case grip against INGLEDEW Hilary term will roll on a declaration in debt on  bind by which the plaintiff agree to sell the defendant so many stack of wood  at a stack under a penalty of state that he have sell he stack and some odd  stack more c the plaintiff can only recover for the stack and must enter a to  let go back for the residue SC holt SC salk SC ld ray debt upon a deed of  article whereby the defendant have agree to pay the plaintiff thirtyfive pound  for every hundred stack of wood lie in such a wood and so for as many more as  shall be fall until Michaelmas follow and the plaintiff declare for so much  money as eight hundred stack will give at that rate and also for as much as  some odd stack more will give in proportion to the rate of thirtyfive pound  for the hundred to this declaration there be a demurrer because he declare for  more than the article entitle he to there be no agreement for anything under a  hundred stack so he demand more than his due upon his own show modern er p  Atcherly for the plaintiff take this difference where a man be not to recover  upon his deed or evidence but upon a matter of fact arise out of it and  inquirable by the jury which be to be the measure of damage then one need not  express keep up to the very tenor of his deed but be may enter a non pro for  what he demand too much and have judgement for what be just demand and he say  that upon this rule there have be declaration for less and more than be d tie  and the plaintiff have judgement in the case of Pemberton v Shelton cro James  a a action of debt be bring upon the statute of Edward c for not set forth  tithe and the declaration demand thirtythree pound as Triple damage the single  value be eleven pound and eightpence as he have aver and it be move in arrest  of judgement that three time eleven pound and eightpence do not make  thirtythree pound but thirtythree pound two shilling so be declare for less  than his demand and that he ought not to do without show modern how the rest  be pay but the court hold it well upon this difference that where the sum be  certain upon the very bind or contract without any matter dehors to help it  there one ought not to vary from his bind or write without show how the rest  come to be satisfy but when the certainty of the demand can appear but from  matter of fact dehors of the deed or contract which the deed or contract refer  to there if you demand more or less than be due it shall not vitiate he quote  the case of salmon v smith sand b the case of Thwaite v Ashfield Hilary term  will roll report comb SC Mod S c Mod c the case of barber v pomeroy style SC  roll Abr d and he produce the roll it be enter as of Hilary term car roll e of  the case of barber v pomeroy into court and the judgement appear to be enter  for the plaintiff and he quote the book of plea placita of Latium reused page  f and the case of Andrews v DelahayHob S c Brownl g which be debt for one  hundred pound on three several bind and it appear on the declaration that one  of the bind be not due and a verdict be give for the plaintiff and entire  damage and cost assess and the court hold that although he can not have  judgement in form as it be find yet that upon the release damage and cost  judgement be give for the two bind that be due on the other side a difference  be take between a entire demand and several demand join in one for in the  Iatter if the plaintiff fail in one of they and be right in the other be may  have judgement for what be well release what be ill Mod h but where the demand  be entire and the plaintiff in make it out show he have right but to part of  it there the judgement must be against he in the whole because he be wrong in  his demand cro James I there be some book which make a difference where a  action be ground upon a wrong and where upon a contract but the true reason of  that difference as be say be because contract general be entire for let it be  for wrong or on contract it be the same upon the difference of the entire and  divide demand and for this the case of Andrews v Delahay hob king be rely on  for they be modern several cause put in one action if a action be bring upon a  single bill Payable at several day and one of the day be not yet come the  plaintiff shall not have judgement for that part that be due but accord to the  notion on the other side he shall and the reason why it can be do be because  it be a entire demand and it be say that the difference take in Godfrey case    a will not affect this case that be a man bring a action for two thing and of  his own show it appear that be can have a action for one of they or a better  writ there the writ shall be well for that part for which it be good and the  case of Pemberton v Shelton cro James b be not like this for there the  defendant sever it by his plea for the jury may apportion it or the defendant  can do it by his plea but he himself can do it by show he have no right to  part of what be demand and the judgement here will not be final but he may  have a new action for what be due the reason of this modern er p will bold in  a real action for if a assize be bring of a manor the defendant can abridge  this by claim less or show title to less than a manor for he must recover the  whole manor or nothing viner Abr c but if it be for so many acre there he may  abridge and recover part because then the demand be several of several acre  but where he demand a entire thing he can abridge his demand but if he join  several cause of action in one there though he fail in make title to part he  shall recover the rest and in the case of barber v pomeroy style SC roll Abr d  Germin justice be strong against roll chief justice holt chief justice this be  no entire demand any more than every action of debt be let it consist of ever  so many differ particular as the case of the three bind before put suppose  each bind be for twenty pound the praecipe be of sixty pound and that be all  one praecipe and yet when he come to declare he declare upon three bind each  of twenty pound that make up the sum in the praecipe notwithstanding if it  appear that one of the bind be not yet due then the court ex duty shall abate  the suit as to that bind and give judgement for the rest so in this action the  demand be entire but it be not so in the original foundation of it for that be  several and this be the difference if there be a certain state sum specify in  the deed itself that shall not be abridge by any remittitur or release of the  plaintiff if he declare upon that deed as if a man bring a action of debt upon  a bind of thirty pound and declare upon a bind of twenty pound this will be  bad modern because he have bring his action for more than be due and this rest  upon the deed only and the sum in it do not amount to his demand but if a  action be bring upon a deed which refer to a matter of fact that make the duty  more or less if the fact which be refer to will entitle he to a less sum only  and he demand more than the fact which the deed refer to upon computation will  entitle he to there let he remit so much of his demand as the fact do not make  out and it will be well and he shall have judgement for the rest for that fact  which be not make out be not contradict by the deed and he say that the case  of barber v pomeroy be a authority in point it be debt for rend and upon  computation it appeal that be demand more than by the matter of fact out of  the deed appear to be due to he and there he release what be demand too much  and take judgement for the rest and no diversity between a demurrer and a  verdict for that case be upon a verdict and this upon demurrer and he say the  case of Thwaite v Ashfield Mod a before quote have be adjudge upon the  authority of the case of barber v pomeroy Powell justice send for the  plaintiff must make his demand entire though he make his title of several  particular as some by one bind some another yet be in the nature of several  demand and make up of several particular he may recover on the one and not on  the other and the case of barber v pomeroy be exact this case in its reason he  say this be not a demand of one entire sum mention in the specialty but of  that which may be more or less by matter of fact out of it as a indenture of  lease refer to day of payment and one demand more rend than there be day of  payment pass so here he demand more money than there be hundred of stack and  the one case be on verdict and the other upon demurrer make no difference  Godfrey case   b be upon demurrer and the question there be whether the writ  shall abate for part and fail for part or fail ill all and the same question  be of the count here powis justice be of the same opinion and he quote the  case of Howell v SambackHob c and as to the objection which be make that thus  the defendant may be ensnare into a demurrer when he may have a good plea to  bar the plaintiff he say that if he have such a plea he ought to plead it  modern gold justice conceive a difference between a demurrer and a verdict in  this case and say that if a assize be for four pound rend one can not abridge  that modern er p demand and so he say it be in real and personal action if a  action of debt be bring for rend part seek and part charge the writ abate in  all yearbook Henry pl dyer b Yelv but see now Geo e d holt chief justice as to  the case of assize for four pound and show only seize of three pound that be  quite another thing for then he bring a assize of a rend of which he be not at  all seize and he say this be a debt indeed arise by deed but not a state debt  in the deed itself and he say the case be no more than a man avow for a  quarter be rend more than be due and a demurrer thereupon he shall have a  return irreplevisable for what be due so of rend and nomin pnae and title only  for rend and by three judge judgement be give for the plaintiff he release the  overplus note here it be agree by the court that so much a hundred and so much  a hundred by retail be the same thing and that here either party may tell they  out and that if he that have tell they have not tell they right then the other  may show that and join issue upon it and it be agree here that the property of  every hundred that be cut at the time of the agreement do vest in the  plaintiff and so of the rest as they be cut down if the sale have be of five  hundred stack out of seven hundred then the buyer may choose but if it be five  hundred to be set out by seller the settingout will be a condition precedent