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[235 b]

COUNTESS OF SHREWSBURY'S CASE.

A refusal to answer interrogatories at the council table in questions of state, punished in star chamber.

[236]

TRASKE'S CASE.

Star chamber may punish factions and conventicles, though upon grounds of heresy and schism, which are of ecclesiastical jurisdiction.

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COUNTESS OF EXETER US. LADY ROSSE.

No one is bound by an examination in court, till he has advisedly read, perused, and corrected it.

In the star chamber, in the great cause between the Countess of Exeter, the Lady Rosse and others, because the Lady Rosse and one Sarah Swarton, her maid, had charged the Countess of Exeter, that she had delivered unto the said Lady Rosse, at Wimbleton, at the Earl's house, in a certain chamber there, a paper written and signed by herself, (as she said,) containing a confession of certain foul faults, and a submission thereupon, which was showed unto the king, his majesty commanded serjeant Crew, and the serjeant Moore, of counsel of either side, to go to Wimbleton, and there, in the same chamber, to examine the Lady Rosse and Swarton, upon all such things as, upon their view of the place, they might judge likely to discover the truth or falshood of the same matter; which they did accordingly, without oath. Now the same persons being afterward examined in court as defendants, upon all things that the plaintiffs listed; they did further examine them upon interrogatories, whether that declaration which they had made at Wimbleton before the two serjeants were true or not; but they did not show them that declaration now; whereupon they answered that they were true.

Now upon motion in open court, it was resolved that these examinations were not well taken; for no man is

bound by an examination in court, till first he have ad- [236 a] visedly read, perused, and corrected it, as he sees cause, and then finally concluded it. Therefore, this being first taken without oath, there was no reason to bind them to it by a new oath by memory without review, and therefore by order it was suppressed. Nevertheless, because it was like that the said examination might serve the better to discover truth, it was ordered that the same their declarations should be showed them, and they reexamined upon them. And so they were.

STANHOPE VS. THE BISHOP OF LINCOLN, &c.

[237]

Of advowsons, dissolution of monasteries, &c.

PETER VS. STAFFORD.

[244] False impris.

Where the issue is of matters of record mixed with matters of fact, the trial must Mesme Ca. be per pais.

Hut. 20. 2 Ro. 576. Bar. Br.

92.

GEORGE PETER, attorney, brought an action of false Record or not. imprisonment against Sir John Stafford and others, for imprisoning him at Bristol. The defendants plead that time out of mind there hath been a court of record holden at Bristol, every Monday, &c. before the mayor, &c. according to the custom and liberties of the said city, and that according to the said custom, Sir John Stafford levied a plaint there against the plaintiff; whereupon the other defendants, being serjeants, were commanded to arrest him, which they did, &c. The plaintiff took issue, that Sir John Stafford did levy no such plaint against him, prout; and it was found for the plaintiff. And it was said in arrest of judgment, that it ought to have been tried by the record. But the court resolved that it was well tried; S. P. Sayer 208, 301. for the matter of record was mixt with the matter of fact, that is, whether the court were kept, and the plaint levied, according to the custom and liberties of the city; which is a matter of fact triable per pais. Also, the levying of a

[244 a] plaint is like the suing out of an original, which is not of record till it be returned in the court.

1 Le. 229.

2 Ro. 576. No.

29. 5 Co. 47. b.

And so the plaintiff had judgment in this case. (1)

(1) Vide 1 Pick. 367, Brier v. Woodbury, acc. 2 Pick. 206, Parks v. Hall.

Debt.

Debt against

divers defend

wageth law. Mesme Ca. Hut. 26. Brnl. 53. 3 Cr. 345, 646.

[245]

ESSINGTON vs. BOURCHER.

In debt against several defendants, one alone may wage his law.

Several defendants may not sever in dilatory pleas, but in bars they may. (1)

ESSINGTON against Bourcher, knight, Turner and others, ants, one alone brought an action of debt of one thousand and eight hundred pounds upon an insimul computaverunt, and an arrear of eight hundred pounds, whereof all the rest paid. Bourcher was outlawed: Turner and the rest appeared by one supersedeas; Turner alone tendered his law, that he with the rest did not owe, &c. And the others not outlawed did plead to the country. And it was objected against Turner, that he was not to be admitted to his law alone, because they were all charged as one defendant, being for a joint debt, and so they must answer together. But it was answered, that this was unreasonable; for so by joining with me as joint defendants, I must be subject to his plea, though he would confess the action. Now though the defendants shall not sever in dilatories, yet in bars they may.

And after divers motions, there were precedents produced, one in Tr. 12 Jac. Rot. 2226. and another Hill. 13 Jac. Rot. 541, and a third in Hill. 41 Eliz. Rot. 445, where one of the defendants alone waged his law, that he and the rest did not owe, and the nihil dicunt et parcatur judicium, till the law made or failed, and after the law Co. L. 125. b. being made, judgment against the plaintiff. And so in this case, Turner was received to his law, and the plaintiff nonsuit.

(1) This dictum seems not to be correct. One defendant may plead one plea in abatement, and the other another; or one may plead in abatement, and the other in bar. Com. Dig. Abatement (I. 6.) (I. 7.) Post, Cuppledick v. Terwhit. p. 249.

PIE VS. WESTLEY. BICKFORD vs. BICKFORD.

PIE VS. WESTLEY.

A common informer must show correctly, in his information, how the penalty is to be appropriated.

397

Information.

PIE did inform against Westley, innholder, for uttering of flesh, thirty days forbidden, unde petit advisamentum cur. et quod forisfaciat five pounds for every offence, unde ipse petit medietatem. Upon not guilty, it was found against the defendant; and now it was said in arrest of judgment, that there was a statute, scil. that gives five pounds for an offence, but then it divides it, one third part to the king, another to the informer, and the third to the poor; et curia advisare. But I am of opinion that Information the information is insufficient; for an information hath not only somewhat in it of an indictment to lay down an offence, but hath also the nature of an action, for the party to demand his due, as in another action, which is his office to demand certain, and not the court's to assign; therefore if he make no demand, or demand that appears not to be due, his information is insufficient. (1) (1) See 4 Mass. 465, Commonwealth v. Messenger. acc.

must conclude

with the de

mand of the informer.

BICKFORD vs. BICKFORD.

Case.

Where the action is falsified by the plaintiff's own showing, judgment will be arrested.

BICKFORD, an administrator, brought an action of debt against Bickford; and after issue found for the plaintiff, it was spoke by Chibborn, in arrest, that the action was brought the second of April, 16 Jac., and the administration was laid in the declaration granted the eleventh of May after. So the judgment was stayed. (1)

(1) Vide ante 189, Harbin v. Green.

Action falsified of the plaintiff's showing.

[245 b]

Action against an hostler, not laying commune hospitium.

MASON VS. GRAFTON.

A declaration for goods embezzled in the defendant's inn, is good, without averring it to be a common inn.

MASON brought an action of the case against Grafton, for goods embezzled out of his inn; and found for the plaintiff. In arrest it was excepted that he had not utra. Palm. 523. alleged to be in communi hospitio. (Quære if both in

Dyer 266. b.

8 Co. 32. a.

the writ and declaration.) Yet because the declaration laid the custom for common inns, and then laid that he was hospitatus in hospitio, the plaintiff had judgment. For it shall be intended (and it is) domus, non hospitium, if it be not commune. (1)

(1) To maintain an action against an innkeeper for goods lost, &c. it must be a common inn, and the owner must be a passenger, and not merely a neighbour. 8 Co. 32, Calye's case.

[246] Trespass.

Amendment

de placito deb. for trespass. Winch. 10.

1 Roll. 202,

HARRIS VS. AP-JOHN.

Writ of ven. fac. and hab. corp. may be amended after verdict.

TRESPASS by Harris against Ap-John; after verdict it was found that the ven. fac. and habeas corpus was de placito debiti. And the court amended it. 1 Cro. Car.

204. 2 Cr. 528. 275, 528, like case.

3 Cr. 258,

622.

Obligation.
Delivered as a
scrole to the
party. 2 Ro. 26.
Co. Lit. 36. a.

Co. 9. R. 137. a.
Thorogood's
Ca. Ro. 2. Ab.

26, 27. Cr. Jac.
85. Blunden

HOLFORD vs. Parker.

An obligation cannot be delivered to the obligee himself as an escrow.

DEBT per Holford versus Parker, sur obligation. The defendant pleaded, that he delivered the writings to the plaintiff himself, as a scrole, upon condition, &c. Et Ca. Moor, 642. issint nient son fait; and demurred. Judgment against the defendant, without arguments. 3 Cro. 520, like judgment. (1)

and Wood's

Williams and

Green's Ca. Cr. El. 884. the same Ca. Cr. El. 835. Cont. Noy. 6. Dy. 34. 3 Cr. 520, 884.

1 Brnl. 156.

(1) That the delivery of a deed should operate as an escrow, it is necessary that it should be made to a stranger and not to the party; for if one make a deed and deliver it to the party to whom it is made, as an

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