boil and scarboroug hill banc sup hill r action upon the case upon a promise  and judgement upon a demurreriand writ of error to reverse it Scarborough  biought a action upon the case in the common plea against boil upon a promise  that whereas his son William do owe unto Scarborough and Scarborough do intend  to sue a ne exeat kingdom against he to hinder he from go out of England till  he may recover his debt boil the defendant do promise that if he will forbear  to sue out a ne exeat kingdom against his son William he will pay the debt  upon this action the plaintiff obtain a judgement upon a demurrer whereupon  boil bring a writ of error to reverse this judgement the plead in the common  plea be thus the defendant in the action in the common plea be sue by the name  of Robert boil Esq who appear and plead the statute of limitation of action of  James the plaintiff reply that he take out a original against he within year  out of the chancery by the name of Robert boil Esq and outlaw he upon that  original and that afterward the defendant boil come in and reverse the  outlawry the defendant rejoin and say protestand that he take not out such a  original within year for plea say that he be a knight at the time of the  original sue forth the plaintiff surrejoyns that he come in and reverse the  outlawry upon that original for want of proclamation by the name of Robert  boil esquire the defendant by way of rebutter say that he be a knight at the  time of the outlawry reverse the plaintiff by way of surrebutter say he  reverse the outlawry by the name of Robert boil Esq upon this the defendant  demurrer and upon the demurrer judgement be give for the plaintiff and upon  this the writ of error be bring in this court the error assign be that here be  no good consideration for this promise for there be no ground of action show  against the son nor that he have be at any charge in the prosecute any action  against he and Rosyer and Langdales case in this court and bedwell and cotton  case hob be cite and that there be no such writ as a ne exeat kingdom in the  register but only a writ to give security not to go out of the realm to the  public prejudice of the king and his people and here be no such matter but  only that he owe and therefore he will sue out the writ and though the  consideration shall be good yet be not the plaintiff replication good to tie  the second writ to the first for he do not say that the second be pro One et  eaden causan and so it be incertain brook trespass h and there may be several  promise make here in one day and if the replication be good yet the rejoinder  be good h he only style report admit that he be a knight be the same person  which be sue by the name of a esquire hob Slukelyes case and here be a  judgement by a nothing to say and no warrant of attorney for it be in Latin  which be since the Act for law proceed to be in English be not good and so it  be pray the judgement may be reverse latch on the other side pray to affirm  the judgement and he argue that here be a good consideration to ground the  promise upon for this writ of ne exeat kingdom may be sue forth by any one  here be a benefit to the party in the forbear to sue it forth and here be good  cause to move for this writ and it be in the discretion of the king to grant  it or not but it concern he in his honour to grant it king Brit cook Instit  there be caution to be take of person licence to go beyond sea that they pay  their debt that the replication be good and it be not necessary to aver that  the second original be for the same cause first because it be in a action upon  the case and be set forth at large which show verbatim that it be for the same  cause and be plain in it self and that it be say that he sue out the second  original pro causan preceding which be a sufficient aver style report er p  mean if a averment be necessary and the variance in the damage argue not that  there be another cause of action for when the second original as sue forth the  damage be increase by increase of time it be a year after the sue forth of the  first for the rejoinder it be to be consider whether the party be estopped  thus to plead that if he be not yet whether the matter set forth be good for  the I hold he be estopped by come in gratis as a esquire to say that he be a  knight and he nothing bring in custody Dyerl there he shall plead no other  name but here he have not allege it as he ought for he ought to conclude  without hoc that he be a esquire and he have affirm himself to be a esquire by  say preceding c but he ought to have allege special that Robert boil knight  who be sue by the name f Robert boil esquire and e f be against the otherbooks  and the law be otherwise it be true that the old book of entry title trespass  and some other precedent which pass sub silence be against I but the law  general be against those precedent as rastal entry brief h which say if he  come in he be estopped Br title Deff h h and many other book and the book of h  which be object on the other side be against they and dyer f but though be be  not estopped yet we may take advantage of the first original writ for it be  but abatable by the misnomer and so not abate and here be a flaw in the  rejoinder for he ought to have traverse that he be not a esquire which he have  not do that the of march be after the original sue forth and so it be  uncertain in respect of time when he be a knight blow by mor a h and the  warrant of attorney be good though it be in Latin and if it be in English it  will be erroneous for the entry be material and the constant practice be not  to enter the warrant before the issue Trin James Morley and Morley in this  court and here be not the entry of the warrant it self but entry be that he be  attorney by warrant roll chief justice if one bring a writ of and it be abate  and then he bring another writ for the same debt may he increase the damage  accrue betwixt the first writ and the second certain no for the second writ be  but the renew of the first writ and be not a new writ but here be diverse  point considerable they efore speak again to it but a ne exeat kingdom be  usual sue forth in such case as this although that original this writ be only  use in business which concern the state and not in private case and the  forbearance to sue it be a good consideration to ground a action upon at  another day the case be again put by Christ turner style report and he pray  the judgement may be reverse and in his argument be make these question  whether there be a good consideration to raise a promise and be hold there be  not because it do not appear that the plaintiff have any cause of action nat  short catalog a a ne exeat kingdom be at the suit of the king and not at the  suit of a common person and whereas it be object that the king may stay any  one from go beyond sea I answer any that he can stay one for ever cause but  for a cause which concern the state and if there be in our case a good cause  to sue out this writ the agreement betwixt the party not to sue it out be not  a good agreement hob dyer every one may go out of the kingdom at his pleasure  that here be no averment that both the original be sue forth for one and the  same cause although that they agree literal hob Rep foster and Jacksons case  that here be no good averment because it can be thereby know for what cause  the last original be sue forth cook Inst f that though there be a averment yet  it be void by the party own show e h and our case differ from the case of lib  ass object for there the averment be the defendant averment but here it be the  plaintiff also the damage in the first original and the damage in the second  original do differ which ought not to be but they shall agree otherwise the  original shall not be presume to be both of they for one and the same cause  Rep Spencer case h and the party shall not be estopped here to say that he be  a knight and this misnomer be well plead for there be but two way to plead  misnomer and we have plead it one of those way cook entry title outlawry  rastal brief title trespass and the precedent of e and h be with we that he  shall not be estopped and be plead not express that he be a esquire but only  by way of implication sergeant Twisden on the other side pray for judgement  and he argue that here be a good consideration for he be entitle to have this  writ by style report er p Fitzherbert nat short catalog where it be say any  person may make a surmise to have this writ for it conduce to the benefit of  the plaintiff and of the defendant also and the king may hinder any one from  go beyond sea car mead case James c B Hall and wool S case cite by Hobart to  be adjudge Elizabeth Rippon and north that the replication be good  notwithstanding the objection against it that here be not a averment that the  second original be for the same cause as the first be for it be not necessary  to make such a averment because that this be a special particular action and  not a general action yet there be a averment if it be necessary three here be  no variance though the damage do differ for the wrong do be proper the cause  of the action and not the damage suffer by the wrong and the increase of time  have make the damage to increase and so to differ h f in a second deliverance  hill car enter car in this court this point be resolve in Theophilus finch and  law case and the misnomer object be not material for he be estopped to plead  it because he appear gratis by the name of Esq not upon the sheriff return  dyer he must be admit to be the same person and so be estopped to say the  contrary h f the book of h f be not against I for there the party come in upon  the return of the sheriff and not voluntary as he do here also the warrant of  attorney enter in English do no hurt notwithstanding the objection that all  plead ought to have be in Latin at the time of the give of the warrant for a  warrant of attorney may be enter at any time because there be no precise time  direct for the enter of it e f e f h f Edward f stat h c a warrant of attorney  enter at any time pen the plea be good at style report the time of the enter  of it by the late statute it ought to be in English roll chief justice  different opinion say he may increase his damage by his second action  otherwise it will be unreasonable for he have be delay twenty year by the  outlawry of the defendant and here be also a good consideration to ground the  action videlicet the forbearance to sue out this writ of ne exeat kingdom for  it be beneficial to the defendant and it be for the king honour to grant it  and the party by forbear to sue it be free of trouble by not be stay in  England to be sue here and here be no need of a averment for it appear that  both the original be sue forth for one and the same cause but the question be  touch the manner of the plead whether he be not estopped to say that he be a  knight and not a esquire and I see no reason why he shall be estopped to say  so notwithstanding his voluntary come in to reverse the outlawry for he come  in to save himself from arrest and the lie under a outlawry and it will be  mischievous if he do it not and take all the plea together methinks it be good  and the entry in English be good for it be to affirm a judgement and be good  both way we will take that which make the judgement good yet let it be argue  again at another day the case be put again and argue by sergeant Glyn that the  judgement be not good and first he admit that here be a good consideration to  ground the action upon that he make question whether there be a good averment  touch the go beyond sea and touch the sum and he say that the judgement give  in the common plea be for the reason that be come in to reverse the outlawry  by the name of esquire and this be by estople but I conceive it be no estople  for knight be part of his name and so the outlawry be not good h there be no  estople make by the word predict but if it be a estople yet the plaintiff rely  not upon it in his plea but upon other matter and that for these reason  because the course of plead be general so in reverse of outlawry as it be here  and so be the old book of entry although some precedent run the other way and  in the commonplea it have beef adjudge good as it be here plead and he may  well aver that he be not the same person that Estoples be take strict against  he that plead they and be not favour in law and shall not be therefore take by  implication cook light f b but if there shall be a estople here it must be by  implication only and there ought not to be a estople against a estople in the  same record as it will also be here for he may as well be estopped to say that  he be a knight as to say that he be a esquire next the plaintiff conclusion be  not good for he rely not upon the estople and a good plea with a ill  conclusion be not good h f Rep Rawlins case roll chief justice make he not the  conclusion upon the record let it be read upon the read it he say that he rely  not on the conclusion and so the estople style report er p be rIyed upon  sergeant Twisden in our surrebutter we rely upon the estople although we do it  not in our rejoinder and so it be good sergeant Glyn but you do not conclude  upon the record to wit whether you shall be receive against the record as you  ought to do h f roll chief justice it be in effect say so though it be not in  express word finch henage on the other side argue in affirmance of the  judgement and say the question be whether his come in by the name of esquire  to reverse the outlawry shall not be a estople to he to say afterward that he  be a knight and I conceive it be because he that come in gratis to reverse a  outlawry shall not plead misnomer e f he who come in gratis be not prejudice  if he be not allow this plea but it be otherwise if he come in upon process to  reverse it that it be less mischievous to deny the plea of misnomer than to  allow it where it be not Allowable the plead of the misnomer if it be not true  may inveigle style report the court e e f h f there be kind of misnomer to wit  misnomer of the Christian name ivy of the surname that of addition of  profession that of addition of place and in none of they shall misnosyner be  plead where the party come in gratis Br Misnosyner e h f h Statham pl error  dyer e f Fitzherbert title misnomer h e and as the case here be he be estopped  to plead misnomer by reverse of the outlawry which be a matter of record and  byit he have confirm his name to be so h f Edward f although he may plead  misnosyner if he come in by a to take in hand yet there he may also plead  another way special if he will and it will be good also h f nor have he here  rely upon his plea of misnomer but upon the want of proclamation and he  reverse the outlawry by the name of esquire and yet now he will say that he be  a knight which be unreasonable h Fitzb protest and this be a allegation contra  factum sutim proprium here be a second original and that be a good original  within the statute and it appear that this second original be against the same  party and so he acknowledge by the record by which the court may be ascertain  that he be the same person and his addition misname shall do no hurt and the  second original be good as the court have agree upon open of the case roll  chief justice he reverse the outlawry as a esquire and afterward say he be a  knight he may come in without wooer to reverse the outlawry where his person  or estate be endanger by it e in debt e but he can plead misnomer yet he may  protest that he be a knight and save himself in another suit which may be  bring against he if he have plead right you agree that he be not estopped here  and it appear that he be the same person and come in gratis by this name yet  it be no estople and the second original be good for it appear that he be the  same person and that by the statute notwithstanding the variance and he may  come in gratis without wooer and take advantage of the error but argue again  to the point whether he inav bring a second original by the statute at another  day it be argue again but I can not hear but h f be cite that there ought to  be a mutual estople videlicet on the part of the plaintiff and of the part of  the defendant roll chief justice it appear to be one and the say party and we  must maintain action against the statute of limitation because by that statute  the benefit of the law be take away in part therefore let the judgement be  affirm hill banc sup to show cause why execution not do return of the sheriff  memorandum the two sheriff of London appear in court in their proper person  upon a rule of court to show cause why they do not grant out execution upon a  judgement give in their court or else to make a sufficient return of a  certiorari direct to they because they have make three insufficient retorns  upon this their return now make be read the effect whereof be that there be no  such judgement as the writ mention to make out execution upon roll chief  justice this be a good return as it now be and if the return be false you may  take your remedy against they for make a false return upon this the council  pray that the party may have a copy of the judgement out of the sheriff office  roll chief style report er p justice you may have a sight of the record and if  they will not suffer you to have it you may have your remedy against they the  rule be that the party shall have a copy of the record