had where the Feme being Covert is not Tenant to the praecipe she shall be bound by it and he said she is not In other cases the party may be bound by estople namely where he might have pleaded to the writ or might have counterpleaded the voucher but here the Feme is not subject to be admitted to these things 17 E. 3. f. 37. and the Feme Covert here is not so concluded by her admission that she shall not be admitted to speak against this recovery if she survive her husband neither are her Heirs concluded if she do not survive although peradventure as to the warranty they may be concluded â—0 Ass pl. â— 11 E. 3 Fitz. voucher 1432 E. 3. Fitz. estople 246. 21. E. 3 13. and the recovery here is not duely had because there is no tertenant Roll chief Iustice said it is not to be questioned whether a recovery bind a Feme Recovery Examination Averment for it is the Common practice 2ly It is not necessary to examine a Feme Covert upon suffering a recovery although it be a prudentiall thing to do it but if it be not done it is not averrable that it was not done but the single question material here is whether the Feme be Tenant to the praecipe or not Feme Covert so that she shall be estopped to speak against the recovery and he held she was estopped for she joyns in the recovery with her Husband and here is no default made by the Baron and now the record is perfect and a thing contrary to it ought not to be averred against it but before the Record was perfect she might have pleaded Plea and the recompence in value here shall go to the Heirs of the Feme and the Tenant for life is also bound by this recovery and the Feme is party and also privy to the recovery Party and privy and therefore if it will bind her it will bind her Heirs also If a stranger had been Tenant to the praecipe and the Baron and Feme had been vouched the Feme had been bound and this is a stronger case and this case may concern many mens estates and therefore such recoveries are not to be questioned Therefore let the Plaintiff have his Iudgement nisi Hill 1651 Banc. sup ONe Turner and Marian were Bail for one by the names of Turner and Mary Motion to alter the name of a Bail Amerdment Bail the Court was moved that the name Mary might be made Marian But Roll chief Iustice answered let the party come and find other Bail for upon the matter this is no Bail Hill 1651. Banc. sup AN Endictment was removed by a certiorari into this Court For a procedendo and the Court was moved for a procedendo because no Bail was put in here Roll chief Iustice answered If no Bail be put in you may proceed below without any procedendo Hill 1651. Banc. sup THe Court was moved to supersede an Execution against one quia erronice To supersede an execution because he was taken in Exeeution whereas there was no declaration given against him in the Term time as it ought because the party was in custodia and the Declaration against him was upon the by viz. at another mans sute and not at his at whose sute he was in custody Roll chief Iustice answered if it be a Declaration on the by it ought to be given in the Term time Hill 1651. Banc. sup VPon a rule to shew cause why an attatchment should not be granted against Cox an Attorney of this Court and Maior of Newberry Cause why no attatchment for issuing out of Execution upon a judgement given there after a writ of Error brought and allowed there Wild shewed for cause that the Malor was enformed by Councell that the Record was not removed thence because the writ of Error was not good This was allowed for cause and the former rule discharged quod nota Hill 1651. Banc. sup LEtchmore moved the Court that the word publicae might be put into an Endictment which was removed hither by a certiorari To mend an endictment Amendment Fine But the Court answered it could not be but because the endictment was of another Term the Clark of the peace was fined at 10 l. for his carelessenesse and grosse oversight Pasch 1652. Banc. sup THe court was moved for a habeas corpus For a habeas corpus for one committed by an order of Sessions of the peace Surety for one that was committed to prison by an order of Sessions of the peace untill he should find sufficient suretyes for the peace whereas he had tendred suretyes which would not be accepted but extraordinary suretyes were required such as he was not able to procure Roll chief Iustice answered a thousand pound bond may be required for the keeping of the peace as the case may stand viz. if the party to be bound be a dangerous person Yet take a habeas corpus but be sure you bring good suretyes Pasch 1652. Banc. sup AN action of debt was brought against one for 50 l. due for divers pieces of lixnen cloath sold to the Defendant Wager of law waived and a plea put in The Defendant was ready at the Bar to wage his Law but the Court being enformed that the Defendants wife kept a shop and used to buy and sell by her husbands privity and allowance and that these parcells of cloath were bought by her to furnish her shop and that the Defendant her husband although he was a Sea man and medled not in buying and selling of any of the wares in the Shop yet his wife did it by his allowance Roll chief Iustice advised the Defendant to take heed he waged not his Law for that he could not do it with a good conscience because his allowance of his wifes buying the wares was all one as if he had bought them himself and counselled him to plead to which the Defendant consented and the ley gager was waived by consent of the partyes and an emparlance given till the next Term. Emparlance Dudley against Born Pasc 1652. Banc. sup THe Court was moved on the part of the Defendant that in regard Motion to put in security for costs denyed the Plaintiff had obteyned the cause between them to be tryed at the Bar that therefore he might be ordered by the Court to give security to pay the costs in case the tryal should be against him But the Court would make no such rule but said if he will not pay the costs in case the verdict be against him he shall take no benefit here afterwards upon it Garland against Yarrow Pasc 1652. Banc. sup Hill 1651. rot 1295. THe Plaintiff brought his Action upon the case against the Defendant for speaking these scandalous words of him Arrest of Iudgement in an Action for words viz you are a knave and keep a bawdy house after a verdict for the
Car. Banc. Reg. A Writ of Error was brought to reverse a Iudgement given in Norwitch and the Error Assigned was Error to reverse a Iudgment in Norwitch that there did but five of the Iury empanelled appear at the tryal and yet a Verdict was given and Iudgement thereupon The Court said that a Corporation cannot grant a tales neither if they could doth it here appear that there was a tales granted and therefore reversed the Iudgement Sir VVilliam Bronker Pasc 23 Car. Banc. Reg. SIr William Bronker was brought before a Iustice of Peace upon an information made Habeas corpus for one committed by a Iustice of peace for refusing to find sureties for the good behaviour that he had choated one at play with false dice the Iustice requires him to find sureties for his good behaviour and upon his refusal commits him to Prison Sir William Bronker brings his habeas corpus in this Court and upon the retorn this matter appear'd the Prisoner prayes by his councell to be delivered because there appeared no matter sufficient upon the retorn why he should be committed but because the Gâ—oler desired time to amend the retorn the Court granted it and would not deliver the Prisoner but took vail for his appearance viz. the Earl of Dover Good behaviour and Earl of Chesterfield And the Court then said that a Iustice of Peace cannot bind one to the good behaviour upon a general information or commit him to Prison for refusing to find suretyes for his good behaviour upon such information Imprisonment VVroath and Elseye Pasc 23 Car. Banc. Reg. Hill 22 Car. rot 1224. AN Action of Debt was brought against Elseye an under Sheriff by Wroath the high Sheriff upon a bond given him to save him harmlesse Demurer to a plea in Debt upon an obligation c. the Defendant pleads that he hath saved him harmlesse to this the Plaintiff demurs and held a good demurrer for he ought to have pleaded non damnificatus and not generally that he hath saved him harmlesse for that he may do in many things and yet the Plaintiff may be damnifyed in some other things where in he was also bound to save him harmlesse The rule was to shew cause why Iudgment should not be given for the Plaintiff VVhite Pasc 23 Car. Banc. Reg. A Iudgement was given in an Action on the Case brought by an Atturney for these words spoken of him Error to revâ—rse a Iudgment in an Action on the Case for words Thomas White is a perjured Knave and a suborned Knave A Writ of Error was brought and divers exceptions taken but the principal were two 1. That the words aâ—â— not well laid for they are adjective words and so not positive enough to ground an Action 2. The words are not Actionable because it is not declared that the party of whom they were spoken was of any Trade or had any office But Bacon Iustice over-ruled all the exceptions and ordered cause to be shewn next day why the Iudgement should not be affirmed The Case of one Nicholas and Webb was afterward cited Case where Iudgement was given in the Common pleas for calling an Atturney Knave which Iudgement was said to be afterwards affirmed in the Kings bench 12 Car. Trin. rot 102. Saunderson and Martin Pasc 23 Car. Banc. Reg. Trin. 22 Car. rot 867. A Iudgement was given in an Action of Debt upon an obligation Error to reverse a Iudgment in Debt to perform such a promise made by the Obligor to the Obligee and a Writ of Error was brought to reverse this Iudgement The Error assigned was that the breach of the promise was not well assigned for it did not appear when this breach of promise was Bacon Iustice The breach of promise is the sole cause of the Action and it appears not to the Court when that was and for this he reversed the Iudgement Paine and Skeltrom Hill 23 Car. rot 740. AN Action of Debt was brought upon an obligation Demurrer a Plea in Debt upon an Obligation the condition was that Skeltrom the Defendant with his Wife should appear at the Marshals Court and for not appearing according to the condition was the Action brought Skeltrom appears and pleads that at the time of the obligation he was solus et innuptus To this Plea the Plaintiff demurrs Rolle Iustice said this Plea was not the same with ne unques loyalment accouple for one extended to a feme de facto and the other to a feme de jure The Court then advised of the Plea but Trin 23 Car. ruled to shew cause tomorrow why Iudgement should not be given for the Plaintiff Stoughton and Day Pasc 23 Car. Banc. Reg. SToughton an undersheriff brings an Action of Debt against Day one of his Bailiffs Demurrer upon a Declaration in Debt upon an Obligation upon an obligation with a condition to save the under-sheriff harmlesse in executing of processes and other things contained in the condition and Assignes the breach of the condition to be that the Bailiff had not Executed such his warrant sent to him upon a processe to him directed out of the Exchequer to levy issues upon certain lands To this declaration the Defendant demurs and shews for cause 1. That the warrant to him directed by the undersheriff was made out of the County where he was undersheriff and so could not be said his warrant as under-sheriff of that County 2. It is not alleged that the mannour of Addinson where he was by the warrant to levy the issues is within the Hundred where the Bailiff hath Iurisdiction Warrant And this the Court held to be a good exception and said that the breach Assigned is not shewed to be within the Condition of the Obligation because the Baily cannot execute a precept out of the Hundred where he is Bailiff and Thereupon the rule was that the Plaintiff Nil capiat per billam if cause were not shewn Tuesday following Cook and Fincham Pasc 23 Car. Banc. Reg. A Iudgement was given for Cook For vacating a Writ of Execution upon an information upon a Statute exhibited by him on the behalf of the King and himself where the King was to have ten pounds of the penalty recovered Cook takes out an Execution upon this Iudgement to levy the whole sum of money recovered to himself as appeared to the Secondary upon examination of the matter referred to him Upon this the Court held the writ of Execution to be ill Execution because it was entire for the whole sum recovered to the party whereas 10 l. was due to the King and ordered a new Writ of Execution and to stay the money in Court till further advice of the matter taken Clark and Pew Pasc 23 Car. Banc Reg. AN Action of Trover and Conversion was brought by Clark Arrest of Iudgement in an Action upon the Case against Pew and his wife and the Declaration was that
and that cannot be known how much it may be and consequently there is no award but both parties are at liberty to go to law as they were before An incertain award not good and so no end is made between them by the award according to the intent thereof and these books were cited against the award 20 Ed. 4. fol. 1. et 4.9 H. 7 fol. 14.8 Ed. 4. fol. 20. It was ruled by the Court to shew cause why Iudgement should not be against the Plaintiff per nil capiat per billam The King and Place Trin 23 Car. Banc. Reg. THe Case between the King and Place adjourned Error to reverse a Judgment upon an Endictment upon the Statute Scandalum Magnatum Pasc 23 Car. was again moved which was this Place was indicted before Finch and Crawley Iustices of Oyer and Terminer for these words spoken against the Queen mother of France viz. the Queen mother is the Whore of Babylon and is a Whore and hath had a Bastard and all the Noblemen that will not ioyn with me against her are Rogues and Rascalls To this endictment the Defendant pleaded and was found guilty by the Iury and Iudgement given against him Whereupon he brings his Writ of Error in this Court to reverse the Iudgement and Assigns these Errors 1. against the body of the Endictment it self and that he ought not to be Endicted for the words because they are neither spoken against the Common law nor against any Statute law 2. Against the proceedings upon the Endictment which were against law being too speedy for he was Endicted before Iustices of Oyer and Terminer and tryed in one day whereas there ought to have been 15. days betwixt the preferring of the Endictment and the tryal 3. The Venire is against law for the Court did chuse try and swore the Iury which ought not to be 4. Part of the Iudgement is that the Defendant shall be bound to his good behaviour which cannot be upon such an Endictment as was before them 5. The Endictment doth not say that the words were spoken contra pacem 6. Part of the Iudgement is that he shall be set upon the Pillory and lose his cares which no law warrants but only to be set there to the view of the people Imprisonment with a paper on his head 7. The Iudgement is that he shall be imprisoned for a year without bail which ought not to be To this last exception the Court answered the party might be so committed But they said that the Iustices of Oyer and Terminer cannot try an Endictment the same day nor Iustices of peace at the same Sessions in which it was preferred Tryall and they cited one Barnabyes Case 13 Car. and Pridians Case 6 Car. 22 E. 4. et Plow 44. But they said Iustices of Eyr may try an Endictment the same day Roll Iustice said the Kings Bench is a Court of Eyr in the County where it sits Eyr and therefore they may try an endictment removed here out of the same County the same day but not if it be removed hither out of another County for in that case it is only a Court of Oyer and Terminer But Bacon denied it and said so was my Lord Cooks opinion and it was also said that Iustices of Oyer and Terminer cannot proceed upon an Endictment which is not taken before themselves but Iustcices of Gaol delivery may and the Court also held that the juratores electi tryati et jurati by the Court as it must necessarily be here understood Iury. was illegal for the Iury ought to be electi by the Sheriff out of the County and lastly the Court held that legally there ought to have been 15 dayes between the Endictment and the tryal and for these reasons ordered to give notice to the Kings Sollicitour or Serjeant to shew cause why the Iudgement should not be reversed Hill and Farmer Trin. 23 Car. Banc. Reg. Hill 17 Car. rot 674. AN Action of Debt was brought in the Common pleas upon an obligation Error in Debt upon an obligation and a Iudgement upon a demurrer was given for the Plaintiff the Plaintiff brings a Writ of error in this Court to reverse the Iudgement and Assignes for Error that the Obligation upon which the Action was brought and Iudgement was given is a void obligation by the Statute of quinto and sexto of Ed. 6. made against buying of Offices But Roll Iustice answered that the Iudgement in the Common pleas was given upon a mispleader there and therefore you should make that good first before you move new matter And there is another Error also in the pleading which was not touched upon in the Common pleas which is this first the plea is of the Office of the delivery within the Office of the Armory Declaration and after he referrs the plea to the Office of the Armory which is another Office and so she Declaration is double Another exception was that the word Armentarius was used for Armamentarius Monday following was given to shew cause why Iudgement should not be reversed The King and Marshall Trin. 23 Car. Banc. Reg. MArshall brings a Writ of Error to reverse a Iudgement given against him upon an Endictment of barratry Error upon an Endictment and takes these exceptions 1. That it doth not appear in the Endictment before what Commissioners the Endictment was taken upon which the Iudgement was given and so the Endictment is not good for the incertainty of it and consequently the Iudgement is erroneous that is given upon it for it ought to appear by the Endictment that it was taken before the Iustices of Assise or Iustices of Peace or of the Gaol-delivery 2. The Iudgement is quod solvat tantam denariorum summam and shall find sureties for the good behaviour and this is rather an award than a Iudgement To this exception Roll Iustice answered Iudgement if it be a good order it is a good Iudgement and the order is part of the Iudgement yet let the Kings Councell have notice and the Prosecutor shew cause why the Iudgement should not be reversed Trin. 23 Car. Banc. Reg. VPon a verdict given in an ejectione firmae it was moved in Arrest of Iudgement Arrest of Iudgement in an ejectione firmae and the exception was that the Plaintiff was ejected de uno Crofto which was said to be of an uncertain signification and because the Plaintiff conceived the Court doubted whether an ejectione firmae lay of a Croft he durst not defend it but moves for a special Iudgement for the rest of the land contained in the Declaration and prayed that he might release the damages as to the Croft Rolle Iustice doubted whether an ejectione firmae lyes de uno Crofto Ejectione firmae Formedon Assise and said that a Formedon lyes not of a Croft but that an Assise doth because it is put in view to the recognitors but a
upon them according to the fact found upon the Record because it was a foul riot The Court answered they are found guilty of the riot Fine and therefore the fine cannot be lesse than ten pounds at the least for the principal there being a verdict in the case and so let it be and 4. marks a piece for the rest For we must preserve the peace of the County Baker against Smith Mich. 1651. Banc. sup THe case of Baker and Smith formerly spoken to was again moved In answer to a matter spoken in arrest of judgement and Maynard answered the exceptions offered in arrest of Iudgement 1. It was objected that here was not a mutual promise set forth between the partyes for there is no agreement made by the Feme for it is only said that she consented to marry the party which is not a binding agreement To this he answered here was a mutual and binding agreement though it be not so plainly expressed in words as it might have been 3 H. 6.36 37. A verbal promise may be discharged by words and so it is here London and Stokes case Trin. 10 Car. rot 236. Next it is not necessary here to give notice of the discharge of the promise though if there be notice it is well enough because the thing to be done upon it to wit the payment of the 1000 l. is certain and the discharge shall be intended to be in the presence of the party to whom it is given for the Declaration is exoneravit ipsum which shall not be intended in his absence Pasch 10 Car. Harvy and Inglethorps case and Mich. 8 Iac. Martin and Wilbie Hodges and More Pasch 1 Car. Banc. Reg. 7 Iac. Bradlyes case 14 Iac. Beedly and Goodrose Latch on the other side argued that here is no binding promise on the behalf of the woman to marry with the Defendant and so the discharge of it can be no consideration for this is not a reciprocal but a bare acceptation of the promise made by the other and an action of the case lay not against her if she had refused to marry with the Defendant because here is no repromission made by her 2ly It appears not that the discharge was in convenient time for it was 2 years after but admitting that to be so yet here is no notice of the discharge and that is necessary to be given and it shall not be intended to be given without shewing it for the Declaration ought to be certain and here is no inducement in it that there was any notice given in his presence and if it were given in his absence he ought to have notice given him of his discharge else how should he know it and it were unreasonable to charge him if he had no notice and by a third person he cannot receive notice as it is in the Cases put by Mr. Maynard on the other side In the Case of Peck and Ingram in this Court adjudged that the party ought to have notice when the Feme left her Fathers House and came to such a place Roll chief Iustice said here are two promises 1. The Feme assumed that if the Defendant would marry her she would consent to him Coâ—sideration Promâ—se in Law Mutual Coâ—tract Implication and here is a consideration although there be not an absolute mutual promise for it is a promise in law and the Action may be laid by way of consideration or by way of mutual Contract 2ly Here is but a promise de futuro and there may be a temporal loss although the thing to be done viz. the mariage be spiritual And the dis-engagement of the party doth not imply notice but the demand of the 1000 l. now implies a discharge nor can the party here take notice of a third person and therefore it is necessary to give him notice Notice for where the party cannot take notice from any but the party himself there notice must be given him Ierman Iustice held here was a good mutual promise to raise a consideration and by the words exoneravit ipsum it shall be intended to be to the person himself this implyes a notice especially it being after a verdict Nicholas Iust much to the effect as Roll chief Iust but he doubted whether the words do imply a personal notice for it may be it was in his absence and the verdict will not help it and so there can be no judgement Aâ—k Iustice said here was a good promise but the words exoneravit ipsum do not imply a notice so the Court was divided and would advise Hume against Hinton Mich. 1651. Banc. sup HUme brought an Action upon the Case against Hinton Aâ—rest of judgement in an Action upon the case upon a promise and declared That whereas the Son of the Defendant did in his life-time owe unto the Plaintif 8 l. and dyed intestate the Plaintif did demand the said 8 l. of the Defendant being Mother to the intestate whereupon she being satisfied of the justness of the debt did assume and promise unto the Plaintif that if he would stay for the money till Mich. next that then she would pay it Vpon non Assumpsit pleaded and a verdict found for the Plaintif the Defendant moved in Arrest of Iudgement that here was no consideration to ground the Assumpsit upon because it was not the debt of the party that assumed to pay it neither was she Executor or administrator nor consequently lyable any way by law to pay it and therefore an Assumpsit to pay a remediless debt if the Plaintif would stay for it is no good Assumpsit as in 6 Car. in this Court in Morgans Case An Assumpsit to pay the rent of the land behind if the party would forbear to distrain Corn in the shocks was adjudged no good Assumpsit because such Corn is not distreinable and it appears not here what person the Son was or where he lived or that he either had or lest any goods and the meer ground of the Action is the piety of the Mother and no other matter And here appears no person liable to pay this debt neither plainly nor by intendment and the Ordinary is not chargeable if no goods come to his hands And 2ly There is now no Ordinary for it is taken away by the Parliament and 9 rep Bains case is not like to this case neither is Iones and Smiths case Trin. 8 Iac. rot 192. like to this case for there was a person liable to be sued but it is not so here so that this is a stronger case But if there should be a good consideration yet the averment of the performance of it is not good for it is not certain how he stayed Wild for the Plaintif held that here is a good consideration because the Plaintif is hereby tyed not to sue any person whatsoever for the debt till Michaelmas and so it is a prejudice to him to forbear And it shall be intended
fining the party after a Certiorari was delivered unto him to remove the Endictment into this Court and thereupon it was prayed that it might be granted and Sir Tho. Styles and Sir Iohn Sidleys case 8 Caroli was urged where an Attachment was granted in the like case Wild on the other side prayed it might not be granted because the parties endicted did not tender sureties to proceed to a Tryal upon the Endictment as the Statute directs and because the fine was set upon the parties before the Certiorari was delivered and it is in the election of the Iustice to set a fine upon the party Fine Traverse Plea and refuse to admit the party to his traverse as some do hold Roll chief Iustice Vpon view of the force the Iustice may set a fine upon the party and refuse to admit the party to his traverse or plea at his pleasure but the case is not so here and in 15 Car it was resolved that if a Certiorari be brought to the Sessions to remove an Endictment of forcible Entry preferred against divers persons if some of them come in and find sureties for the damages it is good for them all to remove the Endictment for the rest else it would be mischievous for them that find the sureties And he said that if any thing be done at a private Sessions of Peace it ought to be returned to a Quarter Sessions or into this Court Vpon view of the force the Iustices of Peace are Iudges Error and may set a fine and if there be Error a writ of Error may be brought The rule was that Staples be examined upon interrogatories and make a return of the Certiorari Monday next and that he restore the fine to the party Wood and Mountney Mich. 1652. Banc. sup IN the Case of VVood and Mountney Bail not discharged by the death of the Principal Bail Roll chief Iustice said That if the Plaintif in a writ of Error die before the matter be determined yet his Bail are not thereby discharged Webb and Washborn Hill 1652. Banc. sup THe Action was an Action of Trover and Conversion for divers goods Arrest of judgement in a Trover and Conversion The Defendant pleaded not guilty and upon issue joyned a Verdict was found for the Plaintif It was moved in Arrest of Iudgement that the Plaintif amongst other things had declared for a Trunk with writings which is uncertain Wadham Windham for the Defendant said the Declaration is certain enough and cited a Case where an Action was brought for two Trunks of Cloathes and doth not say what Cloaths and yet adjudged good Another Exception was taken That the Plaintif declares for a great Beam Scales and Weights which is also incertain To this Windham answered It was certain enough because they all make but one thing by reason of the relation they have one to the other And in the old Book of Entries we find that an Action of Trespass was brought pro Caruca cum apparatu and adjudged good Latch on the other side as to the last Exception said It is not answered for the words are very incertain and it is not like the case of the Trespass cited de Caruca cum apparatu for the Weights go not to the perfecting of the Beam as the apparatus doth of the Plow and it is as uncertain as to bring an Action for five Locks and Keys which is not good Hales answered it is certain enough for it is all one as if he had said A Beam Scales and Weights which is as certain as to say a Ship with Anchors and Cables Roll chief Iustice How can we reduce the Weights to any certainty as the Declaration is laid and if the word and had been added it would not have helped for they may be a hundred Weights or a thousand Another Exception was taken that the Plaintiff in another Action had declared for four pair of Hangings which is uncertain But Roll chief Iustice said That that might be well enough understood Green at another day insisted that four pair of hangings is very uncertain but if it had been said four sutes it had been well Besides the very word hangings is a doubtfull word for it shews not whether the hangings were Silk or Stuff or what else they were made of as it ought to be He also took an Exception that the Plaintiff had only shewed that here was a denyal and refusal to restore the goods but no conversion of them is shewed To this Hales answered That the Action being an Action upon the Case It is not necessary to shew the Conversion and for the four pair of hangings it is well enough for a pair is a couple when the word is used of dead things and not like a pair of tongues which make but one thing nor is it material to expresse of what the hangings are made as it is not in an Action brought for divers pair of stockings material to say whether they were of thread silk wosted or wollen as hath been adjudged and the word hangings is certain for any one will conceive them to be meant of hangings of a room Roll chief Iustice The Action is an Action upon the case and it is not necessary to shew a conversion for the Action is not brought for the conversion and if it were so if a demand and a denyal be proved doth not this prove a conversion Case Trover and Conveision As an Action of the case lyes for keeping one out of possession although the party doth enter afterwards and the four pair of hangings is certain enough and it is not like as where Latin words are mingled with English in a Declaration and the words being taken in the English construction shall be understood to be eight hangings Nor is it material to expresse of what the hangings are made But the great doubt is whether the words be meant of hangings for a room or not and I suppose they cannot be meant of other hangings the words being in English and not in Latin with an Anglice and I believe you cannot shew me any thing else that the words can by common intendment signifie Iudicium nisi The case was again moved at another day by Latch who urged that four pair of hangings are words incertain but if it had been four suits it had béen well so that here is a misaplication of words to expresse the thing meant and he might as properly have said a suit of Shoes or a suit of Conies If one say he hath lost a hanging this is incertain of it self for it is the predicament of situs and not of substance for a hanging is a posture and the word pair makes it more incertain than it was without it Hales answered that it is certain enough for the word hanging is used here substantively and not as a participle and the common use of the word is only applicable to the hangings of a room and the four pair shall