SWAIN vs. HOLLAM. CASE. POINTS vs. GIBBONS. days to the month, but according to the kalendar. Jac. 167. (1) 321 Cr. [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. Quære 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. Plo. 14. b. POINTS US. GIBBONS. An infant shall not have his age in a writ of partition. Partition. 138. In a writ of partition upon the statute, by Points Age is not grantable in against Gibbons, being within age, the defendant denied his age. Co. L. 171. a. Cr. Jac. 111, 392. was partition. 6 Co. 4 b. [180] Trespass. 1 Roll. 222. 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 suitable. 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 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. [180 a] 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 abil fait quere barred against both; for it works in the nature of a 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. 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 Rep 427. same. 2 Ro. 49. 1 Roll. 321 HOWARD vs. BARTLET. BRUTON. VS. MORRIS & al. [180 b] too; and he is a maintainer of papistry, and of rebellious persons.' The defendant pleaded other words, absque hoc, 2 Roll. 717, 718. 2 Cro. 407. Bulf. 3d R. f. 260. [181] Cr. Jac. 407, 469. c. And the jury found that he spake the words, viz. 'I think in my conscience, that if Sir John Sydenham might have his will, he would kill all the subjects in England, and the king too, and he is a maintainer of papistry, and rebellious persons;' and if upon the matter he be guilty in speaking the words, in forma qua in the declaration, then, &c.; and if not, &c. and judgment was given for the plaintiff. And now upon a writ of error in the exchequer chamber, the court inclined against the defendant; for the matter is in effect the same, and the form must be understood the essential form, not according to every word; yet Pasc. 16 Jac. we inclined that either of these words would bear action; but the words found were not so absolute as the declaration, neither moved credit in the hearer so fully, which is the force of a slander; and then they are not the same words in force and effect, as if the words were laid, 'I know him to be a thief,' and it were found, 'I think him to be a thief.' (1) (1) See Cro. Jac. 407. S. C. in K. B. See also 8 Mass. 122, Nye v. Otis. 8 Johns. 74, Miller v. Miller. Starkie on Slander, 275. Starkie on Evidence, part 4. p. 846 and notes. acc. In Massachusetts, it has been held that a general count, in an action for defamatory words, as for charging the plaintiff with the crime of stealing, is good without speci fying the words used. 8 Mass. 122, Nye v. Otis. [184] REVELL US. GRAY. In debt against baron and feme, the plaintiff cannot join a contract of the wife dum sola, with another of the husband alone. Debt. upon parcels. 19. 8 Co. 87. b. Cr. Jac. 110. REVELL brought an action of debt against Gray and Debt counting his wife, for three pounds and eighteen shillings, and Ant. 88. Noy. counted for thirtynine shillings, upon a contract of the wife's, dum sola fuit, and the other thirtynine shillings upon an insimul computaverunt with Gray the husband only; and after issue nihil debent, found for the plaintiff, judgment was stayed. (1) (1) Vide ante p. 88, Herrenden v. Palmer, and note. ANDREWS vs. BISHOP OF YORK, &c. Assise of darrein presentment is abated by the pendency of a former quar. imp. MALE US. KET. An action will lie for words importing a charge of petit larceny. Case. words of pety larceny. Roll.1. Abr. b. 43. MALE brought an action of the case against Ket, for Action for saying, that he had stolen his corn out of his barn. After a verdict it was said, it might be the corn was not worth penny; yet judgment was given for the plaintiff; for it is felony, though it be not capital. a Mo. Hutt. 65. 883. Brownl. 1. R. 2. Cr. El. 563. Winch. 6. accord. CHAMBERLEYn's Case. The record may be amended by the oath of the attorney and the book of the office. Case. the record by fice. 1 Roll. 207. Ant. 119, CHAMBERLEYN brought an action upon the statute of Amendment of hue and cry and after issue joined and entered where the the book of ofrecord was made, that the robbery was done 30 Oct., it was ordered by the court to be amended, and made 30 Septem. upon the oath of Thurston, the attorney for the plaintiff, that the book of the office was so, and showing it. 127. Amend ment, Br. 30. |