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HARBIN & ux. vs. GREEN.

A custom to have suit to a mill for all grain spent and sold is unreasonable and void.

An entire custom bad in part is totally void.

A plaintiff cannot have judgment upon a general verdict and entire damages, if in his declaration, he assigns the breach as well before as after his title commenced.

[189]

Custom of suit

sonable.

Brownl. 1 R.

18. Moor, f.

887. Ro. 2d.

Ab. 100.

HARBIN and his wife brought an action upon the case against Maurice Green, reciting, that the bishop of Sarum to a mill unreawas seised in fee, in right of his bishopric of Sarum, of and in four mills in the city; and there is a custom there, that all the inhabitants resident within the city, in an ancient house holden of the bishop, &c. à tempore, &c. all their grain whatsoever by such inhabitants in their said messuages spent or sold at the said mills, and not elsewhere, without license, &c. have used to grind and pay for the grinding, and in consideration thereof the said bishops, &c. à tempore, &c. have used to keep servants, &c. to grind, and loaders to carry, &c. and so conveys the mills to them by demise, made anno 11 Jac. And that the defendant dwelling in an ancient house, &c. Dec. 12 Jac. et diversis diebus et vicibus inter eundem diem et quartum diem Aprilis, anno 12 Jac. diversa grana tam sua grana in mesuagio præd. expensa quam venditioni exposita ad alia molend. et non ad præd. molendinum, &c. molavit, ad dampnum, &c. And upon issue not guilty, &c. it was found for the plaintiff, and judgment was notwithstanding given against the plaintiff, quod nihil capiat, for two causes. First, that the custom itself was unreasonable; (1) for the reason and use of such a custom is, that the corn that a man doth grind, he should grind there, and not elsewhere; and therefore both sides are bound by the custom, the one to bring his corn to grind there, and not elsewhere; the other, to maintain his mills and all provisions for grinding and mutual actions will lie on both sides, if there be a default. And it was holden, that this custom would as well hold

(1) See 2 Saund. 117 b. Coryton v. Lythebye and 117 e. n. (3.) S. P. This doctrine is also recognized by Willes C. J. in Drake v. Wiglesworth Willes R. 657.

[189 a] for corn brought, as for corn growing within the town, so it were spent within their houses, being ground both for the consideration aforesaid. And the rather, because the houses are holden of the bishop; though in a secta molendini, by the tenure, it would not be so. But the fault here is, that by this custom, if a man buy corn, he cannot sell it again in corn in his house, for he must first grind it at these mills. And he hath asigned the breach as well in corn sold as spent. And I am of opinion, that if he had assigned it only in corn spent, yet it would not have served, because the custom itself, being entire, is totally void, though some part of it alone might be good in law.

2 Cro. 207. Yelv. 226.

Another fault was, that he assigned the breach anno. 12, et diversis vicibus between that anno 2. which was long before the plaintiffs had interest; and the damages was given entire, upon not guilty to the whole, which damages shall be understood to be given, not according to the law, but according to the allegation of the plaintiff, who layeth his damage for all; and the verdict of laymen, who find him guilty de præmissis to the damage of, &c. and makes no difference that the special breach is right, anno 12. and the rest cometh by diversus diebus, like a trespass with a continuando, for which damage is also given. (2)

Note, there was no mention that the action was brought by the huband and wife both; being only to recover damage, and not for the term.

(2) Vide post 245, Bickford v. Bickford. As to the manner of declaring in cases of the above description, in modern times, see 1 Saund. 113. a. n. (1.)

Norff.

GOGLE'S CASE.

Where the visne does no appear, upon the record, to be wrong, judgment will not be arrested.

A private way must be pleaded a quo termino ad quem.

GOGLE brought an action of trespass, quare clausum fregit, &c. at Barningham. The defendant pleaded, that

[189 b]

Hutt. 10.

Ant. 187.

3 Cr. 426.

for a way.

he was seised of a house, &c. in Coleby in the same county, and prescribeth to have a way from the said messuage, over the ground in question, to the common way Mesme case. leading to the city of Norwich: and issue taken upon the 2 Cr. 599. prescription, and the venue was taken from Barningham Prescription and Coleby, and found for the plaintiff; and judgment was moved to be stayed upon the motion of Richardson, because there was no place assigned where that way (leading to Norwich) lay, which is now made part of the prescription and issue, and therefore must have his venue (1) and trial, though the material part of the way was only whether it lead over this ground or no, where he might have left, and then the trial, if it had been But in Hill. Judgment. against that prescription, had been well. term the plaintiff had judgment; for though a way must Accord. be pleaded à quo termino ad quem, (2) because you must not go over my grounds but to the right place, yet because here the visne is from all the places named in the record, the trial shall not be avoided by a mere imagination that the highway lay in another town; for it may lie in the same, and no trial hath been voided, but where the other visne hath appeared in the record.

(1) See ante p. 5. Crow v. Edwards and note (1.)

(2) But in an indictment for erecting a nusance in a highway it is not necessary to state the termini of the road. 15 Mass. 240, Commonwealth v. Hall. See also 1 H. Bla. 353, Rouse v. Bardin. 1 T. R. 570, Senhouse v. Christian.

[190]

Yelv. 164.

LEETS vs. EDWARDS.

Of copyholds.

DORREL VS. ANDREWS.

Debt.

Rent is suspended by the entry of the lessor and expulsion of the tenant from parcel of the demised premises.

ACTION of debt was brought by Mrs Dorrel against Entry and expulsion, &c. Andrews, a knight, upon a lease made by her to him in Mesme. Hutt. 6.

[190 a] trust for Trussel, for seventyfive pounds, a quarter's rent, and declared of a demise de toto illo messuagio capitali maner. et domo mansionali, cognit. per nomen de Causton infra parochiam de Dunchurch, ac omnia horrea ter. tenementa, &c. scituat. in Causton. The defendant pleads an entry and expulsion out of the garden house, and well, though parcel of the tenements, &c.: whereupon issue; and the venue was de Causton. infra parochiam de Dunchurch, and the plaintiff had judgment, notwithstanding exception taken to the venue. (1)

Judgment.

.

(1) Where the lessor enters wrongfully into part or the whole of the land, and expels the tenant, the whole rent is suspended till the tenant is restored to the whole possession. There must, however, be an actual expulsion or eviction of the tenant by the lessor, and not merely an entry or trespass; and, in pleading, such eviction or expulsion must be stated. Thus where, to an avowry for rent, the plaintiff pleaded that the defendant, the lessor, unlawfully and with force and arms, entered upon the garden and pulled down a summer house, part of the demised premises, whereby he was wholly deprived of the use thereof, &c. without saying that he was expelled or put out of the same; the plea was held bad on demurrer, because it stated a mere trespass. But it is there said by Lord Mansfield that if the plaintiff had pleaded an eviction, the facts stated might have been sufficient for the jury to have found a verdict in his favor. Cowp. 242, Hunt v. Cope. See also post 326, Reynolds v. Buckle. If the lessor takes back a lease of part of the land, the whole rent shall not be suspended; but it shall be apportioned, unless the tenant, on such demise, reserve rent, in which case no part of the rent reserved on the first contract shall be suspended. Bac. Abr. tit. Rent. M. 1.

If the tenant is evicted by a third person, by a title paramount, from the whole premises, before the day appointed for payment of the rent, the lessee is discharged from the payment of any part of the rent. But if he is evicted from part only, or after rent is payable, such eviction is a discharge of the rent, only in proportion to the value of the land evicted, in the former case, and after the ouster, in the latter. 15 Mass. 268, The Fitzburg C. M. Co. v. Melven. Bac. Abr. tit.Rent. L.

A breach of covenant on the part of the lessor does not discharge or suspend the rent. Therefore where land was leased in fee, and the grantee covenanted to pay rent, and the grantor covenanted that the grantee should have common of estovers, &c. out of other lands of the grantor; and the grantor approved the other lands, whereby the grantee was prevented from enjoying the common, &c. it was held that the rent was not thereby discharged or suspended. 11 Johns. 495, Watts v. Coffin.

In debt for rent, the defendant may either plead the entry and expulsion by the plaintiff, or give it in evidence on the general plea of nil debet; but in covenant for nonpayment of rent, he must plead it specially. 1 Saund. 205. n. (2.) In an action of debt upon an obligation conditioned for the payment of a sum certain, and containing, by way of recital, that this sum is for the rent of certain land, it is no good plea that the plaintiff entered on the land and evicted the defendant. Ante p. 130, St. John v. Diggs.

GOFFE vs. BROWNE.

If two submit to an award of all causes, and the arbitrators, on a subsequent day, award a release of all actions till the time of the award, such award is good, unless there are shown, on the other side, causes of action arising between the time of reference and of making the award.

[190 b]

Winch. Ent. 256. Mo. 885.

309. 1 Roll.

Cr. Jac. 352,

1 Cr. 216, 217.

18. Cr. Jac.

Arbitrament

than the sub

GOFFE versus Browne, upon an obligation dated 23 Feb. anno primo, to perform an award of all causes until the day of the date of the bond. The defendant pleaded nul- 577. Hutt. 9. lum arbitrium. The plaintiff replieth, that 28 Mar. anno Hutt. 29. Br. 2, they made an award, et super præmissis, that Browne Arbitrament. should pay the plaintiff twenty pounds at Mid. following, 664. Allen, 26. in full satisfaction of all matters between them, and that seeming larger they then should make, the one to the other, general mission. releases of all matters between them; and assigned the breach for nonpayment of the twenty pounds. The defendant demurred in law, because the award did seem to exceed the submission, being for discharge and satisfaction of all matters to the day of the award, which was more than was submitted; for it may be that the arbitrators might mean some part of the twenty pounds, in discharge of those causes that might arise between the twentythird of February and the twentyeighth day of March, which were not within their power, and so for the release. Yet judgment was given for the plaintiff, Judgment. which must be either because de et super præmissis may 8 Co. 98. a. 2 Cr. 578, 664. report a restraint to the things submitted, or else, that 1 Cro. 217, no new causes shall be supposed, except they were alleged, (as in pleading of awards of causes they do not aver that these were all,) or else, that the award of all causes may be reasonably understood all causes submitted, being joined to de præmissis, and that therefore a release so made, should have been a good performance of the award, See Tr. 43 Eliz. Rot. 946, a case much Award. alike; debt by Barnes against Greenly upon an obliga- seeming larger, tion dated 4 Sept. to perform the award of all causes till or not so large the day of the date; the plaintiff pleads the award de 1 Cro. 216. præmissis, viz. of all causes, till the third day of Septem- 257. Cr. El. ber, and assigns a breach; the defendant maintained the Judgment.

Syd. 154, 252

353, 448.

3 Cr. 861.

Arbitrament

as submission.

Roll. 1. Abr. f.

858. Hutt. 9.

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