Luther v. Holland, 1 N.C. 132, 1 Mart. 132 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 132, 1 Mart. 132

Luther vs. Holland.

Trin. 2 Car.

THE plaintiff brought debt on the statute 5 El. 9. p. 304, for perjury, and declared that Sir Robert Rich was one of the Masters in Chancery, and had power to administer oaths, and shewed that there was a suit between him and I. S. in the King’s Bench, in ejectione firmæ, and the defendant came before Sir Robert Rich and made affidavit, that the plaintiff had made a lease by grant to I. S. whereupon it was decreed that I. S. should have possession.

Bramton, Serj.

This action lies; because the affidavit is not here, upon the process, but on the main point in question, the establishment of the possession, and we alledge that Sir Robert Rich had power to take oaths.

Goldsmith, e contra.

*1. It is on an affidavit. 2. It is not alledged to be in court. He cited a case where an action was brought upon an affidavit, before Mr. Myles, in the Star-Chamber; yet as it was not said to have been made in court, it was held no action laid.

Doderidge, J.

The plaintiff ought to have shewn it in the declaration. Masters in Chancery in ancient times were clerks of the court, and their office was and is now to sign writs. Hence, now all original writs are signed by them. The statute in speaking of clerks intends them. It is but lately they have had commissions of Judges.

Whitlock, J.

They were called Magistri because they were priests. The Lord Chancellor had the disposition of small benefices, in order to prefer the clerks to them.

Doderidge, J.

This is the reason why they could not marry, till they were enabled so to do by the statute of 14 H. 8. 8.

Curia. Quærens nihil capiat per bill. Antea, p. 38. Noy 80.