[178 a] BIRD VS. CULMER. After a plea of plene administravit and replication of assets, the defendant may enter a cognovit actionem relicta verificatione, without confessing that he has goods sufficient, &c. Debt. Post. 199. 2 Keb. 606. p. 39. BIRD brought an action of debt against Culmer, an ex- Ro. 1. Abr.929. ecutor: upon pleniement administre, the plaintiff replied that he had assets; and the defendant, relicta verificatione, cognovit actionem, nec quin ipse detinet the debt, &c. And judgment was given pro querente, de bonis testatoris, which was entered Hill. 12 Rot. 2053. And it was moved by Richardson, that the confession should also contain, that he had goods sufficient, &c. and prayed, that that might be added to the entry; but the court refused to do so; for indeed, the confession naturally can extend no further than to the count which is of the debt, and not of the assets. Yet if the defendant will confess more, he may; and there are entries both ways. Note, that in this he had pleaded plene, &c., and the other had replied assets; and then he confesses, leaving (which may be taken disavowing) his plea of plene administravit. EARL VS. TUCK. There can be no composition without an acceptance. Obligation. make composi IN debt upon an obligation, with condition, that if the Condition to defendant should make composition with one Earle for tion for land. lands, &c. then he should pay the plaintiff thirty pounds, Dy. 1. a. the defendant pleads, that he made no composition. The plaintiff replies, that the said Earle did grant unto the defendant a rent charge of five marks in fee, in satisfaction of his title, &c. which the defendant did accept in satisfaction, &c. and so he made composition. The defendant, protestando that Earle non concessit, &c. pro placito that the defendant did not accept it in satisfaction, &c. And it was holden a good plea: for it is no composition without consent, which depends upon the accept [179] [179 a] ance, and the grant is at the most but argumentative. (1) (1) See I Str. 23, Hawkshaw v. Rawlings;-573, Paine v. Masters. S. P. Salk. 627, Young v. Ruddle. 3 East, 251, Drake v. Mitchell. 2 Johns. 342, Bird & al. v. Carital, where the same principle is recognized. Information, using a trade not having been an ap prentice. FLOOD VS. KNIGHT. ROBERT FLOOD informed against Richard Knight, for using a trade, not being apprentice. LOVEDEN'S CASE. Recusancy. Record certified. 1 Brnl. 68. COACHMAN VS. HALLEY. Upon an issue of nul tiel record, if the record agree with the declaration in the plaint, count and judgment, it is sufficient, though it differ in the continuances and process. And DEBT by Coachman against Halley, bailiff of Ashford, for an escape, and counted upon a recovery in the court of Ashford. The defendant pleaded nul tiel record. now in the record certified, there were divers differences in the continuances, and in the process; and yet, because the plaint, count and judgment certified agree with the declaration, judgment was given for the plaintiff. (1) (1) See Ante p. 52, Foster v. Jackson, n. (3) Prohibition. Count in a COPLEY VS. COLLINS. Time computed by kalendar months in prohibition. IN prohibition it was resolved that the six months for surmise by the proof of the surmise shall not be counted by twentyeight kalendar. SWAIN VS. HOLLAM. CASE. POINTS vs. GIBBONS. days to the month, but according to the kalendar. Cr. Jac. 167. (1) 321 [179 b] 2 R. 521. Lit. Rep. 19. 1 Le. (1) See ante 139, Norris v. Gawtry. n. Co. Lit. 135. a. b. Com. Dig. 31. Co. L. 135. Ann. B. b. 6 Co. 62. SWAIN US. HOLLAM. Quare as to writ of seisin in an action of waste. Waste. 203, 226. ACTION of waste, between Swain and Hollam, of lands Hutt. 8. a. Post. in com. Dorset. The parties were at issue upon a surrender made in Middlesex. The question was, how the writ of seisin shall be awarded, which must be per visum juratorum. (1) (1) See post 203. S. C. CASE. Bastardy tried per pais and not by the ordinary. Case. was by Bastardy shall be tried by jury in action upon the case. ACTION upon the case for calling one bastard; the defendant justified: that he was a bastard, and it awarded that this should be tried per pais, and not the ordinary. 4 Co. 17. a. 5 Co. 11. 7 Co. 71. a. 12 Co. 67. Co. L. 134 a. 1 Ro. 361. Palm. 301. POINTS vs. GIBBONS. An infant shall not have his age in a writ of partition. Partition. 138. grantable.in In a writ of partition upon the statute, by Points Age is not against Gibbons, being within age, the defendant was partition. 6 Co. denied his age. Co. L. 171. a. Cr. Jac. 111, 392. 4 b. [180] Trespass. London. 9 Co. 50 b. Cr. Car. 325. Hutt. 98. WHEATLEY vs. STONE. Either trespass vi et armis, or case, at the plaintiff's election, will lie for a rescue whereby the plaintiff lost his debt. WHEATLEY brought an action of trespass against Stone, in the king's bench, and declared that he levied a plaint of debt, in the counter of London, against one Warkins, and upon process he was arrested by one West, a serjeant, and that Stone vi et armis did rescue him, &c. whereby he lost his debt. Upon issue not guilty, and verdict for the plaintiff, judgment was given et quod defendens capiatur; whereupon error was now brought in the exchequer chamber, and the judgment was affirmed; for though the nature of the action, properly, is upon the case, as touching the plaintiff's loss or damage of debt, yet being done with force, and that force being done, though not to the plaintiff himself, to the serjeant, who was minister as well for him, as to the court, he may make his action vi et armis. And the like precedent was showed out of the same court, M. 34 and 35 Eliz. Rot. 169, between Margaret Astell, and Hugh Ridge: and another of the same M. 42, 43 Eliz. Rot. 468. between Andrew Pawling, and Robert Marriot; and on the other side, Pasch. 14 Jac. Rot. 564. London, Robert Spear brought an action upon the case, upon the like arrest and rescue, vi et armis expressly, and the judgment was given in misericordia. And that being also brought before us by error, this term we affirmed the judgment; and the like had been, Hill. 6. Jac. Rot. 722, in the king's bench, and affirmed upon a writ of error; for it was resolved that the case, though the rescue were laid vi et armis, would bear either trespass vi et armis, or trespass upon the case. But the plaintiff must beware that he follow his original, if it be by writ; for if that be vi et armis, or upon the case, the judgment must be suit able. And so must it be in a bill in the king's bench. But if the bill be trespass general, neither saying vi et armis, nor upon the case specially, he may use it to either. 1 [180 a] Cro. 325. (1) (1) An action of trespass on the case is the usual remedy for an injury of the above description. See Com. Dig. Rescous. Ď. 2. 1 Chitty 140. 2 Chit. 297. There are some cases, however, of which this may be one, in which the plaintiff may have his election, to bring either case or trespass. See 3 Bur. 1560 & 1561. Com. Dig. Trespass. A. 3. See also 4 Barn. & Cres. 316, Morton v. Hardern. SLOWLEY VS. Eveley. In a personal action against two, if they sever in their pleas, and the plaintiff, before judgment, become nonsuit against one, it is a discharge of the whole action. (1) But if there be but one defendant, and he pleads to part in issue, and demurs to the other part, the plaintiff may be nonsuit for one part and proceed for the other. Case. 439. m. Non Buls. 2. R. f. 66, 70. Cr. Car. 177. 2 Ro. 100, SLOWLEY brought an action of trespass against Eveley, 2 H. 42. 2 Cro. in the king's bench, for beating and imprisoning of him, suit, Br. 8. and had judgment; and upon a writ of error in the Rolls R. f. 264. exchequer chamber, the court, upon occasion of the 326. m. Ante. error assigned, took this difference; that where a man 239, 243. 2 Le. hath a personal action against two defendants, if they 134. C. Car. plead severally, and he be nonsuit against the one, be- 230. Nonsuit in fore he hath judgment against the other, that he shall be ab il fait quere barred against both; for it works in the nature of release of the whole. But where there is but one defendant, and he pleads to one part in issue, and to the other demurs, the plaintiff may be nonsuit for one point, and proceed for another. (1) (1) See ante p. 70 and note cont. a part. 2 R. 134. si ceo soit mis print. Mo. 624. Cr. Car. 243, 551. Noy. 42. In slander, the plaintiff may recover, if the words proved are the same in effect as those laid, though different in form. words not alto SIR JOHN SYDENHAM brought an action of the case Action for against Timothy May, clerk, in the king's bench, for these gether the words; If Sir John Sydenham might have his will, he 718. 1 Roll. 48, would kill all the true subjects in England, and the king same. 2 Ro. 49. 1 Roll. Rep 427. |