[331 a] son is made defendant; and other words describing the defendant as the son, are equivalent. If the right defendant appears and pleads, he cannot afterwards object for the uncertainty; and if the father appears, the plaintiff may show, by additional averments and suggestions on the record, that the son is the real party. 10 Mass. 205, Kincaid v. Howe. 1 Pick. 388, Com. v. Perkins. See ante 116, Blackford v. Alkin, and 7 Johns. 549, The People v. Collins. Com. R. 260, Hussey v. Hussey. Case. Winch. 3. 2 Cr. 39. Ant. R. 300, 440. CLEARKE Vs. GILBERT. The words, Thou art a thief, and hast stolen twenty loads of my furze,' are not actionable. GODDARD CLEARKE brought an action upon the case 77. 1 Roll. 52. against Gilbert, for speaking these words; Thou art a Cr.Jac. 66, 166. Allen 7. 2 Ro. thief, and hast stolen twenty loads of my furze.' And Jones 11. Pop. upon not guilty, a verdict was found for the plaintiff. Now 152. Hutt, 110. it was moved by serjeant Hitcham, that these words bear 32. 2 Cro. 442, no action, because the furze might be standing, and felled and carried away by the plaintiff, and so no felony. Allen 11, 31, 457. Ant. 9. And Athow, of counsel for the plaintiff, urged, that it shall be understood rather of furze felled than standing; and also the words are so coupled that the latter are not made a reason of the former, but either of them a distinct sentence, standing of itself; and so the word thief is sufficient alone. And to that purpose cited (as he said) divers cases, all in B. R.; one between Minors and Lightford, 4 Jac., and another between Eire and Ounstram, 7 Jac., and another between Turner and Campion, 13 Jac. But he relied chiefly upon a record which was showed, 2 Jac. in the king's bench, between Kelham and Mansy, Jac. 457. and where the words were, Thou art a thief, for thou hast Hutt. 113. utra, stolen my corn;' and judgment was given for the plaintiff. Mo. 396. 3 Cro. All which notwithstanding, the court here, after divers motions and debates, gave judgment against the plaintiff. Hutt. 65. Yelv. For as to the first point, it had been often ruled that it is all one in common sense and acceptance, whether it be ' and thou hast stolen,' or 'for thou hast stolen.' And in the case of Kelham, the court denied the law to be so, Cro. Jac. 114, 231. 1 Ro. 51. 2 Cro. 39, 442. Winch 10. Cr. hast stolen.' 428. Styl. 115. 34. accord. Hutt. 65, 113. 2 Cro. 66, 114. utra. 1 Roll. 51. utra. Cr. Jac. 39, 74, 76, 205, 687, 67. except there were some further words. of explanation, as 1 Ro. 52. Allen corn in my barn,' or the like. For otherwise, in words 31. 2 Cro. 114, 154, 231, 442. HANSON US. Norcliffe. AMPHURST vs. PALMER. merely indifferent, the more easy sense and farthest from the more heinous charge shall be taken. And therefore we have given judgment before, supra, between Coote and Gilbert, against the plaintiff, upon debate, where the words are, Thou art a thief, and hast stolen my trees.' (1) 6 (1) Vide ante p. 6, Miles v. Jacob, n. (1.) In 3 Caines 75, n. a. it is said that the dictum in the above case in the text, where it is said to have been often ruled that it is all one in common sense and acceptance whether the words are, and thou hast stolen,' or 'for thou hast stolen,' is denied to be law in Sty. 115, Wainwright v. Whitley. 495 [331 b] HANSON US. NORCLIFFE. A lease for years, conditioned to be void on nonpayment of rent, cannot be avoided for the nonpayment, either by the lessor or lessee, without demand. Debt. congeable, Br. Mo. 408. Co. L. 214. b. 2 Cr. 57. HANSON, plaintiff, and Norcliffe, defendant. In an action Jones 9. Entre of debt the plaintiff declares upon a lease for years, made 2. Dy.51. b. by him to the defendant, reserving rents, and for the rent behind the action is brought. The defendant pleads, that the lease in the count mentioned, was made by indenture, reserving the rent, prout, and with condition, that if the rent be behind, then the lease to be void; and doth allege 3 Co. 64. b. Syd. 7. a default of payment of the rent, and so the lease determined. Demand. 1 Ro.459. The plaintiff demurreth in law and it was resolved by 2 Leo. 141. acthe court, that this lease is not void without a demand, cord. 459. which therefore the defendant should have laid actually; 82, 133, 135, 207, 304. and for want of it, his plea was naught; and so it is at the election of the lessor and his heir, to continue or avoid the lease, in such case. (1) (1) See the next case, S. P. Debt. AMPHURST vs. PALMER. A lease for years conditioned to be void on nonpayment of rent, cannot be avoided on that ground, by lessor or lessee, without demand, which must be expressly averred in pleading. Ant. 207, 208. THE same case, between Amphurst and Palmer, was in Demand. like sort resolved so the rent is due without demand; : [331 c] but the forfeiture of the estate, neither by entry, nor by avoiding upon condition, is given either for lessor or for lessee, without due demand made, which must be expressly laid in pleading. (1) (1) See ante p. 82, Grobham v. Thornborough, and n. (2.) [332] Brownlow. Winch. 41. M. GODFREY US. WADE. * A mother, tenant in tail, has issue a son and daughter; the son levies a fine and dies without issue, and then the mother dies; the daughter is not barred. A grandfather, tenant in tail, is disseised by the father, who levies a fine and dies, and then the grandfather dies; the son is barred. A father, tenant in tail male, has issue three sons; the second son levies a fine, living the father, and then the father dies; the eldest son is not barred: if the second brother die without issue, living the eldest brother or his issue, the youngest is not barred; but if the eldest brother die without issue, living the second brother or his issue, then the youngest and his issue are barred. Privies in estate and title to the entail, are barred by fine, but not privies in blood alone. IN an ejectione firma by William Godfrey against Tho. C. et 110. cest Wade, the case as to one great point was thus. case quoted. Winch. Ent. 458. Jones 31. 1 Cr. 543. Latch. 66. Ben. 463. 2 Cr. 689. Cr. Car. 435, 524. Jon. 461. Mackwilliams, the husband, makes a feoffment of the manor of Bathorne, to Osborne, to the use of himself and his wife, and the heirs males of their two bodies, the remainder to the heirs males of the body of the husband, the remainder to the heirs of their two bodies, the remainder in fee unto the husband. They have issue a son and a daughter; the husband dieth; the son maketh a lease by indenture, to begin after the death of the mother, rendering a rent; and then by agreement levies a fine with proclamations, to the use of himself in fee, and dieth without issue. The mother, by assent of the daughter and her husband, suffers a common recovery, in which the daughter and her husband came in as vouchees the use of which recovery is to the use of the mother for life, the remainder to the daughter and her husband in tail, the remainder in fee to the daughter. The mother dieth. : The question is, whether this lease of the son, under whom the plaintiff claims, be good against the daughter and her husband, under whom the defendant claims. And it was adjudged for the defendant, by the opinions [332 a] (upon solemn argument) of justice Jones, justice Hutton, and myself: but justice Winch was of opinion that the fine of the son, though in the life of the mother, (before whom he died, without issue,) should bind the daughter, and all claiming under her. Now first it is to be observed, that the estate tail to the husband and the wife, and the heirs males of their two bodies, after the death of the husband, was wholly in the wife at the time of the fine levied, though the wife were within the statute of 11 H. 7. Then the remainder to the heirs males of the body of the father, was indeed in the son, at the time of his fine levied; but both those estates tail were extinct when the son and the mother were dead : so the lease could not stand by those estates: then next succeeded the remainder to the heirs of the bodies of the husband and wife, which, after the death of the husband, was wholly vested in the wife, to which both the son and the daughter were inheritable, being brother and sister. Now the question is, whether the fine of the brother, (being the first issue of this entail,) levied in the life of his mother, (who was sole tenant of that entail, and did survive him,) shall bar his sister, to whom the land so entailed descends immediately from her mother. And we held that it should not. Ant. 258. 1 Cr. 435. In the argument of this cause I said, that he that will 2 Cro. 689. make a good construction of the statute of 32 Hen. 8., must make it upon a joint consideration and conference of the statute of 4 H. 7. and it together; the first being the text, and the other but a paraphrase, in a few more 3 Co. 90. b. words, but little differing in substance. For he that shall observe the strongest cases that have been ruled, of giving or binding, barring, extinguishing, or discharging (to use all the words) of entails, by fines with proclamations, since 32 H. 8., shall find that the same cases ought to have been so ruled upon the statute of 4 H. 7., though the other of 32 H. 8. had never been made: but because entails were so beloved, and had reigned so long, it was wisely [332 b] Dy. 32. p. 8. [333] Inst. 373. a. done of the judges, not to lance the sore too deep of themselves, but to have the parliament authors of so liberal an exposition as 4 H. 7. required, and would well have borne. And therefore 32 H. 8. makes all fines, as well before as after, levied according to 4 H. 7., to be of one and the same force and effect. So the fines upon 4to. are. ab initio, as strong against entails, as 32o.. And in two cases the statute of 32 H. 8. seemed to weaken the statute of 4 H. 7; in the case of fine by tenant in tail by act of parliament, and tenant in tail with reversion in the crown. For P. 28 H. S. fine by tenant in tail, the reversion in the crown, bound the issue by 4 H. 7.; and 32 H. 8. provides, that the same statute shall not extend to fines levied by tenant in tail, the reversion in the crown, but that the same shall be of the like force as they should have been, if that act had not been made; which amended not their case. Whereupon in Stafford's case the judges devised to help that slip by a very oblique and indirect 1 Syd. 166. 1 strain upon the statute of 34 H. 8., of common recoveries, whereby it was provided, that no common recovery in that 467. 3 Cro. 595. case should bind the issue, but that he might enter after 1 Cro. 430. 4 Leo. 40. Mo. 2 Roll. 773. Savil 105. Ant. 258. Dy. 3. a. 3 Co. 90. a. the death of the tenant in tail, the said recovery, or any other thing done or suffered by or against any such tenant in tail, to the contrary notwithstanding. Co. lib. S. 78, Stafford's case, and Notley's case. All persons are, by 4 H. 7., concluded under the words privies and strangers to the fine; and the statute hath savings for strangers, but none for privies; and therefore the exception of partes finis, &c. is given to all persons not parties nor privies; that is, only unto strangers. The word 'privies,' in the purview of 4 H. 7., is the operative word, and contains as much as the many words in 32 H. 8. And therefore no man would have doubted 3 Cro. 122, 610. upon that law, of Grant's case, Archer's case, or Zouch's case; for they are all privies to them that levy the fines, that is, privy in estate and title to the entail; for privity in blood alone is nothing. And therefore, Coke, lib. 3. Lincoln college's case, if a daughter of a tenant in tail levy a fine, and then a son is born, proclamation shall not 3 Leo. 211. 10 Co. 50. a. 3 Co. 61. b. |