[175 a]_bus aliis boscis, &c. which though it be frustrate, yet the first clause stands perfect of itself; for it is true, that if a grant be carried in generals, which of itself is not certain, if that by the other parts of the same entire sentence in point of description, or other declaration cannot be true, as in Doughtey's and Darrington's cases before, or cannot be effectual, as in this conclusion of uncertainty, or be restrained by a conclusion, as in Finch's case, Coke lib. 6. 39. mark the sentence. Dy. 207. p. 14. Yelv. 82. 1 Cr. 47. 6 Co. 39. b. The rent of twenty pounds a year was granted by the lady Finch to her son, in these words, 'Out of the manor of Eastwell, Otterplea, Potbury, and Seaton, and her lands lying in the parishes of Eastwell, Westwell, and Challock, or elsewhere in the county of Kent, to the said manor, or any of them belonging;' clearly this charged no other lands in those towns, but such as belong to the manors; for it is plainly one only entire compacted sentence, so woven and interlaced together, as there is neither division in words nor sense, and that is a joining of the sentence to good use, and not to avoid all. Note, these cases are of one entire and compacted sentence, and therefore one part may overthrow or restrain another. But our case hath two clauses that are clearly distinct. First, a grant of all those his woods standing upon his whole manor, which answers the pronoun illa, being resolved thus; all those woods which stand,—to that clause, I join the viz. as a hand maid, as I said, though it be void. Then comes the second clause, una cum omnibus aliis boscis, &c. which in law, though it be governed by the first words of grant, yet that word of grant is respectively as several grants of several things. And it is all one as if he had said, he granted all the woods growing upon his whole manor, and he also granted all other his woods that might be conveniently spared, &c. And in that case of Finch it is granted, that if I grant a rent in this form, issuing out of my manor of D. and out of my lands and tenements in D. and S. and out of my lands elsewhere to the said manor belonging; that this middle clause stands so in frame divided, that it shall charge my [175b] lands in those towns, though they be no part of the manor; and yet that clause is enclosed with the manor, both before and after; much more here, where the first general clause stands clear by itself, and the second clause, under the una cum omnibus aliis, is a new addition, and of other things than were before granted, and hath his conclusion, with convenienter, &c. attending. upon it. TOPSALL vs. FERRERS. A custom of a parish that if a passenger die there, the fees of his burial shall be paid there, though he should be buried elsewhere, is unreasonable and void. parish, that a dying there, where. Mod, EDWARD TOPSALL, clerk, parson of Saint Botolphs with- Libell. Ecc. out Aldersgate, and the churchwardens of the same, libel-589. 1 Ro. 559 led in the court christian against Sir John Ferrers, knight; Custom of the and alleged, that there was a custom within the city of passenger London, and especially within that parish, that if any should pay fees there, though person die within that parish, being man or woman, and buried else be carried out of the same parish, and buried elsewhere, R. 43. that there ought to be paid to the parson of this parish, if he be buried elsewhere, in the chancel so much, and to the churchwardens so much, being the sums that they alleged were by custom payable unto them, for such as were buried in their own chancel; and then alleging, that the wife of Sir John Ferrers died within the parish, and was carried away and buried in the chancel of another church, and so demand of him the said sum. Whereupon for Sir John Ferrers a prohibition was prayed by serjeant Harris, and upon debate it was granted; for this custom is against reason, that he that is no parishioner, but may pass through the parish, or lie in an inn for a night, should be forced to be buried there, or to pay as if he were; and so upon the matter to pay twice for his burial. [176] [176 a] Trespass. Staff. 1 Brnl. 200. 3 Cr. 371. Trespas, Br. 366. 2 Cr. 141. Stat. of jeofails, verdict helped thereby. PLANT US. THORLEY. In trespass de bonis asportatis, if the defendant pleads that the locus in quo (there being no close laid in the declaration) is his soil and freehold, and so justifies the taking, and the plaintiff in his replication new assigns the trespass in another close, to which new assignment the defendant pleads not guilty, and a verdict is found for the plaintiff; this irregularity of the issue is cured, after the verdict, by the statute of jeofails. 'PLANT brought a trespass against Thorley, for taking and carrying away an hundred loads of turf at Leake; the defendant pleads, quod locus in quo (whereas there was no place assigned) was two acres, called black acre, in Leake, which was his freehold, and that he digged the turf there, and took them away, prout, &c. The plaintiff says, that locus in quo was a piece which contained twenty acres, in Leake, alia quam, &c.; and the defendant, quoad aliquam transgress. in præd. 20 acris, not guilty. Whereupon issue was taken and found for the plaintiff.' And it was moved in arrest of judgment, that this was no issue; for there was no twenty acres, nor place certain in the declaration; yet the court gave judgment for the plaintiff. For though it were not in the declaration, yet it was no plain departure from the declaration; for both parties were agreed, that the trespass was done at Leake; so that the assigning of a more particular place in Leake stands well with the declaration, and doth but reduce it to more certainty, and is a supply of that, that might have. been well laid in the declaration. And so it is not a verdict out of the matter, and so no issue, but it is a verdict holpen by the statute of jeofails. (1) (1) In a case like the above, the plaintiff may new assign the trespass, after a local justification pleaded, as well as in trespass quar. claus. though it seems to have been formerly doubted. Cro. Jac. 141, Batt v. Bradley. Salk. 453, Coke v. Evans. In Helvis v. Lamb, Salk. 453, which was trespass de bonis asportatis, the defendant pleaded the same justification which is pleaded in the case in the text, and the plaintiff demurred generally and had judgment, because the action being transitory, there is no locus in quo supposed, and if the defendant will make the place material he must show it with certainty. See also 1 Saund. 22. n. (1) There can be no new assignment but where there is a special plea. 1 T. R. 479, Smith v. Mills. words, he is 64. Brownl. R. motions 16. Noy. 24. opinion, stealing.' 1 Ro. for they Hutt. 2. mesme case. Roll. 49. Mo. 866. Mo. 401. Goldb. The words 'J. S. is in gaol for stealing a mare,' are not actionable. JAMES STEWARD brought an action of the case against Action for Bishop, for saying of him 'James Steward, innuendo, &c. is in gaol for in Warwick gaol, for stealing of a mare, and other beasts;' and after a verdict for the plaintiff, upon divers in arrest of judgment, the whole court gave seriatim, that the words would not bear action; do not affirm, directly, that he did steal the beasts, as if he 3 Cr.234. 2 Cro. had said, that he stole them, and was in gaol for it; but 154. semble they do only make report of his imprisonment, and the supposed reason of it; and it may very well be that the warrant or mittimus was for stealing expressly, and it is the common form of making of the calendars of the prisoners for the justices of assise, or the like. (1) (1) According to modern decisions it is believed that these words may or may not, be actionable, according as the attending circumstances may or may not show that it was the intention of the defendant to impute to the plaintiff the crime of stealing. In 9 East 93, Roberts v. Camden, the words spoken of the plaintiff were, he is under a charge of a prosecution for perjury, and G. W. has the attorney general's directions to prosecute for perjury.' These words were held to be actionable, because the words fairly and naturally construed appeared to have been meant to convey the imputation of perjury actually committed. 130. 1 Cr. 268. utra. 3 Cro. 238, 279. 1 Cro, 263, 268, 269. Post, 219. GAGE'S CASE. An attorney must sue, as administrator, by original, and not by writ of privilege. ANDREWS VS. DELAHAY. In a bill of debt, if the plaintiff declare on three several bonds, one of which, on oyer, appears not to be payable, and the jury assess entire damages, the plaintiff may release the damages and costs on the bond not payable, and recover judgment on the other. : SIR WILLIAM ANDREWS brought a bill of debt, of ten pounds, against Delahay, an attorney, and counted upon three several bonds of five marks apiece; and upon the oyer of the several conditions, it appeared, that one of the sums in the condition was payable after the bill exhibited and issue was joined upon conditions performed, and verdict given for the plaintiff, and entire damage and costs assessed. And per cur., he cannot have judgment in form as it is found. Nevertheless upon release of damages and costs, judgment was given for the two first bonds only; for though the bill were an entire sum, yet by the count it appeareth that they were as several demands. So the whole suit is not falsified by the plaintiff himself, for it is as several demands and suits. Tamen quære, if it had been so by original. (1) (1) See 1 Saund. 285. and notes (6.) '7.) acc. But where one entire and indivisible sum is demanded there can be no remittitur. 2 Salk. 658, Incledon v. Crips. |