because of a mistryal for taking away divers parcels of Ribbin from him The Defendants pleaded by way of Iustification the Custom of London against Hawkers viz. to take away wares from any that sold them up and down the Streets The Plaintiff replyed that there was no such custom and issue was taken upon it thereupon the custom was certifyed by the mouth of the Recorder a tryal upon it in London a verdict for the Defendants The Plaintiff moved in arrest of Iudgement that it was a mis-tryal because it was before them that were interesâ—ed in the cause and therefore desired there might be another tryal Roll Iustice said it is against natural equity for one to be Iudge in his own cause Tryal although the other party admit it to be so and therefore it is a mistryall though it were at the request of the Plaintiff because it is against natural reason 8 E. 3. f. 69. 5 Ed. 3.8 9 H. 7. f. 21. Hil. 38 Eliz. in the Exchequer The prayer of the Plaintiff cannot help the tryal for the consent of both partyes cannot change the Law much lesse the prayer of one of the partyes Hales of Councel with the Defendants argued that it was not a mis-tryall and said this concerns them in point of privilege of the City and not meerly in point of interest before whom the Iudgement was gievn 2ly The consent of the party hath barred him of the advantage which otherwise he might have had But Roll Iustice answered here is point of interest as well as point of privilege for part of the goods taken come to the benefit of the City and therefore they ought not to be their own Iudges for this is against natural reason and so it is a mistryal But it doth not appear here whether the Maior and Aldermen be another Corporation or not and distinct from the Corporation alleged which certified this custom by the mouth of the Recorder and this is the sole doubt in the Case The Court ordered that there should be a new tryal except cause shewn to the contrary Q. whether there shall be a Repleader or a new venire VVhite and his wife against Harwood and his wife Mich. 24 Car. Banc. Reg. WHite and his wife brought an Action upon the Case for standerous words Whether a writ abated by death of one of the defendants Abatement against Harwood and his wife the Defendant dyes the Feme takes another Husband pending the sute It was moved that the writ was abated The Court inclined that because the Defendant had by her mariage changed her name therefore the Writ was abated but took time to advise Slade Mich. 24 Car. Banc. Reg. THe Court was moved for Iudgement formerly stayed upon a certificate made by Baron Atkins For Iudgement stayed upon a Iudges certificat that the verdict passed against his opinon Bacon Iustice said Iudgements have been arrested in the Common pleas upon such certificates Hales of Councell with the Defendant prayed that this Iudgement might be arrested and that there might be a new tryal for that it hath been done heretofore in like cases But Roll Iustice held it ought not to be stayed Attaint 9 though it have been done in the Common pleas for it was too Arbitrary for them to do it and you may have your attaint against the Iury and there is no other remedy in Law for you but it were good to advise the party to suffer a new tryal for better satisfaction And let the Defendant take four dayes from hence to speak in arrest of Iudgement if the postea be brought in if not then four dayes from the time it shall be brought in Andrews against Baily Mich. 24 Car. Banc. Reg. VPon a tryal at the Bar between Andrews and Baily Denisation by Letters parents do enable to purchase not to inherit lands Denization Inheritance upon an ejectment lease touching Sir Iohn Prowds title to Lands It was said that a man cannot be a subject to two several Princes And that denisation by letters patents do enable the party to purchase Lands but not to inherit the Lands of his Ancestor as Heir at Law But as a purchasor he may enjoy lands of his Ancestor Dunch against Smith and others Mich. 24 Car. Banc. Reg. Hil. 23 Car. rot 37. DUnch brought an Action of Debt as an Executor for arrerages of a rent charge due to the Testator Demurrer to a Declaration in Debt against Smith and others the occupyers of the Land The Defendants demur to the Declaration and for cause shew that it doth not set forth what estate the Defendants have in the lands charged with the rent and so it appears not that they are to pay the rent Hales of Councell with the plaintiff answered that it is not necessary for the Plaintiff to set it forth for he is a stranger to the Estate cannot know what Estate it is Roll Iustice said It doth not appear by the Declaration whether the Defendants claim under him that granted the rent or no. But move it again Saturday next Postea Smith against Hale Mich. 24 Car. Banc. Reg. SMith brought an Action of Debt against Hale for rent Demurrer to privilege of Parliament The Defendant pleaded that he is Tenant and Servant to the Lord Moone a Lord of the Parliament and prayes his Writ of Privilege may be allowed The Plaintiff demurs It was argued by Barton of the middle Temple that the plea was ill for the very matter of it for the privilege is against the Common Law and also against the Statute Law and for proof cited 1 E. 1. f. 26. 2 E. 3. f. 3. 2 Ed. 6. C. 8. Roll Iustice answered Privilege you ought not to argue generally against the Privilege of Parliament for you know that every Court hath its privilege as this Court also hath therefore apply your self particularly to this question Admittance whether a Writ of privilege belongs to a Parliament man so far as to protect his Lands and Estate and I conceive he is so priviledged And you have admitted his privilege by your own Demurrer But we will advise Wright Mich. 24 Car. Banc. Reg. AN Action of Debt was brought upon an Obligation to perform Articles Plaintiff after a verdict for him moves for a new tryal The Defendant pleaded Covenants performed The Plaintiff had a verdict and after verdict and before Iudgement he moved for a new tryal because it appeared that there was no issue joyned the Plaintiff moved it for his own expedition for he feared if he should enter Iudgement that the Defendant would bring a Writ of Error The Court answered that there was a perfect issue joyned but the pleading is not good and it was your own fault to joyn issue upon such a pleading when you might have demurred Tryall Yet let the Defendant shew cause why he should not consent to a new tryal and a Repleader Mich. 24 Car. Banc.
a verdict and upon the Defendants motion the Iudgement was former y stayed The Plaintiff moves for Iudgement notwithstanding for that the words are actionable The Court said the words are scandalous and by them he is disgraced in his Trade Hales of Councel with the Defendant said that there were other words in the Declaration which are not actionable and yet dammages are given for both Dammages which ought not to be and therefore no Iudgement could be given The words said not to be actinable were these Have a care and do not trust him for he will run away and pay you nothing But the Court held that both the words taken together are actionable and ruled the Plaintiff to have his Iudgement for both the words if better matter be not shewed Nelson against Tompson Mich. 24 Car. Banc. Reg. Trin. 24 Car. rot 343. NElson brought an Action of Debt against Tompson upon an Obligation with a Condition to save the Plaintiff harmless Demurrer to a replication in Debt upon an Obligation The Defendant pleaded non damnificatus The Plaintiff replyed and shewed a breach on the Defendants part whereby he was damnified The Defendant demurs to the replication and for cause shews that the breach was assigned to be at Westminster Place and doth not shew in what County Westminster is The Court held that though Westminster be a City yet it ought to be shewed in what County it lyes because it is not a County of it self Therefore advise what you will do for the Action is fit to be discontinued Discontinuance Thyn against Thyn Mich. 24 Car. Banc. Reg. LAtch moved again in this case that the Summons doth not appear upon the retorn to be well made Whether a Summons well retorned for it is not said to be made at the Church-dore as the Statute directs To this nothing was answered But Bacon Iustice said the retorn was naught for another reason and so there is no Record before us to proceed upon in the Writ of Error the fault is this The Custos brevium ought to make the retorn here and it is mentioned to be made per unum deputatorum suorum Retorn whereas his Deputy had no authority to do it Therefore you had best to take a new Writ of Certiorari and certifie the same matter by it and this the Court may grant though it be very rare for if one will assign an Error in a Record and pray a Certificate and nothing be done upon it we cannot proceed Consider which way you can help this fault Tracye against Poole Mich. 24 Car. Banc. Reg. TRacye brought an Action upon the Case against Poole upon a promise Arrest of Iudgement in an action on the Case upon a promise and declares that Poole the Defendant in consideration of a mariage to be had between the Plaintiffs son and the Defendants daughter of setling so much Land upon him upon the mariage He did assume and promise that within such a time after the mariage had he and his Son should be bound per scriptum suum debita juris forma fiend unto the Plaintif for the payment for 3000 l. for a mariage portion assigns the breach that the Defendant his son did not become bound per scriptum suum Obligatorium for the payment of the 3000 l. and for this he brings his Action The Plaintiff had a verdict The Defendant in arest of Iudgment moves that the breach was not well assigned Breach for the Assumpsit was that the Defendant and his Son should be bound per scriptum suum debita juris forma fiend and the breach is that they did not give security per scriptum suum Obligatorium which agrees not with the Assumpsit for the Defendant might give security by a Iudgement which is not scriptum suum yet it is debita forma juris factum upon this the Iudgement was for that time stayed though then Bacon Iustice enclined that the breach was well assigned because in common construction it shall be intended that the Defendant assumed to give his own and his sons bond for security Hales of Councel with the Plaintiff at another day moved for Iudgement and held that the breach was well assigned for that it expresseth the substance of the promise though not the very words of it and this was held good 7 Car. in Michill and Cars case 2ly If the meaning of the promise be considered it will appear that the Defendant and his Son were to be bound by Obligation 6 Car. Courtny and Gavills Case and indeed the promise cannot be satisfied by any other way than by an Obligation for a Iudgment or a Statute will not do it for by them he is not said to be bound and though all this be admitted against me yet it is now after a verdict and the Iury have found the breach Maynard for the Defendant argued that the breach was not well assigned for the breach assigned tends to a personal engagement for paying the 3000 l. which is not so expressed in the promise but only a general security to be given for the monies and a recognisance and a judgement are not properly scriptum as in 9 Car. Goldsmith and Sydners Case and the Declaration doth not set forth the death of Sir Henry Poole by whom the security was to be given and so it cannot appear whether he had a convenient time to do it as he ought to have and he held that the Plaintiff was bound to do the first act viz. to tender the Obligation to the Defendant or else he is not bound to seal and deliver any Request and also he ought to make a particular request to him to seal and deliver it Hales replyed if a man plead a Statute it is true that he ought to say per scriptum suum Pleading but pleading ought to be more nice than common parlance 2ly The living of Sir Henry Poole is expressed and there appears time convenient between the promise and the time of his death for performing of it 3ly It is not necessary for us to tender a bond but the other ought to have done it at his own perill for it is to be done at his charge and not at ours Roll Chief Iustice held that Iudgement ought to be given for the Plaintiff and said that for the laying of the promise it is not necessary to pursue the very words of the promise but the substance so that there may appear to the Court that there is cause of Action 2ly He held that there is no variance in the substance for the intent of the parties is to be considered which was to have another act done by Sir Henry Poole and his Son per aliquod scriptum and not by a verbal promise and we are to consider if the breach assigned agree to this and he held that the promise will extend to a Iudgement or a recognisance for a Iudgement Statute or Recognisance
really a Copyholder and cited Shellyes case and prayed Iudgement for the Defendant Roll chief Iustice said This Case differs from surrendring into the hands of Tenants for it is into the hands of the Steward out of Court Surrend Admission which is good and the Lords acceptance of his rent is an admission But Bacon doubted and therefore the rule was for the Case to be argued again the next Term and then by reason of sicknesse I was absent But that Term held not by reason of the Kings death Dunch against Smith Mich. 24 Car. Banc. Reg. DUnch brought an Action of Debt as Executor for arrerages of a rent charge due to the Testator against Dunch Arrest of Iudgement in Debt brought by an Executor an occupyer of the land out of which the rent was issuing and hath a verdict The Defendant moved in arrest of Iudgement and for Cause shewed that the Plaintiff doth not shew any title that the Defendant hath in the Land but only sayes generally that he entred into the Lands and so it appears not that he is to pay the rent To this the Councel on the other side answered that the Plaintiff being but an Executor cannot know the title and therefore is not bound to shew it Roll chief Iustice said there can be no Iudgement for the Declaration is too generall But Bacon Iustice held the Declaration good enough Antea Brown against Poyns Mich. 24 Car. Banc. Reg. THe Case was this a man made his last Will and made two Executors For a prohibition to repeal an administration Prohibition Appeal the Executors dye in the life of the Testator the Testator dyes having two Sisters the eldest Sister procures Administration the younger Sister moves for a Prohibition to repeal the Administration because she being in equal degree of king ought to have equall share of the Administration But the Court answered that a prohibition lies not for you may appeal if the Administration be not rightly granted Mich. 24 Car. Banc. Reg. A Processe issued out of this Court for a Cart and Horses that were cause of a mans death as a deodand 12. Iac. To stay processe for a deodand and it was moved that there hath been a generall pardon by Parliament since that time by which deodands were pardoned and therefore it was prayed the processe might be stayed General pardon The Court asked whether there be not an exception of deodands or the Almoners interest in the pardon The Councell answered there is not The Court demanded by what words in the pardon are deodands pardoned The Councel answered by the generall words The Court ordered thereupon it should be stayed till the Almoner be heard what he can say Mich. 24 Car. Banc. Reg. THe Court was moved for a habeas Corpus for one that was taken in Execution by the Sheriff and was afterwards set at liberty For a habeas corpus for one taken upon one Execution Audita querela and after that retaken upon the same Execution The Court answered take it but you are in the wrong way for you ought to bring your audita querela The King against Bray Mich. 24 Car. Banc. Reg. THe Court was moved to quash an Endictment of forcible entry made upon a Lessee for years upon the Statute of 21 Iac. To quash an Endictment of forcible entry The exceptions taken to it were 1. It doth not appear by the Endictment that the Lessee had any title to the Land at the time of the force committed for the force is supposed to be done before the lease commenced 2ly The lease is supposed to be a lease for so many years if I. S. shall so long live and it is not averred that I. S. was alive at the time of the forcible entry made Averment Roll chief Iustice cited the Lady Morlyes case that there ought to be a direct allegation of the life Therefore let it be quashed Mich. 24. Car. Banc. Reg. THe Court was moved to quash an Endictment of Assault and Battery of an overseer of the poor villae de A. in executing of his office The exceptions taken to it were To quash an Endictment for assaulting a Collector for the poor 1. That there is no such officer as an overseer of the poor villae but it ought to be parochiae but the Court said it was well enough as it was though it had been more proper the other way 2ly The Endictment is for the Assaulting and beating a Collector for the poor in executing his office whereas there is no such office appointed for any one particular man by the Law for the Statute is that there shall be two Collectors for the poor in every Parish and so the office is joynt and not several But the Court over-ruled this exception also 3ly It wants vi et Armis Vpon this exception the Court bid the Councel move it again Gill against Crosse Mich. 24 Car. Banc. Reg. THe Plaintiff brought an Action of Debt against two as Administrators upon fully administred pleaded issue was ioyned Speciall verdict in Debt against Executors and a speciall verdict was found to this effect viz. that one of the Administrators had fully administred and that the other Administrator had assets It was urged against the Verdict that the issue that was found is impertinent and impossible Verdict Iudgement and so there can be no judgement given upon it But the Court answered that the verdict is good yet if Iudgement should be given upon it the Iudgement would be ill and Nevills and Greenwoods case Hill 7. Car. in the Exchequer rot 1189. was cited and it was said that Iudgement may be against that Executor who hath assets and nil capiat per billam against the other that hath fully administred But take Iudgement at your peril Preston against Holmes Mich. 24 Car. Banc. Reg. Trin. or Mich. 24 Car. rot 2052. VPon a special verdict found the Case in effect was this Arguments upon a special verdict upon a Will one in see having one Son by one venter and another Son by a second venter did by his last Will devise all his Lands to his wise for life and after her death to I. his eldest Son and to his Heirs and the question was whether the Son shall take these Lands by the devise or as Heir at Law and so the devise to be of no effect to make him come to the Lands by purchase Christopher Turner held that the devise is void because it sayes no more than the Law says for if there had been no such devise Iohn his Heirs should have had the Land and he cited Paramour and Yardlves Case in the Comentaries and Hob. rep Counden and Clarks case But it is objected that in this case the Law speaks one thing and the devise another thing and so the devise says not the same thing To this I answer there is no difference concerning the alteration of the Estate
Iustice held that a Bond given to appear upon an Attatchment out of the Chancery is within the Statute but it hath been heretofore a question whether a Serjeant at Arms of Wales were within the Statute but it hath been since ruled that he is not and here is a material variance in the Bond which makes it void and neither the upper Bench nor the Chancery are fixt Courts Obligation and therefore the Defendant ought not to be bound precisely to appear at VVestminster and then to add ubicumque fuerit is a material variance Chancery Variance and makes the Bond naught Ierman Iustice to the same effect and said that the Chancery may sit at any time out of the Term when they please and their not sitting in the Vacations is for the ease and conveniency of the people Nil capiat per billamn si c. Antea Paine against Prestny Mich. 1650. Banc. sup PAine brought an Action upon the case against Prestny Arrest of judgement in an action for words for speaking these words to a Constable of him Take charge of him and carry him away for I lay flat Felony to him and for speaking these words to the Plaintiff himself I will make you hold up you hand at the Bar upon not guilty pleaded an issue was joyned and a verdict found for the Plaintiff It was moved in arrest of Iudgement that the words are not actionable but the Court held them cléerly actionable and ruled the Plaintiff to take his Iudgement except other cause were shewed to the contrary Friday following Popham against VVhite Mich. 1650. Banc. sup VPon a verdict found for the Plaintiff in a Trover Conversion Arrest of judgement in a Trover and Conversion the Defendant in Arrest of Iudgment took exception to the Declaration because the Plaintiff had declared of a Trover Conversion de decem arboribus wheras the trees were Tymber trees that were felled so they are not well expressed for the word arbor properly signifies a tree that grows and not one cut down according to the old verse Arbor dum crescit lignum dum crescere nescit and so a Trover cannot be brought pro arbore But Roll chief Iustice said that they were well enough expressed by the Declaration Declaration Description and that they ought not to be too strict in scanning some words where the thing is well described Goffs Case Mich. 1650. Banc. sup CLement Goff of Greenwitch in Kent A pardon for Felony pleaded and allowed arraigned of felony at Maidstone in Kent and there condemned was brought to this Bar and there it was demanded of him by the Clark on the criminal side what he could say why he should not suffer death according to his Iudgement whereupon the Prisoner pleaded he had a pardon and produced it and it was read openly the Prisoner kneeling on his keees in the mean time after reading of it he was asked what it was he demanded besides of the Court he answered that he prayed his pardon might be allowed which after Ierman Iustice had made a grave speech to exhort him to a better carriage for the future was done accordingly VVood against Topham Mich. 1650. Banc. sup THe case between VVood and Topham being an Action of Trespasse Arrest of judgement in trespass quare filium et heredem rapuit maritavit quare filium et heredem suum rapuit et maritavit was again spoken unto and in arrest of Iudgement Green took these exceptions to the Declaration 1. That it is too short because that after the words quare filium suum heredem rapuit maritavit there ought to have been added cujus maritagium ad ipsum pertinet for else it appears not that the Plaintiff hath cause of Action Instit f. 20. 35 El. Child and Towrs case Banc. Reg. 2ly The Declaration doth not say filium suum apparentem which it ought to do because the Father is alive 3ly It doth not expresse the Heir to be infra aetatem 4ly It doth not say the Heir is in custodia sua 5ly It doth not shew that the Heir was not married before 6ly It doth not shew that the Plaintiffs Father is dead 12 H. 4. f. 16. Broo◠Tit. Trespasse 101 Nat. brev 142. Reg. 163 Nat. Brev. 140. 20 H. 6. f. 44. And he said that a Declaration ought to be certain but that here was no certainty by reason of the former exceptions Declaration Trespass VVilmot on the other side said the Declaration was certain enough and according to the presidents and cited the Register f. 88 89. ◠rep Ratcliffs case Roll chief Iustice said It is a Trespasse to take away a mans Son and Heir although he be not within age but if it be another Son it is not so Nicholas Iustice to the same effect But because the Court was not full in regard that the damages given by the Iury were excessive the Court deferred to give Iudgement that time and perswaded the Plaintiffs councell to go to a new new try all Antea et Postea Marshall against Ledsham Mich. 1650. Banc. sup MArshall brought an Action of Debt as an Administrator against Ledsham Arrest of judgement in debt by an Administator and obteins a verdict against the Defendant It was moved for the Defendant in arrest of Iudgement That the Plaintiff had not shewed in his Declaration by whom the Letters of Administration were granted unto him as he ought to do according to the books of 26 H. 6.29 35 H. 6. The Court answered that he ought to have set it forth and therefore the Plaintiff might have demurred to the Declaration but it now being after a verdict Demurrer the question is Whether that fault be not helped by it And therefore they would advise Postea VVats and his wife against Lord. Mich. 1650. Banc. sup VVAts and his wife brought an Action of Trespasse of an Assault and Battery against Lord Arrest of judgement in an Assault and Battery and obtein a verdict The Defendant moved in arrest of Iudgement That the Declaration was by the Baron and Feme for an Assault and Battery made to the Feme and they also declare that the Defendant alia enormia eis intulit which ought not to be for the wrong being but a personal wrong done to the person of the Feme only could not be said to be done to the Husband To which Roll chief Iustice agreed Fairefax against Fairfax Mich. 1650. Banc. sup IN a writ of Error brought to reverse a Iudgement given in a writ of Dowr these exceptions were taken Error to reverse a judgment in down 1. That the original was not well returned for their appears not to be any return of the Proclamation of the summons and though the party do appear yet it was said that it is not helped thereby 2ly The demand is incertain for the demand is de tertia parte decimarum garbarum
to be within the Statute of 7 Ed. 6. If the Statute give liberty to Iustices of peace and Oyer and Terminer or Iustices of assise to enquire of this offence then an information cannot be preferred in a County where the offence was not done and the meaning of the Statute 21 Iac. is not to put the party without remedy and if he cannot sue by the Statute of 7 Ed. 6. in the County where the offence was committed then this Statute of 21 Iac. bars him not to prefer an information in another County Latch of Councel against the enformer said that by the Statute of 7 Ed. 6. an information lyes before Iustices of Peace or Assise or Gaol delivery Roll chief Iustice I deny that by the Statute of 7 Ed. 6. the information could not have béen brought in any other place but in the Courts at Westminster and therefore that it is not necessary to bring it in the County where the fact is done notwithstanding the Statute of 21 Iac. ◠it is reason it should be so because that no jurisdiction is given by the Stat. of 21. Iac to Iustices where they had no power before And the Court of Record expressed in the Stat. of 7 Ed. 6. shall be intended one of the Courts at Westminster and not a Court of Record else-where Therefore shew cause why the Iudgement shall not be affirmed Tench and Hubrison Mich. 1652. Banc. sup IN the Case of Tench and Hubrison upon a motion for a prohibition to the Court of Admiralty The Court of the Admiralty cannot proceed criminally It was held by the Court that the Court of Admiralty cannot proceed criminally against one that is in contempt to the Court. Yet the Court said they would here the Civilians if they would speak in it Saturday following Cydall and Spencer and others Mich. 1652. Banc. sup IN the Tryal between Cydall and Spencer and others Where one may have Election in an Ejectione firmae it was said by the Court. That if one do disseise me of part of a house and I am in possession of the rest of it It is at my election whether I will admit my self out of possession of the house or not Long and Hebb and others Mich. 1652. Banc. sup IN a Tryal between Long and Hebb and others To what time Letters of administration shall relate Relation Trespass Trover it was said by Roll chief Iustice that Letters of Administration do relate to the time of the death of the Intestate and not to the time of granting of them and therefore an Administrator may bring an Action of Trespass or a Trover and Conversion for goods of the Intestate taken by one before the Letters granted unto him otherwise there would be no remedy for this wrong done Mich. 1652 Banc. sup THe Court was moved to change the Venue in an Action brought for an escape But Roll chief Iustice said it ought not to to be changed Where the Venue may not be changed for an escape is not local but transitory for an escape in one place is an escape in all places Sidenham Mich. 1652. Banc. sup IN the Case of one Sidenham Roll chief Iustice said Where one may vary from his plea. It had been a question Whether if one plead payment at a day he shall be admitted afterwards to plead another plea. Watts and Lowth Mich. 1652. Banc. sup AN Action upon the Case was brought upon divers Assumpsits Arrest of Iudgement in an Action upon an Assumpsit and a Verdict given for the Plaintif It was moved in Arrest of judgement that the Iury had given more damages than were laid in the Declaration whereas it was but a mis-casting in the quae in toto attingunt Roll chief Iustice said That the mis-casting is nothing if the damages given by the Iury be not more than the Plaintif hath laid in his Declaration Verdict And therefore let him have his judgement Gough and Cann Mich. 1652. Banc. sp IN an Action brought for a Rescous Arrest of judgement in an Action for a Rescous and a Verdict found for the Plaintif these Exception were offered in Arrest of Iudgement 1. whereas he speaks of the next Court he doth not shew where that next Court was held 2. The time of the Arrest is not shewed upon which the Rescous is supposed to be made 3. It is not shewed that the party rescowed was in custody of the Serjeant from whom he was rescowed 4. It is not shewed before whom the Plaint was upon which the Arrest was made 5. The venire is ill awarded for it is to the Coroners where it ought to be to the other Sherif if one be a kin to the party and Latch offered this Exception that the Declaration sounds in Trespass which Action doth not here lie for the party Election Trespass Case But to that Roll chief Iustice answered that it is in the election of the party to have an action upon the Case or an Action of Trespass for an Action of the Case or an Action of Trespass lies at the election of the party against one for taking away his Wife And he demanded whether the two Sherifs of Bristow where the Rescous was brought were not one Sherif and whether the venire was not helped by the Statute And it does also appear that the party was in custody by vertue of the Process and it is now after a Verdict And he said that if one rescue the party who is arrested at my sute because that after the party is arrested I have an interest in the body of the party Rescous this Rescous is a Trespass to me for which I may well maintain an Action of Trespass And Ierman Iustice said Pledge that the body of the party arrested for debt is a pledge for the debt it self Iudgement was given for the Plaintif Liniston and Maurice Mich. 1652. Banc. sup THe Case was this Arrest of Iudgement in an Action of Trespass for not carrying away tithes An Action of Trespass was brought against a Parson for not carrying away his Tithes in due time The Defendant pleads that the Plaintiff gave him no notice to fetch away his Tithes the Plaintif replies that he did give him notice but doth not shew where he gave him notice and upon this Exception judgement was stayed Afterwards Baldwin of the Inner Temple moved for judgement and alleged that the not alleging the place was no Error Nicholas Iustice what say you to Durdens Case Roll chief Iustice There are many cases where the place is not material yet it must be alleged for the Venue Place If Debt be brought against an Executor and he plead fully administred if the Plaintiff reply that he hath assets he ought to allege the place where he hath assets And I conceive that there ought to be a place alleged here Repleader that a Iury who are nearest the place and so may have the best