Lord 1769; to wit, at Thetford in the county of Norfolk aforefaid, bargained with the faid Charles to buy of him the faid Charles a certain mare of the faid Charles; and the faid Charles, then and there well knowing the faid mare to be lame in the coffin joint of her off or right fore-leg, and to be unfound, by then and there warranting the faid mare to be found, he the faid Charles then and there falfly and fraudulently fold the faid mare to the faid Henry for a certain large fum of money, to wit, the fum of 21. then and there paid by the faid Henry to the faid Charles; which faid mare was then and there, at the time of the faid warranty and fale thereof, lame and unfound in the faid coffin joint of her faid off or right fore-leg, and hath always from thence hitherto there fo remained and continued: and fo the faid Henry faith, that the faid Charles, on the day and year aforefaid, to wit, at Thetford aforefaid, in the county aforefaid, falfly and fraudulently deceived him the faid Henry. And whereas 2d Count. the faid Henry afterwards, to wit, on the day and year aforefaid, at Thetford aforefaid, in the county of Norfolk aforefaid, bargained with the faid Charles to buy of him the faid Charles a certain other mare of the faid Charles; and the faid Charles then and there, well knowing the faid laft-mentioned mare to be lame in the pastern of her off or right fore-foot, and to be unfound, by then and there warranting the faid laft-mentioned mare to be found, then and there falfly and fraudulently fold' the faid laftmentioned mare to the faid Henry, for a certain other large fum of money, to wit, the fum of other 21. then and there paid by the said Henry to the faid Charles; which faid lastmentioned mare was then and there, at the time of the faid warranty and fale thereof, lame and unfound in the faid paftern of her off or right fore-foot, and hath always from thence hitherto there fo remained and continued; and fo the faid Henry faith, that the faid Charles, on the day and year aforefaid, at Thetford aforefaid, in the county aforefaid, falfly and fraudulently deceived him the faid Henry. And whereas the faid Henry 3d Count. afterwards, to wit, on the day and year aforefaid, at Thetford aforefaid, in the county aforefaid, bargained with the faid Charles to buy of him the faid Charles a certain other mare of the faid Charles; and the faid Charles then and there, well knowing the faid laft-mentioned mare to be lame in her off or right fore-leg, and to be unfound, by then and there warranting the faid laftmentioned mare to be found in all refpects, then and there falfly and fraudulently fold the faid laft-mentioned mare to the faid Henry, for a certain other large fum of money, to wit, the fum of other 217. then and there paid by the faid Henry to the faid Charles; which faid laft-mentioned mare was then and there, at the time of the faid warranty and fale thereof, lame and unfound in her faid off or right fore-leg, and always hath from thence hitherto

2

4th Count.

This is a

miftake in

tiff's name.

Sth Count.

hitherto there fo remained and continued; and fo the faid Henry faith, that the faid Charles, on the day and year aforefaid, at Thetford aforefaid, in the county aforefaid, falfly and fraudulently deceived the faid Henry. And whereas the faid Henry afterwards, to wit, on the day and year aforefaid, at Thetford aforefaid, bargained with the faid Charles to buy of him the faid Charles a certain other mare of the faid Charles; and the faid Charles then and there, well knowing the faid laft-mentioned mare to be lame in her off or right fore-foot, and to be unfound, by then and there warranting the faid laft-mentioned mare to be found in all respects, then and there falfly and fraudulently fold the said laftmentioned mare to the faid* Charles, for a certain other large fame of money, to wit, the fum of other 21. then and there putting the defendant's paid by the faid Henry to the faid Charles, which faid last-menname instead tioned mare was then and there, at the time of the faid warranty of the plain- and fale thereof, lame and unfound in her faid off or right forefoot, and hath always from thence hitherto there fo remained and continued; and fo the faid Henry faith, that the faid Charles, on the day and year aforefaid, at Thetford aforefaid, in the county aforefaid, falfly and fraudulently deceived him the faid Henry. And whereas the faid Henry afterwards, to wit, on the day and year aforefaid, at Thetford aforefaid, in the county aforefaid, bargained with the faid Charles to buy of him the faid Charles a certain other mare of the faid Charles; and the faid Charles then and there, well knowing the faid laft-mentioned mare to be lame in her off or right fhoulder, and to be unfound, by then and there warranting the said laft-mentioned mare to be found in all refpects, then and there falfly and fraudulently fold the last-mentioned mare to the said + Charles, for a certain other large fum of money, to wit, the fum of other 217. then and there ting the de- paid by the faid Henry to the faid Charles, which faid laft-mentioned mare was then and there, at the time of the faid warranty and fale thereof, lame and unfound in her faid off or right tiff's name. fhoulder, and hath always from thence hitherto there fo remained and continued; and fo the faid Henry faith, that the faid Charles, on the day and year aforefaid, at Thetford aforefaid, falfly and fraudulently deceived him the faid Henry. And whereas the faid Henry afterwards, to wit, on the day and year aforefaid, at Thetford aforefaid, in the county aforefaid, bargained with the faid Charles to buy of him the faid Charles a certain other mare of the faid Charles; and the faid Charles then and there, well knowing the faid laft-mentioned mare to be lame in her off or right hind-leg, and to be unfound, by then and there warranting the faid laft-mentioned mare to be found, he the faid Charles then and there falfly and fraudulently fold the faid last-mentioned mare to the faid Henry, for a certain other large fum of money, to wit, the fum of other 21, then and there paid by the faid

+ This is another mif

take in put

fendant's

name instead

of the plain

6th Couut.

Henry

Henry to the faid Charles, which faid laft-mentioned mare was then and there, at the time of the faid warranty and fale thereof, lame and unfound in her faid off or right hind-leg, and hath always from thence hitherto there fo remained and continued; and fo the faid Henry faith, that the faid Charles, on the day and year aforefaid, to wit, at Thetford aforefaid, in the county aforefaid, falfly and fraudulently deceived him the faid Henry. And whereas the faid Henry afterwards, to wit, on the fame 7th Count. day and year, at Thetford aforefaid, bargained with the faid Charles to buy of the faid Charles a certain other mare as and for a mare found in all refpects, at and for a certain large price or fum of money, to wit, the fum of 21. and the faid Charles then and there, knowing the faid laft-mentioned mare to be lame and unfound, then and there fold the faid last-mentioned mare to the faid Henry, as and for a mare found in all respects, for a certain large fum of money, to wit, the fum of 21. then and there paid by the faid Henry to the faid Charles for the fame; which faid laft-mentioned mare was then and there, at the faid time of the faid fale thereof, lame and unfound, and of little or no value, and hath always from thence hitherto there fo remained and continued, to wit, at Thetford aforefaid; and so the faid Henry faith, that the faid Charles, on the day and year aforefaid, at Thetford aforefaid, falfly and fraudulently deceived him the faid Henry: wherefore the faid Henry faith he is injured, and hath sustained damage to the value of 60l. and therefore he brings his fuit, &c.

And the faid Charles Simonds, by Charles Stainford the younger Plea, Not his attorney, comes and defends the wrong and injury, when, guilty. &c. and fays, that he is not guilty of the premises above laid to his charge, in manner and form as the faid Henry Richards hath above thereof complained against him; and of this he puts himfelf upon the country; and the faid Henry Richards doth fo likewife: therefore the fheriff is commanded that he caufe to come here, from the day of the Holy Trinity, in three weeks, twelve, &c. by whom, &c. and who neither, &c. to recognize, &c. because as well, &c.

the defend

This caufe was tried at the laft affizes for the county of Nor. After a ver folk, before the Lord Chief Juftice Wilmot, when a verdict was dict, where found for the plaintiff, with 3. damages, which was taken ant's name generally upon all the counts in the declaration; whereupon it is put in the was now moved by Serjeants Whitaker and Forfter, on behalf of count instead the defendant, that judgment might be arrested, they objecting tiff's name, that the fourth and fifth counts were bad, because it was alledged the court will in both those counts, that the faid (defendant) Charles fold the reject the demare to the faid (defendant) Charles; but this being after a name as being verdict furplufage.

of the plain

fendant's

Com. Rep. 557. S. P.

4 Bur. Rep. 2506.

verdict, the court rejected the words to the faid Charles, in both the counts, as furplufage; and held them both to be good and fenfible without thofe words, and refused even to make a rule to fhew caufe. So the plaintiff had his judgment.

See Skin. 591,

1 Rol. Abr. 199.

1 Sid. 135. 2 Barnes 4. pl. 20. 203, pl. 9. And fee the ftat. 16 & 17 Car. 2. cap. 8. whereby it is enacted, that judgment fhall not be stayed after a verdict, by reafon of miftaking the name of the plaintiff or defendant, in the pleading, &c.

On Wednesday 17 January 1770, Charles Lord Camden, lord high chancellor of Great Britain, refigned the great feal, which was the fame day delivered to the honourable Charles Yorke, Efq. one of his Majefty's learned counfel, fecond fon to the late lord chancellor Hardwicke.

HILARY TERM

10 GEO. III. 1770.

3 Bur. Rep. 2506.

N Saturday the 20th day of January 1770, the effoign day of this term, the right honourable Charles Yorke, Efq. lord high chancellor of Great Britain, died fuddenly at his houfe in Bloomsbury Square, about five o'clock in the afternoon; he had his fiat to be created a peer, by the title of Lord Morden, and his patent was made out, but he died before it could pafs under the great feal. On Sunday, January 21, 1770, the great feal was given by commiffion to the honourable Sir Sidney Stafford Smythe, Knt. a baron of the Exchequer; the honourable Henry Bathurst, Efq. a juftice of the Common Bench, and the honourable Sir Richard Afton, Knt. a juftice of the King's Bench; who took their feats in the court of Chancery on Tuesday the 23d of January, the first day of this term,

Swain verf. Hall. C. B.

of evidence

COVENANT upon a leafe made by plaintiff to defendant A new trial of a house called the Oxford Arms, for the term of twentywas refufed though the four years, in confideration of 670l. in hand paid by defendant Ch. Justice to plaintiff, and of the yearly rent of 142/. wherein the de- reported that fendant (amongst other things) covenanted to lay out 400l. in the strength repairing the premises, and alfo covenanted to keep and leave was against the fame in good and tenantable repair, at the end of the term. the verdict. Whereupon the plaintiff affigned two breaches; 1ft, That the defendant did not lay out 400l. in repairing the premifes; 2d, That the defendant did not leave the fame in good and tenantable repair, at the end of the term. The defendant pleaded that he did lay out 400/. in repairing the premises, and thereupon issue was joined; he alfo pleaded that he did leave the premises in good and tenantable repair, at the end of the term, and thereupon iffue was alfo joined: upon the trial before Lord Chief Justice Wilmot upon the firft iffue it was clearly proved, on the behalf of the defendant, that he had laid out 400l. in repairing the premifes, fo that the counfel for the plaintiff wholly gave up that iffue; as to the fecond iffue, it feems there was a contrariety of evidence; and the Chief Juftice in fumming it up to the jury, was pleafed to intimate to them, that he thought the weight of evidence was with the plaintiff; but they found a verdict for the defendant upon both iffues.

Serjeants Davy and Burland for the plaintiff moved for a new trial, upon this ground, viz. that as to the fecond iffue, the verdict was against evidence; for that in fact there was no direct or politive evidence given on the fide of the defendant, that he left the premifes in good and tenantable repair at the end of the term, and they appealed to the Lord Chief Juftice's notes; whereupon the court made a rule to fhew cause why there should not be a new trial.

Upon fhewing caufe, the Chief Juftice made his report; after ftating the two iffues as above, he laid the first entirely out of the cafe, as being clearly with the defendant. As to the fecond iffue, he faid, the plaintiff called and examined three

witneffes.

Mr. Flight, the firft witness, faid he was a furveyor, that in April laft, a day or two after old Lady-day 1769, when the leafe expired, he furveyed the house and premifes in queftion; that he found the roof much out of repair; that it rained in; that there were ten loads of rubbish in the garrets, that there

was