is Quasi nan
concessum. Quod- nota.
Smith vs. Smith.
1 Brownl. 101. S. C.
Sin Should BI883B made Katherine his wife, and John his son (be-
join in a suit, * n 5 Dut °' tne *& °' one y ear ) executors ; K. only proved
tho' one may the will, and married the plaintiff, and they brought debt
be an in/ant a£ executor (l) against the defendant omitting John the son J
(1) See ante 84. n. 1.
Trin. 6 Jac.
the defendant pleaded in abatement of the bill, that John under IT y^s.
was made executor with Ka the line, and is yet in lull life not aD ^ on,T lh ®
named. &c. The plaintiffs replied, that John was but of ^ e "^ roT
the age of one year, and that Katherine proved the will, e w
and had administration committed durante minore estate,
and that John is, and the day of the writ purchased was,
under seventeen years. And thereupon Yelverton demur-
red ; and it was adjudged for the defendant, quod billa cas-
setur, for both really are executors, and ought to be nam- r 181 1
ed in the action : And although by the administration com- ^
mitted durante minore estate, Katherine had the full power;
yet the infant ought to be named, for that affirms him to be
executor. (2)
(2) All the executors must join It was held in Colborne v.Wright,
in a suit, though some of them are 2 Lev. 239. T. Jon. 119. and in
under age. 2 Saund. 212. Fox- some other cases, Rich, on Wills
wist v. Tremaine. l Lev. 299. 1 417. that where there are two ex-
Sid. 449. S. C. Carth. 123. Coan ecutors, and one of them under the
v. Bowles. And those of full age age of seventeen years, adminis-
may make an attorney for the oth- tration during his minority may be
ers who are within age. ibid. But granted to the other, who may
in suits against them, the infants bring an action alone. But this is
cannot appear by attorney. Sty. 121. denied in other eases, cited in 11
125. Jlylet v. Oates. Sty. 318. Yin. Abr. 99. and is not warranted
Weld v. Rumney. 2 Stra. 783. by modern practice. Toller Bk. 1.
Frescobaldi v. Kinaston. Fitzg. 1. e. 3. § 5.
S. C.
Reps vs. Bonham.
1 Brownl. 211. Lane 17. S. C.
THE case was, a feoffment was made of three arces to A. Feoffment to
and B. to the use of Richard Reps and Mary his wife for A.&B. to the
their lives, and afterwards to the first, second, and third "f e ? f ^- and
son of the body of Mary, and afterwards to the heirs of the ^eir lives
body of Mary by Richard to be begotten : They had no son, afterwardsto
but a daughter now plaintiff; Richard levied a fine of the the first, sec-
land, Mary died, the plaintiff entered, and the defendant ond, & third
pleaded the fine of Richard. And adjudged that the plain- «>n of the bo-
tiff is not bared by the fine; for Richard had it but for life, dy . of **?
and the estate tail was in the wife only : by all the five J^ B ", a £
justices ; for they said, that the husband is named only to the heirs of
declare what heir of the body of the wife shall inherit; not the body of
every heir, but such heir only, as Richard her present the wife by
husband shall beget; and if the limitation had been to the c * to h %^ e "
heirs of the body of the wife by the husband, and by J. S. 2^£^JJ
begotten, the inheritance would be only in the wife ; but | ife and e t ££
yet it is by the latter words enlarged ; for if she has no „$& an es-
issue by the husband, if she afterwards marries J. S. the tate tail.
heir she shall have by him shall inherit. And they all
25
Trin. e Jac
conceived, that the inheritance is only in the wife, because
the word f heir J which makes the estate of inheritance, is
annexed only to the body of the wife : But if it had been
to the heirs which the husband should beget on the body
of the wife, there is a .tail in both. 10 H. 6. 70. a. The
sane law, if it had been to the heirs of the body of the
wife, and of the body of the husband begotten, for the word
(heir) is indifferently limited. Quaere, if it had been to the
heirs super corpus of the wife by the husband begotten, for
Yelverton urged that ease, and they seemed to agree, that
1 tut. SO. ». it is a tail in both : Then there is a small difference be-
tween super corpus and de corpore : Vide also Lit. 83. b.
and compare the ease there with this ease ; and, as Yelver-
ton thought, Lit is against this present opinion : Yet ad-
judged ut supra by all without any scruple, (l)
(t) To whichever body the word alike, then it creates a descend!-
heirs inclines by the limitation, it ble estate in eaeh of them. Lane
creates a descendible estate in such 17. 1 Brownl. 211. S. G. as in the
person. But if it be not more par- text. Hargrave and Butler's note*
tieularly limited to the body of one on Co. Lit. 26. Bac. Abr. Estate
than the other, bqt inclines to each in Tail. C.
Edmonds vs. Booth.
A grant of BOOTH, narson of B. in Suffolk, leased all his tithes of
tithes for life 200 acres of land, whereof Rabbit was then seised, to him
!o C fuTuTo D U and h " wife > and the heira of Rabbit ' t0 the gaid Rabbit b J
void. ' indenture, habend. from Mich, next to him and his heirs
during the life of Booth : Rabbit died and £. his wife had
T 132 I tbese 2°° Acres for her jointure ; she married Fowler, who
1 J demised the 200 acres to Edmonds the plaintiff, and the
heir of Rabbit granted also to the plaintiff the tithes of these
acres at will, and being sued by Booth for tithes in the
Spiritual Court against his own lease, he brought a prohi-
bition on the matter aforesaid ; and upon demurrer it was
adjudged for the defendant} and that he should hare a con-
sultation : Wherein the point was, whether the lease was
void, because it was to commence at a day to eome, and it
was for life ? And Fleming Chief Justice, Fennerand Wil-
liams eoneeived that is is void ; for although tithes are
spiritual, and are not extinct in the land, yet in the convey-
ance of 1 them, they ought to follow the nature of the land,
rent or other hereditaments, which being in esse, as 8 H. 7.
3. is eannot be granted to eommenee at a day to eome, if an
estate for life be limited ; (l) and as 21 H. 6. 46. tithes are
always in esse. But by Yel verton & Croke contrary; for here
(1) Tithes have every property livery. Wilmot 844, Bally Y.Wells*
of an inheritance in land, except 3 Wils. 80. S. C.
that they lie in grant and not in
Trin. 6 Jac.
the lease k made but of those tithes, which should be due
for the land of which Rabbit was then owner, so that
it does not enure by way of interest but by way of discharge
and retainer, for Rabbit eannot have tithes of hi/ own land ;
and then a discharge may well commence at a day to come,
as to be discharged from suit to a mill, or such like : But
by the Chief Justice and Williams, as the lease is pleaded,
it eannot be taken to enure by way of discharge; for the
plaintiff pleads, by force whereof Rabbit was seised of the
tithes to him and his heirs for the life of Booth : 80 that
the plaintiff having pleaded it by way of interest, they as
judges eannot intend or construe it otherwise. And by
Fleming Chief Justice, this lease eannot enure by way of
discharge, for there are no such words in the lease ; which
proves it was not intended by the parties to operate but by
way of interest, and that was more beneficial for the lessee";
for if it should enure by way of discharge only, it is such
a privilege annexed to the land, as cannot be granted over ;
hut if by way of interest, it way well be granted over.
And so much appears also in this case ; for the wife of Rab-
bit is owner of the land, but the son takes upon him to be
owner of the tithes, which cannot be, if the first lease had
enured by way of discharge; And Yelverton inclined
much thereto, that the pleading of the lease, and of the
seisin by force of the lease, was not good. Quod nota.
Gomersal vs. Aske Administratrix of her ["***]
Husband.
IBrownl. 101. S.C,
THE plaintiff brought debt against the defendant as ad- Whether sat-
ministratrix of her husband on two former judgments given isfaction of a
in two actions of debt against the intestate, and shewed the judgment on
recoveries : the defendant pleaded, that the intestate en- a re ^ m b 8 "
tered into a recognisance anno 3d Eliz. in chancery to Sir p^ded" in
Hugh Bethel, and shewed that after the judgments obtained bar of debt
by the plaintiff, Sir Hugh had judgment against the intes- on a judg-
tate on the recognisance, and that she had not assets to ment pre-
satisfy the plaintiff of the goods of the intestate ultra bona J iou ^ r * n "
onerahilia to the judgment on the recognisance : and there- Jjjj 'JJ^™
upon the plaintiff demurred. And by Fenner and Williams ar ° thereby
Justices, the plea in bar is good ; for although the plaintiff's exhausted,
judgments in his actions are prior to Sir Hugh Bethel's
judgment, yet the plaintiff by this action does not demand
execution of the first judgments, but only demands his debt
recorded 5 for this action is an original, and in the same
course, as if he had demanded the debt on the first bonds.
So that forasmuch as the plaintiff has not sued his scire fa-
cuts to execute the first judgments, but has brought his new
original, the plea is as well allowable here, as if it had
Trin. 6 Jac.
been upon -the bonds themselves. Fleming Chief Justice
and Velverton contrary : For this plea had not been good
bj the intestate himself, and the executor or administrator
does but represent his person ; and also this plea is not
good but in excuse of a devastavit; and they conceived
that payment in pais to the plaintiff had been a good bar
against Sir Hugh, because it trenched to the satifaetion of
a judgment on record, which is equal in nature with Sir
Hugh's judgment. And they were likewise of opinion, that
this aetion is in nature of a scire facias, for he demands
the debt in another course than it was originally ; for the
debt which was on a matter of writing, is now by the judg-
>c ment become a debt of record, and of so high a nature, that
Mo 545 * pending the judgment in its force, he * cannot resort to have
Oir. 37.coat. an *ttio n °n the bond : Quod vide adjudged in Higgen's
' ease, 6 Co. 44. 6. Croke Justiee doubted : Therefore, be-
cause the defendant was dead, the court would not resolve.
Bettisworth vs. Campion.
When one THE plaintiff, as executor of J. his father declared
promise it against the defendant, that whereas there was a eommuni*
aUoo° of an- cat * 011 Bn & agreement, that the defendant should have all
other, the *he iron made in such a furnace, paying secundum ratam
plaintiff, in a of 40s. per ton, and that the testator assumpsisset to the
[ 184 ] defendant, that he should have all the iron made in that
■ait thereon, furnace in considerations inde the defendant promised tbe
need not a- testator to pay secundum ratam aforesaid ; and shewed that
T«r perform* t jj e defendant had had so many tons and so many pounds of
™* °° 1S iron, which amounted, according to the rate aforesaid, to so
much money ; and confessed satisfaction of part, and 119/.
to be arrear and not paid, to the testator or the plaintiff.
The defendant pleaded payment, and issue thereon, which
was found against the defendant, to the damage of 200/.
And it was shewn in arrest of judgment, that the plaintiff
has not shewn the consideration was performed on his part,
for the defendant was induced to make the promise in hopes
and in consideration that he should have all the iron made
there, and the plaintiff has not averred, that the iron deliv-
ed was all ; as 13 H. 7. and 6 £. 4. A man is bound to en-
feoff J. S, of all the land descended from his father; it is
no plea, that he has enfeoffed J. S. of 100 acres descended
without an averment that those 10o acres are all that de-
' scended. To which it was answered by the court, that the
Cr. EJ. 543. consideration ex parte querentis was not, that defendant
should have all the iron ; but that the testator promis-
ed that the defendant should have all the iron ; so that the
consideration on each part was the mutual promise the one
to the other; (1) and although the testator is now dead,
(l) Serjeant Williams, in his 1 Saund. 819. says the rule is clear
note on the ease of Fordage v. Cole, and indisputable, that where there
Trin. 6 Jac.
whereby the defendant cannot have an action against the
plaintiff as executor on the testator's breach/ 2)yet the prom-
ise ex parte of the defendant continues. 2. It was objected,
that the defendant promised to pay for every ton 40*. and
the plaintiff demands for pounds and sows of iron, which is
not within the promise. To which it was answered by the
court, that the promise was to pay secundum ratam, and a
ton amounting to 40*. the defendant must pay for pounds
and sows according to the rate, computing how many
pounds and sows will make a ton ; and judgment was giv-
en accordingly for the plaintiff.
[134a J
are several covenants, promises or
agreements, whieh are independent
of each other, one party may bring
an action against the other for the
breach of his covenant, &c. with-
out averring performance of the
covenants, &c. on his the plain-
tiff's part; and it is no cause for
the defendant to alledge in his plea
a breach of the covenants, &c. on
the part of the plaintiff. But
'where the covenants, &c are de-
pendant, it is necessary for the
plaintiff to aver and prove a per-
formance of the covenants, &c on
his part to entitle himself to an
action for the breach of the cove-
nants, &c. on the part of the de-
fendant. See 1 Saund. 320. n. 4.
and the cases there cited. 1 Chit.
PI. 297. T. Jon. 216. Shower v.
Cudmore. 7 Mod. 236. Russell v.
Coleby. 1 Show. 334. Wynne v.
FeUowes. Sayer 185. Hesketh v.
Gray. Willes ±57. n. 1 Anst.
24fl. Walker v. Harris. 1 Pow. on
Con. 359. Selw. N. P. 94 to 104.
440 to 450. 13 Mass. Rep. 406.
Tilestone v. Newell $f al. 1 Bay
235. Fannen v. Beauford Sf al.
When there are mutual promis-
es, and the mere promise, and not
the performance thereof, is the
consideration of the agreement (as
in the text) an action may be main-
tained by either party without a-
verring performance of the agree-
ment on his part. Hob. 88. Nich-
ols v. Raynhred. Jenk. 296. S. C.
Hob. 106. Lampleighv. Brathwait.
1 Wils. 88. Martindale y. Fisher.
1 Vent. 177. 214. Feters v. Opie.
1 Lev. 293. Beany v. Turner.
March 75. Thorp's case.
Whether one promise be the
consideration of another, or wheth-
er the performance and not the
mere promise be the consideration,
must be gathered from, and de-
pends entirely upon the words and
nature of the agreement. Per Law-
rence J. $ D & E. 373. The
intent of the parties is assumed to
be the governing principle of all
the late decisions ; but in the old
cases the court often founded their
construction on artificial and sub-
tle distinctions, without much re-
gard to the intent of the parties.
It is hardly to be supposed that the
parties intended, in the case in the
text, & in some of the others cited
above, to rely merely on each oth-
er's promises,without regard to the
I performance ; but the rule was ear-
y established and is now applied
in similar cases.
Mutual promises, when one is
the consideration of the other, must
be averred to be made at the same
time, or the declaration will be bad
even after verdict. The agree-
ment will be nudum pactum. Al-
ledging the promise " afterwards
on the same day" is insufficient.
1 Caines Rep. 583. Livingstone v.
Rogers. Hob. 88. 1 Chit. PI. 297.
(2) See Ow. 56. Ante 21. n. 2,
and the cases there cited, contra.
Mich. 6 Jac.
Scadding's Case.
No? 131. S. C.
IS 6 -T *** haheag eor P i * ii8ued out of the Kin ? ,s Bench to have
may tapris^ tnc DOI *y °' one oeaddin^ committed to tne marshalsea by
od a man for Sir Thomas Crompton Judge of the Admiralty : And upon
assisting a the return of it, the cause appeared to be, for aiding and
[ ±85 ] abetting one Exon, who was indieted for piracy, to eseape
pirate to ei- out of prison, and assisting him with ropes and other en-
cape from gi net to break the prison and eseape. And per totam cu-
P n ™°' d th0 rw», although the whole fact committed by Seadding be
within the a P 0D tne * aD "» an< * w ' tn ' n tne D °dy of the eounty ; yet be-
body of the cause it depends on the piracy committed by Exon, with
county. which the temporal judges have nothing to. do, but it is
delegated by Parliament to the Admiral to try, in nature of
1 Vent. 1. a felony, for this reason they remanded the prisoner; for
c* J EL Ifio' li it.quasi an accessory to the first piracy, and determinable
by the Admiral : As if a sentence be given in the court of
Admiralty for a marine cause, the execution of this sen-
tence, either for the body or for the goods of the party con-
demned, extends throughout the whole realm to the eourt
of Admiralty, because it depends on the principal and first
sentence. Quedvide 19 H. 6. Quod nota. Per curiam.
Appleton vs. Doily.
1 Brownl. 102. S. C.
The itatute APPLETON, as executor of one Appleton, brought debt
32 H. 8. does against Doily for arrears of several rents, as well copy-
not extend to hold rents, as free rents, belonging to the manor of D,
copy rents ; whereof the testator was seised and died seised, and the
and in an ac- re uts not paid to him in his life time, whereby they belong-
twn for free ed to the plaintiff as executor; and the defendant, although
owner of the re <l u > re d nad not paid, contra furmam statuti 82 H. 8. and
manor & his V er curiam I *• The action does not lie for the copy rents,
executor for the statute 32 H. 8. does not extend to them, but only
must alledge to rents out of free land. 2. It does not lie for the free
aD a r t0 fv?" reata* because the plaintiff has not declared, that tbc de-
defendant! fendant attorned to the testator in his life-time; and al-
though in pleading, it is good to alledge a feoffment of a
l Co. 82. b. manor, without pleading any livery, or any attornment of
Cro.EI.401. the tenants, yet when the rent of any freeholder comes in
debate, both the owner of the manor, and his executor who
demands it, ought to convey a privity between the tenant
and the lord, which must be by attornment, for the rents
and services do not vest without attornment. (food noicr,
Mich. 6 Jac.
Peirson vs. Pounteys.
1 Brownl. 102. S. C.
THE plaintiff, as executor of Nicholas Peirson brought The court
debt against John Pounteys of London merchant, quod red- ™| * a f ^°£
dot ei 303/. 12s. pro eo quod cum the defendant 8 Octbr.t 598, <£ * ti ° e ™^-
at London, &e. per Milam suam, &e. cognovit se debere to g C *.
the testator 1518 Florence Polish, which tunc amounted to
803/. 12s. to be paid to the testator act solutionemfesti puri- [ 136 3
jicationiS) Sfc. vocat. Candlemas-day neit following 5 and
to that payment bound himself by the same bill : and the
plaintiff in facto dicit, quod pried, solutiones dictifesti purir
fvcationis &c. next after the making of the bill fuerunt secun-
dum usum mercator, 20 Febr.1098; yet the defendant had not
paid, &c. the 1018 Florence Polish, or the 303/. 12s. to the Ante 80.
testator, nor to the plaintiff, &c. To this the defend-
ant pleaded nan est factum, and it was found agaiust him.
And it was moved in arrest of judgment, that the declara-
tion is not good. 1. Because the payment of Candlemas is
not known in our law, quid inteUigitur by it ; but non alio-
catur $ for that, which prima facie is unknown in ordinary
intendment, is aided and manifested by the averment in the
declaration, that such payment among merchants is known
for the 20 Febr. and the judges ought to take notice of that
which is used amongst merchants, for tho maintenance of
traffick ; and the rather, because the defendant does not
deny it, but pleads non est factum, whereby he confesses
the declaration to be true in such averment. 2. It was
objected, that as this ease is, the use of merchants is not
material, because the testator, for any thing that appears,
was no merchant. But non allocatur ; because it appears,
that the defendant, who bound himself to the payment, was
a merchant, and the testator must take the bill as the de-
fendant will make it ; and it seems that he chose to make
. payments according to the use among merchants, and not
according to the ordinary intercourse between party and
party. Quod nota, Per totam curiam. Yelverton of
counsel with the defendant.
Dromant vs. Westofer.
THE defendant spoke these words of the plaintiff; Dro- Actionable
mant's wife (meaning the wife of the plaintiff) picked 5s. ^fo^kinc
%d. out of H. Davie's wife's pocket, and her husband (in- a Loket.
nuendo the plaintiff) was consenting to the same. And
judgment was given in the Common Pleas for the plaintiff,
ana also affirmed on a writ of error $ for the first words
laid to the plaintiff's wife's charge are slanderous ; for to
pick a pocket, &c. is in common phrase taken in pejori
Mich. 6 Jac.
sensu, and all one with stealing, especially as this ease is ;
for she is charged not only to pick a pocket, hot to take
0s. <kf. out of it, which greatly enforces the slander; and
being slanderous to the wife, so it is likewise to the hus-
band*, who is plaintiff; because he is charged to be con-
senting to the same, which imports that he animated and
abetted his wife in her evil courses, and in her picking and
stealing. Quod nafa. Yelverton pro oner.
[ 187] Talbot vs. Godbolt.
1 Brown!. 103. Post 147. S. C.
Debt lies a- GODBOLT 28 Eliz. sealed a bill in such form : Mem-
gainst A. on orand. that I have received of Edward Talbot (who was
* w hh iD tne Pontiff's testator) to the use of my master Mr. Serjeant
kn^wledteV Gaud J the sum of40£ to be paid at Michaelmas following,
the receipt * n debt on this bill the plaintiff declared verbatim as the
of money u to bill was, and demanded the 44)2. and the defendant demur-
theuse of B. red : And his pretence was, he supposed that he recciv-
te be paid at ea * j t b at M gcrvan t to another's use, and so was not to be
Jblfewnu?* charged as principal debtor; for the bill is but a testimo-
•' ny of the receipt, as 1 H. 8. fc 2 H. 6. in account, an in-
denture testifying the receipt under his seal does not alter
the nature of the first account. But it was adjudged for
the plaintiff; for although the premises of the bill men-
tion the receipt to another's nse, yet in the last clause of
5 E. 4. 55. b. repayment it does not say, to be repaid by his master ; for
then it had not charged him. But the clause is gener-
al (to be paid) which must of necessity bind him who
sealed ; for otherwise the party would lose his debt, for he
has no remedy against Serjeant Gaudy : and therefore the
the debt appearing to be due, it shall be construed strongly
to go in satisfaction of the due debt. Quodnota. Yelver-
ton pro quer.
Alexander vs. Lane. West vs. Lane.
1 Brownl. 103. S. C.
ALEXANDER brought debt on a bond of 40*. against
The form of Lane as executor of P. The defendant pleaded, that P. in
adeclaration nig life-time was indebted to him in 40*. just debt, and
cl^cutor de tnat S 00 ** 8 to the va,ue of 10 ^ Came to the . defendailt ' 8
son tort is na nds, which he retained towards the satisfaction of
the tame as his own debt ; and averred, that nulla bona plura above
against a goods to the value of 10 J. came to the defendant's hands
rightful ex- to be administered, &c. The plaintiff replied, and
ccutor ; but gnewe d that the defendant is executor de son tort to P. et
tion may ? M0C * habet mu ^ a a ^ oom of p - administrand. apud S. in
state the tne 8ame county of Norfolk, and concluded, et hoc paratus
fact. est verificare 9 $fc The defendant rejoined, and demanded
Mich. 6 Jac»
judgment, if the plaintiff should be received to say, th,at the An execu-
defendant is executor de son tort; forasmuch as by the de- tor de «»
claration he has affirmed him to be executor, testamenti; J * *****
and thereupon the plaintiff demurred in law. And as to o^n' debt.
the matter in law the whole eourt was with the plaintiff;
for he may well reply, that the defendant is executor de son Swinb. 460.
tort, notwithstanding the declaration; for there is no other Pre.Ch. 179.
form of declaration, as it is adjudged in Coulter's case 5
Rep. fol. 80 (l) But per tot. cur. the whole plea is discon-
tinued ; for the defendant having pleaded as to goods to the f 183 ]
value of iol. which he retained for a debt, and that he had
not plura bona administrand. that is an offer of a good issue ;
then when the plaintiff replies, that he has plura bona, &c.
and concludes et hocparatus est verificare it is not good ; for
he ought to have said, et hoc petit quod inquirat. per patriam; Com.Rep.$.
(2) for now there is a surplusage of goods denied by the
defendant, and urged by the plaintiff, which ought to come
in issue, but eannot by reason of the ill conclusion. But
in the same term between West plaintiff, and Lane defend-
ant, where West demanded but 4/. debt against Lane as ex*
ecutor, ut supra ; and all the residue of the plea was, ut
supra, judgment was given for the plaintiff, because the de-
fendant had confessed goods in his hands to the value of tol. M . _
which is more Chan the debt demanded ; and therefore for-
asmuch as by judgment in law an executor de son tort can- + Tbe or j,; n .
not retain to pay himself, (3) although the other proceed- a i it hora de
ines in the plea are ill, yet all that is out of the \ case, and liver.
judgment shall be given on the defendant's confession, and
so it was. ({uod nota. Yelvertonof counsel pro querente.
(1) 1 Mod. 208. Prince v. Bow- Coulter. Carth. 104. Whitehall v.
son. 2 D & £. 597. Edwards v. Squire. 3 D & E. 587. Curtis $
Harben. ace. at v. Vernon. 2 H. B. 18. S. C. 4
East 441. Mountford v. Gibson.
(2) When the conclusion shall If he deliver the effects to the ad*
be with an averment, and when to ministrator before action brought,
the country, see 1 Saund. 102. he may plead plene administravit.
Hayman v. Oerrard, and n. 4. 7 Mod. 81. Jlnon. And in an action
by the rightful administrator a-
(3) An executor de son tort can- aginst an executor desontort ,thede-
not retain for his own debt, though fendant shall beallowedfor as much
of a superior nature ; nor will the as he has disposed of in a course
consent of the rightful administra- of administration— as by paying
tor to the retainer, given after ac- debts. Carth.& 4£ast. ubi sup. 2 D
tion brought by a creditor, alter & E. 100. Padget v. Priest. But it
the case. Nor can such executor seems that he cannot plead such
avail himself of a delivery over of payment in bar of the action bro't
the effects of the deceased to the by the rightful administrator ; tho'
rightful administrator, after aetion he may plead it against a creditor
brought and before plea pleaded, of the deceased, ibid. 4 Burns
so as to defeat the aetion or a ered- Eccl. Law 242. See ±2 Mod. 472.
itor. Cro. Eliz. 630. Ireland v. Parker v. Kett, semb. contra. Such
£6
Mich. 6 Jac.
t taa a ]
payment is recouped in damages, ment of the snit : if Mass. Rep.
on thegeneral issue pleaded. 826. n. Andrew v. Gallison. So
In Williamson v. Norwitch, Sty. to a scire facias on a judgment a-
887. an exeeutor de son tort, who gainst an executor de son tort, it is
took letters of administration pen- a good plea in bar, that the defen-
denteliUy was allowed to retain for dant has taken letters of adminis-
his own debt on bond, in preference tration— that the estate is insolr-
to the plaintiff's debt on simple eon- ent — and that distribution has been
tract. So when the defendant, sued decreed by the eourt of probate.
as executor, pleads a retainer for a 15 Mass. Rep. 322. Shillaber v.
debt due to himself, and the plain* Wyman.
tiff replies that he is exeeutor de See, as to what acts make one
son tort, the defendant may rejoin an executor de son tort, 1 Comyn
that letters of administration hare on Con. 042. 2 Selw. N. P. 688.
been granted him puis darrein con- Toller 37. Bae. Abr. Executors
tinuance, and this will be good on & Administrators. B. Benloe 74.
demurrer. Andr. 328. Vaughan Stokes v. Porter. 1 Freem. 13.
v.Browne. 2 Stra. 1106. S. C. 8 Garter v. Dee. Clayt. 116. Fer-
John. Rep. 126. Rattoon et al. v. naVs case. 1 Esp. Rep. 330. Fern-
Overacker. So in Massachusetts, ings v. Jarrat. Peake's Cas. 86.
he may well plead plene adminis- Hall v. Elliot. In Massachusetts,
travit according to the statutes no intermeddling with the lands of
providing for the settlement of in- the deceased will charge one as
solvent estates, though he take out executor de son tort. 4* Mass. Rep.
administration after tne commence- 658. Mitchell v. Lunt.
Grene vs. Eden.
1 Brown). 104. 5. C.
if to debt on DEBT on a bond of 2061. dat. 3 Septembr. 1 Jac ; the
condition^ condltion WM » that if the defendant 4 Septembr. anno 2.
payment of a P a "l 100 ^ to '• ®' at snc ' 1 a p' ace * an ^ a ' g0 saved the plain*
certain sum tiff harmless from any suit, &c. which might be brought
at a future against him by reason of the bond in which the plaintiff,
day, the de- as surety for the defendant, stat obligat. to the said J. S.
th n t a? t Plead that then &c ' The defendant P^ded that well and true
first deliver- ** * 8 t ' iat ** e P er 8cr ^P^ um s w*m obligat. gerens dat. 3 Sept-
ed as his own emDr ' * ^ ac - acknowledged himself bound in 200f. to the
deed after plaintiff: But he further said, that the bond was not de-
the day for Hvered as the defendants deed (ill l7Septem. anna 2- and
payment, that then fuit primo deliberat. and pleaded further, that he
wain"* that had 8aved the P ,aintiff harmless, &c. upon which the
ttVas*made pl a * nl *ff demurred. And it was adjudged for the plaintiff:
at the day it For the bond in the declaration is not answered 5 for the
bears date— plaintiff supposes in fact that the defendant was bound to
the plea is him, &c. per scriptum obligat bearing date the same
^- day, &c. which is intended a perfect bond, at that day
which the plaintiff has declared ; then for the defendant
to say, that it was first deliberat' ±7 Septembr. anno 2.
which is a year after, is but by way of argument, and
ill without taking a traverse that it was made 3 Sep-
Mich. 6 Jac.
tembr. 1 Jac. (l) % As the defendant has pleaded, he has
made part of the condition idle and vain ; for where by the
bond expressed in the declaration there is a condition Annex-
ed for payment of 100/. at a day to come, viz. 4 Septembr.
anno 2. now the defendant has made the day of payment
past before he supposes the bond to be delivered, which
tolls in a manner the effect of the plaintiff's suit. And if
the condition had not stood on two branches, but on one
only, and the defendant would plead the delivery after the [ 139 "]
condition impossible to be performed, then is the bond be-
come single for the whole 200/. Quod nota. Per totam cu-
riam. Yelverton of counsel pro quer.
(1) 1 Ld. Raym. 356. Fullein v. Benson. 2 Salk. 628. S. C. ace.
Pincombe vs. Rudge.
Noy 131. Hob. 3. S. C.
RUDGE demised the manor of D, to Hunt for twenty To an actioq
one years ; and afterwards by the words, dedi, concessit of covenant,
dimisi et ad\jirmam tradidi, demised the same manor to in case of e-
the plaintiff tor life, who entered, and was ousted by Hunt miction, war*
the first termor; upon which he brought covenant, and * an * ia c j** r "
supposed the breach, forasmuch as Hunt had expelled him. q q wnat e [
To which the defendant pleaded, that before this writ was Viction a lea-
purchased, the plaintiff on the same covenant had brought see for life
warrantia ckartce against him in the Common Pleas, which may have an
yet depends, and demanded judgment if, the warrantia action of co-
charts indiscussed, the plaintiff should have this action ? venant *
Upon which the plaintiff demurred, and it was adjudged
for him. For, 1. It was held, that the bar is not good;
for an action of covenant and a warrantia charter are of
several natures, the one is real, viz. the warranty of
charters, and by that he shall bind the land itself, which
the lessor has at the time of the judgment; the other
is personal, sciL the covenant, and by that he shall only
have damages. Then it was moved that the declaration
was not good, because it appears that the plaintiff is ten-
ant for life, and tenant for life shall not have covenant
on a warranty in law, but only on a special covenant, as
26 H. 6. Covenant 10. To which it was answered, that
the difference is, where the whole estate for life is evicted,
and where only the possession for a time ; for if a stran-
ger enters without title, be it a term or a freehold, no cov-
enant lies by 26 H. 8. 3. & 32 H. 6. But if the whole es-
tate for life be evicted under the title of the lessor, the
lessee shall not have covenant, for thereby he is to recover
only damages, which are personal, which are no recom-
pense far the loss of the freehold. But in the principal
case a term for twenty-one years is only evicted, and the
lessee who is plaintiff continues seised of the freehold ;
and therefore, because it is but a chattel that is evicted*
Mich. 6 Jac
the plaintiff by this action of covenant may have fall satis-
faction. And the words in the lease will enure to a dou-
ble warranty, dedi for a warranty of the freehold, arid di-
misi for a warranty against an eviction for years ; for oth-
erwise the lessee is without remedy, which is not reasona-
ble, when by any construction by the words of the leas*
remedy is given ; and therefore 17 £. 3. 18. a. Thorpe.
If a man makes a feoffment of land by deed with warran-
ty, and a stranger eitends a recognisance of the feoffor on
I 140 1 "* e P M8e8 * ,on of the feoffee, covenant well lies on the deed
with warranty. And 18 E. 8. Statham. Covenant. Pla-
cito ultima. T. made a feoffment by collusion, and died ;
the lord recovered the ward of the land for his time ; ad*
judged that the feoffee should have covenant against the
heir when he came to full age. And that was concessum
per totam curiam. And adjudged for the plaintiff. Yel-
verton pro querente. JVbto well this case, for it is the first
adjudged in this point.
Ewer vs. Moile.
tMr^iflf" 1 " TH0M AS Moilc brought waste against Ewer for waste
an abs I to ** one * n * rae88ua 5 e ? l ai *d, meadow and wood to him de-
fee io himself mi 800 * D y the plaintiff for a term of years then past, and
the defend- declared that he was seised in dominico sua ut defeodo of
ant, if he al- the said messuage, &c. and leased to the defendant for a
ledge* that term of years, &c. who had done waste. The defendant
the plaintiff 8 hewed, that the messuage, &c. was parcel of the manor
fee" determi- 0I * Ba * e rfield, which came to H. 8. by dissolution, and so
nable, must to q ueen Elizabeth, who by her letters patent dated, &c.
conclude granted it to R. Hitchcock in fee, who conveyed it to the
with a trav- defendant in fee, who regranted it to the plaintiff and his
ene * heirs, as long as Hitchcock had issue of his body, by vir-
tue whereof the plaintiff entered, &e. and demised to the
Or. El. 771, defendant prout in the declaration : et dicit ulterius infac*
to, that Hitchcock died at D. without issue of his body, 20
Jan anno 3. (which was after the original writ of waste
purchased and the very day of the return of it) and con*
eluded, et hoc parat. est, &c. upon that the plaintiff demur-
red generally, and had judgment in the Common Pleas ;
whereupon the defendant brought error ; and in the King's
Bench the judgment was affirmed ; for there are two great
faults in the defendant's plea; 1. Where the plaintiff in
the action of waste declares of a seisin in fee in himself,
out of which the defendant's lease is derived, which dught
to be intended a pure and absolute fee, the defendant does
not disclose any estate in the plaintiff, but a fee determin-
able, which is another kind of estate than the plaintiff has
all edged ; and therefore it is not good without a traverse ;
for the defendant's plea ought either to confess and avoid,
or traverse the material point in the declaration, which is
the seisin in fee : And the defendant in his plea does not
Mich* 6 Jac.
confess it; for confession is only, where the plaintiff and
defendant agree in one and the same thine, which is not
here ; for the plaintiff claims an absolute fee, and the de-
fendant gives him only a fee determinable ; and therefore
he ought of necessity to traverse ; for where the parties
1 vary in estate, in the quantity of it, there a traverse ought
to be taken ; as if the plaintiff had entitled himself to a
fee as long as J. S. had issue, and the defendant would de-
rive an estate in fee as long as J. D. had issue, he ought
to take a traverse ;(1) for although they agree in the na- r 141 l
ture of the estate, yet they vary m the true substance, by "■ -*
reason of the different limitations. The same law if the
plaintiff in waste declares of an estate to him and the heirs
male, and the defendant derives the estate to the plaintiff
and the heirs female, &e. it is not good without a traverse*
of the estate surmised by the plaintiff So in 82 H. 6.
where a man entitled himself to a rent-charge by prescrip-
tion, and the other would say, that the grant commenced
by deed after time of memory, he ought to traverse the
prescription. 2. The defendant's plea is not good, be-
cause he alledges the death of Hitchcock without issue,
20 Jan. 3. and non constat, whether 20 Jan. anno 3. was
before the writ purchased, or after; and that is very ma-
terial ; for if he died before the writ purchased, then no-
thing in reversion, at the time of the writ purchased, is a
good plea for the defendant ; and if he died after the writ
purchased, then he ought to alledge the death without is-
sue pending the writ ; as in 2 & 3 H. 4. In waste brought
by tenant in special tail, the defendant alledged the death
of the issue pending the writ, whereby the plaintiff was
but tenant in tail after possibility. And although the 20
Jan. anno 3. was after the original purchased and the day
of the return of it ; yet the judges will not take notice of
it without the allegation of the party : And so agree all
the books, that it ought tt be pleaded pending the writ ;
for in pleading a thing after the last continuance, it is not *
good pleading, quod post uUimam continuationem such a
thing happened, but it ought to alledge precisely the very
day, viz. from such a day to such a day. (3) So in error
on a judgment given, the judges do not inquire for any er-
rors in the record, unless the party first assigns some. And
also here the defendant does not offer the plaintiff any is-
sue, for if he takes issue, that Hitchcock did not die with-
out issue 20 Jan. anno 8. if he died 10 Jan. anno t. nay, if
he died without issue before the lease made to the defend*
ant, yet it will be found against the plaintiff; for death
(1) See Com. Dig. Pleader G. 2. pion v. Baker. 2 Wils. 139. Paris
1 Saund. 22. n. 2—209. n. 6. 2 v. Salkeld. Rast. Ent 549. as to
Saund. 207. n. 24. Post 196. n. the great strictness and certainty
required in pleas puis darrein con-
(2) See lFreem. 112. Gardner iinuance.
v. Bloxam. 2 Lutw. 1143. Cam-
Mich. 6 Jac.
without issue any time before the SO Jan. anno 8. destroys
the plaintiff's action; and therefore the day eannot be
made pareel of the issue, as it will, if the defendant's plea
in bar shall be good. Quod nota. Per totam curiam, Vel-
verton was of counsel with Moile the defendant.
Home vs. Widlake.
1 Brownl. 212. Nov 128. S. C.
Ifooeitopta Iff trespass, quart clausum fregit, and spoiled his grass
way which { n d # i» nc defendant pleaded, that in the close, where the
hiTland °iind Pontiff supposes the trespass, is and from time whereof,
assigns ' an- ^ ce * nas Deen a footway for all the king's subjects, in, per
other way in et trans the said close to such a place ; and that the plain -
f 143 J tiff such a day ploughed up the said foot-way, and sowed
the same it with wheat, and laid thorns at the side of it ; and plead -
close,he can- t & 9 that within the same close prope the antient foot-way,
tr°\paM D * * e pWatiff helbre the trespass supposed, reliquit et assig-
gamrt pat- nav ^ another foot-way for all the king's subjects to go over
•engen who this new way, which way from the time that it was laid -
use the 1st- forth, had been used by all foot-passengers; wherefore
ter. the defendant tempore auo went in the way so assigned to
such a place, &e. whien is the same trespass, and demand-
ed judgment. Upon which the plaintiff demurred. And
it was adjudged against the plaintiff; for the defendant's
plea is a good excuse against the plaintiff, because the
plaintiff did the first tort m stopping the antient way, and
also he has assigned this new way for passengers, where-
fore contrary to his own agreement he shall not punish the
defendant ;(1) as if there had been a footway over the close
(l)But where A. had a prescrip- another, though it is laid out for
tive right to a way through B's him. /Jt^fik^7. %H2l..
close, and B. stopped up the old Thafc^assigning a new way will
way and made a new one, which not justify stopping an old one, see
A. used for twentv four years, and Cro. Car. 266. Rex v. Ward 8c at.
then B. stopped the new way; it Vaugh. 341. Thomas v. Sorrell. 1
was held that A. could not justify Bur. 465. Rex v. Inhabitants of
using this way as of necessity, but Flecknow.
that he should have gone the old He who has a right of way over
way and thrown down the obstruc- another's land cannot, because it is
tion, or have brought an action a- impassable, justify going out of it
gainst B. for stopping up the old over the adjoining land. Doug.
way. Willes 282. Reignolds v. 745. Taylor v. Whitehead. 4 Maine
Edwards Sf al. The court distin- & Selw. 387. Bullard v. Harrison,
guished that case from the one in Secus in case of a public highway,
the text, in which the way lay ibid.
open at the time of the alledged A right of way by prescription
trespass. It follows, that he who is not lost by nonuser, if there is
has a right of way in one place, evidence of a usage beyond the
is not obliged to accept a way in time of memory previous to the ne-
Mich. 6 Jac.
of J. fi. by a hedge, and J. S. will remove the hedge into
a ne# place ; if passengers in using their way go by the
hedge, where it is newly settand fixed, they shall not be
punished for it ; because it arises from the aet and tort of
the plaintiff himself, and volenti nonfit injuria, as 8 £. 4.
0. a. if water runs through the land of M. and M. stops
the water in its eourse, so that it surrounds my land, I may
abate that which stops it, and he shall not have an aetion
against me for entering into hisclose,(2) because the stop-
ping was his own act. The same law in the principal
ease : and although the defendant pleads generally, that
the plaintiff assignavit viam, and does not shew to whom,
it is not material; for quod est commune omnibus cannot
be assigned to any particular persou. Quod nota. l*er to*
tarn curiam, prceter Telverton justice.
[142a]
gleet. Jenk. 12. Co. Lit. 114. b.
2 Inst. 653. Nowell v. Hicks, S. P.
Nor a right of way proved by grant
or reservation. 10 Mass. Rep. 183.
White v. Crawford. Nonusoer for
a great length of time will forfeit
a highway — at least so as to be a
defence to an indictment for ob-
structing it. 2 Bay 286. Commis-
sioners tifc. v. Taylor. But see
Vaugh. ubi sup. So permitting
the public to have the rree use of
a way for a long time, gives a right
which the owner of the soil eannot
afterwards disturb. 1 Gampb. 260.
Rex v. Lloyd. 11 East 875. n. Rug-
by Charity v. Merryweather. The
same rule holds in the case of pri-
vate ways. 2 Saund. 170. Yard v.
Ford, & n. In Massachusetts, by
statute of 1786. c. 67. fences, con-
tinued for more than forty years,
fronting upon any highway or pri-
vate way, shall be deemed to be
the true boundaries thereof, when
other boundaries eannot be ascer-
tained by record or monuments.
(2) 5 Co. 101. Penruddock's case**
9 Co. 53. Baten's case. Sty. 47o.3fi3«r. c
Williamson v. Coleman. 9 Mass.
Rep. 316. Hodges v. Raymond Sf
at. 13 ib. 420. Colburn & al. v.
Richards, ace. So an individual
may abate a nuisance in the high-
way. Cro. Car. 184. James v.
Hayward. 2 Mass. Rep. 143.
Wales v. Stetson.
Nile vs. Swanson.
Godb. 157. S. C.
THE plaintiff shewed, that 44 Eliz. he was made town-
clerk to the mayor, &c. of Clipston Dartmouth, and stew-
ard of their courts, by patent under their common seal for
life, si se bene gesserit $ and although continue postea hue-
usque he had executed it to his great profit ; yet the de-
fendant 5 Apr. anno 5 Jac. dixit of the plaintiff, he {innuen-
do the plaintiff J hath taken 40s. for a bribe. And upon
non cut. pleaded, it was found for the plaintiff, and judg-
ment accordingly ; for although the plaintiff in his decla-
ration has not shewn, that there was any discourse had as
to his behaviour in his office ; yet forasmuch as the plain-
tiff hath shewn himself to be an officer of trust at the time
" He has ta-
ken 40*. for
a bribe " —
spoken of a
town-clerk
and steward,
are actiona-
ble words,
without a
colloquium
concerning
his official
conduct.
Mich. 6 Jac.
of the speaking of the words, they eannot be taken .or con-
strued but in slandering him in his office, for he can by no
other colour take a bribe.(i) The same law, if soeh words
[ 143 ] are spoken of a justice of peace, or clerk of assize. Yet
Yelverton objected, that these are officers known, but the
office of a town-clerk is not known. But, per curiam, the
plaintiff hath surmised himself in facto to be both town-
clerk and steward of the courts ; and it is well known, that
in both these places a man may be bribed.
(1) Cro. Car. 370. Cawdry v. Briggs. 2Ld. Raym. 1480. Stan-
Highley. Godb. 441. 8.C. 13 ton r. Smith. 2 Stra. 763. S. C.
Mass. Rep. 348. Ckaddock v. ace.
Challenor vs. Thomas. '
1 Brownl. 142. S. C.
Ejectment ERROR brought on a judgment given in ejectment in
does not lie Coin. Carmarthen: And Yelverton assigned the error, be-
for & water- cause the ejectment was brought de aqum cursu, called Lo~
court e. c jj ar • n Llandeby, and declared on the lease of David Rees
ap Thomas de quodam rivulo et aqum cursif, ut supra. And,
per totam curiam, the judgment was reversed ; for rivulus
seu aqum cursus doth not lie in demand, neither doth a
prmcipe lie of it, nor can livery of seisin be made of it; for
non moratur, but is ever flowing 5 nor can execution by
habere fac. seisinam be made of it ; for it is not constant to
, be put in possession of it :(l) And it is like a protection
1 Imt. 4. b. ffuu* moratur super mare, which is not allowable by 35 H.
Flow. 228.b, 6. for mare non moratur ; but as 12 H. 7. 4. is, the action
j ought to be for so many acres of land aqua cooperta ; and
ejectment well lies of a goree or pool, for a prmcipe lies for
them, and a wife shall be endowed of the third part of a
goree, as 11 £. 3. is. But if the land under the river or
water does not belong to the plaintiff, but the river only,
then on a disturbance his remedy is only by action on the
case on any diversion of it, et non aliter. Quod nota.
(l)InGodbolt 157. pi. 213, it state that ejectment will not lie for
is said — " it was adjudged in this a water-course or stream of water;
court (B. R.) that an ejecHonefir- on the authority of Yelverton and
mm doth lie de aqua cursu" That Brownlow's report of this case,
is probably a wrong report of the So do Runnington & Adams in
ease in the text, as it appears to their respective treatises on the ac-
hate been of the same term-Mich, tion of ejectment.
• Jac. Bacon, Espinasse & Selwyn
Mich. 6 Jac
Gresill vs. Sir Chr. Hoddesden.
ROBERT Gresill, the plaintiff's father, was seised in An heir, who
fee of ait house and 1000 acres of land, &e. and he and all is a common-
ihey whose estate, &e. have had for them and their farm- er, can ins-
ert common appurtenant for all eattle Jevatitand eouchant ** 1D an . ad *
in a place called the Heath, within the manor of Leighton | J b ° n ,**""'
Bussard, as appurtenant to the messuage, &e. The de- the manor for
fondant, owner and lord of the manor, erected an house on, making cosy
the common, and also made cony-boroughs in the said boroughs in
common called the Heath. Robert died, whereby the the time of
messuage, &c. descended to the plaintiff, and he brought h f ,s a ^ e !lw
an action on the ease against the defendant for erecting the j he Monies
said house, and making the cony-boroughs in the time of increase go
his father ; and declared, that by the increase of the con- at to injury
ies in those boroughs the plaintiff had lost his common af- [ 144 ]
ter the death of his father. And, per curiam, the action bis common.
well lies; for although the defendant has not made any
new erection, nor new boroughs in the plaintiff's time, yet c Vl 402
his suffering the conies to increase and the house to stand, 3 i^on! 174*.
is a new tort to the heir, for which he may hare an action, galk. 460.
like the ease ±5 £1. Dy. 319. where the turning of a edek LillyEnt.82.
for the water and using of it, although it was set and fixed
long before, vas adjudged a new diversion. Yelverton of
counsel with the defendant
Tompson vs. Knott.
YOtt might have known your own sheep, and not have Whether ac-
stolen mine. And, by Fleming Chief Justice and Yelver- tionable to
ton, they are not actionable; for there was not any direct 9B 7, 'u you
affirmation, that the plaintiff had stolen any sheep, but on- ™^ wn *™
ly by implication ; and a slander shall not be drawn in by own 8n eep,
a strained construction : Ana nere the first words (You and not have
might have known your own sheep) are no words to beget stolen mine.'
an action ; and the subsequent words (and not have stolen
mine) depend on the former, and divided from them are not
any slander ; for then they are, you might have stolen
mine, or my sheep, which do not import any slander; they
are likewise pronounced but by way of question in a man-
ner; as if a man should say, what need you have stolen
my sheep ; which will not bear an aetion, for he does not
affirm any theft on him directly. Williams and Oroke
justices to the contrary, and that they cannot be taken in
another sense, than by a strong implication and necessary
consequence to charge the plaintiff to have stolen sheep;
as if it was, you could not see your own horse, for stealing
of mine ; and the words being intirely spoken ought to re-
ceive an intire construction. Quod nota. And qucere, for
pendet without judgment.
27
Mich. 6 Jac.
Wilson vs. Weddell.
1 Browiil. 143. 8. C.
A Mrtwidtr THE plaintiff's grandfather being a copyholder hi fee
tfa copyhold 8orreiH Jered to Leonard Weddell in fee who surrendered
effect" unUi to the »• of Margery J. for life, who is admitted; &e. but
his admit- Leonard himself was never admitted ; the grandfather and
taoce ; and the father die, and the son who is plaintiff is admitted and
if he before enters upon the land, Margery then being in possession and
»*■*"»"* the defendant then living as servant with Margery in the
rarfeoder to tenement, : This was the special verdict; ana judgment
mltted, 19 V was S* veD P™ ( P ur - And, 1. It was held per curiam, that
gains do the defendant is found to be a sufficient trespasser and
right. ejector, although he is but a servant of the pretended own-
[ 140 J er of the land, because the verdict finds that the defend-
ant adtunccommorabat with Margery ; and in sueh ease he,
Co. Litt. 62. who has the true title and enters, may bring the aetion
£ r ? ar * flS* against master or servant at his election {%) and perhaps
3 Lev 385*. tne n,aftter absconds and cannot be arrested. 2. It was ad-
1 Vent. 361. judged that a surrender to J. 8. of a eopyhold n not of ef-
Aote 16. feet till J. 8. is admitted tenant ; and that if J. 8. before
admittance surrenders to a stranger who is admitted, that
it is nothing worth to the stranger; for J. 8. himself had
nothing, so could pass nothing; and the admittance of his
grantee shall not be taken by implication the admittance
of himself; for an admittance ought to be of a tenant cer-
tainly known to the steward, and entered on a roll by it-
«elf.(2) But it was held, that the right and possession
remain yet in him who surrendered, and descend to his heir,
who is the plaintiff. And a difference was taken between
an heir to whom a eopyhold descends, he may surrender
4 Co. 22. b. De ' ore admittance, and well, because in by course of law ;
Cr. El. 349. *° r t' ie custom, which makes him heir to the estate, casts
Poph. 127. the possession upon him from his ancestor; but a stranger,
(l) That a servant is pergonal- cases above cited from Wilson &
Iv answerable for a tortious act, Strange.
though done at the command of the In trespass, as all are principals,
master, see 1 Wils. 328. Perkins the master and servant are both
v. Smith. Sayer 40. 8. C. 2 Stra. liable, if the master commands,
813- Parker $ aL v. Godin. 6 though the servant alone commits
Mass. Rep. 341. ^ Higginson # al. the act. So of other joint trespas- ,
v. Fork. In Mires v. Solebay, 2 sers. Clayt. 5. Farrer v. East-
Mod. 2*2. it was decided that a wood. Overton's Rep. 18. Green
servant was not liable in trover for v. Emerson.
an unlawful intermeddling with
the^oods of another, by command (2) SeeRol. Abr. 505. Cro. El.
of bis master, unless the intermed- 504. Gyppen v. Bunney. 8 Bulst.
dling amounted to a trespass. 237. FresweU v. Welch, semb. con*
This doctrine was overruled in the tra.
Mich. 6 Jac.
to whom a copyhold is surrendered, has nothing before ad-
mittance, because he is a purchaser ; and a copy to him
made, upon which he is admitted, is his evidence by the
custom; and before that he is not a customary tenant, so he
can transfer nothing to any other. Adjudged accordingly
24 Eliz. Alderman Dixie's case. Yelverton pro quer.
Gold vs. Robins.
THE defendant spoke of the plaintiff these words ; I (in- " I met A.B.
nnendo the defendant) did meet Thomas Gold (the plain- C.&D.inthe
tiff) Thomas Gifford, Robert Gifford, and Cuthbert Clarke, ***}**! &nd
upon Cheahau fair-day at night upon Whitehil at Chesh- jcifver my
am town's end in the evening, as I (innuendo the defend- p nne . and \ %
ant) was going home ; and there they did bid me deliver being'afraid,
my purse, and I (innuendo the defendant) being afraid, put gave 2*. 6rf.
iriy hand into my pocket, and took out 2s. 6d. and gave it * er m J
over my shoulder to one of them, I knew not which. And ^L to
it was adjudged by all, prceter Yelverton Justice, that the £ B £ D e W ^\
action lay ; for every circumstance within the words im- which"— are
port slander. 1. They are the usual words of a thief, to actionable
bid a, man give him his purse. 2. For the time ; it was in words.
the evening, which carries a vehement suspicion of an in-
tended robbery. 8. By the usage laid to the charge of the Cr.Jac. 277,
plf. and those* that were with him; one of them took 28. 6<f.
which was given over the shoulder. 4. The defendant him*
self makes the slander more apparent, because he says,
that he was afraid, and his fear could not be, but on a sus-
picion that plf. &c. would have robbed him ; so that there
is not any construction strained or by implication : but in [ 14$ ]
truth lingua fuit flagellant, as Croke Justice termed it, JW
ta bene.
Wflshire vs.
JAMBS Wilshire hath forged the late queen's writ. It is actiona*
And affirmed upon a writ of error, that the words are bletocbarga
actionable ; for the queen's writ is of an high nature, and °? e with for ~
of record, being the ordinary process to bring in the party to & lD * , *•
answer, and for forging of which writ the party may be queeD 8
punished both at common law, and in the star-chamber. 3 Mod. 66.
But, by Croke Justice, to say J* S. hath forged his fath- 12 Mod. 493
er's handy whereby he procured the tenants to pay him the 496.
rent due to his father, is not actionable; as it was adjudg- f^' 6 ™* 749,
3 Eliz. because it refers only to a private matter, and is 3453 yult
rather an aspersion than a slander ; for the son by no law
is punishable for it. Yelverton of counsel pro querent^
[ 146 ft J
In bar of a
cognisance,
which alleg-
ed the taking
damage fea-
sant in C.
CoausoDfthe
plaintiff maj
Mich* 6 Jae.
Sir Anthony Cope vs. Temple.
THE plaintiff brought replevin of his sheep wrongfully
taken (l) in Cottesmore Common; the defendant as ami*
Hffof the provost, fee. of Baton College, made cognisance,
beeause Cottesmore common belonged to the provost, &e,
and the sheep were damage-feasant, wherefore, &c. he
took them. The plaintiff pleaded in bar to the cognisance,
that Cottesmore common contained— acres (without shew-
(1) At eommon law a writ of re-
plevin never lies unless there has
been a tortious taking, either orig-
inally, or by construction of law by
some act whieh makes the party a
trespasser ab initio. iMason's Rep.
823. Meantj v. Head, per Story J.
This position is supported by the
following authorities. iScho. &
Lef. 820. Ex parte Chamberlain.
ibid. 824. Shannon v. Shannon. 7
John. Rep. 140. Pangbnrn v. Pat*
ridge. 10 ib. 878. Hopkins v. Hop*
kins. 14 ib. 86. Thompson v. But-
ton. 15 ib. 401. Gardner v. Camp-
bell. Gilb. Repl. 1st. edit. 61. 107.
6 Inst. Cler. 517. Hammond's N.
F. 334. See also Mirror e. 2. § 26.
2 Rol. Abr. 430. 481. Com. Dig.
Pleader. 3 K. l. Replevin. A. Bui.
N. P. 52. 1 Harris & Me Henry
395. 396. where the taking alledg-
ed in a writ of replevin is mani-
festly considered as a trespass. It
is said in most of the old books,
that replevin lies only in cases of
a distress; but the authorities cited
above shew that it is a proper re-
medy in other cases of a wrongful
taking. See Tit. Replevin, in
Selw. N. P. Esp. Dig. (Gould's
edit.) & Swift's Syst.
Under a statute in Pennsylvania,
replevin lies for a wrongful deten-
tion, where the possession was ori-
ginally lawful. 6Binney2. Shea-
rick v. Huber. A similar doctrine
has been recognised in Massachu-
setts — but whether as at eommon
law, or under a statute of that
state, is not perfectly clear from
the report. 15 Mass. Rep. 359.
Badger v. Phinney. In Memy v.
Heady obi sup. Story J* says the
statute of Massachusetts has not
altered the common law.
Replevin lies when cattle, rights
fully taken damage feasant, are
impounded after tender of amends,
F. N. B. 69. Baron Gilbert states
this as an exception to the rule
whieh requires a trespass to sopr
port the action. The reason as-
signed by him, and repeated hy
Mr. Hammond, is, that replevin is
the proper form of action to try all
questions arising out of a distress*
The true reason, however, seems to
be, that by refusing amends and
Sroeeeding to impound, the party
ecomes a trespasser ah initio. It
is so laid down in Rol. Abr. Tit.
Trespass ab initio. This, howev-
er, is denied incidentally, in the
Six Carpenter's case 9 8 Co, 146«~
which may have driven Baron Gil-
bert to seek another reason. But
it appears from Fitzherbert that
trespass also would lie in such
case, (though he says the rule of
damages would he different)-— and
the precedents and authorities, an-
cient and modern, shew that to an
avowry or cognizance, the plaintiff
may reply tender of amends, in the
same manner as a defendant may
plead it in trespass. 6 Inst. Cler.
531. Com. Dig. Pleader. 3 K. 28.
3M.36. Gilb. Repl. (Hunt's edit.)
296. 2 Lutw. 1956. 8 Morg.Vad.
Mec.481. 2 Chit. PI. 689. Story's
PI. 417. See also 1 N. Hamp. Rep.
38. Brown ,v. Smith. 1 Chit. PI.
562.
Mick 6 Jae,
ing how many, bat left a blank for the number,) and that prescribe for
he himself is seised of 100 acres parcel of the common in common in
fee, aud that he and all those whose estate, &c. have had ^common
common for 400 sheep iu the residue of Cottesmore eommon w j t hout stat-
as appurtenant to 100 acres of land, &e. wherefore he put i n g the num-
them in to use the common. The defendant maintained ber of acres.
his cognisanee, and traversed the prescription, which WM
found tor the plaintiff. And it was shewn in arrest of judg-
ment, that bj reason of the number of acres omitted by '
the plaintiff in his bar to the cognisance, non constat to thjp
court quid the residuum is, and so incertain in matter. But
it yvas adjudgedver totam curiam prater Williams Justice,
that the plaintiff should have judgment; for in this action
he is not to recover any land, but only damages for the un*
just taking, and so the title of the Jand is not in question.
2. The plaintiff shews, that he is seised of one hundred
acres parcel of the common, and pm est parceUa but in re-
spect of a totum i so the common must contain more than
the parcel which tt^e plaintiff has ; and also the parties on
both sides a,re agreed* qu*d est residuum of the common, [ 147 J
and so it is found by the verdict ; and be that residuum more
or less, it is all one : for hi that, which remains above the
100 acres the plaintiff has, the plaintiff ooght to have com-
mon ; so that the omission of the acres in number is but
form, which is aided by the statute. Quod nota. Yciver-
ton of counsel pro querente%
Talbot vs. Godbolt.
1 Browol. 103. Ante 137. S. C.
DEBT as executor on a bill of 40J. made by the defend- Debt lies a*
ant, whereby he acknowledged se recepisse of Talbot the gainst A. on
testator 40i. to the use of his master, Mr. Serjeant Gaudy * hi ^J jj a ™
resolvend. at Michaelmas following, and it was dated 28. knowledges*
JEiliz. and sealed by the defendant ; and the defendant de- the receipt
murred upon the declaration, supposing that it was only a of money u to
deed testifying the receipt to the use of another, and not the use of B.
to charge himself ; but it was adjudged for the plaintiff; *> be P" d **
for although the bill testified the receipt to the use of bis fon^X?"
master, yet in the clause of repayment it is general and secus if the
does not say to he repaid by his master ; and therefore be- bill bad re*
ing sealed by the defendant makes him debtor ; for it does cited that
not appear that the testator had any other assurance for paymentwas
the 40/. but trusted only to his bill ; but if the bill had re- £ £ e made
cited the repayment also to be made by master Serjeant y
Gaudy, then they all agreed, that the bill should be but a 5E.4. 55. b.
receipt only, and merely to the use of another. Per Mam
curiam, and that on conference with all the Justices in Fleet-
street. Yelverton of counsel pro querente.
Mich. 6 Jac
Witham w. Barker.
1 Brown). 213. 8. C.
T© a plea » TRESPASS, that the defendant 1 Jug. ammo 6. the
^fV* ? ui plaintiff's close apmd L. in com. Suf. broke and entered,
^J^^l and spoiled hit grass with his cattle, to. The defendant
mmLd of P^aded, that tempore quo the freehold of the land, where
. in whom «• was in Sir John Tvndall, and he as servant, and by his
at the free- command entered and pot in the cattle, &e. Thejplsun-
pot i
bold, it it oot tiff replied, quod bene ei verum est, that the freehofi was
* I?*?' ' in 8ir John T. but said, that long before the time in which,
tbltA^bTfore **• 8ir John T demised 'he elose to the plaintiff at will,
the trespass by virtue whereof he entered and was possessed till the de-
desuaed to fendant eomnitted the trespass, etc. absque Aoe, that the
the plaintiff defendant by the command of Sir John T. entered and pat
who there- j D the cattle, &e. (1) whereupon the defendant demurred,
a^TwM^ and U wa * ^Hs* 1 again't the plaintiff; for the bar is
•eased coo- $P*& <u>4 ' Dot avoioed by the replication ; for his replication
clodisg with ,§ >U« *■ Tef^ 1 ^ ■* De > n S D 7 wa 7 °' title he does not intitle
a traverse of himself to any good lease ot will ; for he does not alledge
[ 146 ] in fact any seisin in Sir John T. or any other possession
the defend- in himself out of which the lease at will can be derived :
ant's entry am f although a declaration may be good to a common
of a!Tu iDteDt > and that in debt on * ,ea§€ ' aS 2l H * 7 ' "• the p ,ain "
* tiff may declare good dimisit, and need not alledge seisin
Or. Car. 571 * n himself when he made the lease, &e. yet when a title is
IRol. R*. 393 made by a bar or replication, as 3 E. 4. 0. is, it ought to be
Lutw. 149S. certain to all intents, because it is traversable; and here,
Comb. 476. forasmuch as the defendant has made a good justification
Moore 846. in j aw> it ought to ^ an8were d by the plaintiff with a good
title, viz. that Sir John was seised ana demised to him at
will, which is not done here v but it is all one as if he had
replied Robin Whood in Barnwood stood, absque hoc that
the defendant by the command of Sir John. Quod nota.
Per Fenner, Williams and Croke Justices being only in
court. And judgment given accordingly. Yelverton for
the defendant's)
(1) Though the court in this rily. 7 Mod. 482. Qeorge v. EUnek.
ease took no exception to the tra- i Saund. 347. c. n. 4. 1 Chit. PI.
verse of the command, yet it was 066. 586. This distinction is now
for a long time supposed, on the overruled, on the best reason. It
authority of a dictum in Trevilian East 65. Chambers v. Donaldson.
v. Pyne> t Salk. t07. that in tres-
pass auare clausum /regit, if the (2) The principle, which the
defendant justified the entry by court adopted in this ease, is Hell
command of him in whom heal- settled — viz. that the inducement
ledged the freehold to be, the plain- to a traverse, though generally not
tiff- could not traverse the com- traversable, ought to be such as if
mand : though it was otherwise in true will defeat the title of theoth-
replevin, or trespass laid transito- er party. Parker's Rep. 131. The
Mich.
Jffttg v. Cotton* Com. Dig. Plead-
er. 6. 14. l Chit. PL 300. But
this principle seeing to have been
incorrectly applied, in the text.
In the ease of Lambert v. Stroo-
ffo?r,Willes221. Lord C. J.Willes
paid little regard to this case, be-
cause, as he said, it is not necessa-
ry in trespass, that the plaintiff
should set forth any title. It is
believed, however, that a sounder
reason may be found for question-
ing the deeisiou. The position of
Willes C. J. is correct, when ap-
plied to a declaration, but is by no
means universally true in regard
to a replication. Against a wrong-
doer, a plaintiff may maintain tres-
pass, whether he have a title or
not. 3 Bur. 1563. Harker v. Bir-
beck. l East 244. Graham v. Peat.
And if a freehold is pleaded, the
plaintiff may traverse it generally,
without inducing his traverse by a
title— —the action being founded
merely on possession. 3 Salk. 806.
Radbourne v. Ktonnedale. 2 Stra.
1238. Gary v. Holt. 1 1 Bast. 70.
n. S.C. Fort. 378. Qodyn v. Wil-
liams. Willes ubi sup. But if the
title pleaded by the defendant can-
not safely be traversed, the plain-
tiff must, in his replication, shew a
title by prescription, or by grant
6 Jac
[148 a]
or some other conveyance. 4 Mod.
424. Strode v. Birt. Com. Rep. 7.
9. C. Bui. N. P. 76. As in the
text — had the plaintiff merely tra-
versed the freehold in J. T. the is-
sue would have been found against
him, and he would have appeared
to be a mere wrongdoer, instead of
the defendant. A title in J. T. be-
ing pleaded by the defendant, it
seems to have been necessary for
the plaintiff to confess and avoid,
if he could not traverse it. Hav-
ing confessed and avoided, he ought
not to have added a traverse. See
post. 151. n. 1. On this ground,
the replication was dearly bad, e-
ven if the inducement to the trav-
erse were sufficient. The court,
however, decided on the supposed
insufficiency of the inducement.
See 1 Ld. Rayni. 334. But the
defendant having alledged a free-
hold in J.T. and justified an entry
by his command, would have been
estopped to deny his seizin, even if
the plaintiff had averred it with
the utmost particularity. It is not,
therefore, readily perceived why
the replication should thus aver it;
and this case has been greatly sha-
ken, if not overturned, by the de-
cision in 11 East 60.
Goodman vs. Aylin. Hil. 5 Jac. Rot. 834.
1 Brown!. 213. S. C.
TRESPASS, that the defendants Febr. 4 Jac apud P.
broke the house of the plaintiff, and one Brasse-ohaffer of
the plaintiff's, value 20s. took and carried away, &e. The
defendant pleaded, that the house is parcel of an half yard-
land in P. and that it was held of H. Earl of Northumber-
land, as of his manor of W. by homage, fealty, eseuage in-
certain, suit of court, inclosing of the park pale, and the
rent of a pound of cumin; and for the cumin arrear for three
years, ana the homage and fealty of Thomas Peller tenant
inde, the defendant, as servant to the Earl, and by his com-
mand, justified the entry and taking &c. The plaintiff re-
plied, that it was held of R. Stanley as of his manor of Lee,
&c. absque hoc y that it was held of the Earl modo et forma;
In repler'o,
the avowant
must make
a good title
in omnibut:
Aliltriu tret-
pass.
Moore 870.
Hob. 108.
T.Ray. 254.
Mich. 6 Jac.
and upon that tbey were at issue : And the jury found
that it was held of the Sari as of his manor of P. by hom-
age, fealty, inclosing of the park, renttof a pound of cumin,
Hard*. 135. & non alitor, and si videbitur curia that it is not held niodo
Aadr.263. tf forma, they find for the plaintiff, &e. And it was ad-
judged for the defendant ; for although the verdict does
not agree with the plea in the manner and nature of the
tenure, yet it agrees in substance in the point for which the
, taking was, viz. that the land is held of the Earl \ anil
that is sufficient: For there is a difference between reple-
vin and trespass $ for in replevin, because the plaintiff is
to have a return, (viz. the avowant, for the one is actor
against the other) the avowant ought to make a t»ood title
t Mod. 4. ** omnibus ; it is otherwise in trespass, for there he is only
to excuse the trespass ; and therefore if there be any ten-
ure at all it is sufficient (1) For if the lord, or his bailiff
in his right distrains for rent which is not due, yet he is
not punishable in trespass. Quod vide Lit. 114. pro modo
[ 149 ] et forma in trespass, and 9 H. 7. 8. for replevin, (tyodno-
ta. Per tot, cur. And Fleming Chief Justice vooched 33
1 Iatt.£8z.a. H. 8. Dy. 46. b. where the issue was, if villain regardant,
•Co. ill. a. fc^ or free? And the jury found villain in gross, vet good,
for the substance of the villenage, and of the issue is found.
(l) See 1 8aund. 347. b. n. 3. v. Eckies. l John. Rep. 384. It&r-
Carta. 74. Matthews v. Carey, l rison v. MIntosh. 10 is. 373.
6alk. 107. S. C. aSaund. 384. tf. Hopkins v. Hopkins, aee.
H. 3. Bos. (k Pnl. 809* Hawkins
Poole vs. Nedham.
Noy 132. S. C.
Wbere a ON a special verdict the matter in law was ; John Par-
common re- a dj ne tenant in tail male, of a messuage in London, the
bTilooVnot! wmaioder in fee to Tho. Paradine s Thomas by deed in-
withstanding foiled granted bis estate and right in remainder to Q. Eliz.
a grant to in fee during the life of John Paradine, and after his death,
the king. as long as any issue male of Jo. should live ; John suffered a
Difference common recovery under which the plaintiff claimed ; John
where the p ara di ne dj e d without issue, and the defendant as servant
revertfoo & to Thomas Paradine entered, &c* And it was adjudged,
where by re- lnat * ne com mo a recovery barred the remainder of Thorn-
maioder. as notwithstanding his grant to the queen : for the grant
to the queen is void ; because it can never come in posses-
2 Co. 15. b. gion ; and a remainder is quasi terra remanens, for by the
M a' a 95 ' death of John, tenant in tail, without issue male, the es-
l And. 141. ute f tne q ueen j g determined ; so that she shall not hate
any benefit by the grant, .but it is a dry remainder without
profit. But if there had been such a grant of the rever-
sion made to the queen, it had been good ; beeause during
the first intail there would be an attendancy for the ser-
Mich. (J Jac.
Vices and wardship, &c. of the issue of the donee. Which
difference vide in Cholmley's ease, 2 Rep. 51. and vide l*
E. 4. 3. tenant for life with several remainders for life ;
he who had the fee granted that, after the death of the
first tenant for life, it should remain to J. S. in fee, it is
void ; for it eannot take effect in possession at the time ap-
pointed. But it was objected by Davenport (who argu-
ed for the defendant) that if John Paradine in the case at
the bar had issue a daughter, who had issue a son, that al-
though this son could not inherit the tail, yet he might well
support the estate of the queen ; and if also in this case
John Paradine be attained of treason, that the queen shall
be in of her remainder granted by Thomas, and by this
means she shall avoid leases made by John the tenant in
tail. To which Yelverton answered, (who argued for the
plaintiff) that in the first ease, if the daughter survived the
tenant in tail, although she had igsue male, and died, the
estate of the queen is determined for want of issue male ;
for when she survived, then there was a failure of issue
male of John, and although she died afterwards, her son,
who is now issue male of the first tenant in tail, shall not
revive it again : No more than where land is given to J. S.
in fee, as long as J. D. has issue, &c. if J. D. dies without [ 100 ]
issue, his wife pregnant, the issue born after shall not re-
vive the estate, for it is a collateral determination, which
being onee interrupted shall never be set on foot again : And
as well as in descent he ought to convey all by heirs
male ; so Yelverton apprehended he ought in the continu-
ance of the estate. Qwdfuit concessum per totam curiam*
And to the second case put by him, Yelverton answered
that where the queen comes to possession by the attainder,
she shall not avoid the lease, but shall be in of the estate
of the tenant in tail $ because she is not to have any great-
er estate nor more beneficial estate by the remainder than
by the attainder ; therefore it is not like Walsingham's case
Com. 560. where tenant in tail of the gift of the queen was
attained ; for there by the attainder she was in, in point of
remainder. Quodfuit also concessum per totam curiam ; for
it was said by the court, that where the king comes to land
in point of reverter on the attainder of tenant in tail, he
shall not avoid leases, because he has the remainder only
by purchase, and ought to keep it as a purchase, and not in
point of reverter, (fuod nota. And judgment was order-
ed to be entered. But on the defendant's motion it was re-
ferred to Williams Justice, who reported, that he could not
end it \ and therefore judgmeut was given for the plaintiff.
Trin. 7 Jac.
2%
Mich. 6 Jac*
Case of a Slander.
Actionable the defendant said of the plaintiff ; Thou dost work b j
to charge one nigromancy ; and dost work by the devil. And adjudged
iDgbynccro- actionable; for although the word nigromancy is not prop-
mancy & the er > nor a word known in law, yet in vulgar sense it is known
devil. to import conjuring ; which word joined with the others
(working with the devil) explains the first word, and shews
3 Inst. 46. malice in him who spoke, for it imports a familiarity and
Mo. 868. immediate use of the devil as an instrument, whieh is a great
2Brownl.27S slander ; for although sueh working, &e. is not felony, un-
less the death of a man or beast ensues, or otherwise that
the party invoked the devil, yet it tooches a man much in
his credit, in begetting infamy and reproach to the party,
that his neighbours fear his company. Per totam curiam
prmter Williams Justice.
( 1st J Pa9cb. 7 Jac.
Bedell vs. Lull.
^J Brown!. 144. Cro. Jac. 221. S. C.
To a plea in THE plaintiff declared on a lease made by Eliz. James
ejectment on of certain land, &e. The defendant pleaded, that before
thafbefore Elizabeth had any thing, one Martin James was seised
A. bad any tnere °f ' n ? ee > an ^ had > Mue H. James, and died seised,
thing, B.was whereby it descended to H. as son and heir ; and Elizabeth
seised there- entered and was seised by abatement, and made the lease
ofinfee,from to the plaintiff; after which the defendant as servant to H.
who ? J* d ?~ James, e* per ejus prceceptum et in suo jure entered, as he
SiSUi Jr*.^ "% * e - T The tw/Ttb Md <r*rf
that A. eot- the seisin of Martin James, but said that he so seised, by
ered k was bis last will in writing, devised it to Elizabeth in fee, and
seized by a- afterwards died seised; wherefore she entered by foree of
batement ; a the devise, and made the lease to the plaintiff; absque
'co f J** 011 * oc » ^^ ^* 2, seisitofati per abatamentum modo et forma.
the°sefeiD°* f ^ thereupon the defendant demurred, and shewed for
B, and that eau * e 9 that the traverse is not good : And it was adjudged
he devised it for the defendant ; for the plaintiff ought not to confess and
to A. io fee, avoid, and also traverse the abatement; (1) for the plain-
(l) When a material point, al- it, then he cannot also traverse it.
ledged by one party, is fully con- Brook's New Cases SB. 1 Saund.
fessed and avoided, that is, when £2.n. SceOw. 141. Ayer v. Joyner.
the other party sets up a matter Because it shall not be in one par-
consistent with such allegation, ty's power, by adding a traverse,
but which if true is an answer to to prevent the other from denying
Pasch. 7 Jac.
tiff making a title to his lessor by way of devise from the trawsins;
ancestor, that proves she entered lawfully and not by abate- ^ •«"">»
ment, as Che defendant has supposed : Then besides that, £°» tement >"
to take a traverse is trifling, and makes the plea virions; j E# * 4 , 9a
for a traverse should not be taken, but where the thing tra- Co. Entr .
versed is issuable, and here the devise is the whole title and 505. a.
only issuable. It was also held per curiam, that the tra- Lutw. 1568.
Terse taken by the manner is not good, for he ought not to
traverse, absque hoc, quod seisitafuit per abatamentum, but
it ought to be, absque /roc, quod abatavit ; and also if the
plaintiff intended fully to answer the defendant, he ought
to have traversed in the same words as the defendant
pleaded against him, viz. absque hoc, quod intravit etfuit
seisita oer abatamentum.' Quod nota. This ease concern-
ed Sir Henry James to whom the defendant was tenant
Yelverton of counsel for the defendant.
the facts which avoid his former rule is so stated by Comyns and by
plea. Sav. 2. pl.4. Anon. 1 Brownl. Baeon. Formerly, a traverse in
197. Hatton v. Hun. Wineh 38. such ease was held to be mere du-
Johnson v. Norway. Jenk. ton. plicity, and to be excepted to only
1 Saund. 209. n. 8. 13 Mass Rep. by special demurrer. 2 Vent. 2±2.
020. Oysiead v. Shed Sf al. In ma- Benny v. Maxey. 2 Lutw. 1538.
ny of the old books, it is said that Leigh v. Leigh. Carth. 166. Brad*
after confession & avoidance there bourne v. Kermerdale x arg.
need net be a traverse; and the
Sir Francis Goodwin vs. Welsh & Over,
1 Brown!. 214. Cro. Jac. 2*0. 8. C.
• SIR Francis brought several actions of trespass against fa trespass
the two defendants for goods taken, and declared to dam- upon non
ages. The attorney for the defendants pleaded non sum mm inCor ™'
informatus ; and thereupon judgement is given severally for V'j^ D | ! '
the plaintiff, and writs of inquiry of damages issued, and d ]^ t J (he
were returned. And it was moved that the writs should va | U e only &
not be filed, because the plaintiff at the time of the inqui- not the prop-
ry did not prove that the goods belonged to him, but crty of the
only proved the value of the goods ; foi* by serjeant Nich- go°d» need
oils there is a difference between an action confessed and j? e pr °™ t ™
non sum informatus*, for in the first case the property is j n q U j«" But
likewise /confessed to be in the plaintiff, but it is not so in 0D the gene-
the other ease ; for this judgment passes without the de- ral issue,
fendant's privity, and .only for want of plead in?, as in the both must be
case of nihil dicit. But per tot cur. it is all one, and the proved.
plaintiff need not prove property in either of the eases ; and
the reason is, because the writ commands only the value to
be inquired and no more, and that alone is the charge of 2 Show. 30.
the jury.(l) And by all the Justices, they themselves as
(l)In Trials per Pais 48 8, where ded, " if the defendant may not
this ease is stated, a query is ad- disprove property in mitigation of
TlMaj
Pasch. 7 Jac.
judges, if they would, might in these eases assess damages,
without listing any writ ; for it issues only quia nescitur
gum damna; bat if they will trouble themselves with the as-
sessment of damages they may. (2) But it is otherwise in
the ease of nan cut. pleaded, for there the trespass is denied,
whieh mast be tried by the jury, and there the property
and the value also ought to be proved. JVfoto also, in the
first ease, the judgment is, quod recuperet querens : If then
Upon a writ of inquiry of damages the plaintiff should
be obliged to prove property, and fail ef it, that would go
in avoidance of the first judgment, whieh eannot be. Yel-
verton of eounsel with the plaintiff (3)
damages, for the jury may find no
damage." The jury, however, are
bound to give some damages on a
writ of inauiry, and if they do not,
their veruiet will be set aside. 8
Bl. Com. 398. 1 Barnes 104. Bur-
s v. Nightingale. 2 Bay 400.
tignev.JJeivees. See also 2 Stra.
1209. JUdrkhamv. Middleton. 3
Mass. Rep. 184. Vandusen v. Corn-
stock. Overton's Rep. 18. Johnson
v. Belfour's Executors.
(2) See 8 Leon. 213. OgnelPs
case. Fitzg. 162. Miliary v. Jen-
nings.fe Wils. 372. Hewit Sf al. v.
MdnteUA 3 ib. 61. Bruce v. Raw*
tins. Doug. 310. Thellusm v.
Fletcher.
(3) In the King's Beneh and
Common Pleas, the practice is to
refer it to an officer of the eourt to
assess damages on a judgment by
default, in actions of debt, cove-
nant and assumpsit, where the cer-
tainty of the demand appears on
the record : As on bills obligatory,
promissory notes, *&e. where the
sum may be exactly computed from
the papers. 1 Sid. 442. Roe v. Jips-
ley. 1 H. B. 202. Rashkigh v. Sal-
mon, ibid. 029. Andrews v. Blake.
ibid. 041. Longman Sf al v. Fenn.
4 D & E. 27B. Shepherd v. Chater.
14£ast.442. Tayforr. Capper. Ba-
yer on Damages 100. But it seems
to be at the plaintiff's option so to
refer it, or to have a writ of inqui-
ry. 2 Saund. 100. Holdipp v. Ot-
way. 7 D & E. 446. Blackmore v.
Flemying. See 1 Tidd's Pract. 014.
3 Maule & Selw. 100. Middleton
v. Bryan.
The eourt of Exchequer have
refused to adopt this practice— and
award a writ of inquiry in all eas-
es, l Anst. 249. Chilton v. Harborn.
In Pennsylvania, it is the prac-
tice to enter judgment generally in
eases of default and demurrer, and
let the plaintiff ascertain the debt,
and issue execution at his peril. 2
Dallas 308. Armstrong v. Carson 9 s
Executors.
In Massachusetts, by statute of
1784. e. 281 on default, the charge
in the declaration shall be deemed
to be true, and the court shall give '
such damages as they shall find up-
on inquiry that the plaintiff has
sustained $ unless the plaintiff shall
move for an inquiry by a jury. In
actions on notes, bonds, mortgages
&c where computation only is ne-
cessary to ascertain the damages,
the clerk enters judgment. But in
cases where the damages cannot be
ascertained by mere computation*--
as in actions on notes payable in
specific articles, foreign money,
&c._ the eourt, on default and de-
murrer, make inquiry by examin-
ing witnesses. In aetions of tort,
where the damages are arbitrary,
the court refuse to assess them, and
award an inquiry by the jury at
bar. It is not error, though it does
not appear on the record by whom
the damages were assessed. It
Pasch. 7 Jac.
will be presumed they were assess-
ed by the court. 6 Mass. Rep. 4.
Jarvis v. Blanchard.
In Rhode-Island, the court, on
default and demurrer, assess dam*
ages in all actions whether of tort
or contract 3 Dallas 344. Brown
v. Van Braam.
Higges vs. Austen.
THOU hast stolen as much wood and timber as is worth
20s. The jury found the words with this addition, (off my
landlord's grounds) and it was adjudged pro querente ; for
the words round by the jury more than were in the declara-
tion do not qualify the first words, for it cannot be timber
as long as it is growing, but wood only ; timber carries
this sense with it to be severed from the soil. Quod nota.
Pen totam curiam. Yelverton of counsel with the plaintiff.
Actionable
to charge one
with stealing
timber from
the owner*!
grounds.
Barret vs. Fletcher.
1 Brownl. 105. Cro. Jac. 220. S. C.
DEBT on a bond of SQOl. The condition was to stand
to the award of J. S. and J. D.ita quod, &e. The defend-
ant pleaded nullum fecerunt arbitrium : The plaintiff re-
plied, and shewed the award made de verbo in verbum, and
concluded, et sic fecerunt arbitrium $ but did not assign
any breach. The defendant rejoined, that the deed of the
award pleaded, was not the deed of the arbitrators : And
upon issue joined thereon, it was found for the plaintiff.
And Yelverton moved in arrest of judgment, that plaintiff
should not have judgment, because in his replication he has
not assigned any breach of the award, and then he has not
shewn any cause of action, for the bond is not for any debt,
for it is guided by the condition, which goes in performance
of a collateral thing, sc, of an award ; and though the de-
fendant had no answer to the breach, if it had been assign-
ed, yet the court ought to be satisfied, that the plaintiff has
cause to recover, otherwise they will not give judgment :
And although the verdict is found for thelplaintiff, yet this
imperfection in the replication is matter of substance, which
is not aided by the statute. Qaod nota. Per totamcuriam,
preeter Williams Justice. And judgment was arrested. (l)
In debt on
bond for per-
formance of
an award, if
the defend-
[-153]
aut plead 'no
award,' and
the replica-
tion shew an
award, with-
out assigning
a breach, it
is bad after
verdict.
Ante 78.
(l) In Meredith v. Men. l Salic.
136. Holt B44. 1 Show. 148. it is
said the case of a bond to perform
an award is sui generis $ that in
all other cases, if the defendant
pleads a special matter that ad-
mits and excuses the non-perform-
ance, the plaintiff need only answer
and falsify the matter alledged ;
for he that excuses a non-perform-
ance supposes it, and the plaintiff
need not shew that which the de-
fendant has supposed and admit-
ted. 3 Lev. 24. Qenne v. Tinker, l
Stra. 299. Nicholson v. Simpson. S.
P. The decision in the text is un-
doubted law, though it presents an
anomaly in the rules of pleading.
Pasch.
f 153 a J
It was recognized by Lord Hobart
in Brickhead v. Archbishop of Fork,
Hob. 198. and the rule it laid
down in all the treatises on plead-
ing. See Brook's New Cases 2*.
Com. Dig. Pleader. F. 14. 1
Chit PI. 500. 099. 2 ib. 620. n. 1
Saund. 10S. n. l. Yet the breach,
when assigned, is not issuable or
traversable, nor can the defendant
S've any answer to it ; Hob. 281.
card v. Baskerviie. Yelv. 26.
Baily v. Taylor. Winch 121.
Gibson y. Ferren. tor any answer
to the breaeh most necessarily ad-
mit the existence of the award, and
would consequently be a departure
from the plea. 1 Mod. 227. Gayle
v. Beits. T. Ray. 94. Morgan v.
7 Jac
•Mom. The only answer, -which
the defendant ean make, is simi-
lar to that in the text— that the ar-
bitrator did not make such award ;
and on this issue he is at liberty to
shew that the award is void, l
Saund. ubi sup. The reason given
by Jones arguendo, 1 Saund. 108.
why the plaintiff is in such ease
bound to shew a breaeh, is, thataa
award may be good in one part,
and void in another; therefore the
court should be enabled to judge
whether the plaintiff has brought
his aetion for a breach which en-
titles him to an aetion. The same
reason is given by the court, in
Meredith v. Allen, ubi sup.
' It would
he proved
by vehement
presump-
tions' are not
sufficiently
affirmative
words in
slander.
Weblinttf. Mayer.
IT would be proved by many vehement presumptions,
that the plaintiff was a plotter and contriver of the death
of one Powel, because he would not sell him his land. And,
per curiam, they are not actionable ; for they affirm noth-
ing of the plaintiff, but refer to presumptions, which are in-
certain ; and words of slander ought to be spoke affirma-
tively. Quod nota. Judgment arrested.
Pridham vs. Tucker.
Noyl33. S. C.
" Thou art a THOU art a healer of felony, and hast shewed sueh fa-
onv» ' °ti M ' vour *° a h° rse -» te *ler * n th c t" me of thy coostableship, that
action- thereby both the horse & thief were eonveyed away, & that
it lieth in my power to han£ thee. And adjudged pro quer-
ent* ; for healer of felony is a word known in the county of
Devon, where the aetion is brought, to be a eoneealer or
hider of felony. As in the county of York to say to one,
Thou hast strained a mare, will bear an aetion ; for it is
vulgarly taken to steal a mare : and although it is not
laid expressly, that the plaintiff was constable at the time
of the speaking of the words, it is not material ; for though
he is out of his office, yet he oujjht not to be slandered with
any thing done in his office, as if a justice of peaee be put
out of commission, and one will say to him, When thou
wert a justiee, thou wert a bribing justice; it is actiona-
ble ; for although4t-reffers to a thing past, yet it defames
abl
Moor. 419.
Cr. El. 250.
Hob. 126.
Cartb. 214.
Postea 158.
contra.
Pasch. 7 Jac.
him far ever, in the<opinion of others, and makes him ac-
counted unworthy to bear an office for the future. Quod
nota.
Newlyn vs. Fasset. r i5 *3
THE plaintiffis a felon. Take heed what you say, says * He knew of
a stranger. Why, says the defendant, is not he a felon, ^ j^^JJ
Hhat knew of murder and concealed it ? He (innuendo the Dot ^veal it*
plaintiff) knew of the murder of Anne Lanaway, and did actionable.
not reveal it till long after it was openly known. And it
was adjudged pro querente, for the first words were action- Cr. El. 282.
able ; and the subsequent words increase the slander 5 for Hob.77,331.
although to conceal a felony is not felony, but fineable, and ? d^v959
an offence for which he ought to be bound de se bene geren- j ^ b. 248.
do, yet it shews malice in the defendant, and is a great im-
putation to the plaintiff. 2. There is a difference between
words uttered continuata voce, and at several timed, or up-
on several occasions : as to say, Thou art a felon, for that
thou stolest my apples off my trees, is not actionable, for
the reason of the speaking instantly annexed qualifies the
precedent words ; but if a man says thou art a thief, and a
stander-by says, beware what you say, and the other says,
1 will justify he is a thief, for he stole my evidence ; this
is but inepta ratio of the first words, not voluntarily pro-
ceeding from the party, bnt as it was forced by another,
and therefore spoke too late to qualify the first words.
And although Yelverton Justice said, that if a man says,
J. S. is a traitor, for he robbed a man by the highway, it
will not bear an action, because the reason does not concur
nor depend on the first words ; yet Fleming Chief Justice
denied it, for both the words are slanderous; and although
the reason of the speaking does not depend on the word
traitor, yet it shall be construed but greater malice, because
he charges him with two several matters, which deserve
death : Which seems to be good law. Quod nota. Judg-
ment pro querente. Per totam curiam, prater Yelverton.
Trin. 7 Jac. [is*]
Markham vs. Turner.
NOTA; Markham was bail for Sir John Skinner in an It
action of debt brought by Turner, and was within age ; the bail may
judgment passed against Skinner, And he did not offer bis |j ave an *"'
body. Wherefore on two scire fac. and nihil returned a- JJ be^Hev*
fiinst Markham, judgment was given against him. And e( j onaccount
elverton and George Croke moved to have an audita f infancy,
Trin. 7 Jac.
after judg- querela, because Markham was yet within age ; and by
meat against Williams Justice it does not lie, but he ought first to hare
them on two error to reverge ^ e judgment, for during the judgment in
nihil Vetera- ' oree ^ c recognisance is affirmed. But to that Yelverton
ed. at the bar answered, that then we are without remedy, and
Markham in great mischief, if he cannot have audita que-
1 T. R. 273* rela $ for perhaps the judgment has an error in it, and up-
on the scire facias Markham the bail could not have plea-
ded his infancy, for that suit goes in affirmance of the re-
cognisance and demands execution of it ; but yet the error
of the infancy remains, and the recognisance to be avoided
by this suit by inspection ; and therefore it is like an assise
of redisseisin, which a man may have on the first judgment
in the assise, and thereupon the recovery in the redisseisin
Cr.Jac. 646. j g reversed. So here by the audita querela the recognisance
b 8* a" being avoided for infancy, the judgment thereon is likewise
avoided. Quodfuit concessum per totam curiam, prceter
Williams Justice. And the audita querela was allowed de
bene esse, for to deny it, if it lay by law, was injustice.
Paston vs. Lusher.
Isisadis- THREE executors recovered in the Common Pleas
continuance in debt by default, the defendant brought error and as-
if day isgiv- gjgned a discontinuance, viz. that the suit being by three
three V plain- executor3 > at tne day which they had by the roll on a con-
tiffs* when tinuance, two executors only appeared, and by the same
only two ap- roll day given over to all three till another day. And Yel-
pear. verton urged that it is not a discontinuance, but ouly the
default of the clerk amendable ; for it cannot be intended,
^ when the court gave day to all three executors, but that all
appeared, and that it was the negligence of the clerk to
omit the entry of the appearance of the third executor, and
[ 156 J upon that Yelverton vouched 26 H. 6. Amendment 33. Writ
brought by husband and wife, and the parties appeared
and had day to another term, but no appearance was had
of the wife, nor no day by the roll given to the wife, and
yet, forasmuch as it appeared to be the fault of the clerk,
it was amended : But, per totam curiam, in the ease supra,
it is a discontinuance, and cannot be amended ; for credit
ought to be given to the roll : And therefore won constat, but
that two only appeared, and that the third made default,
7 E 4 10 w h' e h * s a non-prosecution by him at that day, which goes
* to the whole suit and time after. Vide 21 E. 4. 3. And,
per curiam, in the case 26 H. 6. it shall be intended that
there was some remembrance in some by-roll, by which the
Court was instructed, that the wife also appeared, although
it was not entered at the day in the principal roll, and
thereupon, per totam curiam, the judgment was reversed.
Trin. 7 Jac.
Belcher vs. Hudson.
l±B*a]
Cro.' Jac. 222. 1 Browol. 15. S. C.
BRLCHER and Anne his wife were plaintiffs in assump-
sit asjainst Hudson, and declared (hat in consideration An*
na dum sola fvit would marry one Thomas Mason at the
defendant's request, the defendant promised after the death
of Thomas Mason to pay the said Anne 40s. a year for her
life; and shewed, that thereupon she married Thomas
Mason, who afterwards died ; and she took to husband
Beleher the plaintiff; and shewed that U. were arrear for
two years after the death of Mason, contrary to the defen-
dant's promise, to damage, &e. The defendant pleaded in
bar a release made by deed to him by the said Thomas Ma-
son during the marriage with Anne one of the plaintiffs,
whereby he released to the now defendant all actions,
quarrels, controversies, claims and demands whatsoever,
which he had, or might have against the said Hudson, &c.
upon which the plaintiffs demurred : And it was adjudged
jiro quer. that the release would not discharge this prom-
ise : Because although the promise was present, yet the
execution of the promise was infuturo, and such, that he
who released could never have an action on it j(i) bnt if
he had released by express words all promises, or all ac-
tions and quarrels which he or his wife had or might have,
•then it was held, that the promise had been released ;( 2)
for the promise, being a special cause of action, cannot be
released till it comes in esse, no more than a covenant, as
5 Eliz. it is adjudged, and 30 H. 8. Dy. 06. b. Wherefore
judgment was given pro auer. Fleming Justice being ab-
sent. Quod nota bene. Yelverton of counsel with the de-
fendant. ,
A promise to
pay a woman
an annuity
after the
death of such
a man, in
consideration
of bar mar-
rying him, it
not defeated
bybis release
of all actions
and demands
to the prom-
issor; for it
was not in
demand dar-
ing his life.
Dyer 217.
Mo. 34.
5 Co. 71.
Lutw. 249.
Cowp, 803.
(1) See Com. Dig. Release. E.
Baron & Feme. K.
(2) The better opinion seems to
be, that the husband could not
have released this promise, by any
form of words. Cro. Jac. 071.
Clerk v. Thomson. Palm. 99. 2
Rol. Rep. 162. 8. C. Moore 022.
Thomson v. Butler.
Promises, agreements and cove-
nants made to the wife by the hus-
band, before coverture, for the
performance of a thing which ig
not to happen during the cover-
ture, are not released by the mar-
riage. Hob. die. Stafford v. Smith.
Godb. 371. 1 Brownl. 18. Hut. 17.
Noy 26. 8. C. 1 Ld. Raym. 315
Cake v. Acton. ±2 Mod. 288. l
Salt. 320. l Freem. 012. 010. Holt
309. Com* Rep. 67. Carth. 011. 2
Vern. 480. Pre. Ch. 237. 8- C. Lit.
Rep. 32. Anon. Hetl. 12. 8. C. 2
Sid. 08. Lupart v. Hoblin. D &
E. 381. Milbonrne v. Ewart $ al
20
Trio* 7 Jac.
[ 107 ] Prowse vs. Turner, Bail of John Skinner.
A writ of er- IN a scire facias against the bail, who on the second scU
ror doei not re facias was eondemoed for not having the body of the
lie in the principal, judgment was given that the plaintiff should re-
Excbeqoer tover g u per rtcupcrationem prasdictam, where it should be
on*^i jode- ^P 61 " recognitionem prmdictam : wherefore Yelverton and
ueotioatci. George Croke moved to have a writ of error* And, per
fac. against ctirurot,ao writ of error lies in the exehequer-ehamber, oe-
bail-tbere it eanse the judgment is in a scire facias, wnieh is a judicial
no renedy it wr fy aiM | | g Bot expresl y named in the statute 27 Eliz. wbielt
wliameot! 5** ei the error in the Bxclie <l liep ' And they were like-
w^ ' wise of opinion, that it does not lie in the King's Bench, as
upon error in process, for there is no error in the process 5
O. J. 171. for that is where the process is mistaken, sciL one process
384. Hob. for another, and here the process is not mistaken, but issued
73* in due form of law ; but the error is only in point of jodg-
c Ah' 3ot* ment > ^^recuperatt(memtorrecognitionem 9 which is clear*
Stra. 1102. ty ailot * ier matter, and no remedy, as it seems but in par-
liament. And also Williams Justice conceived, that the
King's Bench could not reform the error in process, unless
in the same term. Quod vide accordingly, F. N. B. 22.(1)
Then Yelverton moved that it is a void judgment, and
that the bail ought not to be vexed thereby ; for there is
not any judgment at all upon the recognisance given by the
court, npon which execution can be demanded Jd quod
non dederunt responsum. Quod nota, et quart*
(1) See 2 Sellon's Praet. 863. 2 Keb. 833. Jones v. Anderson.
401. Bac. Abr. Error. I. 2. Law Andr. 288. Crow v. Maddock. Doug.
of Errors 112 to tl8. Poph. 181. 337. n. 14 John. Rep. 417. Arnold
Case of Mayor Sfc. of Maidstone. Sf al. v. Sandford.
Taylor vs. Markham.
1 Browol. 215. Cro. Jac. 224. S. C.
In trcspasa k TRESPASS of battery such a day, and declared accord-
battery, "rfe iogly, &c. The defendant pleaded that he tempore quo 9
propria Arc"" * a8 seised °? guc,! a rectol 7> in the P* ace where the trespass
is a good re- * 8 • u PP°*®d in fee, and that tempore quo there was corn se-
plicationtoa ve red from the nine parts at the place aforesaid, and the
pleaof'rool- plaintiff came to take away the corn* and the defendant in
liter manus defence of his corn, and to keep the plaintiff from taking it,
imposuit » in gt 00 d there to defend it, and the ill that the plaintiff had
tithes! 6 *** of his own wron S> & c - The plaintiff replied, de tntYc-
ria sua propria sbsque tali causa : Upon which the defen-
dant demurred in law. And it was adjudged for the plain-
tiff: for such general replication is good, and the plaintiff
need not answer the defendant's title, because the plaintiff
by his action claims nothing in the soil or corn, but on-
Trin. 7 Jac.
ly damages lor the battery, which is merely collateral to
the title. But where the plaintiff makes title by his de-
claration to any thing, and the defendant will plead anoth-
er thing in destruction of it, or of the plaintiff's cause of
action, "there he ought to reply specially, and shall not say [ 158 ]
absque tali causa, as 14 H. 4. S3, b : Trespass for taking
his servant, the defendant shewed that the father of him,
whom the plaintiff supposed to be his servant, held of him
in chivalry, &e. and died seised, his heir(viz. he who is sup-
posed the servant) being within age, wherefore he seised
him as his ward, as he well might ; there the plaintiff
replied, de injuria sua propria absque tali causa ; and it was
disallowed by the court without answering to the seigniory,
viz. de injuria sua propria, absque hoc that the father of
him who is supposed servant held of him in chivalry ; the '
reason was, because the plaintiff by his action made title
to the servant, according to 16 E. 4. 4. Quod note. And
judgment was given accordingly. Yelverton of counsel
with the defendant(l)
(1) When the defendant pleads 7|. Jones v. Kitckin. 4 John. Rep.
or insists on a right, title or inter- llo. Hyatt v. Wood. But such
est, the general replication de in- replication is aided by verdict, l
juria sua propria absque tali causa Brownl. 200. Sivqffe v. Solley. Hob,
is bad : Otherwise where the de- 76. Banks v. Parker. T. Ray. 50.
fendant's plea sets forth matter of Collins v. Walker. John. Rep.
excuse merely. 4 Leon. 16. Ruish- 112. Lytle v. Lee Sf al. If, how-
broolce y. Pusanie. 8 Co. 66. Cro- ever, the title alledged be only in*
gate's case. 2 Sannd. 294. White v. ducement, as in the text, the gen-
Stubbs. 2 Keb. 712. 730. S. C. Fort, eral replication is proper and suf-
239. Horn v.. Levinx. Com. Rep. ficient. Latch 221. 273- Hale v.
582. Cockerill v. Armstrong. Wil- Qarard. See 2 Saund. 294. n. i.
les 99. 7 Mod. 247. S. C. Willes 1 Chit. PI. 062. 094.579. 081. Bui.
08. Cooper v. Monke. 1 Bos. & Pul. JT. P. 93,
Tuthil vs. Milton,
Cro. Jac. 222. S. C.
THE plaintiff declared, that whereas he is a freeman of Iu slander, a
Wells, and exercens artem sive my sterium of a linen-draper S e ". eral *|| e -
within the same city for five years past, and by his credit, fj* e ^fcjff
&c. had gained much, &c. vendendo etemendo, Sfc. yet the wft i a trader
defendant 28 Julii anno at Bristol in warda omnium sane- is Mfcient
torum within the jurisdiction there ad eundem querentem after verd-
dixit et ad Franc. Tuthil, viz. You both {innuendo the ict -
plaintiff and Francis Tuthil) are bankrupts and not worth
a groat; (id damnum^ $[c. and it was found by the verdict
there for the plaintiff by a venue de warda omnium sancto-
rum, and judgment given there ; and it was removed into
the King's Bench by error, and the judgment affirmed ; yet
two exceptions were taken $ 1. That after an attachment
Trin. 7 Jac.
19 H. 7. 9. awarded in Bristol, a capias issued against the defendant
Comb. 60. there, where bj the statute 19 H. 7. it seems, that a capiat
£?'* **; in an action on the case doth not lie hot in the King's Bench
Atom 63 J** 1 Comnl011 Plea »- To whwb Velverton answered ; first,
^ that is an exception which sabverts all proceedings in in-
ferior courts, which always use such process of capias an
the second process in such actions ; but if they commence
there with a capias, as the first process, without sommoua
or attachment, it is not good, but is continue adjudged et*
ror : & This judgment is grounded on the verdict preced-
ent, because the party has appeared and the capias is but
mean process, which is out of doors by the appearance of
the purty; ouod Ma curia concessit. The second error, em
which they insisted, was, that the declaration is not good,
because it is not laid precisely, that at the time of speak-
ing the words the plaintiff was a linen-draper, but only for
the space of five years past : To which Yelverton answer*
ton answered $ that there is a difference between slanders
of one in respect of an office, and in respect of a trad* or
trofession. Tor if a man says of a justice of a peace, that
e is a briber, &c. he must shew in an action for those words
expressly in his declaration, that he was a justice of peace
at the time of the words spoke, because they sound inslaa*
der of his person in respect of his office only, which office
continues during the king's pleasure only, being by commis-
sion. But where a man is slandered in his profession or
trade, there it need not be so precisely alledged, that at
the time of the words spoken be was a lawyer, physician,
merchant, or linen-draper ; but it is sufficient to shew, that
he is of such a trade, and has exercised it for several years
past, without saying ultimo or jam claps. ; for a mair shall
not be intended to alter his trade or profession, but by pre-
sumption he continues it during his life, (juodfuit etiam
concessum per curiam. Quod nota. And the judgment was
affirmed. Vide Trin. 6 Jac. Rot. 1272. for the ease accord-
ingly Trin. 38 Eliz- B. R. Rot. 546. between Gardyner
plaintiff, and Hopwood defendant on the same words, Thou
art a bankrupt, the plaintiff alledging quod per multos m-
nosjam retroactos artem merchandizandt, vendendi et licite
barganizandi exercuit et usus fuit 9 and judgment given for
tbe plaintiff. It was also agreed, that the venue was well
awarded from a ward within the city melius quam de civi-
tate, contrary to 8 H . 5.
Godley vs. Frith.
It is errooe- THE plaintiff declared for a disturbance in a way, and
out to allege declared that he was seised of a messuage, &e. and that he
a W urtenant e a ''* ancestors, and they whose estate, &c, have had a
or appendant wav fr° m his messuage to such a place for them, their ser-
to a met- vants and farmers, as well on foot, as with carts, &c. and so
suage or oth* retrorsum^ and that the defendant had stopped the way, to
Trin. ft Jac.
his damage, *ce. And upon turn ad. the jury found the way er thing. Qu.
as the plaintiff had declared, but found it to be appurte-
nant to the messuage, and if it should be intended the way
whieh the plaintiffdeclared for, they found for the plaintiff,
aliter nan ; and assessed damages, And per curiam, the
rerdict has not found any thing against the plaintiff but
that he shall recover, for the plaintiff in his declaration
shall never lay the way to be appendant or appurtenant;
because it is only an ease and not an interest ; it is other-
wise of a common, for that is an interest, and may be of
several natures, appurtenant, appendant, er in gross ; but
a way cannot be so. And all the precedents in the book of
entries are according to the declaration here, without lay-
ing the way, appurtenant or appendant^ 1) And Mr. Man
(I) Thengh a right of way, be-
ing an easement only, (Bro. Read-
ing en Stat, of Litn. 42.) cannot in
strictness be said to be appendant
ar appurtenant, yet it is often so
denominated. Indeed Lord Holt
says, a private way to a particular
estate seems to be an interest, tho'
a way to a church is no more than
an easement. Com. Rep. 8.
In Jacob's Law Dictionary, ad-
▼ewsons, ways, &c. are spoken of
as appendant. In Plowd. 170. it
is said that ways, commons, &e.
whieh are or may be appendant or
appurtenant to inheritances cor-
porate, are called hcereditas incor-
porata; and such things are or
may be termed appurtenant. Ad-
Towsons, ways, &e. (it is further
said) may well enough be appur-
tenant to a messuage. In Jorden
v. Atxcood, Ow. 121. the judges
speak of a way as appendant, to a
mill, and appurtenant to land. In
2 Rl. Com. 35. it is said a right of
way appurtenant to lands or hous-
es may clearly be created by orig-
inal grant. In Whalley v. Thomp-
son, 1 Bos. & Pul. 871. Eyre C.
J. says there can be no doubt that
the word appurtenances may con-
vey an existing right of way. In
Gaetty v. Bethune, 14 Mass. Rep.
54. Parker C. J. recognizes the
same doctrine. See also 3 Taunt.
24. Morris v. Edgington. 15 Mass.
Rep. 131. Hoffman v. Savage Sf al.
In Beaudely v. Brook, Cro* Jae.
190. the court say, when land is
granted with a way thereto, it is
quasi appendant to it
It seems that it is never neces*
sary to alledge the right of way to
be appendant or appurtenant ; and
in some eases it would be improp-
er. 4 East 107. Fentiman v. Smith.
6 East 438. n. Bailiffs of Tewks-
bury v. Distort.
The position that the plea is
bad, if the way be stated to be ap-
pendant or appurtenant, is cited by
Comyns, in his Digest, Chimin. D.
2. See also 8 Salk. 40. But on
looking into the precedents, they •
will be found to be both ways.
In Lil. Ent. 72. 426. l Bulst. 47.
1 Vent. 274. 2ib. 115. 186. 1 Lutw.
119. 2 ib. 1426. 1 Bos. & Pdl. 371.
1 Taunt. 279. 2 Chit. PI. 359. 360.
073. the way is all edged to be ap-
pendant or appurtenant to a mes-
suage or other thing. In Lil. Ent.
452. Rast. 617. 618. 2 Lutw. 1527.
2 More. Vad. Mec. 256. 259. 262.
3 Ld. Raym. 291. 1 Ea*t377. 1 H.
B. 351. 9 Went. 263. Story's PI.
586 to 623. the allegation is omit-
ted. And no case has been fonnd,
in which the insertion of the alleg-
ation has been held to be fatal. In
Whalley v. Thompson, obi sup. and
in Ballard v. Dyson, 1 Taunt. 270.
the way was all edged to be appur-
tenant ; and though the rights of
the parties were, in each of those
Trin. 7 Jac
secondary, informed the judges that a judgment in the
King's Beneh was reversed in the Exchequer, because the
[ 160 ] .plaintiff had alledged a way appurtenant to an house, be-
cause he claimed it in another manner and nature, than he
ought by the law : Quod nota. Wherefore judgment was
given for the plaintiff. Yelverlon of counsel with the
plaintiff.
eases, warmly contested, yet no ob- it would hardly have escaped the
jeetion was made to this allega- notice of such counsel as were en-
tion. If the defect had been fatal, gaged in those cases.
Flud vs. Rumcey.
A debt due THE suggestion was, that wjiereas he was indebted to J.
from the ex- 8. in 30/. which J. S. afterwards in his life-time by his deed
ecutor to the g ave ^j n j g g 00 d 8 and chattels to A. and afterwards made
Msetsto pay the P laintiff and B * b ' 9 executors, and devised that the
debts & leg- plaintiff should pay out of the 302. that he owed him 10/.
acies. to the defendant for a legacy, the defendant had drawn the
plaintiff, into the Spiritual Court for the legacy, where by
the law the 30/. debt is extinguished by making the plain-
tiff executor: And shewed that he proved the will, &c.
And, per curiam, the defendant shall have a consultation ;
for although the joint executor has no remedy to recover
this 30/. against the plaintiff his co-executor, nor no action
can be used for it in the plaintiff's life, yet the debt is not
extinguished, but remains as assets to any other creditor,
al 8 E. 4.-— is : And by the same reason that such debt
shall satisfy a debt, it shall also satisfy a legacy; and the
rather, because the testator's express intent was so, hav-
ing precisely limited the legacy to be paid out of the debt.
(1) Quod nota. Per totam curiam. And a consultation
was awarded accordingly. Yelverton was of counsel with
the plaintiff.
(l) By the common law of Eng- gard to legatees, the appointment
land, when a debtor was made ex- of a debtor to be executor will op-
ecutor, the debt was discharged, erate as a discharge of his debt.
unless a different intention was to Rut this rule is subject to many
be inferred (as in the text) from exceptions, the principle of which
the will itself. So if one of sever- seems to be the intention of the tes-
al obligors or promissors was made tat or. If by the terms, or by strong
executor, the debt was released. 1 inference from the contents of the
Comyn on Con. 041. Toller 348. will, it appears that the testator
Rich, on Wills 321. did not intend to release the exec-
This principle is now controlled utor's debt, it will be assets to pay
by the court of Chancery, which not only specific, but other legacies,
will never permit the testator's and the executor will be trustee
creditors to be injured by constru- for the next of kin. See Toller
ing the appointment of an executor 349. 300. 2 Roper on Legacies 28.
into a release of his debt. In re- Rich, on Wills 357, <$* sea. 2 Burns
Trin. 7 Jac.
Eecl. L. 079. and the cases there Wilson v. Wilson.
*ti^/<?>jh??£?*)./8$-- In ease of an administrator, it
TheBnglish law as now admin- was never held that his debt to the
istered in chancery, has always intestate was discharged by his
been in force in Massachusetts. 12 appointment. The debt is consid-
Mass. Rep. 202. Winship v. Bass ered assets in his hands, and he is
<Sj* at It is also the law of Penn- ^accountable as for other assets,
svlvania* 1 Binney 576. Grosser Off. Ex. 32. 11 Mass. Rep. 26 ».
«y ux. v. Eekart Sf ux. 3 ib. 557. Stevens v. Gaylord.
Mich. 7 Jac.
Staverton vs. Relfe.
IjWill prove thee a perjured knave* And it was objee- "I will prove
ted in arrest of judgment, that the words were not spoken thee a perj-
affirraative, but doubtfully, and in the future tense, (I will ured knave"
prove,&c.) But, per totam curiam, these words (I will prove) £|* wordll!*"
are a vehement affirmative, which import not only that
perjury was committed, but that the defendant would open- March 19.
ly traduce the plaintiff for it, in such sort that it should* be Hutt. 75.'
openly proved. And by Williams Justice, it is like the
ease, Dy. fol. 72. b. Thou wilt be a bankrupt within few
days ; And adjudged there, that the action lay ; for although
the words in their signification refer to a time future, yet [ 161 J
they are a present slander, (food nota. Per totam curtain.
Bell vs. Fox & Gamble.
Cro. Jac. 230. S. C.
THE plaintiff declared, that the defendants conspira- A count for
tione habita eaused the plaintiff to be indicted at York, &c. prociiringthe
for a common barreter, et ea occasione at York he was tak- ^1^17 indic-
en and detained in prison quousque before the justices of led f or bar "
assise such a day, &c. secum. leg. et consuetude hujus reg- retry and de-
nt Jinslvz acquietatus fait, ad damnum, Sfc* And upon non tained in pri-
cul. pleaded, it was found for the plaintiff, and moved in ion until he
arrest of judgment, that the declaration was not good, be- was !*7 r ? ,H 7
cause there wanted this word {inde) acquietatus, or (de J£|}3 fHtjE
prcemissis) acquietatus $ so that although upon the indict- out ' saying
ment the plaintiff was taken, yet non constat, of what thing inde acquit*
the plaintiff was acquitted ; for he might, for any thing tatus.
that appears to the court, be taken and committed for a
barretor, and yet be acquitted of another thing as well as
of the barretry : But on view of the precedents in the book Cr.Car.286.
of entries and F. N. B. judgment was given for the plain- 315; 419.
tiff; for the writ never has the word inde, and the prece- F.N.B.U4
Mich. 7 Jac.
dents are both ways ; and the rather because it is all but
one sentence, and can have none other referenee than to
the indictment of barretry, for that is subject* materia on
which the whole depends. Per totam curiam on great da-
bate. Yelverton of counsel with the defendants.
Stone & al. vs. Bromwich.
Cro. Jac. 231. Noy 136. 8. C.
Tenanti THE two plaintiffs declared against the defendant for
in common diverting an antient watercourse, which time whereof, &c.
an° action 1 for flnte ^em diem ran in et per their land, which they held
a nuisance to in eommon, and shewed their several titles in their deela-
their lands, ration, and that such a day after the defendant diverted
the water there running, &c. to their damage, &e. and
upon non cul. pleaded it was found for the plaintiffs, and
moved in arrest of judgment ; 1. That the plaintiffs ought
not to join in this action, because they are tenants in eom-
mon, no more than in assise of nuisance : But non allocatur,
for the assise of nuisance is in the realty, but this action is
only in the personalty, and does not concern the title but
only the possession whereby the profits of the land are di-
minished ; for concessum fuit, that in an action for slander-
ing their title, or in forger of false deeds, they must sever,
and cannot join, because it concerns the title, which is sev-
eral, and so is 19 H. 6.(1)2. Exception was, because the
plaintiffs shew that- it was an ancient water-course, which
L 162 ] ran per et trans the plaintiffs land till 1 Mail such a year,
(1) Tenants in common must in pending a real action, it will abate,
general sever in real actions ; but Bracton 27«. Thel. Dig. 313. 324.
in personal actions— as for tres- Gilb. H. C. P. 254b. 10 Mass. Rep.
pass or nuisance to their land — 179. Oxnard Sf al. v. Proprietors
they must join. 2R. III. 16. Thel. of Kennebeck Purchase. In per-
Dig. 00. 9 D & E. 249. Harrison sonal or mixed actions, the death
v. Bandy. So they must join in of one jointenant or parcener will
detinue of charters: Co. Lit. 197. b. not abate the suit. Rep. Temp.
And in actions for the destruction Hardw. 390. Middleton v. Croft.
of charters or title-deeds. 7 Mass. In Massachusetts, by statute of
Rep. 180. Daniels <$* al. v. Daniels. 1783. c. 02. co-heirs may all join,
But they cannot join in an action or any two of them, or they may
for forging false deeds, for they sue separately, in actions of waste,
can receive no prejudice from false ejectment or any other real action,
deeds, exeept in their several ti- where possession of the inherit-
ties. ibid. anee, alledged to have descended
Jointenants and parceners must from a common ancestor, is the ob-
join in real as well as personal ac- ject of the suit. Since this statute,
tions : Bracton 426. Thel. Dig. 39. summons and severance will not
46. 47. Britton c. 49. And if one lie for co-heirs. 10 Mass. Rep. ubi
die, or being a feme sole, marry sup.
Mich. 7 Jad.
f 163 a ]
which was before the action laid, and before the stopping
laid in the declaration, so that it does not appear that the
water-course had eontinuaaee at the time of the diversion $
but because it appears afterwards in the declaration, that
the plaintiff* chaise the defendant with the diversion sneh
a day after, which is now found by the verdict, the eonrt
eannet intend bat that the water-course eontinued.(2) Per
Mam curiam. And judgment accordingly.
(2) An action for diverting a deseribed with any loeal certainty:
water-course is local 9 East 5&2. It is sufficient if it be laid at any
Company S[c- of Mersey Sf Ire- place within the body of the coun-
well Navigation v. Douglas £[ al. ty. ibid.
But the gravamen need not be
Bedle vs. Morris.
Cro. Jag. 224. S. C.
RICHARD Bedle brought an aetion on the case against A master
Morris, and declared on the general custom of the realm, may main-
that all inn-keepers, who kept common inns, shall keep the j ain aD . ac "
goods of their guests safe, so that in default of the inn-keep- an innkeeper
ers or their servants they shall not be lost ; and declared 0Q t he ens-
that the defendant ante 20 Decembr. anno 6 ac eodem die torn of the
custodivit et adhuc cusdodit et tenet commune hospitium in realm, for
Dunehureh in comitatu War. & one W. Bedle the plaintiff's mo ? e y . loBt
servant, as his guest the same 20Decembr. in hospitio suo hos- whi J e Mi ier "
pitawt,eodem W. Bedle adtunc et ibidem habente in legitima I|||! a t.* aS *
custodia sua a purse value 3d. and 762. depecuniis eumera-
tis in the same purse inclusis, as the goods and chattels of Co.Ent. 347.
the plaintiff adtunc et adhuc existen. a lawful subjeet of b.
this realm, malefactors unknown to the plaintiff the same
20 Decemb. anno 6 ad J}auth\irch prcedictum the said purse
and 762. in the same purse adtunc et ibidem inclusas 9 in de-
fault of the defendant and his servants, took and carried
away, against the law and custom aforesaid : and upon non
cvL pleaded, it was found for the plaintiff, (l) And it was
(l) It is nowhere expressly stat- should. There is the same danger
•d that inukeepers are liable to the of conspiracy, and the same re-
same extent as edmmon carriers, ward for services. See Plowd. 9.
viz. for all losses except by inevit- Glayt. 97, Harland's case. Jones on
able accident, or by public ene- Bailment 90. 134. 145. Jeremy on
mies (2 Ld. Raym. 919. Coggs v. Carriers 144. Sir William Jones,
Barnard) yet it is believed that indeed,supposes that the innkeeper
such is the law. The ease in the may defend himself, by proving
text goes far to support this posi- that the force, which occasioned
tion. There seems to be the same the, loss, was irresistible. But he
reason that innkeepers should be eites no authority in support of the
held liable to the extent above opinion,
stated, as that common carriers
30
Mich. 7 Jac.
Dalii. t.
HeUej 49.
Style 370.
ttoved in arrest of judgment, that the action did not lie for
the master on a robbery of the servant Bat nan allocatur $
for none can have satisfaction bat he who has the loss, and
the loss is to the master, & he only shall have an appeal of
robbery (*) 2. It was objected, that it does not appear that
he was his servant at the time of the money and purse lost;
sed nan allocatur ; for it is a Hedged expressly that he was
the plaintiffs servant at the time he was lodged in the inn;
and moreover it is not material whether he was his servant
or not ; for if it was his friend by whom the party sent the
money, and he is robbed in the inn, the true owner shall
have the action. Per totatn curiam. And judgment gives
accordingly.
(2) The servant may sustain an
action against tbe innkeeper, as
well as the master. Poph. 179.
Drape v. Theyar. Latch 126. Noy
79. 8. C. A servant, who is rob-
bed,may maintain an action against
the hundred ; Com. Rep. 627. The
King v. Manning* 4 Mod. 808.
Combs v. Hundred of Bradley. 2
Salk. 618. Holt 87. Comb. 268. 12
Mod. 64. S. C. Or the master.
ibid. So the servant or master
may maintain an appeal of robbe-
ry. 18 Co. 69. Heyion <$* Smith's
case. Poph. ubi sup. When tbe
general property is in one, and the
special property in another, either
party may have an action against
a wrongdoer. But there can be
but one satisfaction ; and a recov-
ery by one will be a bar to an ac-
tion by the other, except for spe-
cial damage. 13 Co. ubi sup. 8 Yin.
Abr. 22. 1 Bulst. 69. Flewettin v.
Rave. 2 Rol. Abr. 669. 1 N. Hamp.
Rep. 189. Chesley v. St. Clair.
See further, as to the rights and
remedies of those who have a spe-
cial property ; 2 Saund. 47. n. 2
East's C. L. 37*. l Barnew. & Aid.
09. Booth v. Wilson* 1 N. Hamp.
Rep. 289. Poole v. Symonds. Jere-
my on Carriers 125. and the cases
there cited.
[163]
Alban vs. Brounsall*
Ib prescrib-
ing for a
way,the par-
ty most not
use the word
* 4 passage. "
He must
•bow a quo
loco ad quem
locum tbe
way is, and
what man-
lier of way it
is.
1 Brownl. 215. S. C.
THAT the def. 20 Febr. an. the plaintiff's close call-
ed Sandey-beath at Sandey broke and entered, and spoiled
his grass, and 100 conies ibidem tunc interfecit, took and
carried away : Necnon that the defendant the same day
the plaintiff's free warren at Sandey aforesaid, &e. enter-
ed and ehased without licence, and fifty conies killed, took
and carried away, to his damage, &c. The defendant to
all the trespass prceter breaking and entering the close call-
ed Sandey-heatn, and treading the grass, pleaded non cut.
and upon that issue was joined; and as to breaking the
close, &c. the plaintiff ought not to have his action ; for he
said, that W. lord Russel and Eliz. his wife fuerunt <$*
adhuc sunt seized in fee in right of Eliz. in quadam pecia
bruerce continen. 10 acras in Sandey, contigue adjacen. Sf
undique sept to the place called Sandey-heaf h, and that
they and all those whose estate they have in the said piece
Mich. 7 Jac.
of heath, &c. have had and used to have pr* se Sfftrma-
His suis dictce pedes bruerce, $c. S[ pro servient suis passa-
gium usque eandem peciam bruera Sf ab eadem pecia, in, per
Sf trans the said close called Sandey-heath in quo, &c. all
times of the year at their pleasure, ad capiendum Sf percijh
iendum the profits ejusdem pecia bruera. And the defend-
ant farther said, that Ions Wore the trespass, &c. many
conies in the said piece of heath were wandering, and sev-
eral cony-holes ibidem fuerunt effossa, S[ in eisaem antris
effossis dicti cuniculi habitare gaudent, the same piece of
heath eodem tempore quo, etc, herbam ibidem crescen. depas»
cen.fuerwnt, and the defendant as servant to the lord Rus-
sel, and by his command, tempore, quo. etc. in 9 peret trans
the said close tit quo, etc. versus et usque ad prcedictam pe*
dam bruerce pedibus ambulando itineravit ad venandum et
capiendum prcsdictos cuniculos in prcedicta pecia bruew, etc*
tunc ibidem errantes et depascentes, prout ei bene licmt, etc
Qua* quidem ambulatio in, per et trans clausum prvdictum
in quo, etc. pro causa prcedicta est eadem clausi fr actio et in-
tratio, etc. of which the plaintiff complains ; and avers that
the place in whieh the defendant ex causa prod, ambulan*
do itineravit in Sandey heath prosdicto in quo, etc. was pro-
pinquius passagium, quo ipse utipotuit usque prcedictam pe~
eiam bruerce continen. 10 acras. Upon which the plaintiff
demurred : And per curiam the bar is not good $ for pas$a*
E'um is properly a passage'over the water, and not over
nd, and here the defendant ought to have prescribed in
the way and not in the passage, for he ought to observe
the usqal words, and those which are known in the law, as
a prescription and usage for a way and not for a passage. [ 164 J
Quod vide 32 Ass. $8. et 11 H. 4. 82. ft. 2. The prescrip-
tion is not good, because it is not shewn a quo loco ad quern 1 And. 234,
locum the passage or way is, and although a way may be Jenk. 142.
in gross, yet it ought to be bounded and circumscribed to
some certain place, prcesertim when it appears to lie in N
usage from time whereof, &e. for it ought to be in loco cer-
to, and not in one place hodie, and in another place eras,
but constant and perpetual in one place.(l) Quod nota. 3,
The bar is not good, iiecause it is not shewn, what manner
of passage it is, whether on foot, or horse, or cart-way ; so
that it is in the whole incertain.(2) And judgment giyeq
accordingly,
(1) In pleading a public high- dinS[aL Hob. 190. Gogle's case.
way, it is not necessary to state 2 Chit. PI. 958. n. 60 in an in-
either the terminus a quo or the dictment for a nuisance in a high-
terminus ad quern ; but where it is way, it is not necessary to set forth
a private way, it is necessary to the termini. 10 Mob:. 882. The
state the termini, because private King v. Hammond. lStra. 44 : S.
ways are given for particular pur-
poses, and the pleading must shew
that they are used for those pur-
poses. 1 Q. B. 809. Rouse v. Bar- (2) 1 Freein, 03. Lister v. King,
C. Andr. 137. The King v. Hadx ,
dock. 3 Selw. N. P. 1129.£.&7<2>£J/
Mich, 7 Jac,
8. P. 80 an indictment for not re- verdict, a war shall be intended a
pairing a bridge was quashed, be- general way tor all purposes. Con*
cause it did not shew whether it Rep. 114. Warner v. Green. Rep*
was a cart-bridge, or a horse- Temp. Hardw. 316. The King v.
bridge, or a foot-bridge, or what Inhabitant of Hatfield* e East f .
other passage was over it. Sty. 108. n. 8. C
The King v. Spiller. But after
Brand vs. Lisley.
What shall THE plaintiff declared, that whereas one Williams wa*
be a good indebted to him in loot and for the satisfaction of that
tion M> f '- <,ebt delivered to the defendant sundry goods in speeie, a-
nfa a pro- mouot j D g to t |, 6 YB \ nt of the debt, to satisfy the plaintiff the
said 100*. and whereas the plaintiff came to the defendant,
and required him to satisfy the said loot, with the goods
in his hands, the defendant in consideration the plaintiff
would forbear him for a certain time, assumed and promts-
1 Ler. 222. ed by such a day to pay and satisfy the debt. The plain-
1 Sid. 337. tiff alledged in facto, that he did forbear the defendant ac-
cordingly, yet he had not paid the loot, although such a
day required, &c. and upon nan assumpsit pleaoed, it was
found ior the plaintiff, and shewn in arrest of judgment,
* that there is no consideration on the part of the defendant ;
for by the delivery of the roods by Williams to him, he
had no interest in the goods nor profit by them, and so no
benefit at all. But it was adjudged for the plaintiff; for
by the delivery of the goods to the defendant to satisfy the
plaintiff the loot, the plaintiff had an interest and proper-
ty in the roods, and then by the plaintiff's forbearance of
the defendant for a time, the goods being due to the plain-
tiff immediately, the defendant had a benefit, and quid pro
quo. Yelverton of* counsel with the defendant.(l)
(l) See ante. 4. c. n. 3.
Saunders vs. Cottington.
1 Brownl. 144. S. C.
I V JCC<m tb e t EJECTMENT of two messuages; but the biU on the
plea'and re- *' e was on * T ** e uno me8SUa S^° * an ^ the defendant by his
cord of nisi paper-book pleaded non cut. to two messuages ; and the
prius were of roll in court, and the record of nisi prius were both of two
two messua- messuages ; and there was a verdict for the plaintiff, 4nd
ge«, but the judgment accordingly ; now after error brought by the def.
was of o ftnd De *° re ^ e record removed, it was moved that the bill
*r l°60i ne on *' ie **' e ""S^t be amended ^nd made two messuages;
only the bill an< * Decause t° e de& pleaded to two messuages in his pa-
was ' amend- P er ? a °d the record at nisi prius and the roll in court were
ed after ver- accordingly, it was resolved per totam curiam, that the
diet. bill on the file should be amended and made two mestuag-
Mich. 7 Jac
es ; for the bill which speaks de imomessmgio only can-
not be tbe ground of all the proceedings after ; bnt it is as
if no bill at all had been filed, and that shall be supplied,
as it has been sapius in experience, before tbe record re-
moved. Quod nota. Yelverton of edunsel with the plain*
tiff:
Freiston vs. Shellito.
MR. SHELITO of Grays-Inn, and seven others, were An indict-
indicted for forcible entry into a cottage and croft in an °? e ?\°Vw e
hamlet of heath in the county of York, in the West-Riding J a £; . a 8 f ";
com. prwi. that they manuforti entered on the possession c fbi e entry,
of Anne Binnes, farmer of Richard Freiston, and disseised mutt aver
R. Freiston, and sic dissesitum him extraten. till the day of ouster of the
the inquisition. And Yelverton moved, that the indict- frrmer or
ment was insufficient, because they have not found that j® r ™ntioned
Anne Binnes the farmer was amoved and expelled, and averment
that is the force of the whole matter; for the possession of f an entry
the farmer or termor is the possession of the reversioner, od his posses*
and without ousting the lessee there can be no disseisin to mod and dis-
him who has the freehold. Quod f nit concessumpertotam * ei8il1 ? f tbe
curiam, and the indictment was discharged : But if the in- jJ^T'suffi-
dietment had not expressed Anne Binnes to be farmer, bnt cieDt#
generally the cottage, &c. to be in her occupation, then by
Williams justice, the indictment which found the disseisin
only had been good, because no title is found in any other
but in him who is found to be disseised ; but finding the
woman to be farmer, that is an estate known and certain,
and such farmer mast be ejected, or else he who has the
freehold cannot be disseised, Quod nota. Per totayn cu-
riam»
Draper vs. Fulkes.
A MAN brought an action on the case on trover a- In trover a*
gainst husband and wife, and declared that he was possess- g'inst nns*
ed of several goods in specie, till such a day he lost them, ^• Dd * wifeT
which came to the possession of both the defendants, and gJ ® n JjJjJ^ ^
they converted them, to his damage, &e. and on rion cut. | a ^ to the
pleaded, it was found for the plaintiff, and judgment given charge of
in the Common Pleas, and affirmed in the King's Bench both.
on a writ of error. Yet an exception was taken to the
declaration, because the conversion is laid to the charge of
the wife as well as to the charge of the husband, and a
feme covert cannot convert goods, but it shall be said the [ 166
conversion of the husband only, for in regard she can have
no property, but the whole is in the husband, therefore the
conversion shall be said the act of the husband only. To
whieh Yelverton answered, that this action is not ground-
ed on any property supposed to be in the defendants, but on
[166a J
Mich. 7 Jac
the possession only, and the point of the action is the con-
version, which is a tort with which a feme covert may be
well charged, as well as she may be charged with a tres-
pass or disseisin committed. And if a feme covert takes
my sheep and eats them, or other goods and converts them,
I may well have this action against husband and wife, and
suppose the conversion in the wife only, viz. the tort(l)
Bui husband and wife cannot have an action on trover, and
suppose the possession in them both, for the law will trans-
fer in point of ownership the whole interest to the husband,
as 91 E. 4. 4. is. Quod fait concetsum per totam curiam.
(1) In Baron & Feme 870. the
law of this case is questioned, and
Berry Sf ux. v. Atays, Cro. Jac.
601. ts cited as having overruled
it. But there is no doubt, either
upon principle or authority, that
the decision in the text was cor-
rectly made, i Rol. Abr. 6. Latch
126. Newman v. Cheney. Noy 79.
S. C. Esp. Dig. 687. The case of
Berry & ua% v. JWrys merely de-
cides that in trover against hus-
band aud wife, it is a fatal defect,
even after verdict, if the declara-
tion alledge that they converted
the goods to their own use— -as a
wife cannot in law convert to her
own use. And so is the establish-
ed general rule. 2 Saund. 47. *. n.
and the eases there cited. Sty. 115.
126. CfoUop v. Symson. l Vent 12.
24. 33. Anon* Bingham on Inf. &
Cov. 222. There are eases, how-
ever, to the contrary. In Mirshe's.
case, 1 Leon. 812, where goods
came to the wife alone, and both
converted them, the declaration,
££^#£?2which alledged I hat they convert-
ed to their use, was held good. In
Baldwin v. Martin, O w. 48. a de-
claration was held good, which al-
ledged the trover by the wife, and
the conversion by both, to her use.
See also March 60. Hodges 8{
Simpson's case. W. Jon. 448. S. C.
March 82. pi. 184.
In trover brought by husband &
wife, if the declaration alledge the
conversion to be to their damage,
it is bad after verdict. 1 Salk. 114.
Nelthrop S[ux. v. Anderson.
In 2 Rich. Pract. C. P. edit.
162. it is said, if a* feme before
marriage converts goods, or after
marriage without her husband, the
action lies against both; and in
the former case, the conversion
must be laid to her own use, un-
less the goods are in existence, and
the husband refuses to give them
up $ in which case the conversion
may be laid to their own use \ and
in tbe latter case, the conversion
must be laid to the use of the hus-
band only. 2 Saund. ubi sup. If
the conversion be the joint act of
the husband and wife, it seems that
the aetion should be brought a-
Stinst him alone, ibid. Com. Dig.
aron & Feme. Y. See £ Rich.
Pract. C. P. 7th edit. 04. 00.
In trespass against husband and
wife for entering a house, taking
goods and converting them to their
own use, it was held to be good af-
ter verdict ; for the conversion is
not the gist of the action, and it
shall not be intended that damages
were given for conversion to the
wife's use. Andr. 240. Smalley v.
Ker/oot 8f al. 2 Stra. 1494. S. C.
So m an action for a devastavit of
a feme executrix. 2 Vent. 40. Anon,
Mich* 7 Jac.
Anonymous.
1 Brownl. 145. S. C.
THE plaintiff declared in ejectment on a lease of an Where in e-
house, ten acres of land, 20 acras prati, 30 pastures, by the jectment in
name unius messuagiij 10 act. prati^ be it wore or less : a *£ ™
And on non cut. pleaded had a verdict, but nil capiat per destroys'tee
billam was entered ; for on the matter disclosed by the quantity in
plaintiff himself in the declaration, he eannot have his ex- the declare-
ecntion of the quantity found by the verdict $ for in the tioo.
lease there are but ten acres demised, and these words
(more or less) cannot in judgment of the law extend to thir- £*• H^ 13
ty or forty acres, for it is impossible by common intend- ^™* ^ *
ment, and the rather because the land demanded by the
declaration is of anoiher nature than that which is men-
tioned in the per nomen; for that goes only to meadow,
and the declaration to arable and pasture. Quod nota.
Per curiam.
Tr ought on vs. Googe.
1 Brownl. 217. S. C.
TRESPASS for entering into his close called Wild- Of pleading
marsh, and five loads of hay there mesauit et defalcavit to iQ trespass
his damage, &c. the defendant said, quod clausum pradic- ( l uare f c !*^[
turn contin. 12 acr.^ whereof long before the trespass, et ™" J2J*
tempore quo, Sfc. the mayor &e. of London were seised in me nt— tra-
fee, and so seised demised to the defendant lor years be- verse, Ac.
fore the trespass supposed, by virtue whereof he entered,
till the plaintiff claiming by deed from the mayor, &c. for
life, where nothing passed, entered, and the defendant tem-
pore quo, &c. re-entered, as he well might, &c. The plain-
tiff replied, that the close in which the trespass is suppos-
ed contains an acre and three roods, and abutted it east,
west, north, and south, and one of the abuttals was on the [ 157 ]
twelve acres mentioned in the bar ; and concluded that it
is aliud quam the close mentioned in the bar containing
twelve acres. Upon which the defendant demurred ; and
as it seemed to the court on the first opening of the mat-
ter, the replication is not good ; because it does not an-
swer to the title supposed by the bar, for when the plain-
tiff in his declaration gives the place a name certain (as
here Wildmarsh,) and the defendant by his plea in bar
agrees to the place ; as here, viz. quod clausum pnedictum
(ia est Wildmarsh) is the inheritance of the mayor, &c.
and he, as lessee for years to them, makes title to it, the
Slaintiff ought to answer the title or avoid it, which he
oes not by the replication ; for the plaintiff thereby en-
deavours to assign a new place, which cannot be, when
they are before agreed of the place : And therefore he
ought to have pleaded, that there were two closes called
Mich. 7 Jac.
Wildmarsh, the one containing twelve acres, &e. as the*
defendant had alledged, the other containing one aere and
three roods, whereof the plaintiff was seised, and that the
close, where the plaintiff supposed the trespass, was in the
elose called Wildmarsh containing one aere and three
roods- quod note. And vide 21 H. 4. and several other
books, whieh make a quaere of this pleading: And curia
advUare vult.
Barwick vs. Foster.
1 Brown). 103. Cro, Jac. 227, 233. 2 Brownl. 220.
1 Bulst. 1. S. C.
If rent be re- DEBT for rent; the case was such : The plaintiff de-
served half- mised certain land to the defendant at Mich, 1 Jac. for five
yearly dur- years, yielding rent at oor Lady-day and Michaelmas year-
jog the term, jy ? or w ithin ten days after; and for the rent arrear at the
cbaelmai £ * Michaelmas the plaintiff declared, as for rent due at
Lady-day, or tne * east °t ® t# Michael. And prima facie it seemed to
within ten the whole court, except Croke Justice, that the action did
days after not lie, but the rent ior the last quarter is gone ; for it is
each feast, k not due at Michaelmas as the plaintiff has declared, for by
^^Titt" own 8new * n S i* " payable, and reserved at Michael-
^chaehnas ma *» or w * tn * n fen days after, so that although the lessee
the rent snail mav P av '* at Michael mas -day, yet it is not any debt that
be then due, lies in demand by action till the ten days passed, and- the
before the reservation, being the act of the lessor, shall be construed
e * pirat j? n of strongly against himself ; so that forasmuch as the end of
the ten days, tne term ig at Michaelmas, and before the ten days, (till
Pre. Ch.556. wn * cn ^ me tne rent * 8 not due, ann * at tnat time the term
Ld. Raym! " ended) therefore the lessor shall lose the rent; as if the
819. 896. lessor died the next day after Michaelmas-day, the execu-
tor should not have the rent, but the heir by descent as inci-
dent to the reversion ; and if the lessee had paid the rent
to the lessor on Michaelmas-day, and had died before the
ten days, his heir in ward to the king, the kins should
f 168 ] nave lt again ; for it ought not of right to be paid till the
ten days, like to 44 £. 3. 3. b. But this case beinginoved
Term. Hill, after, Fleming Chief Justice, Fenner and Yel-
vei ton mutata otrinione held strongly, that the lessor should
have the rent, for it is reserved yearly, and the ten days
added shall be expounded to give liberty to the lessee with-
10 Co. 127. * n t° e term *° r D ' 8 ease to P rotract payment. But because
b. 129. b. * t Qe ten days after the last Michaelmas are out of the term,
rather than the lessor shall lose the rent yearly reserv-
ed, the law will rejeet the last ten days. Quod nota. A
good reason.
Mich. 7 Jac
[168 a]
Brenley vs. Todd.
Cro. Jac. 228. Noy 135. 9. C,
THE plaintiff declared, that in consideration the plain- On a prom-
tiff at the defendant's request would take to wife J. S. the ise to pay so
defendant assumed to pay the plaintiff 00/. on demand j mucb . if * he
the plaintiff shewed in facto, that he, trusting to the da- ^JjJj^jL.
fendant's promise, did marry J. S. such a day, yet the de- such a w ^
fendant had not paid the SOL although he was requested man,the pro-
such a day, to his damage, &c. And on non assumpsit missee need
pleaded, it was found for the plaintiff, and alledged in ar- not give no-
rest of judgment, that the plaintiff ought to give the de- t,ce . of * he
fendant notiee of the marriage, because the. defendant is a fo" hebrin«
stranger to it by presumption, and caonot have notice, his action.
But it was adjudged for the plaintiff; and that notiee was
not necessary, for the defendant has bound himself by his
promise as strongly as by his bond ; and moreover the no-
tice is no part of the promise, and therefore need not be al-
ledged : And it was never seen, that notice was inserted
in the declaration, for the defendant ought to take notice
at his peril. And so it was adjudged between Warlejr and
Hodges T. 44. El. Rot. 338. and the ease of Street and
Wheeler now lately adjudged to the Contrary was denied
per tot. cur. ; for if a man promises on a good consideration
to pay J, S. 10/. when J. D. shall come to Pauls, he must
do it at his peril, for it is intended that he has power over
J. D. either not to come at all, or not without his privi-
ty.(l) Quod nota.
(1) The rule as to notiee, when Miter when the extent of the eon-
it is not expressly provided for in tract is to be ascertained by facts
the contract, seems to be correctly not particularly within the knowl-
. stated by Richardson C. J. in the edge of the promissee— or when
ease of Dix v. Flanders, lN.Hamp. the time of performance is to de-
Rep. 246. thus— -when the extent pend on some collateral act of the
of the contract is not precisely promissor, or of a stranger. See
known, but is to depend upon facts these principles illustrated by eas-
more particularly within the knowl- es cited in Com. Dig. Pleader. C.
edge of the promissee than of the 73. 75. 1 Chit. PL 330. Lawes PI.
promissor— or when the time of Assump. e. vii. Doct. Plae, Tit. A-
performance is to be direetly de- verment. § 6. Ante 121. Ashe r.
termined by the promissee — notice Doughty. 8 John. Rep. 207. Boot
must be given to the promissor, & v. Franklin.
it must be averred and proved.
Anonymous.
1 Browol. 107. Cro. Jac. 229. S. C.
IT was adjudged per tot. cur. where an executor is f h n al f "t pay
plaintiff for a thing touching the will, and is nonsuited, or C0B tg b a
81
Mich. 7 Jac.
nooiuit, or a verdict passes Against him, that he shall not pay costs
diet, in a on tne ttcw f tatufe 4 Jac. for the statute ought to have a
' to°wlu\ rea8ona ^' c intendment, and no default can be presumed in
Saycr oo another, which he cannot have perfect notice of, and so it
Cotti. c. 13. was said to be resolved and adjudged now lately bv all the
[ 169 ] justices of the Common Pleas. Quod nota. A settled judg-
ment bv both courts contrary to some few precedents,
which have been in the King's Bench to the contrary.
4(nod nota*
Hil. 7 Jac.
Molineux vs. Molineux.
1 Browl. 106. Cro. Jac. 236. S. C.
U the court IN debt in the Common Pleas against Molineux on a
give day be- bond as heir to his father, the defendant there pleaded H-
yond the en- ^ ns ^ fayxnt exeept twenty acres in D. in such a county.
it"i? a dU- The plaintiff replied, that the defendant had more by des-
continuance eent ln &• yiz * 80 roanj acres. And upon that they were at
that iB not issue, and it was found for the defendant, that he had noth-
aidedby the ing by descent in S. Wherefore the plaintiff recovered and
statute 18 El. na 3 judgment to have execution of the twenty acres in
the 1 udmeni Dalc : ^P on which J ud S menl tne defendant in the Common
wa8 U *giren P' eas brought error $ and assigned for error a diseontina-
upon a ver- *ncc in the record of the plea a termino Paschce usque ad
diet. term. Mich, after. And whether it was aided by the stat-
ute 18 Eliz. because it was after verdict, was the question?
Stra. 136, And it was adjudged that it is out of the statute, and that
c* 9 "j ^11 ** * 8 error » Deeause tne judgment was not founded on the
Cr EL 339 verc ^ ct > ^ ut on ^J on tD -e defendant's confession of assets,
lFreem.J60. and tne verdict here was to no purpose, but made the de-
' fendant's confession more strong; so the statute 18 Eliz.
is to be intended where the trial by verdict is the means
and cause of the judgment. Quod nota. Wherefore the
judgment was reversed. The law seems the same, if the
plaintiff brings debt of 40/. and declares for 20l. on bill,
and 20/. on mutuatus est ; and on non sum informatus the
defendant as to the mutuatus is condemned, and they are
at issue for the 20l. on the bill, which passes likewise for
the plaintiff, whereby he has judgment to recover the 40/.
demanded, and the damages assessed by the jury, necnon
for costs so much 5 so that the judgment for the costs is in-
tire : In this case, if it be discontinued on the roll, it seems
the whole shall be reversed, notwithstanding the verdict,
because the verdict alone is not the cause of the judgment,
but the non sum informatus also, and the costs intirely
assessed for both, tfueve this.
Hil. 7 Jac.
Goddard vs. Thorlton. f iro J
WHEREAS the plaintiff 2 Novembr. anno 6. apud Lon- A fact which
don 9 etc. in dampno suo, viz. in shopa sua per The. flugon avoids a title
his servant, three green fish, being in the shop damage- should be
feasant, caused to be taken, , and would have impounded p ™™|y 6 ££d
them, the defendant the same day reseued them from the not by way
servant, and took them away, to his damage, &o. The de~ of circum-
fendant said, that before the trespass, &c. H. Offley was stance^
seised of the shop in fee, and so seised, 16 Mail anno so
Eliz. demised it to Sanders, &c. and derived an interest to
himself under that lease, giving eolour to the plaintiff unr
der H. Offley, and so justified, &c. The plaintiff replied,
that before H. Offley had any thing, T. B. was seised of
the shop in fee, and 7 E. 6. devised it to Tho. his son in
tail, the remainder to Jo. in fee, and died. That Tho.
S deed inrolled in the Hustings bargained and sold it to
iz. in fee, who entered ; Jo. died without issue, whereby
his remainder in fee descended to Tho. ; Eliz. devised the
shop to Tho. Offley and R. Offley in fee, and died seised,
they entered and were seised in fee ; Tho. died seised of
the remainder in fee without issue, whereby the shop, pro-
testdndo descended to R. Goddard as eousin and heir ; Tho.
Offley, and R. Offley died, after which H. Offley named
in the bar entered, and so intruded himself into the shop,
and by such entry and intrusion was therefore seised in fee ;
and he so seised, R. Goddard 2 Octobr. 29 Eliz. died,
whereby the shop, protestando, descended to W. Goddard
as eousin and heir $ W. Goddard died without issue, where-
by it descended to Nicholas the plaintiff as eousin and heir,
and afterwards 16 Maii anno 80 Eliz. H. Offley demised,
&e. prout in the bar, and the plaintiff entered as he well
might, &e. The defendant, ut prius, by way of rejoinder
said, that H. Offley was seised of the shop in fee, and de-
mised, ut supra, in the bar, absque hoc quod H. Offley in
shopam pram, iniravit, et se sic intrusit modo et forma etc.
And thereupon the plaintiff demurred in law, because the
traverse was not good ; for the intrusion, being the means
to avoid the title of H. Offley, ought to be traversed ex-
pressly, and not by way of circumstance ; as to say, absque
hoc, quod intrusit, for that had been a full answer ; but it
is not so, to say, absque hoc, quod H. Offley intravit et sic
se intrusit. To which Yelverton being of counsel with the
def. answered, that, as this case is, it is not material wheth-
er the traverse be good or not ; for the replication is vic-
ious, and the title alledged in the bar not answered ; for
the def. alledging a seisin in fee in H. Offley, and a title
under that, the title alledged in H. Offley ought to be avoid-
ed directly, anfl it is only by supposal of an intrusion in H. f *?* ]
Offley, which cannot be by law on an estate of inheritance.
And R. Offley and Thomas Offley by the plaintiff's own
shewing had fee»simple 9 so that no intrusion could be on an,
Hi!. 7 Jac
[ 171 a ] •
* 1 loit. f77. estate in fee-simple ; but in propriety of speech in law* in-
F.N. B. 163. trillion it only alter the death of tenant for life, and an en-
Fleta, Lib.4. ute of freehold ended ; then if the title alledged in H. Of-
c * fley is not avoided, but only by alledging his entry by way
of intrusion, and by law no intrusion ean be, then the bar is
unanswered ; so the plaintiff eannot have judgmental) but
the defendant shall be acquitted of the trespass. Quodfk-
it concessit!* per totam curiam. And nil capiat per billenm
entered. Quod ncia bene ; and that the traverse in the re-
joinder was really insufficient.
(l) That a traverse ought to be mentative, see Com. Dig. Pleader,
by express words, and not argu- 6. 1.
Dalby vs. Cook.
Cro. Jac. 234. 1 Boht. 16. 8. C.
To aiiump- THAT whereas the defendant accounted with the plain-
rit on an in- tiff 1 Martii anno 6 Jac. touching several sums of money
"T 1 TS" dae from him t0 thc P ,aratiff > uibf was found in arrears 6£.
defendant * * w ^onsideratione vnde he promised to pay them to the plain-
may plead a tiff when he should be thereunto required, yet he had not
bond in pay- paid the %L although required such a day, to his damage
moot, and 2oL The defendant said that before 1 Martii anno 6. m
traverse the which the account and promise is supposed, the defendant
*!?* ™ ,et ; accounted with the plaintiff, and was found in arrear *L
count. * * C " and that a ftcrwardg, and before .1 Martii anno 6. viz. 5
Decembr. anno 41 Eliz- for the better security of die 67. the
Cowp. 47. defendant and another entered into a bond to the plaintiff
341. in 142. for payment of 71. at a day to come, which bond
the plaintiff accepted for security of the Ol absque Aoc, that
the defendant ante vd post the bond accounted with the
plaintiff, &e. and thereupon the plaintiff demurred. And
it was adjddged for the defendant, and that the traverse was
good ; for the consideration is not merely traversed in this
case $ for it was agreed, that is not traversable, bat here
the account which makes the consideration perfect is only
traversed; for the debt is confessed and avoided by the
satisfaction by the bond, and thereby the assumpsit is also
confessed. And here it is as much as if the defendant had
pleaded payment, and the plaintiff had demurred ; for this
action being to recover damages for the money not paid
according to promise, and the plaintiff by the demurrer
confessing payment, or other satisfaction by bond, as in this
case, it appears jiow to the court, that the plaintiff is not
grieved, nor has any cause of action. Quod nota. Yelver-
ton of counsel with the plaintiff.
Hil. 7 Jac.
Lee vs. Atkinson &, Brook. [ 172 ]
Cro. Jac. 236. 1 Brownl. 217. S. C.
THAT the defendants i Octbr.an. 6. Jac. at London as- Ifonehiresa
■aulted the plaintiff, viz. in such a parish and ward, and bo ? c . f °? a
beat, wounded, and evil treated him, ita quod de vita ejus J£ " n t( J m *
desperabatur, Sfc. to his damage £002. The defendants to particular
the force pleaded non cuL to the residue, that Atkinson place, the
tempore quo, &e. at Gravesend in Com. Kent was possessed owner can-
of a gelding, and so possessed, the plaintiff tempore quojkt. Mt ju'tifr
came to him to hire the gelding for four shillings lor two f etakin * v j,£
dajs, that the plaintiff might ride from Gravesend preed. j^JJ* ^^
usque Nettlested in the same county, tt abinde usque tunc j Q the time,
ad Gravesend within the two days ; wherefore the defen- tho' the hirer
dant for the consideration aforesaid, tempore quo 9 &e. lent go to a diffe-
the gelding to the plaintiff, who had it, and in recta linea rent P lao8 -
towards Nettlested by the space of a mile rode on the
gelding, quousque the plaintiff tempore gtio,cY.c. intending to
deeeive the defendant of the gelding, turned him out of the
way to Nettlested, and rode towards London ; wherefore
Atkinson in his own right, and Brook as his servant came
to the plaintiff, and at the same time quo <$"c. required the
plaintiff then riding an the gelding towards London, to de-
liver the' gelding, whieh he refused; wherefore Atkinson
in his own right, and Brook as his servant, and by his com-
mand tempore quo &e. to repossess hw of the gelding, laid
hands on the plaintiff, and took him off the gelding and
would have taken the gelding from the plaintiff; upon
whieh the plaintiff with force assaulted the defendants, et
manuf&rti detained the gelding ; wherefore (he defendants
defended the possession of the gelding against the plaintiff
prout Ucutt ; and said that the damage, if any the plaintiff
had, was from his own assault, and hi defence of the pos-
session of the gelding ; absque hoc, that the defendants sunt
cuL in London vel alibi e&tra Kent, &e. (1) and thereupon
the plaintiff demurred ; and it was adjudged for the plain-
tiff, for the battery is confessed, and to arise on ill usage
from the defendants, for hj their own bar it appears that
the plaintiff had hired the gelding for two days, and that
they within the two days disturbed him in the possession
of tie gelding, and thrust him off Ms hack, which is not
lawful, for the plaintiff had a «ood special property lor the
two days against all the world ; ana although the defend-
(l) Instead of traversing the ment is equivalent to a traverse,
time and place mentioned in the and another denial is superfluous,
declaration, the hetter way and l Baund. 298. n. 2. There are,
the present practice are to aver however, some modern cases, in
that the matter of justification is which the old form is adopted. See
the same trespass complained of, 8 D & E. 299. Gregory Sf ux. v.
without a traverse. Such aver- Hilt.
Hil. 7 Jac
ante pretend that the plaintiff misbehaved himself in ri-
ding to another plaee than was intended ; yet that is to be
punished by an aetien on the ease, bat not to seize the
gelding. (?) Quod note. Yelverton of eounsel with the
plaintiff.
(ft) 8ee 1 Rol. Rep. 1*8. Isack the taking was not felonious. 3
v. Clarke. 3 Mass. Rep. 104. Inst. 107. 1 Hale P. C. 004. 4 Bl.
fFheelock v. Wheelwright, ere. Com. 330. But it is now fully esw
If the bailee destroy the thing tablished, that if the jury are of
bailed, the bailor may have an ac- opinion that the bailee, at the time
tion of trespass. Dyer 131. b. of obtaining possession, intended
Mounteagle v. Countess of Worces- not to restore, but to steal and con-
fer. Ow. 62. Bloss ▼. Hotman. Or vert to his own use, he is guilty of
he may have trover, at his election, lareiny. 1 Leaeh 3d edit. 203.
Co. Lit 07. King v. Pear. 2 ib. 470. The King
It was formerly held (hat the ▼. aemple. Christian's note to 4
bailee was not guilty of lareiny, if Bl. Com. 230. 1 Bay 24^ The
he converted the goods bailed, an- State v. Self. See Mirror c. 1. seek
imo furandi ; on the ground that 10.
Starkey vs. Barton & Gore.
Cro. Jac. *34. S. C.
A release by THE ease was such ; Barton & Gore church-wardena
one church- of Aughton in the county of Lancaster, libelled before the
[ 173 ] ordinary the bishop of Chester, for a tax of 8s. 4d. made
warden, to a nno 2 Jac. by the parishioners against Starfcey the plain-
the injury of tiffj ia whie |, gtarkey had sentenee, upon which the church*
•bill noTbar wanJens appealed to the metropolitan of York, and pending
the suit of hii tne appeal, scit. ult. Deeembr. anna* Jac. Gore one of the
companion, plaintiffs in the appeal released to Starkey all actions,
suits and demands, See. and afterwards Barton in his own
name, and in the name of Gore sued to reverse the sentence
given at Chester, and prosecuted the appeal, whereupon
Starkey brought a prohibition, supposing that the release
had discharged the appeal ; upon which Barton appeared
and demurred in law ; and Gore, who made the release,
made default, wherefore judgment was given, that he
should not have a consultation. And now on argument of
the ease in court, all the judges were of opinion una voce,
that the prohibition did not lie on this suggestion of the
release $ and that for two reasons : 1. Because the tempo-
ral court had nothing to do with the principal matter, viz.
the tax laid for repairs, for that is merely spiritual, and to
be determined in the eonrt christian ; then the ground of
this suit belonging to the eourt christian, all things depen-
dant thereon shall be to them also ; and whether this re-
lease will bar both the church-wardens or not, this eourt
cannot judge, but it shall be determined there : As in the
like case, if a legacy be given to a feme covert, and the
HU. 7Jac.
husband releases, and afterwards he and his wife sue in .
the spiritual court for the legacy,* the party. sued shall
not hare a prohibition on the release of the husband, be-
cause the temporal judges cannot meddle with the legacy,
neither can they by consequence determine, whether the
release will extinguish it ; as the case was 29 Eliz. adjudg-
ed. £. The court held, that the suit for this tax is all in
behalf of the parish, fc the suit maintained at their charge,
and the costs recovered at the spiritual court shall go to
the parish in satisfaction of their expenses, and therefore
they conceived no difference between things in the posses-
sion of the church- wardens, and things in action, for which
they are forced to sue. And 13 H. 7. 10. is, if church-
wardens release, or give the goods of the church, it is noth-
ing worth : for the law gives them power to receive a thing
for the advantage of the church, but not for the disadvan-
tage ; and therefore although judgment is given against
Gore on his default, that he shall not have a consultation,
yet the court will give judgment generally, auod fiat con*
eidtatio. And judgment was entered accordingly. Yel-
verton of counsel with the plaintiff.
Priestley vs. White.
THE plaintiff declared, that sMaii an. 0. he was pos- in trover, a
sessed at Lond. in such a ward of several goods (and nam- special plea
ed them in specie) and them casually lost, which came to [ 174 ]
the hands of the defendant, who 1 Octobr. anno 6. knowing that A. gave.
them to be the plaintiff's goods converted them to his own ^ e ^^J?
use, to his damage, &c. The defendant pleaded in bar, ™ ^oloit
that before the plaintiff had any thing, one W. Dickenson themy & tbat
of New Malton in the county of York was possessed of the they came to
goods, as of his proper goods ; and such a day anno 4. for the hands of
a good consideration in law gave them to the defendant, B - who gave
whereby he was possessed ; the defendant 1 Mali anno 6. !l } em t .!j? ^J*
lost them, and 2 Mali the same year they came to the hands f Q *™ * ^ m
of W. Dickenson at London, who the same day gave them whereupon*
to the plaintiff, whereby he was possessed, and lost them they came a-
1 Oct. an. 6. and they came to the defendant's hands, and gain to the
he converted them to his own use as his proper goods, et P° a «e»«<>n of
hoc, etc. Upon this the plaintiff demurred 5 and it was J^o °v Vt-
adjudged for the plaintiff, for the bar is not good ; because *j ^"^ to "
it neither confesses, nor avoids, nor traverses the plaintiff's his own use
title to the goods alledged in the declaration, but only gives as his proper
the plaintiff colour of possession without right or property, £<>od« f -i 9
and that on an ill and defeasible gift made to him by Dick- ba <**
enson : In which a difference was taken between this ac-
tion and an action of trespass quaere vi et armis; for in
trespass colour of a possession given by the defendant to
the plaintiff is sufficient, because the declaration is general
on a supposal without any title set forth in certain, and
therefore it it sufficient to answer a supposal with a colour
[ 174 a]
HiL 7 Jac.
of possession only ; but bow in this action of trover, mod in
all other actions, where the plaintiff makes title to the
thing demanded, or to the thins; for which he demands da-
mages, there the defendant ought to make a better title to
himself, and to traverse the plaintiff's title, or otherwise to
confess and avoid it As * Jae. in the King's Bench, it
was adjudged in trover of goods, where the defendant made
title to them paramount, and that he delivered them to the
plaintiff to keep, whereby the plaintiff was 'possessed, and
that the defendant, as he well might, took them as his own
goods, and adjudged no plea % because it only answered th&
Caiotiflfs title with a colour of a possession^ 1) The same
w in the case supra. Quodfuit concessum per Mam cu-
riam, on argument Yelverton of eounsel with the plain-
tiff
(l) laDevoe v. Condon, 1 Keb.
300* Twisden J. says " there is no
plea in trover but a release and the
general issue ; every plea in justi-
eation being but tantamount." In
Hartford v. Jones, 2 Salk. 604. 1
Ld. Raym. 898. Lord Holt says he
never knew but one special plea
good in trover, except a release,
and that was in Yelv. 198. These
dicta, however, do not furnish a
correct rule. In l Chit PI. 490.
the doctrine is stated thus— "the
defendant is at liberty to plead spe-
cially any thing which admits the
jmperty in the plaintiff, and the
conversion, but Justifies the latter J 9
But the authorities there cited do
not warrant the position.
It is conceived that it is absurd
to speak of justifying a conversion.
Conversion, ex vi termini, imports
an unlawful act, which cannot be
justified any more than larciny or
murder. See post 194. Gomersall v.
Medgate. It is " the assuming the
property and right of disposing of
another's goods." per Lord Holt, 6
Mod. 212. Baldwin v. Cole. Holt
707. S. C. And it may be either
(l) by a wrongful taking; (2) or
by some other illegal assumption of
ownership, or by illegally using or
misusing; (8) or by a wrongful de-
tention of personal chattels l Chit
PI. 108.
The declaration in trover must
expressly aver that the defendant
converted the goods ; and thin word
has as definite and exclusive tech-
nical import as " burglariter 39 or
" murdravit" in an indictment.
No other phraseology, nor any
statement of facts, will properly
describe the tort complained of.
Whereas in the action of trespass,
for instance, the declaration, does
not expressly aver a trespass^ which
technically taken, can no more be
justified than a conversion) but
acts, which prima fronte shew a
trespass. Assault and battery, and
forcible breach and entry of an-
other's house or close, may be jus-
tified : But when justified in a plea,
the trespass is denied ; and if the
justification is found for the defend-
ant, the trespass is disproved.
The rule of pleading in trover
seems to be more correctly stated
in l Tidd's Pract. 098. thus—" the
defendant may plead specially any
thing, which, admitting the plain-
tiff had onee a cause of aetion,
goes to discharge it" Thus a re-
lease may be pleaded, as was al-
ways held; Lofft 823. Jinan, ac-
cord and satisfaction ; arbitrament
and award; former recovery for
the same conversion, either in tro-
ver or some other concurrent ac- .
tion. Yelv. er. Broome v. Wooton.
i Show. 146. Lechmare v. Toplady.
Skin. 48. 97. Foot v. Bastall. Pol-
Hil.
lexf. 634. T. Ray. 472. S. C. 2Ld.
Raym. ±217. Lamine v. DorrelL
So the statute of limitations may
be specially pleaded in trover. 1
Lutw. 99. tamper v. Towers* Sty.
178. Coles v. Sibsye. 7 Mod. 99.
Montague- v. Sandwich. 3 John.
Rep. 523. Meade v. M&rkle* Over-
ton's Rep. 19. JPiWte v. Edgman.
In Markham Sf PiWscase, 3 Leon.
29#. outlawry of the plaintiff was
pleaded after an imparlance, and
was held to be a good bar. These
two last instances, in which a spe-
cial plea in bar has been allowed,
eome fairly perhaps within the
spirit of the rule as stated by Mr.
Tidd, though not within the letter
of it.
On strict principles of pleading,
the defendant not only may, but
ought to plead specially all the a-
boveraentioned matters of dis-
charge, except perhaps that of a
former recovery in assumpsit.
These principles, however, have
been relaxed, and a broader line
taken in actions upon the case. In
these actions, it is held, in general,
♦that matters ex post facto, which
shew that the cause of action has
> been discharged, are good defences
under the general issue. It is
probably too late to recal these
cases to the strict principle.
Where the defendant sells the
plaintiff's goods wrongfully, the
plaintiff may wave the tort, and
bring assumpsit for the price ; and
in such case, Lord Holt says the
recovery may be given in evidence
on the general issue in trover ; be-
cause by bringing assumpsit, the
plaintiff affirms the- act or the de-
fendant in the sale to be lawful,
and consequently the sale of them
is no conversion; Lamine v. Dot*
veil, nbi sup.
• 32
7 Jac.
1 17* H
Pleas in justification are not on-
ly inconsistent with the admission
of a conversion, and therefore ab-
surd—but amount, as Twisden J.
justly says, to the general issue,
unless they are of the nature above
stated. The plaintiff must prove
his property, genera) or special; iii
the goods; possession, aetua} or
constructive ; and such an^inl^w^
ful disposition of them by thede*
feudant, as amounts to a technical
conversion. Any. evidence to re-
but this proof, in either particular,
may be given under the general
issue. Thus the bankruptcy of the
plaintiff before the supposed con-
version, may be given in evidence
on this issue, as his property vests
in his- assignees, by relation, from
the time of the ae£ of bankruptcy
committed ; and a special plea of
bankruptcy in such ease amounts
to the general issue. 7 D & E.
391. Webb v. Fox $ al. On these
principles, the specisd plea, post.
198, though' approved by Lord
Holt, was clearly bad. But in
former timed, {t was held that pleas
amounting . to the general issue
were not, to be demurred to ; for
they might be allowed at the dis-
cretion of the court, if they did not
lead to too great prolixity. Ex-
ception was to be taken to such
pleas by motion only. Cro. Eliz.
147. Ward v. Blurt. Hob. 127.
Warner v. Wainjsfora^Wineh 20.
J&yksworth v. Harrison. 1 Freem.
39. King v. Rotham. 2 Day 431.
Whittelsey v. Wolcott. This mivy
■account, in part, for the., numefaafe
speeial pleas in trover, amounting
to the general issue, which sqero to
have passed sub silentio.
Pasch- 8 Jac.
I 17* J , Johnson vs. Procter.
Cro. Clus. 809. Cro. Jac. 233. 1 BuUt. 3. 2 Browa). 212. 8. C.
ner^d* U**! A ^^ of 300 ^ the condition was to perform covenants,
covenants te- 5 nni *> articles and agreements in gueh an indenture, &c.
lating to the now the indenture recited, that whereat a lease had been
•tone matter made by the bishop of York to Johnson, the plain tiff in er-
sball be ex- ror, ana to one Vavisor of a mill, certain land, &e. and
pounded. that the whole survived to Johnson, as he supposed, now
Johnson granted the mill &e. and all his estate, title, in-
terest, &e. therein to Procter, and covenanted that Proeter
should enjoy it for any act done by him, &c. now Johnson
the defendant in the first suit pleaded, that the plaintiff
had enjoyed it, viz. the mill, and land, &e. for any aet done
by him, &e. The plaintiff replied that Vavisor, who was
the jjointenant with Johnson, in his life assigned his estate,
&c. in the mill and land, &e. to J. D. who entered and ex-
pelled him : Upon which the defendant in the Common
Pleas demurred and it was adjudged against him, and af-
firmed upon error ; For it is not like Noke's case. 4 Co. 80.
b. for there the grant was onee good for the whole, and be-
came bad by eviction after ; and therefore there the cove-
nant subsequent qualified the general covenant ; but here
the grant, according to the purport of it, was never good ;
for of the moiety Johnson had no power to grant, because
- it was granted before by Vavisor his companion ; and yet
he has in his conveyance to Procter expressly granted by
precise words the mill and land, and therefore the condi-
tion of the bond being to perform all grants &e. the grant
being defective at first, as to a moiety, which is the sub-
stance of the agreement of the parties, is not qualified by
the subsequent covenant. Per totam curiam. Quod nota.
Yelverton of counsel with the plaintiff in error, (l)
(1^ In what eases restrictive ground of the decision is, that the
words, added to some of the cov- word " grant" in the assignmenf
enants only, shall extend to all the amounted to a warranty of the ti-
eovenants in the deed, see Sudg. tie, and was not qualified by the
Vend. 870 to 886. Shep. Touch, ensuing particular covenant; be-
168. 2 Bos. & Pul. 13. Browning cause the grant was of the whole
v. Wright Sfal. & Mass. Rep. 214. estate, as appeared from the reei-
Sumner v. Williams Sf al. tal* and was defective from the first
Lord Eldon supposes the decis- as to a moiety — and the condition
ion in the text proceeded upon the of the bond was to perform all
ground that the grantor's recital, grants, &e. He further observes,
that he was interested in the whole that if the ease turned solely on
of the premises, amounted to a the recital, it might be thought
warranty. 2 Bos. & Pul. 2d. Mr. that a general recital, in the eon-
Sugden, however, remarks (very veyanee of the inheritance of an
justly it would seem) that the true estate, that the vendor is seized in
Pasch. 8 Jac.
fee, would amount to a general the title: a proposition which eer-
warranty, and would not be con- tainly cannot be supported. Sudg.
trolled by limited covenants for Vend. 881.
R. Rock vs. N. Rock.
Cro. Jac. 245. S. C.
WHEREAS the defendant 10 Febr. anno 1. at B. in the In assumpsit
county of York, in consideration that he tunc was indebted on a promise
to the plaintiff in 40/. for several sums antetunc lent by the j£ P^ £[
plaintiff to him, and for divers ware* before received, and cept j ii of
for certain sums of money at the instance of the defendant the plaintiff's
paid to J. Anyas for the debt of the defendant, he promised first journey
to pay 4*01. ante inceptionem of the plaintiff of his next toL.it is not
journey to the city oi London, and saith in facto, that he ■nfficfcnt to
on 23 Febr. anno 1. incepit iter suum towards the city of a r%Lg |° n
London, and came there the 28 Febr, in the same year, yet g J ch a 4
the defendant had not paid the 401. to his damage, &c. and he began his
upon non assumpsit pleaded, it was found for the plaintiff, journey to L.
And Yelverton shewed in arrest of judgment, that it does without a-
not appear by the declaration, that the journey began by yerring that
the plaintiff towards London 23 Febr. was the first and next * l * a * hli
journey after the promise, as it ought to be by the agree- JJ # J0urne * p
of both parties, and that the plaintiff ought to have averred '
in facto. Quod fait concessum per totam curiam ; for as the
defendant is bound by his promise, so likewise is the plain-
tiff bound to shew the precise consideration agreed, or of *
his nart also to be performed ; and the payment on the part
of the defendant commences on the plaintiff's first journey
to London, and not on the second or third ; and therefore
the plaintiff ought to alledge precisely that it was the
first journey or otherwise no breach appears to the court.
Quod nota. And nil capiat per billam entered, (i)
(l) This case seems to imp up was sufficient to maintain the ae*
fL settled rule of. pleading — viz. tion. See T. Ray. 61. Lawson v.
that what is apparent to the court, Witherington.
by necessary collection out of the If a promise is to be performed
record, need not be averred. Co. at a particular season, and it ap-
Lit 303. b. In Booth V. Johnson, pears to the court that the season
7 Mod* 14$. 2 Ld. Raym. 838. is past, it need not be expressly, a-
Lord Holt says this case " was a- verred. As where the defendant
gainst all reason, and if the very promised to deliver to the plaintiff
ease in terms were to be judged o- 20 quarters of barley the next seed
ver again, he would be of a eon- time, it was moved in arrest of
trary opinion to it." For if the judgment that the plaintiff ought
journey, mentioned in the declara- to have shewn in his declaration,
tion was the first which the plain- when the seed time was. Dodder-
tiff took after the promise, the ae- idge J. said—" if I promise to pay
tion was well brought; and if it you so much corn at harvest next—
was not the first, there most have if it appear that the harvest is
been a jourqey before, which also ended before the action brought, it
Pasch.
T ire a J
h good without shewing (he time
of the harvest ; for it is apparent
to the court that the harvest is past.
And here the action being brought
at Michaelmas, it sufficiently ap-
pears that, &c." Godb. 850. Tot-
nam Sf Hopkin's case. So in an
aetion npon a promise to pay the
E'ffadebt due from a third
, if the plaintiff would for-
> sue him—- the plaintiff a-
▼erred forbearance hitherto. It
•. was objected in arrest of judgment,
that the plaintiff had not alledged
in particular how Ions he had ior-
' borne. Hale C. B. said ?' it appears
•upon' the record how long time the
8 Jac.
plaintiff forbore, and that is as:
well as if it had been particularly
expressed." Hardr. ». Bamehurst
v. Cabbot 80 in Lilburn v. Hern,
Yelv. 211. though judgment was
reversed because in a writ of right,
where the demandant eounted on
his own possession, he did not aver
that he had taken the esplees with-
in thirty yean ; yet it was con-
ceded that if he had eounted on his
possession in the time of King
James, who was then on the throne,
it would have been good— for it
would have appeared judicially
that the kinghad not reigned thir-
ty years.
Trill. 8 Jac.
The statute
43 Eliz. ex-
tends as well
to voluntary
delivery of
money asses-
sed to the
poor, as to
distress and
sale of goods.
Where a sta-
tute gives
double dam-
ages, the ju-
ry shall as-
sess only tin-
Okfeley "t». Salter, &c.
Noy 137. 6. .C.
AFFIRMED upon error in the King's Bench, on the stat-
ute 43 Eliz. for the relief of the poor, although the statute
expresses by- mime but (sale and distress' of goods,) yet if
the plaintiff voluntarily delivers any money for which he
is assessed to the 'poor, and afterwards brings trespass of it
against the overseers, it is within the statute (l) for these
words (sale and distress) are put in the act only for exam-
ples, and the statute shall be construed largely, because it
tends to opus charitdtis, and trespass brought after such
voluntary delivery of the money is vexation, which the stat-
ute inteudeld to suppress. And it was likewise agreed &
adjudged jpbr curiam^ that damages in this action Tor the
defendants by reason of their vexation shall be assessed by
the jury, but shall be trtbled by the court,(2) and that the
single damages, and the ' court to
enhanceHhem according to tbe stat-
ute. Bro. Abr. Damages, pi. 70. 2
Inst. 416. 1 Wils. 126. Wynne v.
Mirfdleton.lMfiS*. Rep. 105. Lob-
dell v. New "Bedford. In Say er on
Damages, p. 244. it is said the ju-
ry may assess the statute damages ;
-and it would seem from some of
the moderft cases, that either the
Jpiry Or the court maty assess. Sav-
er's Rep. 214. Sennet v. Hart. 1
Gallis. 29. Cross v. United States.
*- (t) See 3 East 92. Mkiris $ al
v: u Banfvell $[ al.
' (2) By trie last section of the
statute 43 EHz. c. 2. on which this
action was brought, " after issue
trieti for the defendant, or nonsuit
of the plaintiff after appearance,
^hV defendant shall recover treble
damages by reason of his wrongful
veiation in that behalf."
It is generally Said that where a
statute gives a party double or
treble damages, the jury are to find
Trin. 8 Jac.
court may thereon give costs de incremmto ; for no^vidence gie damages,
for costs can properly be given to the jury, forasmuch as J* hic !i ^Jj
that depends on the usage nf the court, in which the suit is. J* thecourt
And according to this resolution was the case between Me-
niai *ad Bell, Trin. 44 Eliz. Rot. 51<*. B. R, YelvertW of
counsel with Salter, &c. for whom judgment was affirmed, [ 177.]
they being overseers for the poor in Ipswich. .
Rolls vs. Yate.
2 Brownl. 201. 1 Bulat. 25. S. C. 4 •
INDENTURE of covenants between two of the one ,f *• ?™T
part, and one Yate of the other part y and among other ^c.^that he
covenants one was, it re agreed between the parties, that W in/paj B.
•Yate shall enter into a bond to pay {tolls (by name, who a certain
-was one of the two of the one part) 100J fcy such a day, sum; B. &
"which was not paid; Rolls died, and Rolls the plaintiff 9* ""^.J * 11
took administration, and brought covenant against the said J? a b ,IHt tt
Yate for non-payment of the 16oJ. to RoHs in his life-time* ^difB. a die ;
And it was adjudged, that it did not lie ; for although the hig hdminis-
money was to be paid to Rolls, who is dead, yet he who trator can-
survives, and who is party to the indenture, ought to have ncrt sue, but
covenant $ for Rolls, and he who survives make, as to this C- the sur*
purpose, but one person. As if a bond is made to three to v " w>r •
pay money to one of them, all ought to join in the suit, for 3 M , 263
they are all as one obligee ; and if he who ought to have
the" money dies, the other two who survive must sue, al~ #
though they have no interest in the sum contained in the -
condition. The same law here, for the 1602. payable, to
Rolls in his life-time, being to be obtained by suit on this
indenture, none can have an action thereon but those whp
are parties during their lives, and after their death the ex-
ecutor or administrator of the survivor. Quod nota* Per
totam curiam. Yelverton of counsel with the plaintiff.(l)
(i) Where the legal interest of vor or survivors ; 1 East 497. An-
*wo or more covenantees is joint, derson v. Martindale. and while all
the action of covenant follows the the covenantees are ative,they must
nature of the interest, even though join in a suit upon it. 1 Sauna. 108«
the covenant is joint and several, Eccleston &ux. v^GUpsiiam, &n. 1.
or is for the benefit of one of the Thus where B. covenanted with
covenantees only, or of a third per- C. & D. and with E. & F. his wife,
son mentioned therein; and it is < who afterwards became the wife
subject to the rules of other joint of D.) and their assigns, and with
contracts. Thus a release by one each of them, that he (B.) at the
is a good discharge : 2 Inst. 673. time of executing the indenture,
and on the death of one, it survives was seized of a certain rectory ; an
- to the others, and the administra- action was brought by D. & F. his
tor of the deceased cannot main- wife for breach of this covenant :
tain an action upon it, but the ac- judgment for the plaintiffs was ra-
tion must be brought by the survi- versed on the ground that the oth-
Trin.
[177fl J
er covenantee ought to have joined
in the aetion. Co. 18. b. Btings-
by*s cage. 8 Leon. 160. 8. C. Bo
where A. & B. covenanted with C
& D. that A. ehoold pay to C.
•ixty pounds per annum during the
life of D j it was held that on the
death of C. the aetion survived to
D. and that C's administrator
could not maintain a suit on the
covenant-: The legal interest was
joint during the lives of both, and
on the death of one, it survived to
the other, though the covenant was
for the benefit only of the deceas-
ed, l East ubi sup. On the same
principle, where A. covenanted
with B. that C. should pat to D.
eight pounds yearly, and D. took
J. S. to husband, who released the
payment to A ; it was decided that
the release did not discharge A. tor
J. S. was a stranger to the cove-
nant, and had no legal right in it
8 Bulst. 20. Quick v. Ludburrow.
So where J. S. covenanted with
rector, wardens and vestry to pay
rent to the reetor or wardens ; it
was held that neither the reetor
nor wardens, nor both, could main-
tain a suit for the rent, but they
must both join with the vestry. 13
Mass. Rep. 400. Montague % al.
v. Smith. So where (he reversion
of lands demised to the defendant
was conveyed to A. and B. and the
heirs of B. in trust for A. and his
heirs ; it was decided that A. could
not maintain an aetion on the cov-
enant to repair, contained in the
lease, but that A. & B. must sue
jointly. 1 Bos. & Pul. 67. Scott v.
Godwin. See also 1 Lev. 230. Off-
ly v. Warde. 2 Lev. 56. Bolton v.
Lee. 1 N. Hamp. Rep. 49. How v.
How.
On the other hand, where the
"interest of two or more covenan-
tees is several, though the cove-
nant be joint, each of them may
bring an action for his particular
8 Jac.
damage. Bui. N. P. 107. 1 Saund.
104. 100. & n. 1. & 2. As if A.
demises Black-acre to B. and
White-aere to C. and covenants
with each of them that he is law-
ful owner of both acres ; the inter-
est is several, and each may have
his separate action for a breach of
the covenant Slingsby*s case, ubi
sup. See also 8 Mod. 166. Lilly v.
Hodges. 1 Stra. 008. S. C. 1 Bast
001. per Ld. Kenyon. 8 Mass. Rep.
462. Dunham v. GUlis. 2 Binney
143. 144. Phillips v. BonsalL
See these distinctions further il-
lustrated, Willes 2*8. Johnson v.
Wilson. 6 Yes. 604. Ex parte Peele.
Penn. Rep. 274. JPIntoshx. Long.
Bac. Abr. Covenant. D. 1 Chit
PI. 6. 7. 2 Selw. N. P. 402 to 406.
If a charter-party is expressed
to be made between certain parties,
as between A. and B. owners of a
ship, whereof C. is master, of the
one part, and D. and E. of the
other part, and purports to contain
covenants with C $ yet C. cannot
bring an aetion in . his name upon
the covenants expressed to be made
with him, nor give a release of
them, even though he seals and de-
livers the instrument. 2 Inst. 673.
Scudamore v. Vandenstene. But if
the charter-party is not expressed
to be made between parties, but runs .
thus—" this charter-party indent-
ed witnesseth, that C. master of
the ship W. with consent of A. &
B. the owners thereof, lets the ship
to freight to E. &F."—*nd the
instrument contains covenants by
E. & F. to and with A. & B ; in
this case A. & B. may bring an ac-
tion upon the covenants expressed
to be made with them ; although,
unless they seal the deed, they
cannot be sued upon it. 2 Lev. 74.
Cooker v. Child. See also 3 Lev.
138. Oilbey v. Copley. Abbott on
Shipp. Pt. 8. c 1. § 2. 3 Bos. 6q
Pol. 149. n. Ante 20. n.
TriD, 8 Jac.
Broxholme vs. Thorold.
1 Brown). 188. Cro. Jac. 238. S. C.
**
REPLEVIN for taking four oxen at Coringham in Com. H the title to
Lincoln, in a plaee called Do wgate Leyes £9 Sept. anno 6 c ° m f°? *! e
Jac. The defendant said, the place contained four acres P ,ea ° ed ,a
t» • *-»•■ i • ■ *•«««■ oar to &D a*
of pasture in Coringham magna, which was his freehold, yowry it
and justified damage-feasant. The plaintiff in bar of the must ' be
avowry said, that the place where, &c. lay in a place call- shown in m
ed Have-acre-quarter, parcel of a great common field call- what yill the *
ed Easfield in Coringham prcedict. Cumque the plaintiff ,and Mei *
prcedicto tempore quo, Sfc. et diu antea was seised in fee of
a messuage and fourteen acres of land, meadow and pas-
ture, with the appurtenances eidem messuagio spectan. $ and
that the plaintiff, and they whose estate he has in the ten-
ements have had common, &c. and so prescribed to have
common for himself, his farmers and tenants of the tene-
ments aforesaid in loco in quo, Sfc. pro omnibus averiis suis
eomrmnicalibus super tenementa pr<ed. cum pertinen. levan.
Sfc. tanquam ad tenementa prcedicta pertinen. And there-
upon issue was taken on the common ; and it was found
for the plaintiff, and alledged in arrest of judgment, quod [ 178 ]
non constat by the bar to the avowry, in what place the
messuage and land, to which the common belongs, lie, viz.
whether thev lie in Coringham, or in any other town or
county ; and that of necessity ought to be shown in certain,
because the venue ought to be from the place where the
house aud land lie, as well as from the place where the
land, in which the common is claimed, lies ; and therefore
must necessarily be shown in certain, and shall not be in- i
tended of necessity to be in Coringham where the common
is ; for common may be appurtenant or appendant to land
in another county, and then the trial shall be from both
counties. Quod nota. So judgment was stayed, and a re-
pleader awarded. Yelverton of counsel with the plaintiff.
Sir John Ratcliff vs. Davis.
Cro. Jac. 244. Noy 137. 1 BuUt. 29. S. C.
TROVER for an hatband set with diamonds; upon non u goods are
cul. the jury found, that the plaintiff was possessed of -the pawned, and
hatband, and pawned it to one Whitlock for 2bL but that no particular
no time of redemption was limited ; they found that the * ime ? f . re *
wife of Whitlock (the husband being sick) by the assent 3 m &™:
of the husband delivered the hatband to the defendant; no j. ma y re-
Whitlock died ; the plaintiff tendered the 25L to the wife deem at any
Jjeinc exeeutrix, who refused it ; and found that the plain- time during
tiff demanded it cf the defendant, who refused to deliver hit life, oot-
it, and converted it to his own use, et si, #c. And jndg- withstanding
Trio, 8 Jac.
the death of meat pro quer. ; for, per curiam, in ease of a pawn, he who
If the'Tw* Podges it h* B tiine t0 redeem it daring his life; for it is
nee deliver a condition solely knit by him, and to be performed by him,
the pledge to and the death of him to whom it was pawned is no imped-
a third per- iroent of the redemption ; but it is otherwise of the death
son; yet the of him who pawned it) for his exeentor cannot redeemf it,
*•??•* k"** for it is a condition personal, and being generally pawned
mB ," p be extends only to the person of him who pawned it ; it was
made to the likewise held, per curiam, that although the defendant had
pawnee, or the delivery of the hatband by Whitlock, yet the tender of
hit repreteo- the 251. ought to be to the executrix, and not to the defen-
sive if he dant, for the delivery makes bnt a bare custody of it ; and
AftSfoaw *' the delivery had ocen on a consideration, yet it does not
nor's deatb^ a,ter tfcc ea » e > for the defendant is not privy to the first
hii executors contract of the pawning, nor to the condition ; and there-
cannot re- fore it is not like a* mortgage, for there he who has inter-
deem. Qu. est ought to have the money ; but in ease of a pledge it is
but a special property in hini who takes it, and the general
property continues in the first owner. -Per Fleming chief
justice. Quod non fuit negatum. And all seemed to be
r - proved by tho books 13 R. 9. Pledges B. 31. & 22. E. 4u
I 179 J 10. & 16 H. 0. Barr. Fits, that if he who pawns goods be
attainted, the king by payment of the money may redeem
' them. And it was held; that instantly on the tender of 25L
and refusal of it, the property was entirely reduced to the
Elaintiff without claim : but per curiam theexeeutrix shall
ave debt for the 25l. against the plaintiff, for on the re-
Co Lit 208 den, P tio11 lt remains a duty, quod qumre, for mirummiki
and notes. ' forasmuch as there was no contract for the money between
the parties : it was likewise held by the chief justiee, et
non dedictum, that if the pawn oe*f a perishable nature 1 ,
as corn, oil, &c. and no time of redemption limited, and
the party stays till it is perished in nature and spoilt, for-
asmuch as there is no default in him who took the ^pledge,
he shall have debt for his money, and the other no remedy
for his pawn, for the law of this part hath dissolved the
contract; for things in their nature perishable cannot be
preserved. Quod nota bene. Yelverton of counsel with
the defendant(l)
(1) The decision of the points, fiisal by the defendant, after ten-
which arose out of the special ver- der to the exeentor, was a con ver-
dict in the text, is conformable to sion, and that the defendant had
the ancient law of pawns and to only the bare custody of the pawn,
all the subsequent decisions— viz. 2 Caines Cas. in Er. 206. CorteU
that the tender was well made to you v. Lansing* But the obiter
the executor; that the special dicta, whieh are ascribed to a ma-
property in the pledge, after the jority of the judges by Bulstrode,
tender and refusal, revested in the Noy and Yelverton, in their res-
Slaintiff; that the general proper- peetive reports of the case (con-
j had been constantly in him ; that trary to Croke's statement) are not
the pawnee's death did not destroy to be received as law.
the right of redemption : that re- In the learned Judgment given
*
rin.
in the case of Cortelyou v. Lan-
sing, ubi sap. the subject is fully
discussed. An abstract of the o-
pinion given by Mr. Justice Kent,
in that case, will illustrate a sub-
ject which was before involved in
doubt and difficulty.
There is a difference between a
mortgage of goods, and a pledge,
or pawn. A mortgage is an abso-
lute pledge, to become an absolute
interest, if not redeemed at a fix-
ed time ; and is, in certain cases,
valid without delivery. The le-
gal property passes, with a condi-
tion of a defeasance* A pledge or
pawn of goods is a deposit of them
as a security ; and delivery is es-
sential. The general property
does not pass, as it does in case of
a mortgage, but remains in the
pawnor. Dig. lib. 13. tit. 7. $ 9. 1
Hub., 29 1. § 10. Braeton 09. b. Bro.
Abr. Pledges 20. Pow. on Mortg.
3. 2 Ves. Jr. 378. Jones v. Smith.
The mortgage, and the pledge or
pawn of goods, have, however,
generally been confounded.
Glanville observes Lib. 10. c. 6.
that a loan is sometimes made on
the credit of a putting in pledge,and
the pledge may consist of chattels,
lands or rents. Sometimes pos-
session is immediately given of the
pledge, on receipt of the loan, and
sometimes it is not. Sometimes
the thing is pledged for a certain
period, and sometimes indefinitely.
When a thing is pledged for a defi-
nite period, it is either agreed that
if, at the tim+appointed, the debt-
or shall not redeem his pledge, it
shall then belone to the creditor,
So that he may dispose of it as his
own; or no such agreement is
made. In the former ease, the a-
greement must be adhered to ; in
the latter, the term having expired
without the debtor's discharging
the debt, the creditor may com-
Slain of him, and the debtor shall
e compelled to appear and an-
swer in court, by a writ (the form
33
8 Jac.
of which is given in c. 7.) thus-*-
" Command N. that justly and
without delay, he redeem such a
thing, which he has pledged to R.
for a hundred marks* for a term
which is past* as he says, and of
which he complains that he has
not redeemed it ; and unless he
does so, &c." In e. 8. he says, if
the debtor confess in court that he
pledged the thing in question for
the debt, he shall be commanded
at a reasonable* period to redeem
his pledge, and unless he comply,
liberty shall be given to the cred-
itor, from that time, to treat the
pledge as his own property, and do
whatever he chooses with it. If a
thing be pledged indefinitely, and
without any period being fixed, the
creditor may, at anytime he choos-
er, demand the debt. The debt
being discharged by the person
owing it, the creditor is bound to
restore to him the thing pledged
without any deterioration. See
Beanie's translation of Glanville
252 to 257. 1 Reeves Hist. 161—
163. This authority establishes
two points. 1st, That if the pledge
was not redeemed by the time stip-
ulated, it did not then become ab-
solute property in the hands of the
pawnee, but he was obliged to have
recourse to the aula regis, and to
sue out an origiaal writ, in order
to obtain authority to dispose of
the pledge. 2d, That if the pledge
was for an indefinite term,the cred-
itor might at any time eall upon
the debtor to redeem, by the same
process of demand. By what au-
thority the judges in the time of
James I. advanced a different doc-
trine on the subject, is not made to
appear.
In the ease in the text, it is said
that if no time is limited for re-
demption, the pawnor has time to
redeem it during his life ; but if he
die without redeeming, the right is
gone, and his representatives can-
not redeem. In Balstrode's report
oftl
TVfo. 8 Jac.
f the ease, the only reason stated,
is, that it would be mischievous to
compel the pawnee to keep the
goods thus pawned, for sueh an in-
definite time, when he has paid
sufficient!? for them. This objec-
tion would have been found to
have no validity, if the judges had
attended to the law as laid down
by Qlanville, who says, the credit-
or may quicken his debtor's delay,
and demand his debt at any time,
by a process whieh he has stated.
In NeVs report, as well as in the
text, the reason stated is, that the
pledge is a condition personal, and
extends only to the person of him
who pawned it. This ground of
the opinion is equally unsound. A
pledge is not a property created
upon a condition of defeasance like
a mortgage. It has no analogy to
the case of a right which is abso-
lute, to vest or to be defeated on
the happening of an event ; nor is
it susceptible of that strict con-
struction, unless it be so modified
by the express agreement of the
parties. Least of all is it a con-
dition personal, to be performed
exclusively by the pawnor. There
is nothing of this in the natnre of
the contract ; and in most cases —
as when the time of payment is
mentioned— it is agreed that the
right may remain perfect in the
representatives of the parties.
In feoffments of land, upon con-
dition that the feoffee do an act,
and no time Vk limited, there he
has only his life-time ; but if his
heirs be mentioned, the condition
is not broken by lira death, but ex-
tends to his heirs indefinitely with-
out limitation of time, and cannot
be broken, except upon request
marie by the feoffor or his heirs.
2 Co. 79. Lord Cromwell's case.
Dyer 139. a. Duke of Norfolk's
case. If the naming of the heirs
would, in this case, do away the
limitation of this condition to the
person of the feoffor, even accord-
ing to the rigid construction whiclr
used to prevail, under the genius
of the feodal law, over feoffments
upon condition ; surely it cannot
be material that in personal con-
tracts executors should be nam-
ed ; for it is a genera! and well
established principle, that they are
affected equally as if named.
This notion of a pledge, resting
on the performance of a condition
to revest the right, as in the ease
of a mortgage, probably led to the
decision in Capper v. DickinsoUj
1 Rol. Rep. 310. that if goods paw-
ned for a limited time are not re-
deemed at the day, they are for-
feited and may be sold at the will
of the pawnee. This doctrine in
also laid down in the Office of Ex-
ecutors. But this is contrary to the
contract of pledge; is repugnant
to the ancient law, and is contra-
dieted by Baron Comyns, who is of
himself a great authority. Com.
Dig. Mortgage by pledge of goods,
B. It is also c6ntrary to the civil
law, and to the law of France,
Holland and Scotland. Hub. vol.
3. 1072. $ 6. 1 Domat 362. § 9.
10. 2 Ersk. 455.
An extrajudicial dictum of Lord
C. J. Treby, 1 Ld. Raym. 434. &
another of Lord Hardwicke, lVes.
278. (and both supported only by
the case in the text,) whieh go to
shew that the pawn is not redeem-
able alter the pawnee's death, are
the only remaining authorities on
whieh the proposition has rested.
In Tucker v. Wilfon, 1 P. W.
261. and Lockwood v. Ewer, 2
Atk. 303. and Kemp v. Westbrookf
1 Ves. 278. it was said that a paw-
nee of stock was not bound to
bring a bill of foreclosure, and
might sell without it. But in the
two first eases, the stock had been,
in the first instance, absolutely
transferred to the mortgagee with
a defeasance thereto, that the as-
signment should be void, or the
stock retransferred on payment at
inn.
the tfay. They were eases, there-
fore, not of a pledge, but of a mort-
gage of goods ; and though it is
nowhere stated, in what manner
the mortgagee is to sell, yet in the
first of these eases, there was a
previous notice to the opposite
party, according to the rule of the
civil law, and the giving of this
notice was asserted to be the con-
stant practice. The last ease was
■trietly a pledge of chattels to se-
cure a loan, without a specified
time of payment ; and the assignee
jof the pawnor, who had become a
bankrupt, was allowed to redeem.
JDemandray v. Metcalfe, Pre. Ch.
420.3 Vera. 691. 698. Gilb. Eq.
Rep. 104. 1 Eq. Cas. Abr. 334.
S. C. and Vanderzee v. Willis, 3
Bro. C. C. 21. are cases of pledge,
and perfectly in point. In the one
case, there was a pawn of jewels,
and in the other, of bonds and se-
curities. In both cases, the time
of payment had elapsed'in the life
time of the pawnor ; but the exe-
cutors, on a bill to redeem oij pay-
ment of the debt and interest, ob-
tained a decree accordingly. It is
said, indeed, in the first case,
that the executors could not have
back the jewels, without the as-
sistance of chancery. If by this
was meant the identical chattel
pawned, it was perhaps correct;
but if the observation meant that
executors had no remedy but in
equity, it must be a mistake ; for
a eourt of law has complete juris-
diction over the subject, and is
equally competent to grant relief
where the right of property is not
extinguished. It would be unrea-
sonable to turn the plaintiff round
to another forum, when there are
no technical difficulties to impede,
nor" any defect of authority to give
him redress, at law, by restoring to
him, if not the specific thing, yet
its equivalent. If a court or law
will permit one party to demand
his debt after the time, it will e-
8 Jac.
r 179 c ]
qually permit the other party to
tender and redeem. In The South
Sea Company v. Duncomb, 2 Stra.
919. it was decided, that where the
pawnor of stock did not pay at
the day stipulated, the pawnee had
his election to sue for the debt, or
to stand to his remedy against the
fawn. The eourt did not state
the remedy ; but still there was to
be a remedy under the sanction of
law; and the only remedies hith-
erto suggested in the books, are
the process by writ as stated in
Glaaville — the bill of foreclosure,
as hinted in other cases-— and th#
sale by the pawnee, after notice,
in cases of the transfer of stock, as
seems to have been the practice.
From this review of the cases,
Keut J, concludes, that whatever
right to redeem existed in the paw-
nor at bis death, that right descend-
ed entire and unimpaired to his re-
presentative— and the decision of
the court was made accordingly.
Kent J. ubi sup, says the expres-
sion in the text, that the pawnee
has his life, as a time to redeem,
when no time of redemption is fix-
ed, must be taken with this quali-
fieation-that the pawnee does not,
in the mean time, call upon him to
redeem. A sale without such call
and notice was, in the case then
before him, held to be a conversion.
A similar decision has been rnaje
in Pennsylvania. Browne's Rep.
176. J)e Lisle \. Friestman. Ex-
cept in cases of special agreement,
the Roman law never allowed a
pledge to be sold by the creditor,
but upon notice to the debtor, and
the allowance of a year's redemp-
tion. 1 Hub. 157. §2.3 ib. 172. §6.
Perezius on the CodeVol. 2. tit. 34.
§4. £. And as (his was not suffi-
ciently observed, Justinian regula-
ted the method of foreclosure by
a particular ordinance, by which
two years notice, or two years af-
ter a judicial sentence, was allow-
ed to the debtor. Sec authorities
Trin.
[ 17* d ]
tiled by Kent J. fe Caines Cas. in
Er. 213.
The creditor may sue for his
debt,&proeeed in the same manner,
as he might if no pledge had been
made. But on payment of the debt,
he must restore the pledge. Glan-
ville Lib. 10. e. & 12 Mod. 564.
Mon. 2 Stra. ubi sup. 2 Starkie's
Rep. 72. Vin. Ahr. Fawns, ace. 8
8 Jac;
Mass. Rep. 190. Cleverly v. Brac-
kets Sf at. contra.
That the executrix, in the ease
in the text, was entitled to recover
the 25L notwithstanding the ten-
der, seems very clear from the
authorities, though the reporter
thought it a strange doctrine. See
an instructive case on, the law of
tender in 1 N. Hamp. Rep. 095.
Weld y. Hadley.
Goodyer vs. Junce.
It is error if
a testatum
goes where a
former writ
was not ac-
tually issued,
though it be
recited in the
testatum.
When a term
is extended
by elegit, the
debtor shall
have it re-
stored^ re-
versal of the
judgment.
Secutia sales
on a fi. fu.
2 P. W. 81.
3 T. R. 388.
1 Browol. 107. Cro. Jac. 246. 2 Brown). 208. S. C.
JUNCE recovered ±20l fa the common pleas against
Goodyer in Crastino Jlnimar. anno 6 Jac. & 28 Novembr. in
the same term, being the last day of the term ; the plain-
tiff prayed an elegit against Goodyer to the sheriffs of Lon-
don (where the action was brought) and to the sheriff of
Lancaster returnable crastino purific. after, which was
granted per curiam ; afterwards Junce the plaintiff took an
elegit viceeomiti Lancastrian which, as the course is, by set*
re facias is first directed to the chancellor of the county pal-
atine, and this elegit in the end of it appeared to be ground-
ed on a testatum first made by the sheriffs of London, that
Goodyer had nothing in London, ubi re vera they never
made such return ; and on this elegit, by a jury taken be-
fore the sheriff of Lancaster, they extended a lease of a
a tithie for fifty-nine years to.cooie, to the value but of 10e/.
which the sheriff delivered to Junce the plaintiff, as the
chattel of Goodyer for 100/. and returned it, and that Good-
yer had not plura bona, &e. and thereupon Goodyer brought
error in the King's Bench, and assigned for error in adju-
dicatione execuiionis, viz. that no return was made by the
sheriffs of London, nor filed in the common pleas ; and it
was adjudged error; (l) for although according to the
(A)By a writ of err or, an erroneous
judgment, or an erroneous award
of execution may be corrected. Co.
Lit. 28$. b. Bae. Abr. Error. A-
Thus error lias to set aside an ex-
ecution sued out on a statute-mer-
chant or statute-staple ; ibid, and
by analogy, error will lie to set a-
side an execution sued on a recog-
nisance taken before a justice of the
peace agreeably to a statute of Mas-
sachusetts, 1782. c.21. Per Parsons
C. J. 4 Mass. Rep. 483. Johnson
y. Harvey. But where there is a
regular judgment, or a regular.a-
ward of execution, if an execution
afterwards irregularly issue, it is
not a cause, in a writ of error, to
reverse a judgment or a ward of ex-
ecution regularly made. The rem-
edy is by audita querela, or by mo-
tion to the court to set aside the ex-
ecution. Thus a writ of error does
not lie to reverse a judgment against
I!
Trin. 8 Jac,
vayer of the plaintiff in the common pleas he might hate
aken his elegit immediately both into London and into
JLiancaster, yet when he waives the benefit of it, and will
ground his execution on a testatum by former sheriffs of
London, which is false, it makes error in the execution ;
for as 18 H. 6. 27. & i B, 6. 9. a. a testatum is grounded
pn a former return filed, that the party has nothing in the
county where the action is brought ; and although the r A8 o j
prayer to have the ekgits into London and Lancaster ap-
pears of record to be Z% Nbvembr. the last day of the term,
and by the testatum it is supposed that the sheriffs of Lon-
don had returned quinden. Martini, (which is before 28 JW
pembr.) that he had nothing in London, which seems to be
contrary to the record, yet that is not material, but makes
the matter more vicious ; for it stands well with the judg-
ment, which was crastino animar. that such writ might is-
sue vicecemitibus London, returnable quinden. Martini, and
it shall be deemed the plaintiff's fault that he did not file
it ; and it shall be presumed there was such writ, because
the process taken by the plaintiff himself recites it. Quod
nota. Per totam curiam. It was also adjudged in this
case, that Goodyer should be restored to the term again,
and although it was valued by the jury but to 106l. and
delivered to Junee the plaintiff to hold ut bona et catalla 9
&c. yet against Junce, Goodyer shall have it again ; for he
being the party himself, it is iu law but a bare delivery
in specie, as it is, which ought to be restored in specie
again, and doth not alter the property absolutely, but at-
tends on the execution to be good or bad, as the execution
is* And it was adjudged accordingly before in the case of
one Robotham, and also in the case of one Worrel (as mas-
ter Noy told Yelverton.) But if the sale had been to a
stranger by the sheriff of this term for 100/. although the
value was 1000/. yet upon the reversal he should not have
the term again, but the money, viz. 100/. according to the Mo. 573.
opinion 20 Eliz. Dy. 363. for it Is the party's folly that he
docs not pay the judgment; and if such sales should be
avoided none would buy goods of the sheriff, whereby many
executions would fail.(2) Quod nota. Per totam curiam.
Yelverton of counsel with Goodyer, the plaintiff in error.
a defendant, who is out of the com* (2) So though the tenant by ele~
monwealth, because the plaintiff git has aliened the term, it seems
sued out execution without giving that the defendant shall be restor-
bond pursuant to the statute of ed. According to Croke's report of
1707. c 50. 4 Mass. Rep. ubi sup. this case, the term after the levy,
Though an award of execution, "had eome into two or three
when erroneously entered of re- hands ;" yet a writ of restitution
cord, may be set aside on error ; was awarded. Gro. Jac. 246. So
yet the original judgment, which if a termor for years is outlawed*
is a distinct and independant part he shall be restored to the term,
of the record, cannot be reversed on reversal of the outlawry,
for that cause, ibid. though it has been sold by the king
to whom it was forfeited: Crt.
Trio.
I 180*1
Eliz. 578. Efre v. Woodfint. t
And. 477. 8. C. And he may en-
ter on the king's patentee, without
petition or scire facias. 1 And. 188.
Anon. 2 Hawk. e. 00. $ 19. So
where a termor assigned his term
after being outlawed, and his as-
signee was pot ont hv the assignee
of the queen, to whom the term
came by the outlawry; the as-
signee of the termor was, on re-
versal of the outlawry, held to be
entitled to the mesne profits— u for
"by the reversal, it is as if no out-
lawry had been." Cro. Eliz. 270.
OgneWs cose. 1 And. 188. So if
the goods of an outlaw are sold by
the sheriff on a capias utlagatum —
on reversal of the outlawry, the
party shall have his goods restor-
ed. 5 Co. 90. Hoe 1 8 case. See 18
Co. 20. JKevviPs case, and the
Tear-Books there cited.
In the ease in the test, the term
might have been sold on fieri fa-
cias; 2 Bl. Com. 417. and in reg-
ular sales of personal chattels or
chattels real, on execution, the pur-
chaser will hold the property,
though the judgment, on which the
8 Jac
execution issues, is erroneous, or
the execution is erroneously award-
ed. Upon reversal of the judg-
ment, the defendant shall be restor-
ed (as is said in the text) to the
money, and not to the property.
Godb. 36. Luddington & Amner>s
case. 8 Leon. 89. S. C. Jenk. *6*.
1 Yes. 198. Jeanes v. WUkins. Ban.
Abr. Execution. Q. Error. M. 3.
lMan.fcSel.424 Doev.Thorne.
2 Wash. Rep. 818. Burnley v.
Lambert Cameron & Norw. 827.
Worker. Hunter. 2Binney 47.
Lessee of Heisterv.Fortmr. Bat
the purchaser acquires no title to
property which he buys at a sher-
iff's sale, unless it belongs to the
judgment debtor. 1 Bur. 82. Coop-
er v. Chitty. 2 Bl. Rep. 1064c Shaw
v. Tunbridge. 6 Binney 2. Shear-
ick v. Huber- 1 Bay 817. Stone v.
Ebberley. 1 N. If amp. Rep. 87.
PeUingill v. BartUtt. And in
Massachusetts, it has been decided
that the purchaser does not acouire
a valid title, unless the officer
makes a legal return of the execu-
tion: 9 Mass. Rep. 141. Hammatt
v. Wyman Sf aL
Mich. 8 Jac.
Moore vs. Hawkins.
1 Brownl. 145. Lane 81. Cro. Jac. 261. 1 Bulst. 92. S. C.
It is in tbe
discretion of
justice! of ni-
si prim, af-
terissuejoin-
. ed, to allow
a plea of en-
. c ^
try puis dar-
rein continu-
ance, in a-
batemeut of
ejectment —
but theycan-
not allow an
amendment
IN ejectment after issue joined, on non cut. the cause
came to be tried before Yelverton and Croke justices of
assises in com. Oxon.; the plaintiff had declared of several
messuages and several acres of land. in three villa in the
same county ; and at nisi prius before the jurors were
sworn, master Walter (of counsel with the defendant) put
in a plea ; that after the last continuance, viz. such a da^y
Term. Trin. before the day of assise, viz. 20 Julii (the as-
sises being held at Oxon. 22 Julii) the plaintiff had enter-
ed into sueh a close by name, containing eight acres parcelL
pramissor. in narratione speciftcat. &c. and this plea was
received by the justices of assise ; and afterwards in this
term, viz. Mich. 8. Mr. Walter and Yelverton of counsel
with the defendant prayed that they might amend the plea,
Mich. 8 JaC.
ito hoc tantum, by putting in the true rill where the elose of iuch plea,
lay, in which the plaintiff's entry was; forasmuch as it ° J. take a re-
was only matter of form, and not of substance, for parcelL [J^Jj^!? c *„
prcemissor. is sufficient. And they conceived, that the tri- only return it
al of this new issue ought to be from all the three Tills as parcel of
named in the declaration. But Yelverton justice, hairing the record of
moved all the justices of Serjeants-Inn in Fleet-street, re- nuipriu*.
ported their opinions openly in the King's Bench (although
the record of nisi prius was returned into the exchequer) *"2? b ' 490"
viz. that it is in the discretion of the justices of assise to % r™| Al} j. #
accept such plea as before, and such plea may well be al- $30.
lowed, as 10 H. 7. — is, and it stays the verdict ; but it is
otherwise of a protection, for although they allow a pro-
tection, yet the justices may take the verdict de bene esse;
Jet he said, that in 7 E. 8 in & praecipe quod reddat a re-
»ase was pleaded at nisi prius, and yet the jury was tak-
en 5 but it is in the discretion of the justices to allow or
disallow. It was likewise held by all the said justices (as
he reported it) that in this ease the plaintiff could not have
replied to this plea at nisi prius, for the justices of assise
have no power either to accept a replication on the plea,
or to try it, but only to return it as parcel of the record of
nisi prius* It was also held, that the plea put in in
pais could not be amended by adding the vill in certain in
which the close lay, for it is matter of substance 5 and the
aourt of exchequer, where the record is, will not award
the venue from all the three villa named in the record, un- _. *
less it appears to them judicially, that the close extends
into all three vills $ and that does not appear, forparcetl.
prcemissor. does not necessarily extend to all the vills, but
may be, and may well be presumed .to be in one vill only 5
therefore it is matter of substanee, and the justices of assise
have no power, after their commission determined, to amend
the plea, (l) wherefore Yelverton sent the plea without
amendment into the exchequer. (2) This ease concerned
Sir H. Brown, ex parte querentis, and the countess of Pem-
brook, ex parte defendentis.
(1) Bui. N. P. 309. 1 Freem. this plea, after it was certified
252. ffrbbot v. Rugesley. 2 Mod. into the exchequer, and had judg-
807. S. C. X Chit PI. 688. acp. ment. 8nig B. said, " the plea is
But see 2 Smith's Rep. 609. Lindo not good for the not shewing of a
v. Simpson. place certain, wherein the entry
was.- 9 Lane 81. 86. 88»
(2) The plaintiff demurred to
Davis vs. Purely. [ 188 J
1 Brown!. 146. S. C.
THE plaintiff declared on a lease made by one Christ- Declaration
mas 6 Mali anno 7. of a messuage, &c. in D. by virtue held good,
though the
ejectment
wai alledged
to have been
prior to the
date of the
tease.
1 Bl. Rep.
495.
CJro. Jac.
428.
Salk. 325.
Mich. 8 Jac*
whereof the plaintiff entered, and was possessed quousqiie
posiea the defendant 18 die ejusdem mensis Mail anno 6 sti-
pradieto ejected him, &e. and upon non cul. pleaded, a ver-
dict being found against the plaintiff, Yelverton moved in
arrest of judgment (to save eosts) that the declaration was
insufficient, for this aetion is grounded on two things ;
1, On the lease ; 2. On the ejectment ; and these two ought
to eonenr one after the other ; and in this ease the eject-
ment is supposed a year before the lease made ; for the
lease is anno 7. and the ejectment supposed to be made
anno 6. and therefore the declaration seems to be ill. And
Yelverton vouehed the case between Powre and Hawkins
anno 7. Term. Pasehaz, where the plaintiff declared on a
lease from Edward Ewer 27 Apr. anno 6. and laid the
ejeetment to be 26 Apr. anno 6 supradicto ; and by the
opinion the declaration was ill, causa qua supra. Yet the
declaration was adjudged good, and the word sexto to be
void 5 for the day of the ejectment being 18 ejusdem m$nsis 9
it cannot be intended but to be the same year, in which the
lease is supposed to be made. Fer curiam.(l)
(l) From the ease of Merrell v.
Smith, Cro. Jae. 811. Jenk. 341.
it does not seem neeessary to al-
ledge any particular day for the
ouster, provided it appears from
the declaration to be subsequent
to the commencement of the term,
and prior to the bringing of the
action ; but in the precedents a day
is laid, and it is the better method.
The day, on which the ouster of
the plaintiff by the casual ejector
b alledged, should regularly be af-
ter the commencement of the sup-
posed lease and entry. But this
seems not to be absolutely necessa-
ry ; for as the words "afterwards
to wit" are always used before
mentioning the day of the ouster,
it is presumed the eourts would, in
all cases, consider an ouster laid
previously to the day of the entry
as impossible and repugnant, and
reject it. Cro. Jac. 06. Adams v.
Goose. Bui. N. P. 106. Run. on
%et. 214 to 219.
Some old ejectment eases are to
be found in the books (l Sid. 7.
Goodgain v. Wakefield. 4 Leon*
144. Higham v. Cooke. Cro. Jac.
130. Osbourne y. Rider, ibid. 258.
Llewelyn v. Williams Sfal.5 Co. 1.
Clayton's case. 8 Mod. 188. Evans
v. Groker. Comb. 88. S. C.) in
which the ousters were laid on the
same days as the demises, and
which were decided upon the dis-
tinctions formerly taken as to the
time of the commencement of a de-
mise when stated in the lease to
be "from the date," and when
"from the day of the date" of the
lease. But since the judgment in
Pugh v. Duke *f Leeds, Cowp. 714.
by whieh it has been determined
that these expressions shall be
construed indifferently, either in-
elusively or exclusively, so as to
give effect to the deed, these cases
can no longer be authorities. Ad-
ams on Eject. 186. n.
Mich. 8 Jac*
Kniveton vs. Roiley.
• 1 Br<wnl. 218. S. C.
TRESPASS for breaking his close called G. in Wood- In trespass
ihorpe in com. Derb. to his damage, &c. The defendant fo J a J> rea cb
pleaded that the close is known as well by the name of D. ^ * c if ° se t j^
as by the name of G. aud that it is, and time whereof, &c. defendant
has been parcel of the manor of Wingerworth ; and plead- plead that
ed his freehold in the manor : the plaintiff maintained his the close is
declaration, and traversed, that the place where the tres- parcel of the ,
pass, &c. is not parcel of the manor ; and upon that they J? anor of A **
w . . f i*i • >•• r jj* the ven. lac,
were at issue, and the venire facias was awarded from 8 h ou |d be a-
Woodthorpe only. And it was moved in arrest of judg- warded to A,
ment ex parte of the defendant (the verdict being for the & W. to try
plaintiff,) that it is a mistrial ; for it ought to be as well the issue
from the manor as from Woodthorpe ; for although the * h e ther the
fiarties are agreed, that the place where the trespass, &c. oA^maoor
ies in Woodthorpe, yet it being supposed in fact to be par- f At
eel of the manor of Wingerworth, the venue of the manor
will by intendment have a better conusance of it than the
vill of Woodthorpe only, Quodfuit concessum per totam
curiam, and a new venire facias awarded to try the issue
de novo.
Aylet vs. Choppin. f 183 J
1 Brownl. 147. Cro. Jac. 259. 1 Bulst. 42. S. C.
THE plaintiff declared on a lease made by Jo. Aylet for °° a devise
a year of certain land in E. in com. Essex, by virtue where- ^d^that °thQ
of he entered and was possessed till ejected by the defend- execu t or
ant, &c. The defendant pleaded that the land is copyhold 8 h a ]l havethe
parcel of the manor of D. &c. whereof Jo. Aylet, the les- land until
sor's father was seised in fee according to the custom, and they attain
that he surrendered to the use of his will, and thereby de- their several
vised the land in question to Jo. the lessor, and H. Aylet JgJJ J[J£ e
his sous, and to their heirs male of their bodies; and or- h j s posses-
dered by his will that they should not enter till their sev- s i on of his
eral ages of twenty-one years, and further willed, that W. joint estate,
Barnard and H. Barnard his executors should have the *» ** attains
said land to perform his will till his said sons Jo. and H. {^ e ent a ?* ne
should come to their several ages of twenty-one years, &c. wen J* one *
To which the plaintiff replied and confessed the will prout, Cowp. §57,
&c. but he further shewed, that such a day in such a year 309,362,777,
before the lease Jo. his lessor came to his full age of twen- 833.
ty-one years, and entered and demised to him prout, &c. 3 T - R - 41 -
upon which the defendant demurred. And it was adjudg-
ed for the plaintiff; for although the estate to Jo. and H.
Aylet precedes in words, and the devise to the executors
34
Mich. 8 Jac
follows, yet in construction the estate to the executors pre-
cedes in possession, and is as if he had devised that his ex-
ecutors should have the land till his sons Jo. and H. should
attain their several ages of twenty-one years, and after-
wards lo them and their heirs male, &c. to be enjoyed in
possession at their several ages ; so that the executors have
only a limited estate, determinable in time, when each son
separatim comes to his full age, for his part; for so the in-
tent appears to be, that each of the sons may enter when
tfav. 92. he attains to twenty-one years. And although it was ob-
D Bttr ra*i5 i ected b 7 Williams justice, that the two brothers are join-
005.5 , 5 tenantg \y tne w jjj . an( j ^ onc e nt er g when he attains to
his full age, the other brother being under age, that will
destroy the intent of the devisor, for then they will not
take jointly. To that the court answered, that the entry
of him who comes to full age does not destroy the jointure ;
but they shall be jointenants notwithstanding that ; for this
entry in the devisor's intent was only as to the perception
of the profits, and as to the possession, and not as to the
estate in jointure 5 and all this is proved by 30 H. 6. De-
vise 12. where a devise was to four in fee, and that one
should have all during his life ; and it was adjudged good,
and that is as to the percption of the profits only. Quod
nota. Per totam curiam prater Williams justice, who pro-
tested against the judgment. Yelverton of counsel with
the plaintiff.(l)
(1) This report, though differ- quently recognized, and the prin-
ent from that given of the same ciple applied in analagous cases,
ease by Bulstrode, agrees with See Cro. Jac. 655. Gilbert v. Wit-
Brownlow's and Croke's, and is ty # aL 2 Rol. Rep. 281. S. C. 1
correct. 1 Saund. 18*, u. 3. The Saund. 181. Cook v. Gerrard. &
construction given to the devise 185. a. n. 6. Fearne Cotit. Rem.
stated in the text has been fre- ±70.
[ 184 ] Smith vs. Jones.
Cro. Ja«. 257. 1 Bulst. 44. Ow. 133. S. C.
Assumpsit THE plaintiff declared, that Gregory Smith his father
will not lie was possessor of several goods and chattels, and by his
uponaprom- w {\\ bequeathed 71. asa legacy to the plaintiff, and made
band after Consfance *" s wife executrix and died, and that the defend-
the death of an * married with Constance 5 and that such a day in con-
his wife, to sideration that goods of Gregory Smith came to the poses-
pay a debt sion, and were in the hands of the defendant sufficient to
of his wife satisfy debts and legacies ; and in consideration the plain-
due before t \ft at tne defendant's request would forbear the 7L till
Cure C ° Ver " All-Saints following, the defendant promised to pay the
plaintiff the 7L at All-Saints next, and shewed in facto that
he had forborne the 71. till, &c. yet the defendant had not
paid him according to his promise, to his damage, &c.
The defendant pleaded that Constance the executrix of
Mich. 8 Jac.
Gregory Smith died intestate at sueh a place, before the
promise made, upon which the plaintiff demurred. And
it was adjudged against the plaintiff; for the demurrer ^
confessing the death of the executrix before the promise, it
thereby vppears to the court, that there is not any consid-
eration sufficient to charge the defendant : for the thing,
for which the plaintiff would have damage by his action,
is for a legacy, which must be sued for only in the spiritu-
al court, and by the death of the wife, the defendant is not
chargeable with the legacy, for he is not executor nor pri-
vy to the will of Gregory Smith ; and although he had
possession of the goods, yet forasmuch as he came to it
lawfully by the intermarriage with Constance the execu-
trix, by her death the defendant has but a bare custody of
the goods, for which he shall not be charged, either in the
spiritual court, or at the common law, without employment
or conversion of the goods to his own use after the death of
the wife $ then there is no reason to charge the defendant
with any promise, when it is not grounded upon any con-
sideration^ 1) for the plaintiff could not charge the defend-
ant with the legacy, but he might compel the defendant to
deliver the goods to the ordinary, or to take letters of ad-
ministration, to the intent that he might sue in the spiritu-
al court for the legacy.(2)The declaration was also held ill,
because it does not shew precisely what person the plaintiff
was to forbear to sue for the 71 for it cannot be intended
that he should forbear the defendant, because it appears by
the law, that he is not chargeable with it. Quod nota.
Per totam curiam. Yelverton was of counsel with the
plaintiff.
(1) See ante 84. Lea v. Minne, acy may be supported in the com-
and notes. An agreement by a sure- mon law courts in England, after
ty to forbear a suit against the prin- the executor has assented ; 3 East
cipal, after he shall have paid the 120. Doe v. Quy. 4Esp. Rep. 154.
debt of the principal, is a good con- S. C. but not for a pecuniary leg*
•ideration, tho' at the time of the acy payable out of the general as-
agreement, the surety had no cause sets of the testator, ibid. 5 D & E.
of action. 2 Binhey 506. Hamaker 692. Deeks # ux. v. Strutt. Peake's
v. Eberly. Cas. 73. Parish v. WiUon. l Chit,
PI. 91. 1 Comyn on Con. 049. 2
(2) An action for a specific leg- Roper on Leg. 592, & seq.
Trulock vs. Rigsby. [ 185 ]
1 Brownl. 189, S. C.
REPLEVIN for taking six kyne in a place called Bris- The defend-
ley Hill(l) inRadley in com. Berks ; the defendant as bailiff ant in a rep-
. (l) In replevin, it is necessary the caption was ; it is not sufficient
to state the particular place, where merely to name the parish. 1 Chit.-
Mich. 8 Jac
iieatiou to a of Mr. Reade made conusance, and said, that the place
plea io bar where, &e. contained fifty acres, and is parcel of the man-
of a coguii- or of Barton; and shewed that E. 6. was seised of the
justify "the mttnor •' Barton, of which the place where, &e. is parcel,
taking in the and granted it by letters patent, &c. to Richard Lee, nec-
Locut in quo mm several other lands by the name of Coxites, &c. and
stated io the among other particulars in the patent, the king granted
former plea- Brisley Hill in Barton, &e. and deduced the freehold of
Wb *^ e manor » whereof the plaee where, etc. is parcel, to mas-
party Claims ter B^de, *nd ne as bailiff to him took the kyne damage-
common in a feasant, &e. The plaintiff replied and shewed, that one
field when it Hide is seised of a messnage and several acres of land in
is not sown, Radley, and that he and they whose estate, &e. have had
and justifies for themselves, their tenants and farmers common in the
cauie glD be- sai(! P lace ca,led Brisley Hill in Radley, when the said
cause it was * e 'd e *H*d Brisley Hill in Radley lay fresh and not sown,
not sewn; it for all the year with their eattle levant, &e. and when the
is not a suf- said field is sown with corn, when the corn is carried away
ficient an- till reseminatur ; and so justified the putting in of the six
>wer ****** kyne to use the common, because the said field was not
field ° was 80wn w * tn corn. To whieh the defendant rejoined and
sown. ***°\ that part of the field called Brisley Hill, in the avow-
ry named, was sown with corn, tempore, Src. wherefore,&e.
upon which the plaintiff demurred. And it was adjudged
for the plaintiff for two reasons. 1. Because the defend*
ant in his rejoinder refers his plea to another place than
where the taking is supposed, and that is not in question,
and in whieh the plaintiff does not claim common ; for the
plaintiff claims common only in Brisley Hill in Radley,
and the field named in the defendant's avowry, to whieh
he refers his plea, is Brisley Hill in Barton, for Brisley
Hill in Radley is not named in the avowry by special name,
but only by implication by this name, locus in quo ; and
for this reason the rejoinder does not answer the matter
alledged in the replication. The second reason was, be-
cause the plaintiff claims common when Brisley Hill in
Radley is not sown with corn, and yet the defendant, if his
plea had referred to the same Brisley Hill, does not give
any full answer ; for he says, quod parcella dicti campi was
sown with corn, and per curiam, the sowing of a small
parcel of the field does not oust the plaintiff from using
his common in the residue, for that may be by covin to de-
ceive the plaintiff claiming common quando campus {id est
totus campus) is not sown, shall not oe barred of common
PI. 161. #85. 2 ib. 364. n. Omis- ute in Massachusetts, the same
«ion of the locus in quo is cause of particularity is necessary as at corn-
demurrer, but is cured by the de- mon law ; but it is little regarded
fendant's pleading over. 8 Selw. in practice. In Pennsylvania, it
N. P. 1023. and the cases there is held to be sufficient, if the cap-
cited, tion is alledged at any place within
According to the form of the the body of the county. Browne's
writ of replevin prescribed by stat- Rep. 60. Muck v. Follcroad.
Mich. 8 Jac.
by sowing of panel of it; for notwithstanding that, the .
field is not sown, per curiam. Yelverton was of counsel [ 186 ]
with the plaintiff.
Woodley vs. Denbaugh.
THE plaintiff declared on a lease made to him by James Amendment
Woodley, &c. by virtue whereof he entered, and was pos- Allowed 08 by
sessed till he was ejeeted by the defendant ; upon non cul. correcting a
pleaded the parties went to trial, and the postea (whieh is misnomer.
the warrant for the justices of assize) in the end of it was,
jurata inter Peter Wooley plaintiff, and Alfrid Denbaugh
defendant deplacito transgr. and eject* jirtnve, Sfc. and the
verdict being for the plaintiff, Yelverton moved in arrest
of judgment, that the justices had no warrant to try the
issue ; for no jurata was returned between Woodley and
Denbaugh, but only between Wooley and Denbaugh :
whieh Wooley, who is supposed plaintiff by the jurata, is
another person than Woodley who brings the action, and
so a mistrial : But per curiam it shall be amended ; for
all the proceedings, except this misprision in the postea, are
between the right parties, and that is but the default of the
clerk, who had tne record and distringas before him.
Quod nota; And so it was amended, and many precedents
are accordingly : But the whole court agreed, that it was
in the breast of the judge at the assizes whether he would
proceed on that record or not, because the jurata is
^mistaken.
Godfrey vs. Bullein.
1 Brown!. 189. 1 Rol. Rep. 32, 73. S. C.
BULLEIN brought replevin against Mr. Godfrey for Jj ^ e *JJ|
taking six cattle in such a place in Bale in com. Norfolk, w h e ther the
to his damage, &c. The defendant as bailiff to Richard plaintiff in
Godfrey, Esq. (the counsellor) made conusance, because replevin wai
before the time, and at the time of the taking, the said achiefpledge
Richard Godfrey was seised of a eourt-leet in Bale of all at * cou £l
the inhabitants and resiants within the precinct of his ma- T *jj ** f B
nor of Bale, to be held within the precinct of the manor, as within the
belonging to his manor ; and shewed that he nsed to have manor of B.
a fine of 10s. called a leet fine of all the chief pledges of the venue
his leet 5 and if they failed to pay it, that the steward used, "? U8t l ??. fro °J
&c. to amerce him who made default in payment 5 and ^U n ™
shewed that at a court held within the manor such a day,
&c. it was presented, that the plaintiff in the replevin, be- 6 Co. 77. b.
ing an inhabitant in B. and resiant within the precinct of 11 Co. 42.
the manor, made default in payment of the fine of 10s. be- l Bulst. 46.
ing then one of the ehief pledges at the court; where-
fore he was amerced to 0/. for which not paid the defen-
Mich. 8 Jac.
| 187 ] dant took the cattle, &e. and the issue was, whether Bul-
lein the plaintiff was at that court a chief pledge or not P
And the veuue to try it was only from the manor, and it
was found for the plaintiff, and damage and costs to 30/.
given against Godfrey ; upon which he brought error in
the king's bench ; and it was adjudged error, and the judg-
ment reversed ; for the trial ought to be as well from Bale,
which is the vill, as from the manor ; because although the
court is held within the manor, yet the leet itself is within
the vill of Bale, and the plaintiff an inhabitant and resiant
within the vill, which vill is within the precinct of the ma*
nor, and although (as Fleming chief Justice held) nothing is
in question, but whether the plaintiff was chief pledge at
the court held within the manor, so that nothing within the
vill is in question, or can come in question ; yet it was re-
solved per tot. cur. (praeter the chief justice) that they of
the vill of Bale, might well have conusance, whether the
plaintiff being an inhabitant within the vill, in which the
feet is, was a chief pledge at the court or not ; for to have
a chief pledge is proper for a leet, which leet is within the
vill ; and therefore they of the manor cannot have so good
conusance of this matter, as they of the manor and of the
vill also : Therefore the trial ought to be from both, as in
case of a common, and a way in one vill to an house in an-
other vill, it ought to be tried from both vills; so of the
tenure of lands in D. held of the manor of Sale, the trial
ought to be as well from the vill where the land is, as from
the manor of which the land is held, as it was adjudged H.
45 Eliz. in the king's bench, in Lovelace's case. Quod
6C u no * a# Wherefore the judgment was reversed. Vide 6 H.
Mo.°494. 7 ' i2, am * Arundel's case. Yelverton of counsel with
Godfrey the plaintiff in error.
Dewclas & Kendall, vs. Kendall,Besson & Hands.
Mo. 411. Cro. Jac. 256. 1 Brownl. 219. 1 Bulst. 93. S. C.
If one claims THE plaintiffs declared, that the defendants 21 Jan. 6.
all the thorns v { e t armis thirty cart-loads of thorns of the plaintiffs rea-
growing . on j v to De earr i e( j away, in a place called the common waste,
hlTmay take or warren at Chippingwarden in com. North, took and
them, though carried away to their damage 10/. The defendants plead-
cutjbyanoth- ed non cul. to all but ten cart-loads, and to them, that the
er. Secus if place where, &c. contained an acre of pasture, and that
heonly claim one \y % Palmer is seised in fee of a messuage, and three
estovers. quarters of a yard-land in C. aforesaid, and that he and
3 Burr. 1827. tne y wno8e estate he has in the said messuage, &c. from
Doug. 747. time whereof, &c. have had for them their farmers, &c. of
the said messuage, &c. all the thorns growing on the said
aere of pasture to their own use, to be employed and spent
on the said messuage, &c. as appurtenant ; and because the
ten cart-loads fuer. cresceru et minus rite cut down by the,
Mich. 8 Jac.
plaintiffs on the said acre of waste, and ready by them to [ 188 ]
be carried away, the defendants as servants to Palmer, and
by his command took, carried away and employed them on
the. messuage, &c. as it was lawful. Tbe plaintiffs (by
protestation that Palmer, and they whose, &c. have not
had from time whereof, &c. the thorns growing on the said
acre, as appurtenant to the messuage, &c.) for plea said,
that the said acre of pasture is parcel of the said place
called the common waste, and that sir Richard Salting-
stone is seised of the manor of Chippingwarden, whereof
the common waste is parcel, in fee, and that he 21 Jan.
anno 6. gave licence to the plaintiffs to cut and carry away
30 cart-loads of thorns growing on the waste, by virtue
whereof they the 30 cart-loads of thorns, mentioned in the
bar, growing on the waste, cut down and made ready to be
carried away, by reason whereof they were possessed, till
the defendants took them, &c. And on this replication the
defendants demurred : And it was adjudged against the
plaintiffs. And a difference was taken per curiam, where
a man takes reasonable estovers in another's soil, and where
he claims all the thorns or trees in another's soil ; in the
first case, if the owner of the soil cuts the thorns first, he
who has title of estovers cannot take them ; for the prop-
erty and interest of all the thorns continues in the owner
of the soil, and the other has but common there ; and if
the owner in such case cuts all the wood, he who ought to Vide
have the estovers shall have an action on the case only, F.N.B.58.J.
and not assise ; for when the whole is destroyed hie cannot H° b * ^*
be put in seisin, as Abridgement of Assise, fol. 21. is. So ^ ro °* |j iz *
it appears by sir Thomas Palmer's ease, 5 Co. 25. a. if one 820 .*
grants 100 cords of wood to be taken at the election of the Noy 32.
grantee, if the grantor or a transgressor fells any trees, Mo. 692.
the grantee cannot take them, but ought to supply his grant P- 955 -
out of the residue ; for the grantee has but a special in-
terest in part of the wood, and not in the whole, and that
in a place incertain till he himself has cut them. But now
in this case the defendants in the right of Palmer claim all
the thorns by name {omnes spinas) on the said acre of pas-
ture*; and if he has all, sir Richard Saltingstone can have
none, and by consequence cannot license the plaintiffs to
cut any, so that the whole interest is in Palmer ; and this
is not in nature of estovers ; for estovers are but parcel of
the wood, and that to be taken to a special purpose. But
here it was agreed per curiam, that although the defend-
ants have alledged an employment ; yet, where the defend-
ants claim to have omnes spinas et arbores, the employment
is not traversable ; for he who has the general interest and
property in trees by custom or prescription cannot be re-
strained, but may use them at his pleasure. Vide accord-
ing to this difference taken per curiam, 10 £. 4. 2. b. and
adjudged accordingly. Yelverton of counsel with the*
plaintiff.
Mich. 8 Jac.
f 189 j Tho. Smith vs Newsam and his Wife.
1 Brown). 108. 1 Bulst. 48.
If 30/. rent if THE plaintiff as sen and heir of George Smith his fa-
the* I or° ther> demandc<i 20 marks, and declared that his father 27
payable* 9 in ^P 1 *.' s5 "'• demised to the defendant a messuage, &e. in
equal por- B. in com. Bedf. from Mieh. nest for 21 years, yielding
tiom at two during the term, if the father should so long live, BOL at
feasts,duriog the annunciation and Mieh. by equal portions, and yield-
h» life, and j„g kceredibus et amnsnat. of the father after his death 20
hfe^elrsat m **^ Q& terminoe madictos ; by virtue whereof the de-
ter his death, fendaut entered and occupied from Mich. BB Eliz. hucus-
at the same Que j afterwards George the father 4 Mail 7. at B. died, and
days ; the because «0 marks for naif a year from Mich. 7. were ar«
heir is enti- rear, he brought his action. And thereupon the defen-
tied only to j anU Jemarred : and it was adjudged against the plain-
year ma paya* **^ ; * or tne c * ftUM J by which the rent is reserved to the
ble in equal heirs, gives but 20 marks for the whole year, and not every
portions— & half year 20 marks ; and therefore the plaintiff has mis-
must shew in taken his demand, who sues for 20 marks for half a year 5
his declare.- f or these words, ad terminos prmd. limit only the time of
rent that the iue P*y m * n tof the 20 marks, which he intended to be
reversion de- paid as the first 30*. were; and although in this clause
scended to which reserves the rent to the heirs, these words (per <*>
him. quales portiones) are omitted, yet the law supplies them,
as 13 H. 4. Avowry MO. Rent granted percipiend. ad du-
os anni terminos, naming them, shall be intended by equal
portions, although the deed does not mention it ; for the
reservation being the act of the lessor shall be taken most
strong against him and his heirs, wherefore he shall have
but 20 marks in all, for the whole year, no more than Perk.
1 Inst.197. a. 22. two tenants in common demise yielding 10s. it shall be
pot 5s. to each of them 3 Mar. 171. accordingly. The
second reason of the judgment was, because the plaintiff
brings this action as heir to his father, and does not shew
in his declaration that the reversion descended to him, and
the rent demanded is incident to the reversion descended,
for the plaintiff does not make to himself any title to have
the rent. Quod nota bene. Per cur. And judgment giv-
en, Quod nil capiat per billam. Yelvcrton of counsel with
the defendant
Massam vs. Hunter.
1 Bulst. 2. Noy 136. 1 Brownl. 220. 2 Brownl. 209.
Cro. Jac. 263. S. C.
If the lord A COPYHOLDER of a messuage and two acres of land
grant & con- j n fa, the lord grants and confirms the messuage and land
firm toac °P- cum pertin. to the copyholder in fee; if he to whom the
Mich. 8 Jac.
confirmation was made had by usage, as copyholder, com-
mon in the wastes of the lord, yet the copyhold being by
this confirmation extinct and enfranchised, he shall not
'have the common there now : For the words cumpertinen-
His will not create a common ; for the common first used
was gained by custom and annexed to the customary es-
tate, and is lost with it, the common not being of its prop-
er nature incident to the copyhold estate, but a collateral
interest gained by usage. Quod nota. Per tot. cur. on a de-
murrer in trespass, where the defendant justified the tres-
pass by using the common by reason of the confirmation.
Yelverton of counsel with the defendant.
Dominus Rex vs. Staverton.
hai
[190 J
older, who
ias a right of
common in
his waste,th*
Jaods in fee
with their
appurtenan-
ces, his right
of common is
thereby ex-
tinguished.
Hob. 86.
Ld. Raym.
1000.
Mo. 667.
Salk. 366.
Cro. Jac. 259. 1 Bulst. 54. S. C.
SUO warranto by the king against Rich. Staverton for a quo war-
ing a court-leet and court-baron within the hundred ranto lies for
and manor of Warfield in com. Berks, &c.(l) The defend- holding a
(1) The old method of redres-
sing nsurpations of office or juris-
diction was by writ of quo warran-
to ; in latter times, the method has
been by information in the nature
of quo warranto. Bui. N. P. 210.
Such an information is grantable
at the relation of any individual
interested in the election or admis-
sion of an officer or member of a
corporation : So on the relation of
a stranger, if it is a strong case. 1
East 46. n. Rex v. Kemp. But in-
formations for the purpose of dis-
solving a corporation, or seizing its
franchises, cannot be prosecuted
but by authority of the government
2 Bur. 869. Rex v. Corporation of
Carmarthen. Mass. Rep. 230.
Commonwealth v. Union F. 8f M.
In*. Company.
On the relation of individuals, a
rule to shew cause is granted, and
the respondents permitted to be
beard, before an information is al-
lowed to be .filed. The process
nsually issued to bring the defend-
ant into court, is a venire or sab-
pcena, and if he fails to appear, he
is to be brought in by distringas or
attachment. 2 Kyd on Corp. 4M,
36
Bac. Abr. Informations. D. Bin-
ney 80S. Commonwealth v. Spren-
ger $ al. In Massachusetts, he is
served with notice, and in default
of appearance, the court would
proceed according to their practice
in analagous cases. By the stat-
ute of Anne, which is adopted in
some states in the Union,*the rela-
tor must be named, at whose in-
stance the information is institut-
ed : Bol. N. P. 211. 4 Dallas 229.
n. Commonwealth v. Dallas. And
such informations have most of the
incidents of civil proceedings. 2
D & B. 484. The King v. Francis.
Bac. Abr. ubisup.
So an information lies in respect
of offices which concern the pub-
lic : as bailiff of a ville 5 2 Stra.
886. Rex v. Boyles— steward of a
court leet; 1 Stra. 621. Rex r.
•fftikfon— portreeve of a manor,
who was, as such, returning offi-
cer of the borough. 3 D & E. §9*»
Rex v. Mein. But it will not lit
when the office will expire before
inquiry can have any effect % John.
Rep. 184. The People v. Sweetinr.
Hence it will not lie to try the right
ojf an officer who it annually elect-
Mich. 8 Jac.
cMtrt-bftreu. ant disclaimed as to {he court-leet, and as to the eeurt-ba-
A * ?*"!?* ron pl«*d*d> that sir H. Nevill is seised in fee of the ma-
i^ can t nor of War * e W within the n«""*re<* of Wargrave, whereof
have acottrt- tne manor of Newnams within the manor of Warfield, etc..
baron. is pareel f and eopyhold dimiss. et dimissibile, &c by the
lord of the manor of Warfield, or his steward in fee, &e.
I Bl. Rep. and that the manor of Newnams is known tarn by that
59 °- name, quam by the name of one messuage seven yard-lands
customary, &e. and 20s. rent ; and by that name has been
demised by copy according to the enstom of the manor of
Warfield ; he shewed that sir H. Nevill anno 18 Bliz. de-
mised by eopy the said manor of Newnams to the defen-
dant by the name of one messuage seven yard-lands,&c. and
an*, rent in fee, by virtue whereof he entered, &e. etratione
if virtute concessions praxUcUz he held a court-baron with-
in the manor of Newnams, etc. (note, the defendant plead-
ed the same plea for the eourt-baron held within a manor
of Lakes, and manor of Ay le wards, the quo warranto being*
for holding three eourt-barons, &e.) and upon this plea the
i fait 58. b. king demurred in law : And it was adjudged pre domino
II Co. 17. b. re ^ e f or teyerai reasons. 1. It was agreed that one manor
t£o. jac. m| g||t ta parcej f ano tber manor, and held of another ma-
nor ; as 8* H. 6. 9. 18. H. 7. 19. b. & 6. E. 8. Q. Imp. 8*.
and that by the escheat of the manor it is become pareel
of the other manor, and then it ceases to be a manor ; for
bv the escheat the services are extinct, and by consequence
the manor escheated remains only to be a manor: But two
court-barons cannot be held after the escheat, but one court
only ; for as without two free tenants it ceases to be a ma-
[ 191 J nor > D 7 88 H. 8. Comprise Br. 81. so also if it wants ser-
vices it cannot be a manor ; for it ought to be parcel in de-
mesne, and parcel in service ; but although one manor
may be held of another ; yet it was agreed, that one manor
cannot be pareel of another manor,fand bothHo be in esse at
one time; for being liberties and franchises of one and the
same nature, non possunt stare insimul ; a fortiori this ma-
nor of Newnams, which by the defendant's confession is
pareel of the manor of Warfield, and held by eopy of it,
cannot be a manor to hold a eourt-baron, for it cannot have
any freeholders, who can hold of it; for a copyhold manor
ed. 8 Mass. Rep. 285.. Common* Whenthe law officers file an in-
wealthr. Jthearn. formation at the instance of the
Granting leave to file an infor- legislature, they do it ex officio,
matien is a matter of discretion, though they recite the order under
and no precise rule can be laid which they proceed. 10 Mass. Rep.
down to govern the court ; they are 290. Commonwealth v. Fowler. An
governed by all the circumstances information may be filed,' and no-
taken together. 1 D & E. 3. Bex tiee to the defendant ordered, in
vi Stacey. See Bac. Abr. Informa- any county, returnable in the eoun-
tions.D. Bsp. Dig. Tit. Quo War- ty where the defendant has his
ranto, where the cases are collect- domicil. 11 Mass. Rep.*74. Comr
ed, and the general rules stated. monwealth v. Smtad.
Mich. 8 Jag.
H not capable of an escheat of a freehold, beeanse that
whieh comes in lieu of another ought to be of the same na-
ture, and then the freehold escheated would be copyhold,
.which is repugnant and impossible. Also the rent of 20s.
cannot be intended rent-service; for it cannot accrue to be
rent-service by any estates made by the lord of the sup-
posed copyhold manor 5 for it is contrary to the prescrip-
tion alledged by the defendant, that the manor of New-
nams has oeen always demiseable, &c. within the manor
of Warfield, and not within the manor of Newnams. And
if the lord of the manor had at first granted by copy the
90s. rent of his tenants, it is a void grant, because it does
mot appear how much he shall have of the one, and how
mnch of the other, &e* by 9 11. G. 13. and F. N. B. Also
here the defendant does not maintain his manor of New-
Bams but in reputation only, viz. that it has been known
ton by the name of a messuage, &e. quam by the name of
the manor, &e. but does not shew that it ever was granted
as copyhold by the name of a manor, and although, as sir
Moile Finehe's case 6 Co. is, reputation is sufficient to doss 6 Co. 64. *.
a thing in a conveyance by the name of a manor, which in
truth is not a manor, yet there must be truth and not repu-
tation to challenge and hold the* privilege of a manor, as
to have a court-baron, &c. Also this quo warranto is a
writ of right in its nature, whieh ought to be answered in
chief, whieh this defendant for the tmallness and baseness
of his estate cannot do $ for, as 14 E. 4, 7. is, tenant at will
of a manor cannot plead in disability of a villein, mutto
minus can he enable himself in his own right to hold a
court-baron, which is a court of justice. Ana, by the book
of Croke justice, a franchise shall be seised, if it is claim-
ed by other than by him who has the freehold, and hare the
defendant claims part of the king's justice, and the distri-
bution of it among his subjects, and therefore it ought to
be in the name and right of him who has the freehold at [ 19»]
least $ for in a quo warranto against him who has for years
in a manor, to. shew quo warranto he holds a court -baron,
he ought to pray ana of his lessor ; otherwise, if he pleads
in defence, he shall be ousted of the liberty by judgment.
Br. quo war* Sf Croke/.— Quod nota, by Yelverton, Wil-
liams and Croke, and judgment was given that the defend- 2 **od. *34.
ant should be ousted from holding court ; for by 10 E. 4. 7. * *"£• *°-
if the party has continued possession of the liberty by \ ^^ 95 ^'
wrong, the judgment is that he shall be ousted; but if he
had once title and loses it, the judgment is, that the liberty
shall be seised.(£) Quod nota. Fleming chief justice and
(*) With respect to the form of 407. and the ease ef The King v.
the judgment for the crown, where Amery, % D & E. 515. and in the
it is. given on the defendant's plead- two volumes containing the report
ing, there has been much difficyl- of that ease as argued and decided
ty and dispute. See % Kyd on Corp, in the House of Lords.
Mich. 8 Jac.
Feauer agreed, that the plea in bar is net goad ; bet they
doubted, whether a quo warranto lay of a court-baron, be-
cause it it a eourt created by law, as incident to a manor,
and it not derived by any grant out of the crown. Baa
that this writ lies of a court-baron, vide 17 B. 2. -quo war.
Br. 4. In quo warranto he claimed to hold a com* of hie
own tenants in his manor of D. and vide there that it is a
good plea, to say that he has a manor there* And OW
N. B. in the gis( of the writ quo warranto, shews expressfcr
that it lies where a man claims a court-bamn.(3) Yelver-
ton was of counsel with the king in the right of sir H. NevMl.
(8) See Andr. 1*. The King v. Cam. 1 Bl. Rep. 4*. The
King v. Bridge.
Neale vs. Sheffeild.
Cro, Joe. 2S4. 1 Browol. 109. 1 Bolst. 06. 8. C.
U to debt oa DEBT on bond, and demanded laL The condition wat>
pood the de- that if the defendant paid 7L to the plaintiff upon the
fondantplead birth-day of the child of Jo. Living, which God should
acceptance ^nd after the date of the bend, that then ece. The de-
pfspecificar- fondant pleaded that the plaintiff, after the making of the
charge of the *«nd, ttnd before the birth of an 7 eiftild of *• ** id *• Liv *
bond\ it is ill Mffo viz. 1 Sept 7. was indebted to the defendant in a load
—it ' should of line to be delivered on request ; and the same day it
be in dii- was agreed between them apud L. that if the defendant
charge of the wott i<j discharge the plaintiff of the said load of lime, that
f d l> ta°''the iheuin considerations inde the plaintiff would discharge
condition. A tae defendant of the said bond, and would accept the said
debt paya- lead of lime in full satisfaction of said bond ; and aliedged
ble oa a con- in facta, that he discharged adtttnc Sf ibid, the plaintiff of
tingeocycan- the said load of lime, which the plaintiff accepted in dis-
"h* be , <"' charge of the bond, and then acquitted the defendant of the
charged. Qu. ga y ^ on< |. an d demanded judgment of the actio*; upon
5 Co. 117. which the plaintiff demurred. And it was adjudged for
6 Co. 43. * the plaintiff for two reasons : 1. Because the defendant has
Palm. ill. pleaded his bar iq discbarge of the bond, whereas he ought
?B.o!.R.i88. to have pleaded it in discharge of the cum contained in the
condition of the bond ; fqr it is sot a debt simply by the
bond, but the performance or breach of the condition makes
[ 103 J it a debt, for the bond is guided by the condition, so that
if the condition is not discharged, the bond remains in
force, and the matter of die bar is not pleaded in discharge
of the condition, but of the bond, and therefore it is not
good. Quod nota $ a good reason. 3. It appears that the
condition itself cannot be discharged ; for the 7L are net
due nor payable till the birth of the child of Jo. Living,
Pott. 214. which is a mere contingent and remote possibility, whether
he will ever have any child or not; and therefore it resting
in contingency, whether it will ever become a debt or not,
. Mich* 8 Jac.
eannot be discharged 5 for a possibility cannot be released,
as it has been adjudged in Carter's case ; and it is net like,
where the condition is to pay money at a day to come, that
may be discharged presently ; for it is a doty immediately,
thoagh it is not demaadable till the day ; bat here it can-
not be known, whether such day will ever come, that Jo. ")
Living shall have a ehild ; and therefore it is no debt or
duty, and by eonsequenee eannot be discharged.(l) Quod
nota. Per totam curiam on good advice. Yelverton was
of counsel with the plaintiff.
(i) See statute 4 Anne, e* 16. § IS.
Dodson w. Kayes.
Cro. Jac. 261. 1 Browol. 110. 8. C.
Iti»»fficieat
DEBT, and demanded lot. because the defendant SSOet. if the wonts
1*08, at M. in com. Mot. per sctiptum suum obligatorium ac- of a bond
knowledge* se debere to tne plaintiff iol. &c. to be paid up- ,hew th **
on request ; yet the defendant had not paid &c. The de- {Jj^P* rty n
fendant craved oyer of the bond, which was entered in hcec
verba: novermt miversce per presents me Tho. Kayes of H. Ld.Ray.336.
in paroeh. W. in com. Barbie generos. tenerie etjirmiter ob-
tigarU Ed. Dodson de M. in 6. in com. JVbt. gen. in decern li-
brisbonaet tejgal. monet Jlng. solvend. eid. Ed, ant suo cer-
to oft. vel hesredibtts suis. M quam quidem solutionem bene
et fideMter faciend. obligamus me heredes 9 executor, vel as-
signat. meos per prcBsentes. SigiUo me sigUlato, dot. tres tn-
gtnti dn Octob. an. regtd reginm domini nostri Jacobie dei
gratia Jkiglia 9 Scotim, Francia et Hibemfo, $c. rexe defen-
saris suis de Scotia sexto, de J&nglice quadragesimo secundo f
1608. And thereupon the defendant demurred ; and it was
* adjudged for the plaintiff; lor there are two principal
things to be contained in a bond ; 1. Parties so it : 2. The
sum in which one party is bound : and both these are ex-
pressed sufficiently to the knowledge of the judges ; for
both the obligor and the obligee are well named, the sum
likewise is well expressed to be lOi. then any words, where-
by it may be collected, that the party intended to bind him- [ 194 ]
self, will serve, and they are wrote here although in false
Latin, viz. tenerie et obligarie, which words have but the >° Co « J33-
letter (e) of abundance and false Latin, as 10 H. 7 — is, a- JJo. 864.
bates a writ, because the party may purchase a new writ, Con7b.60.
but it will not destroy a bond ; for the party eannot have a o.Ca'r. 416
new bond when he will: and although there is not any Hob. 19. 116.
such year of the king's reign as Angliae 42. or Seotise 6.
that is not material ; for it is good although it has no date,
as 18 H. 7,— Croke is, and the party may surmise a date in
his declaration, and it is good, and the party must answer
to the deed, and not tothedate.(l) The same law, if it has
(1) See Perk. § 1 JO. 121. Com. Dig. Fait. B. 8. * Bast
477. Hall v. Cazenave.
Mick 8 Jac.
M impossible date, as 80 Febr. where there are bat twenty -
eight days in Febr. yet it is good ; and here also it is aid*
taper atmum Domini 1608, and that is a time certain and
sufficient, and the declaration is good which has omitted
Eear of the King, and inserted the annum IhmmL
nota. Fer totem curiam. Yelverton of counsel with
m laintiff.
Gomersall vs. Medgate.
Cro. Jsc. SS5. 1 Belst. 58. 8. C.
Goods can* TROVER for several goods in specie; the defendant
not be dit. shewed that he was bailor of the manor of Dunstable,
trained and whereof the king is seised, and that a plaint of debt was
owMr^net? there affirmed by J. 8. against the plaintiff, wherefore pro-
bet to ap- eeM i**ned to the defendant being then bailiff, to distrain
pear aod an* the now plaintiff to* be at the next court to answer to the
swer to a plaint aforesaid, wherefore he by virtue of the process dis-
plaint ia a trained the plaintiff by the gooods in question, which be*
conrt-baron. eauge h e jy not come to the said court were forfeited
to the king, as lord of the manor, and the defendant had
accounted for them to the king, &e. and thoreopon the pit
demurred. And it was adjudged for the plaintiff^ for in a
court baron no goods can be forfeited for default of appear-
ance on the distress, for a distresses but in the nature of a
pledge to be safely kept ; and in a court-baron a distress
infinite only lies, and not an attachment $ for where a man
SRol.R.493. is attached by course of the common law by his goods,
there for non-appearance they are forfeited, as 7 H. ft, — is,
but no attachment lies in a court-baron, but a distress only,
by 88, 8*. H. 0. therefore the defendant confessing an in-
termeddling with the seeds, which is not justifiable, it is
a conversion. (l) Quodnota. Yelverton was of counsel with
the plaintiff.
(t) See ante 174. a. n.
[195]
Tatetn & Poulter vs. Perient.
Fa an Taction THE defendant granted to the plaintiffs 1000 trees in
for not per- such a wood to be cut down within 8 years after the grant;
mitting the and afterwards they agreed, when the plaintiffs had cut
plaintiff to <lown gome of the trce§ ^ that ^y g ii OU |j not f e i| an y more
treemwodd durin S the three years, and that the defendant would li-
amooat, to- cen * e thtm after the three years to fell as many trees as
gather with amounted to the full number of 1000, and because the de-
what had al- fendant hindered them after the three Tears from felling the
M &d d i been trees they brought assumpsit, and declared, and shewed the
thou 'd the grant aforesaid : and that in consideration they would for*
*° >"* bear the feUing any snore trees till after the three years,
Mich. 8 Jac.
f 193 a J
die defendant promised to give licence to the plaintiffs to plaintiff a-
fell as many trees there after the three years as amounted * e " e * ' **?**
to 4000, and aliedged in facto, that at the time of the pro- ^ 8 00^
ntise they had eut down bat 800 trees and non amplius, and th / defend-
that they relying on the promise had forborne to fell any and pleaded
more within the three years, and that after the three years that the
the defendant hindered them from felling the residue, which plaintiff had
made 1000 trees, to their damage, &c. The defendant fe " ed 100 °
pleaded that before the promise supposed to be made by **j that^he
the defendant, the plaintiff had felled 1000 trees, absque hoc, ba( | f e |] e< j
that at the time of the promise they had felled but 800 trees only 800—
only &e. and thereupon the plaintiffs demurred. And it on demurrer,
was adjudged against the plaintiffs 5 yet it was objected, the tr *""?
that the traverse was insufficient and idle, for the defend- was . **"*
ant's plea had been good without any traverse at all ; for it 8T>0 *
was a full answer, to say, that they had felled 1000 trees,
without more, and that would make an issue. 2- The tra-
verse ought to have been, absque hoc, that the plaintiffs
at the time of the promise had felled but 800 trees, omit-
ting the (only) for the aUedging of that in the declar-
atienwas but to increase damage, and not matter of sub-
stance as to the action. But, per totam curiam the traverse
is 'good, for the plaintiffs by aUedging the felling of 800
trees only in their declaration, which is a matter issuable,
have given the defendant advantage to traverse in the man-
ner as he hath done ; for every matter in faet aliedged by
the plaintiffs may be traversed by the defendant, and the
defendant by way of traverse may answer the matter al-
iedged in the same words the plaintiffs alledge them, and
then the plaintiffs have by their demurrer on the Bar con-
fessed the felling of 1000 trees, which was their full bar-
gain at first, and by consequence there is no eonsiderasion
on which to ground the promise. Quod nota. By all the
justices. Yelverton was of counsel with the defendant.
(1) Where a party takes upon fendant the advantage of travers-
himself to state in any pleading a ing. So in Leke's case, Dyer 325.
substantive averment, or alledges a seizin in fee was not necessary
a precise estate, which he is not to give the plaintiff a right to put
bound to do, if they be material his eattle into the close against
and bear on the question, he gives which the defendant was bound
the other party the advantage of to repair the fence— for an estate
traversing them. 2 Saund. 307. a. for life, or for years, or at will* or
n. 84. 1 lb. 846. n. 2. 1 Chit. PI. a right of common* or the owner's
381. 024. Thus in the text, it was license, would have conferred that
unnecessary for the plaintiff to right; but it was necessary that
state the precise number of trees some right should be aliedged, and
which he had felled ; but having the plaintiff having aliedged a sei-
done so, and the number, that was ssin in fee, the allegation beeame
left, being material to shew the material and traversable. See
damage which he had sustained by Winch 18. Davies v. Turner. Ex-
the defendant's refusal to permit eeption to too precise or particu-
him to out them, ho gave the de- lar a statement of material matter
Mich* 8 Jtc.
[408 6 J
eannot n general be takes by de-
murrer, unlets it is repugnant te
the precedent matter ; aad though
such repugnancy may not, in tome
eases, be aided by verdict, yet if it
appear that a verdict was given
on another part of the plea, the
mistake will be aided. 1 Chit. PI.
02ft. Bac. Abr. Pleas & Pleadings.
I. 4. Co. Lit. 308. b.
Where the allegation is not ma-
terial, it eannot be traversed. 8ee
an instance 2 8tra. 818* Palmer v.
Skins. 6th res. 8 Saend. 207. b. n»
Where an action is brought for
damages, in which the plaintiff is
by law entitled to recover in pro-
portion to the loos or injury he has
actually suffered, a traverse which
ties him op to prove the whole
damage stated in the declaration,
before he ean recover at all, eannot
be supported. A defendant shall
not be permitted, by expressly trav-
ersing any allegation hi the declar-
ation, by a formal traverse, to cem-
C el the plaintiff to- prove more than
e would be bound to do on the
general issue pleaded. Thos in
Ooram v. Sweeting Sfe. 2 Sound.
200. 2 Keb. 717. Tan. in assumpsit
on a policy of assurance on a ship,
her tackle, apparel, &e. the plain-
tiff averred that the ship, tackle,
apparel &c. were sunk and destroy-
ed in the voyage : The defendant
pleaded that the ship fee. arrived
in safety, and traversed the sinking
and destruction of the ship, tackle,
apparel, &c. and the traverse was
held to be bad. See 4 Sawid. 267..
Osborne v. Jiggers, ibid. 813. d. n.
* . Com. Dig. Pleader. 6. 15. Poet
280. JVewhatt v. Barnard.
There is a class of cases, in
which a distinction has been es-
tablished between averments which
are impertinent and foreign to An
cause— and averments which, the 9
unnecessary, describe a constitu-
ent part of the plaintiff's title :
The former are rejected as snr-
ptosage~-the latter most be prov-
ed as made, or the plaintiff will
fail on the ground or a variance.
This doctrine is eenined to rec-
ords and contracts. 8D&S. 640.
Gwinnett v. PhUUpeSfaL From
an expression of Btiller J. in this
ease, and another of Marshall C.
J. 8 Craneh 208. it might he infer-
red that it is confined to records
and written contracts. Butthongh
the instances in which this rnie has
been applied, may all have been of
that description, yet no good rea-
son is perceived lor a distinction,
in this respect, between contracts
written and unwritten. A vari-
ance, in other eases, is equally fa-
tal in describing either. Bee on
this subject, Dong. 667. Bristol v.
Wright #aL * D & £. 406. Pep-
pin v. Sotemom. 8 Bos. & Pel. 40*.
'fumer v. Eeies. 2 Br. Rep. 8*9.
fWnn v. White, ibid. 1408. Savage
v. Smith* 1 D & E. 125. King v.
Pippet. 2 Bast 403. WiUiameen v.
MUeon. Bast 440. Wigley v.
Jones. % Bast 160. Pur cell v. Mtte-
nmmra.2 Taunt. 227.Rhind v. Wil-
kinson. 7 John. Rep. 321. Jerome
v. Whitney. 3 Craneh 200. Wilson
v. Cedman*9 B&rs-. 8 Day 283.
£/*. States v. Porter. It may he
collected from the above authori-
ties, that whenever a contract is
described,a variance wiH be equal-
ly fatal, whether the action be up-
on the contract itself, or opofi some
collateral matter, or in form ex ofe-
licto. l Chit. PI. 807. Esp. Rep.
31. Dttehburn v. SpraekHn Sfal
Hil. 8. Jac-
Hawes vs. Loader, Administrator of Cooksorv r 19fl -i
1 Brownl. 111. Cro. Jac. 270. S. C.
THOMAS Cookson the intestate 10 Febr. 2 Jac. for 20L
paid beforehand by the plaintiff granted all his goods men- In a . n action
tioned in a schedule annexed to the deed, and gave him pos- a S ain . 9t . an
session bja platter, and covenanted that they should remain t or bya'ven-
as they were before in his house, on demand to be carried dee of the
away by the plaintiff, and that the intestate, his adminis- intestate for
trators, &e. them safely should keep and quietly deliver, converting
&c and to perform this covenant the intestate bound him- S°°f *' the
self in 40/. to the plaintiff j Cookson died, the plaintiff 16 c de „jfp,° ad
Martii anno 6. demanded the goods of the defendant being {™\„ the
administrator, and he did not deliver them, wherefore the itatute ofE-
plaintiff brought the action and in his declaration shewed liz. against
in specie what goods were in the schedule. The defend- fraudulent
ant pleaded the statute is Eliz. of fraudulent deeds of gift, f r ec f, 9of ? ift ;
&e. and further said, that Cookson the intestate, ±2 Febr. oC T^ ft i«
anno 3. was indebted to several persons, and named them, fraudulent,
in several sums amounting to iOOL and so being indebted the vendee
19 Febr. an. 2* made the deed of gift, ut supra, being of them may be sued
and of other goods possessed, amounting to 802. et non ultra, *s executor
and that by fraud and covin between the plaintiff and him; * '?»'"<•
and to the intent to deceive the creditors named ; and shew- g. - .
ed how notwithstanding the deed of gift, Cookson occupied ^ p uc *
the goods all his life, and afterwards died, and the admin- Cowp. 435*
istrationwas committed to the defendant. The plaintiff % T. ft. 46?.
replied that the defendant had assets in his hands to satis-
fy the debt demanded ; and further that the deed of gift
was made for a good consideration, &c. upon which they
were at issue. And at the trial at Huntington assises be-
fore the lord Coke, he rejected the trial, because no good
issue was joined \ wherefore, on motion, the King's Bench
awarded a repleader, upon which the defendant pleaded fit
prius, and the plaintiff demurred thereon. And it was ad-
judged for the plaintiff. 1. Because the defendant did not
aver in his bar that the debts yet continued unpaid to the
creditors named : for there were four years between the
deed of gift to the plaintiff and the death of the intestate
who- made it, in which the debts may well be presumed to
be satisfied. 2. The defendant does not shew, that the
debts due to the supposed creditors were by specialty, and
then the matter of his plea is not good ; for tne defendant
cannot plead this plea, but in excuse of himself, to free him
from a devastavit, and that cannot be in this ease, for he
being administrator is not chargeable with the debts, un- [ ig? ]
less they be due by specialty. 8. The defendant pretends,
as it seems, that there would be a devastavit in him, if he
should deliver the goods contained in the deed to the plain-
tiff; and that it eannot be ; for those goods, as to creditors,
are liable in the hands of the plaintiff, as executor de son
36
Hil. 8 Jac.
L 197 a I #
tort, it the deed of gift be fraudulent/ 1) 4. Perhaps the credi-
tors named will never sue for their debts, and by that means
the defendant will justify the detaining of the goods for ev-
er, which will be inconvenient $ but if the defendant had
pleaded a recovery by any of the creditors, and those goods
to the value to be taken in execution, that had been a good
Elea. 5. The defendant is not such person as is enabled
y the statute 13 Eliz. to plead this plea; for the deed is
made void against all creditors, &c. but it is not made void
against the party himself, his executors and administrators,
but against them it remains a good deed of gift (2) Quad
Mo. 638. nota. Per totam curiam* Yelverton of counsel with the
defendant.
(1) See O w . 13^. Bethell v. Stan- {2) 3 Co. 81. Twyne's ease. 7
hop. 2 Leon. 323. Stamford's ease. John. Rep. 161. Osborne v. Moss.
Clayt. 38. Legerd v. Linley. Over- 4 Mass. Rep. 357. Drinkwater v.
ton's Rep. 805. n. Bae. Abr.Fraud. Drinkwater. ace.
C. Roberts Fraud. Con. 093. ace.
Martvn vs. Blithman.
2 Bulst. 213. Godb. 250. S. C.
A promise to D. Holman was in exeeation in Plymouth for 312. at the
•ave a gaol- suit of D. which was recovered there before the mayor &e.
cr harmless, Blithman came to the gaoler Martyn, and promised, that in
ti C °th 1( t ef fa " consideration he would set and suffer Holman to go at large,
will suffer a tnat tne 31 ^ 8nou ^ ue brought into court there by Holman
prisoner to by 8ncn a day to satisfy D. and that he would save Martyn
go at large, the gaoler harmless form this enlargement ; D. recovered
is void. against Martyn. on the escape, and afterwards Martyn
brought assumpsit against Blithman on the promise, and
declared all ut supra: and it was adjudged against the
plaintiff: for the consideration is against law, viz. to suffer
Dyer 356. a. one in execution to escape like 10 Eliz. Dy. Only 9 * case; a
promise to pay so much to J. 8. for his labour and pains
about the buisness of the lady Darby, is not §ood, for it is
3 Leon. 208. maintenance : the same law, per curiam, if it had been a
Cro. El. 199. condition on a bond to save the gaoler harmless from an
2 Wi'l 208 egea P e 9 li Makes the bond void, because it is a conditon
1 rp '^ 418 * against law.(l) Per totam curiam. Yelverton of counsel
2 T. R. 569. w * lft the defendant.
(1) A promise is in all eases Hence a bond to indemnify against
void, if the consideration thereof an escape already happened, was
is the performance of an illegal held to be good. 1 Cajnes Rep. 405.
act. Comyn on Con. Pt. 1. c. 3. Given v. Driggs. See the same
Skinner 323. Bartlett v. Finer, principle applied in 3 Bro. C. C.
But a contract to save a man harm- 445. JinnandaU v. Harris. 2 P. W.
less from an unlawful act already 432. S. C. Cas. Temp. Talb. 153.
done, is not void. Per Holt C. J. Cray v. Rooke. 2 Wils. 339. Tor-
11 Mod. 93. Hackett v. Tilly, ner v. Vaughan.
Hil. 8 Jac.
Berisford vs. Presse.
Cro. Jac. 275. 1 Bulst. 147. S. C.
MR. Berisford hath spoken treason, and that I can Actionable
prove : and it was adjudged that the words were actiona- to accuse
ble : for treason may be committed as well by speech as by one of D * v "
act ; for any thing that discovers the mind of a man to "f^n °
be traitorous to his sovereign is capital to the party, A * te ^
and therefore seandalous to be affirmed of him by any r ±$&~\
other. Per curiam. Yelverton of counsel with the de-
endant.
Tuerloote vs. Morrison.
1 Bulft. 134. S. C.
THE plaintiff declared, that whereas 19 Mali anno 8. An alien may
Jac and for ten years past he fuit et adhuc est mercator maintain a
in England and prcecipue in London, and had made true fait for rian-
payment of all his debts to his creditors, yet the defendant der *
19 Maii anno 8. having commnication with one Roger
Twiford of the plaintiff, spoke of the plaintiff these words,
viz. [He innuendo the plaintiff,] is a bankrupt, and he {in-
nuendo the plaintiff) is fled beyond the teas for much mon-
ey, to his damage 000/. The defendant pleaded that the
plaintiff at the time of speaking of the words was an alien,
and born in villa de Courtrick in Brabant in partibus trans-
marin. nnder the obedience of the Dnke of Brabant, et ex- 1 . d g-
tra ligeantiam dominiregps ; et hoc paratus est verificare^Sfc. jn *43i.
upon which the plaintiff demurred. And it was adjudged Lutw. 35.
for the plaintiff; for traflick between merchants strangers 1 Salk. 46.
and domestick merchants is warranted, both by the law of
nations, and by the law of the land ; and the common law
in all things which merely concern his trade of merchan-
dize protects him, and his protection eitends both to his
foods, and to his person ; for the law allows him safe con-
net with his goods, because it is beneficial to the king in
his customs ; and enables him likewise to have within this
realm an habitation by lease from any stranger, and also to
have a personal action, as to demand debt for his merchan-
dizes, with damages for them, if they are wrongfully tak-
en. And this slander here, although it concerns the
plaintiff only in his person, yet beeause it impairs his cre-
dit in his trade by which he is to live, and by which other
subjects of the king have benefit by their commerce with
him ; therefore it is actionable. Vtde Dyer. 6 H. 8. 2. Ad-
judged per totam curiam. Yelverton was of counsel with
the plaintiff.
Hil. 8 Jac.
Kenicot vs. Bogan.
CtKh. 1. 2 Balit. £60. 8. C.
Of the rights TROVER and conversion of two tons of wine $ the de-
oY the crewn fendant pleaded that the king was seised it fee in the right
in the pris- f his erown of the prisage of all wines imported by any
sge of wines p^on^ as we U subject as alien a partitas transmarinis, and
pleadimTto t * Mit t ' ie P" 8a S e °* * ne «*id wines from time whereof, &e.
tiie action of wu answered to the king and his progenitors, their far-
trover, mers or deputies, in manner following, viz. out of every
ship or vessel importing into any port or other place of
this kingdom ten tons of wine for any person a partibus
f 199 J transmarinis, and thereof, or de aliquo vase inde vmi prm-
dicti unladen one ton : and out of every ship or vessel so
importing twenty tons of wine for any person a partibus
transmarinis into any haven or other plaee of this king-
dom, et inde seu de aliquo inde vase vini praedicti disonerat.
two tons of wine, viz. one ton of wine thereof before the
mast of sueh ship or vessel, and the other ton vini inde be-
hind the mast ejasdem navii sive vasts ; and the king so
seised of the said prisage, before the time of the coming
of the two tons to the hands of the defendant supposed by
the plaintiff, viz. £1 Sept. anno 5. the king by his letters
patent, &e. shewn to the court, &e. granted to sir Thomas
Waller the office of chief butlerage of him, his heirs and
successors regni sui dnglue, with all fees, &e. and him
made and constituted chief butler, habendum, &[c. for life,
to be executed by him, or his deputy $ and further the de-
fendant said, that the chief butler for the time being had
used, and been accustomed by himself, or his deputy to col-
lect and receive to the use of the king, &c the said prisage
due ; and further, that the said 13 Apr. anno 7. quaedam na-
m's with twenty tons of wine onerat* arrived at the city uf
fixon aforesaid a partibus transmarinis, viz. a villa de twr-
deaux in France ; and that at the said eity nine tons and a
half of the said twenty tons, being the wines of the plain-
tiff, adtunc exonerate fuerunt ex navi prmd. whereby two
tons of the wine aforesaid were doe to the king pro prisa-
gie of the said twenty tons, by reason whereof tne defend-
ant tempore quo, Sfc. being lawful deputy of Sir Thomas
adtunc et adhuc chief butler, &e* et per ejus ptmceptum the
said two tons vini pradicti pro prisagto the said 18 Apr.
anno 7. supradicto at the city of Exon to the use of the
king took and carried away, and them to the nse of the
king converted and disposed, as he lawfully might, which
is the same conversion, &e. to the use of the defendant as
the plaintiff supposed, et hoc paraius, Sfc. on which the
plaintiff demurred.(l) And four exceptions were moved
to the plea in bar. 1. The defendant shews that the plain-
CD See ante 174. a. n.
HQ. 8 Jac.
tiff unloaded but nine tons and a half, and the defendant
pretends the custom of prisage to be out of every ten tons
unladen to have one to the use of the king ; therefore of
his own shewing he eannot justify the taking of two tons,
because he does not shew that the twenty tons were unla-
den* 2. The defendant does not shew, that he took one
ton before the mast, and the other ton behind the mast; yet
he shews the king's duty for prisage to be in sueh special
manner ; and where a custom prescribes an order and form'
of any thing to be doe to the king, he ought to justify ac-
cordingly, otherwise it is not good. 3. The defendant does
not traverse the conversion supposed by the plaintiff, for Cro.El. 694.
that is a conversion in the defendant himself, and he justi-
fies a conversion to the use of the king, which is another
conversion than that with which the defendant is charged, f 300 ]
4. The defendant does not shew this office of ehief butler
to be an ancient office, to which an usage or custom may be
annexed by continuance of time, but shews only the king's
grant of such office to Sir Thomas Waller, which shall be 2 Salk. 654*
intended a new office, to which no custom to collect prisage
can belong ; and also the defendant does not shew how he
is made deputy; but yet it was resolved per totam curiam
that the plea in bar was good, and judgment was given '
against the plaintiff; and as to the first and second excep-
tions it was answered by the court, that if a merchant im-
ports wines, as twenty tons, though he unloads but part, as
nine tons, or four tons, yet the king shall have his whole
prisage viz. two tons of the twenty tons imported ; for if
the bulk (as Fleming chief justice termed it) be once broke,
it is sufficient for the king to take kis whole prisage : and
so it appears to be by infinite precedents in the exchequer.
It was likewise held per curiam, that although in point of
prerogative there is due to the king one ton before the mast,
and another behind the mast, yet it is not of necessity that
the king shall take his duty in such form, but he may take
which two tons he pleases ; for two tons are due by law,
and that is the substance, otherwise it would be mischiev-
ous ; for that ton, which is this day before ihe mast, may
by the subtil ty of the merchant be transposed to be the
third or tenth, or the last ton in the ship : and therefore, if
the merchant %t one haven unloads but one tea, the kins by
his officer shall there immediately seise his prisage, other-
wise the merchant might by fraud oblige the king's officer
to fellow him from port to port throughout England, which
would be inconvenient As to the third exception, it was
held per curiam, that he need not traverse the conversion,
nor plead to it in other manner than he has done. 1. Be-
cause the coming to the hands, and intermeddling with the
two tons supposed by the plaintiff, is confessed by the de-
fendant to be to the use of the king, and that is the matter
in law on the plea in bar, which the court is to adjudge,
and the matter in law shall never be traversed. 2. If the
seisure to the nse of the king shall not be adjudged lawful
HU.8Jac
Clnjt us. by the defendant, then he himself shall be adjudged guilty
of the conversion, because he has acknowledged m point of
judgment a possession of the goods, and an intermeddling
with them. As to the fourth eieeption, it was resolved,
4 tat 30. that although it is not shewn, that the office of the butler-
age is an ancient office, yet it is sufficient, for the defend-
ant has alledged the king's seisin of the prisage of wises
to be an estate in fee injure coronm, and then ex necessitate
n as ancient as the duty is, so ancient shall the office to eol-
[ 2°* J loot it be intended : for it does not consist with the royal
dignity to collect himself; and also in this case, the title
ofthe office is not in question, but an excuse of the seisure
of another's goods for the king's doty : And it is not nec-
essary to shew that the defendant is made deputy, viz. by
parol or by deed, because 1. The defendant does not claim
any interest, but Justifies all in another's right, viz. in the
right of sir Tho. Waller; and also he has said, that he
was legit, deputat. which is sufficient to inform the court,
that the defendant had a sufficient privity and authority to
take and seize the prisage. Quod vide in the reason of
Boiton's case 8 Co. 44. o. Yelverton was of counsel with
the defendant^)
(2) See the circumstances of sage, Calth. 30 to 40. Davis S. b.
this case more fully stated and Yin. Abr. Prerogative ofthe Kins;,
discussed, Calth. 1. See as to pri- R.
Farmer vs. Hunt.
Cro. Jac. 271. 1 Brown!. 220. S. C.
TRESPASS for ehasing of cattle in such a close. The
The grantor defendant justified damage -feasant in his freehold. The
of a common p] a i nt jff replied and shewed a grant of eommon in the place
fy cbaiing where ' &*« °y the defendant to the plaintiff; and that the
cattle to pre- defendant erected there after the grant a stack of corn, and
•erve attack the plaintiff put in his sheep to use the common, and the
of com erec- defendant chased them out, etc. But nota the plaintiff did
ie n by aT not * ay * n *"* rc pl ical « ni n pleading the grant of the eem-
erant. moD by indenture ) frolat. hie in cur. And by all the jos-
A grant of *' ce9 > tDe ehasing oi the sheep by the defendant is not law-
commoD ?ul, for by such means he might defeat his own grant ; for
mast be by the grant of the common in such place, the grantee may
pleaded with use the whole place for common ; and then when the grant-
a profert. or erects a stack of hay on part of that place, now that
10 Co 94. a. ten< * s to tne diminution ana weakening or his own grant,
' which ought not to be 5 but the cattle may range over the
whole place, and eat the hay without doing any wrong; for
the wrong began in the grantor, who is the defendant, of
which he shall not have advantage, and as well as he erect-
ed one stack of eorn, he may erect twenty, and so the cat-
tle will have no liberty to feed there ; but because the plain-
Hil. 8 Jac.
tiff did not shew to the court the indenture of the grant,
which is the ground of his title, for that reason judgment
was given against the plaintiff.
Sadock vs. Burton.
1 Bulit. 103. S. C.
THE plaintiff demanded an account of the defendant ex
quo fuit receptor of such a jewel in specie, ad merchandix-
andum to the profit of the plaintiff, and an account inde
reddendo and on issue, never his receiver, it was found for
the plaintiff, and auditors assigned,and the defendant plead-
ed in discharge ef the account, that he apud Barbary in
partialis transmarinis sold it to one J. S. for 40/. (whereas
the plaiutiff supposed the value of it lOOZ.) and upon this
plea the plaintiff demurred. (l) And it was adjudged for
f202]
It is no plea
in an action
of account,
that the de-
fendant sold
the goods for
a given sum
below the
value • sup-
posed in the
(1) There is no general issue in
account ; and the old cases are
confused and obscure as to the
matters which may be pleaded in
bar of the action, and Wore au-
ditors. See Jenk. 66. 136. Ow. 35.
83. Tottenham v. Bedingjield. 3
Leon. 24. S. C. Hut. 133. Hughs
v. Drinkwater. 2 Brownl. 308.
Butlage v. Clarke. Ow. 57. Anon.
Winch 9. Harrington v. Harring-
ton. Hetl. 114. Page v. Tayler.
Com. Dig. Aceompt. E. 0. Bac.
Abr. Aceompt. £. F. 1 Selw. N.
P. 4. 7. Infancy, never bailiff or
receiver, a release, arbitrament,
bond given in satisfaction, the stat-
ute of limitations, and that the de-
fendant has accounted, may be
pleaded (it is said) in bar of the
action. 1 Chit. PI. 483. Other
matters, which admit that he was
once chargeable and accouutable,
eaqnot be thus pleaded, but must
be pleaded before auditors, ibid.
3 Wils. 73. Godfrey v. Saunders,
It is manifest that the above ex-
ceptions to the general rule are
arbitrarily limited.
If in the action of account, the
matters offered by the defendant
in discharge of the plaintiff's de-
mand, are disputed by the plain-
tiff, he may either demur or take
issue before the auditors. If there
are more points of dispute than
one, there may be a demurrer, or
an issue, on each, which are to be
certified by the auditors to the
court ; and then the matter of law
will be decided by the eourt, and
the issues in fact by the jury ; af-
ter which the account will be fi-
nally settled by the auditors, ac-
cording to the result of the trials.
Per TUghman C. J. 6 Binney 433.
CrousiUat v. JPCall. 2 Inst. 381.
1 Lutw. 47. Andrews v. Roberts.
Bui. N. P. 128. lMal. Ent. 53.
74. and other cases cited in 5 Bin-
ney ubi sup. In Pennsylvania, this
action is liberally extended. In
case of copartners, when one is
sued as receiver, if the partner-
ship is proved — that the defendant
was acting partner— and that he
received any part of the sums from
any person mentioned in the de-
claration — he will be ordered to
account. It is not necessary to state
in the declaration by whose hands
the defendant received; and he
will be entitled to reasonable ex-
penses, in the same manner as a
bailiff. These departures from
strict common law are said to be
necessary, because there is no con rt
of chancery in that state, l Dal-
Hil. 8 Jac
plaintiff 1 ! htm; for first, when goods are delivered to merchandise,
count : lie he who receives then ooght not only to answer the value
ought to an- of ^ goods, bat the increase and profit, which might arise
iT't^ato thereby, as 31 H. 6. 00. is ; and here he does not answer
bat the prof- for any increase and profit of the 40L Also it is not sraf-
it of the fioient for a factor to say, that he sold the goods and je w-
goods, and els to J. 8. for 40/. generally, but he ought to shew by what
•J» ew . bo * means the plaintiff* can come at the 40/7 viz. that he took a
e"bui ** nd or ethcr Me" 1 ? of J S - for iht »°ney j for it would
hU pay. ° ** nioehievous to send the plaintiff beyond sea to seek J.
8 $ it is likewise contrary to the trust and privity repoeed
2 Mod. 100. between the merchant and his factor ; for if the factor tell*
Sty.410.430. them to one who is worth nothing, or cannot give security
for them, it shall rest on his loss, and not in disadvantage
of the master. Another reason here was, because he has
pleaded such a plea as is not triable ; for he has supposed
the sale to be apud Barbary in pariibus tran$marinis $ and
if the plaintiff would traverse this sale to J. 8. the jury
here cannot try it, because the whole fact is laid to be be-
yond sea. (fuod nota. Yelverton was of counsel with the
plaintiff.
las 989. James v. Browne. See This form of action is wholly
Browne's Rep. 203. Crousillat v. obsolete in Massachusetts, though
J&CdL common in many other states.
[ 208 ] Pasch. 9 Jac.
Sallowes vs. Girling.
Cro. Jac. 277. 1 Brownl. 112. 1 Bolft. 123. S. C.
On a lubmis- DEBT on a bond, the condition was to stand to the award
T° to Jth' of A# Ba C ' *° d D * of ail actioD8 ' qauTOls and demands,
award be **•" **° 9*°* *• sai< * awara ' ** ma( * e in writing before such
made before a day nv the said A. B. C. and D. or by any two of them
•uch a day under their hands, &c. The defendant pleaded that the
by them or said A. B. C. D. or any two of them nullum fecerunt arbi*
any two of frium. The plaintiff replied, that A. and B. two of the ar-
waid by two bitrator » before * e d *y h J writing under their hands, &c
is good. miw * e an Aw^rd, and shewed it to the court in certain, and
assigned a breaeh(l) in the defendant for non-payment of
1 Stra. 116. Si. at a day past limited by the award. Upon which the de-
fendant demurred. And it was adjudged for the plaintiff;
in which the sole question was, whether the award made
by A. and B. only, without the others, be good or not ; for-
asmuch as the submission was to four by name, and in the
premises of the condition the defendant is bound to stand
(t) See ante 153. n.
Pasch. 9 Jac.
to the award of four also. But it was adjudged per totam
eurUm, that on consideration had of ever? part or the eon*
dftion, the award made by two only is good ; for arbitrators
are made judges by the consent and election of the parties,
and here it appears, that the parties fixed their trust not in
all foar jointly, but conjunctim et divisim; so that the ita
quod, #c. is an explanation of the whole condition, that
they four or any two of them might arbitrate all things
between them 5 and so much appears 2 R. 8. 18. b. where 1 Lev. 139.
two of the one part, and one of the other part submit them- \ £ eb - 79 °*
selves to the award of J. 8. by this submission J. S. may 83 *' 857 '
as well arbitrate any causes between the two parties of
the one part, as between them and the third, beeanse in
the intent of the parties the end of their submission was to
have peace and quiet.(2) And 4 £. 4. 40. a. the condition of
a recognizance was, si T. Acton staret & obediret the award
of fonr by name, three or two of them de omnibus, Sfc. that
then ; and it is all one where the division of their power
comes altogether, and where it follows the ita quod $ for
till the ita quod 9 Sfe. comes, the condition is not perfect, for
the whole condition is but one sentence. Quod aurta.
Yelverton was of counsel with the plaintiff.
(2) March on Arbit. 177. Kyd on Aw. 182. 183. and the
eases there cited, ate.
Bradley vs. Banks. [204 J
1 Built. 141. Cro. Jac. 283. S. C.
IN an appeal brought by Eliz. Bradley the wife of Fr. To an appeal
Bradley of the death of her husband(l) against R. Banks of man-
who came in on the exigent, the defendant appeared and , ^ ugl i ter / *
craved oyer of the writ and of all- the mean process, vrhieh f^ e ™ v £t'
was entered on record in hmc verba. Where it appeared \ u $ not g u5 |I
that the wound and death of Fr. Bradley were 25 Octobr. ty of the fel-
anno 6. # 29 Junii 7. the writ of appeal was brought re- ouyandmur-
turnable Quind. Mich, after, where in fact it should be re- der afore-
turned a die Sancti Mich, in ±B dies, which is 16 Octobr. «jj°» ld not
(1) Appeal is a civil suit, tho' Some appeals have been com-
the defendant is pursued not only menced in modern times, but they
criminally but capitally. It has were not proseeuted with effect,
been but little used in modern See 5 Bur. 2648. Bigby v. Kenne-
times ; and great nicety was al- dy 6f al. 1 Barnew. & Aid. 405.
ways required in conducting it. Ashford v. Thornton. In this last
The learning on the subject will ease, which was a very recent one,
be found in most of the writers on the court of King's Bench held
criminal law. See 2 Hawk. e. 29. that the old law was still in force,
Com. Dig. Appeal. Bae. Abr. Ap- which allowed the appellee the
peal. 4 Bl. Com. 812. 8 Wilson's right by trial by battel.
Works 143. Stannf. 68 to 83.
37
Pasch. 9 Jac.
Cro. El.296. 7. the capias on this writ bore teste 23 Octobr. 7. where it
ought to have the teste of the first writ returned, vis. 16
Octobr. 7. And this eapias was returned Oct. HiL after,
whieh was 28 Jan. 7. the first daj of Hit. term, and the ex-
igent on this eapias bore teste 2* Jan. whieh ought to have
been £3 Jan. viz. the same day of the eapias retained*
Also the exigent was returned a die Sanctm Trin. in ±6
dies, whieh is 20 Junii after, and the allocat. com. whieh
'issued thereon bore teste 21 Junii, where it ought to have
been the teste of the exigent returned. Then the plaintiff
having deelsred in her appeal, the defendant pleaded that
at the general gaol delivery at York before commissioners
assigned he was indicted of the felony comprised in the ap-
peal, and arraigned and found guilty of manslaughter, ami
had his elergy, prout patet by the record : And further
said, that nullum judicium, was given on the premises, and
took all the material averments, Sfc. et quoad feloniam #
murdrum pr&d. the defendant said that he was not guilty,
and thereof he put himself on the country, &e. upon whieh
the plaintiff demurred. And it was adjudged per tot. cur.
pro def. In whieh it was first agreed, that no appearance
ny the defendant in appeal will aid any discontinuance of
the suit, but error in tne mean process is salved by an ap-
pearance after, as 9 H. 0. 2. in appeal the sheriff returned
on the exigent cepi corpus, where it should be exigifeci ;
and the defendant appeared, and was acquitted, and pray-
ed damage ; and it was moved that he should not have it,
because he was not lawfully acquitted by reason of the
error in the return of the sheriff supra ; yet it was adjudg-
ed, that he should have damage, because the foundation of
the suit, viz. the writ of appearand all the process which
issued at the suit of the party, was good and right But
Ld. Ray. in the case supra several discontinuances appear on the
1096. record ; for although the law gives this writ of appeal, as
a means to be justly revenged for the death of the husband,
yet it ought to be instantly pursued, without any negligence
in the plaintiff; for because this suit threatens death to
r 202 ] th e party, therefore it ought to be in all points strictly pur-
* J sued, and by the law there ought to be no mean time nor
space in an appeal between the return of the writ and the
issuing of the capias, nor between the return of the capias
and the issuing of the exigent. Wherefore it appears oth-
erwise here ; for there is 7 days space between the return
.of the writ and the exigent awarded, the one being 16 Oct.
Ifthe capias anno y 9 anf j the capias being 23 Oct, the same year, where
on The "err t^* teste ot the capias ought to have been the same IS Oct.
day the writ ^at *he fi™t writ was returned, and where the capias is
of appeal is returned Oct. HiL 7. which is 23 Jan. the exigent thereon
returnable it did not issue till 21 Jan. the same year; so that there is a
is a discon- day omitted, for the exigent ought to have the teste 23 Jan.
tinuance. ^ gftn|e f a(| j t a pp ear8 j n t fo e a U oca i, conu whieh issued or
the exigent returned, for it bears teste 21 Junii, anno 8.
Co. Lit. 325. where the exigent was returned 20 Junii the same year, so
Pasch.'9 Jac
that there appears the negligence of a day ; for all which
reasons the eourt agreed that the appeal was discontinued,
for there was laehes in the plaintiff in .. suing forth every
mean process by skipping of days, where every process
ought instantly, and without any mean time, to issue the
one after the other, and so is Mr. Staunford, and all the
precedents in the king's bench. Theq the plaintiff moved,
that the defendant's plea was not good, because after the
tonviction pleaded on the indictment, he pleads to the fel-
ony and murder aforesaid non cut: which is no answer to
the plaintiff's declaration, which has supposed the defend-
ant's faet to be homicide only and not murder; but per cu-
riam the plea was resolved to be good for three reasons. 1.
Beeause ex necessitate juris the defendant need not plead at
all to the country, where* he has pleaded a good speeial
plea before, for this plea to the country added to the other
plea is but in favorem vitce, and the defendant may haz-
ard his life on the first plea if he will. Quod vide 7 E. 4.
15. et 14 £. 4. 7. and here the pleading of the conviction
with the clergy alloived is« good bar in this appeal, as it
was adjudged in the like ease 33 Eliz. jn an appeal between
Wrot and Wigs; and 20 Eliz. in an appeal bet. .en f)urgh
and Holeroft, quod vide 4 Co. 40, 46. and then the pleading
over to the felony is mere trifling. (2) 2. The word (mitr-
f 205 a ]
Not guilty to
the murder is
a good plea
in an appeal.
Co. Entr.
53. b.
1 Aod. 68.
1 Salk. 63.
Comb. 410,
Kel. 89.
(2) It is said by lord Hale, that
he who pleads autrefois convict, or
autrefois acquit, must also plead
over to the felony. 2 Hale P. C.
948. 255. It was also held to be
accessary in the ease of The King
v. Vandercomb Sf al, 2 Leach 3d
edit. 822. and is laid down by Mr.
Chitty as a settled rule of plead*
ing. l Chit. Crim. Law 460. 463.
The precedents also shew that
sueh is the practice. Tremaine P.
C. 25. Armstrong v. Lisle. Kelvng
98. 8. C. 2 Stark. Crim. PI. 707.
4-€hit. Crim. Law 52S to 540.
Broekenb. & Holmes 259. Bailey's
ease. But the jury eannot be
charged at the same time with both
issues, but must first determine the
plea of former acquittal or con-
viction. 1 Leaeh 3d edit. 130. The
.£?»£ v Roche. And it seems that
if the defendant neglect to plead
over to the felony, it is eause of
demurrer only, or for an order to
amend. See 2 Leaeh ubi sup. In
favoremvita, he is allowed to plead
not guilty, after a demurrer or spe-
cial plea determined against him —
and this indulgence is granted, as
well when he pleads autrefois ac-
quit, &e. without pleading over to
the felony, as in other cases. 2
Hale P. C. 256. 2 Hawk. e. 23. $
135. 4 Bl. Com. 338. In Massa-
chusetts, it has been decided on de-
murrer, that it is unnecessary, in
sueh ease, to plead over to the of-
fence. 13 Mass. Rep. 455. Com'
monwealth v. Goddard.
As to the general rulesby which
the pleas of former conviction and
former acquittal are governed, see
Hale's Summary 247. 248. 240. 2
Hawk. c. 35. 36. 4 Bl. Com. 336.
1 Chit. Crim. Law 460 $ seq. l
Stark. Crim. PI. 297 <$' sea.
A conviction of a breach of the
peace before a magistrate, on the
confession or information of the
offender, is no bar to an indict-
ment for the same offence. 4 Mass.
Rep. 477« Commonwealth v. JHder*,
man.
Patch. 9 Jac
irum) in the plea is idle, and the ward (Jttaitam) is the
principal word, which will make hit plea refer te sock
maaa*r ef feleev, at the plaintiffs motes in him. 3. The
were 1 (murdrmm) here cannot he takes but for homieide 5
fcr if there he net malice prepense ia the feet committed
by the defendant, although the indictment er the appeal
•ays, thai the defendant murdrmvU saeh a man, if it does
Bet say nuditia prmcogitata, it it hot manslaughter, so
that the went (murdravit) it indifferent to express raaift-
slaughter, at well at murder, if it hat net other words join-
ed with it tyos* sola. Yelverton was of eoaasel with
the defendant.
[ *>• I Trin. 9. Jac.
Bristoe w.Rriipe.
Ceo. Jac. 281. 1 Brown). 113. 1 Bolit. 156. S. C.
* f A. barrain DEBT on a bond of aoof. the condition wat to perform
! p** 11 !^ aM covenants, clauses payments and agreements contained
proviir that ta a deed P* 11 of the Mme date ' mmde b y *• ****** the
on payment defendant The defendant shewed to the eonrt the deed
at inch a day pell in hme verba, in whieh was contained a grant, and bar-
the bargain gala and sale of certain land made by the plaintiff to the
andsak thill defendant for 100/. paid, and 2002. to be paid afterwards ;
■a? .^ in whieh deed there wai & V™™»> that ** the defendant
eaten into did not P av for the Pontiff to J. S. 40*. to J. D. 40*. &e. at
bond to per- 80ch a oay, that then the grant, bargain and sale should be
form all cot- void, &e. and on a plea by the defendant that he had per-
•naotijclaus- farmed all covenants, &c contained in the deed, the plain-
e M»y*ents tiff assigned the breach in non-payment of 40/. at a day ae-
ments lathe eordra S to the proviso 5 on which the defendant demurred,
deed; yet the and '* was adjudged pro defend, per totam curiam. For the .
bond* is not condition of the bond does not oblige the defendant to per-
forfeited by form other payments than such which the defendant is
nonpayment bound by the deed to perform; for the bond was made but
at tb d°° eJ for the •tightening of the deed, and the deed does net re-
e ?ay. ^ nire anv eom p U i sor y payment to be made, but leaves it to
2Mod.36.37. t" e W *M of the defendant either to make such payments
2 Lev. 1 16. comprised in the proviso, or in default thereof to forfeit
the land to the plaintiff; so that the intent of the parties
was not to make the bond and the condition of it repugnant,
and contrary to the deed poll of bargain and sale, as that
the payment of the 40/. to J. S. whieh is made voluntary by
the deed poll, should be made compulsory on the bond, but
the word (payments) in the condition of the bond shall have
relation only to such payments comprised in the deed poll,
Trin. 9 Jac.
which will he compulsory to the defendant and not other-
wise. And because neglect of payment of the 40i. to J.
3. whieh is assigned for breach, is in its own nature volun-
tary, to be paid by tbe defendant or net, to which the con-
dition of the bond cannot in any reasonable construction
extend ; therefore it was adjudged against the plaintiff.
Quod nota. Yelverton was of counsel with the plaintiff.
Rosse vs. Pye. r soy i
Cro. Jac. 281. 1 Balit. 155. 8. C.
THE plaintiff alledged the consideration to be, that in To an action
consideration the plaintiff had entered into a recognisance for pot ap-
of sneh a sum with the defendant, on condition, that the pe* rin !f **
defendant should make his appearance, &e. at the next as- Javine^tbe
sizes to be held before the justices of gaol-delivery for the p iff.harmle»s
county of Suff. &c. the defendant promised to appear at from a re-
the said general gaol-delivery, &c. and to save the plaintiff cognisance,
harmless from his recognisance, &c. and shewed that the * P ,ea tb*5 a
defendant did not appear, &c. nor had saved the plaintiff certiorari
harmless, to his damage, &c. * The defendant pleaded, that ^Wad-
before the next general gaol-delivery after the recognisance f or ' though
made, viz. 13 Febr. such a year, he sued out of the king's thecertiora-
bench, &c. a certiorari directed to the justices of assize in ri removei
the county of Suff. by the name of justices of the gaol-de- the recogni-
livery to remove the said recognisance, and shewed that at ^S££ D ™e
the assises held in such a county, viz. Suff. such a day and ^ e obliea-
year, he delivered the certiorari to the lord' Coke adtunc tion to ftp-
one of the justices of assize ; and further shewed, that the pear.
plaintiff had not been damnified by the said recognisance,
. c.
27. ft 65.
2 BuUt. 94.
&c. upon which the plaintiff demurred in law. And it was | 7 H . a ?? t
adjudged for the plaintiff for two reasons. 1. Because tbe
defendant does not shew in his bar, in what place the as-
sizes for the county of Suff. were held, and that is issua-
ble $ for if the plaintiff would reply, that the defendant did
not deliver the certiorari to the lord Coke, it could not be
tried for want of alledging theplaee from whence the ve-
nue to try it should come. 2. The defendant ought to have
shewn expressly, that he did appear at the assizes ; for
otherwise the recognisance is forfeited, and the removal of
the recognisance by a certiorari does not dispense with the
appearance of the party ; for although the writ, by which the
recognisance is to be removed, is the command of the king,
yet the purchase of such writ is the act of the defendant,
and he by no such slight can save his recognisance ; for if
a man is bound to appear at Utas Sancti Juich. coram dom-
ino rege 9 although at the day the term is adjourned by the g fi ..
king's writ, yet the party at his peril, in salvation of his 419 aC * *
bond, must appear and procure his appearance to be re-
corded, otherwise he forfeits his bond. 4 E. 4. 21. a. a for*
Trin.9 Jac
ttori here, because the defendant shall not take advantage
of his subterfuge of justice. Then a consequents sequitur,
that the recognisance being forfeited, the plaintiff has cause
of action ;(i) for although the recognisance is never sued,
18E.4.S7.D. y et the plaintiff is subject every hour to be sued thereon.
Br. Condit. And this was the opinion of the whole court. Yelverton
165. was of counsel with the plaintiff
(t) Cro. Bliz. 26*4. Bush v. proof of having satisfied such judg-
Jtedgely. Ow. \%.BartwrighVscase. ment. 80 in Hamsay v. Jervais 9 &
Cro. Eliz. 869. S. C. 2 Bulst Bay 145. where an indorser, who
lift. Reve Y.Harris, ace. So in had a bond of indemnity, was sued
Murrell v. Johnson's Mm?rs 9 1 on his indorsement, it was held
Hen. & Mun. 450. it was decided that he might immediately eom-
that the obligee in a bond of in- mence a suit on the bond, and wits
deninity may maintain a suit a* not obliged to wait till he was eens-
jfainst the obligor, on judgment be- pel led to pay.
mg recovered against him, without
f 20Q ] Lucas vs. Ful wood.
1 Bulst. 151. S. C.
la a plea of THE plaintiff entered his suit in placito debiti, and de-
debt, a dec- elared that the defendant reddat ei SOL de atmuali redditu
laratioD in g UQ8 ^ j^ g injuste detinet, and shewed in his declara-
actioo of an- tion the deed •* l " e 8 Pant °* the ■*■* **■* *° r y eari f P*ya-
naitj, it bad. hie at several days out of the land, with a clause of dis-
tress ; and concluded, quod def. subtraxit at several days
annualem redditum praxRctum ; and upon nil debet pleaded,
the plaintiff took his venire facias in placito debiti, and had
a verdict. But it was adjudged, quod quer. nil capiat per
billam ; for the plaintiff's declaration shews, that he de-
mands an annuity, which is contrary to the entry of his
plaint in placito debiti $ for in debt a man can never de-
clare quod def. subtraxit annualem redditum ; but this
Cro. £1. 3. W ord (subtraxit) manifests to the court, that the plaintiff
does not demand the rent as a debt, but as an annuity, so
that he enters his plaint in nature of a debt, and declares
in nature of an annuity, which is repugnant in se ; for he
ought to have in a writ of annuity a several and distinct
judgment otherwise, and in another sort, than he shall
have in a writ of debt ; for in the annuity he shall have
judgment of the arrearages pending the writ, but in debt
he shall not have such judgment, but only for the sum de-
manded. Quod nota. Per totam curiam* Yelverton of
counsel with the defendant.
Mich. 9 Jac.
Spenser & Woodward vs. the Earl of Rutland*
THE Earl of Rutland recovered against Spenser and A writ ofer-
Woodward in the common pleas in an action on the ease ">r abates
for disturbing the earl to hold a court in such a manor, &c. by the death
upon which they brought error in the king's bench, and p| a ^J §
before the errors discussed Woodward died ; and the ques-
tion was, whether by the death of one of the plaintiffs in
the writ of error the writ be abated ? For the earl prayed
execution of the first judgment. And it was adjudged, that jo Co.l35.a.
the writ of error is abated, and that the earl is put to his 2 Keb. 520,
scire fac. against the executor of him that is dead, and that 594.
for four reasons $ 1. There is a differenee between death Comb. 263,
before judgment and after judgment ; as in trespass against [ 209 J
two or three, one dies pending the writ, yet the writ shall ^ 41# „
not abate, as 4 H. 7. 2. 2 H. 6. 15. 44 E. 3. & 47 E. 3. ABte 1,A
are ; for the trespass in itself is several, and their plea of
non cut. is several ; for the one may be acquitted, and the
other may be condemned ; otherwise where one of the de-
fendants dies after judgment, and a writ of error brought ;
for now by the judgment, that which was several is made
joint ; and ti-3 judgment of restitution ought to be accord-
ing to the loss, viz. that both shall be restored to that
which they lost, and such judgment of restitution cannot
be to a dead person. 2. The writ of error is but a com-
mission between two of the one part and the earl of the
other part ; and therefore by the death of one the power
is determined, quod vide 2 R. 3. 1. 3. Although the writ
of error is but to discharge the plaintiffs, yet if the judg-
ment be affirmed, the charge will fall on the executor of
him that is dead, and does not survive to the other ;(t) and
therefore the executor of Woodward must be made party,
that he may plead in salvation of the testator's goods.
4. The law compels the defendants to join in the writ of Ante 3, 4.
error v for the one alone cannot have error, although Fortes-
cue 35 H. 6. 19. is to the contrary ; then the law, which
obliges their joining in the suit, cannot construe, but that
by the death of the one there is an alteration, and the dif-
ference is between the death of the one after error brought,
and the release of the one after error brought ; quod vide
Ruddock's eatfe 6 Co. 25. a. but as 11 R. 2 Brief 638. in
audita querela by two, the one dies, yet the writ shall not
abate 5 for 1. This suit does not touch the first judgment, Cro. Jac. 19.
but \% founded on matter of a latter time. 2. The end of T. Ray. 453.
the suit is to discharge their bodies, and the body of the
one is not the body of the other ; and therefore his death
will not abate it. Quod nota. Per totam curiam, prater
Yelverton Justice. Yelverton was of counsel with the
plaintiffs against the earl. ^P . „ jp 0\ -_ #
(1) See T. Ray. 26. Edsar v. Scire Facias. Of 5 — Heir & Aa-
Smart. Bac. Abr. Execution. G — - eestor. F.
Mich. 9 Jat.
Wallop vs. Darby.
Cro. Jac. 990. S. C.
A.devisc* all ON non cuL pleaded the jury gave a ipeeial verdict, viz.
hit lands to that Jo. Browne was seised in fee of the place where, &e.
&• * nd di/ and he,d il m 8oea S e ? and devised all his lands in Jinglia to
bTdie frith- '" ^is son ajid b * § ^ cirs * * nd *' bc dicd w *thout heir •' his
oat issoej body then his lands in Culver, &e. should be to J. B. his
tnenbiilaads nephew in tail ; Item I give my land in F. to 8. my nephew
in C. to go to in fee t the devisor died, 8. died, and Jo. the eon survived,
D.in tail an4 ^ jj^ without issue $ and the question was between thte
uT* : "to °T hcir of X B - hnA the hcir of 8 - And U wa§ MMge* that
io fee.— The ^ e ^ e ' r °' 8. should have the land ; for when the devisor
[ 210 1 8 ave **' t0 J* k** • 0D * n tail) and afterwards by another
devisor & F. elause in the will gave the land in one vill to 8. that is an
die; B. rar- explanation of his intent, that Jo. should have all prater
vivos them the land in the vill appointed to 8. and in this case by
k dies with- Williams justice, they are not join tenants, but several ten-
•hall^have' aoU ' but if U iuui beeD tU P veU t0 Ja and b * aDotller
the lands, clause in the same will all had been given to 8. there they
are jointenants by the intent of the devisor % quodfuit con-
Co. Lit. 1 12. cessum* But in this ease by the better opinion of the eoort,
Plowd. 541. 8. took but by way of remainder after the death of J. with-
Pow.on dev. oni j Mue . f or tne wow j (item) I give, &e. depends on the
2 Vcg# 418. precedent words 5 and 6. shall be in the same condition as
2 Vera. 209. *• B.. ^ e nephew would be $ for the estates limited to X B.
and 8. are entirely conjoined to the limitation of the estate
of J. the son, viz. after his death without issue. Quod nota.
Tampiam vs. News am and his wife.
Cro.Jac.28a S. C.
Id aa actio* ijj: assumpsit by the plaintiff against Newsam and Brid-
hand & wife" B** b " w ^ e ' a ^ ter an imparlance taken by both the defend-
both must ant8 > ^ e record wsaadquem diem tam prcedictus the plain-
join in the tiff by his attorney, quam prtedicti Jo. et Bridgetta by their
plea. attorney veniunt, et proedicta Bridgetta dicit, quod ipsa non
assumpsit ; and thereupon they were at issue, ana it was
found for the plaintiff, but he could not have judgment, but
a repleader was awarded per totam curiam. 1. Because
the defendants do not make any defenee, for the record
ought to have been, quod prcedieti Jo. et Bridgetta veniunt
et defendant vim et injur, quando, $c. for by the course of
law, before the party pleads in bar, he ought to defend the
tort supposed by the plaintiff; and this is not a misprision
2 Rol Rep' ° f the C k rk * b0t a fai,ure *\P oh| t ° f wbstance - *• 1* a P-
90, p ' pears that the plea pleaded is the plea of the wife only,
Cr. Jac.239. and she alone eannot plead without her husband, but both
Hetl. io. of them ought to join in plea; and therefore the record
Mich. 9 Jac.
•tight to be, quod prmdicti Jo. et Bridgetta dicunt, quod ipsa
Bridgetta turn assumpsit ; the like ease was between Chom-
ley plaintiff against Apsley and his wife, in an action for
words spoken by the wife, where the wife only pleaded non
cut. and the plaintiff had a verdicl, but he could not have
judgment, bnt a repleader was awarded for the reason afore-
•aid. Yelverton was of counsel with the defendants.
Lilburn vs. Hern. [ 2u ]
1 Bulst. 150. Cro. Jac. 292. S. C.
IN a writ of error to remove the record out of Durham A writ of
where judgment final was given in a writ of right, it ap- right cannot
peared that the demandant in the writ of right counted of D <J aasintaia-
nis own possesion capiend. expletias temp, dom.ffl. Beg.; . ^J.^*^
and one error assigned was, because the demandant did not "^andaot*"
say in his count, within thirty years last past ; for in that himself, un-
tile statute 32 H. 8. of limitations makes the law which leu it be
limits that a man shall not demand higher for his own pos- shewn that
session than for thirty years before j otherwise if he nad * no e«plees
eounted of the possession of his ancestors, for the time Hm- taken within
ited for that is sixty years ; and the same law would be, if 30 yeaf J 5™
the demandant had counted of his own possession in the fore the writ
time of this king generally, it had been good ; for it ap- brought.
pears to the court judicially, that it is within thirty years,
forasmuch as the king has not reigned so long.(i) But ?«>• R «*d-
Q. Eliz. reigned forty years and more, and therefore a dif- "Reeve's
ference. The second error assigned was because judgment Hist. 267
final was given on the tenant's default on an imparlance 467.
taken to a day certain, where a petit cape only ought to 1 Show. 20,
have been awarded 5(2) otherwise it is where the tenant takes 65 -
a general imparlance and not to a day prefixed, for there ^" tw * ***■
on his default judgment final shall be given, quia tenens re- 2 £J' R g'
cessitin contemptum curia-; for on a general imparlance j §6 1 .
the tenant has taken upon him to be always ready to de-
fend his right ; so are the precedents in the book of entries. .
But on a special imparlanee to a day eertain, there the ten-
ant is not bound to appear till the day; and there may be
reason why he may excuse bis default, and then no laches
in him, and by consequence no reason that he should lose j H B 2
his land peremptorily, where the right does not appear to
the court, and where the tenant has not committed auy con-
tempt. Quod nota. Pertotam curiam. Yelverton was of
counsel with the plaintiff.
(1) See ante 176. a, n. no resolution to this point. Cro,
Jac. 293.
(2) Croke says the court gave
38
Mich. 9 Jac.
Orde vs. More ton.
Cro. Jac. 254. 1 Brown). 150. 1 Bulst. 105, 129. Hob. 138.
Jenk. 298. S. C.
If a writ of ERROR on a recovery in eject firmm out of the court
6rror ii di- of Durham ; and the error assigned was the infancy of the
rected to plaintiff in the ejectment, who appeared by attorney, where
tkciand ,U9 " ought to have appeared by guardian ; and upon issue
turned° by joined on the infancy it was found for the plaintiff iu error,
part of them viz. the infancy was found ; upon which the plaintiff pray-
only, yet if ed that the judgment might be reversed. To which it was
it truly re- objected, that the writ of error brought was not a sufficient
C |!? ^ C r r°" warran * to the court to proceed to the reversal. 1. Because
removes it the writo ' error is dieted to the bishop of Durham and
f 213 1 others by name, to remove a record of an ejectment be-
that a new tweeu such and such, which was coram of the said bishop
writ coram and seven others by name, and the record which is remov-
nobis lies, ed appears to be a record of an ejectment before the bishop
A writ of er- and eight others, so it is not the same reeord specified in
f 0F t I ariant tho w"t ; for a record before eight, and a record before
ord* in 6 *££ n * ne cannot De intended the same record, but several ; for
number of at Durham all that are named in the commission are joint,
judges is bad and not joint and several; according to the case % Ass. p.
4. Attaint was brought on a verdict which past on Oyer
Cr. El. 569. a nd Terminer, and the writ supposed that the verdict pas-
2Ld' a R »ed before four justices, and the record removed proved
1200. 1Jrm *^at ** passed but before two ; and it was held that they
had no power nor warrant to take the attaint, for the writ
is not warranted by the record ; so in error ; for these suits
are to defeat the first record ; and therefore ought to agree,
viz. the writ and the record ; but where the suit is on an-
other collateral matter foreign, and does not trench to the
annihilation of the record, there such misprision shall not
be peremptory ; as 31 E. 3. Procedendo 3. Assise of rent,
on aid prier of the king there issued a procedendo, which
made mention, that the assise was arraigned before two jus-
tices, where in fact it was arraigned before three, and yet
awarded good ; for the aid prier is but collateral to the de-
mand hi the assise. Quod fait concession per curiam. 2.
This writ of error is directed to the bishop of Durham and
six others by name, and the return of the writ, viz. res-
ponsio of the commissioners is by the bishop and five others
only, without making any mention of the sixth commission-
er; so the answer is not so full as is commanded by the
writ, and therefore ill. For the king by his writ makes
their power to return their reeord joint, and puts eqoal con-
fidence in them all, and therefore the answer ought to be
by all, unless some of them are dead after the writ award-
ed, and then that ought to appear by the answer of those
Mich. 9 Jac.
that are alive.(i) Quodfuit etiarn concession per totam curi-
am, and the plaintiff* put to his new writ of error de recor*
do quod coram nobis residet; for it was agreed on all tides,
that the record is well removed, and remains here, notwith-
standing the former misprision ; as it hath been often ad-
judged, where a writ of error issues to remove a reeord be-
tween such parties* which was in curia nostra coram justi-
ciariis nostris, although the reeord removed was in curia
domina Eliz. and et coram justic. mis, yet being brought
into the king's beneh, it is well removed, and remains there.
<fmod nota. Yelverton was of counsel with the defendant*
(1) By statute 5 Geo. I. ail writs and made conformable to such ree-
ef error wherein there shall be any ord, by the respective courts where
variance from the original reeord, such writs shall be made returna-
or other defect, shall be amended ble.
Woolby vs. Pirley. f 243 ]
Cro.Jac. 291. 1 Brownl. 114. S. C.
DEBT on a lease for years ; the plaintiff derived his ti- The party
tie by grant of the reversion by way o£ bargain and sale who c |a >n? 8
in fee, mean from the first lessor; and declared that by in- ^"JJJJ
denture of such a date, such a person granted, bargained 8 b e winwhat
and sold for money the reversion to him in fee, which in- court it was
denture was inrolled such a day according to the form of enrolled.
the statute ; and because he did not shew in what court it
was inrolled, and the statute 27 H. 8. speaks of some spe- ?^ Ravm
cial courts, and there is no reason to put the lessee to such lu * y
infinite labour to search in all courts, as well at Westmin- Aleyn 19.
ster, as in the country with the clerk of the peace ; there- Carter 221.
fore after verdict, nil capiat per billam was entered.(4)
Yelverton was of counsel with the defendant.
(1) See 1 Saund. 282. n. 3. ace.
< Hil. 9 Jac,
Sir George Savill vs. the Lord Candish.
1 Brownl* 114. §. C,
THE Countess of Shrewsbury recovered by verdict a- The namet
gainst Sir George Savill, and on a challenge ex parte of °[ * he '« /e *
the plaintiff to the sheriff de com. Jhrb. the venire facias, *^ '"JJ^,
4*6. issued to the coroners, who returned all the writs and s hould ap-
at th,e assises at the trial a tales was awarded, the name of pear to have
Hil. 9 Jac.
beeo affixed one of whieh tales wii Gregory Grigson, Ice. and em the
d* not* «c- jiogtes returned by the elerk of assise ta rout. B. the tales
XTf m o°f WM f^"™* 1 to be by the sheriff, but in the catering up of
the sUtete * e j»dgenent it was mode per conmatores, mad the name of
36 H. 8. the joror on the tuba, which was Gregory, was returned by
It it error if the elerk of assise accordingly by his true naaie, bat in the
taU$ are re- ro H of thejadgsneat he was named George G. And on this
!!!""!*- V ja'gn^nt Sir George Savill broaghta writ of error, wfcieh
when the*"? depended ton years and more, and the irst plaintiff wfcieh
aire facial is wae the eoontess of Shrewsbury died, this matter herns; an
directed to determined. And the lord Candish, as executor of the
coroners. eoontess, revived all by scire facias quart exeadionem ha-
tare now debet. And after debate several days, the judg-
ment was reversed for three reasons. i. Because cm the
panel of the nomina jurat after the twenty-four jurors
named, at the foot of the panel two names were added of
L 21* J the jurors, which really were of the tofar, but no mention
r j*r oo7 i** * that they were nomina jurat, de novo apposit. sectut-
or. jsc.zui. dfm ^ ormam ^^^ . aDi j tiuL% 0(Jght to pe . f or at ^ eom _
mon law the justices of assize eouid not grant any tales to
supply the defaults of the first jurors, but it is merely by
the statute 80 H. 8. whieh ordains, that their names shaft
be added to the first panel ; and it cannot be discerned to
be accordingly, unless such stile and title be made at supra,
nomina jurata de novo apposit. secundum formam statuti,
to distinguish what is done by the oommon law, and what
by the aid of the statute. Also the names of the coroners
ought to be added to the tales in the foot of die panel, and
in this case their names were only in dorso, which was on
the return of the first panel ; and although several prece-
dents were shewn, where the nomina jurat* de novo, <8[c.
was omitted on the panel, yet the court did not regard
them, because, as i t seemed, they passed sub silentio, without
, exception. The seeond reason was, because it appeared
Ante 16. by the return of the postea, that the tales were returned by
the sheriff, whieh is error, where the first process issued to
the coroners ; and although in the entry of the judgment in
the common pleas it is said to be by the coroners, yet that
does not aid in this case ; for the warrant of the roll is the
certificate of the clerk of assise, and that is, that the rales
were returned by the sheriff, and the court cannot intend
otherwise than is certified. 3. The name of the juror on
the tales, which is Gregory, is made in the entry of the
judgment to be George ; and if the roll should be amended
in this point according to the certificate of the postca, then
in the other point before, of the return of the tales by the
sheriff, it is not amendable 5 and so every way it was error.
Per tot am curiam. And the judgment was at last reversed.
Yelverton was of counsel with the plaintiff in error.
Hil. 9 Jac.
Bridges vs. Einon.
1 Browyl. 115. 1 Bulst. 178. Cro. Jac. 300. S. C.
THE plaintiff declared that lie and the defendant 10. * n ^ward
Feb. anno 7. submitted themselves to the award of gfir *" uJo* to
Roger Bodenham, who awarded that they should be friends, 3/ at m id-
and that the defendant should pay to the plaintiff 100/. at summer fol-
midsummer following at sutih a place, and for 10/. unpaid lowing, it
he brought the actiouv The defendant pleaded in bar a discharged
release made by the plaintiff to hint of all demands, which |* T f "jj
was made 10 April before midsummer, when the debt was demands da-
to be paid, and it was of all demands ah initio tounditusq ; ted before
10 April, and shewed the release to the court; upon which midsummer.
the plaintiff demurred. And it was adjudged against the
plaintiff; for although the sum of money given by the
award is not grounded on any precedent debt or contract
between the parties, yet, per curiam^ it lies in demand im- [ 215 ]
mediately ,*» may be assigned by the plaintiff's will to an- p . 136
other, and the executors shall have it, and in the spiritual cr.Jac.171.
law it is credit immediately, whereof administration may be '
granted before the day of payment, if the plaintiff dies be*
fore ; although no aetion is given for it before midsummer 5
for re vera it is nut recoverable before midsummer, but vet
it is a duty immediately by the award ; and as the award is
perfect immediately when it is pronounced, so are all things
contained in the award, unless they are made payable on a
condition precedent on the part of one of the parties ; as if
die award had been, that if the plaintiff gave the defend* Ante 193.
ant at midsummer a load of hay* that then on the delivery £'• **? I C,6 S'
thereof the defendant should pay the plaintiff 10/. in that 5 c 7 ' b
ease the ioL cannot be released before the day 5 for it rests °*
merely in possibility and contingency, whether it will ever
he paid ; for it grows to be a duty on the delivery of the
hay only, and not before ; and therefore it is like the ease
E. 4. 42 of the nomine pamce waiting on the rent, which
cannot be released before the rent is arrear 5 for the non-
payment of the rent makes the nomine pcena become a du-
ty $ but the case in question is. like the ease Lit. 117. where
a man is bound to pay money at a day to come, a release 1 f ns t.292.b.
of actions before the day cuts off the duty, because by 7 H.
7. 6. it is a duty immediately ; a fortiori here, because the
release is of all demands. Quod nota. Per totem curi-
«m.(l) Yelvertoa was of counsel with the plaintiff.
(l) Croke says no judgment was given in this case. Cro.
Jae. 300.
Hil. 9 Jac.
Hughes vs. Kerne.
1 Built. 115. Godb. 183. CaJtb. 41. S.C.
A custom of THE plaintiff declares, that he is possessed of an house
London » hi London bj lease from such a person, in which house
good, which there had heen three lights from time whereof, &c bj which
b^ld' ^ w ^ e90IBe a * r ^ a< * Deen received ; and that the defendant
hooteon the " P°**essed of an house, and of a void pieee of land or
tame found- 7*rd» which void pieee continue adjacet et conjungit to the
ation and plaintiff's house on that side of the house where the three
raising it to lights are, which lights are towards the defendant's yard,
what height an( j so have been of aneient time, and that the defendant
pleases** a£ ^ *""" a new n0U9e 80 mncn 00 tbe Void P* eCe ° f S roai1 ^
though * his 9*°* totalUer obtcuravit the plaintiff's aneient lights, to his
neighbour's damage, &e. The defendant confesses, that he is possess-
ligbu are ed of an house for years, and shews by whose lease, and
thereby stop- that he is bound by .covenant to pull it down and rebuild it,
ped. Jiliter an< i Inew8 that that part of the plaintiflPs house, in which
whkh^nowt t,ie ^S ntft are > continue adjacet to the soil and house of the
building on a defendant, and pleads a custom in London which warrants
void piece of the rebuilding of any house on the same foundation, where
[ 216 ] the aneient house stood, in height at the pleasure of the
land so as to party, and that it is lawful by the custom, though by the
stoplights, rebuilding his neighbour's lights are stopped, unless there
be some writing to the contrary ; and so justifies the re-
. Ent * so * building of his house on the same foundation higher than
before, whereby tlie plaintiff's lights were stopped, as .he
well might; upon which the plaintiff demurred, and it was
adjudged that the custom pleaded by the defendant is a
good custom, for it might arise on a lawful commencement
or reason in cities or boroughs ; for if a tradesman has
settled himself in a commodious part of the city, where he
increases in his trade, and his house becomes too small for
his company, he may build it higher for his better habita-
tion, ana it is well allowable, for it tends to the peopling
of cities, and to the encouragement of tradesmen in such
S laces, and as well allowable as the custom of London 27
[. 6. 10. whieh allows covenant to be brought by the les-
see against the lessor for not repairing the house demised,
although the lease be not by indenture or other writing;
for it will encourage tradesmen to take houses in lease,
when they know they shall be repaired by the lessors ; and
by intendment, by this custom the rents reserved in London
are the higher by reason of such burden and charge which
falls on the lessors. But the custom of a eity which ena-
bles men to build on a void pieee of land, where there was
no house before, and thereby to stop up his neighbour's
lights, was held void per totam curiam ; for by that means
men may lose all their lights, which any way come into
their houses, if they maybe environed on every side with
new houses* and by this stratagem live in tenebris, whieh
Hil. 9 Jac.
[ 216 a |
the law will not allow. And so it was adjudged 39 Eliz. 9 Co. 58. a.
between Mosley and Ball, that such eustom alledged in the Hut. 136.
eity of York to stop lights by building on new foundations,
where no house was before, was adjudged void. But in
this ease judgment was given against the defendant by rea-
son he did not answer the offence laid to his charge, which
is the building on the void piece of ground, and by that
means stopping the plaintiff's lights ; for the defendant jus-
tifies only by building on the old foundation, and thereby
stopping the plaintiff's lights, which is not the natter
wherewith the plaintiff charges him, but merely another
matter ; so the point of the plaintiff's action not answer-
ed. Quod nota. Per totam curiam. Yelverton was of
counsel with the defendant(l) - * '
(l) In Calthrop's report of this
case, three points are said to have
been resolved by the court. 1.
That it is not lawful to build a
house on one's own ground, so as
to stop the lights of an ancient
house, unless there is a eustom to
warrant it. 2. That the custom
of London does not warrant the
erection of a new house upon a
void spot, so as to stop ancient
lights. 3. But that upon an an-
cient foundation, a house may, by
the eustom of London, lawfully be
raised so as to stop such lights.
Calth. 41. And this custom was
subsequently recognized by the
court, in an anonymous case, Com.
Rep. 273. and in Plummer v. Ben-
tham, 1 Bur. 248. From this last
ease it appears that the custom is
confined to messuages or bouses,
and does not extend to all erections
or buildings. Priv. Lond. 56.
It was formerly held, that in an
action for obstructing lights, the
plaintiff must prescribe for them,
or at least aver in his declaration
that they were ancient lights— es-
pecially if the obstruction was
caused by the erection of a build-
ing on the defendant's own land.
1 Show. 7. note to VUlers v. Ball
SfaL (Leach's edit.) But it is
now held to be sufficient for the
plaintiff to cleelare on his posses-
sion generally; and under such
declaration, he may prove an an-
cient right, if it is necessary to
support his action. 2 Saund. 175.
a. n. 12 Mass. Rep. 150. Story v.
Odin. By the modern decisions,
lights are put upon the same ground
as other easements; and twenty
years uninterrupted possession is
evidence of a grant Proof of such
possession seems to have been con-
sidered as conclusive, in the ease
of Uolcroft v. Heel, 1 Bos. & Pol.
400. but in a subsequent case 3
East 290. Campbell v. Wilson, this
doctrine was denied. Phillipps
Evid. 126. Seell East 372. Dan-
iel v. North. Esp. Dig. 636.
Neither a grantor nor his assigns
ean legally obstruct lights on the
premises granted by him ; and in
such case, no lapse of time is ne-
cessary to eonfirm the grantee's
right to enjoy them. 1 Yent. 287.
230. Cox v. Matthews* 1 Lev. 122.
Palmer v. Fletcher. 1 Keb. 553. 1
Sid. 167. 227. T. Ray. 87. S. C.
6 Mod. 116. Boswett v. Pryor. 1
Price 27. Compton v. Richards. 12
Mas?. Rep. ubi sup.
A reversioner may maintain an
aetion for stopping lights, to the
injury of his inheritance. Sayer
215. Thomlinson v. Brown. 4 Bur.
2141. Jesser v. Gifford.
Hil 9 Jac
1 2i7 J Durrant m. Child.
1 Brown). SSI. 6. C.
A rejoinder TRESPASS for chasing bis cattle, and thews what,
must confess fl/w|d B- (<| y, d*ma«e, fee. The defendant justifies the
trlwte the «"» in S in & clo * e called M. ia S. which is his freehold,
replication. and the cattle damage-feasant. The plaintiff replies and
Two pros- shews that one B. is seised of a close called Catley in D.
criptions in fee, and demised it to the plaintiff for years, and that
shall not be the defendant is seised of a elose called Fumy in fee,
in issue. which contigue adjacet to the close called Catley, and that
the defendant and all they whose estate he has in Fursy
Close, have used from time whereof, &c. to repair the fence
and hedges inter Catley Close and Fursy Close, which Fur-
sy Close praxime adjUngit to the close called M. where
the cattle were chased ; and shews that the plaintiff put
his cattle into Catley Close to feed, which for want of en-
closure escaped into Fursy Close, and aHnde into the elose
called M. &e. The defendant rejoins, and confesses the
plaintiff to he possessed of Catley Close, ut supra ; and he
himself to be seised of Fussy Close, ut supra ; but says that
between Catley Close and Fursy Close there is a small
brook, which brook at the side of Catley Close hath a bank
contigue adjacen. to it, which bank the lessor of the plain-
tiff, and they whose estate, &c. have used time whereof,
&c. to repair; and that the brook at the side of Fursy
Close hath another bank contigue adjacen. which the defen-
dant, etc have used, &c. to repair; and because the plain-
tiff had not repaired the bank on the side of Catley Close,
the cattle escaped into Fursy Close, and abinde into the
close called M. wherefore the defendant chased them, as
he lawfully might, &c. upon which the plaintiff demurred.
And it was adjudged pra auerente; for the defendant has
made a good bar, and the plaintiff a good replication,
whereby the plaintiff has removed the fault from himself,
and laid it upon the defendant for his neglect of enclosing
between Catley and Forsy ; and now the rejoinder does
not confess and avoid the replication, but perpleies the
matter by adding a point of prescription on the plff's part,
that he ought to repair a bank between Catley ami Fursy on
which issue cannot be taken ; for then two prescriptions will
be at issue together, which cannot be any more than two af-
firmatives ; as 5 H. 7,12. and also the matter contained in
the rejoinder. dees not answer the matter comprised in the re-
plication but only by way of argument ; and if it be tree it is
good matter in evidence against the plaintiff, who is bound
to prove his replication true ; for the plaintiff says, that
Catley and Fursy centig. adjac. id est, without any mean
spaee between them, and the defendant in his rejoinder
says, that there is a brook between Catley and Fursy; and
if so, then non contigue adjacent. But the defendant ought
HQ. 9 Jac.
to hare traversed the prescription alledged by the plaintiff,
and that would make an eria of the whole. Quod nota.
Per totam Curiam. Yelverton of counsel with the plain*
tiff.
Musgrave vs. Wharton Admin, of L. Musgrave.
Hob. 4. Cro. Jac. 331. S. C.
THE plaintiff Sir Ed. Musgrave reeovered on a bond a scire fac.
of 200L against Leonard Musgrave, and the action of debt by anexecu-
was laid in com. Cumberland ; afterwards Leonard the de- tor » on a J ud g-
fendant died intestate, and Wharton took administration, ^J'^? ^
and afterwards Sir Ed. the first plaintiff sued a scire facias testator must
to execute the judgment against Wharton, and laid thisae- be in the
tion in com. Westmoreland, and upon plene administravit same county
pleaded, the jury found 160/. assets in the hands of Whar- where the
tou. And Yelverton moved in arrest of judgment that this f ctioil ht was
scire facias ought to have pursued its original ; forasmuch w r ^| . d °™
as he demands execution of the first judgment on the ae- raent w | s
tion laid in Cumberland ; and forasmuch as the scire fa- rendered—
das was brought in Westmoreland ; for this reason the ae- but it must
tion is miseonceived, for it ought also to be brought in Cum- be shewn in
berland, according to the book 18 E. 4. 5. and it was late- ^P*** * in &\
ly adjudged in Roll's case, where H. recovered against him fa * ia8 * g ,c ^
300/. by action of debt brought in Middlesex, and after- the wrong
wards he brought debt on the record, and laid the action in county if
Cornwall, and issue was joined, and found against Rolls ; the defend-
yet for the reason aforesaid the judgment was reversed ; for a °* plead to
debt on the record ou^ht to have been brought in Middle- ™ "court
sex where the record is, and where the first recovery was ; canno t take
whieh was adjudged Mich. anno. 7. But, per cur. there is notice of the
a difference between debt on the record and scire fac. on error.
the record; for debt on the record recites the former ac-
tion and place where the recovery was, viz. cum A. nuper
in cur. Dom. Reg. etc. apud JPestm. in com. Midd. &c< So
that there appears within the record a material variance
in the proceedings. But the scire facias recites only, quod
cum Ji.recuperasset such a debt, quod quidem judicium aahuc
restate &c. So that no place, where the first recovery is,
appears ; and the court eannot take notice that the, scire
facias is grounded on the record of the judgment in Cum-
berland, because the scire facias is a distinct record of it-
self, not yet annexed to the first judgment; and the truth
being, that this scire facias was to execute the first judg-
ment, the defendant ought not to have pleaded plene admin-
istravit ; for he has thereby admitted the scire facias good,
but he ought to have pleaded in abatement of it, by snew-
ing the first action to have been brought in Cumberland.
Wherefore they gave judgment for the plaintiff, and ad-
vised the said Wharton to bring error, and shewed their
opinions clearly, that it would be error; because now after
aa
Hil. 9 Jac.
L*19 J
judgment in the scire facias, the first judgment, and this ex-
ecution on the scire facias, make but one record, whereof
the judges in the Exchequer Chamber must take notice,
Quod nolo. A good ease for experienee.(l)
(1) This judgment was revers- Hob. 4. Cro. Jac. 331. See 2 Sannd.
ed in the Exchequer Chamber. 72. q. n.
Pasch. 10 Jac.
Morgan vs. Sock.
1 Drown I. 116. 1 Bulit. 187. S. C.
To debt a- SOCK brought debt on a bond of 14/. made by Arthur
gainst ao ad- Morgan anno 1. to him, against Thomas Morgan his ad-
r i0 'l* t "i t d r ' ministrator; the defendant pleaded, that after the death
repeal of hit °* Arthur, and after administration committed, viz. 16
administra- Septembr. anno 6. the plaintiff sued this original against
tioo before him, of which he had not notice till 24 Febr. anno 6. before,
notice, and which day the defendant was put to exigent for non-ap-
tbat he, at pearanee, whieh exigent was returnable a die Pascfaz in 3
the tune of ^ after; and that £7 Febr. anno 6. whieh was heforo
had fully ad- * De not * ce i n >* letters of administration were revoked le-
ministered gitime by the archbishop, and granted to Richard Morgan
all the intet- brother of Arthur, which Richard is yet administrator ;(1)
tate's goods and said that he at the time of the letters revoked had sev-
e ^u t k th 2 ie eral of tnc 5 00< * g of tne intestate in his hands, and shewed
livered to his what in 8 P ecie » t0 tnc va,ue ot 2 ° o1 - and lhat ne ■ ftcr tnc
successor— 8 administration revoked, and before notice of this suit, had
Oo issue delivered them over to Richard, viz. 2% Febr. anno 6. and
foundagainst that he at the time of the letters revoked had fully admin-
him that the istered all the goods of the intestate prosier the goods de-
h €peal \ **" livered to Richard, &c. The plaintiff replied, that this
tweeo ? him& ^ministration was revoked by covin between the defend -
his succes- ant an< * Richard. And upon that issue was joined, and it
sor, absolute Mas found to be by covin ; wherefore the plaintiff had jodg-
judgment ment to recover the debt and damages ae bonis et catallis
was given for prvdicti Jlrthuti tempore mortis sua in manibus proedicti the
the P^ ain ^ ff defendant levand. existen. $c. and upon this judgment a
bontiltttato- wr '* °^ error was Drou g«t, and it was assigned for error,
ris io the de- tnat tne judgment ought to be conditional, (viz.) to recover
feodant's the debt of the goods of the intestate (si tarda in manibus
hands. of the defendant existunt, $c.) and not absolutely. But
the judgment was affirmed per totam curiam ; for where
the judgment may be final and certain, it shall never be
(t) See ante ±25. a. n.
Pasch. 10 Jac.
conditional ;(2) and because it appears here by the defend- Cro. £1.565.
ant's plea, that he has 200/. in his hands of the intestate's Cro. Car.88,
goods, it will be in Tain to give judgment against him (if
he has in his hands) when he himself has confessed, that [~ 220 ]
he has more in his hands than will satisfy this debt ; and 1 Salk. 313.
in that ease if the sheriff could not levy the debt in the Dy. 210. a.
hands of the defendant, he might on the defendant's own Ante 138,
shewing, without any danger, return a devastavit. Quod
nota. Per totam curiam.. And Yelverton shewed them a
precedent 1 Jac. C. B. to the same purpose. And he was
of counsel for the defendant in the writ of error.
02) It is said by Chase J. that ment for the plaintiff is always in
no condition or alternative can be the alternative. Keilw. 64. b. 2
annexed to a judgment, at common Selw. N. P. 596. See 7 Mass. Rep.
law. 1 Granclt 207. n. In the ac- 41*. Commonwealth v. Pejepscut
tion of detinue, however, the judg- Proprietors. Ante 71. b. n.
Coveney vs. Wooden,
2 Bulst. 37. S. C.
THE plaintiff declared, that in consideration he would A count for
suffer the defendant to occupy such an house of his from n °t P?? 1 '"*?
such a day till Mich, following, the defendant promised to ^Jjj*™ "g-
save the plaintiff harmless from all losses which he should promise* 2rf.
sustain by his habitation there in the said house, and also for every far-
that for every farthing-worth of damage which the plain* thing worth
tiff should sustain by such habitation of the defendant of damage
there, the defendant would give the plaintiff 2d. on request. he . shou, d
The plaintiff alledged that the defendant occupied and in- a " 8 er ain ' a"^
habited in the house by his permission, and that the said ^^j f ar .
house during the time that the defendant inhabited there, things' loss
and before Mich, after, was burnt by fire by the defendant's he has sus-
negligence, and yet the defendant had not saved the plain- tained.
tiff harmless from the damage which he had sustained by
reason of the defendant's dwelling there, nor paid the
plaintiff 2d. for every farthing-worth of loss which he had ,
sustained, to his damage 40/. The defendant pleaded non
assumpsit, and it was found for the plaintiff, to his damage
401. and yet nil capiat yer billam was entered, because the
plaintiff did not skew in his declaration, how many far-
things' loss he sustained by the burning of the house, and
that is material $ for the court cannot intend but that the
jury have given damage, as well for not saving the plain-
tiff harmless, as for the farthing-worths of loss which the ►
plaintiff sustained ; and that the jury ought not to do with-
out the plaintiff shewed to how many farthings his loss a-
mounted. Quod nota. Per totam curiam. Yelverton was
of eounsel with the defendant.
Pasch. 10 Jac.
Sir Walter Chetwynd vs. Meeson.
Cro. Jac. 308. S. C.
It if acfaoaa- THE plaintiff she wed, that by the king's letters patent
ble to charge anno 8 . Qe wag made justice of peaeein com. Stafford, and
a a u*traraiv that at 9Uch sessions, &e. held before him and other jos-
ioff a person ** ceg D y name ) the defendant was called on his recognisance
to take a to the king, and appeared, and one Hiekman adtunc eom-
false oath, plained to the justices of the defendant's ill behaviour, and
on his oath voluntarily, without any subornation or pro-
1 Rol. Abr. eurement of the plaintiff, swore that the defendant against
his will had taken his wife, and prayed remedy against the
defendant, whieh thing the defendant not exeusing, ha was
[ 221 J by the justices adtunc hound de se benegerendo, and to ap-
pear at the next sessions ; yet the defendant machinans to
slander the plaintiff in his office, as justice of peace, and
to make the plaintiff incur the penalty of the statute 5 El.
for subornation of perjury, spoke of the plaintiff, being jus-
tice of peace, these words 2 Apr. 9. By your means I had
wrong at the sessions, and there you did cause Hiekman to
swear that which was untrue against me; to his damage tool.
And upon non cuL pleaded, it was found for the plaintiff,
and dot. damage assessed by the jury. And per curiam the
plaintiff had judgment ; for the words tend to a direct
scandal of the plaintiff in his office, as justice of peace;
for to cause Hickman, and to procure Hickman, to swear
falsely, is all one, and a great imputation to the plaintiff,
and punishable, if it be true, (jwodnota. Yelverton was
of counsel with the plaintiff.
Rice vs. Harrison.
1 Brownl. 147. Cro. Jac. 299. 2 Bultt. f . S. C.
If the defend- THE plaintiff declared on a lease from Jo. Bull, &c.
ant plead a The defendant pleaded that the land is copyhold, parcel of
grant in bar, guen a ma nor, whereof the king is seised, and was seised,
a reTa and that the kin S b ? bis steward, at such a court, granted
prior rC grant tne ' an( * * n question to him in fee, to hold at will aceord-
withouttrav- ing to the custom, by virtue whereof he was admitted, and
ersiog the entered, and was seised till the lessor entered upon him,
grant alledg- and ousted him and demised to the plaintiff, upon whom he
ed by the de- reentered and ejected him, &c. The plaintiff replied, that
fendant. ^^ the king hftd ftny thing if| (he manor) q S | iz< wag
seised thereof in fee in jure corona, and, before the eject-
ment supposed by the defendant, by her steward at such a
court granted the land in question by copy to the lessor in
fee, to hold at will according to the custom, who was ad-
mitted and entered, and shewed the descent of the manor
to the king, and that the lessor entered and demised to the
Patch. 10 Jac.
plaintiff, who entered and was possessed, till ejected by the
defendant Upon which the defendant demurred, because
he supposed that the plaintiff ought to traverse the grant
by copy alledged by the defendant in the bar. But per cu-
riam, the replication is good, for the plaintiff has eonfessed Cro - Car -
and avoided the defendant's title by a former copy granted ^&*/
by Q. EJiz. under whom the king that now is claims, and jj£ R a ym.
then the plaintiff ought not to traverse the grant to the de- 237 # 7
fendant,(i) for such traverse would make the plea vicious ; » Cro. EUz.
rtd vide Helliar's case,* Rep. & 14 H. 8. Potkin's case, 680.
2 E. 6. Dy. & Br. Tit. Confess and Avoid ; for as no man Mo. 551.
can have a lease for years without assignment, no more 6 Co - S4< "'
can a man have a copy without a grant made in court.
Quod nota. Per totam curiam. Yelverton was of counsel
with the plaintiff.
(1) See ante 101. Bedell v. Lull, & n. 1.
Slocomb vs. Hawkins. j* 222 ]
Cro. Jac. 318. 1 Brown!. 148. S. C.
IN ejectment on a special verdict, the case was $ Mrs. a power to
Lutterel tenant in fee of the manor of D. levied a fine to make leases
the use of herself for life, and after to the use of J. the generally,
elder son in tail, &c. with power for herself at any time to « xt e ndi on, J
make leases for twenty-one years, or for three lives, ren- ™ B eJ^ n &
dering the ancient rent, &c. and demised two parts to B. {^ t to ]e J ea
for twenty-one years, and before that lease expired she in reversion
made another lease to B. for twenty-one years, to commence or in futuro.
after the former determined ; and as to the third part of
the land, she made a lease of that for twenty-one years af-
ter the death of one Carne (who in fact never had any es-
tate in the land) and died ; the first lease expired, and J.
the son entered, and demised to the plaintiff, and the de-
fendant claimed under B. the lessee. And it was adjudged
pro quer. ; for on such power she could not make a lease to
commence at a day to come, but the lease ought to be in
possession, and not in interest to commence in future, nor
in reversion after another estate ended ; but the law will p < ..
adjudge on the general power to make leases, without say- p OW e rs ,4i2,
ing more, that they ought to be leases in possession $ for if 413.
she might by such power make lease upon lease, she might Cowp. 260.
by making infinite leases detain them in remainder from Dong. 292,
tne possession for ever ; which is contrary to the intent of 66 ^'
the parties, and contrary to reason. Accordingly adjudg- i j^f]
ed Trin. 30 Eliz. The earl of Sussex's case 6 Co. 3d. a. 39 m "
And Williams justice said, when he was serjeant, it was Cro. El. 5.
adjudged accordingly in the earl of Essex's case in C. B.
on a power reserved by Walter earl of Essex. Quod nota.
Per totam curiam thrice adjudged. Yelverton was of coun-
sel with the plaintiff.
Tria 10 Jac.
Brasier vs. Beale.
Cro. Jac. 305. 1 Brownl. 149. S. C.
Grantees of ON a special verdict in ejectment, the ease was; that at
copyholds copyholder in fee of the manor of Blackthorn, in com. Oar-
cannot bv on* by license from the lord, demised the land for sixty
•Utote32H years to M. if he should so. long live, yielding rent on eon-
s' C "comm° r **»<>» °' **-«rtijr. The copyholder surrendered to the
J r ^g i 00 lessor of the plaintiff in fee, who demanded the rent on
law take ad- *• * an ^' which was not paid ; wherefore he entered and
vantage of a demised to the plaintiff. And without any argument bj the
condition court, it seems the entry of the lessor is not congeable ; for
broken. copyhold land is not within the statute of conditions, nei-
l fih 9ra *' er " ^ e ' e#tor iUC * 1 an Msiiniee as the statute means ;
4 ModL 80 ' * or at ^ e eon,inon ' aw a copyhold estate is but an estate
3 Lev.* 326. at w '^> an< * custom only has fixed his estate to endure ;
1 Salk. 185. which custom does not trench to such collateral thing*, as
Comb. 185. entries for conditions $ for such assignee of a copyhold be-
Bolt. N. P. ing in but by custom only, is not privy to the lease made by
* 6 '* R 400 the first copyholder, nor in by him, but may plead his es-
j i . k. 398. j ate immedfately under the lord. Quod nota. Per totam
curiam, on the first opening of the matter. Yelverton was
of counsel with the defendant
Sutcliffe vs. Constable.
t Brownl. 222. 1 Bulst. 214. S. C.
To an action Christopher Constable anno 32 Eliz. seised in fee of the
for tearing manor of East Hatfield in coin. York, enfeoffed H. Reming-
the seal from ton by indenture, rendering for certain closes, parcel of the
a deed made manor, 60/. at two feasts, with clause of distress, if arrear
cwA" *° ty ** *1»J8 5 Chr. anno 43. by indenture bargained and sold
manor^t is "* e 60 ^ to the plaintiff for all his estate; which was enrol-
not a' good fed* by virtue whereof she was seised of the rent for the
plea that A. life of Chr. and so seised lost the part of the indenture seal-
did not con- ed by Remington, whieh the same day, viz. 24 JVTw. anno
vc y th * maD ' 44 came to the hands of the defendant by trover, who vi et
plea should arm * s tore tne sea ^ °' * ne 8a ^ indenture, contra pacem,
be not guil- & e - to ner damage 400f. The defendant pleaded that Chr.
ty. non concessit the manor of E. to Remington, rendering the
rent &e. modo et forma ; and thereupon the plaintiff de-
murrred. And although it was objected, that the bar was
good, because it is a direct traverse of the plaintiff's title,
and destroys the ground of the plaintiff's action ; for if no
rent was granted, then the indenture whereof the plaintiff
complains does not belong to the plaintiff; for it passes to
the plaintiff but as ineident to the second grant for necessi-
ty to make title, as the lord Buekhurst's case is, 1 Co. 1. b.
Trin. 10 Jac.
& 7 B. 4. 30. in assise of rent, the demandant made title
by deed of a rent-charge ; the tenant may say he did not
grant by the deed ; because the issue is taken on a special-
ty, and not on a generalty. Pigot. But in an assize of of-
fice it is no plea, that there is no such office, for that
amounts to no more than that he did not disseise him. Fair-
fax. The same law 45 E» 3. 1. In trespass of charters
taken,it is no plea, that he never had such charters, but he
ought to plead non cul. So in trespass of goods, it is no
- plea that the property was to a stranger, and not to the
plaintiff, because he does not thereby deny that the plain-
tiff was in possession, which is sufficient for that action, 20
H. 6. 28 j which books prove, (per curiam) that the plea in L 5 ^4 J
bar is not good ; for the defendant destroys the plaintiff's
aetion but by argument, and the rent is not demanded by
this action, but damages for tearing the indenture : So that
the title to the rent is not in question. Then Yelverton
took exceptions to the declaration ; 1. That the action is
brought for tearing the counterpart, by which the rent was
not created, and the indenture is not granted expressly
to the plaintiff, but the rent of 60/. only bargained and sold;
then thjs counterpart which belonged to Remington did
not pass to the plaintiff as incident, for it is not the original
deed by which the rent was at first reserved. Quod fuit
concessum by all but the Chief Justice : for he said, that
this counterpart waits upon the interest, and is a good evi-
dence for it. 2. It is not averred by the plaintiff, that
Christopher, for whose life the rent was reserved, was
alive at the time of the tearing of the deed ; and if Christo-
pher was dead, the deed belonged to the defendant dejure,
as Christopher's heir, for so much appears by the plaintiff's
own shewing, quod fuit concessum per curiam. 3. The plain-
tiff does not shew any possession in fact of the deed but by
way of argument, viz.<that she casually lost it, which is
not sufficient ; for none shall have trespass but he who is in
actual possession, quod fuit concessum per curiam. 4. The
counterpart whereof the plaintiff complains contained as
well a warranty as the rent reserved ; & therefore without a
special sift thereof made by Christopher to the plaintiff,
this deed does not pass by law to the plaintiff, as it is ad-
judged in the lord Buekhurst's ease. 6. If Christopher
the father be dead, the indenture has lost its force as to the
rent; for by his death the rent is determined, and there-
fore the plaintiff ought to have averred the life of Christo-
pher ; for of a deed determined no action lies. For which
reasons the plaintiff discontinued her suit. Yelverton was
of counsel with the defendant.
AiicklOJuc
Odingsall vs. Jackson &c
Mo. 866. Cro. Jac. 906. 1 Brownl. 149. 2 Bulst. 35. S. C.
In ejectment EJECTMENT $ the declaration was, that the defend-
agaiott two, ants intraverunt, et ejecit, earpulU et amovit the plain tiff (in
amifpriiioQ, the singular number) and after verdict for the plaintiff, on
flt *ti°f *J* non cvL pleaded, the defendants shewed the matter afbre-
ouster io the iaic * ** * rreat of judgment ; for the declaration is ineertain
of the plural, also the iury cannot find all the defendants guilty : because
***y be a- hy the plaintiff's supnosa], one only ejected him. But per
meDded# cur. the plaintiff shall have judgment, and the declaration
2 Bl Rcd shaW be amended in tl" a P° int > A>r it is but the default of
941." the c ' er ^5 ^d 6° '* WCk * a 9^ »»*•• Yelverton was of
2 Bar. 1160. counsel with the defendant.
IT. R. 703.
Newhall vs. Barnard.
1 Bulst. 116. s. c.
A plea in jut- THE plaintiff declared for the stopping of three lights by
Uficatioo * building in the yard of the defendant, &e. to his damage,
must cover &c. The defendant by way of bar justified the total step-
the whole ping of two lights by reason of a custom in London (f ) from
gravamen. t ime wlpreof,&e. and the stopping of the third light in part,
and that also by the custom of London ; and concluded, ab-
rhoc r that he est ad* alitor vel alio modo $ and thereupon
plaintiff demurred, and it was adjudged for the plain-
tiff ; 1. Because the justification in part of one of the three
lights is ineertain, for the court cannot know in what part
of the light (viz.) eastward, westward, fee. without the de-
fendant's own shewing. 2. Because the plaintiff's declar-
ation is not answered as to this third light ; for the plaintiff
has supposed totum lumen et aer to be stopped in three sev-
eral lights, and the defendant does not answer the stopping
of the third light but in part, and so for the others he con-
fesses himself guilty, and his traverse is idle; for if he
does not justify the whole, he is guilty in the whole, as this
case is. And therefore he ought to have pleaded non cuL to
part, and shewn what part, and made it certain by bounds,
2 Lut. 1492. &nd to have justified for the residue. Wherefore the
1 Lev. 16. plaintiff recovered by the opinion of the whole court(2)
Yelverton was of counsel with the plaintiff.
(1) See ante 216. a. n. whole declaration. Co. Lit. 303. a.
See this rule stated and exemplifi-
(2) Every plea must answer the ed, t Sannd. 28. Earl of Munches-
Mich. 10 Jae.
ter 4* al. v. Vale, and n. g, & 3. laration which is inserted as mat-
ibid. 2*8. n. 1. 1 Chit. PI. 509.643. ter of aggravation, and which does
Com. Dig. Pleader. E. 1. 36. and not constitute the gist of the ac-
the eases there cited. But this tion, need not he answered. 1
rule must be understood with this Saund. 28. n. 3.
limitation, that a part of the dec-
Loggihs vs. Titheton.
Cro. Jac. 309. S. C.
DEBT; the bond on which the plaintiff declared was A bond in
that the defendant acknowledged himself to owe to the ^will not
plaintiff 1 , and to be bound in trigintata libris, &c. but it ap- goppo^ a
peared on oyer demanded of the bond 5 for the plaintiff de- coun t i n tri-
clared for 30 /. viz. triginta libris : and, per curiam, nil ca- ginta libris.
piat per billam ; forasmuch as there is no such word as tri- Q"«
gintatuz, and per consequent the party bound in no sum, and
if a man is bound in a bond in (libris) without saying how
mauy, it is a void bond. Pertotam curiam, (l) Quoanota.
(1) Croke, in his report of this rendered for the plaintiff. Cro.
case, states that judgment was Jac. 309. See ante 90. n.
Doughty vs. Fawn. [ *ae ]
1 Brown!. 117. 2 Bulst. 19. S. C.
THE plaintiff declared on a bond of I20l. 2 Nov. 43 El. Argumenta-
the condition was, that whereas Ed. Ash by his will in tive pleas are
writing of such date, had disposed of the guardianship of ba <J-
the defendant, whereof the testator was possessed, viz. that °/^ eri of
tender of marriage should be made by such persons whereof not^feS *by
the plaintiff was one, which was done accordingly ; if there- the record,
fore the defendant, &c. do save and keep harmless the but by a ju-
nlaintiff, &c. from all charges and troubles, &e. which may ry.
happen to the plaintiff, &c. for or by reason of the last will
of the said Ed. Ash, or any thing mentioned in it, touch-
ing or concerning one Margaret Fawn, or any legacy or
bequest to her given or bequeathed, or thereby or otherwise
from Ed. Ash to her due, then the bond shall be void.
The defendant pleaded non damnifieat &[c. The plaintiff . .
replied, that after the bond made, one Martha Smith in the # ,. he 4 °!lf \
behalf of Jo. and Ed. Ash, sons of Ed. Ash named in the "y^t 1 ^
condition, exhibited a bill against the plaintiff, &c, as ad- portions lea
ministrators of Ed. Ash in chancery,* for payment of the dit fits en
portions of the said sons ; whereupon the plaintiff, &c. by le plf. &c.
way of answer pleaded fully administered, and in proof eeant & a "
thereof shewed several payments by them made, and ™ !t 8 "2turii
among other payments that the plaintiff, &c. had paid to ™ fut ger ,
Margaret Fawn named in the condition 60 J. pro legatione ? i e , turque'
40*
Mich. 10 Jac.
by the will of Ed. Ash to her due ; the payment of which
60/. was disallowed by the judgment of the court, aud by
the order of the court, 6o7. in default of allowance of the
firit 60/. the plaintiff, etc. paid to Ed. Ash the son, which
60/. &e the defendant had not repaid though requested;
and so said quod damnificat. exist. &e. upon whieh he de-
murred. And the opinion of the whole court, after great
debate, was against the plaintiff; for the plaintiff in his
replication has alledged two things to enforce his damnifi-
cation, l. That the plaintiff, &e. in his answer in chan-
cery aUegavU the payment of 60/. to Margaret Fawn for a
by the wi""
legacy due to her by the will. 2. That this allegation was
rejected by the judgment of the eourt of chancery : And
neither of these matters is certainly alledged,but by way of
argument and implication, and not expressly $ for he ought
to have shewn that a legacy of 60/. in facto was given to
Margaret Fawn by the will of Ed. Ash ; for although in
1 R J Ren the condition the wiW of Ed - Ash *• recited in the date, t
4^° * p * against which recital the defendant cannot say, that he
made no will; yet this special legacy to Margaret Fawn is
not recited in the condition, but in generalty, against which
the defendant might have taken a traverse, quod E. Ash non
legavit, &c.to her the 60/. & upon that a good issue might
[ 2217 ] be taken.(l) 2. The plaintiff says, that this payment of 60/.
was rejected by judgment of the chancery ^nd it does not ap-
Thel. Dig. pear in the whole replication, where the chancery at that
199. b. time was, viz. at Westminster, or in another place ;and that
1 Lutw.305. likewise is issuable and triable by jury, whether there was
532 jm " iUCn offer of chancery or not ; for their orders are but in
paper and are not of record to be tried by the record, but
by jury, (2) as 88 H. 6. is. And therefore the plaintiff
seeing the opinion of the court against him, prayed that he
might discontinue the suit. Qiwdfuit concession per Flem-
ing chief Justice, and the other justices would not cross him
in it. Yelverton was of counsel with the defendant*
(l) Where the condition of a the lessee covenanted to pay five
deed refers to a generality, the pounds for every acre of meadow
party may aver that the matter that he should plough up during
referred to does not exist; but the lease— in covenant against the
where it refers to a precise thing lessee for ploughing L. meadow,
as in existence at the time of the it was held that he was not estop-
deed executed, the party is estop- ped to say that the land called L.
ped from denying its existence, meadow was arable, and to trav-
V in. Ahr. Estoppel. P. Bac. Abr. erse its being meadow. 8 Mod. 311.
Pleas & Pleadings. I. It. Godb. Green v. Skipwitk. 11 Mod. 388.
177. Ctdlingwortk's case. 2 Bos. 1 Stra. 610. S. C. So where a
& Pul. 299. Hosier v. Searle. ship is freighted by the ton, and is
What is stated by way of descrip- found of less burthen than is ex-
tion in a bond may be denied by pressed in the charter-party inden-
the obligor. 3 Danv. Abr. 372. Vin. ted, the payment shall be only for
Abr. Estoppel. Q. Moore 477. Prat the real burthen. Molloy Lid. 2.
v. Pkanner. As where in an inden- c. 4. § 8.
tureof demise, two parcels of land {2) See 1 Harris & M'Henry
were described as L. meadow, and CI 2. Maxwell's Lessee v. Lloyd.
Hil. 10 Jac.
* Girling vs. Baker.
2 Bulst. 53. 5. C.
A man recovered in C. B. in debt od an insimul compu- if on a re-
t assent. The defendant brought a writ of error in B. R. and co?erj upon
he who recovered prayed, that he might (according to the an insimul
statute 3 Jac.) put in sureties by recognisance to pay the ^Ek^S"
condemnation, if the judgment should be affirmed. And, fendant bring
per curiam, this case is out of the statute; because the debt a writ of er-
recovered did not accrue by any contract or other duty cer- ror, be it not
tain at first, but merely on account between the parties, obliged by
which account has reduced several incertain sums to a cer- statute 3Jac.
taint? ; so that because the original cause of the action is {^ terror 8 "
founded on the account, which is wholly incertain, for that *
reason it is out of the statute. The same law in debt on Comb. 105.
an award, when the arbitrators have reduced several eon- i show. 14.
troversies to be recompensed by one sum, it is a debt, but
not such debt as is intended by the statute. Quod nota.
Gill vs. Glassc.
Cro. Jac. 312. 2 Bulst. 41. S. C.
IN debt, the plaintiff declared on a lease for years made To * plea of
to the defendant of land in £. rendering such rent, and for ' mI 'j?™*'
so much arrear at such feast he brought the action. The ? ^{^h* D u-
defendant (the lease not being by indenture) pleaded, that j t ? is bad—
the plaintiff tempore dimiss. nihil habuit in tenementis prm- [ 228 ]
dictis, unde dimissionem prcedictam facere potuit. The but cured by
plaintiff replied and said, quod tempore dimissionis habuit yerdict.
bonum et sufficientem statum in tenementis prcedictis, unde he
might make the demise, &c. And upon that they were at 2 ,8#
issue, and it was found for the plaintiff who had his judg-
ment accordingly. The defendant brought error, and as-
signed a fault in the replication ; for the plaintiff ought to
have shewn specially what estate he had, so that it might
appear to the court, that he had sufficient in the land,
whereof to make the lease. Quodfuit concessum per cur.
But yet the judgment was affirmed; for this defect is aid-
ed by the verdict, by the statute of jeofails ; for although
the issue is not so formally joined as it ought, yet it is an
issue tried, which may make an end of the matter; for it
is found that the plaintiff had an estate in the land, of which
he might make the demise. Quod nota.
Hil. 10 Jac.
[ 328 a ]
Deuce vs. Deuce.
An uncertain EJECTMENT de 8 acris terrtx, 4 prati, 4 pastures in B
verdict aid- & C in com. Kantw $ upon non ad. pleaded, the jury found
ed by intend- | nc defendant guilty in tertia parte 4 acr. terra and assess -
xnent * ed damages, et quoad resid. non ad. And it was moved in
arrest ofjudgment, that the verdict is incertain, because
non constat in which of the villa the third part lies. But
non allocatur per curiam, for it shall he intended, that eve-
ry acre of land named in the declaration lies in both vills ;
for so much is presumed by the declaration, and by the ve-
nire facias from both vills. Quod nota. Per totam curiam.
And judgment accordingly. Yelverton was of counsel with
the plaintiff.
TABLE
OF THE
PRINCIPAL MATTERS CONTAINED IN THIS BOOK.
Page,
Abatement of the writ. What shall
abate by the demise of the king
After imparlance cannot plead in
abatement • . •
Ought to give the plaintiff a better
writ
What plea goes in abatement
Error in dower where it shall abate
by death
How the death of one plaintiff shall
abate a writ of error .
Where the death of one defendant
doth not abate trespass
Difference between death before
and after judgment •
Abatement in lands confessed, a-
voided, and traverst •
Accessary. Where a receipt or sale
of stolen goods doth not make an
accessary • .
Access, sequitur sunm priocipale
Account, where assumpsit or debt
lies on it ....
Action, Many titles or actions con-
tained in one ... 63, 67
Plaint entered before cause of ac-
tion . ... 70, 71
Not two actions for the same thing 67
Where actio moritur cum persona 89
No man punished for bringing a
false action
Vide writ.
Additions. Several additions of the
defendant make error •
Administrator satisfies a recogni-
sance pending error on a judg-
ment
A
52
112
112
112
113
208
209
209
151
70
117
120
29
Page.
Second administrator shall not
have execution of a judgment by
the first . . . . 33,83
There wants privity between them 33
Has judgment, letters revoked, ex-
ecution by him is void
Sues in another right
How dying intestate shall be trav-
est in debt against or by admin-
istrator or executor
Administration revoked after ver-
dict
Debt against administrator duran-
te minori estate D. if the plain-
tiff ought to shew that D. was
within age at the time of the
action .
Fraudulent deed of gift of goods
made by an intestate shall not be
pleaded by administrator or ex-
ecutor . . 196, 197
With what debts an administrator
is chargeable • • • ib..
An original taken against an admin-
istrator 16 Sept. of which he had
not notice till 24 Feb. letters re-
voked 13 Feb. by covin, what
shall be the judgment against him 219
Admiralty; its jurisdiction 134, 135
Avowson ; how devested out of the
king
Amendments. Where a fault in the
bar is shewn for cause of demur-
rer, it shall not be amended
Replication, that the plaintiff has
assets instead of the defendant
Where a Distringas Jur. which is
83
83
115
125
128
91
38
65
TABLE.
Page.
album breve shall be amended 110
The bill is one messuage, the eject-
ment, declaration, roll, & record
of nisi prim, were of two ; and
tbe bill amended before the re-
cord remoTed 164
Appeal ; on a murder in the cinque
porta ... 12
Discontinuance in an appeal of
death not aided bj the defend-
ant's appearance alter 204
Wow it ought to be instantly pur*
sued ib.
How to plead in appeal 205
Appearance ; a condition that an-
other snail appear on warning,
bow it shall be pleaded 63
A promise to save harmless against
a recognisance to appear, how it
shall be pleaded 207
Not saved by removing the record, &c.ib.
Arbitrament. Replication on nul-
lum fecit arbitrium pleaded 24,78,153
An award to make an assurance on
10/* paid, how pleaded 25
An award in the middle of the term
that A. shall cease his suit, jet
he proceeds to judgment that
term, (which relates to the first
day) it is a void award ; for the
suit by the judgment is ceased
before 35
Corruption in an arbitrator shall be
punished .62
The pleading in debt on a bond to
perform an award . 78
Awards not construed as deeds and
wills 98
An award void in part is void in
the whole ib.
Condition to stand to the award of
four, ita quod it be made by
them, or any two of them before
such a day, if an award by two
be good . . .- 203
How the power of arbitrators may
be divided ib.
Arrest within a liberty 51
Assault ; what shall be an assault ? 172
Assignee of a lease, who ? . 36
Condition to repair a house on warn-
ing, where the notice shall be to
the lessee, and not to the assign-
ee of part of the term 36, 37
Assise before justices of assise on
removal of the justices and ad-
journment in B. how it shall be
recited in error in B. R. 3, 6
Assumpsit A. promises B. if he
will stay a complaint in the be-
half of the son of B. against the
Page.
son of A. that A's son shall keep
the peace .... 1
In consideration of wheat delivered
he promises to re-deliver the
same wheat, if good 4, 12S
If a bare custody shall be a good
consideration . 4, 60, 128, 164, 184
Consideration that the plaintiff con-
aretur procurare, &c. . . 11
Promise to save the bail harmless ;
how to declare on the proceed-
ings of the suit, Ac. . .^ 16
A promise to give B. as much in
marriage as he had before agreed
to give C. and does not say with
whom agreed ... 17
Agreed to pay the debts of B. with-
out shewing with whom, or what
debts . . . . 17, 18
A promise if the lessee sealed a lease
to the lessor, &c. he ought to de-
clare of the lease sealed by the
lessor .... 18
In consideration the plaintiff would
stay the execution of a Capias
utl. m debt against the defend-
ant ; J. S. promised, ice. 19
Consideration that he would not
prosecute an indictment for
goods stolen • ib.
Every debt implies a promise, and
is a good consideration 20
To re-delifer a horse, defendant
pleaded a prior property in an-
other, who took it by force • 22
Discharged by matter in law . 22
Consideration that he would dis-
charge him from an illegal arrest 25
To stand to an award, if part is
void ; whether damages shall be
intended to be given for it 35, 56
To shew a sufficient record, &c.
how it shall be pleaded, and the
breach laid . . 39,40
Whether a consideration past and •
executed before the promise shall
be good . .40,41
Where a request implies a consid-
eration . 41
Consideration to be bail for his ser-
vant ib.
Consideration that tbe plaintiff as-
portaret sufficien. hominem fore
obligat.; how performance of it
ought to be shewn . 49, 50
In consideration tbe plaintiff lent
the defendant 30/. he promised to
repay prasdict 30/. on request.
An use implied otherwise of a
bag sealed . 50, 128
Promise by the heir to pay his
TABLE.
Page.
father's debt on simple coo*
tract . . . 55,56,184
Consideration of being permitted
to enter, and take goods attacht
by the plaintiff, and other goods
not, he will paj the debt • 56
Failure in part of the considera-
tion, the other part may maintain
the action . . 56, 57
On an insimul computasset • 70
A. promises to deliver a thing to B.
to be chose by B. in assumpsit,
B. mast show his election. If A .
disposes of part, or hinders the
election, the promise is absolute
and broke . . 76
A promise to lend 61. part at one
time, and part at another, is no
performance, though accepted 87
Performance shall be in substance,
and not in letter . . 87
If A. will pass lands in D. to B. B.
will pay A. 100/. how he shall
declare . . . 110, 111
A seller of sheep warrants and pro-
mises they are sound, and worth
so much, the pleading of it 1 14
Where request is parcel of the pro-
mise, it may be alledged by licet,
as well as in facto . . 121
Where the defendant ought to have
notice of the thing done, on
which he is to perform 121, 122, 168
Consideration that one who has
no title to hold will quit posses-
sion . . .124, 125
Agreement between P. and D. that
D. shall have all the iron made,
&c and that P. promised he
should have all, &c. how to
plead . . 133, 134
Promise against promise, a' good
consideration . , 133, 134
On a mutual promise, if P. dies,
and his executor not chargeable,
yet the promise of D. continues 134
A promise to pay secundum ratam
40*. per too, he shall pay for
pounds • . . 134
What release discharges a future
promise or covenant . . 156
Where notice shall be alledged,
and where not . . 168
On an insimul computasset the de-
fendant pleaded security given by
bond before. The traverse 171
Where the plaintiff ought to shew
the precise consideration 175, 176
Baron of an executrix deceased
promised to pay a legacy, which
he was possessed of in consider-
ation to forbear .184
184
195
197
207
210
Pag§
Consideration he will forbear to
sue, not saying whom
A. grants 1000 trees to B. who fells
800. A. in consideration be will
forbear to fell the rest till after
three years, promises, &c. the
pleading of it .
Consideration against law, ill
Promise to save harmless against a
recognisance to appear
Against baron and feme, the plead-
ing is quod the dicit quod ipsa
non assumpsit
Promise to save harmless, and to
pay 2d. for every farthing-worth
of damage, how the damage shall
be shewn . • 220
Assurance. A. is bound to make
an assurance, how a request shall
be made, and how A. is bound
thereby ? It does not extend to
a bond or recognisance to enjoy,
qr to collateral security
Attainder. Where the kins; is in
by attainder of the tenant in tail/
he shall not avoid leases, altho'
in of the same estate, &c. 149, 150
Attaint at common law for a false
deposition
Attachment of goods in London
Forfeiture of goods on attachment
Audita Querela for omitting lands
out of an extent on a recogni-
sance
— — on tender of money on a
recognisance . * •
— — to be relieved against a re-
cognisance by bail ad standum
juri, &c. .
by an infant to cancel a re-
45
22
56
194
12
38
59
88
125
155
34
cognisance by him
Where an administrator has a ver-
dict in trover, and his letters re-
voked
. on a judgment against bail
under age
Averment shall not be against a re
cord
Authority. A sheriff makes a war-
rant to arrest, &c. to four et cui-
libet; it shall not be taken as
another authority, but two may,
execute it . . 25, 26
A letter of attorney to three con-
juoctum et divisim . 26
BAIL enter into a recognisance
that B. shall appear on eight days
warning, uecnon to pay the con-
demnation, in a suit against the
bail for the condemnation, hew
the warning shall be shewn , 53
TABLE.
Page.
Only common bail in actions on pe-
nal itatatei . 53
80 for executon or administrator! ib.
Bail enter into a recognisance that
the plaintiff shall prosecute, and
ad standum jari ; it import! pay-
ment of the condemnation 69
Procedendo is not delivered till af-
ter the return of the Habeas Cor-
pus, the taking of bail by the
Chief Justice at the return of the
Habeas Corpus, discharges the
bail in the first action, altho' it is
not filed ; otherwise if the proce-
dendo was delivered before 120, 121
Judgment against an infant bail by
recognisance, how it shall be a-
Toided . . 155
Bailment to the use of A. he shall
hare debt for it . 24
A. indebted to C. bails or delivers
goods to B. to satisfy C, C. has
an interest and property . 164
Bargain and sale, a feoffment be-
fore inrolment hinders it 144
In pleading a bargain and sale it
shall be shewn in what court 213
Bar, Where a recovery and exe-
cution against one shall bar an
action another . . 67
Barreter. Conspiracy to indict him
as a barretor . 46
Baron and feme. Feme beat to
death, baron shall not have an
action ... 89
Letter of attorney by baron and
feme to deliver a lease made by
them, void as to the feme 1
Gift to baron & feme before mar-
riage, and their heirs, how they
take. If she shall have by sur-
vivor . . .101
How the action and verdict shall *
be against baron and feme on a
battery by the feme . 106
Trover against baron & feme, how
to declare . . .165
The feme has no interest in goods 166
How baron and feme ought to join
in plea . . 210
Battery. Trespass of it and decla-
ration^ accordingly ; the defend-
ant shews title to the place where
&c. where to reply de injuria sua
propria absque tali Causa, will
be good . . • 157
Bill of debt by the servant,
where it shall charge the mas-
ter . . . 137,147
Bona et CataUa. What shall pass
by that name . . 68
J>ge.
Bribery in commissioners and arbi-
trators punished, &c. .62
CAPIAS does not lie on a recog-
nisance
The use of inferior courts to have
a Capias, as second process in
actions on the case
To commence with a Capias with-
out summons or attachment, if
good
Capias utlagatum is the king's suit
How the king, and how the party
are interested in it
Capias ad satisfaciend. to the sher-
iff, who makes a precept to the
bailiff of the dutchy ad»capiend.
ad respond, and the sheriff re-
turns Cepi Corpus ; if the party
can have new process
— — on an indebitat. assumpsit
for disceit in the sale of a
term
Cote. On an indubitatis assumpsit
— — for deceit in the sale of a term
for disturbing execution 28
— — for conspiracy to indict as a
barretor 46, 161
— the indictment in the declara-
tion varied from the indictment
certified
— such action lies although the
indictment was erroneous
— on an agreement to pay a
debt, where a request shall be
shewn
— tor indicting one of a rape, a
good justification
for indicting of a robbery be-
fore j ustices of peace 1 1 6, 1 1 7
against an heir for an erection
by the father continued by the
heir . > . 143
By tenents in common for diverting
a water course
Certiorari. On an indictment of
forcible entry, restitution award-
ed, not executed, a certiorari de-
livered to one of the justices of
peace, who did not open it till
restitution made, a misdemeanor
No proceedings after a certiorari
Certiorari for an original . .
Challenge to the sheriff before issue
and ven. fac. to the coroners, the
sheriff per mandat. justic. cannot
return the tales
A juror shall not be challenged for
the king who was sworn at a day
before
Chancery. One made party to a bill
42
158
ib.
28
19
52
20
20
20
20
46
ib.
66
105
161
32
ib.
108
15
23
TABLE.
. Page.
by order a latere, if he shall be
■aid to be a part/ to the luit 22
The judges of the common law do
not take notice of the course and
usage in Chancery . . 42
Where in pleading a judgment in
Chancery, the place shall be
shewn where the Chancery then
was, which is issuable and tria-
ble per Pais ... 227
Their orders in paper are not of re-
cord 227
Christian court. Their j urisdiction
concerning tithes ... 79
Revocation of wills . . 92
Church. The church is full as to
the patron till notice of the avoid-
ance 7
Where it comprehends every thing
belonging to it • . . 61
A double usurpation puts the king
out of possession . • 90
How Tcmpus semestre shall be com-
puted .... 100
Suit in the Spiritual Court for a tax
for the repairs of a church . 173
Church-warden* sue for a tax made
by them for the repairs of the
^ church, how the parish is con-
cerned . ib.
They may act for the advantage,
not disadvantage of the church ib.
Cinque Ports, . Touching their lib-
erties 12
Appeal of murder in the Cinque
Ports . . . . . ib.
Civil taw. How the judges of the
common law take conusance of it 17
Collation to a donative exempt 60
If the patron refuses to collate,
what remedy . • • 61
Commissioners to examine witness-
es punished for corruption . 62
Commoner cannot enter to chase
and kill conies . . . 104
His remedy on a surcharge of the
common by the lord or a stran-
ger . . 104, 105, 129
The lord by custom may be stinted
of common in his own soil • 129
If he exceeds he may be distrained
by his tenants, and so of a stran-
ger ib.
Sowing a small part of the field does
not oust the commoner in the
residue .♦ • . . 185
The grantor of common cannot e-
rect a hay-stack on it, nor chase
the grantee's cattle . 201
Case against the son of the lord for
erecting cony-boroughs by the
Page.
father, and continuance, &c. by
him on his common . . 143
Where common is claimed, the land
in which, and to which, &c. shall
be shewn in certain . . 177
Common of estovers in another's
soil, if the owner cuts the whole,
what remedy . . 188
The lord confirms to the copyhold- '
er his messuage and land cum
pertinen. he loses his common in
the wastes • . . . 189
The common not incident to the
copyhold estate, but gained by
custom .... 190
Concord pleaded in covenant ought
to be certain . . . 125
Condition. A condition that the
lessee his executors and assigns
shall repair the house on warning
given, how it concerns an assign-
ee of part .... 37
How the breach of a condition on
a recognisance shall be shewn 59
The condition to appear, &c. is not
saved by removal of the cogni-
sance . • . . . 207
Copyhold land not within the stat-
ute 32 H. 8. of conditions 222, 223
Confession and avoidance, what
shall be sufficient . . .31
Consideration in a patent . 43, 48
Debt or assumpsit lies on a consid-
eration in law . • 70
Vide Tit. Assumpsit and Tit. Convey-
ance.
Conspiracy. Case thereon for in-
dicting of barretry . • 46
For indicting one of, &c. and im-
prisoning, Sec. till, &c. secundum
legem, &c. acquietat. without
inde, if good ... 161
Contract. A. covenants with, or
binds himseli to B. and C. to pay
C. 10/. who shall sue for it . 177
Conveyance. The father in consid-
eration of the marriage of his son
covenants to stand seised to the
use of himself and his heirs, it is
no good consideration as to the
father ; otherwise, if to establish
the land in his name and blood 51
Tenant in tail covenants without
good consideration to stand seis-
ed to himself in fee, and suffers a
single recovery ; if it shall bind
the remainder . . ib.
If a covenant to stand seised alters
the estate tail as to a stranger 51
Bargain and sale 7 Jan. 8 Jan. he
covenants to suffer a recovery,
TABLE.
P«ge.
9 Jan. a writ of right is brought
on which, &c. 10 Jan. livery ii
made ; how the estate paieei 133
Where on several conveyance! ex-
ecutory, the grantee shall take
by either ib.
How, if one is executed . . ib.
Possession executed hinders posses*
sion executory • • • 124
Feoffment of a manor cum perti-
nen. the advowson appendent
does not pass without livery ib.
An estate for life in land or tithes
cannot commence in/uturo • 132
If a grant which enures by way of
discbarge or retainer shall com-
mence in/uturo . • • ib.
Where it shell be said to enure by
way of discharge, and where in
interest .... ib.
Copyhold. A forfeiture by copy-
holder for life does not forfeit the
remainder . . . 1
A copyholder has an inheritance 2
What thing a copyholder may do
before admittance • . . 16
A copyholder surrenders to a stran-
ger, the steward refuses to admit
him, in an ejectment by the lord
be amy plead non cul. . .16
— Restitution to a copyholder on
a forcible entry . .81
Lessee copyholder, if be may plead
bis estate immediate under the
lord 223
—An executor shall not have debt
for arrears of copyhold rents due
in the life of the testator . . 135
A surrender is not of effect to
a purchaser till admittance, and
the admittance of his surrendree
is of no avail • 144
The lord confirms to the copyholder
his house and land cum pertinen.
he loses his common in the wastes 189
Common not incident to the copy-
hold estate, but gained by cus-
tom 190
Rent granted by copy . 190, 191
A copyhold manor is not capa-
ble of an escheat of a freehold 191
A copyhold manor parcel of anoth-
er manor, granted by copy . ib.
If the grantee of such manor may
hold courts • . • .191
A distress for an appearance at a
court baron shall not be forfeited 194
Distress infinite, and not attach-
ment there . . . • ib.
Copyhold land is not within the
statute 32 II. 8. of conditions,
62
205
Page
nor the assignees of it
Custom does not trench to a thing
collateral to the estate
Corruption in matters of reference
to commissioners or arbitrators
how punished by indictment
Crown* Receipt of stolen goods,
where felony «
Where murder in an indictment or
appeal means homicide •
Covenants. If the lease is not good,
there is no covenant, nor breach 18, 19
Where they are discharged by evic-
tion, he 22, 23
——In covenant to enjoy, how the
breach shall be assigned for a
disturbance ....
Lessee by indenture rendering rent
lessor concedit dare k reddere
to the lessee 3s. per ann., if part
of the rent, or to be paid by way
of covenant ...
—Debt on a bond to perform
coveoants, where a breach need
not be assigned
—A concord pleaded in cove-
nant
—A Warrantia Charts* depend-
ing is no bar in covenant quia
personal ....
Convenant lies on a warranty
—-On what eviction a lessee for
life or years shall have covenant
—-—Where a particular covenant
does not qualify the general
Counterpart, An action does not
lie for it without special grant
If the counterpart of the lease be-
longs to the grantee of the rent
reserved . . 223,224
Court. Touching the stile of an in-
ferior court • . . .46
The return of a Ven. fac. coram
nobis without ubicunque . . 60
Curia claudenda . . .75
DAMAGES and costs. Assump-
sit to perform an award, where
it is void in part, if damages shall
be intended to be given for it 35
.The plaintiff shall not recover more
damages than he declares for 45, 70
—The different nature of damag-
es and costs • . . .70
—Damages on three promises,
and ooe not well laid r the plain-
tiff shall not have judgment, • 94
The costs given by the jury omitted
in the judgment, ill . 107,119
Damages to three, to have no '
cause, the judgment reverst . 108
30
43
78
125
139
ib.
ib.
175
223
TABLE.
Page.
The justices may assets damages,
if they will, without awarding a
writ of inquiry . . .152
Damages trebled, and costs given
by the court . . . .176
Darraign continuance. How a
thing shall be pleaded after it 141
Day. Several acts done at sever-
al times in one day shall be par-
cel of the issue . . . 87
Dean, a temporal man • .61
Dedimui Potestatim to one who has
another addition . . .33
Deeds A presentation delivered
to the bishop without the consent
of the patron . . 7
How the defendant ought to plead
primo deliberat. at another day 138
A bond delivered after the condi-
tion to be performed • . ib.
Where false Latin, false date, or
want of a date will not hurt 193, 194
No action lies for a deed determined 224
The counter-part does not pass un-
less granted . . 223,224
Demand of rent, how and to whom
to be made ... 36, 37
Demist of the king, latitat not lost
thereby 52
Demurrer. Where a man joins in
demurrer for part, and has a writ
of inquiry for the whole, if error 5
Where it ought to be special . 35
A fault in the bar shewn for cause
of demurrer, and adjudged, ousts
all amendments ... 38
Where it is incertain to which pla-
citum a demurrer refers, if a dis-
continuance ... 65
On three pleas pleaded in covenant
how the demurrer shall be . ib.
Confession by demurrer • . 195
Debt. Miscasting in the declara-
tion, if error .... 5
Declaration for more than the plaint ib.
Declaration on several contracts ib.
— — It lies for one not party to the
contract, as for A. on a bailment
for his use . • . 23, 24
By him to whose use money is de-
livered .... 24
— For tithes, where several titles
in one writ . . 63
Quod reddat un. dolium ferri ;
the judgment, quod recuperet
dolium, vel valorem ejusdem, if
good • . . • . • 71
» The distringas thereon ib.
■— - For Flemish money, how to
declare .... 80,
— - It does not lie for so many
Page.
ounces of Flemish money, but
detinue «... 81
Foreign money demanded . by the
name of English . . 135
Bill of debt by the servant,
where it shall bind the master 137,147
— Debt against the heir . 169
— — Debt on a lease as heir, bow
to declare . . . . 189
In debt to declare as for an annui-
ty, is ill . . . 208
Departure. . . • 14, 96
Detinue, how it lies for foreign mon-
ey HO, 81
Devastavit. It is none to satisfy a
statute pending error on a judg-
ment . .... 29
Where the sheriff cannot levy a
debt against an administrator, he
may return a devastavit 219, 220
Devise, That the executor shall
repair the house, and have the
over-sight of bis lands till the
son's age ; what interest passes 73
A devise to J. and H. in tail, and
that they shall not enter till their
ages, and that bis executor shall
have till their ages to perforin
his will ; the estate of the execu-
tor precedes • • . 183
A devise to fear in fee, and that
one shall have the whole for life,
good ib.
A devise of all his land to B. and if
he dies without heir, that D. shall
have in tail, and by the same
will devises part to G. in fee,
how C. shall have it . . 209
A devise of the whole to B. and af-
ter of the whole to C. they arc-
joint tenants • . • 210
Diteeit. A case of it in the sale of
a term .... 20
Discharge. A lease of tithes tak-
en by way of discharge 132
Discontinuance of suit, by joining
iu demurrer for part . . 5, 6
— By incertainty in demurrer 65
— Discontinuance by a Ponitur
in respectu ....
— Discontinuance for the plain-
tiff's non appearance after the
first judgment in trover
— By want of a replication or
demurrer . .. 117, 118
— By ill conclusion of the plea 137
— Three plaintiffs, two only ap-
pear at the day given, and a day
given over to all, if a discontin-
uance not amendable • .155
Discontinuance notwithstand-
97
ib.
81 1 uai
TABLE.
Page.
fog a verdict . . .169
Dispensation by the A. B. for a
layman to bare a deanry .61
Distress illegal. Trover lies for it 9, 10
Wbere the lord shall oet be punish-
ed by distress • . . 129
Goods distrained by the lord shall
not be forfeited . 194
A distress to be safely kept . . ib.
Distringas Jut. amended in the
teste . / . .64
— Album breve a good cause for
a new trial • 1 10
Where it shall be amended . • ib.
Donative 60
if a layman may be collated to it
exempt, fcc 61
The original of donatives • • ib.
If a patron refoses to collate, what
remedy ib.
Double pleas .... 13
Dower. Where tenant in tail cov-
enants to stand seised to the use
of himself for life, aod marries,
his wife shall be endowed . 51
How in dower the jury ought to
find the dying seised, to have
damages . . . . 112
Error against the tenant in dower,
who dies, the writ shall not abate 113
Dower of a gone . 143
ECCLESIASTICAL COURT. If
it has jurisdiction touching the
revocation of a will, and legacy *92
Ejectment. A declaration for forty
acres in parochia, where the par-
ish has three villi, without saying
in which of them • . 112
Declaration for one acre abutting,
&c. the defendant is found guilty
in dimid. Acre infrascriptae, ill 1 14
Declaration for land without ex-
pressing the number of acres, ill 118
It does not lie de Rivulo seu Aqua;
Cursu; otherwise de terra aqua
cooperta, of a gone or pool 143
Of a copyhold . 144
Where the servant of the pretended
owner shall be a sufficient ejector ib.
The omission of a messuage in the
bill amended * . . 164
Where the per Nomen shall destroy
the quantity in the declaration 166
Entry into part after the last con-
tinuance ... 181
The ejectment supposed before the
lease .... 182
A declaration that the defendants
intraverunt & ejecit, expulit &
amovit, if amendable . . 224
Page.
Election, destroyed • 76
Elegit, how sued in Com. Palat 179
Error to remove a Quare impedit 3
T o remove a record of as-
sise, taken before justices of as-
sise, aod adjourned inC. B. how
it shall be ... 3, 6
Four bring error on assign-
ment by one, is ill 3, 209
Discontinuance of a writ of error 4
-—A record removed by an ill
writ of error, yet it remains in
the court in which, &c. 6, 212
Error shall not be assigned
contrary to the record 33, 34
Where on an assignment of
error in fact you must conclude
to the country . 34, 58, 1 17
What is confessed by nullo
est erratum pleaded 57, 58
Error in dower, where it
shall abate by death . . 113
A Scire fac. and two Nikile
against the executor of the wid-
ow shall make him party to er-
# ror in dower . • • 113
Error in Ireland . 117
-If it lies in the Exchequer-
Chamber on a judgment in a Sci-
re facias • • • • 157
B. R. does not reform error
io process unless in the same term. ib.
Where the death of one of
the plaintiffs shall abate the
writ 208
The writ is as a commission 209
The judgment in a writ of
error ib.
■ Error to remove a judg-
ment before the bishop and seven
others, where it was before the
bishop and eight
The writ and record ought
to agree .
Error in the certificate of the clerk
of assise ....
Error in the entry of the judgment.
What debts intended by 3 Jac. the
execution whereof shall be stay-
ed on bail found on error, &c.
Escape by one taken on a Capias
Utlagat. who shall have an action 20
Qf one taken by a capias, wbere it
does not lie, it is no escape to
charge the sheriff . • 42
A promise or bond to save a gaoler
harmless from an escape is void 197
Escheat of one manor held of an-
other . ... 190, 191
A copyhold manor is not capable of
an escheat of a freehold 191
112
ib.
214
ib.
227
TABLE.
Page,
Estoppel to assign errors contrary
to the record
A fine operates by conclusion
Estoppel by indenture
Estray, The misuser of it
Estovers claimed in another's soil,
if the owner cuts down the whole,
what remedy
Estovers are parcel of the whole
Eviction discharges covenants,&c. 22,23
Execution*. Error], and a superse-
deas to the sheriff after a fieri fa-
cias delivered ; goods taken be-
fore the supersedeas delivered
shall be in execution, and subject
to a venditioni expon. . • 6
■ A state entered into after a
recognisance, but first extended
34
101
201
96
188
ib.
on part, how execution shall be
on the recognisance
■ The breaking of a house to
serve an execution
— — — A recognisance
satisfied
pending error on a judgment in
debt
• The old sheriff cannot sell
goods taken by a fieri facias
• Property of goods,' if alter-
ed on a seisure by fieri facias
The sheriff cannot sell without a
venditioni exponas
•The mandat to a bailiff was
cap. respond* for cap. ad satis-
faciend. .
Election to charge the sheriff or the
party on a wrong service
— — Where the extenders cannot
refuse the land . .
*— Execution grounded on a
testatum, where none is filed
• How the defendant shall be
12
ib.
56
179
180
9
ib.
restored when execution is avoid-
ed
Executor is a name of purchase
Rent granted to A. his executors
and assigns during the life of B.
the executors of A. shall not
have it . . .
A promise or agreement by an ex-
ecutor to pay or receive a debt
of the testator's, makes it his
own proper debt 10, 11, 56, 56
A promise by an executor to take
150/. for 2052. ... 10
If Assumpsit lies against an execu-
tor on a simple contract by the
testator . . . . 20, 56
If an executor may pay a statute
pending error on a judgment 29
An executor who sues execution of
a judgment obtained by a former
B
Pag*.
shall have it to the use of the
first testator, although the record
is geoeral .... 33
Damages are assets . . ib.
An executor shall only file common
bail ...'.. 53
An executor of lessee for years
charged with the arrears after
the death of the testator,although
he did not agree . . 103
He cannot waive the land . ib.
Error against a widow who recov-
ered in dower, how her executors
shall be made parties to the writ
as to damages . • 113
All the executors shall be named in
an action, although administia-
tion is committed to one durante
minoritate of the others . 130
Debt on a judgment against an ex-
ecutor, if he can plead a judg-
ment on a recognisance subse-
quent, not satisfied, &c. . 133
Debt against an executor de son
tort . . . . . 137
If he may retain to satisfy himself ib.
The debtor and another made ex-
ecutors, it does not extinguish
the debt, (although, the executor
cannot sue for it) but it shall be
liable toother debts and legacies 160.
Where an executor shall not pay
costs on the statute 4 Jac. . 168 »
The husband of ao executrix, if -
chargeable with legacies,and how 184 .
A* fraudulent deed of gift of goods
made to deceive creditors shall
not be pleaded by bis executor
or administrator, but shall be a-
voided by his creditors, and the
goods liable to them in the hands
of the grantee, as executor de
son tort .... 196
Exchange defeated, where an es-
tate for life or part is evicted 8
Warranties implied . . ib.
Of a reversion for a possession . ib.
Exemption; how a donative ex*
empt from the ordinary 's juris-
diction may be resigned, &c. 60, 61
The extent of such exemption ib.
Exposition of quilibet . . • • 26
Of a condition to appear on warn-
ing ; and answer the condemna-
tion • . . . 52, 53
Of a grant of rent out of lands 82
Of the words aut, alibi, necnon,
unacum, spectan. or pertinen, 82, .83
That which abridges the common
law shall be taken strictly 92, 93
Postes, toil, a day before, in a de-
TABLE.
Page.
claration .... 93
An award to pay 6/. 21 Mail, and
to execute a release predict© 1
Die Maii, void ... 98
Deeds and wills construed accord-
ing to the intent, awards not ib.
An agreement to leave a house shall
be intended immediately . 125
Ten acres more or less, how intend-
ed 166
FACTOR. How he shall discharge
himself in account for merchaa-
dint
Fake imprisonment on an illegal ar-
rest
Fieri facia*. Vide title execution
Fine. The cognisance taken by R.
M. Esq. ; the dedimus afterwards
taken to sir R. M. Knight, and
the return is respons. infranomi-
nati R. M. if it shall be alledged
for error ....
Error in a fine shall not be assigned
- contrary to the record .
Dedimus to two, one takes the cog-
nisance • • .
A fine by conclusion
Forcible entry.. A conditional find-
ing *f such indictment •
— — An indictment quod Messu-
agium ingretsum fecerunt with-
out [in] mem.
And when an indictment without
saying [adtonc] existent liberum
tenementuro, &c. .
■ One of the justices of peace
refutes to open the supersedeas
till their award of restitution ex-
ecuted ; it is a misdemeanor
— Where restitution shall be
awarded to the tenant against
the will of the freeholder
■ «- Restitution to a copyholder
on a forcible entry
- .Where a pardon of the force
202
33
34
34
101
15
27
28
99
•hall prevent restitution
An indictment returned as to the
entry Ignoramus, as to. the de-
tainer Silla vera, if good
An indictment for a forcible detain-
. er only . . . .99, 100
■ ■ If the indictment ought to
find the eviction of the farmer
Forgery punished at common law
Foreign attachment in London
Fraud. What shall be call'd fraud
A fraudulent deed of gift of goods
made by an intestate shall not be
' pleaded by hie executor or ad-
ministrator, but shall be avoided
ib.
165
62
56
20
Page.
by the creditors, and the goods
liable to them in the hands of the
grantee, as executor de son tort 1 96
Freehold. Where damages recov-
ered in covenant is no recon*-
.pense for the loss of the freehold 139
GRANTS. A grant of a rent to
A. his executors and assigns da-
ring the life of B. if bis executor*
shall have it ... 9
Arrant of 202. of hi* rents of bis
tenants, if good . #191
If a grantor may do a thing to de*
feat his grant ... 201
Grant of the king pro aeipso, if it
shall bind his successors . 14, 15
The king takes by deed delivered
of record .... 30
The king deceived in his lease, both
io the rent, and in the commence-
meat of the term, via. as to take
effect by parcels . . 43, 48
The difference where he u deceiv-
ed in his intent, and where in hie
information . ... 48
A grant to the king, which cannot
come into possession, is void 149
A grant to the kiog as long as any
issue male of B. lives, the inter-
vention of a daughter who has a
son determines it . ib.
HABEAS CORPUS. A proce-
dendo issued the same day with
it, but delivered after the return
of it, if the first bail is discharg-
ed 120
The cause, for assisting on the land
one indicted of piracy in the ad-
miralty to escape, remanded 134,135
Heralds. Trial by their register 34
Hire. A special property gained
by it I7fc
The hiring of a horse to one place,
and riding to another • . ib.
Hostler. Where he may detain a
horse till satisfaction on an agree-
ment to pay so munh for keep-
ing .... 6$, 67
Where he may sell a horse to sat-
isfy himself .... 67
Case against an hostler, where a
person's servant or friend was
robbed in an inn . . . 162
Hue and cry on the statute of Win-
ton of robbery, and declares on
the stat. 13 E. 1 & 27 El. and
concludes contra foxmam statuti
praedicti, good . • • 1 16
Knight or not, how it shall be tried ,34
TABLE.
Page-
JEOFAILS. What iisoe shall be .
a jeofail within tbe stat. . 54
Error in the certificate of the clerk
of assise .... 214
Error io the entry of the judgment ib.
Where a discontinuance shall not
be aided after verdict . .169
Importance admits the writ to be
good 112
The difference between a general
and special imparlance . .211
Petit cape in dower on a default on
an imparlance . . . ib.
Implication shall not make a decla-
ration good . . .18
Fide title Ejectment.
Indebitatus Assumpsit. Case lies
on it 20
Indenture. If the lessee seals his .
part of it, and the lessor not, ni-
hil operatur . . . 18, 19
Indictment. A finding conditional-
ly is not good . . .15
— — Of murder dans eidem unam
plagam mortalem, &c. without
adtunc 28
— — Tnsultum fecit & percussit
without adtunc • . . ib.
Where it ought to be con-
tra pacem nuper Reginee, as well
as regis nunc . . .66
— — A justifiable prosecution of
it 105,116,117
In pleading an indictment the au-
thority of the justices shall be
shew* . . . 116,117
Inducements in declarations in as-
sumpsit need not be alledged 1 17
Fide title pleading. Assumpsit.
Infant, His appearance by guar- ,
dian . . . . 58,211
Where on a reversal against
an infant for error he shall have
an audita querela • . 88
■ ' How a recognisance by him
shall be cancelled . 88, 155
Infranehisement of a villain • 2
Inquiry of damage* of more than
contained in the declaration • 5
Taken before one who has no war-
rant by the writ 69, 70
The judgment not perfect till the
writ of inquiry returned . 71,97
On an inquiry of damages how the
plaintiff ought to attend to avoid
a discontinuance . . 97
How the jury ought to be continued
on an inquiry . . . ib.
Where on an inquiry the plaintiff
need not prove property, but the
value, and where he must 151, 152
Page.
Tbe justices mar assess damages,
if they will, without this writ 152
Inrolmenl. How the six months
shall be computed on the statute of
inrolraents • • • 100
Intendment. A thing mortgaged
shall not be intended to be re*
deemed unless expressly alledged
A warrant construed according to
the intent
Things done on one day shall be in-
tended at one time
Fide title Exposition.
Intrusion what? It cannot be on
an estate of inheritance •
Joinder in action by tenants in com-
mon
Parson and vicar cannot join iq, ac-
tion . *
A libel against two severally, if
they may join in a prohibition 128,129
Joint enants. A forfeiture by a joint
surrenderee of a copyhold •
Jointenancy how pleaded
Execution awarded against the
goods of a joiotenant deceased v if
the survivor may lock the house
against the sheriff
A devise to two to enter when they
attain their several ages ; if the
entry of one at age destroys tbe
jointenancy . .183
Jointure. What shall be called so
within the statute 11 H. 7
Ireland. Judgment on error in B.R.
there, bow reverst in B. R. here
How the record shall be sent and
remanded . 117, 118
How the execution shall be made
on reversal
How error in C. B. there shall be
reverst here >
Issue ill aided by verdict
The place in assumpsit, if issuable
Matter issuable in assumpsit
Judgment. Where it shall be on
nihil dicit, and where not
■ Judgment not perfect till
an inquiry of damages
' Judgment ought to be full
and perfect in omnibus
— — Where the defendant ap-
pears on the first summons in
debt, how the judgment shaii be
Judgment in trespass after
25
26
87
171
23
63
1
75
28
101
117
118
ib.
228
11
39
38
97
98
108
a pardon . . .126
— Videtur, concessum, incon-
cessum, liquet curia?, are not
words of judgment . . 130
Debt brought on a judg-
ment, the nature of it . 133
TABLE.
ibJ
138
219
S3
ib.
ib.
Page,
■ if itehall biader execution
oo 'a statute
■ Judgment oo a matter con-
fett notwithstanding ill pleading
■ Judgment iball oot be con-
ditional where it may be final
Juror shall not be challenged for
the king at another day, who waa
sworn before
And how thoae sworn before shall
be sworn again
A jury fined and committed for an
ill verdict
SiirtMfetfen of the Cinque Ports &
B. R. IS, 13
■ Of the court of requests 111
LATIN In trespass the Latin
wordVo which he declares has
no such signification as is Eng-
lished ... 68
Latitat does oot abate by the de-
mise of the king . .52
It is not an original, bat in nature
of an execution . ib.
Lease. Eviction of the possession
of the lessee discharges all rents,
bonds and covenants 18, 19, S3
Lessee for life by the words dedi &
demisi, how a warrantia charts,
or covenant lies on eviction 139
Lett. Avowry for an amercement
for non-payment of a leet fine 186
Legacy. An executor gives bond
for payment of a legacy, the bond
extinguishes the legacy, and it
shall oot be sued for in the spirit-
ual court . . .39
Letter of attorney to three conjunc-
tion et division . . 26
Liberties within Tills in point of ju-
risdiction . . 12, 13
An arrest by a sheriff within a lib-
erty is good, and the offence only
to the lord . . 61, 52
Licence in law misused 96, 97
Lights stopped by building on an an-
cient foundation in towns 215,216,225
tendon. Custom there that land
passes by bargain and sale with-
out livery or inrelment . 124
Concerning stopping of lights by
building . 215, 216, 225
Covenant against lessor to repair
bouses . .216
MANOR. How it may be parcel,
and held of another manor . 190
It ceases by escheat • 190, 191
£ manor in reputation how, and
what may pass . 191
Page.
Master. Consideration to be bail
for his servant . 40, 41
— — Shall not have an action for
beating his servant to death 89, 90
Where a bill of debt made by the
servant shall bind the master 137,147
Servant or friend robbed in a com-
mon inn, the master or owner
shall have case against the inn-
holder • 16S
Merchants. The judges ought to
take notice of the usage among
merchants • 135, 136
In what things the law protects
merchants strangers 900
What actions they may have ib.
Miscasting in a declaration in debt 5
Misconveying of proceu 15
Mortgage shall not be intended to
be redeemed, unless expressly
shewn ... 25
Murder in an appeal or indictment
intended homicide . 205
NATIVO Habendo
Nihils, two returned amount to gar-
88
180
181
106
66
Nisi prius. What pleas justices of
assise at nisi prius may receive
If a protection
Non-residence. The statute of 13
El. of non-residence is a general
law • .
Nusance in the time of one king
continued in the time of the suc-
cessor, how the indictment shall
be
OBLIGATION to perform cove-
nants in a lease, if there is no
lease there is no covenant nor
breach . . . . 18, 19
■ There are bound et quilibet
eorum, an action shall not be
broogbt agaiost two • 26
An action dees not lie on a single
obligation till all the days incur-
red
It cannot be demanded by the words
bona et cataUa, nor pass by those
words
Assignment of a breach on an obli-
gation to perform covenants
— — Obligation in quimquegent.
libr 05
SQuinnque. Quiinque Septu-
agent. Septoamgentis 96
Sexgintis ... 105
Trigintatae • . . 225
— — — False Latin will not destroy
an obligation • • 193
A word that is not Latin will 95
67
68
78
TABLE.
Page,
The principal parts requisite in an
obligation
Want of date will not hart
An obligation first delivered after
the condition mentioned to be
performed is single
An obligation to three to pay to one
who shall sue
An agreement executed pleaded in
discharge x>f an obligation
If it ought to be in discharge
of the sum in the condition
■ - A contingent condition of an
obligation cannot be discharged
A grant with a proviso to be void
on non-payment of 20/. &c.
A condition of a bond to perform
covenants, payments, kc. ex-
tends only to* compulsory pay-
ments, not to a voluntary sum in
the proviso
Debt on an obligation to save harm-
less against legacies
Office of the court not to abate a
writ without the challenge of the
party • •
The judges of the common law do
not take notice of the coarse in
Chancery . • 42
How of the civil law . . 17
Of what they do not take notice
without the allegation of the party 141
Where an office shall be intended
antient • . 200
'Where in trover it shall not be
shewn how the defendant is made
deputy ... .201
Touching the office of chief butler-
age
Original. Where, on a Certiorari
an original certified in any term
is sufficient
The original mistaken in the defen-
dant's chriitian name
The difference between an ill orig-
inal and no original
The want of an original it cause of
reversal . .
Outlawry. How the king is con-
cerned in an outlawry in debt
Oxford, and the privileges in it
193
194
138
177
192
192
193
206
206
226
56
199
108
109
ib.
118
19
16
PALATINE. An elegit bow sued
in the county palatine , . 179
Pardon. The first entry in trespass
being pardoned, all that depends
upon it is pardoned . . 126
Parson. If the parson and vicar
may join in an action for tithes 63
Partition. An eviction of an estate
for life defeat* it .8
Page.
163
61
ib.
178
ib.
ib.
ib.
ib.
ib.
ib.
Passagium* What it is
Patron of a donative refuses to col-
late . • .
If he may collate a layman
Pawn. The time to redeem it
The death of him to whom doth not
hinder redemption
But the executor of him who pawn-
ed cannot redeem
If he to whom delivers it over to
J.S. to whom the tender shall be
made
Touching the property of the thing
pawned
Tender and refusal
The law where a pawn perishes
Penal statutes taken strictly 22, 53
Perjury* Where an action on the
statute 5 £1. does not lie on a
false deposition in Chancery 22
If on an aid prier . . . ib.
Concerning perjury . . 27, 72
An oath in a court touching a thing
which it hath no cognisance of,
is not perjury
The defendant for an oath on an in-
terrogatory in the Star- Chamber
shall not be indicted on the sta-
tute 5 £1.
Piracy. Assisting one indicted for
piracy in the Admiralty to es-
cape . . 134, 135 .
Place. Where it shall be alledged
in an Assumpsit . . 11,207
Pleading. Miscasting in a decla-
ration in debt . . 5
— Double plea iu an appeal
of murder . . 12, 13
— — Replication a departure
from the declaration . . 13, 14
■ The conveyance to the ac-
tion need not be precisely shewn 16
17, 56, 75
— — Declaration made certain
by the replication . 17
— In debt on a bond to per-
form covenants, where a breach
need not be assigned, viz. where
a special issue requires a special
replication . . 25,78
The plaintiff is not obliged
111
120
to shew an act done between a
stranger and the defendant to
which he is not privy 25, 128
— A declaration which may
have two intendments is not good
In an Audita Querela the
36
defendant says pro placito quod J.
B. (a third person) dicit, &c.
The difference between ni-
hil discere and ituufficienter di-
TABLE.
Page.
cere a* to judgment 38
Pleading in an Audita Querela the
plaintiff declares that the recog-
nizee was not there ad exigend.
et recipiend. the monej where it
ie to he paid without demand,
adjudged that the word exigend.
if void .38
— How to shew the condition of
a recognisance broke 69
On Plena admtnistravit the plaintiff
replies that he himself (instead
of the defendant) has assets, and
amended
In trespass the defendant need not
shew in certain a thing collater-
al to the trespass, which is but a
conveyance to the matter
In trespass for damage feasant the
defendant pleads that the plain-
tiff depuit reparare, he need not
shew by what title, &c.
It is good for the defendant to be
sparing in setting forth the plain-
tiff's title
The declaration added by the
verdict
A declaration Et unde idem quer.
(breviter script.) per Attornat.
suum quod, &c. without dicit
— — Unde idem R. quer. good
— — What plea goes in abatement,
and where there shall be a Re*
•pondeas Ouster
— Points material in the decla-
ration ought to be confessed and
avoided or traversed
— A collateral matter pleaded in
bar confesses the declaration
— — In debt for rent, how he ought
to shew the privitj between him
and the defendant bj attornment 135
— A feoffment may be pleaded
without shewing livery or attorn-
ment
What is confessed hy non est
factum pleaded
— - The pleading in debt against
an executor de son tort
— Where the ill conclusion of a
plea makes a discontinuance
The number of acres omitted in the
bar to an avowry
Where title is made by the bar or
replication, it ought to be certain
to all intents . .' 147, 226
A declaration good to a com-
mon intent . . 148
Why the avowmeut in replevin
ought to make a good title in om*
oibus. In trespass aliter . ib.
65
75
ib.
76
101
103
ib
112
122
127
ib.
136
137
ib.
146
Where an abatement in lands is
pleaded yon shall not confess and
avoid, and also traverse 151, 221
A replication which confesses and
avoids, and traverses, is ill ib.
In trespass for a battery, or taking
away bis servant, where a repli-
cation de injuria sua propria abs-
que tali causa, shall be good 157, 15*
— The replication ought to an-
swer the title in the bar 166, 170
In trespass where the plaintiff and
defendant agree in the name of
the place, bow the plaintiff ought
to answer the title and reply 166, 167
If the replication does not answer
the bar, he shall not have judg-
ment for a defect in the rejoin-
der . . 170, 171
Where in actions wherein the plain-
tiff makes title to the thing de-
manded, &c. the defendant shall
make a better title and traverse,
or confess and avoid, kc. 174
— — Words shall be void rather
than the declaration vitious 182
In replevin, variance between the
replication and rejoinder in the'
name of the place in which &c. 185
A writ of right shall be answered in
chief • . . 191
A trial rejected, and a repleader
awarded for want of a good issue 196
In trespass, the defendant justifies
damage-feasant, the plaintiff re-
plies for defect of inclosure by
the defendant, an insufficient re-
joinder which neither confesses
and avoids, nor answers the re-
plication, but perplexes the mat-
ter by adding a thing on which is-
sue cannot be taken • . 217
Two prescriptions shall not be in
issue . . ib.
Trespass, a plea in bar which does
not destroy the plaintiff's action
but by way of argument is not
good . . 223,224
Case for stopping three lights, the
defendant justifies for two, and
part of the third without cer-
tainty ; adjudged against the de-
fendant, how it ought to be plea-
ded . . .225
In debt on a bond to save harmless
from a. legacy, on non damnifi-
cat. pleaded, she plaintiff replied
a judgment against him in Chan-
cery; he ought to shew where
the Chancery was • . 226
Debt on a lease, the defendant
TABLE.
Page.
pleads Nihil habuit in Tenemen-
ts, &c. the plaintiff ought to
shew what estate he had 227, 228
Pledge. Vide Pawn.
Pane . . . . 2
Poor. Damages on the statute of
43 £1. for relief of the poor, where
trespass is brought against the
overseers . . .176
Possession. The first possession ill-
titles to the profits . . 61
— — executed hinders posses-
sion executory . 123, 124
Postea. - A mistake therein in the
name of the parties
Power reserved to him at any time
to make leases for twenty one
years, this 'does not extend to
leases to commence in ruturo
Praecipe does not lie de rivulo seu
aqua? cursu
■ ■ Otherwise de terra aqua
186
143
ib.
cooperta, Gorse, Pool
Prescription. A prescription in two
things on a prohibition, and a
failure in one, yet good for the
other . . 55,. 128, 129
• Otherwise of a prescription
in defence, and by way of plea
■ Te have estovers, and to
55
188
have omnes Spinas
Presentation by the king where the
patron has not notice of the a-
voidance, is ill . .7
Precedents. Their authority 42, 49* 127
Prisage of goods how taken 199, 200
Procedendo issued the same day
with the Habeas Corpus, but not
delivered till after the return of
the Habeas Corpus,ifthe bail tak-
en discharge the former, &c.
Prohibition. Prescription in an
abbot, the defendant shows the
abbey founded 5 E. 1. and con-
fesses the unity after *
On a suit in the spiritual court for a
legacy, where a bond was given
by the executor for it . ,
Where in a prohibition for a vari-
ance and for what variance be*
tween the libel and the suggestion
to a consultation shall be award-
ed, & where double costs
■ Where a prohibition lies
when the Ecclesiastical Judge
does not allow proof by one wit-
ness . . . 92, 93
— — A suggestion to pay 10s. in
discharge of tithes . . 102
Where two prohibitions shall
not be in .the same suit . ib.
120
31
39
79
Page.
— — Where a consultation shall
be for want of proof within six
months. . . . 102, 119
Where costs on failure . 119
Consultation on a Modus
decimandi, stabit prohibitio pro
residuo . . . 119, 120
A libel against divers sev-
erally, if they may join in a pro-
hibition . . . 128, 129
Such libel for wood, fie. and small
tithes, and a custom of tithing is
suggested for the wood, if there
shall be a consultation . 129
Where a suit is in the court
Christian for a thing spiritual, a
release from it is triable there 173
Promise to pay so much day and
night, many days and nights join-
ed in one action . . 67
Vide Assumpsit.
Property. Of the alteration of the
property by the sheriff in levying
execution, &c. ... 44
The owner of the soil of a
common, if be has property of the
conies there . . • 104
— — — Prescription to have esto-
vers, in whom the property 188
Protection^ quia moratur super
Mare, if allowable . . 143
QUA RE Impedit. Error to re-
move a record of it • . 3
Where it lies at the common law 91
Quo warranto to hold a court baron
andleet . . % 190,191
It is a writ of right and shall be an-
swered in chief . . . ib.
The judgment on this writ . ib.
RECITAL in a lease not true,
quid operatur.
Recognisance. Lands omitted in
an extent on a recognisance
A capias does not lie on a
recognisance
— A condition parcel of a re-
cognisance, how a breach shall
be shewn ....
How to cancel a recognis-
43
12
42
59
88
ance acknowledged by an infant
A recognisance to appear at the as-
sises, how a promise to save
harmless against it shall be shewn 207
Record. Error shall not be assign-
ed contrary to it . . w 33, 34
A respondeas ouster on failure of
the record ... 36
In debt the defendant pleaded out-
lawry, the plaintiff replied nul
TABLE.
36
51
149
35
41
156
Page
tiel Record; and afterwards it
was reverted before the day to
bring it in ; a respondeat ouster
awarded ....
A promise to shew a sufficient re-
cord to charge, &c. how the pro-
mite and breach laid & pleaded 39,40
Recovery. Tenant in tail cove-
nants to ttand seised to the use
of himself in fee, and afterwards
suffers a recovery, if it shall bind
the remainder
— — Where it bars the remain-
der notwithstanding a grant to
the king . •
Relation, where judgment has rela-
tion to the first day of the term
Relation of a promise to the re-
quest . ...
Release:, if a contingent debt can
be released . . 193, 215
Payment awarded at a day to come
may be released by the word de-
mands . . 193,214,215
What release discharges a promise
in futuro .
Remainder. Good although the
particular estate determined
■ ■■ A forfeiture by copyholder
for life doth not forfeit the re-
mainder ....
A term granted in remainder on a
contingency
A lease to three for life, and that it
should remain to the survivor for
ninety- nine years, if a good in-
terest in remainder passes
A lease to A. for life, and after to
the executors and assigns of B.
is but a bare power in 6. and bis
executors, because he was not a
party . . . .
A grant of a reversion to the king
whicb cannot come into posses-
sion, if good ; aliter of a remain-
der . . •
A remainder ill, which cannot take
effect in possession at the time
appointed
Rent granted to A. for the life of
another remainder to B. . 9, 10
How to declare in debt for rent 135
Replevin. The avowment ought to
make a good title in omnibus
Two make cognisance generally,
and not as bailiff's or servants ;
judgment reversed . .
Request* In case on an agreement
to pay a debt where a request
ought to be shewn •
Requests j The court of
85
ib.
149
ib.
148
108
66
111
Pagt*
Reservation. A rent of 10/. reserv-
ed 52. at Michaelmas, and 5/. at
Lady- day, is but one rent • 24
A lease rendering rent quan-
do-cunque it shall be demanded
by the lessor, how it may be de-
manded . . .37
A lease at Michaelmas for five years
yielding rent at Lady-day and
Michaelmas yearly, or within ten
days after, when the rent shall be
due, and how the payment at the
, last Michaelmas . . 167
Reservation taken against the les-
sor . . 167, 189
A lease by the father for years,
rendering during the term, if the
father lived, 30/. at Lady-day &
Michaelmas by equal portions,
and rendering Hatred. 20/. ad
terminos prsed., it shall be 20L
for the whole year ; the law sop-
plies by equal portions . 189
Vide title Lease.
Resceit of goods stolen • 4
Rescous. If the sheriff returns a
rescous, it ought to appear by
his return to be within his county 51
Return of the sheriff . An averment
shall not be against it . 34
Concerning the name of the sheriff
put to returns . . ib.
Reversion granted to the king which
cannot come into possession, if
good ... 149
SCIRE facias by the defendant in
error, how it may become a re-
cord . . . 6
D. extended on a statute, H. ex-
tended the same land on a re-
cognisance, (omitting others) D.
had judgment on an Audita' Que-
rela ; If H. ought to have a scire
facias against D. before he re-
moves his possession . 12
How it makes a man privy to him
who was before party to the re<
cord
— On a recognisance
Two nihils amount to a garnish'
ment
In one county on a judgment
33
42
113
218
in another
Sea* A thing done beyond the sea
how pleaded and tried . 202
Seisure of goods by the sheriff on a
fieri facias does not alter the pro-
perty . . . 44
Sheriff. On a challenge of the sher-
iff before issue, and a ven. fac. to
TABLE.
Page.
the coroners, the sheriff per man-
dat. justic. cannot return the tales 15
The sheriff of another county re-
turns the process . . ib.
If the sheriff after his discharge can
sell goods seised by fieri fac. , 44
He ought to turn them over to the
new sheriff . . ib.
What return he ought to make ib.
Ad arrest by the sheriff within a
liberty is good, and the offence
to the lord . . 51, 52
A capias ad satisfac. to the sheriff,
who makes a precept to the bai-
liff of the dutchy ad capiend. ad
respond, who returns the precept
served ; and the sheriff cepi cor-
pus; the sheriff is thereby charge-
able to the plaintiff . 52
Slander, Actions for words, viz.
knave, for thou hast bought stol-
en cows, knowing, Sec. . 4
Perjured knave, proved by a stake 10,34
Though I cannot prove it .10
And that I will prove by J. S. (who
is not) . . ib,
Thy father said thou murderest thy
husband (innuendo J. S. jam de-
funct.) . . .21
The death of the husband at the
time of the speaking ought to be
be expressed . . ib.
Thou hast poisoned J. S. (then a-
, live) ib.
Words against a justice of peace,
&c. he ought to declare that he
was a justice, Sec. at the time of
speaking • . .21
Hath burnt my barn (innuendo full
of corn) • . . ib.
The nature of an innuendo • ib.
Forsworn will not bear an action, as
equivalent with perjured, with-
out shewing the court and suit in
which, Sec. • . 57
Of an attorney, thou dealest on both
sides, and deceivest, &c. . 32
Thief, and that will be proved by
apples stolen off my trees . 34
A. threw his dagger at me, and
thrust me through, &c. to have
killed me, &c. by instigation of
the plaintiff . . 57
Words not to be construed divided-
ly, but together . 58, 144
An imputation of a trespass no slan-
der ... 58
Matter of intent . 58,90
Of a commissioner, that he is cor-
rupt ... 62
Of an arbitrator that he hath taken
Page.
bribes . . . 62
Touching a thing which is not pun-
ishable . . 62, 90, 146
He keeps thieves and traitors to do
mischief . . 64
Of a sidesman, thou hast perjured-
ly presented me at the visitation 72
Thou hast thievishly taken my mo-
ney out of my purse . ib.
Thou hast suborned J. S. to come
and commit perjury before my
lord "Winchester . . ib.
For slandering his title . 80, 88
Thou art a common barretor . 90
An offence finable is not slander 90,154
The difference between slander &
disgrace, or aspersion 90, 146
He prepared poison, &c. . 90
Actionable by averment . ib.
Thou art no true subject . 104
He hath spoken words that be high
treason . . 107,197
Not safe to shew what words they
were * . 107
Respondendo dixit, no marvel she
comes not to church, for it is
thought she is with child, and I
fear it is too true 1 13, 144, 154
What malice and intent of slander
ought to appear in the declara-
tion ... 113
Bear witness, M., that he hath stol-
en my hair- cloth . . 126
Slander shall be by direct affirma-
tion . 126, 144, 153, 160
D. picked five shillings out of E's
pocket, and her husband was
consenting . . 136
Of a town clerk or steward, jus-
tice of peace, or clerk of assize,
he hath taken 40s. for a bribe 1 42
Tou might have known your own
sheep, and not have stolen mine 144
I met G. &c. (at such a day and
place) and they bid me deliver
my purse, and 1 being afraid did,
&c. . . . 145-
J. W. hath forged the late queen's
writ . . . 146
My father's hand, &c. . ib.
Thou workest by nigromancy (an
improper word) and by the devil 150
Thou hast stolen wood and timber,
&c. 152
Words found by the jury more than
alledged . . . ib.
It would be proved that A. contriv-
ed the death of B. . 153
Healer of felony, fc shewed favour
to a horse-stealer in the time of
his constableship . .ib.
TABLE
Page.
One oat of office shall not bo slan-
dered with a thing doao in his of-
fice .. 153, 158, 159
Discourse touching concealing of
murder . 154
Difference betwe en words spoken
together and at several times, as
to qualify the first words with
the sobseqnent ib.
Where inepta ratio which is im-
pertinent will be slander . ib.
Of a linen-draper, that he it a bank-
rupt .... 158
Declaration that he was a linen-
draper, be. for several /ears
past, without sajing last past;
if good . 158, 159
As to that the difference between
an office sod a trade ib*
Where it oogbt to be laid precise-
ly, that the partj slandered was
an officer, or a tradesman at the
time of the speaking 158
I will prove thee perjured, imports
an affirmation 160
Thou wilt be a bankrupt within a
few dajs ib.
Of a merchant stranger that he is a
bankrupt 198
Of a justice of peace, yon caused
J. S. to swear that which was
notroe against me 220, 221
Standum Juri. What it imports 59, 80
Statutes 28 H. 6. of resumption 13
4 H. 7. of confirmation ib.
31 H. 8. of monasteries 85
13 El. U I Of non-residence
21 H. 8. $ are
■ general laws 108
Where the conclusion of a declara-
tion shall be contra formam sta-
tuti, and not statntonim . 116
Statute-staple . 12, 29, 38
Stranger* A recognisance to paj
money to a stranger is as a pen-
alty . • 38, 39
An act done to him who has inter-
est and a stranger 61
Summons and severance 4
— — -Appearance on the first sum-
mons in debt, the judgment 108
Supersede** delivered to the sheriff
prevents his distraining the jury,
or returning the habeas corpora 57
To proceed after is error • ib.
Surplusage in a declaration . 5
TAIL. Tenant in tail bargains to
B. who re-bargains to him, be is
tenant in tail as before • 5 1
Tenant in tail covenants to stand
Page.
| seised, fcc. quid operator 51
I What words will make an estate-
tail to husband or wife, or both 131
In the descent and continuance of
an estate-tai1,it ought to be whol-
ly by heirs male 149, 150
Talcs. The sheriff challenged, and
yet returned the tales 15
■ Returned on a panel with-
out adding oomina jur. de novo
apposit. .... 213
Tenants in common. A bill to A.
to pay 10/. to C. to be divided
between A. and B. and to their
use, they are several debts, and
they are not teoants in common 23,24
In cases of interest, as a lease to
two to be equally divided, they
are tenants in common . 24
■— Ought to join in personal
actions ... 24, 161
Tenant at will. Determination of
the will .... 73
Term, Where taken as one day,
having relation to the first day 35
Testatum. An Elegit grounded on
a testatum which is not filed, if
the execution fails • . 179
Time. Tempos occurrit Regi 7
The account of a month id a statute 1 00
Toll. Case for taking toll of him 13
Tort. A man shall not take advan-
tage of his own tort . .201
Traverse. In avowry for rent grant-
ed by the reversioner, if the tra-
verse shall be on the seisin of the
ancestor .... 54
Where in ejectment the day and
place shall be traversed, and
where non concessit modo et for-
ma ... • 122, 123
An ill traverse is not aided by the
statute of jeofails • 123
Where in waste seisin alledged by
the plaintiff shall be traversed 140
Where a traverse shall be taken 151,195
In trespass, where a traverse of the
title shall be express and not by
circumstance . 170
Matter in law shall not be tra-
versed ... 199, 200
Treason in words . 107,197
Trespass for several things 5
— For taking equam without
saying suam ... 36
Excused for want pf inclo-
sure by the plaintiff * . 75
■ For spoiliug his grass, &c.
the defendant may plead general-
ly that be was possessed, with-
out shewing his lease, or for what
TABLE.
Page.
time, &c. because collateral to
the thing in question . . 75
Possession in the defendant is suffi-
cient to justify his putting in his
cattle . . . ib.
Trespasser ab initio . 96, 97
. Id one acre abutted, the ju-
ry find him guilty in dimid.
dictae acne ; if good . 114
What shall be the judgment in tres-
pass after a pardon . 126
The first entry in trespass being
pardoned, all that depends on it
shall be pardoned • ib.
Of the continuance of a trespass 126,143
Where the defendant in trespass
shall excuse a tort in himself by a
tort done by the plaintiff 141, 142
In trespass, if the verdict finds the
tenure in substance it is sufficient,
aliter in replevin . 14 B
It does not lie against the lord who
distrains for rent not due . ib.
— — Where the plaintiff's title
ought to be answered expresly 170,174
1 Why colour shall be given
in trespass . . • 174
— — An actual possession ought
to be expresly alledged in trespass 224
Trover for a distress unlawfully ta-
ken 9
For tithes ... 42
■ Against baron and feme,
how to declare • . . 165
The point of the action is the con-
version . . • 165, 166
The plaintiff?* title ought to
be answered expressly . 174
On a seisure by the king's
officer . . . 198, 199
Tylhts. A prescription in non de-
cimando for a spiritual person, &
for his copyholders . . 2
Discharge by unity . 31
> Perpetual unity shewn in
discharge of tithes, and prescrib-
ed in the abbot ; the defendant
shewed the abbey founded 5 E.l.
within time, &c. a good bar
— A suggestion de modo deci-
raandi for wool and lambs, & on
proof for the wool ; if good for
the lambs ....
__» Demanded on several titles
31
in one action ... 63
— — — Action on the statute 2E.6.
the nature of it . . 63,127
— Trespass for tithes served 77
Prescription in. non deciman?
do 79
——i- The spiritual Court hath no
Page.
jurisdiction on a prescription in
non decimando, otherwise de mo-
do decimandi ... 79
■ Payment of tithes to the
parson is a discharge against the
vicar .... 86
A custom to set forth cocks,
Sec. in satisfaction of all other
tithes arising on the same land&c. ib.
Of common right all tithes belong to
the parson ... ib.
Tithe of hay is a discharge
for agistment in the same land ;
So tithe of corn for halm . ib.
• One tithe for one land in one
year
ib.
A grant of his own tithes 94, 95
The assignee shall not have a prohi-
bition ....
A conveyance of tithes shall
follow the nature of the land
If an estate in them may
commence in futuro
Tithes are always in esse
If a lease of them shall en-
ure by way of interest or dis-
charge ....
VEMDITOm exponas. The sher-
iff cannot sell goods seised with-
out such writ ,
Venire facias. Where it shall be
from the manor, and where from
the place, and where from both
Words in one county, mat-
95
132
ib.
132
ib.
'44
26
ter of justification in another ;
from whence the venue
The like, if in a different
place in the same county
■ Where it does not answer
49
ib
the award on the roll • . 60
Amended in the teste . 64
In the name of the sheriff 64, 69
Award thereof general and
special .... 64
de novo .... 77
• Misawarded between a vill
and a hamlet, and a parish 77,104,127
Two defendants, judgment
by nihil dicit against one, the
other pleads to issue, how the
ven. fac. and writ of inquiry
shall be .... 109
A venue from a ward in a
city 159
— — Where issue is taken, on a
common the venue shall be from
the land to which it is appurte-
nant .... 177
> Ejectment for lands in three
vills, the defendant pleads that
the plaintiff after the last contin-
TABLE.
Page.
ance entered into eight acres par-
cel promisor, without saying in
which will ; where the venue
■hall be . 181
— —Trespass laid in G. & W.
the defendant pleads they are par-
cel of the manor ; whence the ve-
nue
Replevin for taking in B. conusance
for a leet fine of a leet in B. for
the resiants within the precinct of
the manor of B. venue from the
▼ill and manor
A way from one Till to another
shall be tried from both
So land in D. held of the manor of S.
Verdict, Agreement implied in a
verdict ....
The court regards onlj the doubt of
the jury
A verdict incertain aided by intend-
ment .... 61, 228
In Assumpsit, a verdict that the
plaintiff has sustained damages
by non-performance, is not good
A verdict which finds the wife gujj-
ty, and nothing as to the husband
is ill
• Two matters in issue, and
182
186
187
ib.
61
ib.
77
106
109
nothing found as to one
Declaration in trespass in
one acre, found in half the acre,
good ; aliter in ejectment
In trespass, a verdict which finds
the tenure in substance, is good ;
aliter in replevin
Vicar. Payment of tithes to the
parson is a discharge against the
vicar
The vicarage derived from the par-
sonage ....
All £ithes, of common right, belong
to the parson ; ergo the vicar
ought to shew a title to tithes
Villtin. Proceedings in a nativo
habendo to iofranchise a villein
Unity to discharge tithes
Volenti nonJU injuria .
Usurpation against the king 90, 91
The king releases to an usurper. 91
Usury. 1001. lent for a year, if he
may take 51. for interest at the
end of six months . . 30,31
114
148
Page.
Corruption between the debtor Ac
surety, to which the debtee is not
privy, will not hurt him - 47
WARRANT of the sheriff to four
Sc cuilibet, shall not be taken as
another authority . . 26, 27
Warrantia Chartaz depending is no
bar in covenant . 139
It is a real action and binds the land ib.
Warranty in exchange . . 8
— That a thing is of such value 2 1
What words in a lease make
139
ib.
ib.
a warranty
What warrants the freehold, and
what does not -
Covenant brought on a warranty
Watte. If it lies against the assig-
nee of the lessee of part of the
term . - .
— ■■■ Where the defendant ought
to traverse the seisin
Way. The antient way is stopped,
to go in the new one is not a tres-
pass ....
Case for a disturbance of a way
If a way shall be claimed as appur-'
tenant or appendant to a house
It is an ease and not an interest
A prescription in a way how laid
Wear. Indictment for erecting it
Will The probate thereof belong-
ed originally to the common law
Wood. It is not timber dam creacit,
but wood
Writ. If breve domini Regis cur-
rit in the Cinque Ports.
Parson and vicar make several
leases of tithes to B. if he hav-
ing two titles may have one ac-
tion for them? And if against
several tenants . .
— If one may comprehend two
actions in one writ
— — — — Album breve, where it shall
be amended
Writ of right. Of what possession
the demandant shall count in this
writ
How a Petit Capias to issue on a
default on an imparlance to a
day certain
The judgment on a default on an
imparlance general and special
37
149
41
159
ib.
ib.
163
66
92
152
13
63
ib.
110
811
ib.
ib.
FINIS.
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