ception was taken to the declaration that the demife to the plaintiff is alledged to be on the 26th of March, and the tort done to the plaintiff is fuppofed to be on the 1ft of May following, and it is not alledged that the plaintiff entered before the 1ft of May; but to this it was anfwered by the court, that it fhall be intended that he entered immediately after the making of the leafe, 1 Lutw. 108. And fee 2 Burro. 1162. Small on the demife of Baker verfus Cole and Skinner, where amendments in ejectment are carried much further than formerly. ft. A verdict A verdict cures a defect in fetting out the title, though it cannot be a de- cures a defect fective title. 2d. After a verdict, if the objection be grounded a title, upon the mere miftake of the clerk, or a trifling nicety, there is though it no need of any actual amendment at all, the court will overlook the cannot cure exception. By fiction in law, the whole term, the whole time of title. the affizes, and the whole feffion of parliament may be and fometimes are confidered as one day, yet the matter of fact shall overturn the fiction, in order to do juftice between the parties.

The rule to fhew cause why the verdict should not be fet afide was discharged.

Meres et al' verfus Anfell et al. C. B.

in fetting out

a defective

TRESPASS quare claufum fregit, treading down the grafs, Evidence. digging the foil, &c. in Millcroft; the defendant pleaded;

ft, Not guilty; 2d, A licence.

not be ad

This caufe was tried at the laft affizes before Lord Mansfield, when a verdict was found for the defendant. And now ferjeants Parol evlLegh and Glynn moved to fet afide the verdict, and for a new dence hall trial, upon this ground, (viz.) that Lord Mansfield admitted mitted to conparol evidence to be given at the trial, which contradicted an tradict an agreement in writing, to which the fame perfon, who was ad- agreement in mitted to give fuch parol evidence, was a fubfcribing witness, and had himself the cuftody of the written agreement.

Upon Lord Mansfield's report, the facts appearing upon the trial were, that Meres and H. had the occupation of certain clofes of land of Meres, called Millcroft and Boreham's Field, and that the defendant Anfell and his partner, came to this agreement with them by a memorandum in writing, figned by all the faid four parties, and attefted by one Jofeph Matthews, whereby it was agreed by defendant Anfell and his partner, to exchange their copper-mill, &c. with Meres and H. in confideration of the grafs and vefture of hay, to be taken by Anfell and partner from off Boreham's Meadow, and articles were to be made accord

[See Littler

writing.

v. Hellard, 3 Term Rep.

K.

B. 590.]

ingly, this was in the year 1765, but no mention in the agree ment is made of the clofe called Millcroft, in which, &c. and only a fpecial particular interest in Boreham Meadow.

It further appears by Lord Mansfield's report, that the defendant Anfell and his fervants by his order walked in Millcroft, and trod down the grafs there growing as high as their knees, on purpose to have it determined at law, whether the defendant Anfell and partner were not intitled to the poffeffion of Millcroft as well as the hay of Boreham Meadow; fo that here is a clear trefpafs proved.

Matthews the fubfcribing witnefs was fubpoenaed to give evidence on the part of the defendant, but was called by the plaintiff, when he produced and proved the written agreement, and further depofed, that it was at the fame time (when the written agreement was made) agreed by the parties by parol, that Anfell and partner fhould not only have the hay from off Boreham Meadow, but alfo the whole poffeffion of the foil and produce both of Boreham Meadow and Millcroft; and the report further fays, that there was another witnefs to prove the fame matter. The defendant called no witness, whereupon it was left to the jury who found a verdict for the defendant, and Lord Mansfield reports he is not diffatisfied with the verdict.

Serjeant Burland for the defendant-Submitted it to the court, that Matthews was the plaintiff's witnefs, and that what he had depofed extra the written agreement, was no more than an explanation thereof, which was frequently admiflible; but

Per curiam-We are all clearly of opinion that the verdict is wrong, and must be fet afide; that no parol evidence is admiffible to difannul and fubftantially to vary a written agreement; the parol evidence in the prefent cafe totally annuls and fubftantially alters and impugns the written agreement. Indeed in some cases of wills and deeds, where there are two Johns named, or two Blackacres mentioned, parol evidence may be admitted to explain which John, or which Blackacre was meant and intended by the will or deed. The rules of evidence are univerfally the fame in courts of law and courts of equity. Suppofe a bill in equity was to be brought by the defendant to have a fpecific performance of this agreement, the court would not admit parol

evidence.

You cannot depart from the writing, but may argue touching the operation thereof. If a man agrees in writing to fell Blackacre for 1000l. shall parol evidence be admitted that he

intended

intended Whiteacre fhould alfo pafs? Certainly it fhall not. This appeared to be a wilful trefpafs, no licence was proved; the agreement only extends to taking the hay of Boreham Meadow, And expreffio unius eft exclufio alterius. Upon the whole, we have not the leaft doubt, but that there ought to be a new trial. So

Per totam curiam a new trial was granted.

HILARY TERM

12 GEO. III. 1772.

Thruftout [on dem. Levick] verfus Coppin. C. B.

EJECTMENT. The cafe was; a man being poffeffed

2 Black. Rep. 801. S. C.

A man poffefof a beneficial leafe of a term for years, of the premises in ed of a term for years in queftion, in right of his wife as executrix to her former huf- right of his band, grants and releases all his right, title and interest of and in wife as exethe fame premises, to the leffor of the plaintiff.

cutrix of her former huf.

band, has

The question is, Whether the husband by the marriage had power to fuch a title to the lease vested in him, that he could transfer and grant and convey the fame to the leffor of the plaintiff, fo that he can fame. recover in this action?

This cafe was well argued at the bar laft Michaelmas term by ferjeant Leigh for the plaintiff and ferjeant Whitaker for the defendant; and after time taken to confider till this term, the whole court was of opinion for the plaintiff, and this being after a verdict, the poftea was ordered to be delivered to the plaintiff, and judgment was entered for him accordingly.

T 3

Cafes

convey the

Cafes cited by ferjeant Leigh for the plaintiff. Jenk. Cent. 79, Dier 183. Salk. 306. 5 Rep. 27. Ruffel's cafe.

Cafes cited by ferjeant Whitaker for the defendant. Co. Lit. 351. Plowd. 294. Wm. Jones 248.

And fee various cafes upon this matter cited by the court. Brooke tit. Executor, pl. 47, 96, 101, 151, 178. Fitz. tit. Executor, pl. 23. Cro. Eliz. 278. Loftus's cafe.

66

And fee Arnold verfus Bidgood. Cro, Jac. 318. a cafe cited by Lord Chief Juftice De Grey directly in point. It was "debt upon the flat. 2 Ed. 6. ch. 13. for not fetting out tithes : "the cafe was, a man being poffeffed of a leafe of tithes in "right of his wife as executrix to her former husband, grants "totum jus, titulum & intereffe fuum de et in decimis prædictis. "After a verdict for the plaintiff (who claimed under the faid grant) it was moved in arrest of judgment that the declara. "tion was not good, because the plaintiff had not fet forth any good title to have the tithes; but the whole court unanimously refolved that the grant was good, and the lease he had "in the tithes in right of his feme, did thereby pass, &c. "judgment was for the plaintiff."

66

46

And

EASTER TERM

12 GEO. TI, 1772.

2 Black. Rep+ $17. S. C.

Atkinfon verfus Teafdale. C. B.

In an action Cumberland, e parish of Aldon in the county aforefaid,

OSEPH TEASDALE, late of Little Gill in

by one commoner against another for furcharging,

(to wit)

yeoman, was attached to answer unto Thomas. Atkinson in a plea of trefpafs on the cafe, &c. And thereupon plaintiff need the faid Thomas, by John Ward his attorney, complains, for

not particu

larly hew the furcharge. [But in an action against the Lord he must. 2 Mod. 7: Lutw. 107.]

that

third.

ance of com

that wheareas the faid Thomas, on the first day of January in the The record year of our Lord 1768, and before, was, and from thence con- is of Trinity tinually hitherto hath been and ftill is lawfully poffeffed of and term, 11 Geo. in a certain meffuage and diverfe (to wit) two hundred acres of land with the appurtenances, lying and being in the parish of Ouzeby in the faid county of Cumberland, and by reafon thereof Declaration the faid Thomas, during all the time aforefaid, had and of right for difturbought to have had, and ftill of right ought to have common of mon of pafpafture in and upon a certain wafte or common called Ouzeby ture. Fell, in the parish of Ouzeby aforefaid in the faid county of Cumberland, for all his commonable fheep-levant and couchant upon his faid meffuage and land with the appurtenances, every year, at all times of the year, as belonging and appertaining to his faid mefuage and land with the appurtenances; and whereas the faid Thomas, on the faid 1ft day of January in the year of our Lord 1768, and before, was, and from thence continually hitherto hath been and ftill is lawfully poffeffed of and in diverse (to wit) two hundred other acres of land with the appurtenances, lying and being in the parish of Ouzeby aforefaid in the faid county of Cumberland, and by reafon thereof he the faid Thomas, during all the time aforefaid, had and of right ought to have had, and still of right ought to have common of pafture in and upon the faid waite or common called Ouzeby Fell, for all his commonable fheep levant and couchant upon his faid laft mentioned land with the appurtenances, every year at all times of the year, as belonging and appertaining to his faid land with the appurtenances; yet the faid Jofeph well knowing the premises, but contriving and malicioufly intending to injure and prejudice the faid Thomas in this behalf, and to deprive him of the benefit and advantage of his faid common of pafture belonging to his faid tenements with the appurtenances refpectively as aforefaid, while he the faid Thomas was poffelled of his faid tenements with the appurtenances as aforefaid and had fuch right of common of paflure as aforefaid, (to wit) on the 1ft day of January in the year of our Lord 1768 aforefaid, and on diverfe other days and times between that day and the day of the fuing forth of the original writ of the faid Thomas at the parifh aforefaid, wrongfully and injuriously eat up, depaflured and fpoiled, the grafs then growing and being in the faid wafle or common with divers fheep and lambs, (to wit) two hundred Theep and two hundred lambs; whereby the faid Thomas could not for a long time, (to wit) during all the time laft aforelaid, have, ufe or enjoy his faid common of pafture in and upon the faid waste or common in fo ample and beneficial a manner as he ought to have had and enjoyed the fame; but during all that time was deprived of great part of the profit and benefit thereof,