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![handle is hein.slavery/ssactsengr0927 and id is 1 raw text is: 3LEV. So. MICHAELMAS, 4 WILLIAM AND MARY 717
trial at Guild-hall before Nevile Justice, it appeared onf the evidence, that the whole
messuage lay in the parish of St. Katharine Coleman-street, and no part thereof in
the parish of St. Gabriel Fenchurch-street. And Nevile Justice being strongly of
opinion that the plaintiff had failed in proving his declaration, it was made a case for
the opinion of the Court, but a verdict was given for the plaiptiff with a stay of the
judgment till the opinion of the Court was had in the matter. And now it was
moved by Levinz for judgment for the plaintiff; for if one brings ejectment of an
acre of land in D. and S. and the whole lies in D. he shall recover: or if a man brings
ejectment of an acre of land in D. and part thereof lies in S. he shall recover for that
part which lies in D. Plowd. Comm. 429 b. If a man has a title to the 4th part of
an acre only, and he brings ejectment for the whole acre, he shall recover the 4th part.
Cro. Eliz. 13. Ejectment of 100 acres, and proves a title by lease of 40 acres only,
he shall recover the 40 acres, which cases the Court did not deny : but in this present
case the most part [335] of the Judges held, that the declaration here being precisely
of the tenth part of an entire thing, viz. of a messuage, the evidence did not maintain
it. Qucere the diversity, and see 44 Assize 27. Assize brought of a mill, and it is
found that the plaintiff had an antient mill which fell down, and he erected a new
one; the greater part whereof was in the place of the old one, and another part
thereof on the defendant's land; and yet he recovered such part of the new mill as
was erected upon his own soil, though he did not recover the whole mill.
NOBLE against HOLHEAD.
Assumpsit for money received as well before as after the day of the promise,
ill in toto where verdict and entire damages.
Assumpsit on three several promises; two of them were good, and well laid, but
the third was laid thus; and whereas the defendant (such a day, year, and place)
was indebted to the plaintiff in 131. 10s. for so much money of the said plaintiff, and
of divers other persons to the plaintiff's use then before and afterwards had and received,
he promised, &c. After verdict for the plaintiff, on issue non assumpsit, and entire
damages, it was moved in arrest of judgment by Levinz, that the declaration was ill
in the third promise, viz. that such a day he was indebted to the plaintiff in monies
to the plaintiff's use received(l) antea & postea. And the damages being entire, he
cannot have judgment for any part; wherefore judgment was stayed.
[336] MICHAELMAS TERM, IN THE FOURTH YEAR OF THE REIGN OF WILLIAI
AND MARY. IN THE COMMON PLEAS.
CHAMBERS against WARKHOUSE.
Trover de catulis & catellis, not saying of what sort, and una amphora saporis, good.
Cro. Car. 391. 1 Lev. 201. 1 Lev. 99. Ray. 215. 1 Sid. 98.
Trover among other things de sex catulis, quatuor catellis, & una amphora saporis.
After verdict for the plaintiff, and entire damages, it was moved in arrest of judgment
by Levinz, that catulis signifies whelps, catellis little whelps of any sort, either of dogs,
bears, &c. and non constat of what kind they here are, and no property can be of whelps;
also the word saporis signifies savour, whereof no action lies, and the damages being
entire no judgment can be given ; but the Court on the first motion ruled judgment
for the plaintiff, nisi causa, &c. for they would intend them dog-whelps, and trover had
been maintained for a dog. And as to the word saporis, they would intend the
damages to be given for the amphora, and nothing for the word saporis. But afterwards
it was moved again, and the following authorities were cited pro & con in the case,
Hob. 283. Trespass for taking de uno cane venatico. Dy. 306. Trover does not lie
of a hawk, except it be shewn to be reclaimed. Cro. Car. 544, Sir Martin Leister
(1) The translation takes no notice of these words in the original. Puis le jour
del promise. Et le declaration est pour monies receu.](ViewImageLocal?handle=hein.slavery/ssactsengr0927&div=1&collection=&method=preview&ext=.png&size=3)