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Clementson against Montford
Trin. 24 Car. Banc. Reg.
Hill. 23 Car. rot. 1493.
A Writ of Error was brought to reverse a Iudgement in an Action up∣on the Case brought by an Administrator in the Court at Esham;* 1.1 The Errors assigned were. 1. The Plaintiff doth not declare that the administration was granted unto him per loci illius ordinarium. 2ly. The Plaintiff saith in his Declaration, producit litteras Administratorias intesta∣ti, whereas it should be ordinarii, and not intestati. 3ly. The Court cannot by its privilege being an inferiour Court,* 1.2 and that but newly erected, award a Capias upon entring the plaint, as it is here done. 4ly. The Court began first to be a Court, but 9 Iac. and yet it is said to be held per usum et consue∣tudinem curiae. Twisden to the 1. exception said, that it is helped by the verdict. Roll Iustice asked how doth it appear that Esham is within the Di∣ocess of the Bishop that granted the Letters of Administration, for if it be not, the Letters are not well granted; And said, that in a Declaration it is not necessary to say that Letters of Administration are granted per loci illius ordinarium, aut cui pertinuit,* 1.3 although they ought to be so pleaded in a plea in Bar. To the second exception, Twisden answered, that the words mentioned are not necessary, and the Declaration would be good enough without them, and therefore they shall not hurt it, though they he mista∣ken, and if it should be otherwise, yet they are helped by the verdict; and to the first exception he said, that the words secundum usum et consuetudinem shall be intended to be meant according to the Law, and not according to ancient usage, as is urged by the Councell on the other side. The rule was that Iudgement be affirmed except better matter should be shewn Monday next.