Donnington; that is as much as to say, the minister of [125 a] God for, or about his poor house, &c. scil. in that service; so God's service in this name is the service of God's house, and therefore they are convertible. And who sees not, that whosoever ministers to the poor, ministers to God? As it appears in that solemn sentence of the last day, inasmuch as you did feed, clothe, lodge the poor, you did it

unto me.

11 Co. 20. a. b.

The hardest cases that were ever adjudged upon those 10 Co. 125. a. misnomers have been either upon omissions or additions; as Fisher and Boy's case, for omission of the word scho- 11 Co. 159. a. lares in a second part of the name, which I should hardly have judged; for since they were named the scholars of the house in one part of the name, it must follow that it was the house of the same scholars, (which was all that wanted;) as burgesses of Lynne implied that Lynne was a borough.

228.

And Paschal and Fanshawe's case of the Savoy, or call- Le. 159. Mo. ed the Savoy, was a hard judgment; for things shall be supposed to be named according to truth; and therefore in the case of Lynne, the meaning of Lynne Regis was adjudged to import that it was called King's Lynne. And 10 Co. 32. b. indeed upon that judgment a writ of error was brought and compounded, and therefore it is no very firm authority.

And this case is made more full by the verdict, which finds that the true master and brethren did make the lease by the name, prout; which cautious course of finding is commended in the case of Lynne.

And so I conclude this point with two excellent authors' divine and human. Tully thus; Existunt sæpe injuriæ calumnia quadam et nimis callida, sed malitiosa juris interpretatione, ex quo illud, summum jus summa injuria. And Ecclesiasticus, chap. 19. speaks of this elegantly, thus:

There is a certain subtilty that is fine, but it is unrighteous, and there is that wresteth the open and manifest law; yet there is also that is wise and judgeth righteously.' So he makes three degrees; some impudent to

125. b. 126. a.

[125 b] give false judgment grossly; some others as wicked, yet do it more cunningly under pretence of strains of law. But a man may be as wise and fine to justice as any others to fraud; and so I commend the judge that seems fine and ingenious, so it tend to right and equity, and namely, that in these cases of captious misnomers doth mould the small disorders of the name to make good the contract and bargain. And I condemn them that either out of pleasure to shew a subtle wit, will destroy, or out of incuriousness or negligence will not labor to support, the act of the party by the art or act of the law.

[126]

Parole main

sworn. Note,

word be not

understood in

SLATER US. FRANKS.

The words 'Thou art mainsworn,' (which is an English word, and in some parts is understood to mean perjured,) are actionable without averring the sense or that it was understood.

The words Thou art a bankrupt,' are not actionable unless it is averred in the declaration that the plaintiff is a merchant.

In an action for slander against husband and wife, for the words of the wife, the plea must be that the wife only is not guilty.

SLATER brought an action of the case against Franks, that though the for saying, thou art a mainsworn lad, and a bankrupt lad.' And after a verdict it was said, that these words bear no action, for it was not averred in the declaration that he was a merchant, so the word bankrupt was of no force; which was confessed, and so it stood upon the doth. Ant. 117. word mainsworn. Against which it was said, that it was

all places, yet it is in English, and therefore

needs not the averment as the Welsh

an unknown word in these parts, and of an uncertain sense, though in the North parts it was understood to be as much as perjured, or forsworn with his hand upon the book. Now it was not averred that it was spoken in the presence of such as understood the word, nor that the word imported perjury. And yet we gave judgment for 1 Ro. the plaintiff. And another like judgment we gave this term upon the same word. And the very like judgment was given Hill. 10 Jac. Rot. 1783.

Verdict and no issue. 1 Ro. 46. 2 Ro. 443. Baron and

feme, Br. 54. Cr. Jac. 6.

V. Hill. 10 Jac.
Rot. 1783. in
Brownlow's

Reports 4.

And Hill. 1 Jac. Rot. 1372. Small brought an action against Bell and his wife, because the wife called him a

'mainsworn thief,' and the defendants pleaded not guilty, [126 a] and found for the plaintiff. But there he could have no judgment, because the defendants should have pleaded that the wife only was not guilty, so there was no issue in effect joined. 2 Cro. 6. (1)

(1) But in such case both must join in the plea; Yelv. 210, Tampiam v. Newsman and wife; but if the plea be that they are not guilty, it will be good after verdict. Cro. Car. 417, Needler v. Symnell and wife,

1

adjudged, &c. Cro. 417. Yelv. 210.

utra. 2 Cro.530.

3 Cro. 883.

ACTION FOR WELSH WORDS.

A declaration in slander for calling the plaintiff idonor, (which is a Welsh word signifying perjured) and averring that it was uttered in the presence of persons who understood the Welsh tongue is good, without averring what the word imports.

Post. 191.

IN the Exchequer an action of the case was brought by 3 Cro. 496. against for calling him idonor, in the Ant. 117. Hutt. Welsh tongue, and did aver that it was in the presence of 3. Sembl. 3. divers that understood the Welsh tongue, but did not aver what the word did import; and yet judgment was given for the plaintiff; and the court took information by Welshmen what the word meant in English, wherein they were satisfied that it was as much as perjured in English.

And the like judgment in the Common Pleas and upon the like form of declaration, was found upon search in the Common Pleas, between Gillam Verch, Howell, against Evan George, for a slander in Welsh words, Tr. 43 Eliz. 3024. and another Pascha 44 Eliz. Rot. 834. And at this time serjeant John Moore informed the court, that judgment had been given in the King's Bench, 6 Jac. in the case of one Tuck, upon these words, thou art an healer of felons,' without any averment how they words were taken, because the court was informed, and took knowledge, that in some countries it was taken for a smotherer or coverer of felons. (1)

6

(1) See 1 Saund. 242. n. (1.) and Starkie on Slander 308, where the doctrine of this case is recognized. Where the words spoken are English words, it is not necessary to aver that they were understood by the hearers. Ante 117, Box v. Barnaby; and Slater v. Franks, supra.

Yelv. 153.

3 Cro 250.

Noy. 19, 133.

[126 b]

CHANCELLOR, &c. vs. WALGRAVE.

Of Popish recusants convict, &c.

[127]

Amendment of

a judgment by the book of judgments.

1 Roll. 206,

215. Brownl.

1. R. 16. Ant.

SCAISE US. NELSON.

A judgment may be amended by the book of judgments of the prothonotary. SCAISE brought an action of the case against Nelson and his wife, for scandalous words spoken by the wife, and had judgment et præd la femme in mia, &c. where both ought to be amerced and upon a writ of error, the

119. Post. 184. record was certified into the king's bench; and yet by

Winch. 9.

Moor. f. 869.

Amendment,

order of the court here it was amended, because upon Br. 14, 56, 74. view of the book of judgments of Goldsborough the prothonotary, it appeared there well entered and directed. 1 Cro. 574. Cr. Jao. 439, 633.

Obligation.

Pleas amount

issue.

1 Cr. 159. Winch.

19. Cr. Jac.

165. Syd. 126.

1 Cr. 157, 158. 1 Le. 178, 251.

WARNER US. WAINSFORD.

In debt against an administrator, he may plead that the intestate was indebted to him eighty pounds, and that goods to that value and no more came to his hands, which he retains, though such plea amount to a pleinement administer. Pleas amounting to the general issue ought not to be demurred upon, but moved to the court.

SIR HENRY WARNER brought an action of debt against ing to general Wainsford, administrator of Kirby, who pleaded that the intestate was indebted unto him by divers obligations, (and recites them,) to the sum of eighty pounds, and that goods to that value, and not above, came to his hands, which he detains for his debt, and that he had nothing ultra. The plaintiff demurred in law, because it amounted unto the general issue of pleinement administer. But the better opinion of the court was, that this is no cause of demurrer, for the plea is sufficient; (1) and besides it

2 Cr. 746. Post. 213. Accord.

(1) It is optional with the defendant, in such case, either to plead a retainer for a debt due to himself, of equal or superior degree to that for which the action is brought, or to give it in evidence on the general plea of plene administravit. 3 Burr. 1380, Plumer v. Marchant. 1 Saund. 333. n. (6.) 1 Chitty 485.

1 Freem. 39.

is some matter in law, which hath been allowed always to [127 a] be pleaded especially, and not left to a jury; and the reason of pressing a general issue is not for insufficiency 2 Ro. 140. of the plea, but not to make long records when there is a. contrary, Leyfeild's no cause, which is matter of discretion, and therefore it is to be moved to the court, and not to be demurred upon. (2)

(2) A special plea amounting to the general issue, though cured by a general demurrer, is bad on special demurrer; though it seems it may also be taken advantage of by motion to the court. 12 Mod. 513, v. Saunders. 5 Mod. 252, Hallet v. Byrt. Com. Dig. Pleader (E. 14). Bac. Abr. Pleas. G. 3. 1 Chitty 498. Archbold's Civil Pleading, 194, 195 and 196. Stephen on Pleading, 412. 1 Mass. 459, Inh. of Freeport v. Edgecomb. 3 Mass. 310, Moors v. Parker & al. 6 Mass. 6, Martin v. Woods. 19 Johns. 300, Bank of Auburn v. Weed.

Vide 10 Co. 95.
Dr

case.

PIE VS. COKE.

If two persons exhibit several informations against the same defendant, on the same day and for the same offence, the court can give judgment for neither.

[128]

several at one

day, for one

353. Post. 209.

5 Co. 19. a. 38.

b. Plo. 10. b.

PIE, the informer, exhibited an information against Informations Peter Coke, clerk, for taking of farms. And now it was moved by Serjeant Hutton, that another information was offence. 1 Roll. exhibited by another informer, for the very same offence, Moor 364. and both exhibited upon one day; so there was no priority to attach the right of action in the one more than in the other and therefore the court advised them to plead the truth of his case; for it was sufficient to bar them both, inasmuch as there being no precedency of suit to attach it in either, the court could give judgment for neither. (1)

(1) This decision is founded on the legal fiction that there is no fraction of a day. This maxim, however, is not of universal application, and is frequently disregarded, when necessary for the purposes of justice. In the case of Combe v. Pitt, 3 Burr, 1434, Lord Mansfield, alluding to the case in the text, says, 'Though the law does not, in general, allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour may not be so too, where it is necessary and can be done. For it is not like a mathematical point, which cannot be divided.' At the present day, it is believed, the authority of the case of Pie v. Coke, above reported, would not be recognized. The doctrine of the case in the text is, however, recognized in Bunb. 9, Adams v. Carter and Olive v. Carter.