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But note, that afterwards this term Bradshaw the de- [116 b] fendant was brought again to the bar by another habeas corpus, and the plaintiff prayed him in execution; which was granted, because the day of the return of the writ of error was passed, and he had not caused the record to be Dy. 245. a. removed, and therefore this court was reenabled to award execution.

WALTER US. PIGGOT.

In debt on an obligation, the plaintiff declares for septingent. et quinquagint. libris, and the obligation is for septuagint, et quinquagint. libris ; held that the obligation is good, and the variance not material.

Obligation.
London.

2 Cro. 147, 190.

R. 147. 18, 19, 20, 75.

3 Cr. 896. Ant.

3 Cro. 896.

9 H. 6. 7. Moor f. 645.

10 Co. 133. a.

Yel. 96. Styl.

257. Post 119.

WILLIAM WALTER brought an action of debt against Septuagint for Thomas Piggot, and declared, that the defendant stood septingent. bound to him in septingent. et quinquagint. libris, and produced his writing obligatory, upon oyer whereof the words were septuagint. et quinquagint. libris. Whereupon the defendant pleaded the variance, and thereupon a demurrer, and adjudged for the plaintiff, that it was no cause to abate the writ; and the defendant put to further answer, who pleaded non est factum. And the jury found, that the aforesaid writing obligatory de summa septuagint. et quinquaginta librarum per quod prædictus Willielmus Walter per bre. suum exegit de præfat. Tho. Piggot infra-script. septingent. et quinquaginta libras was sealed and delivered by Piggot to Walter as his deed; sed utrum super tota materia &c. And thereupon the court adjudged the plaintiff should recover the seven hundred and fifty pounds demanded, and damages and costs. Note, there was nothing either pleaded by the party, or found by the jury, that it was meant for seven hundred pounds. Upon this judgment a writ of error was brought, but it appears not what was done upon it.

(1) Vide ante pp. 18, 19, 20 and 75.

[116 c]

1 Brnl. 235.

[117]

BLACKFORD vs. ALKIN.

A traverse, that seems to contain more than the plea, may be restrained and applied to the plea by a prædictus.

THOMAS BLACKFORD brought an action of trespass against John Alkin, for taking his horse. The defendant pleaded that one John Holt was seized in fee, and so seized, granted a rent of 41. per annum to John Alkin, with clause of distress, and conveys the rent to the defendant; and for 40s. he destrained.

The plaintiff replied, that long before the grant supposed, William Holt was seized, and had issue John Holt the elder, and John Holt the younger; that he devised his land to his said two sons in tail, and died; that John the eldest died without issue, and that John the younger had issue A. and died; and that A. gave license to the plaintiff to put in his horse, absque hoc, quod præd. Johannes Holt pater fuit seisitus in domino suo ut de feodo, prout. Sur que, issue, and found for the plaintiff. And it was said in arrest of judgment, that there was no issue; for it was not pleaded, that John Holt, pater, was seized in fee as the traverse was. But yet judgment was given for the plaintiff; for though pater be added, yet præd. Johannes Holt, prout the defendant alleged, binds it to that person that the defendant had pleaded; and that pater is but John, and can do no hurt, especially since it may stand true that he was pater; as if it had been traversed absque hoc quod præd. Johannes Holt generosus, &c. otherwise it had been absque hoc. ad præd. Williel589. Yel. 65. mus Holt, which could not be taken for the same person; yet perhaps that might have been amended, though hardly. (1)

2 Cro. 67, 502,

1 Cro. 80, 93. 3 Cr. 455.

(1) See post 330, Wilson v. Stubbs, and note.

[117 a]

Box vs. BARNABY.

The words 'Thou art a common maintainer of suits,' spoken of an attorney, are not actionable: secus of the words, 'thou art a champertor.'

In an action of slander for speaking English words, it is not necessary to aver the sense, or that the hearers understood them.

called a cham

43. Post. 268.

1 Brnl. 15.

Champerty, B. 3. Ant. 62, 115.

low's Reports,

case adjudged as here. Moor

867.

Box, an attorney, brought an action upon the case Attorney is against Barnaby for these words; Thou art a common pertor. 1 Roll. maintainer of suits, and a champertor, and I will have thee thrown over the bar the next term.' And after a verdict for the plaintiff, upon a motion in arrest of judgment, the court gave judgment for the plaintiff only upon the 15. the same word champertor: for there is maintenance lawful and unlawful; and where the word is indifferent it shall be taken in mitiorem partem. Now an attorney may and ought, by his office, to maintain his client's causes. And yet in an action of maintenance he cannot plead not guilty, but must justify. And an attorney may well be said a common maintainer, because he is common to as many as will retain him. (1) And the words of throwing over the bar are utterly of an uncertain sense; but indeed it is a slan- 1 Cro. 192, 229. der to an attorney, and that in his vocation of attorney, to be a champertor, for that is not only beyond, but against, his office. And therefore 20 or 21 E. 1. Rastal. Tit. Champerty, 3, that pleaders and attorneys take pleas to champerty. And I hold that if an attorney follow a cause, to be paid in gross when it is recovered, that is champerty.

268.

But when it is objected that the word champertor was Post. 126, 191, a word of art, not to be understood by the vulgar, and so no damageable slander, no more than words in Latin or Welsh, except you say, that the hearers understood it; it was resolved, that this being English, and of a certain and single sense, the court cannot doubt but it was understood.

(1) See ante p. 6, Miles v. Jacob, and n. (1.)

[117 6]

Ant. 112.

NAPPER VS. JASPER & al.

A verdict taken upon an issue literally inconsistent and absurd, but substantially right, is good.

In an action of trespass, brought by Robert Napper against Charles Jasper and Robert George, issue was taken, that Richard Johnson, prebendary of the prebend of Preston in the church of Sarum, and all his predecessors, prebendaries, &c. had used, time out of mind, to keep a shepherd of certain sheep of theirs, following the same sheep for the better keeping of them, feeding together in a certain pasture, from the sheep of Thomas Earl of Suffolk, in the same place, and the issue was found accordingly. And it was moved that this was a void verdict; for law and sense. the prescription was senseless and could not stand, that the sheep could be kept time out of mind from the sheep of the Earl of Suffolk, being but one man's life. But yet judgment was given, according to the verdict, for the plaintiff; for the substance of the issue was the keeping of the sheep of the prebendary feeding together, and the other part was but a consequent of it, that thereby they were kept from the sheep of the earl. (1)

Verdict seeming against

2 Cr. 67.

(1) Vide ante 52, Foster v. Jackson, n. (4.) 112b, Tasker v. Salter. 113 a, Stukely v. Underhill.

[118] Quare impedit.

V. case.

Mo. 866. Hutt. 57.

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In a quare imped. between Brickhead, plaintiff, and the archbishop of York and Coke defendant, for the vicarage of Leeds, after demurrer joined, and one or two arguments at the bar, it was found in the writ, instead of vicaAmending an riam, vaccariam. And so it was prayed to be amended, whereupon the cursitor was called into the court.

original. 8 Co. 159. Cr. Car.

184. 3 Cr. 119,

And 74. Post. 128, because it appeared to the court by his book, that his in644. 1 And. 24. structions were vicariam, and he deposed that the titling Noy. 73. was delivered unto him accordingly, he was ordered to amend the writ in open court, and so did.

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203. Yelv. 95,

146. Ante 13,

Yel. 96. 10 Co.

133. a. Mo.

645.

THOMAS PARRY brought an action of debt against Wil- 2 Cro. 146, 147, liam Dale, for five hundred pounds, upon an obligation 105. 2 Roll. dated the sixteenth of September, An. 41 Eliz. Dale the 19. Styl. 257. defendant demands oyer of the obligation, and it was read in these words; noverint universi per præsentes, nos Richardum Oldsworsth et Willielmum Dale, cives et groceros, London, teneri et firmiter obligari Thoma Parry, generoso, in quinquegintis libris legalis moneta Angliæ solvend. ; and the defendant, after oyer of the condition, pleaded an insufficient bar, whereupon Parry demurred; and yet judgment was against him, the whole court conceiving that the bond was naught, because quinquegintis was no Latin word at all. But the causes coming by writ of error be- Obligation; fore the judges in the Exchequer Chamber, 11 Jac. after no Latin in the many debates and precedents seen and perused, Ter. Pasch. 14 Jac. the cause was ended by the mediation of the judges, and three hundred pounds given by order to Parry, and so general releases from each to other. For myself and most of the judges were of opinion, that the bond was good for five hundred pounds. But the chief baron stuck, being one of them that gave the judgment in the king's bench. (1)

(1) Vide ante p. 18, 19, 20, 116, &c.

false Latin or

sums.

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