case river against OODSKIRT Trinity term Elizabeth roll trover lie for in  money in a purse ut de good not common with others though the conversion he  allege in relardationem exec utionis will and the jury may find damage to the  sum lie and cost hesides ante post I sand error of a judgement in the common  plea in a action sur trover the plaintiff declare queen d citn possessionatus  Juit de in quddam crumend existent ut de good nest pro priis and lose they and  the defendant find and convert they to his own use in retardationem  performance will to the plaintiff damage of the defendant plead not guilty and  find for the plaintiff and the jury assess for damage and for cost S and the  plaintiff have judgement accord and thereupon error be bring the first error  assign be because he allege not that he be possess of a purse but only of in  the purse and the conversion be allege of both and damage give entire for both  say non allocatur for it shall he necessary intend and so be Henry in detinue  second because it be allege that he be possess of ut de bom spro part and that  the defendant convert they in retardationem performance testanienti which be  contrarient c the good be his proper good that they shall he convert in  retardationem c and for this repugnancy it be ill and of that opinion be  Fenner justice and in proof thereof rely on Edward pl and sale case Elizabeth  but all the other justice contra for the executor be possess of the testator  good as de good and so may declare and yet the conversions? s Proprtm of they  be in retardationem performance will and this exception be take in though  countess of Butlands case in this court and yet hold to be good for these word  be but surplusage which do not abate the count croak Elizabeth er p the three  error assign be because he count but of damage and the damage and cost assign  by the jury exceed the sum whbre of he declare which ought not to he and  therefore it be erroneous and to that purpose Henry pl Henry pl and Henry pl  be cite say non allocantur for the damage ought not to he assess more than  whereof the plaintiff himself have count but because the suit may for a lopg  while have depend they may he further assess and increase for non constat at  the time of the declaration what the cost of suit will amount to but if the  damage and cost have be entire assess at more than be mention in the  declaration it have be ill for non constat but that the damage exceed the  damage mention in the declaration a wherefore if be adjudge accord and the  first judgement affirm