6 MOD. 149. EASTER TERM, 3 QUEEN ANNE. IN B. R.

907

dieted, it would do: there was a time when hereticJcs were put to death, yet it never
was actionable to call a man a heretick (c).
And the judgment arrested, viz. quod quer' nihil* cap\ &c.

CASE 209. HARVEY against BROAD.

If a writ be returned as executed on the fourteenth of June last past, it shall refer to the
day and not to the year.—S. C. post, 159, 196. S. C. 2 Salk. 626. S. C. Holt, 761.
Judgment was given by default in the Common-Pleas, and a writ of error of it
there. Upon the general error assigned, it was shewed, that the writ of inquiry was
returnable tres Trinitatis, which in fact happened to be Sunday the fourteenth of June.
The writ was returned executed the fourteenth of June ult. pmterit1, which must
be a year before.
Per Curiam. A writ of inquiry may be executed on the day on which it is return-
able, and the ult1 pmterit1 is but a mistake, the return being made after the fourteenth
day; and the uW pmterit' was intended to go to the day, and not to the year, and
therefore you may amend it in Common-Pleas.
But what is fatal is, that tres Trinitatis is the Sunday, and right essoin-day of the
term; and though the essoins be kept on Monday, yet a writ returnable tres Trinitatis,
when that falls on a Sunday, though the return be kept on the next day, cannot be
executed on the next day.
And therefore the judgment was reversed nisi (a).

[149] CASE 210. COLE against TURNER.

Before Holt, Chief Justice, at Nisi Prius.
To touch another in anger, though in the slightest degree, or under pretence of
passiug, is, in law, a battery.—S. C. Holt, 108.
Holt, Chief Justice, upon evidence in trespass for assault and battery, declared,
First, that the least touching of another in anger is a battery.
Secondly, if two or more meet in a narrow passage, and without any violence or
design of harm, the one touches the other gently, it will be no battery.'
Thirdly, if any of them use violence against the other, to force his way in a rude
inordinate manner, it will be a battery; or any struggle about the passage to that
degree as may do hurt, will be a battery (a).
Note, It was in action of battery by husband and wife, for a battery upon the
husband and wife, ad damnum ipsorum; and though the plaintiff had a verdict, yet
the Chief Justice said, he should never have judgment.
And the judgment was after arrested above upon that exception.

CASE 211. TURNER against NURSE.

An order or bare commission of Chancery is no evidence.

An order of the Court of Chancery is not to be given in evidence, without pro-
• ducing a copy of the bill on which it was made (b); yet a commission out of
(c) See 1 Com. Dig. "Action of Defamation"(F.).
(a) See the case of Davy v. Slater, post, 250. Swan v. Browne, 3 Burr. 1595. 1 Bl.
Rep. 496, 526.
(a) See Year Books 7 Edw. 4, pi. 26, the 3 Hen. 4, pi. 9, the 22 Assize, pi. 60,
and Bro. Abr. "Trespass," 236, 336.
(b) In an action upon a wager, whether a decree of the Court of Chancery would
be reversed on appeal to the House of Lords, a copy of the reversal is sufficient evidence
without producing the Minute-Booh itself, and such copy need not be on stamps, Jones
v. Randall, Cowp. 17.

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908 EASTER TERM, 3 QUEEN ANNE. IN B. R. 6 MOD. 150.

Chancery to abut and bound certain land, returned and acquiesced-under, and an
enjoyment accordingly, is good evidence of the land so bounded being rightly
bounded; but a bare commission returned without more, is no evidence at all.

CASE 212. ANONYMOUS.

The grantee of wreck has, of necessity, a right of way to it, over the land of another.
Per Curiam. First, if a man, either by grant or prescription, have a right to wreck
thrown upon another's land, of necessary consequence he has a right to a way over
the same land to take it.
Secondly, the very possession of the wreck is in him that has such right before
any seizure.
Originally all wrecks were in the Crown, and the King has a right to way over
any man's ground for his wreck; and the same privilege goes to grantee thereof.

CASE 213. HALE against CLARE.

If a plaint in an Inferior Court be at the suit of C. F. generally, and the declaration

be at the suit of C. F. executor, the variance, though fatal before, is cured after
verdict.—S. C. 1 Salk. 266.
A writ of error of a judgment in the Palace-Court, and a variance between the plaint
and the declaration, viz. that the plaint was entered at the suit of C. F. generally,
and the declaration was C. F. executor, &c.; so that the plaint was in his own right,
and the declaration as executor. This was assigned for error.
[150] Per Curiam. If this variance had been in a record certified from the Court
of Common-Pleas, between the original and the declaration, where the original is only
by way of recital, the party might alledge diminution, and have the right original
if any certified; but the difference is between Inferior and Superior Courts, for no
diminution can be alledged of a record removed out of an Inferior Court, but the
Court must take it as they find it at first; and this variance is fatal. The want of
a plaint in an Inferior Court, is like the want of an original in a Superior Court, and
therefore curable by verdict (a). So, if there had been a verdict in this case, the
question would be, whether we would not look upon a plaint in another action to
amount to the want of a plaint, and so aid it by the verdict (b). But it being not
after verdict, that matter falls not under consideration.
By the whole Court the judgment was reversed.

CASE 214. WHITE against BODINAM.

In covenant for quiet enjoyment, the defendant may plead that he entered " t o dis-
train, absque hoc that he ousted him of the premises" without saying "or any part
thereof1"—S. C. 2 Salk. 629.
Lessee for years brings covenant against the lessor, declaring upon a demise and
covenant for quiet enjoyment, and assigns for breach, that the lessor entered upon
him, and ousted him of the premises.
The defendant pleads, that he entered to distrain for rent arrear, absque hoc that
he ousted him de prcemissis.
To which the plaintiff demurs, thinking the traverse ill; because if he had ousted
him of any parcel of the premises, he had a good cause of action; therefore he
should have traversed, absque hoc that he ousted him of the premises, or any part
thereof.

(a) See 18 Eliz. c. 14, and Parker v. Grigson, Cro. Car. 282.
(b) See Wilson's case, Hob. 130, Willis v. Woodhouse, Hob. 264, accordant But
Prat v. Dixon, Cro. Jac. 108, contra.

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