Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

Hillar. 2. Car. in the Kings Bench.

ONe Mathias Wheelhorse was indited at the Sessions of the Peace, hol∣den in the Town of Northampton. quia Noctivagus, and because he di∣vers dayes and nights did frequent the house of &c. which was within the li∣berties of Southampton, and was a suspected Bawdy-house: and Crawley Sergeant moved that this Inditement was insufficient for three reasons.

1. Because it does not appeare in the Inditement, that the party knew this to be a Bawdy-house.

2. Because it is not said that it was a Bawdy-house, but that it was sus∣spected to be a Bawdy-house.

3. Because the Inditement is before Iustices of Peace, Villae de Nor∣thampt. and the house is infra libertates Villae de Northampt. and it shall not be intended that the power of the Iustices of Peace extend thither, and for it see Co. lib 5. 120. Longs case. 13. H. 7. 33. 34. 22. H. 7. Kelleway 89. Co. lib. 9. Mackaleys case: And the Court gave no opinion concerning the ex∣ceptions: But another thing was moved, to wit, that one could not be in∣dited before Iustices of peace for being Noctivagus, but this is to be inquired of in the Leet, and in this the whole Court was against him, for it is a mis∣demeanor, and it is contrary to the Statute of Winchester, and every one may arrest him: And at another day he moved this last exception again, and sayd that the Iustices of Peace have no power to fine men that are noctiva∣gant, yet true it is, that a Court-Leet hath such a power, Rastol. Leet 2. and true it is also, (as it is in 4. H. 7. 1. 2.) that every one may arrest a Night-walker, but there it is said that if he appeareth to be a man of good fame, the party who arrests him ought to let him go at large; and the Inditement here is only that he was Noctivagus, & it appears not that he is a suspicious Night-walker: & by Doderidge & Whitlock Iustices (only present) by the Common Law every man may arrest him who is Noctivagus, and the word (Nocti∣vagus) implies that he was a common▪ Night-walker, and they sayd that Iu∣stices of peace by their Commission have power to take such Inditements, for it is of ill behaviour, and albeit the Inditement were nought for the o∣ther exceptions, yet being good in this, it shall not be quasht, and therefore Iudgement was given upon it, and the party fined 40 s.