Reports of that reverend and learned judge, Sir Humphry Winch Knight sometimes one of the judges of the Court of Common Pleas : containing many choice cases, and excellent matters touching declarations, pleadings, demurrers, judgements, and resolutions in points of law, in the foure last years of the raign of King James, faithfully translated out of an exact french copie, with two alphabetical, and necessary table, the one of the names of the cases, the other of the principal matters contained in this book.

Batterseys case.

AN action upon the case was brought against one Hordecre upon an assumpsit, and he declared that the Defendant had arrested one Battersey, by vertue of a Commission of Rebellion out of the Cinque ports, and that the Plantiff keeping a Common Inne, the Defendant brought the said Battersey to his Inne, and re∣quested the Plantiff to keep him a day and a night, and promised in consideration there upon that he would save him harmless; and he shewed that he kept the pri∣soner accordingly; and that the said Battersey brought an action of false imprison∣ment against him, and recovered against him, upon which the action accrewed: and upon non assumpsit pleaded, it was found for the Plantiff, and now it was moved in arrest of judgement, because he had not shewed that the said Battersey

was lawfully arrested and imprisoned, and then if a man will without cause arrest a man, and promise in this case, no action will lie, for it is no consideration be∣cause that the imprisonment is unlawful, but Hobert chief Iustice, Hutton and Winch contrary: for be the imprisonment lawful, or not lawful, he might not take notice of that: as if I request another man to enter into another mans ground, and in my name to drive out the beasts, and impound them, and promise to save him harmless, this is a good assumpsit, and yet the act is Tortious, but by Hut∣ton, where the act appears in it self to be unlawful, there it is otherwise, as if I request you to beat another, and promise to save you harmless, this assumpsit is not good, for the act appears in it self to be unlawful, but otherwise it is as in our case, when the act stands indifferent, but Hobert said, it may be there is a diffe∣rence between a publick officer, and a private man, for if the Sheriff arrest a man unlawfully, and promise as before, this is a good assumpsit, but perchance other∣wise of a private man as here, but in the principal case, the Defendant had pleaded non assumpsit, and this implies a Lawful imprisonment, for otherwise the De∣fendant might have given the unlawful imprisonment in evidence, and judgement was commanded to be entered for the Plantiff.