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[128 b]

Lowson, habend. from the feast of the Annunciation next after, for twentyone years, rendering ten pounds per annum at the feast of St Michael, and our Lady-day; and that Philip Fairfax, 8 of September 8 Jac., by his deed reciting the lease ut supra, did bargain and sell the said reversion and rent unto his wife and Eliz. Casson, habend. for their lives, if the said term of twentyone years should so long endure; and for twentyfive pounds rent behind at St. Mich. in the tenth year of the king, he did avow and make cognizance as before. The plaintiff pleaded in bar, A grant of a that Philip Fairfax did not grant the said reversion modo reversion on et forma; the jury found all the matter just as it was laid ed. 6 Co. 36 a. by the defendant, saving that they found that the lease unto Lawson was made habend. a Festo Purific. and not a Festo Annunciationis; and that Fairfax in his bargain and sale of the reversion did recite that lease made unto Lawson, habendum a Festo Annunciationis, which was not so, and then granted the said reversion and rent, 1 Cro. 399prout. And yet the court, una voce, gave judgment for the avowant, and held it to be a good grant of the reversion and rent, which was the point in issue.

lease misrecit

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MARSHALL vs. STEWARD.

An action may be maintained for words imputing to the plaintiff intercourse with the devil.

1 Roll. 46, 49.. 2 Cro. 399.

MARSHALL brought an action of the case against Stew- Brownl. 1 R. 8. ard, reciting the stat. of 1 Jac. of invocation of foul Mo. 868. spirits, (which was needless,) for speaking these words Yel. 150. unto him, 'the devil appears unto thee every night in the utra likeness of a black man, riding upon a black horse, and Conferrest thou conferrest with him, and whatsoever thou dost ask devil. him he doth give it thee, and that is the reason thou hast so much money.' And after a verdict finding the words, the court gave judgment for the plaintiff.

with the

[129 a]

2 Cr. 592. 3 Cr. 886.

1 Le. 242.

Amercement

in leet. Salk 56.

1 Wils. 251. Contra.

2 Cro. 492.

142. Ben. 91.

2 Cr. 96.

WILTON US. HARDINGHAM.

If a defendant, in trespass, justifies a distress for an amerciament in a Leet, he must, in pleading, aver that the offence was committed within the jurisdiction. The plea ought also to set forth that the amerciament was to a certain sum, and that it was affered by afferors to such a sum certain.

WILTON brought an action of trespass against Hardingham; the defendant justified, that the plaintiff was a common baker, dwelling in Timsteed in the county of Norfolk, and that it was presented in a leet in Timsteed, that he had sold bread against the assize in locis vicinis, whereupon he was amerced, and by amerciament affered to 10s. and that by a precept out of the court he did distrain the plaintiff. And the court gave judgment for the plainNoy. 34. Post. tiff, because it doth not appear that the offence was committed within the jurisdiction of the leet, which shall not be presumed with us except it be specially pleaded. But perhaps the presentment in the leet is good enough without special mention in the presentment that it was done in the jurisdiction, if the truth were so. And yet note, that the presentment is not so full and perfect, therefore let them beware. And I noted that the plea was absurd; for it was said, that he was amerced, without saying what, 55. 8 Co. 40. b. and that the amerciament was affered to 10s. for which he distrained. (1) Now the jury must amerce to a certain sum, which may be mitigated and affered by others, and therefore these offices cannot be confounded.

1 Inst. 126. b. 2 Keb. 613. P.

Jones 301.

1 Cr. 275.

(1) This doctrine is overruled in Brook v. Hustler, 1. Salk. 56, and The Duke of Bedford v. Alcock, 1 Wils. 249.

1 Ro. R. 51.

COWLEY & WIFE vs. POULTON & WIFE.

In an action by husband and wife against husband and wife for scandalous words spoken by one of the women against the other, if one of the women die after verdict, judgment will be stayed.

COWLEY and his wife brought an action upon the case Hard. 152. Br. against Poulton and his wife, for scandalous words spoken by one of the women of the other woman. And after a

Error 117.

Syd. 93, 131, 143, 238.

SIR GEORGE GRISLEY'S CASE. WILSON'S CASE.

verdict the court was informed that one of the women was dead; whereupon judgment was stayed. Yel. 113, 209. 1 Cr. 574. 1 Cr. Car. 208. Cr. Jac. 19, 356. Cr. Car. 250. Styles 299. (1)

(1) The law, in this respect, is since altered by stat. 17. Car. 2d. c. 8. s. 1. by which it is enacted that 'in all actions personal, real or mixed, the death of either party, between the verdict and judgment, shall not be alleged for error, so as such judgment be entered within two terms after such verdict.' If the party die after the assizes begin, though before the trial, it is within the remedy of the statute. 7 T. R. 31, Jacobs v. Misciconic. The judgment is to be entered by or against the party as if he were living. 1 Salk. 42. 2 Saund. 72, m. in notes.

281

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2 Cro. 63. utra

Death after verdict, and before judg

ment.

SIR GEORGE GRISLEY'S CASE.

A Baronet must be sued by his title, and a defect in this respect is not amendable. [Case omitted as of no authority in this country.]

WILSON'S CASE.

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The want of an original bill is cured by verdict, where the tenor of the bill is entered of record.

1 Cr. 282.

2 Cr. 108, 109. Jones,

354. Bill not

ONE exhibited a bill de placito debiti versus Wilson, an attorney of this court. And after a verdict it was moved in arrest of judgment, that the original bill was not filed filed, helped with the custos brevium, as it ought to be. But it ap- Post. 134. by verdict. peared to the court, that the tenor of the bill was entered of record in hæc verba; and it seemed to the court, that this was remedied by the statute of jeofailes, as being in the nature of a want of an original after verdict. But yet, because it was said it had been otherwise ruled in the case of one Matthew Rood, an attorney, the court would advise.

1 Saund. 318.

38. 2 Cr. 186,

Note, that it hath been since judged, in the common 1 Cr. 282. Plo. pleas, cured by verdict; and so also in the exchequer 580. 2 Cro. chamber, upon error out of the king's bench upon want of

109. utra.
Post. 264, 281.

a bill there; yet the words of the statute are want of Jones, 304.

original writ.' (1)

(1) The statute 18 Eliz. helps the want of an original to all intents as if there had been a good one on file.

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Recital bindeth not. Post. 284. 1 Cr. 77.

ST JOHN vs. Diggs.

A recital in the condition of an obligation, that the sum to be paid is for the rent of certain land, is not material, and no advantage can be taken of it in pleading.

SAINT JOHN brought an action of debt against Diggs upon an obligation, and the conditon was, that the defendant should pay to the plaintiff ten pounds, which is for a rent of certain lands; the defendant alleged, that the plaintiff had entered upon the land, and so suspended the rent whereupon the plaintiff demurred in law, and it was adjudged for him; for this being but a recital that it was for rent, it is not material. It seems the same, though he had applied it by pleading to the lease, &c. (1)

(1) Vide post. 190, Dorrel v. Andrews, and note the distinction between this action and an action of covenant or debt &c. for rent, eo nomine.

Ant. 113. Mo. 868. 1 Roll.

204, 295.

Album breve.

WILBY US. Quinsey.

BETWEEN Wilby and Quinsey, the habeas corpus was returned album breve, and thereupon a new ven. fac. awarded.

Rent reserved to a son and

heir apparent,

but not by name of heir, upon a lease made by the father. Ro. 2. Ab. 447. Lit. Sect. 346.

OATES US. FRITH.

If father and son, who is heir apparent, join in a lease of the father's land, rendering rent to the son, the reservation of the rent is void, though the son prove to be heir.

Rent must be reserved to the heirs of the lessor by that name, for that is the only word of privity in law requisite in reserving rents, &c.

Rent may be reserved to the heirs, omitting the ancestor; and in such case the ancestor may release, though he cannot demand it. But a grant of an annuity by the ancestor against the heir, omitting the ancestor, is void.

BETWEEN Oates and Frith the case was, that the father, being seised in fee, he and his son and heir apparent, by indenture, leased land unto the defendant for years, to begin after the death of the father, rendering rent unto the son; the father died, the lessee entered, and the rent was behind, and the son destrained, and the lessee

Co. Lit. 6, 99.

151. Co. L.

2 Saund. 370.

brought an action of trespass and had judgment; for the [130 b] reservation of the rent was held utterly void: for though the son did prove heir, it bettered not the case by event, Cont. Post. but the reservation must have been to the heir or heirs of 143. b. 214. b the lessor, by that name; for that is the only word of 5 Co. 112. a. privity in law requisite in reservation of rents and conditions; for the heir is in representation, in point of taking by inheritance, eadem persona cum antecessore. (1) And though in such a case the rent could never be demanded by the father, yet the heir shall take it from the father as inherent, and rising from the root of the reversion, which was his father's, and which he takes by descent from his father; and so the rent itself, which was in the father, though not to demand, because it was not yet due; but yet it was so his, that he might release and discharge it by the word rent, though not by the word action. And so note a difference between this case, where rent is reserved upon a lease of the ancestors to the heir first, and Co. L. 386. a. where the ancestor grants an annuity, or makes a war- Cr. Jac. 570. ranty for a like charge against his heirs first, omitting himself; all such grants are utterly void; for no man can charge his heir but as a part of himself, and therefore beginning with himself. And such charges stand naked and have nothing, that was first in the father, and comes from him to them, whereunto they may cleave, as a rent to a reversion in the former cases. 1 Inst. vide 378. a. Where a warranty shall bind the heir, though the ancestor was never bound to the same. Nota l'diversity la. (2)

(1) It is a maxim in law that rent must be reserved to him from whom the estate passes, and not to a stranger. Co. Lit. 143. b. 213. a. b. But if A. and B. join in a lease of land wherein A. has nothing, reserving the rent to both, or to A. alone, by indenture, it is good by way of estoppel; though if A. had been a stranger to the deed he would have taken nothing. Co. Lit. 213. 2 Saund. 370. n. (5).

(2) The heir shall never be bound by any express warranty but where the ancestor was bound by it; for if the ancestor was not bound, it cannot descend upon the heir. So if a man bind his heirs to pay a sum of money, it is void. Co. Lit. 385. a.

Yelv. 189.

2 Ro. 70.

i Inst. 378. a.

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