The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.

Crowder versus Goodwin.

IN Assault and Battery and false Imprisonment, as to the Assault, &c. the Defendant pleads Not-Guilty; and as to the Im∣prisonment he justifies by a Process out an inferiour Court, and upon Demurrer these Exceptions were taken to his Plea.

1. The Defendant hath set forth a Precept directed Servienti ad Claven, and 'tis not said Ministro Curiae.

2. It was to take the Plaintiff and have him ad proximam Cu∣riam, which is not good; for it should have beén on a day cer∣tain, like Adams and Flythe's Case, where a Writ of Error was brought upon a Iudgment in Debt by Nil dicit in an inferiour Court; and the Error assigned was, That after Imparlance a day was given to the Parties till the next Court; and this was held to be a Discontinuance, not being a day certain.

3. 'Tis not said ad respondend' alicui.

4. Nor that the Action arose infra Burgum.

5. The Precept is not alledged to be returned by the Officer.

To all which it was answered, That a Pleint is but a Remem∣brance and must be short, Rast. 321. and when 'tis entred the Of∣ficer is excused; for he cannot tell whether 'tis infra Jurisdictio∣nem or not.

And as to the first Exception, a Precept may be directed to a private person, and therefore Servienti ad Clavem is well enough.

Then as to the next Exception, 'tis likewise well set forth to have the Plaintiff ad proximam Curiam; for how can it be on a day certain when the Iudge may adjourn the Court de die in diem?

Then ad respondendum, though 'tis not said alicui 'tis good, though not so formal; and 'tis no Tort in the Officer, but tis to be intended that he is to answer the Plaintiff in the Plaint.

As to the fourth Exception the Defendant sets forth that he did enter his Plaint secundum consuetudinem Curiae Burgi, and when the Plaintiff declared there, he shewed that the Cause did arise infra Jurisdictionem.

And as to the last, The Officer is not punishable though he do not return the Writ. The end of the Law is that the Defendant should be present at the day; and if the Cause should be agreed, or the Plaintiff give a Release when the Defendant is in custody, no Action lies against the Officer if he be detained afterwards.

But the Chief Iustice doubted, that for the second Exception the Plea was ill, for it ought to be on a day certain, and likewise it ought to be alledged infra Jurisdictionem.

But the other threé Iustices held the Plea to be good in omni∣bus, and said that the inferior Court had a Iurisdiction to issue out a Writ, and the Officer is excusable though the cause of Action did not arise within the Iurisdiction, which ought to be shewn on the other side: And so Iudgment was given for the Defendant.

Notes

• Justificati∣on by Pro∣cess out of inferiour Court.
• 1 Rol. 484. Cro. Car. 254. Dyer 262. b.
• Cro. Jac. 571. Mod. Rep. 81.
• Squibb versus Hole antea 29.