203. Yelv. 95, 146. Ante 13, Yel. 96. 10 Co. 133. a. Mo. 645. THOMAS PARRY brought an action of debt against Wil- 2 Cro. 146, 147, liam Dale, for five hundred pounds, upon an obligation 105. 2 Roll. dated the sixteenth of September, An. 41 Eliz. Dale the 19. Styl. 257. defendant demands oyer of the obligation, and it was read in these words; noverint universi per præsentes, nos Richardum Oldsworsth et Willielmum Dale, cives et groceros, London, teneri et firmiter obligari Thomæ Parry, generoso, in quinquegintis libris legalis moneta Angliæ solvend.; and the defendant, after oyer of the condition, pleaded an insufficient bar, whereupon Parry demurred; and yet judgment was against him, the whole court conceiving that the bond was naught, because quinquegintis was no Latin word at all. But the causes coming by writ of error be- Obligation; fore the judges in the Exchequer Chamber, 11 Jac. after no Latin in the many debates and precedents seen and perused, Ter. Pasch. 14 Jac. the cause was ended by the mediation of the judges, and three hundred pounds given by order to Parry, and so general releases from each to other. For myself and most of the judges were of opinion, that the bond was good for five hundred pounds. But the chief baron stuck, being one of them that gave the judgment in the king's bench. (1) (1) Vide ante p. 18, 19, 20, 116, &c. false Latin or sums. [119 a] WOOD vs. BUDDEN. A verdict upon an issue larger than is necessary is good. WOOD brought an action of trespass against Budden, and declared, in the new assignment, in a close of pasture in Tollard Royal. The defendant pleaded, that William earl of Salisbury was seised as in fee and right of an ancient chase replenished with deer, called Cranborn, and so prescribed in liberty of chase, and that the same chase. did extend itself as well in and through the said eight acres of pasture, as in and through the said town of Tollard Royal, and justifies the trespass for use of the chase. The plaintiff maintains his declaration, and traverseth, that the chase doth not extend itself as well to the eight 2 Cro. 85, 183. acres as to the whole town. And this issue was tried at 1 Cr. 7. Verdict upon issue larger than is needful. Ant. 105. Dy. 365.b. 2 Cro. 184. 1 Cr. 6. the bar, and found for the plaintiff. And now it was said in arrest of judgment, by Finch, serjeant, that this issue and verdict were faulty; because if the chase did extend to the eight acres only, it was enough for the defendant; and therefore the finding of the jury, that it did not extend as well to the whole town as to the eight acres, did not conclude against the defendant's right in the eight acres, which was only in question. But it was answered by the court, that there was no fault in the issue, much less in the verdict, (which was according to the issue ;) but the fault was in the defendant's plea, that now takes the exception; for he puts in his plea more than he needed, scil. the whole town; which being to his own disadvantage, and to the advantage of the plaintiff, there was no reason for him to demur upon it, but rather to admit it as he did, and so to put it in issue. And so judgment was given for the plaintiff. (1) (1) Vide ante 116 c, Blackford v. Alkin. SMALES VS. DALE. [120] An entry by one tenant in common, serves for all. One joint-tenant or tenant in common cannot be disseised by his cotenant, but by actual ouster. One tenant in common cannot alone maintain trespass against a stranger. Winch. Ent. tenant in com mon serves for all. 3 Keb. 90. p. 30. 7 II. 7. Mo. 375. 1 Inst. JOHN SMALES brought an ejectione firma against Moor f. 868. William Dale, of the demise of John Berriman, and 443. Counterupon not guilty, the jury found that one William plea de Voucher, Br. 29. Watson was seised of the land in question, and had issue Allen Watson and Anne Watson by one wife, and William Watson by another, and devised this land, being holden in knight's service of the late queen, unto his wife during her widowhood, the remainder to William the younger, and died, and that his wife entered into all the lands; and that Allen made no actual entry into the lands, but died without issue; and then the wife married, and William Watson the younger son entered and enfeoffed the defendant, upon whom the plaintiff's lessor, being son and heir of Anne the sister of Allen, entered, and made Entry by one the lease to the plaintiff, who, being actually ejected, brought his ejectione firma of the whole land. And it was adjudged for the plaintiff, as to the third part only which b. 3 Cro. 611. descended to Allen, notwithstanding the demise; for it was 14. a. Co. L. resolved that the wife's actual entry did work to an actual 374. a. Inquest, entry also to Allen the heir for his third part, whereof he was tenant in common with her; for it was said, that the entry of one tenant in common might be in three manners; either in the name of herself, or her fellow, (which were most clear;) or generally, (as this case is) which shall be always taken according to right, as being under construction of law, and therefore ever construed lawful; or lastly, entry claiming all expressly, which yet cannot dispossess her fellow, for her possession is over all lawful, as well before such claim as after, so that there is no possession altered by such claim, and then a sole claim without more Mo. 59. Inst. can never change the possession, and without a change of 199. b. possession it remains as before. And therefore a coparcener, a joint-tenant, or tenant in common, can never be disseised by his fellow, but by an actual ouster; and there 243. b. 373. b. Br. 71. 3 Cr. 1 Inst. 640. 379. b. [120 a] fore in such a case, if a tenant in common bring an action of trespass against a stranger alone, his action shall be abated by pleading him tenant in common with another, howsoever his entry were made; which proves that the entry of one serves for all, for else they could not join in an action of trespass. (1) (1) In an action of trespass brought by tenants in common, in relation to their land, or in an action of debt for rent arising out of the land, or in any other action merely personal, they must all join as plaintiffs; and a release of the action by one of them is a bar to the others. Aliter, in a distress or avowry, which savour of the realty. 15 Johns. 479, Decker v. Livingston. Tenants in common cannot join in a real action; they must sue severally for their undivided right. 1 Pick. 228, Rehoboth and Seckonk v. Hunt. It is said, in the case in the text, that the entry of one coparcener, joint-tenant or tenant in common, expressly claiming the whole estate, is not a disseisin of the cotenant; but this dictum may be doubted. In Co. Lit. 243. b. it is said that when one coparcener specially enters claiming the whole land and taking the whole profits, she gains the moiety of her sister by abatement. So, Cowp. 218, Fisher v. Prosser, Lord Mansfield says the possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion, because such possession is not adverse to the right of his companion; and by paying him his share he acknowledges him cotenant. Nor indeed is a refusal to pay of itself sufficient, without denying his title. But if, upon demand by the cotenant of his moiety, the other denies to pay, and denies his tille, saying he claims the whole and will not pay, and continues in possession; such possession is adverse, and ouster enough. The doctrine of Coke, contrary to that in the text, on this point, is also adopted in Massachusetts. 1 Pick. 116, Shumway v. Holbrook. The court there say, where a person enters generally, without making any declaration of his intention, the law presumes that he enters by his legal title; but if he says that he enters to exclude others having the same title with himself, or if he does an act showing an intention to keep them out, he is an abator as much as a stranger would be. The doctrine in Hobart, therefore, is to be received with some qualification.' The general rule, however, is as laid down in the case in the text, that the entry or seisin of one tenant in common, serves for all. 14 Mass. 438, Barnard v. Pope. 17 Mass. 75, Brown v. Wood; and Shumway v. Holbrook, ub. sup. Star Chamber. LORD DARCY vs. MARKHAM. Provoking another, by letters, to give a challenge is punishable as a misdemeanor. THE Lord Darcy of the north sued Gervase Markham, esquire, in the star chamber, and the case fell out to be thus, that they had hunted together, and the defendant and a servant of the plaintiff, one Beckwith, fell together by the ears in the field, and Beckwith threw him down and [120 b] And the Star Chamber punishes pro challenge. was upon him cuffing of him, and the Lord Darcy took him off and reproved his servant, and yet Markham chid him, charging him with maintaining his man. Lord Darcy replied, that he had used him kindly, for if vocation to a he had not rescued him from his man, he had beaten him to rags. Whereupon Markham wrote five or six letters to the Lord Darcy, and subscribed them with his name, but sent them not, but dispersed them unsealed in the fields, whereof the effect was, that whereas the Lord Darcy had said, that but for him his man Beckwith had beat him to rags, he lied, and as often as he should speak it, he lied, and that he would maintain with his life; and then said, that he had dispersed those letters that he might find them, or some body else might bring them to him; and concluded, that if he were desirous to speak with him, that he should send his boy, and he should be well used. This cause was effectually handled at the common law, not enforced by the king's proclamation, because the defendant had no knowledge of the proclamation, nor by likelihood could have, it was so soon after the proclamation. But the plaintiff's counsel, by direction of the court, left the proclamation, and yet Markham was censured and fined five hundred pounds. The reason of the sentence was, that this was a compounded misdemeanour, for the letter thus dispersed was in the nature of a libel, slanderous and defamatory to my Lord Darcy; and the other point was, that though there were no direct challenge to my Lord Darcy to fight, yet there were plain provocations to it, and, as it were, to call and challenge my Lord Darcy to fight him. And though the case was something aggravated, that it was to a peer of the realm, yet the censuring of the fact rose out of the nature of it, and not out of the circumstance of the person. And I, in my sentence, said that the law did not allow any man to strike in private revenge of ill words. And the reason of the wisdom of the law in that was, because there was no proportion between words and blows, but he that is strucken may strike again. But it is true, that there is a judicial combat allowed before the constable, if a man be [121] |