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any of them; and if upon such examination it be confessed, that he or they do know the person or persons that committed the said fact, or any of them, that he then or they so confessing shall be bound by recognizance to prosecute such offender or offenders by indictment or otherwise according to the laws of this realm. — 4. The oath must be positive whether the plaintiff knew the persons who committed the offence or not. As where in an action on this statute the oath proved was, that the plaintiff had good reasons to suspect the fact was done by R. G. & W. L. both of such a parish; the court of K. B. held, that the examination did not maintain the action; the oath required is a condition precedent, and for the sake of the hundred, and to prevent screening the offenders; there is a great deal of difference between suspecting and knowing a man; who knows the offender may purposely stop at the word 'suspect' to avoid being bound to prosecute; and though it would be equivocating, yet it would hardly be a perjury assignable; it being only suppression of part of the truth; he should have said, I suspect them to be the men, but I do not know it;' it will be dangerous to go out of the words of the act. 2 Str. 1247.- 5. So it was held to be a condition precedent, that the party grieved should within the time limited give in his examination on oath before a magistrate, whether or not he knew the offender or offenders, or any of them; and therefore an examination on oath, in which the party only swore that he suspected that the fact was done by some person or persons to him unknown, was adjudged to be not sufficient within the statute, and still less in support of an averment in the declaration, that he gave such examination, &c. in and by which it appeared that the plaintiff did not know the person or persons who committed the fact; for non constat by the terms of such examination, that the plaintiff did not know some of the offenders, if there were several. 3 East, 400.- 6. And by $. 9. Provided also, that where any offence shall be committed against this act, and any of the said offenders shall be apprehended, and lawfully convicted of such offence within the space of six months after such offence committed, no hundred or any inhabitants thereof, shall in any wise be subject or liable to make any satisfaction to the party injured, for the damages he shall have sustained. - 7. And by s. 10. the party sustaining any damage by reason of any offence committed contrary to this act, shall commence his action or suit within one year next after such offence shall be committed. - 8. The action being given by this statute against the inhabitants of the hundred, the plaintiff can only proceed against them by original as he must on the statute of 13 Edw. 1. of hue and cry. - 9. But the action, both upon this act and the before mentioned one of i G. 1. must be brought in the name of the party grieved only, and ought not to be a qui tam action; for the inhabitants are not guilty of any contempt of the king in either of those cases, as they are for neglecting to pursue and apprehend the robbers as required by the statute of Edward the first. 2 Saund. 378. n. - 10. In this case, too, no action will lie against the hundred at the suit of the party injured, unless the act which occasioned the damage amounts to a felony within this statute. Ibid. - 11. Although the words of the first section of the statute are,' unlawfully and maliciously,' yet it is not necessary to use those precise words in the declaration; therefore where the action was for the damages the plaintiff had sustained, by setting fire to two stacks of oats, which in the declaration was laid to have been feloniously done by some person or persons unknown; after verdict for the plaintiff it was moved in arrest of judgment, that the declaration was bad, because it was not alleged that the setting fire to the stacks was done unlawfully and maliciously according to the words of the statute: but the court were unanimously of opinion that it was not necessary; for though the burning must be unlawful and malicious to constitute the offence, yet the statute does not make use of any technical words that are absolutely necessary to be inserted in the declaration, but leaves the plaintiff to allege and prove quo animo the stacks of oats were set on fire, here he has alleged, that the same was committed feloniously; and it must be presumed after verdict, that it was done maliciously and unlawfully, 3 Wils. 318. 2 Blk. 842. 2 Saund. 378. n. - 12. The declaration, after setting out the offence ought to shew, that the plaintiff gave notice of it within two days, and, within four days after, gave in his examination upon oath before a justice of peace, and that six months have elapsed, and the offender not taken; or if the plaintiff knew the offender, he should state, that he entered into a recognizance to prosecute him, and that six months are elapsed, but the offender not taken. 2 Saund. 378. n. — 13. It should seem that the two days to give notice to the inhabitants, and the four days to give in his examination, are to be reckoned both inclusive. Ibid. Hob. 139. — 14. Where the notice of the fact was given within two days to the inhabitants of the parish (instead of the town, village, or hamlet) near the place, &c.; yet as the law primâ facie intends every parish to be a vill unless the contrary be shewn, it has been holden, that this allegation is sufficient after verdict to sustain judgment for the plaintiff. But if it had been shewn at the trial, that the parish consisted of several vills, and that the notice had been given to one vill more
Vide CHASE, (H1. &c.) - JUSTICES, (S 7.) - JUSTICES OF THË
Peace, (B 47. 49.)
HUSBAND AND WIFE.
IDEMPTITATE NOMINIS. (a)
(A) When it lies. The writ of idemptitate nominis lies, when a man is taken or molested by process against another of the same name. F. N. B. 268.
* And it shall be directed to the escheator, or to the sheriff, if a man or his goods are taken by process against another directed to them. F. N. B. 268.
If he be taken by process against an accountant out of the exchequer, it shall be directed to the treasurer and barons of the exchequer. F. N. B. 268. A.
If by process after outlawry in B. R: or C. B. it shall be directed to the justices of the same court. F. N. B. 268. B.
So, it shall be directed to the justices of gaol-delivery, or of the peace, if he be molested by process upon indictment before them. F.N. B. 268. C.
So it lies after judgment and execution sued. R. 2 Cro. 623. Semb. cont. Hob. 330.
distant than another, the defendants would have been entitled to a verdict. 8 East, 173. – 15. If the plaintiff'recovers, he is entitled to his costs, though by that means the damages and costs should exceed 2001. iT.R. 71.-16. And if the plaintiff be nonsuited, or there is a verdict for the defendants, they will have their costs. 3 Bur. 1723.
1. There are other statutes which make the hundred liable to the action of the party injured, such as 8 G. 2. c. 20. for destroying turnpikes, or works on navigable rivers; 10 G. 2. c. 32. for cutting hop-binds; 11 G. 2. c. 22. for destroying corn to prevent exportation; 19 G. 2. c. 34. for wounding officers of the customs; and
29 G. 2. c. 36. 2 Saund. 378. n. - 2. In the case of the demolition of the works of * mills, the determining whether the works destroyed belonged to the mill, or were independent of it, forms a question for the jury, whose finding will be conclusive of that. fact. i Price, 343. (a) It is now obsolete. Vol. IV. Ii [A]
This writ directed to the justices seems to be only a commission to them to make inquiry of the truth, upon which they award a writ of inquiry to the sheriff. F. N. B. 268. B.
And thereupon, the attorney-general may plead, quod est eadem persona ; which shall be tried by a jury, and judgment according to the
sona ; whichob. 330. ma capias utlagatun
But a man taken by a capias utlagatum may come into C. B. and pray a writ of inquiry whether he be the same person, without suing an idemptitate nominis. F. N. B, 268. B.
So upon an exigent a man of the same name may offer himself to answer; and if the plaintiff says, that he is not the same person, he shall put the difference of the names, and according to such difference, the exigent shall be awarded. F. N. B. 268. B.
But where a man appears by supersedeas upon an exigent returned outlawed, the plaintiff cannot say that he is not the same person, and so defeat the outlawry, without a writ of idemptitate nominis. F. N. B. 268. B.
So upon an exigent on an indictment, a man cannot say, that he is of the same name, and pray that the attorney-general may put a difference of pames, for it would be changing the indictment; but the party, if he be aggrieved, must have an idemptitate nominis. F. N. B. 266. C.
IDIOT. (A) Jdiot, who shall be, infra. (B) Lunatic, &c. p. 483, (C) The king shall have the custody of them:- What
interest the king bas. p. 483. (D) acts by a non-compos.
(D 1.) What are void. p. [461.)
(A) Jdiot, who shall be. Persons who are non compotes mentis are idiots, or of non-sane memory.
Idiots are fatui naturales, which were of non-sane memory à nativitate. Ço. L. 247. a. Staundford's Præ. R. 34. b.
And it is sufficient to find him so, if he has not any use of reason: as, if he cannot count 20d. F. N. B. 233.
Has no understanding to tell his age; who is his father or mother, &c. F. N. B. 233. B.
What will be for his profit or loss. F. N. B. 233. B.
But a man shall not be called an idiot, if he has the understanding to learn, or know letters. F. N. B. 233. B.
To read by the instruction, or information, of another. F. N. B. 233. B.
(B) Lunatic, &c. So, if any person be by sickness or other accident deprived of the use of his reason, he shall be esteemed non compos mentis. Co. L. 247. a.
Though he be a lunatic, and have lúcid intervals. Co. L. 247. a.
[If a man loses his speech by an apoplectic fit, though he shews some signs of sense, a commission may be granted against him. Pitt's Case, T. 7 G.2. B. R. H. 52.]
(C) The king shall have the custody of them:-Wihat
interest the king has. The king, of right, has the protection and defence of all his subjects, their lands and goods. F. N. B. 232. A.
And therefore by the st. Prærog. Reg. 17 Ed. 2. 9. rex habebit custodiam terrarum fatuorum naturalium, capiendo exitus earum sine vasto, et inveniet eis necessaria, de cujuscunque feodo, et post mortem eorum reddit hæredibus, ita quod nullatenus per eosdem fatuos alienentur, &c.
And by the same st. 17 Ed. 2. 10. rex providebit, si quis, qui prius habuit intellectum, fuerit non compos mentis, ut quidam sunt per lucida intervalla, quod terræ custodiantur sine vasto, et ipse et familia inde sustineantur competenter, et residuum custodiatur ad opus ipsorum, ita quod prædictæ terræ infra prædictum tempus nullatenus alienentur, nec rex aliquid de exitibus recipiat ad opus suum.
[This stat. is not introductive of any new right in the crown. Oxenden v. Compton, 2 Ves. jun. 71.]
[The words thereof, “waste, and destruction,” used in the ordinary, not the technical sense. Ibid.]
(Under this stat. the crown commits the care of lunaticks to some great officer, not of necessity the chancellor. The warrant confers no jurisdiction, but only a power of administration. The appeal is to the king in council. Ibid.]
This prærogative seems to have commenced tempore Ed. 1. St. Prær. R. 33. b.
And therefore, the king himself shall have the custody of an idiot, his lands and goods. 4 Co. 126.
And shall have them during the life of the idiot. St. Prær. R. 34. a. 4 Co. 126. a. Dy. 26. in marg.
The king may take the profits of an idiot's estate to his use, allowing necessaries to him and his family. St. Prær. R. 35. a. Mo. 4 Dy. 26. a.
So, he may demise his lands, rendering rent. St. Prær. 35. a.
So, the king may grant the custody of an idiot, his lands, and goods, to another, 2 Ca. Ch, 70. 1 And. 23.li [A] 2
So, he may grant them to another, without security to account. 3 Mod. 43.
And such grant extends to the executor or administrator of the grantee. 3 Mod. 44. Skin. 139, 177.
So, he may commit the care of a non compos to another, so that his family be maintained, and nothing wasted. 4 Co. 127. b.
But the king is not seised of the lands of an idiot ; for he remains seised of the freehold. 4 Co. 126. a. St. Prær. R. 35. b.
So, the king, out of the profits must allow necessaries for him and his family. St. Prær. R. 35. a. Must make reparations. St. Prær. R. 35. a.
So, a grant of the custody to another and his executors will not be good to the executor. Qu. 2 Ca. Ch. 70. i Ver. 9. 137. Skin. 4.
So, the king shall not have a copyhold, which belongs to an idiot. 4 Co. 26. b.
Nor, a right, or title of entry, or action. St. Prær. R. 35. b.
So, after the death of an idiot, the king, upon an ouster-le-mains, shall restore the land to the heir. St. Prær. R. 35. a.
So, the king has no interest in the person of a lunatick, &c. as of an idiot. 4 Co. 127. a.
Nor, can he grant the custody of him and his lands, to the use of the grantee. Co. 127. b. R. Mo. 4. 1 And. 23. Bend. 17. Dy. 25. b.
Or, without security to account to him, if he becomes compos; otherwise, to his executor. or administrator. 3 Mod. 43. Qu. Dy. 26. a.
[The king's grant. of a lunatick's estate, without account, is void; but the king, or lord chancellor, by authority of the sign manual, may allow such a yearly maintenance to the committee, as amounts to the yearly value of the lunatick's estate. Sheldon v. Fortescue, A. P. 1731, 3 P. W. 104.]
[If custody of lunatick is granted to husband and wife, (she being next of kin,) it determines on her death. Ex parte Lyne, M. 9 Geo. 2. C. T. T. 143.)
Yet, he shall present to a church for a lunatick. Win. Ent. 629. (663.)
How a commission for an idiot, lunatick, &c. shall be granted, vide in Chancery, (3 Q.)
If the king be informed, that such a one is an idiot, or non-sane, he may bring him before his chancellor to be examined, and afterwards an inquisition may be awarded to inquire, whether he be an idiot, nonsane, &c. St. Prær. Reg. 34.
Before the chancellor, or any other whom the king shall appoint. St. Prær. Reg. 34. b.
So, the king may award a writ to the escheator or sheriff, quod in propria personâ ad ipsum accedat et ipsum viis et modis, fic, examinet, et nihilominus per sacramentum, &c. inquiret și idiota sit, necne ; et si sit, utrum à nativitate, aut ab alio et quo tempore, et si lucidis gaudeat intervallis, &c. F. N. B. 233.
And if he be found an idiot by office, and die; the king may afterwards seize his lands; for he must restore them to his heir. St. Prær. R. 35. b. So, if he be found an idiot for 8 years, these words, 8 years, shall be