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![handle is hein.slavery/ssactsengr0977 and id is 1 raw text is: 'there four of the Judges held it to be wilful murder, for the same reasons as four
of these .do now ;0but the other eight held it to be but manslaughter; because the
subject is wrongfully restrained of his liberty, and there is a provocation to all men
to endeavour his assistance: where there is a violence used to restrain a man from
his liberty, that can be but manslaughter. And those four who differed, gave judg-
nent according to the opinion of the eight, and allowed him his clergy.
Now, hew doth that case differ from this ? They say there was a fighting by.
the press-master ; but doth that make an alteration ? No, it is the wrongful imprison-
ment that makes the alteration, if any there be. If a man without any provocation
draw his sword upon another, and then the other draw his sword, and is killed, that
is [492] murder, as was the resolution in The Lord Morley's case, Kelyng 53.
They say it could not be a provocation to the prisoners, because they knew not
that she was illegally arrested. But surely, a man must not lose his life for his
ignorance, when be happens to be in the right. Cro. Car. 271. Sir H. Ferrar was
arrested by a warrant that named him knight, whereas he was a baronet; his servant-
kills the bailiff; this was adjudged manslaughter only, because the warrant was ill.
I am as much for a reformation as any one: but in a legal way, for,
Vir bonus est quis ?
Qui consulta patrum, qui leges, juraque servat.
It was adjudged only manslaughter.
NAME.
1. HOLMAN versus WALDEN. Hill. 2 Ann.
1 Salk. 6. Mod. Cases, 115.
In action of the case against the defendant B. W. he pleaded in abatement, that
he was baptized by the name of John, & per nomen & cognomen de J. W. always
was known and called; without that, that he was called or known by the name and
surname of B. W. On a demurrer, it was insisted, that the material part of the plea
was the name of baptism, and he could not have another name ; therefore the traverse
was needless and frivolous.
Holt C.J. One may have a nomen & cognomen that never was baptised; and a
person may be baptised by the name of A. and confirmed by the name of B. as Sir
rancis Gawdy was, not that I think the first name ceased : and I think it would
not be a sufficient answer for the defendant to say, he was baptised by the name of
J. unless he averred also, that he was ever called and known by that name. But
supposing it had been an answer sufficient without more ; yet saying he was baptised,
&c. was only an inducement, which is waved by the traverse; and then the effect of
the plea is, that he was never called by the [493] name of B. W. And here the
traverse is material, and likewise the inducement.
Judgment to answer over.
2. LEPARA versus SIR JOHN GERMAINE. Pasch. 2 Ann.
3 Salk. 235, 236.
In assumpsit, the plaintiff sued the defendant by the name of J. G. Knight; to
which he pleaded, that he was a. knight and baronet; and the question was, whether
baronet was a necessary part of his name, to support the action 7
Holt C.J. The title baronet is an essential part of a man's name, because 'tis a
dignity, and whether it be created by Act of Parliament or letters patent, 'tis part of
his name; as in case of a duke, marquis, viscount or baron : though as to this last
name, there is a difference between a baron by tenure, and by patent; for in the first
case, baron is not a name of dignity, but the baron by letters patent is a dignity,
and part of his name.
1171
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