[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 [190] against that prescription, had been well. But in Hill. Judgment. 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. Yelv. 164. 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 exAndrews, a knight, upon a lease made by her to him in Meme. Hutt. pulsion, &c. 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 lensed 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 inust 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 & 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 al- 3 Cr. 861. leged, (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 the day of the date; the plaintiff pleads the award de præmissis, viz. of all causes, till the third day of September, and assigns a breach; the defendant maintained the Judgment. Syd. 154, 252. 353, 448. Arbitrament or not so large Cro. 216. as submission. Roll. 1. Abr. f. 257. Cr. El. 858. Hutt. 9. [190 c] bar, ut prius quod nullum fecit arbitrium, and verdict for the plaintiff and judgment. And here the award was a day short of the submission; and upon this a writ of error was brought, and the record removed, but what issue it took I know not. [191] 885. 1 Roll. R. 48. These two records were showed upon an action of debt brought by Lea against Pain, 14 Jac. Rot. 953. upon a Hutt. 9. Moor bond dated January, 13 Jacobi, for performance of an 258. Brownl. 1. award of all causes between them. The defendant pleaded no award made; the plaintiff replied, that in April 14. there was an award made between them, secundum formam conditionis, de et super premissis, scil. that the defendant should pay unto the plaintiff twenty pounds in full satisfaction of all controversies, until the day of the award; and that the defendant paid it not; whereupon the defendant demurred. Upon these cases the court inclined strongly to Lea the plaintiff. And in Hill. 15 Jac. gave judgment to him. And yet if the defendant had paid the twenty pounds, and the plaintiff accepted it according to the award, it would have satisfied and discharged any trespass, or the like, done by the defendant to the plaintiff between, the date of the bond and the award; for it might be averred a satisfaction for it. And so in these cases of award it might have been averred, that some new cause of action had been grown since the 2 Cr. 352, 664. bond, and made known, and then the court must have taken knowledge, that the award in that point had not warranted by the submission. (1) 2 Cro. 353. 8 Co. 98. a. 3 Cr. 861. (1) An award of a general release of all demands to the time of the award, is good; for nothing new shall be intended to arise in the mean time; and if any new controversy or demand did happen in the mean time, the award, as to that new demand or controversy, is void : for that was not within the submission, and therefore it is a good performance of it to tender a release of all matters in controversy to the time of the submission, which he is bound to release. 1 Salk. 74, Simon v. Gavil. See also 8 T. R. 575, Banfill v. Leigh. 2 Caines 326, Munro v. Alaire. 2 Mod. 309, Hill v. Thorn, 1 Saund. 324. n. (2) Bunb. 250, Keen v. Godwin. [191 a] ANON. TRESPASS. False Latin in declaration, not fatal. ACTION of trespass, quare vi et armis bona et catalla, 2 Cro. 307. viz. palos, ralos, &c. ; and after verdict it was moved, that 8 Co. 159. b. ralos was no Latin word; and yet judgment given for the plaintiff. GIBS VS. JENKINS. Welsh words of doubtful meaning, and which signify to bear away, rather than to steal, are not actionable. Welsh words. Hutt. 8. Noy. 19. GIBS brought an action upon the case against Evan Action for Jenkins, for speaking of Welsh words in the presence of Ante 117, 126. divers understanding the language, and did set down the words in Welsh. Upon issue not guilty, after verdict, witnesses were sworn for the signification of the words, and some affirmed that the words were commonly taken, and so understood, for stealing, which others denied; but both agreed, that the true and proper signification of the words was bearing away. Whereupon judgment was given Judgment. against the plaintiff. (1) (1) At the present day, it is for the jury to decide in what sense the words were used by the speaker, and if they were intended to convey a charge of stealing, they would be actionable. See ante p. 6, Miles v. Jacobs, n. (1.) TOOKER vs. LOANE. The ordinary has no power to make distribution, or to take bond for the distribution, of the surplus of an intestate estate. Hetl. 68. Car mesme case. GILES TOOKER, a reader of Lincoln's Inn, and Charles, Moor R. 864. his brother, administrators of Maude Tooker, their mother, ter's R. 126. by serjeant Harris, moved for a prohibition against Loane; Noy. R. f. 24. and the case was, that Maude had issue the plaintiffs, and Cr.Car. 62, 202, John and Thomas; and Thomas had issue nine children, cap. 10. and John three, and were dead, the children being infants. 823. Car 2. |