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![handle is hein.slavery/ssactsengr0971 and id is 1 raw text is: Holt C.J. As soon as a negro comes into England, he becomes free; and one may
be a villein in England, but not a slave: you should have averred in the declaration,
that the sale of the negro was in Virginia, and by the laws of that country negroes
are saleable; for the laws of England do not extend to Virginia, and we cannot take
notice of their law but as set forth : therefore he ordered the plaintiff should amend
and alter his declaration, that the defendant was indebted to him so much, for
a negro sold here at London, but that the said negro, at the time of the sale, was in
Virginia; and that negroes by the laws and statutes of Virginia may be sold as
chattels.
Powel J. In a villein the owner has a property, but 'tis an inheritance; the law
takes no notice of a negro.
[496] Nisi PRIUS.
BULLOCK versus PARSONS. Pasch. 4 Ann.
2 Salk. 454.
In debt. After verdict for the plaintiff, Mr. Eyre moved in arrest of judgment,
that the distringas was with a blank, and debiti (the cause of action) omitted, so it
was a distringas in another cause. On the other side it was urged to be as no
distringas, and aided by verdict; and that it was amendable. Hob. 246. 2 Cro. 528.
The Court made two questions: 1st, Whether the Judge of Nisi Prius had authority
to try this issue.
Et per Holt C.J. his authority is not by the distringas, but by the commission of
assize; for the 13 E, 1, c. 30, gives the trial by Nisi Prius before Justices of Assize ;
at first these trials were bad upon the venire facias; and the clause of nisi prius is
by the 13 E. 1, c. 30, ordered to be inserted in the venire. These trials continued to
be upon the venire till 42 E. 3, c. 11, which requires, that the names of the jurors be
first returned into Court. By this Act two inconveniencies were remedied. 1st, The
party might be prepared to make his challenges: and, 2dly, The defendant was
prevented by this means to cast an essoin at Nisi Prius, which was used frequently
before. 3dly, The Court held no distringas, or the want of a distringas, to be aided
by a verdict; but an ill distringas was not: and remembered a case wherein Saunders,
of counsel at the Bar, dropped the distringas out of his hand, that he might want a
distringas, which would be aided, and not keep and shew an ill one, which would be
naught. Also they held it amendable, and gave judgment pro quer'.
[497] NOLLE PROSEQUI.
GODDARD versus SMITH. Mich. 3 Ann.
Mod. Cases 261, 262.
Action of the case for indicting him maliciously of barretry, setting forth, that he
was debito modo inde exonerat'; and at the trial, to prove it, he produced a nolle
ulterius prosequi by the Attorney General.
Holt C.J. I doubt whether this evidence will maintain the declaration; for the
entring a non pros. is only putting the defendant sine die, and so far from discharging
him of the offence, that it doth not discharge any further prosecution upon that very
indictment; but notwithstanding new process may be made out upon it: a nolle
prosequi cannot be pleaded to a new indictment for the same crime ; and it would be
unreasonable to allow a man that gets off by a nolle pros. to maintain an action for a
malicious prosecution. And he said, he had known it thought very hard, that the
Attorney General should enter a nolle prosequi upon indictments, and that it began
first to be practised in the latter end of King Charles the Second's reign ; but that oil
informations it had been frequently done.
1173
:HOLT, Xe B. n9o.
NISI PRIUS](ViewImageLocal?handle=hein.slavery/ssactsengr0971&div=1&collection=&method=preview&ext=.png&size=3)