[133 a] 1 Lutr. 4. were of clear opinion, that the plaintiff ought to be barred; for though by the right form of pleading he should in such case set down in certain to what value the goods were, yet that is but form; for if he had said that he had goods to the value of one hundred shilling, and the plaintiff had proved that he had one hundred pounds, yet he had gained nothing. So the substance appears in this plea, that he had not above to satisfy the judgment. And the stat. of 27 Eliz. is a favourable law and full of equity, which judges ought to retch and not to shrink; and for the repugnancy that may seem to be, in that he pleads first pleniement administra, and yet afterwards confesseth somewhat unadministered,-all the precedents are so; and the præterquam corrects all, and the unquam postea refers not only to the next antecedent tempore judicii, but also to the time of the original before. But Warberton did a little doubt of the first point. (1) (1) See 1 Saund. 333. n. (7.) acc. ALLEN US. WALTER. Of service of summons in action of dower according to stat. 31 Eliz. [Omitted as inapplicable in this country.] 1 Brnl. 179. 1 Ro. 450. Entre congeable, Br. 2. Post. 207. 7 Co 28. b. Hutt. 114. Mo. 358, 486. Hutt. 23. 11 Co. 45 a. Demand requi site, where there is for feiture of a HOWELL vs. SAMBACK. A nomine pœnæ is not forfeited without a demand of rent. Upon an avowry for five pounds rent and eighty pounds nomine pœnæ, a return may be adjudged for the rent, though the nomine pœnæ is not forfeited. BETWEEN Howell and Samback; the defendant made avowry, and conveyed himself to five pounds rent due such a day, and for nonpayment thereof eighty pounds nomine pænæ; but laid no actual demand of rent, and concluded, that for the same eighty five pounds he did distrain, and so avows. And it was resolved by the court that this avowry was insufficient for the pain, which could not be forfeited without actual demand of the rent; and yet the return was adjudged unto him, [133b] because he had just cause to distrain for the rent, and they appeared to the court to be several. (1) (1) See ante p. 82, Grobham v. Thornborough, and note. (2) pain. Ante, 82. WIKE US. WRIGHT. [134] If an original bill be lost after being entered on the roll in hæc verba, a new bill may be filed. Debt. ney Jones, 304. 2 Cr. 109, 186, 580. 1 Cr. 282. And it was first Bill against an law of 18 Eliz. attorney filed. WIKE brought a bill of debt against Wright, an attor- Ante. 29, 130. of the court; and after issue found for the plaintiff, it was alleged that there was no bill to be found filed with the custos brevium, as it ought to be. questioned to be within the equity of the of want of original writ; for the bill is the original in this case. But upon that there was no resolution; for it was proved by oath that there was a bill, and that the defendant had accepted it, and subscribed it, and it was entered in hæc verba upon the roll. And so the court ordered Post. 264, 281. that a new bill should be filed. (1) (1) See ante, p. 130. WEAVER US. WARD. If one trained soldier wound another, in skirmishing for exercise, an action of trespass will lie, unless it shall appear, from the defendant's plea, that he was guilty of no negligence and that the injury was inevitable. Trespass. Brownl. he One train sol dier hurteth another by skirmish. WEAVER brought an action of trespass of assault and London. battery against Ward. The defendant pleaded that was amongst others, by the commandment of the lords of the council, a trained soldier in London, of the band of mischance in one Andrews, captain; and so was the plaintiff; and that Moor f. 864. they were skirmishing with their muskets charged with powder for their exercise in re militari, against another captain and his band; and as they were so skirmishing, clamation, 13. the defendant, casualiter et per infortunium et contra vol m' 2 Ro. 584. 3 Cr. 10. 11 H. Corong. 220, 7. 23. Br. 229. Br. Pro [134 a] Accord. 4 Co. 124. untatem suam, in discharging his piece, did hurt and wound the plaintiff; which is the same, &c. absque hoc, And upon that he was guilty aliter sive alio modo. demurrer by the plaintiff, judgment was given for him; for though it were agreed, that if men tilt or tourney in the presence of the king, or if two masters of defence playing their prizes kill one another, that this shall be no Finch Ley, 8. felony; or if a lunatic kill a man, or the like; because felony must be done animo felonico; yet in trespass, which tends only to give damages according to hurt or loss, it is not so; and therefore if a lunatic hurt a man, he shall be answerable in trespass; and therefore no man shall be excused of a trespass, (for this is the nature of an excuse, and not of a justification, prout ei bene licuit,) except it may be judged utterly without his fault; as if a man by force take my hand and strike you; or if here the defendant had said that the plaintiff ran cross his piece when it was discharging; or had set forth the case with the circumstances, so as it had appeared to the court that it had been inevitable, and that the defend&c. Execution, ant had committed no negligence to give occasion to the There are three degrees to avoid the charge of a trespass. Inficiation, not guilty. Justification, as de son assault, as this. hurt. (1) (1) As to the cases in which trespass vi et armis will lie, and the distinction between this action and trespass on the case, see 5 Bos. & Pul. 447, n. 1. Am. ed. and the cases there cited; 3 East 593, Learne v. Bray. 11 Mass. 137, Cole v. Fisher. 14 Johns. 383, Lambert v. Hoke. Debt. London. Goldsborough. 1 Brni: 67. Winch. Ent. 269. COVENTRY vs. WOODHALL. A master cannot assign his apprentice, nor can he send him out of the realm, unless it be so agreed, or the nature of the trade require it. BC COVENTRY brought an action of debt against Woodhall for twenty pounds. The condition was, that whereas one Rathborne had bound himself apprentice to the defendant for eight years, the defendant did covenant with the plaintiff, that he would retain, teach, keep and employ the said apprentice, in his own house and service, in the art of chirurgery, during the term; and bound himself in sent out of the twenty pounds for performance of those covenants. And [134 b] then it is showed, that within the term, the defendant sent his said apprentice in a voyage to Bantam in the East Apprentice Indies, which he pleaded to be in the company of other realm. expert chirurgeons, the better to learn the art; whereupon the plaintiff demurred, and judgment was given for him for it was expressly against this covenant; for though the covenant were not so restrained to the house in meaning, but that he might send his servant or apprentice in other places about his cures, yet he must be still as one of his household, coming and going, and in his service, and not put over to any other; for, as I said, the matter of putting an apprentice is a matter of great trust, for his diet, for his health, for his safety; and therefore I will, by choice, commit him to one, and not to another. And generally no man can force his apprentice to go out of the kingdom, except it be so expressly agreed, or that the nature of his apprenticehood doth import it; as if he be bound apprentice to a merchant-adventurer, or a sailor, or the like. (1) (1) The doctrine of this case is recognized in Doug. 70, The King v. Stockland. 1 Mass. 172, Hall v. Gardner. 8 Mass. 299, Davis v. Coburn. 19 Johns. 113, Nickerson v. Howard. If upon such assignment, the assignee covenant to pay the assignor a certain sum for the services of the apprentice, and the apprentice afterwards abscond during the term, the assignor cannot recover against the assignee upon such covenant; Davis v. Coburn ub. sup. ; but if the apprentice continues in the service of the assignee during the residue of the term, the sum covenanted to be paid, in consideration of the assignment, may be recovered. Nickerson v. Howard, ub. sup. [135] [136] Devise. Stat. of charitable uses. FLOOD'S CASE. A devise to a college, though it be a corporation and in mortmain, is good by the statute of charitable uses, 43 Eliz. 'IN the court of wards was this case. One Griffith Herne's Charit- Flood, a doctor of law, being seised in fee of lands in the able Uses,lo. county of Cardigan, by devise, anno 1571. and in August 1 Co. 25. a. 25 Eliz. devised the same unto Anne his wife for her life, and after to Jane his daughter for her life, and after these lives ended, to the principal, fellows and scholars of Jesus College in Oxford, and their successors, to find a scholar of his blood from time to time, and died.' The lives ended; Bridged Lloyd, the heir of Griffith Flood, being the 11 Co. 70 & 73. king's ward, entered. And upon a case made hereof in the court of wards, and by order of the said court brought unto the chief baron and myself to be resolved, we agreed that the devise was void in law, because the statute of wills did not allow devises to corporations in mortmain; but yet we held it clearly within the relief of the statute of charitable uses of 43 Eliz. under the words limited and appointed. And so it was decreed that the college should enjoy it against the ward and his heirs. And it was likewise held by us, (and so is mentioned in the decree,) that the proviso in the statute, which exempts colleges, is only intended to exempt them from being reformed by commission, but not to restrain gifts made to them. Devise. Herne's Charitable Uses, 149. Chaunc. stat. 43 Eliz. of COLLISON'S CASE. A devise to J. B. and others, of a house, to keep it in repair, and to bestow the rest of the profits upon reparations of certain highways, is good within the statute 43 Eliz. COLLISON, 15 H. 8., devised an house in Eltham in Kent to Lettice his wife for life, and after her death made John charitable uses. Bricket and others feoffees (as he called them) in the said house, to keep it in reparations, and to bestow the rest of the profits upon reparation of certain highways there. Collison and his wife are dead; and the house is descended to one Oliver Rolt, an infant. This case, being in the |