The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CXC. Archeboll and Borrell's Case. Mich. 28 Eliz. In the Kings Bench.

ARcheboll brought an Action upon the Case against Borrell, and declared, That the Defendant had procured one L. to bring an Appeal of the death of J.S. against the now Plaintiff. To

which Endictment the now Plaintiff peaded, Not guilty; and upon that he was acquitted. The Defendant pleaded, That the now Plaintiff was endicted of the said death in the County of S. scil. of the stroak, and of the death of the dead in the same Coun∣ty. To which the Plaintiff by Replication said, That the said J.S. was struck in the said County of S. but died in the County of D. so as this Indictment found in the County of S. is void by the Common Law: and by the Statute of 2 E. 6. the party ought to be Indicted in the County where the party died, and not where the stroke was given. And upon that Replication, the Defendant demurred in Law.

Broughton, The Plaintiff ought to be barred; 1. The Plain∣tiff was not lawfully accquitted, for the proceedings are not by due process; For upon the Writ of Appeal, no Pledges are retorned. Which see, 11 H. 4. 160. Then, if the Appeal was not duly sued, the Plaintiff was not duly acquitted; and then Conspiracy, or Action upon the Case doth not lie: For such suit doth not lie, but where, if the Plaintiff had been found guilty, he should have Iudgment of life and member: Which shall not be, upon an in∣sufficient Appeal, 9 H. 5. 2. 2. Because it is not shewed in the Declaration, If the Defendant did flie, or not. 3. The Decla∣ration wants these words, Falso & Malitiose, as they are in the Writ of Conspiracy. And also it is not shewed, If the Plaintiff in the Appeal be sufficient or not; For if he be sufficient, the Abettors shall not be enquired. See Westm. 2. And as to the Action it self, he conceived, That it doth not lie by Bill, but by Originial Writ against those who are found Abettors. See 2 E. 2. Fitz. Action up∣on the Statute, 28. such suit by Writ. But see 25 Eliz. It was holden, Such suit doth not lie by Writ. And see Book of Entries, 43, 44.

Flemming, to the contrary, It needs not to be shewed, That the Plaintiff found Pledges ad prosequendum, For without that, the Writ is good enough; and although that the Writ be not well executed, yet it is good. For our Action is not grounded upon the Record of Appeal, but at the Common Law, and the Record is but Conveyance to our Action: And also there needs not in the Declaration, falso & malitiose, for they are implyed in the words, Abettavit, & procuravit. And he conceived, That this Action is at the Common Law, and not only upon the Statute of Westm. 2. Which see, Stamford, 172. And see 3 E. 3. Fitz. Conspiracy, 13. Conspiracy lieth upon an Endictment of Trespass, as well as upon an Endictment of Felony; for the Law hath provided remedy in every Case where a Man is damnified. As 43 E. 3. 20. A Writ of Disceit was brought, for that the Defendant by Fraud and Col∣lusion had procured J.S. to brign a Formedon against the Plaintiff of such a Mannor, by reason whereof the Plaintiff was put to great charges, and holden maintainable: And the Statute of West. 2. is in the affirmative, and therefore it doth not abridge

the Common Law, but the subject may take the advantage of the Common Law if he pleaseth; For it may be that the Course ac∣cording to the Common-Law will more avail him, than that upon the Statute: For upon the Statute Law, If the Abettors have not any thing, the party is without remedy; but by the Common Law, the party grieved, shall have excution upon the body. 13 E. 2. Conspiracy holden maintainable against one who procured one to sue an Appeal against the Plaintiff. See Fitz. Conspiracy, 25. Fitzh. Na. Br. 98. If A. procures B. to sue an Action against me, to vex and molest me, an Action of Disceit lieth. And as to the matter of the Endictment, I conceive, that it is not any bar; For the Endictment is meerly void, because it was found in the County where the stroke was, and not in the County where the party struc∣ken died, where of right it ought to be, and that by the Statute of 2 E. 6. Then if the Endictment be insufficient, it is as no En∣dictment, and then the Plea cannot excuse the Defendant. Which see, 20 E. 4. 6. If the Endictment be not sufficient, the Appellee shall wage Battail, and the Abettors shall be acquitted. Vide inde, 19 E. 3. Coron. 444. 26 H. 8. 2. And by the Common Law, the Plaintiff might at his pleasure bring an Appeal where the Plaintiff was strucken, or where he died: but in such case, the tryal shall be by both Counties. And 3 H. 7. 12. Appeal was brought in the County where the party was stricken; And 44 H. 7. 18. the Appeal was brought in the County where the party died; and there it is said, That in an Appeal the Plaintiff may declare, as if the thing were done in both Counties, but the Endictment ought to be in one County only. And 43 E. 3. 18. A Man strucken in one County, and dieth in another County, the Appeal shall be brought in the County where he died. In an Action upon the Case brought in the County of Essex, the Plaintiff Declared, That the Defendant held certain Lands, by reason of which he ought to re∣pair a Wall in the County of Essex juxta le Thames, and that the Plaintiff had Land in the County of Middlesex adjoyning to the said Wall; and for want of repairing the said Wall, his Land in the County of Middlesex was drowned; and the Writ was allow∣ed, being brought in the County of Essex. See 6 H 7. 10.

Clench, I conceive this Action doth not lie by the Common Law; For no Writ of Conspiracy was at the Common Law be∣fore the Statute. And vide F. N. B. 114. F. If the Plaintiff in an Appeal be Nonsuit, Conspiracy lieth; but contrary, if he be acquitted, for he shall have his remedy against the Abettors, &c.

Plowden, This Action lieth at the Common Law, and an En∣dictment is no Plea in this Action; and it is not grounded upon the Statute as a Conspiracy is, and so it well lieth, although the Abettors be not Enquired.

Gawdy, Serjeant, This is an Action by the Common Law; For in all cases where one procures damages to another, so as the

party is put to charges, an Action lieth, a fortiori where the pro∣curement extends to the danger of life. And see F. N. B. 116. F. Men conspire to have a false Office found of my Lands, which Office is found by such procurement, Conspiracy lieth: And the Statute of 2 E. 6. doth not alter the Law before; for it is in the affirmative. See the Statute, Cap. 24.

Gawdy, Iustice, Conceived, That the Endictment did not ex∣cuse the Defendants in this Action, but against those who are sworn to give Evidence for the King, and not others; For they may well procure an Appeal malitiously, notwithstanding the Endict∣ment.

Walmesley, Serjeant, conceived, That the Action doth not lie at the Common Law; For in no case where the party useth but the means of the Law by the Kings Writ, without any Corruption or Covin of the party, he shall be amerced only pro falso clamore, and no Action lieth against him, because he hath not used but the means of the Law. Which see, 2 R. 3. 9. by all the Iustices. But yet in an Appeal, because it toucheth the life of a Man, the Defendant shall have his damages against the Plaintiff, but not in any other Action which is a vexation by suit, if no Corporation or Covin be in the party who prosecutes such suit. See such matter justifiable in Conspiracy, 35 H. 6. 13, 14. Afterwards, the principal Case was adjourned.