Wheeler Plaintiff, against Haydon Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | Court of the King's Bench |
English Reports Citation: 80 E.R. 977
IN THE COURT OF KINGS BENCH
[83] wheeler Plaintiff, against haydon Defendant. Entred Hillar. 8 Jac. B. R. Eot. 1317. 2 Cr. 328. An action of debt upon the stat. of 2 E. 6. cap. 13. for tythes. Mo. 834. 2 Ro. 46. 717, 718. 1 Betil. 125. In an action of debt, upon the statute of 2 E. 6. cap. 13. for not setting out of tithes; the plaintiff being a parson, made a lease for 5 years to the defendant, the lease being for so many years if he should continue parson; in an action of debt brought for tithes, the plaintiff declares upon a lease made by the parson, if he should live so long, and continue there parson ; the question was, whether this be such a variance, between the lease made, and the lease set forth in the declaration, as shall vitiate the declaration. It was urged by George Croke, for the plaintiff, that this was no such variance : a parson makes a lease for so many years, if he shall live so loug, (and doth not say in his lease, and continue parson) but in his declaration ; he expresseth this to be so, if he live so long, and continue parson. Whether this now, shall be taken, and intended, to be the same lease 1 it shall be so intended, and this is no variance, for nothing more is by this expressed in the declaration, than what the law saith for him: for by construction of law, and so much the law saith, that it shall be a good lease for so many years, if he live so long, and continue parson, and by 24 H. 8, Brooks Cases fol. 10. placito 54. If a parson makes a lease for years, and dies, the lease by this is determined in facto, and so also by resignation; so if a man devises his goods to his executors, to pay his debts, this is an idle clause, being 978 TEEMIN.PASCH.il JAC. 2 BU18TRODE. M. no more than what the law sets down before, that as executor, he is to have the goods in this manner: and so here in this declaration, this is an idle addition, the same being no more than what the law said before, and is like unto the herb John in pottage which does neither good nor hurt; the lease here made by the parson, was for 5 years, if he continued parson; the declaration is upon a lease made by the parson, if he should live so long, and continue parson ; this is no such material variance, as to estop and hinder the plaintiff from his judgment, here the jury finds the lease as it was but made for 5 years, if he lived so long; this is no material variance from the essence of the lease, for if he continue parson, & if he live so long, this is all one, unum & idem in effectu; the lease being to be avoided by the one or the other, which of them shall first happen ; and this is no variance, being the same in substance, idem in sub-Btantia, and therefore these additional words shall not make the declaration vitioua. Like unto Claytons case, Coke 5 pars fol. 1. A lease made a die datus, declares of a lease made, a dies confectionis : this is good, the same being all one, unum & idem, dies datus, & dies confectionis: if a parson...
To continue reading
Request your trial
-
Haths v Ash
...day of the date. Adjudged by three Judges against Treby, C.J. But note, a die datus excludes the day (a). Vide 5 Co. 1, 94 B. 2 Co. 55. 2 Bulst. 83, 305. 3 Bulst. 203. Aleyn. 77. Eay. 84. (a) E. in the case of Pugh and the Duke of Leeds, Cowp. 714, that a lease to commence from the day of t......
-
Hatter against Ashe
...and thus to include the day of the execution of the indenture. Co. Lit. 46 b. 2 Salk. 625, 627. 1 Salk. 44. 6 Mod. 215. Aleyn 77. 2 Bulst. 83, 305. 3 Bulstr. 203. 1 Wilson 176. 2 Wilson 166. Powel Essay on Powers, 505. 1 Ld. Ray. 280. 2 Ld. Ray. 1242. Cowper 714. In this hist case, A. under......