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![handle is hein.slavery/ssactsengr0990 and id is 1 raw text is: EASTER TERM, 5 ANN2E REGIN2A
by the general allegation, that the defendant was discharged secundum formam
statuti ; for if any of those facts were omitted, he could not be said to be discharged
according to the form of the statute; and for that purpose he cited Cro. Jac. 609,
Johnson's case, where 'tis said, many of the faults in the indictment were aided by the
conclusion, contra formam statuti in hujusmodi casu editi et provisi. 2. That if there
had been any defect in the proceedings of the justices of peace in this matter, it ought
to be shewn by the other side, and should never be intended, as in the case in
Cro. Car. 280. In a writ upon the Statute of Westm. 2, 13 Ed. 1, st. 1, c. 46, for
throwing down fences in the night, 'tis not necessary to set out that the landlord had
a right to improve; but if he has not, it ought to come on the other side. 3. He
argued it was good upon a general demurrer, and cited several cases of omissions
in pleading, held good after a general demurrer. 1 Lev. 194, Cutler v. Southerne.
1 Lut. 545, 9, Lee v. Elkiv. He relied also on 1 Ventr. 356, Day v. Copleston, which
though reported short by the book, he took to be much such a plea as this. For there
it is said the defendant pleaded the Statute for the Discharge of Poor Prisoners, and
that he had been discharged by that Act. [But see the same case reported, Sir Thomas
Jones 165, where 'tis said, the defendant set out in good form all matters and circum-
stances by the Act necessary.]
The Court were all clear of opinion that the plea was ill, even on a general
demurrer; because it did not appear to them, the necessary facts not being averred
to intitle the justices of peace to a jurisdiction, that they had any jurisdiction in this
case; and judgment was given for the plaintiff. Adjudged accordingly, Hil. 5 Ann.
B. R. intr. Woodrington et Deverill, intr. Mich. 5 Ann. B. R. Rot. 34. Salk. 521, pl. 25.
Holt, 567, and that it was naught on a general demurrer, as that case was, and not
aided by the Statute for the Amendment of the Law.
(a) 2 & 3 Ann. c. 16.
[1265] REGINA vers. BAINES.
Pasch. 5 Ann. B. R. 1706.
Mandamus and Return, post, vol. 3, p. 353.
A certiorari to remove proceedings against several persons will not remove any
proceedings against one of them only. Vide ante, 1199. A peremptory mandamus
for the restoration of an officer shall not be granted, so long as a judgment for his
removal given by a jurisdiction able to remove him, remains in force.
Mr. Baines being removed by the justices of peace of the county of Westmorland,
from the office of clerk of the peace of the said county, obtained a mandamus out of
the King's Bench, to command them to restore him to that office, or to shew cause to,
the contrary; which writ follows in his verbis.
Anna Dei gratia Angliae, Scotiae, Franciae et Hiberniae regina, fidei defensor, &c.
custodibus pacis nostrae, ac justieiariis nostris ad pacem in et pro comitatu illo con-
servandam neenon ad diversas felonias, transgressiones, et alia malefacta, in comitatu
nostro Westmorland perpetrata audiendum et terminandum assignatis, et eorum
cuilibet salutem: Cum Ricardus Baines generosus per prachonorabilem Thomam
dominum Wharton nuper custodem rotulorum pacis nostrao in comitatu nostro.
Westmorland praedicto debite nominatus et appunctuatus fuit clericus pacis comitatus
praedicti; qui quidem Thomas dominus Wharton plenam adtunc habuit potestatem
et authoritatem (ut custos rotulorum ejusdem comitatus) ad nominandum et appunctu-
andum eundem Ricardum Baines clericum pacis ejusdem comitatus, habendum et.
tenendum officium clerici pacis comitatus praedicti, quamdiu se bene gereret; idemque
Ricardus in officium praedictum et exercitium inde debito modo et rite admissus fuit,
virtute cujus idem Ricardus ad exercitium officii praedicti, necnon ad proficua inde
capienda juste intitulatus fuit et existit; vos tamen justiciarii praedicta eundem
Ricardum ab executione officii praedicti minus rite amovistis, et ipsum ad exequendum.
officium praedietam recusatis, ad grave damnum ipsius Ricardi, sicut ex querela sua.
2 LD. RAYM, 1265.](ViewImageLocal?handle=hein.slavery/ssactsengr0990&div=1&collection=&method=preview&ext=.png&size=3)