between the Original Writ or Bill and the Declaration Plaint or Demand or for lack of an Averment of the Parties Life or Lives so as it be proved he or they be in Life or for that the Venire facias Habeas Corpora or Distringas was awarded to a wrong Officer upon an Insufficient Suggestion or that the Visne was in some part Mis-awarded or sued out of more or fewer places than it ought to be so as some one place be right named or for Mis-naming any of the Jurors either in the Sir-name or Addition in any of the Writs or Returns thereof so as Constat de persona or for want of a Return of any of the said Writs so as a Panel be returned and annexed thereunto or for that the Officer's Name is not set to the Return so as it appears by Proof that the Writ was returned by him or by reason that the Plaintiff in an Ejectione firmae or in any Personal Action being under Age did appear by Attorney and the Verdict pass for him This Act shall not extend to any Writ Declaration or Suit of Appeal of Felony or Murder nor to any Indictment or Presentment of Felony Murder or Treason nor to any Process upon any of them nor to any Writ Bill Action or Information upon any Penal Statute And by 16 17 Car. 2. cap. 8. it is Enacted That after Verdict Judgment shall not be stayed nor reversed in the King's Courts of Record at Westminster or Courts of Record in the Counties Palatine of Chester Lancaster or Durham or Courts of the great Sessions in any of the Twelve Shires of Wales for default of Form lack of Pledges or but one Pledge to Prosecute Returned on the Original Writ for default of Entry of Pledges upon a Bill or Declaration or for default of bringing into any Court of any Bond Bill Indenture or other Deed mentioned in the Pleading or for lack of Allegation of bringing into Court of Letters Testamentary or Letters of Administration or by reason of the Omission of Vi Armis or Contra pacem or for mistake of the Christian Name or Surname of the Plaintiff or Defendant Sum of Mony Day Month or Year being rightly named in any Record preceding or in the same Record whereunto the Defendant might have Demurred Nor for want of Hoc paratus est verificare or Hoc paratus est verificare per Recordum or for that there is no right Visne so the Cause were Tried by a Jury of the County or Place where the Action is laid nor for not Alledging or Omission of Prout patet per Recordum Nor shall any Judgment be Reversed after Verdict Confession by Cognovit Actionem or Relicta Verificatione or for lack of Misericordia or Capiatur or by reason that a Capiatur is Entred for a Misericordia or a Misericordia for a Capiatur Nor by reason that Ideo Concessum est per Curiam is Entred for Ideo Consideratum est per Curiam Nor for that Increase of Costs after a Verdict in any Action or where a Non-suit in Replevin is not Entred to be at the Request of the Party to whom the Judgment is given Nor by reason that the Costs are not Entred to be by Consent of the Plaintiff But that all such Omissions Mistakes and such like as these not being against the Right of the Matter of Suit nor whereby the Issue or Trial are entred may be Amended by the Judges of the Courts This Act shall not Extend to Appeals Indictments or Presentments of Treason Felony or Murder nor to Bills Actions c. upon Penal Statutes other than concerning Customs and Subsidies of Tonnage and Poundage And by the same Statute it is provided That no Execution shall be stayed in the same Courts by Writ of Error or Supersedeas after Verdict and Judgment in any Action Personal whatsoever till Security given according to the Statute made in the Third Year of the Reign of King Iames the First Chap. 8. whereby it is Enacted That in Writs of Errour brought upon any Judgment after Verdict in any Writ of Dower or Ejectione firmae Execution is not to be stayed unless the Plaintiff in the Writ of Errour become bound to the Plaintiff in the Action as the Court shall Order That if the Judgment be affirmed or the Writ of Errour discontinued by default of the Plaintiff or the Plaintiff be Nonsuit in the Writ of Errour that they shall pay such Costs and Damages as the Court shall appoint And the Court may Enquire what Special Loss the Plaintiff in the first Execution hath by this Delay and this the Court must also give him by way of Increase of Damages This Act doth not Extend to Writs of Errour brought by Executors nor Administrators nor any Action Popular nor other Action brought on a Penal Statute Except Debt for not Setting out of Tithes not to any Indictment Presentment Inquisition Information or Appeal And here we may also Observe as before That neither of these two last cited Statutes extend to Aid any Person before but after Verdict and not upon Demurrer Nor doth either of them help Mis-pleading or defects in Indictments Appeals Informations Inquisitions or Presentments or any Actions or Suits upon Penal Statutes except such as relate to Customs and Subsidies of Tonnage and Poundage What Defects in Pleading or otherwise are aided by the said Statutes we shall give you some Examples of as follows And first see Pasch. 23 Car. 1. Rotulo 51. in B. R. Morefield and Webb's Case Reported by Aleyn fo Placito Where in a Writ of Errour upon a Judgment in the Palace Court at Westminster in an Action upon the Case upon a Promise and Verdict for the Plaintiff it was moved for Errour That the Habeas Corpora Iur ' was not Returned Served but only a Panel of the Juror's Names annexed to it which Case is Aided by the Statute of 21 Iac. 1. cap. 13. of Ieofails which helpeth when there is not any Return upon the Writs of Venire facias Habeas Corpora Iur ' and Distring as Iur ' so as a Panel of the Names of the Jurors be Returned and annexed to the said Writs Whereupon it was Objected 1 That the Statute of 21 Iacobi extends only to Writs and not Precepts which issue out of the Palace-Court 2 That the Palace-Court was Erected by Letters Patents 6 Car. 1. which was after the Statute But Resolved 1. That the Palace-Court is within the Intention of that Statute for it provides Amendment in any Action Suit Plaint Bill or Demand And Justice Iones was angry That Rolls question'd if this Statute did extend to the Grand Sessions in Wales But agreed per Cur. That the Statute shall not extend to Inferiour Courts in these Points 2. Resolved That it Extends to Courts Erected after the Statute and so not within the Equity thereof And see Mich. 13 Car. 2. in B. R. Tubb and Walwyn's Case Keble Vol. 1. Pl.
137. Tit. Averment where the Plaintiff moved to stay Judgment in Ejectment because the Life of the Party during whose Life the Defendant hath a Lease was not Averred according to 10 Ed. 4. 18. which by 21 Iac. 1. cap. 13. is to be Inquired of by the Sheriff or other Officer as the Court shall think fit And by Foster the like Rule was made before the Statute in the Lady Morleys Case after Verdict as here But see Mich. 21 Car. 2. Lee versus Edwards in Modern Reports fo 14. where an Action upon the Case was brought upon two Promises And the First was That in Consideration the Plaintiff would bestow his Labour and Pains about the Defendant's Daughter and would Cure her the Defendant did Promise to pay so much and would also pay for the Medicaments Secondly In Consideration the Plaintiff had Cured the Defendants Daughter the Defendant did Promise to pay so much And to stay Judgment it was Objected by Raymond That the Plaintiff did not Aver in his Declaration That he had Cured the Defendants Daughter the Consideration of the first Promise being Future and both Promises found and entire Damages given But Twisden said It is well enough for now it lies upon the whole Record whether he hath Cured her or not but if it had rested upon the first Promise only it had been ill And in the second Promise there is an Averment of the Cure so that now after Verdict it is helped and the want of an Averment is helped by a Verdict in many Cases Vide Hil. 22 23 Car. 2. Rotulo 233. in B. R. Hoskins versus Robins in Sander's Reports Part 2. fo 32. where said That the Insufficiency of Pleading a License is helped by the Statute of Ieofails after Verdict And see Mich. 24 Car. 2. in B. R. Holman against Dodde Keb. Vol. 3. Tit. Amendment Pl. 15. where the Plaintiff in Debt upon an Obligation to perform Covenants in an Indenture assigns Breach for Non-payment of Rent at Michaelmass according to the Lease but then or 40 Days after by the Bond. To which the Defendant did Rejoyn That he paid the same at Michaelmass Et de hoc ponit se super Patriam Et praedictus the Plaintiff similiter After Verdict it was Moved by Staples to stay Judgment for that the Issue is Mis-joyned and tho' it were quod praedictus Robertus who was the Defendant for Rowlandus the Lessee and the Directions to the Clerk were right yet being no Issue there was no Verdict and so not Aided by the Statutes of 16 17 Car. 2. cap. 8. And here it s no Issue That the Defendant did Perform Et de hoc ponit c. Et praedictus the Plaintiff similiter For as in 1 Cro. 317. Pl. 380. it s an Issue by the Rejoynder That Robert did not pay c. therefore not Aided by the Statute according to 2 Cro. 579. Pl. 9. in Aldridge's Case But the Rent being Reserved only at Michaelmass by the Lease tho' the Bond be at Michaelmass or 40 days after is well enough Vide Pasch. 26. Car. 2. in C. B. Naylor versus Sharpley al' Coronator ' Com' Palatin ' Lanc ' in Modern Reports 188 189. where one brings Debt against the Sheriff of that County and Sues him to the Outlawry and directs a Capias to the Chancellor who makes a Precept to the Coroners of the same County being Six to take his Body and have him before the Justices of the Common Pleas at Westminster at such a day And one of the Coroners being in sight of the Defendant and having Opportunity enough to Arrest him doth it not but they all Return Non est inventus tho' he might have been Taken every day Whereupon the Plaintiff brings his Action in Middlesex against all the Coroners and has a Verdict for 100 l. And to stay Judgment Serjeant Baldwyn Objected That the Action ought to have been brought in Lancaster He agreed to the Cases put in Bulwer's Case in Co. Lib. 7. where the Cause of Action ariseth equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancellor of the County Palatine only who makes a Return to the Court. He insisted upon Hussey and Gibb's Case in Dyer 38. and further said That this Action is grounded upon two Wrongs one The not Arresting him when he was in sight and the other For the Returning Non est inventus when he might have easily been taken Now for the Wrong of one of them they are all charged and entire Damages given He Allow'd That two Sheriffs make but one Officer but said That every Coroner is responsible for himself only and not for his Companion Serjeant Turner and Pemberton contra That the Action was well brought in Middlesex because the Plaintiff's Damage arose there by not having the Body here at the Day They cited Bulwer's Case and Dyer 159. b. and Agreed That the Chancellor of the County Palatine Returns to the Court the same Answer that the Coroners Return to him so that their False Return is the Cause of the Prejudice that accrâ—es to the Plaintiff in this Action the Ground whereof is the Return of Non est inventus which is the Act of them all That one of them saw him and might have Arrested him and that the Defendant was daily to be found c. are but mentioned as Arguments to prove the False Return And they Conceiv'd That an Action would no more lye against one Coroner than against one Sheriff in London or any other Place where there are two Then as to the first Objection taken by Baldwyn they said That admitting the Action to be laid in another County than where it ought yet after Verdict it is Aided by the Statute of 16 17 Car. 2. if the Venire come from any place of the County where the Action is laid It is not said in any place of the County where the Cause of Action ariseth Now this Action is laid in Middlesex and so the Trial by a Middlesex Jury is good let the Cause of Action arise where it will Cur ' That Statute doth not help your Case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the words Proper County implies But they inclined to give Judgment for the Plaintiff upon the Reasons given by Turner and Pemberton And see Keble Vol. 2. Pl. 8. Tit. Escape Hepping against Huneyard where in an Action on the Case for Rescuing of one taken in Execution after Verdict Stroud moved to stay Judgment on Hetley 34. That no Action upon the Case will lye against the Sheriff or by him Sed non allocatur for the Sheriff may be a Beggar and therefore though the Plaintiff may have an Action upon the Case against him for the Escape yet he may take the
Prisoner again And as to its being said That the Party being Arrested by the Sheriff of Devon at Topsham the Defendant rescued him at Exeter the Court agreed the Escape to be the same all over England but that it ought to have been shewed how the Party came into Exeter For this cannot be intended nor being the Substance of the Matter is it Aided by the Statute of 16 17 Car. 2. cap. 8. And Idem Vol. eodem Pl. 26. Frain Uxor Administratrix of Smalman versus Painter where in an Action of Debt for Rent the Plaintiffs did declare That the Intestate out of his Term made an Under-Lease to the Defendant yielding and paying c. and that the Intestate died such a Day and Administration was committed to the Plaintiff's Wife To which the Defendant did plead That the Intestate Assigned to K. to commence after his Death Absque hoc That he died possessed of such a Term prout And upon this Traverse Issue was joyned and Verdict for the Plaintiff And to stay Judgment Sanders Objected 1 That the Action was in the Debet and Detinet which cannot be by Administrators as Plaintiffs 2 That the Rent is reserved Half-yearly and there is a Year and Quarters Rent found due which is impossible Iones pro Quer ' The Right is Tried and so the Declaring in the Debet and Detinet when it ought to have been in the Detinet only is Aided by the Statute of 16 17 Car. 2. cap. 8. of Ieofails as in the Case of Cumber against Walton 3 The Exposition of the Year and Quarter is well enough the Time being one of the Terms upon which it was reserved Cur ' If it did not appear the Plaintiff were Administrator as it doth the Debet were of the Substance and Aided by the Statute which the Court agreed and the Second Exception was mistaken otherwise it had been ill And Idem Vol. eodem Pl. 51. Tit. Slander Croft against Winter where an Action upon the Case was brought for words spoken in London of a Minister viz. He is a Thievish Rogue and stole a Plate out of Wadham-College in Oxon. And the Plaintiff having a Verdict in London to stay Judgment Sanders moved for the Defendant That here was a Mis-Trial which ought to have been at Oxford as in Ford and Brook's Case Cro. Part 3. 261. Iones contra on the Statute of 16 17 Car. 2. cap. 8. this being Tried by a Jury in the proper Place and the Justification should have been in London the Felony being Transitory and not Local as Robbery c. And the Court Agreed this was a Ieofail Twisden The Felony is Local whether it come in by way of Justification or Declaration and as in the Case of Throbwalke the Justification makes the Matter to arise there as where a Constable on an Action laid here in London doth Justify in Essex there the Trial must be in Essex Keeling Chief Justice and the Court Agreed to it in the Case of a Constable But in Case of a Sheriff or Bailiff it s Aided by the Statute especially the words being confest to be spoken in London And Judgment was Affirmed CHAP. VIII Of Intendment IN the next place we shall give an Account more amply than before What Construction the Law doth make of the Intention of the Parties as to Contracts and other Matters And for this first see Cro. 1 Part 141. Paynter versus Paynter Trin. 6 Car. 1. in B. R. where in an Action upon the Case sur Assumpsit the Plaintiff declared That the Defendant Promised if the Plaintiff ad ejus Instanciam would Marry his Daughter he would pay unto him 20 l. and give to him 20 French Crowns towards a Wedding-Dinner And the Plaintiff saith in Fact That he Married the Defendants Daughter and required him to pay the 20 l. which he had not paid Upon Non Assumpsit it being found for the Plaintiff it was Moved That the Declaration was not good for the Promise is but Conditional viz. If the Plaintiff ad Instanciam Defendentis would Marry the Defendants Daughter and so he hath not Averred the Performance of the Condition But the Whole Court conceived upon this Agreement To Marry the Daughter ad Instanciam and he Marrying her it shall be Intended ad Instanciam without Averment And see Cro. 1 Part 163. Mich. 7 Car. 1. in B. R. Taverner and Skingles Case where the Plaintiff Declared in Debt upon an Obligation with Condition to Perform the Award of I. S. and I. D. so that they made it before the 10th Day of October next under their Hands and Seals And if they do not Agree then to stand to the Umpirage of I. N. so that he made it in Writing under his Hand and Seal before the 28th of October following The Defendant pleaded That I. S. and I. D. did make no Award before the 10th day of October The Plaintiff Replied It is true They did not but I. N. did make the Umpirage and Award before the 28th day of October inter alia the Defendant was to pay 30 l. unto the Plaintiff upon such a day at such a place And for Non-payment c. It was Moved That the Submission was void and incertain for it is That if they do not Agree and it doth not appear to what they should agree sed non allocatur for the words If they do not Agree have the Intendment If they do not Agree to make their Award under their Hands and Seals before such a day For otherwise it is quasi a Non-Agreement within the Condition 2 It was Objected That the Award was void because the Money was appointed to be paid at the House of one W. S. a Stranger sed non allocatur for the Appointment of the Payment of the Money at a Strangers House especially as here being a Common Inn cannot be unreasonable nor an unlawful Act for by Intendment the Plaintiff shall procure such Kindness that the Mony may be paid there so the Award was Adjudged good prima facie and the Plaintiff had Judgment And see Style 's Rep. 465. Wood and Gunston's Case Mich. 1655. in B. R. where in an Action upon the Case for Scandalous words spoken of the Plaintiff viz. for calling him Traytor the Issue was tried at the Bar and the Jury found for the Plaintiff and gave him 1500 l. Damages And upon Supposition that the Damages were Excessive the Defendant moved for a New Trial. It was said That after a Verdict Partiality of the Jury ought not to be Objected or questioned and therefore no New Trial. Glyn Chief Justice It is in the Discretion of the Court to grant a New Trial but that must be a Judicial and not an Arbitrary Discretion and the Court may take notice of the Miscarriages of Juries and grant New Trials upon them For a Jury may sometimes by Indirect Dealing be moved to side with one Party and not to be Indifferent between both Parties but
Prist and so at Issue and the Verdict found That neither the Tenant or the Priee had any thing Where holden That it was found against the Priee and the other Matter Que ils ne unque ount Riens not Material quod nota And see 36 H. 6. 29 30. If a man in Pleading confess any thing contrary to his Form of Action his Writ shall abate but otherwise if the Verdict find the same Then Where the Iury find more than their Issue Vide 45 Ed. 3. 25. the Defendant in Trespass of Battery did plead the General Issue and the Verdict found the Defendant Guilty the day mentioned in the Declaration and another day also ad dampnum decem librarum and good for intended the Assault did continue And 26 Ass. 35. the Verdict did find that the Plaintiff in the Assize was seised and disseised but no Disseisor named and the Writ did abate although not pleaded But 39 H. 6. 13. in Mordancestor the Defendant did plead a Bar which was found against him and the Jury enquiring further of the Points of the Writ did find against the Plaintiff and yet Judgment given for him because there the Points of the Writ ought not to be enquired of And see 7 H. 6. 8 9 20. if the Verdict found the Issue and more as the Issue there being upon a Discent do find the same and a Continual Claim that as to the Continual Claim is Surplusage And so 39 Ed. 3. 38. the Plaintiff did Count in Annuity by Prescription which was Traversed by the Defendant and the Verdict found for the Plaintiff and also Riens arrear and Holden as to that Surplusage The like 13 Ass. 4. in an Assise of Rent the Defendant made Default and the Plaintiff to ascertain the Count made Title to a Rent-Service and the Jury found a Rent by Prescription and yet the Plaintiff Recovered quod nota And 13 Ass. 2. in an Assize by I. S. Clerk the Verdict found That he was Prebend Nient nosm and the Assize did abate See more hereof in the Division immediately before the last Case And In some Cases the Verdict found for the Plaintiff and yet he shall be Barred As 40 Ass. 6. in a Mortdancestor all the Points of the Writ found for the Plaintiff and yet he was Barred for this Reason for although he was Heir to his Father yet because his Elder Brother by the Half-Blood did Enter he was Barred Then Where the Iury give divers Verdicts As Mich. 3. 4 Eliz. Dyer 204. To part they gave a Verdict at the Bar for the Plaintiff and being Remanded to enquire of the rest came again and changed that Verdict and with the rest gave for the Defendant So in Sander's Quid Iuris clamat more strongly where the first was but a Private Verdict quod nota And know That every Verdict unless by Writ to Inquire of Damages ought to be by Twelve And therefore 41 Ass. 1. a Verdict taken at the Assizes by Eleven when the Twelfth would not agree 't was holden ill and a new Venire facias awarded and so the Original stood quod nota Where said That the Justices ought to have carried them in Carts and by other Authority The Justices may Fine such a Jury for their Obstinacy after Examination And Observe That if a Protection be laid at the Assizes and the Justices doubt whether the same do lye or not they may take the Verdict de bene Esse as 35 H. 6. 58. and other Books are Then Where the Verdict shall be void in part or in the whole or where a Repleader and a Scire facias de novo See the Cases before in this Chapter of Verdict especially in the Division of Special Verdict or where it doth vary or is contrary to the Issue And see afterwards in Misdemeanour of the Iury and the same Case of 41 Ass. of the Verdict by Eleven and 2 3 Mar. Dyer 132. a Doubt only moved Whether a Verdict shall be void in the Whole or not And Lastly Where the Misdemeanour of the Iury or one of them shall make the Verdict ill See Brook in the Title of Verdict as namely 20 H. 7. 3. where all of them did Eat before they did Commune of the Verdict at their own Costs and the Verdict good but if at the Costs of the Party for whom they found then ill otherwise not Where it s said also That in respect of Necessity or Sickness one or more of them may Eat or Drink And accordingly is 14 H. 7. 29. where the Jury at the Nisi prius by reason of a sudden Tempest departing from the Bar one of them entred into an House where he drank at the Request of a Stranger that told him The Earl of Kent ' s Part was better as well for that the Verdict was found against the Earl of Kent as that the Matter was not shewed in time before Verdict but it was Cause sufficient to Fine the Juror The like of an Escrowl delivered to one of the Jurors c. And accordingly is 24 Ed. 3. 24. the Justice at Nisi prius being informed That the Sheriff had let the Jury go at large to Eat and Drink Refused the Verdict Fined the Jury and the Sheriff and awarded a New Venire facias for Trial of the Cause Yet see 14 H. 7. 1. where in the Common-Pleas the Jury found for the Plaintiff and yet the Defendant had a New Venire facias for that the Jurors after their Charge did Eat and Drink and Disallowed the first Verdict And it appears in Welden and Elkington's Case in Plowden's Commentaries That one of the Iurors was Fined for having a Box of Marmalade about him but the Verdict not avoided But after a Privy Verdict as is 2 H. 4. 21. and 5 Ed. 4. 6. 1. and at their own Expences the Iury are suffered to Eat and Drink together until c. CHAP. XI Of Iudgments NExt in Order We shall Treat of Iudgments And First touching the Form of a Iudgment see 3 H. 4. 2. That whether the Plea be to the Writ Count or in Bar and Judgment thereupon to be given for the Defendant that the Words of the Iudgment are all one and shall be Expounded either Peremptory to other Actions or otherwise as the Matter of the said Plea doth require As if one doth Demur upon the Count the Judgment shall be Eo quod Insufficiens est in Lege Quer ' nichil Capiat per Breve Or Generally Nichil Capiat per Breve sive Billam Et quod Defend ' Eat sine die and shall as before in another Action be Peremptory or not as the Case of the first Plea requireth And 3 H. 4. 11. In Debt in London the Defendant pleaded a Foreign Plea and Iudgment was given for the Plaintiff Quod Quer ' sequatur ad Communem Legem Et quod Defeat sine die and there in a New Action doubted whether this
Judgment might be pleaded in Bar. And 3 H. 4. 18. in that Case the Iudgment is recited to be Quod Quer ' nichil Capiat per Breve Et quod Def. Eat sine die quod nota In the next place What Day Iudgment shall be given For which see 9 Ass. 11. That it shall not be given until the Fourth Day and if a Writ of Attaint bears Date before the said Fourth Day it shall abate Then Where Iudgment shall be given For which see 21 H. 7. 35. where its said That if an Office Traversed in the Chancery be sent into the Common-Pleas to be Tried the Judgment shall be given there because the one Court and the other is coram Rege And 6 Ass 4. 16. That if an Assize upon a Foreign Release pleaded be Adjourned to be Tried in Banco and found for the Plaintiff if he will Release his Damage he may have Judgment there Otherwise it shall be Remanded to Inquire of Damages Then shall be shewn What be Causes to stay Iudgment As 11 H. 4. 10. and 19 H. 6. 10. If the Court think the Damages given to be too great as the Cases were there in Trespass and Replevin the Court may stay Iudgment until the Plaintiff have Released part of the Damages And so 11 H. 4. 17. where after Verdict it did appear by Examination that one of the Parties had delivered an Escrowl to the Jurors And so 11 H. 4. 71. If it appear by Matter of Record That the Land is in the King's Hands And 39 Ed. 3. 35. The Court upon Discretion did stay Iudgment because it was supposed the Action to be brought by Covin Then Where Iudgment shall be Final It appears 26 H. 8. 8. That before the Mise is joyned in a Writ of Right or where the Tenant in that Action Voucheth no Iudgment shall be final against the Vouchee Yet see 44 Ed. 3. Bro. Iudgment 45. A Feme Covert was Received and did Joyn the Mise and Judgment final given against her yet thereof and of an Infant left doubtful 9 Ed. 4. 16. See Fitzh Nat. Brevium in his Writ of Right Then Where the Plaintiff may have Iudgment for part and Relinquish for the rest For which see first 16 H. 7. 17. where the Plaintiff in Debt did Count part upon a Lease of Land in London and part of other Land As to the first they were at Issue in London and to the rest at Issue also to be Tried in a Foreign County and the first Issue found for the Plaintiff ad dampnum xx d. and Costs xx s. and the Plaintiff did Relinquish the other Issue and prayed Iudgment for that and had it And in the like Case 32 H. 6. 4. the Plaintiff demanded Judgment of that Debt found and Damages and Relinquished his Costs until the other Verdict found And so seems 3 H. 6. 37. and 42 Ed. 3. 25. In Debt part upon an Obligation and part upon a Contract As to the Obligation the Defendant did Confess and to the other the Plaintiff was Nonsuit and yet had Judgment for the other And 50 Ed. 3. 11. in Trespass against Two if the one of them be Attainted before the other appears the Plaintiff shall not have Judgment against him before the other appear and Plead also except he will Release against the other And so 45 Ed. 3. 3. Where one of the Defendants in Trespass doth make default And 36 H. 6. 13. the Defendant in Debt as to Parcel pleaded tout Temps prist and to the rest Nil debet where it s said That the Plaintiff may have Judgment of the Parcel confest Maintenant and of the Damages for the Court may Tax the same but Cesset Executio quousque because of the Costs But 22 H. 6. 48. if in Debt the Defendant plead to the Issue for Part and a Nil dicit to the Residue as to the same the Plaintiff shall have Judgment presently but as to the Damages he shall stay until the other Issue be Tried although it be in Cases where Damages ought to be severed But see 5 Ed. 4. 108. where in Trespass against Baron and Feme the Baron did plead Non Culpabilis and the Feme a Foreign Plea whereupon Issue was taken that was a Ieofail the Plaintiff cannot relinquish the same and Pray Iudgment against the Husband because the Damages are not to be severed but the Husband shall have advantage or disadvantage of the Verdict of his Wife if the Issue were good So if Two other persons in Trespass plead severally and the one of the Verdicts a Ieofail because of the Entirety of the Damages Otherwise if the Defendants were severed in the Process Pleading or Demurrer And in Trespass against Two who plead Non Culp ' the Plaintiff cannot sever his Judgment but his Execution and he must have Judgment before the Release And 5 Ed. 4. 124. it appears That if divers Pleas be pleaded and one of them goeth to the Whole the Plaintiff may Release that for doubt of the Sequel And see 15 Ed. 4. 25 26. That if in Trespass against Three one maketh default and the other pleadeth a Plea that goeth to the Whole the Plaintiff may pray his Judgment against him that made Default and Relinquish against the other Then Of Two Iudgments in one Action As 36 H. 6. 2 3. by Prisot in Ravishment of a Ward the Judgment shall be of Damages with the Body and if the Sheriff Return That the Heir is married the Plaintiff shall have a Scire facias for the greater Damages and upon that he shall have another Iudgment and Execucion The like by him in Detinue and also in Debt against Executors where in the one Case if the Sheriff Return That they are lost and in the other a Devastavit the Plaintiff shall have a New Scire facias and have Judgment de bonis propriis Quaere For according to Littleton the first Judgment shall be Conditional viz. De recover les biens cu Gard c. Et si c. And so is 22 H. 6. 41. in Detinue according to Littleton And Where the Plaintiff shall have Iudgment but Execution shall cease See 24 Ed. 3. 61. in Dower of Rent granted to Cease during the Nonage of the Heir Also in Perkins and there likewise where Dower is brought and a Term in being before the Marriage And see 15 Ed. 4. 11. 3. or 4 Ed. 3. 42. in Trespass against Three they all plead Non Culp ' as to part and quoad resid ' plead a Gift of the Goods and Issue thereupon and at the Nisi prius two make Default and a third pleads a Concord puis darrein Continuance and prayed the Issue might be Tried against the two by Default for that no Continuance can be made of it they being absent and if not Tried now 't will be Discontinued Objected That goes but to Part and there is now a Plea which goes to the
time and came afterwards to Prison and no Discharge But by 4 Mar. Dyer 162. and 12 Eliz. 296. and other Books The License of the Queen or of the Barons of the Exchequer by Baston or any of the Chief Justices License is no sufficient Warrant for the Gaoler to suffer the Prisoner to go at large Then Where the Sheriff shall be Fined for a Contempt in doing Execution after a Supersedeas delivered to him For which see Hill 11 Iac. in B. R. Thomas and Owen's Case Bulstr. 2. Part 194 where after a Judgment in Ejectione firmae and Habere fac ' possessionem a Writ of Error was brought and a Supersedeas granted directed to the Sheriff to stay Execution and this Writ of Error and Supersedeas were shewed to the Sheriff who contrary thereto did Execute the Writ of Habere fac ' possessionem It was holden by the Court to be a great Contempt and a Writ of Restitution was Awarded CHAP. XIII Of Error and False Iudgment THe word ERROR hath a twofold signification And first it is taken for some Fault in a Suit at Law which is sometimes in the Proceedings before Iudgment and then it makes void the whole Record and sometimes in the Judgment it self and then it hath the same Effect But if it be after Judgment in the Execution then the Execution is only thereby destroy'd but the Judgment it self and all the Proceedings had before the obtaining thereof shall stand good and a New Execution is only to be made out And where there are two Judgments as in some Cases there be there the last may be avoided and the first stand good And where the Execution is avoided for such Mistakes the Party shall have Restitution of that which was taken from him thereby And in this Sense it is sometimes in Matter of Fact as where one of the Parties to the Suit is dead when the Judgment is given and this if it come to be Tried is to be Tried by Jury And so of the like Errors Or it is where any Discontinuance is in the Suit or undue Proceeding appearing by the Record it self And this sometimes is in Matter of Law when it shall appear by the Record it self That the Judgment in the Action was not given according to Law And these two last kind of Errors appearing in the Record it self are to be tried and determined by the Judges of the same or some other Court These Errors also are some of them in the Lineal Proceedings of the Suit as in the Writ Count Plea Replication Rejoynder Surâ—ejoynder Rebutter or Surrebutter Or they are in some Collateral Matter relating to the Suit as in the Bail Removal of the Suit or the like Or it may be in the improper or undue Commencement of the Action namely where one Action is brought for another or in the Form of the Writ or the like Secondly Error is taken for the Writ of Error it self which is the Remedy given to the Party who suffers by the Error for his Relief This Writ of Error called in Latin Breve de Errore corrigendo is thus defined by Fitzherbert in his Natura Brevium fo 20. A Writ of Error doth lye to Redress a False Iudgment given in any Court of Record as in the Common-Bench London or other City having Power by the Kings Charter or Prescription to hold Plea of Debt or Trespass above 40 s. In what diversity of Cases this Writ lies see the Statute of 27 Eliz. cap. 8. and Register of Writs Iudicial fo 34. And see the Statute of 3 Iac. 1. cap. 8. That no Writ of Execution shall be stayed by any Writ of Error to be brought until a Recognizance with two Sureties be given in the Court to prosecute it and to pay the Costs and Damages assessed if the Judgment be affirmed And see the Statute of 21 Iac. 1. cap. 24. That double Costs shall be paid by him that brings a Writ of Error to delay Execution if it be after Verdict and Judgment in Debt for Tithes in an Action upon the Case on a Promise to pay Mony upon Trover and Conversion or in Detinue or Trespass See also the Statute of 16 17 Car. 2. cap. 8. whereby it is Provided That in Writs of Error to be brought upon any Judgment after Verdict in any Writ of Dower or Ejectione firmae Execution is not to be stayed unless the Plaintiff in the Writ of Error be bound to the Plaintiff in the Action as the Court shall Order That if the Judgment be affirmed or the Writ of Error be discontinued by Default of the Plaintiff or the Plaintiff be Nonsuit in the Writ of Error that they shall pay such Costs and Damages as the Court shall appoint And the Court may Inquire what special Loss the Plaintiff in the first Execution hath by this Delay and this the Court is to give him by way of Increase of Damages But this Act is not to Extend to Writs of Error brought by Executors or Administrators nor any Action Popular nor other Action brought on a Penal Statute except Debt for not setting out of Tithes nor to any Indictment Presentment Inquisition Information or Appeal In the next place shall be shewn How one shall proceed to Reform Erroneous Proceedings against him As namely If the Judgment be in the Common-Pleas then it shall be by Writ of Error returnable before the Justices of the Kings-Bench as appears by Fitzherbert's Nat. Brevium upon the Return whereof after the assignment of the Errors and not before he shall have a Scire facias if the Matters assigned be doubtful to the Court otherwise not But in Error against the King there shall bo no Scire facias And Note That the Record shall not be Entred till the Parties have a Day by Scire facias and if he assign one Error he shall have advantage of all other in the Record except such as be Errors in Fact which he shall never have advantage of after a Scire fac ' awarded and but one Error in Fact may be assigned And the Form of Assigning of Errors as there appeareth is to assign them particularly and not in omnibus Erratum est And against an Assignment of Error in Fait there in omnibus Erratum est is no good Plea Where it also appeareth That if all that Term in which the Record is removed the Plaintiff in Error doth nothing or if he assign his Errors and sue out no Writ of Scire facias retornable the same Term or the next all is Discontinued without a New Writ out of the Chancery Quae coram vobis resid ' And so it is as it seemeth by 9 H. 6. 13. if the Plaintiff be Nonsuit in a Writ of Error And so 3 H. 6. 26. if the Writ abate But of a Writ of False Iudgment otherwise as it seemeth And as the same Book 9 H. 6. If the Plaintiff in Error do nothing the
Brevium quod habetur Warantum Attorn ' albeit the Party himself against whom the Certificate is be dead and a Scire facias issued out against his Heir So in Yelverton 34. an Averment will not be admitted against a Fine taken by Commission that there is no such man of the Name of one of the Commissioners By Co. on Littleton 171. If a Partition be by Writ although it be unequal it may not be avoided by Averment for such Averment against the Retorn of a Sheriff shall not be good But by Winch in his Reports fo 100. an Averment may be made in another Action tho' not in the same By Co. Lib. 8. 31. and Dyer 244. and Plowden 277. where a man hath two Sons of one Name and one of them hath been long absent and thought to be dead and this is the Eldest and by Will he gives his Land in general to his Son of that Name and the Eldest Son is alive In this Case an Averment will lye that it was his intent to give it to the Youngest and not to the Eldest Son and upon a Trial the Jury may find it so But by Co. Lib. 4. fo 4. no Averment will lye that the Devise was to any other use but to the use of the Devisee himself And by Godbolt in his Reports fo 131. If one devise Land to the Heirs of I. S. and the Clerk writes it To J. S. and his Heirs this may be holpen by Averment for the Intent is written and more and it shall be naught for what is against his Will and good for the rest But if the Devise be to I. S. and his Heirs and it is written but to the Heirs of J. S. there an Averment will not help For an Averment to take away a Surplusage is good but not to increase that which is defective in a Will And Note That an Averment will lye against a Testament or Letters of Administration although they be under the Seal of the Court and it shall be tried by the Country And by Godbolt 214. an Averment may be that one is Sued out of his proper Diocess if it doth not appear in the Libel where one is Sued in the Arches So where one Sueth in the Court of the Admiralty for a thing done upon the Land an Averment may be that the Contract was made infra Corpus Comitatus And by 20 H. 7. 11. an Averment in some Cases shall be received against a Verdict to prove it false But by Dyer 242. If the Matter contained in an Award and the Matter contained in the Submission of that Award do not agree it will hardly be supplied by Averment And lastly by Coke's Commentary upon Littleton fo 352. b. it appears that the Use of an Averment is to ascertain that to the Court which is generally or doubtfully alledged that so the Court may not be perplexed of whom or of what it ought to be understood and a man shall never be Estopped from making such an Averment to ascertain the Intent of the Parties if it be not utterly inconsistent with that which is alledged For an Estoppel being to Conclude a man from speaking that which is Truth must be certain to every Intent and shall never be taken by Argument or Inference But of this see more Tit. Estoppel infra Next in Order some Points shall be discussed touching Matters in Bar and herein shall be shewn What Pleas are sufficient in Bar for the Matters of the same and what not And First What Plea is good in Bar without Deed. Touching which there is a Maxim in Law That where the Action lieth meerly upon the Deed as upon a Bill or Obligation or the like there no Plea can go in discharge of the same without Deed as all the Books agree Yet 10 H. 7. 14. if one Count upon a Lease by Indenture or a Bailment by Indenture the Defendant may plead Nil debet or Non detinet but not Non dimisit by Littleton Quaere of a Bargain and Sale by Indenture for Mony to be paid at a Day For 28 H. 8. Dyer 20. upon a Bill testifying a Receipt of Mony to be laid out in Pruans the Defendant shall not wage his Law The like 37 H. 6. 18. in an Annuity with Clause of Distress Levied by Distress or Payment without Acquittance a good Plea Otherwise if granted without Distress where holden also that if one be bound in a Bond with Condition to pay such an Annuity be the same with Distress or without he may as I conceive plead Payment without Acquittance because contained in the Condition of the Obligation And by 27 H. 8. in Statam's Case in an Action against the Sheriff upon an Escape because the Action is not meerly upon the Record as Debt upon a Judgment the Defendant may plead That he let the Prisoner go at large by the Commandment of the Plaintiff And yet it is holden in Trespass for taking away the Plaintiff's Apprentice 21 H. 6. 31. to be no Plea to say That before taking of the Apprentice away the Plaintiff discharged him of his Service without Deed quod nota And so indeed seemeth 1 H. 7. 14. in Dove's Case in Covenant against an Apprentice And 30 H. 6. 40. no Plea in a Scire facias to have Execution upon an Annuity to say That the Plaintiff did deliver him the Deed of Annuity as a Release and afterwards took it away from him again The like seemeth by 1 H. 7. 14. in Dove's Case before recited in Debt upon an Obligation yet there holden That by some Pleas as Matters in Law viz. Infancy Duress Razure and the like one may avoid a Deed enâ—ealed In the next place we shall observe What shall be taken to be good Bars to avoid Circuit of Action which it seems the two last recited Cases are not And therefore see first 19 H. 6. 62. That if I grant to my Tenant to hold without Impeachment of Wast in Cessavit c. Or the King grants to one to be discharged of Disms the same may be pleaded by Rebutter and the Party not put to bring his Action of Covenant or to sue by Petition And so it seems of Wast in 21 H. 6. 47. be the Grant by Lease whereof Doubt is made afterwards in 21 H. 7. 23 30. where the Principal Case was That the Obligee granted that if he did Implead the Obligor before such a Day the Obligation should be void and a good Bar. And upon that Reason shall the Garnishee or Tenant by Resceit Rebut by a Release or Waranty And upon the Reason aforesaid it is that where one Thing is granted in Law so another especially of Things Executory and not Executed if he be Interpleaded of that which to him appertains he shall plead the same in Bar of that whereof he made the Grant as appears by Perkins in the Title of Exchanges where Rent is granted for Distress But yet by 15 Ed. 4. 9
upon the Evidence no more than in Fogassa's Case because but one Witness for that the Jury may upon their own Knowledge give a Verdict without Evidence Nor in any Case may one Demur upon Evidence unless he will admit the Evidence to be true Nor without the Consent of the other Party as it seems which according to the Opinion of many may put himself upon the Jury to find a Verdict which they may do either Generally or Specially at their pleasure which if they do Specially they avoid all occasions of Attaint See for Demurrers in Evidence the Books following viz. 9 H. 6. 33. where it is said That upon a Matter in Law the other Party may Demur in Law for it belongs not to the Lay-Jury to Judge thereof but that it seems ought to be such a Matter that the Judge must take to be doubtful And so in the before-cited Case of Fogassa That the King's Attorney did Demur upon the Evidence and that as it there appears whether the other would agree or not But whether so in Newse and Scholastica's Case quaere And see the Book of 34. H. 6. 36. where the Plaintiff in Annuity by Prescription shewed a Deed in Evidence within time of Mind and the Defendant prayed That the Evidence might be Entred and he would Demur upon the same and the Plaintiff would not agree to it quod nota But if the Court think the Evidence good the other side may as in Tatam's Action upon the Case 27 H. 8. desire the Justices to Seal a Bill of Exception which in the Writ of Error he may alledge and not in Arrest of Iudgment ex Rigore Iuris And see Dyer 6 H. 8. 2. where in Debt against an Executor the Defendant did plead plene Administravit and gave in Evidence a Redemption of a Pledge with his own Mony upon which the Plaintiff did Demur and by Assent of both Parties the Jury was discharged quod nota And so seems Experience at this day that in Demurrer on Evidence the Consent of both Parties is requisite CHAP. V. Of Special Issues and manner of Ioyning them IN the next place we shall Observe the Manner and Form of Ioyning other Issues that is to say Special being such as are different from the General Issues we have already treated of in respect of the Special Matter contained in them And First by 26 H. 8. 3. if the Issue be Joyned on the Defendant's part then must it be Et de hoc ponit se super Patriam but if upon the Plaintiff's part then in this manner Et hoc petit quod inquiratur per Patriam and so is Dyer 18 Eliz. 253. But then it ought to be known as that which is very Material in Pleading which of the Parties in their Pleas shall first Offer the Issue where holden generally in that Title in Brook That he which Pleadeth the first Negative shall as before Conclude the Issue And yet Ibid. 2 H. 7. 4. the Defendant in Debt upon a Lease did plead That the Plaintiff Riens ad tempore dimissionis without such Conclusion and the Plaintiff said That I. S. did him Enfeoff Et sic ussoit c. Et hoc petit quod inquiratur per Patriam And Ibid. 11 H. 4. 19. Issue shall be always Joyned upon a Negative after an Affirmative alledged before or è contra And Ibid. 9 Ed. 4. 36. If the Defendant do plead in the Negative to the Writ the Plaintiff shall Reply in the Affirmative and Conclude the Issue And Ibid. 7 H. 6. 43. It appears That if the Plaintiff declares in the Negative as in Disceit That the Defendant did Sue the Plaintiff in Debt in the Name of N. absque voluntate sua it sufficeth for the Defendant to say Que il sua per son Assent Et de hoc ponit se super Patriam quod nota And Ibid. 19 H. 6. 1. the Defendant did plead to the Writ That he was abiding at Dale and no Plea without saying also and not at B. as the Plaintiff did Name him because the Issue shall always be upon a Negative And there it appears that one of the Defendants in Trespass pleaded That one of his Companions was dead the day of the Writ purchas'd no Plea for the Plaintiff to Reply Que il fuist en vie al Dale but must also say Et nemy mort quod nota As to say by way of Replication in the like Case Mulier nient Bastard or Frank nient Villein Et hoc petit quod inquiratur per Patriam quod nota And so 11 H. 4. 90. the Defendant pleaded the Freehold of J. S. c. and the Plaintiff Replied that it was his Freehold he must say also Et nemy le Franktenement J. S. or Absque hoc que est le Frank enement J. S. c. And it appears 18 Eliz. Dyer 353. That he who taketh the Traverse by Absque hoc ought not properly to Conclude the Issue but the other Party beginning his Plea with Ut prius dicit c. may It appears also by 33 H. 6. 22. That he who pleads Partes ad Finem nichil habent or doth Counterplead the Possession or pleads Ne unque seisie que Dower Ne dona pas Nul Tort Non Culpabilis and the like because these Pleas be in the Negative he shall Conclude with the Issue Et de hoc ponit se super Patriam But 12 Eliz. Dyer 290. in the Plea of Partes ad Finem c. the Party that did plead the same had his Election to Conclude the Issue or not See also 2 3 Mar. Dyer 121. That where the Defendant did plead in the Negative as in an Action upon the Case he did Traverse the Sale and did not Conclude Et de hoc ponit se super Patriam but with Unde petit Iudicium si praedictus Quer ' Actionem suam praedictam versus eum habere debeat c. and yet good because a Perfect Issue may be Joyned thereupon quod nota Nevertheless in some Cases Issue shall be taken upon Affirmatives without Negatives As 6 Ed. 4. 6. Where the Defendant in Replevin doth Avow as within his Fee The Plaintiff may Reply Hors de son Fec prist And so in Debt against an Executor who pleads Pleinment Administer and the Plaintiff Replies Assets And in a Writ of Right the Tenant pleads That he hath better Right c. and the Plaintiff Replies That he hath better Right to Demand c. which is somewhat doubted in 32 H. 6. 25. touching the Plea of Hors de son Fee Next in Order Of Tender and Refusal in Pleading Tender in our Law signifies Carefully to Offer or circumspectly to Endeavour the Performance of any thing belonging to us And Refusal is the Denying or Refusing to accept of the same when offer'd As by 16 H. 7. 13. In Debt upon an Obligation the Defendant pleaded a
was no such Mis-continuance of Process as is helped by the Statute of 32 H. 8. So if the Trial be in a wrong County Quaera tamen inde for Mich. 2 3 Eliz. Dyer 188. and Mich. 21 22 Eliz. ibid. 367. seem contrary although Process awarded to the Coroners without Cause and although as the first of the said two Books is the Trial was not between the Parties to the Writ but between the Tenant and the Vouchee Yet Annâ— 32 Eliz. it was said to be Ruled That if one pleadeth an Award in Trespass without Satisfaction and Issue and Verdict taken upon the same yet not helped by that Statute quaere inde And Mich. 33 Eliz. in the Case between Upton and Walsh no Venire facias being put upon the File Ruled to be aided by the Statute although it could not be found See a Report 1 2 Mariae where the Declaration doth not warant the Writ As in Debt where it doth appear that the Day is not yet come or in Trespass that the same is committed after the Date of the Writ or a Declaration be in the Debet and Detinet by an Executor The same and the like although Issue and Verdict thereupon are not helped by the Statute of 32 H. 8. Note by what hath been said it appears That the said Statute of 32 H. 8. being touching Mis-pleading and the Matters therein contained in any of the King's Courts of Record that the same helpeth not in that Case in any other Court of Record For as it seems in Stradling's Case in Plowden's Commentaries If a Statute give an Action in any of the King's Courts of Record the same will not extend to Oxford although the Style be Cur ' Domini Regis or to the Exchequer or Chancery And yet if a Statute provides Remedy for a thing by an Action that lay before as it appears in Bro. Tit. Conusance and doth not limit by Express Terms where the Suit shall lye there it will lye in any of the said Courts In which if the Law be so then touching Mis-pleading and Mis-joyning of Issues in other Courts the same is as it was at the Common Law before the Statute of 32 H. 8. See Trin. 29 Eliz. Goldsborough's Reports 48. where in Case sur Assumpsit the Defendant pleaded Non Assumpsit and found for the Plaintiff and Moved There 's no Place laid in the Declaration where the Promise was made and it s there said That when an Issue is Mis-tryed it is not helped by the Statute and here no place is alledged whereupon the Trial may be had But per Cur. the Statute shall be taken liberally so that if the Verdict be once given it shall be a great Cause that shall hinder the Judgment for when it is Tried and Found for the Plaintiff he ought to have Judgment And Trin. 10 Iac. 1. Godbolt 194. In an Action brought in the Common Pleas after Verdict moved to stay Judgment that the Venire facias did vary from the Roll in the Plaintiff's Name for that the Roll was Peter and the Venire Iohn and the Postea agreed with the Roll his true Name Where holden That if no Venire goes forth the same is aided by the Statute of Ieofails and it is in Effect here as if there were no Venire fac or Hab. Corpora yet if the Sheriff do Return a Jury the same is helped by the Statute of Ieofails And Pasch. 12 Iac. Brownl 2 Part 167. Upon a Motion to stay Iudgment it was Objected That the words Et habeas ibi Nomina Iur ' were omitted in the Venire fac ' but Venire fac ' Duodecim c. were in the Writ and good per totam Curiam for that the first words are supplied by the last and the Omission helped by the Statute of Ieofails after Verdict And see Mich. 21 Iac. Cro. 2 Part 672. In Case for Words brought in Chancery by a Clerk there a Venire was awarded Retornable in B. R. in this Form viz. Venire facias duodecim quorum quilibet habet 4 l. terrarum aut minus c. Moved to stay Judgment that the Venire was ill and not helped by the Statute of 27 Eliz. cap. 6. for that extends only to Writs of Venire fac in the Kings-Bench Common-Pleas Exchequer Iustices of Assize and no other Courts and the Chancery is omitted and therefore the Venire not waranted by the Statute But per Cur. This Clause inserted in the Writ although not waranted by the Statute yet is not prejudicial to any but makes the better Trial. And by the Common Law the Judges may direct a Venire to be Quorum quilibet habeat tantum de Terris and Precedents were shewed out of Chancery where the Venire was as in this Case And per Cur. If it was not good at the Common Law yet now câ—early made good by 32 H. 8. Wherefore Adjudged pro Quer. So Trin. 9 Car. 1. Cro. 1 Part 215 228. In a Scire facias in Chancery against C. upon a Recognizance of 200 l. The Defendant was Returned Dead whereupon a Second Scire facias issued against the Heir of C. and the Tenants of the Lands of C. tempore Recognitionis upon which the Sheriff Returned T. Terr-Tenant of such Lands omitted to Return any thing concerning the Heir Whereupon the Defendant pleaded That he had nothing in the Lands at the time of the Recognizance nor ever after It was found for the Plaintiff that C. was seised and moved in Arrest of Judgment because nothing was Returned against the Heir viz. That there was not any Heir or the Heir had nothing And it is a Non-Return of the Sheriff and not a Mis-Return and is not helped by the Statute of Ieofails But per Cur ' Though the Return had been better if it had been found who was Heir and that he was Warned or that there was not any Heir in the said County yet it was well enough and the Mis-Return or Insufficient-Return of the Sheriff quoad the Heir not being named in the Retnrn is but a Dis-continuance helped by the Statute of Ieofails Vide Hobâ— 326. Where the Plaintiff Declared in Debt upon a Demise for Rent To which the Defendant pleaded That before the Rent became due the Plaintiff did Enter upon him not saying He did Expel or Hold him out so that Issue was only Quod Quer ' non Intravit and found for the Defendant and Judgment given for him For tho' the Plea was Insufficient yet the Verdict did fully answer the Issue And see Hob. 76. Banks versus Parker In Trespass for taking a Kettle at W. The Defendant Justified by reason of the Custom of the Mannor of T. And the Plaintiff took Issue de Injuria sua propria absque tali Causa and the Venire was awarded de Visn ' de W. Manerio de T. upon the Roll and a Verdict for the Plaintiff And tho' the Plaintiff should not have Traversed
any Continuance from Trinity Term to Lent Assizes which was much insisted upon yet the Court gave Judgment for the Plaintiff So Brownlow's Rep. Part 1. fo 81. a Bill was Exhibited against one of the Clerks of the Court of Kings-Bench for Mony due upon Bond and Issue being joyn'd the Cause was Tried and found for the Plaintiff And to stay Judgment it was Objected That the Bill not being filed was not helped by the Statute of Ieofails nor within the same To which Opinion the Court seemed to Incline but gave leave to the Plaintiff to File a Bill that so the Matter might be put to Arbitration So Hob. 181. a Bill was Exhibited in Debt against an Attorney of the Common Pleas upon which a Verdict was had for the Plaintiff and to stay Judgment it was Objected That the Original Bill was not Filed with the Custos Brevium as it ought to be But because the Tenor of the Bill was Entred of Record in haec verba it seem'd to be in the Nature of the want of an Original after Verdict and so help'd by the Statute of Ieofails To which Opinion the Court did incline but would Advise of it because it had been otherwise Adjudged in that Court before But then we shall Enquire What Matters are not Remedied or Helped by any or either of the Statutes of 32 H. 8. and 18 El. before-mentioned For which see first Goldesbrough's Rep. fo 49. where the Plaintiff brought his Action against the Defendant for an Assault and Battery and the Defendant was Condemned therein by Nichil dicit and a Writ of Enquiry of Damages issued out and then the Plaintiff's Attorney died and another Attorney without Warant prayed the Second Judgment and had Execution thereupon Cur ' If the Attorney dies after Judgment a New Attorney may pray Execution without Warant but here the Attorney died before the Second Judgment and therefore he that comes after ought to have a Warant of Attorney Prothon If one of the Parties dies after Judgment the Writ shall abate And per Cur ' This is not within the Statute of Ieofails for a Verdict is that which is put in Issue by the Joyning of the Parties So Hob. 112 113. The Plaintiff declared in Trespass for an Assault and Battery made upon him by the Defendant who pleaded Iustification and Conveyed an Estate to himself by Copy of Court-Roll in a certain Piece of Ground Parcel of the Mannor of D. whereof I. S. was seised in Fee and because the Plaintiff came upon it he laid his Hands molliter upon him And the Plaintiff in his Replication also Convey'd to himself an Estate by Copy of Court-Roll to another Piece of Ground within the said Mannor and lays a Prescription in the said I. S. Lord of the Mannor to have a Way over the Defendant's Piece of Ground Upon which they were at Issue and Verdict for the Plaintiff And per Melieur Opinion this was no Issue at all nor Thing nor possibly Issuable and therefore the Verdict must also be void and so not holpen by the Statute of Ieofails For a Verdict cannot make that good which the Court sees cannot be in Law so that this is in the Office of the Court to judge So Cro. Part 2. 526. In Trespass brought in the Kings-Bench for Taking and Carrying away three Loads of Wheat set out for Tithes contra Pacem Domini Regis the words Vi Armis were omitted Per Cur ' the Bill shall abate for it is the Essential part of the Declaration and that which induceth the Court to set a Fine for the King and it is not help'd by the Statute of Ieofails And so Adjudged Hill 13 Iac. in the Case between Welsted and Taylor where Judgment was Reversed because Vi Armis was omitted Vide Hoh 127. In Debt upon the Statute of 21 H. 8. the Writ was Praecipe A. quod reddat Nobis B. qui tam pro Nobis quam pro seipso sequitur Centum decem Libras quas Nobis praefat ' B. debet And the Count was for Taking to Farm six Acres of Land and holding the same for six Months Per quod Actio accrevit for 60 l. And for further Taking to Farm other Lands and holding the same for five Months Per quod Actio accrevit for 50 l. To which the Defendant pleaded Quod ipse non debet praefat ' B. qui tam c. praedict as Centum decem Libras neque aliquem inde Denarium in forma qua c. whereupon Issue was Joyned and the Jury found That the Defendant did owe 30 l. and for the Residue Quod non debet And to stay Judgment it was Objected 1 That the Verdict expresses not for which Farm nor which of the Months the 30 l. was due sed non allocatur for the Demand and Issue were for 110 l. in several tho' it would have been more formal to have distinguished them 2 The Defendant hath not Answered the Writ and Declaration for the Plea ought to have been as the Demand is Quod ipse non debet dicto Domino Regi praefat ' B. qui tam c. And this was allowed because Penal Laws are Excepted out of the Statute of Ieofails And see Hob. 101. where Judgment was Reversed because there were no Pledges to Prosecute Entred for the Plaintiff and so not within the Statute of Ieofails because a Penal Law excepted out of the same But see Trin. 30 Eliz. in Com. B. Goldesbrough 90. where a Writ of Right was brought against Baron Feme of two parts of Forty Acres of Land in S. who pleaded That I. S. was seised and devised to his Wife one of the Tenants for Life the Remainder to B. in Fee who was his Heir who died and they prayed in Aid of B. who joyned in Aid with them and then they came and pleaded to the Grand Assize and the first Day of the Term the Assize appeared and sixteen of them were Sworn whereof four were Knights the rest Esquires and Gentlemen and the Title was as befor in Trinity Term Anno 28. for B. was Tenant in that other Action for the Third part Per Cur ' This is not aided by the Statute for here is no Certainty in the Grant yet if the Thing granted had had a certain Name given to it as Black-Acre or the like then tho' the Parish had been mistaken it would have been good enough See more of these two Statutes of 32 H. 8. and 18 Eliz. after in the Title Error In the next place We shall take a view of the two last Statutes concerning Ieofails viz. 21 Jac. 1. cap. 13 16. and 17 Car. 2. cap. 8. and enquire what Mis-pleadings are aided by the same and what are not By the Statute of 21 Iac. 1. cap. 13. after Verdict given in any Court of Record the Judgment thereupon shall not be stayed or reversed for any Variance in Form only
the Plaintiff did surmize That the Lands did lye in the Cinque Ports and had a Writ of Execution to the Constable of the Ports And see 1 Ed. 4. 10. for Lands in Durham And by 22 Ass. 12. Execution shall be in Court Baron but by Distress as in a Return Irreplegiable Yet 38 Ed. 3. 3. seemeth otherwise And so seemeth 7 H. 4. Abridged by Bro. Pl. 26. And see 18 Ed. 4. 4. and Co. 5 Part 93. That if the Sheriff do make Execution upon a Fieri facias or otherwise at the Suit of a Common Person and break open his House Door or Chest Trespass doth lye against him for Breaking of his House Door or Chest although the Execution will be good fieri non debet factum valet Yet by 18 Ed. 2. Abridged by Fitzherbert Tit. Execution 152. The Sheriff may break Door or Chest to do Execution for otherwise th Plaintiff shall lose the Effect of his Suit And 11 H. 4. 7 9. if the Sheriff enter into a Franchise and do Execution the same is good according to the Rule above and yet he is a Trespassor to the Lord of the the Franchise who may have an Action of Trespass upon the Case against him for Infringing his Liberty But if a Bailiff of a Franchise do any such Execution without his Franchise that will be void And by 40 Ed. 3. 21 22. The Sheriff in Execution of Dower of Rent cannot drive the Beasts from the Ground although he may deliver Execution by the Beasts a Clod or Bough But upon a Capias Utlagatum or a Capias for Felony the Officer may break open the Doors Otherwise as it seemeth not although the Execution be a Non omittas propter aliquam Libertatem But the Sheriff or his Under-Officer may as it seemeth upon any Capias Enter into any mans Ground or House open to Arrest any man that he seeth Enter and if his Prisoner Escape may follow and break open Doors to take him Quaere inde And see Bro. Abridgment Tit. Faux Imprisonment And by Justice Iones and Berkley 12 Car. 1. in B. R. If the Sheriff have a Fieri facias or Capias ad satisfaciendum against a man and before Execution he pay him the Mony he may not do Execution afterwards for if he do Trespass or False Imprisonment will lye against him for it And see Co. 4 Part 91. Iinmayn's Case where it appeared That there were two Joint-Tenants of a House one of which acknowledged a Statute and died possessed of divers Goods therein and the Sheriff came to Extend the Goods and he and the Jury offered to Enter the House to Extend the same but the Defendant intending to disturb the Execution shut the Door so as the Sheriff could not Enter to do his Office In which Case these Points were Resolved First That if a Recovery be in a Real Action or in an Ejectione firmae the Sheriff upon an Habere facias Seisinam or Possessionem may break the House to do Execution because after the Judgment it is not the House of the Defendant Secondly In all Cases where the King is Party after the Sheriff hath signified the Cause of his coming if no Door be open he may Break-open the House to do Execution but if he may Enter it without Breaking of it or upon a Request if in such Case he Break the House he is a Trespassor Thirdly In all Cases of a Common Person If the Door be open the Sheriff may Enter the House of a Subject to do Execution against Body or Goods Fourthly That it is not lawful for the Sheriff upon Request and Denial in Case of a Common Person to Break the House of a Subject to Execute any Process And the Sheriff cannot Break the House by virtue of a Fieri facias but he shall be a Trespassor But if he doth so and doth Execution the Execution done by him is good And see for this Co. 11 Part 82. Bowle's Case and see 18 Eliz. 44. by all the Justices Then ought to be known How one in Execution shall be delivered without Payment And therefore by 16 H. 7. 2. If the Party be in Execution and the Record be removed by Error and he find Mainprise to Prosecute with Effect and to satisfie c. although the Judgment be affirmed he shall never be in Execution by his Body upon the same unless he will render his Body to save his Sureties voluntarily And so is 21 Ed. 4. 67. if the Plaintiff be once in Execution And so is 8 H. 7. 10. But by the said two Books last cited If no Execution be awarded before the Writ of Error then Execution in the King-Bench may be awarded And so is 6 Ed. 4. 19. If a Judgment in a Mean Court be reversed by a Writ of False Iudgment or Error in the Common-Pleas And so is 12 H. 4. 24. if he that Removed the Record do nothing See accordingly 39 H. 6. 3 4. and after in the Title Error Then is to be Observed That in some Cases an Escape is a Discharge of Execution for ever As namely If the Prisoner in Execution go at large by Consent of the Plaintiff or of the Gaoler But as 13 H. 7. 1. is If he Break Prison of himself and afterwards the Gaoler take him again because of his own Wrong whereof he shall have no advantage he shall remain for the first Execution unless the Plaintiff by bringing an Action of Debt against the Gaoler do refuse that Advantage against the Prisoner And so seemeth Stamford Yet 14 H. 7. 1. although the Gaoler may take him yet the Plaintiff shall have no Advantage thereof But by 11 H. 4. 12. the Plaintiff may also have Debt against the Party And by 41 Ass. 15. after an Escape of the Prisoner and Death of the Keeper of the Prison the Plaintiff prayed a New Capias against the Defendant and it was granted Quaere If not to be in Execution again because no Remedy else for the Plaintiff And 33 H. 6. 47. If the Party in Execution die the Debt is discharged So against him if he Escape See Mo. Case 1177 and Hobart 55 56. Foster and Iackson's Case where said That if the Defendant die in Execution it is a Discharge of the Execution for ever as an Escape is Yet see Co. 5 Part 86. contra But by Hob. 59. If two be Bound joyntly and severally to one who sues them joyntly he may have a Capias against them both and the Death or Escape of the one shall not discharge the other But he may not have a Capias against one and another kind of Execution against the other when he sues them joyntly but if he sues them severally he may sever them in their several kinds of Execution but yet so as if once a very Satisfaction be had of one or against the Sheriff upon the Escape of one the other may be relieved by Audita
or Riens passa ibid. Where an ill Plea is made good by Reference to another p. 167 Of Pleading Prout per Indenturam or Scriptum plenius liquet apparet p. 168 Of the words Quae sunt omnia singula c. in Pleading ibid. Of the words Quae est eadem Dimissio in Pleading ibid. Of the words Quod est idem Vastum in Pleading ibid. Of the words Et non alia neque diversa in Pleading p. 169 Of Pleading out of Time or Mispleading ibid. Where an ill Plea may be made good by Admittance ibid. Where the Defendant may waive his Pleading and betake himself to the General Issue p. 171 CHAP. VII p. 174 Of Repleaders or Ieofails CAuse of Repleaders ibid. Ieofail what ibid. At what Plea the Parties shall begin to Replead ibid. In what Place ibid. At what Tiâ—e p. 176 Statutes aiding Ieofails or Mis-pleadings viz. 32. H. 8. cap. 30. 18 Eliz. cap. 14. 21 Iac. 1. cap. 13. and 16 17 Car. 2. cap. 2. ibid. Observations upon the two first Statutes p. 177 Cases upon the said two Statutes p. 178 Of Matters Remediable by the Statutes of Ieofails p. 180 Of Matters not Remedied by the Statute of Ieofails p 189 Of the Statutes of 21 Iacobi and 16 17 Car. 2. concerning Ieofails p. 193 194 Observations upon the two last Statutes p. 197 What Defects in Pleading or otherwise are aided by the said Statutes ibid. CHAP. VIII p. 207 Of Intendment WHat Construction the Law doth make of the Intention of the Parties as to Contracts and other Matters ibid. CHAP. IX p. 212 Of Bills of Exception BIll of Exception what it is ibid. Need not de Rigore Iuris be allowed in Arrest of Iudgment ibid. Must be Sealed before and not after Judgment p. 213 CHAP. X. p. 214 Of Verdicts VErdict what ibid. Must be sufficient in Matter and Form p. 215 Damages where to be found entire where several ibid. Where a Verdict shall make ill Pleading good p. 216 Where the Verdict is contrary to other Matter of Record p. 217 Of Special Verdicts 218 Of what things the Jury may take Cognizance p. 220 How the Jury may find a Matter of Record p. 221 Spiritual Matters how to be found by the Jury 222 Where the Jury find a Specil Matter and Conclude contrary p. 223 Verdict varying from the Issue where good where ill ibid. Where the Jury find more than is in the Issue p. 226 Where tho' the Verdict be found for the Plaintiff yet he shall be Barred p. 227 Where the Jury gives divers Verdicts p. 228 Verdict must be by Twelve except by Writ of Inquiry ibid. Verdict de bene Esse ibid. Where the Verdict shall be void in part or a Ieofail ibid. Misdemeanor of the Jury where it shall make a Verdict ill p. 229 CHAP. XI p. 231 Of Iudgments OF the Forms of Judgments ibid. What Day Judgment shall be given p. 232 Where or in what Court Judgment shall be given ibid. Causes to stay Judgment ibid. Where Judgment shall be final p. 233 Where the Plaintiff may have Judgment for part and Relinquish the rest ibid. Of two Judgments in one Action p. 236 Where Judgment shall be with Cesset Executio ibid. CHAP. XII p. 238 Of Executions EXecution what ibid. Of the Method of obtaining Executions p. 239 Execution for Debt fourfold ibid. Against whom Execution by Capias will lye ibid. In what Cases Execution may be had by Capias p. 240 Of Executions by Capias pro Fine p. 241 Of Executions by Capias Utlagatum p. 243 Where Execution shall be had by Capias Fieri facias or Elegit p. 245 Upon Escape the Sheriff chargable in Action of Debt or upon the Case p. 248 Of Fresh Pursuit ibid. Old Sheriffs must give Notice to the New of those in Execution ibid. Where two bound joyntly and severally and in Execution and one Escapes and he brings Audita Querela and held not to lie p. 249 Whether the Defendant dying in Execution be a Discharge for ever as an Escape is ib. Elegit its force p. 251 Of what an Elegit may be sued ibid. Of Execution against Bail or Mainprise 252 Mainpernors what ibid. Bail what p. 253 Of the Writ of Scire facias what it is and where Execution may be had by Scire fac ' or without p. 258 What Plea or Matter will stay Execution 264 What other Pleas one shall have in Bar of Execution p. 265 Of the Writ Venditioni exponas where it is to be awarded and the power of the same 269 270 Of Execution against a Clerk upon the Retorn of Clericus est Beneficiatus p. 271 Where the Defendant may be Committed in Execution by the Court without Process ib. Of Executions in the Cinque-Ports Counties-Palatine or other Franchises ib. 272 Of the Sheriffs Breaking open a Door or Chest to do Execution ib. 273 274 How one in Execution shall be delivered without Payment p. 274 That the Party in Execution may be discharged by Error and Mainprise ibid. Where an Escape shall be a Discharge of the Execution for ever and where not 275 276 Death of the Defendant in Execution no discharge of the Debt p. 277 Discharge by Priviledge of Parliament 279 Of going at large by Baston Keeper or Tipstaff p. 280 Where the Act of the Court the Law or the Plaintiff doth discharge the Party of the Execution p. 281 Where the Sheriff shall be Fined for Disobeying a Supersedeas p. 282 CHAP. XIII p. 283 Of Error and False Iudgment ERror what ibid. Writ of Error what p. 284 Of a Writ of Error where it lies and the Statutes that concern the same p. 285 How one shall proceed to reform Erroneous Proceedings against him p. 286 Whether the Heir or Executor or Successor shall have these Writs of Error and False Iudgment p. 294 What Heir shall have these Writs p. 296 Of Estoppels in Assigning Error ibid. What shall not be Assigned for Error p. 297 Diminution what ibid. Of Error in Parliament p. 299 Of Amendments of Erroneous Proceedings ib. Of Error in Fines and Common Recoveries p. 306 CHAP. XIV p. 309 Of Appeals Indictments and Informations APpeal what ibid. Where the Heir shall not have an Appeal of Murder p. 310 How Appeals shall be brought by Infants 311 Of Pleading to Appeals p. 312 Of Indictments and the Pleadings thereupon and what will maintain or quash the same p. 317 Indictment what ibid. What shall quash an Indictment what not p. 320 Of Indictments of Nusances p. 325 Of the words Vi armis in an Indictment 327 Of the words Contra pacem in an Indictment ibid. Indictments quashed for Incertainty p. 328 Rule to distinguish where an Indictment and where an Action of the Case doth lye ibid. Information what p. 329 Of the Duty of an Informer ibid. Information must be laid in the proper County where the Fact was done p. 330 If the Informer dies or will not Prosecute the
Attorney-General may proceed for the Kings Moiety ibid. If the Attorney-General will not Prosecute or Reply the Informer may for his part ib. Where an Action or Information is tam pro Rege quam parte if the Judgment be Entred only for the Party 't is Erroneous ibid. So where the party sues Execution of all to himself Execution shall be staid c. 331 If an Information be Exhibited for several Things some before the date of the Information and some after yet all well if done before the Filing of the Information ib. Where a Statute appoints the Information to be brought within a Year yet sufficient to be brought within 6 years after ibid. If the Demand be for less than due it shall be good enough for the King c. ibid. In Informations for Detaining the Kings Goods it sufficeth to say That they were in the Kings possession without saying how c. ibid. Auter Information pendant in auter Court pur mesme l'Offence a good Bar c. ibid. Judgment staid after Verdict against one for being Perturbator Pacis Communis Oppressor and for that he took unreasonable Distress of divers of his Tenants and why p. 332 Information against one for using the Trade of a Draper Ruled ill and why ibid. That the Defendant diversis diebus vicibus between such and such days did such offences good tho' in a Criminal Case ibid. FINIS A Declaration what Of the formal Parts of which a Declaration ought to consist Temp. Eliz. Regin Vide Tit. Jeofails Repleaders infra Maxim Count de Done fans Seisin Several Counts in one Declaration Where the Plaintiff shall Count de novo and where not Rules to be observed in declaring of the Day the Year and Place The disadvantage of mistaking the Time Years or Number of Acres Note Several days of payment and where Execution upon the first default where not Reasons for Pleading the Common Bar and giving a new Assignment by Replication Declaration ab antiquo certain in Trespass as at this day by Rule of Court in C. â— Rules for Declaring in Replevin and Trespass Of Pleas to the Jurisdiction of the Court. Foreign Pleas. Order of Pleading Of Pleas to the Person Of Pleas to the Count. Of Pleas to the Writ Of Pleas to the Action of the Writ Of the Defendant's Pleading and first of his Defence Half Defence Of the Ordinary Full Defence Misnosmer how pleaded Of Protestations Of Colour in Pleading What it signifies In what Actions it may be given In Trespass In Assize In Entry sur Disseisin In Action sur Stat. 5 R. 2. Upon what Plea Conveyance from the Plaintiff As Servant His Freehold Discent Aid le Roy. To the Writ or to the Action of the Writ What be sufficient Colours Lord Mesu and Tenant Justification in another Place Colour given by the first not mean Conveyance Not by a Stranger Estate determined Possession defeated â—iens Colour ought to be of a doubtful Title Colour to the Plaintiff As Executor Bailment Discent pretended Parson Bastard Attornment Coparcener Joyntenant Heir Heir special Escheat Abatement Emblement Lease a volunt Parson Vicar Confirmation How the Defendant shall Conclude his Plea Nota. Of Averments in Pleading Averment defined When the Defendant shall aver his Plea Of Pleas in Bar. Maxim in Law Of Bars to avoid Circuit of Action How to plead the Performance of a Condition of an Obligation Note Conditions to save harmless Bar to Common Intâ—â—t Upon what Pleâ— the Plaintiff shall have present Judgment Of Pleading Accord or Arbitrement Where VVaranty a good Bar. Auterfoits Bar. Recovery pleaded A former Recovery by the Plaintiff pleaded no Bar without Execution Where the Plea shall go to part or to the whole Of Certainty in Pleading Replication Rejoynder Sur-rejoynder what Where the Plaintiff is in a manner bound to answer the Defendant's Plea yet if he will may Plead at large without Answering the same Plea at Large what Where no need of Replication or Rejoynder Where one Replication shall go to several Bars Rebutter what Evidence upon Non Culpabilis Evidence for Abridgment of Damages What Evidence may be given upon the Issue of Nil debet Nota. Non est factum c. Minime Litâ—â—ratus Hors de son Fee Ne unque Executor or Pleinment Administer Issue upon Prescription or Custom Demur upon Evidence Where the Defendant may Traverse and not be forc'd to the Generaâ— Issue Where the Defendant may plead Specially and not be forced to the General Issue Nota. * Scil. Jointemncy Evidence agree or disagree with the Issue Evidence sufficient for the Jury to take Cognizance of What Writings the Jury shall take notice of or may be delivered unto them Rules Demurrer upon Evidence Bill of Exception Of Special Issues and the manner of Joyning them Which of the Parties shall offer the Issue Rule Rule Rule Rule Rule Rule Where Issue shall be taken upon Affirmatives only without Negatives Of Tender or Refusal What they are Of the Issue Negative Pregnant what it is Modo forma what Of Traverse in Pleading What it is Time where and how Traversable Departure Rule Concerning Departure Place and County where Traversable Where the Plea is good without Traverse Where the Dying seised or Discent Traversable Where the Dying seised or Abatement Traversable Where Dying seised Conveyance or Disseisin Traversable Rule Where Seisin in Fee alledged shall be Traversed Mirum Traverse holdeâ— a Ieofail Of the Traverse Aliquo alio modo Which of the Conveyances to be Traversed Nota. Nota. Remitter Nota. Commandment where Traversable Qui Estate where Traversable Several Traverses to be taken in one Plea Three Traverses to one Replication Two Traverses to one Plea Where a Traverse may be upon a Traverse Where the Defendant may Traverse without making Title Tout Temps prist what Where Tender shall be made in Court and where not Uncore prist in what other Case to be pleaded Estoppel or Counterplea Of the Plea De son Tort demesn Tithes Quâ— Estate what Shewing how Chose in Grant Not Traversable but in particular Cases Double Plea what Divers Pleas and one goes to the Whole Which of the Pleas shall be first Tried Monstrans de Faits ou Records Where the Estate is Executed Executors and Administrators Vouchee Action sur Record Nul Seisin alledge In Dominico suo c. In Iure Uxoris Where two Persons are seised In Iure Coronae In Iure Domus Seisin alledged without shewing of what Estate Particular Estate how to be pleaded Where the Estate must be shew'd to Continue at the time c. Which of the Parties shall set forth the Place where c. in Pleading Bona Notabilia in divers Dioceses how to be pleaded Where the County shall be taken by Intendment Where the Day or Time shall be certainly alledged in Pleading Act Spiritual how to be pleaded Of Pleading Matters of Record as Utlary Recoveoy in Debt Recognizance Retorn of a Writ Inter alia Acts of Parliament
Justification That the Major and Communalty of London were seised of an House called Leaden-Hall where he took the said Hide Damage-feasant as their Servant c. To which the Plaintiff Replied That Leaden-Hall is an ancient Market for Fridays and that he bought the Hide there on such a Friday and that he had the same on his Back to carry away quousque the Defendant took it prout in Narr ' And tho' Objected that the Replication is not good because he concludes not Que est eadem Captio c. for that he varies from the manner of the Caption and by his Pleading takes from the Defendant's Authority yet Resolved good without it because it agrees with the Defendants Plea in Time and Place of the Caption So 3 Cro. 8. 98. in Trespass the Defendant pleaded that he is Clericus seisitus de Rectoria de A. in jure Ecclesiae and makes Prescription for him and all his Predecessors Parsons of that Church to have had a Way time out of Mind in such a place but says not that he was a Parson and notwithstanding it was Objected that he had not enabled himself to make a Prescription yet forasmuch as he hath alledged that he is seised in jure Ecclesiae it tantamounts thereto and is good CHAP. II. Of Bars or Pleas to Declarations A Bar in our Law signifies a Destruction for ever or Taking away for a time the Action of him that hath Right and it is called A Plea in Bar when such a Bar is pleaded Co. 1 Inst. fol. 372. Plowd fo 26 28. Colthirst's Case Brook Title Bar Num. 101 and 5 H. 7. fo 29. There are also Pleas in Abatement of a Writ Plaint or Count. A Plea in Abatement in our Law being as much as Exceptio dilatoria with the Civilians Britton cap. 51. or rather an Effect of it For the Exception alledged and made good works the Abatement And this Exception may be taken either to the Insufficiency of the Matter or Incertainty of the Allegation by Misnaming the Plaintiff Defendant or Place To the Variance between the Writ or Count or Specialty c. To the Incertainty of the Writ Plaint or Count To the Death of either of the Parties before Judgment had and for divers other Causes Upon which Defaults the Defendant may pray that the Writ Plaint or Count may Abate that is the Plaintiff's Suit against him may Cease for that time There is also a Plea in Abatement to the Iurisdiction of the Court called a Foreign Plea which is where a Matter is alledged in any Court that ought to be tried in another Or a Refusal of the Judge as Incompetent because the Matter in question is not within his Jurisdiction As if one lay Bastardy to another in a Court Baron Kitchin fo 95. Anno 4 H. 8. cap. 2. and 22 Ejusdem cap. 2 14. But before we Treat of Pleas in Abatement we shall consider What Pleas shall Conclude the Defendant by his Appearance Continuance c. As to which the Tenant or Defendant ought especially to take Care that by his Appearance and taking of Idem dies or Imparlance he Conclude not himself of his Advantage in Pleading for by our Law-Books Idem dies is before Continuance and Imparlance after and by Consent of the Party And therefore Note That after Imparlance General one shall not plead to the Iurisdiction as is 22 H. 6. a. But if the Imparlance be Special viz. Salvis sibi omnibus omnimodis Advantagiis tam ad Breve quam ad Narrationem it is otherwise But to the Writ it seemeth after a General Imparlance one may plead Jointenancy Non-tenure Over-Dale and Nether-Dale and the like whereof he is not Estopped by his Appearance as is the Book of 9 Ed. 4. 36. But Misnosmer and the like after a General Appearance and Imparlance he shall be Concluded of as are the Books and therefore the way in that Case is to appear in this manner viz. J. S. qui implacitatur per nomen J. D. comperuit habet diem vel petit licenciam Interlâ—quendi vel petit visum Salvis sibi omnibus Advantagiis c. And by 8 H. 6. 18. If one plead to the Jurisdiction of the Court after Declaration the same shall not be Entred until the Plea be discust and the Continuance shall be upon the Writ And by 50 E. 3. 9. upon the View one shall plead Ancient Demesn to the Jurisdiction and sometimes the Court shall oust the Parties of Jurisdiction although they themselves seem to take no advantage thereby as in 22 Ed 4. 23. b. in Trespass between the Parson and Vicar otherwise he ought to plead it as before And by 3 H. 4. 12. and 8 H. 4. 18. a Foreign Plea in a Personal Action is to the Jurisdiction otherwise in a Real Action And by 21 Ed. 4. 10. the Judgment in that Case is as in other Pleas that the Writ shall Abate Next we shall consider what Pleas may be pleaded to the Jurisdiction and they are Ancient Demesn County Palatine Cinque Ports c. But according to 44 Ed. 3. If the Defendant plead to the Iurisdiction and Conclude to the Action the Iurisdiction is admitted unless as in 1 R. 3. 1. Natura Brevium and other Books where Trespass is brought Vi armis or where the Freehold is pleaded in the County Court or Court Baron then the Court ought to take Consideration therein And it appears by 49 Ed. 3. 34. That every Castle of the Cinque-Ports is intended Gildable and not of the Ports quod nota And the Lieutenant of Dover Castle was Assest in King Iames the First 's time in the Subsidy and 4 Ed. 4. 16. the Tower of London by Middlesex This Plea to the Jurisdiction being to be pleaded at the first unless in special Cases as before The next in order is to the Person then to the Count after that to the Writ and to the Action of the Writ and the last is in Bar. And therefore next to the Pleas to the Jurisdiction are those to the Person which according to Littleton are six in number viz. Villenage Utlary Alien Hors de Protection Profession and Excommengement In pleading the last of which the Defendant must shew the Letters of Excommunication which Plea doth not abate the Writ for upon the Plaintiff's shewing his Letters of Absolution in Court he shall have a Resummons against the Defendant and by 33 H. 6. 23. Profession or Alien may be also pleaded to the Action And touching Pleas to the Count farther than before is mentioned they are divers as Variance from the Writ wanting Form or sufficient Declaring upon the Condition and the like as the Case requires for which see afterwards and Brook Title Count. And as concerning those Pleas which are to be pleaded to the Writ they be of two sorts viz. the one Apparent in the Writ of which the Defendant may at all times take
advantage and the other resting upon the Plea of the Defendant as Misnosmer Iointenancy Non-tenure Non habetur aliqua talis Villa or Over-Dale and Nether-Dale of the Place where the Action is laid and not of which the Defendant is named unless in Cases where Utlary lieth and that the Lands lye in A. and not in B. and the like which the Defendant is bound to take in time and to look that he be not Concluded of them by his General Appearance Continuance or Imparlance as before is mentioned And Note that it appeareth in a Report 3 Eliz. That if the Defendant for Matter apparent plead to the Writ he shall in the beginning and ending of his Plea petere Iudicium de brevi but otherwise in the Conclusion only And touching Pleas to the Action of the Writ they are where by the Plaintiff's own Declaration or the Defendant's Plea it appeareth that the Plaintiff ought not to have the same but another Writ And as 26 H. 8. Brook Brief 409. The Defendant may choose either to Conclude to the Writ or to the Action of the Writ And so 9 Ed 4. 31. where Dower was brought against a Guardian and he said he was not Guardian Iudgment de Brevi In the next place we will proceed to the Form of the Defendant's Pleadings And first touching his Defence against the Plaintiff it appeareth 34 H. 6. 33. and other Books in Bro. Title Defence That in divers Actions as namely Assise Dower Darein Presentment Mortdancestor Per quae servitia Attaint and Scire facias the Defendant shall only say Venit dicit without other Defence And 46 Ed. 3. 23. in an Assise of Nusance in the Common Pleas there shall be Defence otherwise not and in Brook's Abridgment Title Defence Num. 67. where one Pleads to the Iurisdiction there shall be no Defence But it appears in the said Title 2 Ed. 4. and 40 Ed. 3. and 35 H. 6. That where the Defendant pleads to the Person he may make half a Defence viz. Venit defendit vim injuriam without saying quando c. And so is 7 H. 6. there in a Praemunire or Plea to the Jurisdiction it is only said Venit defendit vim injuriam So as by these and other Books in the said Title of Defence it appears that in Pleas to the Jurisdiction or the Person the Defendant as before cannot make above Half Defence For if he adds to the same the words quando c. which make the Whole Defence the ability of the Jurisdiction and Person is thereby admitted but in Pleading to the Writ one may make a Full Defence as appears by all the Books of Entries The Full Defence is in some Cases Ordinary and in others Special And the Ordinary Full Defence in some Actions is Venit defendit vim injuriam quando c. and in others Venit defendit jus suum quando c. and where the Defendant shall in his Defence say Venit defendit vim injuriam quando c. are these Actions viz. Account Action upon the Case Covenant Debt Detinue Ejectment Ne injuste vexes Partition Parco fracto Quare Impedit Quo jure Replevin Rescous Recaptione Averiorum Recto Rationabili parte bonorum Rationabilibus Estoveriis in all Actions where Debt and Trespass are given by the Statute in all Actions of Trespass de Clauso fracto or de Clauso domo fractis with their Incidents as de Bladis herba depast ' conculcat ' consumpt ' succis ' Averiis pedibus ambulando c. or de Arboribus succis ' amputat ' c. or de Sepibus Fossatis Solo Eradicat ' vel amputat ' implet ' subvers ' c. or de Bonis capt ' asportat ' spoliat ' c. or for Battery False Imprisonment or Menacing the Plaintiff or his Servants as also in Waste and other Personal and Mixt Actions But in a Writ of Intrusion and every Praecipe quod reddat Ayel Escheat and the like the Defence is Venit defendit Ius suum quando c. And in some Cases the Defence is more Special than before as Brook Defence 45. In Recto quando Dominus Remisit Curiam suam the Defence shall be Venit defendit Ius praedicti Petentis Seisinam suam quando c. And ibid. 16 40. in Nativo habendo the Defence shall be Venit defendit jus suum omnem Nativitatem quando c. And also vide Ibidem 23 30 31. That in Actions upon the Statutes of Mainteance Labourers and the like and in Recaptione averiorum the Defence is Venit defendit vim Injuriam quando c. Et quicquid c. And in Prohibition upon the Statute of Ric. 2. H. 4. Venit defendit vim injuriam quando c. Et omnem Contemptum Et quicquid c. And in an Appeal of Mayhem as appears 40 Assize 9. the Defence is Ven ' defendit vim injuriam Et omnes Felonias Appella de Mayhemio Et quicquid quod est contra pacem Domini Regis Coronam Dignitatem suas c. And it also appeareth in Brook 46. that where the Defendant pleadeth Misnosmer he shall alledge the same before Defence and then shall make Defence and shew the certainty of the Misnosmer And the Vouchee as it appeareth there Num. 24. shall make his Defence in this manner Et praedictus A. B. ut Tenens per Warantiam suam defendit Ius sum quando c. And Ibidem 14 H. 6. 18. it is a Doubt whether one shall take his Protestation before or after Defence and by 21 H. 6. 't is said That to every of the Plaintiff's Pleas the Defendant shall make his Defence de novo quod nota And touching Protestations we shall first consider what they are and in the next place inform you how and in what manner they ought to be pleaded A Protestation in Pleading therefore is by some defined to be a Defence of Safeguard to the Party that makes it from being Concluded by the Act he is about to do that Issue cannot be joyned upon it Plowd fol. 276 b. per Walsh ibidem Or it is a Form of Pleading when one doth not directly affirm or deny any thing that is alledged by another or which he himself alledgeth But by Plowden in Grayslake and Fox's Case in his Com. it is said to be A Saving or Excluding of a Conclusion and by that Book ought to be after the Defence which is in that Point left doubtful by the before-mentioned Book of 21 H. 6. 26. and may not be contrary in it self or double As in the before recited Case of Grayslake and Fox Protestando that he made no Testament pro Placito that he made not the Plaintiff his Executor because if he made no Testament he could make no Executor And as it there appears the Effectual Matters of
not good to every Special Intent As where one Sues as Executor and the Defendant saith That the Testator made the Plaintiff and one I. S. Executors and do not say after this That he did not make the Plaintiff Executor yet this may be sufficient So in Trespass where the Defendant pleads that the Place is his Freehold this is good yet the Plaintiff may have a particular Estate So upon an Obligation to perform Covenants the Defendant alledgeth two Covenants and saith he hath Performed them and doth not say There are no more Covenants in the Deed to be by him performed yet this is good for it shall be Intended that there are no more for him to perform But Ibidem No substantial part of a Bar may be omitted As where one is bound to do a thing between such and such a time and the Defendant saith That he did it or did it before the Day this is not sufficient but he must shew that he did it such a Day within those times So if one saith He was Lord of a Mannor and entred for an Alienation in Mortmain and do not shew that he did it within the Year for this shall not be Intended unless it be shewed Yet per Plowden puis 28. If one plead a Feoffment in Bar it shall be allowed as good albeit it might be by an Infant or per Duress c. unless it be shewed on the other side And if the Lessor Covenants with the Lessee that if he be ousted within the Term that he shall have as much other Land he must shew that he was Ousted on such a day in certain within the term So to plead in Bar that I. S. died seised and R. S. Entred as Son and Heir to him this is good tho' he say not that he was his Heir for that shall be Intended and the best shall be taken for the Defendant So Ibidem in an Assize if the Tenant plead in Bar a Discent to the Plaintiff and two others and that he hath the Estate of one of them it is good and yet he might have it by Disseisin but it shall be taken in the best Sense that he had it lawfully So per eandem in Colthirst's Case where the Ancestor is Tenant pur auter vie and the Heir pleads that he Entred as Heir to him and says not that he Entred first after his death for Occupanti conceditur And Ibidem if a Lease be made to A. and B. for Life the Remainder to C. and if C. shall dye during the Life of A. or B. then that it shall remain to E. for Life si ipse vellet esse Residens c. and E. being Defendant pleads his Entry after the Death of A. and B. and C. and doth not say when they died nor when he entred yet held to be good in a Plea in Bar. For per eundem 32 33. if it be a Condition it shall be Intended that the Defendant did Enter as soon as his Title accrued and if the Case be otherwise in truth than by Common Intendment it is taken to be the Plaintiff must set it forth in his Pleading As in a Formedon in Discender if the Tenant pleads in Bar a Release of the Demandant without Waranty it is good and yet the Release might be made by the Demandant in the Life of his Father and then it is no Bar to the Issue But it seems by Brook in his Title of Pleading 155. that in a Declaration or Replication this way of Pleading is not good For tho' a Bar may be good to Common Intent yet a Declaration and consequently a Replication or other Pleadings of the Plaintiff ought to be good to every Intent But by Co. Lib. 3. 52. If one declare upon an Escape in London and the Defendant doth Justify by the Taking again of the Prisoner in another County and answereth not the Escape in London this will not be good for every part of the Charge must be answered And Lastly It appears by Hobart 127 128. that a Plea that hath some Matter of Law in it tho' it seems to amount but to the General Issue is always allowed Note There be some Pleas in Bar upon which the Plaintiff shall have Present Iudgment As 16 H. 7. 19. where in Covenant to Perform Divine Service The Defendant pleaded that the Chappel was decayed So in Curia Claudenda if the Defendant plead Sufficient Inclosure or in Warantia Chartae Nient Implede or in a Writ of Mesne Nient Disir ' in some Default or upon the Plea of Riens Arrere in Annuity or upon Ne surcharga pas in Admeasurement of Pasture or Ne disturba pas in a Quare Impedit c. In other Cases the Plaintiff upon the Defendants Plea shall be barred for the present and yet afterwards have the Effect of his Suit by Scire Facias or the like Process upon that Iudgment or by New Action As appears in 19 H. 6. 27. in Debt against an Executor who pleads Plene Administravit which is found for him and so the Plaintiff is Barred pro tempore viz. until Assets come afterwards to the Defendant's Hands and then the Plaintiff may have a New Action So in Debt against an Heir who pleads Riens per Discent or in a Formedon pleads the Waranty of his Ancestor with Assets and after the Assets are Recovered against him he shall have a New Formedon and if he Alien the Assets his Heir shall have a New Formedon But as 21 H. 7. 10. where in Formedon Cui in vita Mortdancestor and the like such a Plea is pleaded either against the Issue in Tail or the Heir of Tenant by the Courtesy c. and no Assets found and after Assets discend the Defendant in the first Action shall have Scire facias for the Assets if the first Action be a Formedon otherwise as it seems for the first Land Quaere And see 11 H. 4. and 4 H. 6. Bro. Tit. Scire fac ' 74 130. in the last of which it is doubted when Executors plead Fully Administred and it is found for them and afterwards Assets discend whether the Plaintiff be not driven to a New Action or may have a Scire facias thereupon scil upon the first Judgment Which seems not by the Books 40 Ed. 3 43 Ed. 3. abridged by Brook in Tit. Scire facias 17 29. where a difference is taken when the Plaintiff is Barred and when he doth Recover In the next place shall be shewn How an Accord or Arbitrement is a good Bar. And for this see first 4 H. 7. 16. That in Debt upon a Contract Lease or Arrerages of Account before the Plaintiff himself Arbitrement is a good Plea although the Demand be certain otherwise of Arrerages of Account before Auditors because it seems to be Matter of Record and the Defendant cannot Wage his Law Qu. then in Debt upon a Lease for years And 13 Ed. 4. 5. is That an Award is
Tender and a Refusal by the Plaintiff and the Plaintiff took the Refusal by Protestation and Traversed the Tender as he ought because no Refusal without a Tender See Dyer 28 H. 8. 31. In Debt upon an Obligation the Condition whereof was to make an Assurance of Lands upon Request as by the Counsel of the Plaintiff should be devised And the Defendant pleaded by Protestation That the Plaintiff's Counsel made no Devise and for Plea That he was not Required To which the Plaintiff Replied That his Counsel devised a Release which he Requested the Defendant to Seal and he Refused And the Defendant would have Traversed the Refusal and could not but ought to maintain his first Plea that is the Request and the Plaintiff should not have mentioned a Refusal but have Concluded the Issue upon the Request the Defendant offering a Negative Plea before And so 36 H. 6. 15. the Defendant in Debt did plead an Award to pay 10 l. at such a Place which he was ready at the time to do and the Plaintiff came not to receive the same There the Plaintiff may say That he was there ready without Traverse because the Defendant had Tendred a Negative Plea before Then Of the Issue Negative Pregnant which is a Negative that implies or contains in it self an Affirmative As where an Action Information or such like is brought against one and he pleadeth in Bar to the Action Or otherwise a Negative Plea which is not so direct an Answer to the Action but that it includeth also an Affirmative As if a man be Impleaded to have done a Thing on such a Day or in such a Place denies that he did it Modo forma declarata which implies nevertheless that in some sort he did it Or if a Writ of Entry in Casu proviso be brought by him in the Reversion upon an Alienation of Tenant for Life supposing that he hath Aliened in Fee which is a Forfeiture of his Estate and the Tenant to the Writ saith That he hath not Aliened in Fee this is a Negative wherein is included an Affirmative For tho' it be true that he hath not aliened in Fee yet it may be he hath made an Estate-Tail which also is a Forfeiture and then the Entry of him in the Reversion is Lawful Vide 33 H. 8. Br. Issue 81. Where upon an Information for buying Cloaths at B. contra formam Statut ' Ne achata al B. contra formam Statut ' ill but ought to be Ne achata pas Modo forma c. Yet 16 Ed. 4. 5. One pleads a Release puis le darein Continuance Nient son fait puis le darein Continuance a good Issue And 12 Ed. 4. 4. One did plead a Feoffment by Deed and the other Replied Que ne Enfeoffa pas modo forma and good without answering to the Deed. As in a Formedon to Count of a Special Gift the other-ought to say Ne dona pas modo forma Where it s said by Littleton That if the Plaintiff proveth not the Feoffment by Deed he faileth Now Modo forma are Words of Art in Pleading namely in the Answer of the Defendant whereby he denies the Thing laid to his Charge Modo forma prout the Plaintiff hath Declared against him As the Civilians in like case say Negat allegata prout allegantur esse vera And it is to be Observed that upon Issues these Words Modo forma are not always of Substance as appears by Littleton in his Chapter of Releases where the Disseisee enters upon the Heir of the Disseisor who brings his Writ of Right Or where as before one in a Writ of Casu Proviso doth Count upon an Alienation in Fee and the other doth say Ne Aliena modo forma and found that he Aliened for Life Or where the Defendant in Trespass doth plead That the Plaintiff doth hold of him by Fealty and Ten shillings Rent and so demandeth Judgment of the Writ Vi armis and the Plaintiff Replieth Que il ne teigne modo forma And if the Verdict find that he holdeth only by Fealty yet good And so in Trespass of Battery If the Jury upon the General Issue find the Defendant Guilty at any other day and place before the Plaintiff supposeth his Trespass But see more of Issues afterwards in the Titles Traverse Pleading c. The next in Order is touching Traverse in Pleading which signifies in Pleading to deny some Point Matter or Thing alledged on the other side the formal Words of which are in our French Sans ceo in Latin Absque hoc and in English Without that And first to begin with the Time It is plain as hath been already said that if the Defendant in Trespass pleads Non Culpabilis he shall have no advantage of the Time but the Jury may find him Guilty at another day be the Trespass Transitory or Local And by Littleton in his Chapter of Releases so 13. In Trespass of Battery and the General Issue pleaded the Jury may find the Defendant Guilty at another day and place And so is also 19 H. 6. 47. and 39 Ed. 3. all in the Title of Traverse But in Case of Trespass and other Actions if the Plaintiff in his Declaration lay a time before his Cause of Action the Defendant in all Cases upon the General Issue shall have advantage thereof But on the contrary if once he have Cause of Action it so still continueth until he have discharged the same and therefore he may lay it after the day The like as it seems upon the Issue of Non dimisit for as before Littleton in the Chapter Releases the Words Modo forma in an Issue be not always of Substance Quaere tamen if not as if in the Number of years And as divers Books be In many Cases where the Defendant doth Iustify he may Traverse the Time before and in some Cases the Time after and in other some the Time before and after And therefore where the Defendant in Trespass of Lands or Goods maketh himself Title by a Feoffment Gift or otherwise which still is in force such a day after he shall only Traverse the Time before the Trespass supposed And so is 15 Ed. 4. 23. 22 H. 6. 29. and other Books in the Title of Traverse And where by a Lease or other Title made and determined before the Day of the Trespass there he must Traverse the Time after and before his Lease But whether the Plaintiff may there Traverse that Iustification hath been a Question because in so doing he Departeth from his Declaration And the better Opinion of the same Book of 15 Ed. 4. 23. is That the Plaintiff may But 22 Ass. 36. the Defendant in Trespass of Battery did plead a Release and Traversed the Time and the Plantiff Replied the Release was obtained by Duress and by the better Opinion no Plea for the Reason aforesaid And 2 R. 3.
the Cause generally but the Custom yet that was Adjudged to be helped by the Statute of Ieofails as Matter of Form because Absque tali Causa contained the Custom and more And Idem ibid. Parker versus Parker The Plaintiff brought Trover and Conversion of certain Goods against the Defendant and the Declaration was Entred upon the Imparlance-Roll with Blanks or Spaces for the Day and Year of the Plaintiff's losing the Goods and of the Defendant's finding and converting them to his own proper use but the Issue-Roll and the other Proceedings were perfect in this Point And per Cur ' the Imparlance-Roll being the Original cannot be made perfect by the Issue-Roll which was waranted by it but in regard a Verdict was given for the Plaintiff upon the Issue of Not Guilty the Court gave Judgment for him For the Declaration as Entred on the Imparlance-Roll was good enough in Substance for the Trover and Conversion being laid in the Praeterperfect Tense was before the Action brought and so the Fault in the Declaration being only in Form is helped by the Statute of Ieofails And Idem 117. Napper versus Iasper and George where Issue was taken in Trespass upon a Prescription That I. S. Prebendary of the Prebend of P. in the Church of S. and all his Predecessors Prebendaries c. had used Time out of Mind to keep a Shepherd for certain Sheep of theirs following the same Sheep for the better keeping of them feeding together in a certain Pasture from the Sheep of the Earl of S. in the same Place and the Issue was found accordingly And Moved That this was a Void Verdict for the Prescription was sensless and could not stand That the Sheep could be kept Time out of Mind from the Sheep of the Earl of S. being but one man's Life But yet the Plaintiff had Judgment according to the Verdict for the Substance of the Issue was The keeping the Prebendaries Sheep feeding together and the other part was but a Consequent of it That by that means they were kept from the Earl's Sheep Vide Stiles Rep. 206. where the Plaintiff declar'd upon an Assault and Battery in Surrey To which the Defendant pleaded Justification in Middlesex and the Plaintiff Replied That the Defendant did Beat him in Southwark which is in Surrey de Injuria sua propria absque tali Causa and the Issue was tryed by a Jury in Middlesex and found for the Plaintiff and Objected That the Trial was not good because the Venire facias was from one Place when it should have been from both for here are two Issues to be Tried and so not within the Statute of Ieofails But per Cur ' the Trial is well enough for tho' two Issues yet by Pleading they are made one and so within the Statute of Ieofails and helped by it And see Godbolt 85. where the Plaintiff declared in Account of divers Receipts and Parcels To all which except one the Defendant pleaded to Issue but for that one Parcel he pleaded nothing Whereupon it was Moved That the Plea was Dis-continued for not answering to that Parcel which Dis-continuance was not aided by the Statute of 32 H. 8. and the Plaintiff could not have Judgment according to his Declaration because of the Parcel to which no Answer was made no Judgment could be given But per Cur ' the Statute of 32 H. 8. did Extend to it for the words of that Statute are After Verdict found Iudgment shall be given any Discontinuace notwithstanding And see Cro. Part 2. 534. where the Plaintiff declar'd in Trespass Quare Clausum fregit Et alia Enormia ei intulit The Defendant pleaded the General Issue Non Culp and the Jury found 400 l. Damages in respect of the Abuse done by the Defendant to the Plaintiff's Wife and to stay Judgment it was moved that the Venire facias wanted these words Quilibet Iur ' per Pleg ' and therefore is as if there had been no Return of the Writ But per Cur ' this is not a Blank Return where no Return is at all or where the Name of the Sheriff is omitted but this is an Insufficient Return helped by the Statute of Ieofails For the Omission of the Pledges is but want of Form and not like to Hussey's Case where there was no Pledges Returned upon the Original And Idem Part 2. 353. where the Plaintiff did declare in Trespass against the Defendant for Entring his Close and House in G. To which the Defendant pleaded in Justification That the Sheriff had directed a Warrant to him upon a Capias Utlagatum to Take one I. S. who as the Common Voice went was at the Plaintiff's House whereupon he went thither in a Foot-Path through the said Close and asked the Plaintiff's Leave to Enter his House to search for the said I. S. and the Plaintiff giving him Leave he Entred the same and not finding I. S. there returned the same way The Plaintiff took Issue upon the License and had a Verdict and to stay Judgment it was Objected That there was not any Replication for the Close or any Issue joyn'd thereupon so that all was Discontinued But per Cur ' Judgment shall be given for that which is found and that which is Discontinued is helped by the Statute of Ieofails Vide Hob. 176. where in Trespass the Defendant did plead That Locus in quo no Place being assigned was two Acres called B. in L. which was his Freehold And the Plaintiff Replied That Locus in quo was a Piece of Land containing Twenty Acres Al' quam c. To which the Defendant Rejoyn'd Quoad aliquam Transgr ' in praedictis viginti Acris Non Culp ' Upon which the Plaintiff joyn'd Issue and the Verdict found for him And to stay Judgment the Defendant moved That this was no Issue for there was no Twenty Acres nor Place certain in the Declaration Yet per Cur ' the Plaintiff shall have Judgment for tho' it be not in the Declaration yet cannot be said a Departure from the Declaration for both Parties agree the Trespass to be done at L. and so no Verdict out of the Matter nor Issue but a Verdict help'd by the Statute of Ieofails And see Goldesbrough's Rep. 158. where in Trespass for Entring the Plaintiff's House and breaking his Close the Defendant pleaded That the House and Close contain'd Twenty Acres and was his Freehold To which the Plaintiff Reply'd Quod locus in quo est unum Mesuagium to which he Entitles himself and because by his Replication he only made Title to a Messuage and did not maintain his Declaration which was the Mesuage and Close Awarded Nil Capiat per Billam Quaere If this amounts to any more than a Dis-continuance of the Close only and so help'd by the Verdict But Cro. Part 2. 528. In Debt upon four Bonds for payment of Mony three of them were Tried in London in Trinity Term and the fourth at Lent Assizes after and there was not
Damages shall find none because Confest And 8 H. 4. 6. The Iury severed the Damages in a Praemunire against the Principal and Accessary as they ought to do And so 19 H. 6. 32. in Forcible Entry where some found to Detain Forcibly and others to Enter Forcibly And see also in the Title Damages in Brook 22 H. 6. 73. where several Issues several Damages And see there afterwards how Damages may be severed and so it is better to be many times But Costs according to 36 H. 6. must be entire And 17 Ass. 22. in Trespass against Two where one was found guilty of part and the other of other part the Damages severed And so is 22 Ass. 76. But 29 Ass. 33. if one Person be found guilty of several Trespasses the Damages may be assest entirely And see Bro. Damages 118. 5 Ed. 4. That if one of the Issues be a Ieofail and the Damages entirely Assest 't is both ill And 11 H. 7. 19 20. in Trespass against Two of two Horses taken severally Damages must be several Otherwise if one be charged with several Trespasses See more hereof in the said Title of Damages in Bro. Abridgment And Where a Verdict shall make ill Pleading good see before in the Title of Pleading in that Special Division As 21 H. 6. Bro. Verdict 91. where the Demandant intending to Counter-plead a Resceit said That the Plaintiff Riens avoit Iour del Brief and said not Ne unque puis which was ill yet if it be found for the Priee the Verdict hath made the Plea good otherwise not The like of Non-tenure But by Brook The same after Verdict is helped by the Statute of Ieofails The like 22 Ed. 4. 46. Que le Baron ne suit seisie que Dower jour del ' Espousals The like 5 H. 7. 14. If an Executor plead Riens entermains Iour del Brief c. The like 6 H. 7. 6. 3. H. 7. 8. and 20 H. 6. 22. Then Where the Verdict is contrary to other Matter of Record As 11 H. 6. 42. Bro. 96. in a Writ of Error the Death of one of the Parties to the Writ was alledged such a Day Et alii è contra and the Death found accordingly yet because it appeared by the same Record That the said Party alledged to be dead had appeared three Days after in Person at the Nisi prius in the first Action therefore this Verdict was holden a Ieofail And 14 Ass. 9. the Special Verdict was found a Record for the Defendant and the Plaintiff to disable the Verdict shewed the Record to be otherwise and good And 25 Ass. 2. The Defendant in an Assize did plead That he did Enfeoff the Plaintiff within Age and after did Enter upon him To which the Plaintiff Replied That the Defendant was at Age the same time and so found accordingly and the Party being in the Court in Person was Adjudged by Inspection within Age and that stood and the Verdict holden for none And so 9 H. 6. 37. If the Defendant in Debt Plead Matter that proveth his Deed and yet conclude Non est factum and it be found accordingly yet Judgment shall not be given upon the Verdict but upon his own Confession quod nota And 3 4 Mar. Dyer 147. a Verdict could not find That the Party himself was Estopped by Indenture Then touching Special Verdicts there is a Statute viz. Westminster the 2d which says Quod Iustic ' ad Assisas non Compellerentur c. By Equity whereof as it appears in the Parson of Homeland's Assize of Fresh-Force in Plowden's Commentaries as well upon every Special Issue as General the Jury may give a Special Verdict where the Issue in that Case was upon the Entry pendant le Brief And so are divers other Books to that Intent as 33 H. 6. 30 31. and 18 Ed. 4. 48. upon the Plea of Non Detinet And so 43 Ass. 1. upon the Issue Frank de Frank Estate And so 42 Ed. 3. Bro. 85. upon the Issue Ne unque seisie que Dower or Ne dona pas And so 41 Ed. 3. 10. where the Resceipt was Traversed And so 33 H. 6. where the Issue was If the Grantor of a Rent had any thing at the Time of the Grant And so 3 H. 6. 3. upon the Issue of Assets entermains and Assets per discent And so in every General Issue Yet 7 H. 4. 11. upon the Issue of son Franktenement the Court would not suffer a Special Verdict But 1 2 Mar. Dyer 117. One did Traverse a Lease and the Iury found specially and awarded to Replead And so 11 Eliz. Dyer 284. in Crowch and Butler's Case where the Issue was by an Absque hoc and not a General Issue But 30 Ed. 3. Fitzh Abridgment Tit. Iudgment in Parco fracto the Defendant said That the Plaintiff's Wife delivered the Beasts out of the Pound Absque hoc que il infreint le Pound and the Jury found a special Verdict That the Headborough in the absence of the Baily according to Custom did deliver the same and good and the Defendant discharged although the Verdict be Special upon the Issue of Absque hoc because there it is as a General Issue And so is 32 H. 8. in an Assumpsit to make Two things The Defendant said That he did assume to make other Two things without that that he did assume in such manner c. and found that he did assume to make one of the Things contained in the Declaration and not the other and the Verdict for that last recited Reason good for the Plaintiff for that one Thing Otherwise if an Issue be upon a Traverse Absque hoc That A. and B. did Enfeoff And see in Plowden's Commentaries in Walsh's and Sander's Case That upon an Indictment of Felony a Special Verdict may be found And it appeareth also Mich. 1 2 Eliz. Dyer 173. That in an Attaint a Special Verdict was received Then ought to be known What things the Iury may take Conuzance of in their Verdicts as namely Matters in a Foreign County Conditions Records Releases and the like And first touching Matters in a Foreign County the Book of 22 Ed. 4. 19. is That upon the General Issue in Decies tantum the Jury may take Conusance of Mony taken in another County The like of Assets but need not be thereunto enforced Qu. inde because Transitory and not like to Trespass in Land but may not Specially find the Taking in another County And so seems 1 Ass. 16. That they could not find the Death or a Letter of Attorney expresly in another County Quaere tamen Et vide Bro. 24. The like 7 Ed. 4. 15 16. of a Resignation in another County or a Divorce And 3 4 Mar. Dyer 132. the Iury found a Lease in London and alledged as an Exception And touching the Damage that ariseth in another County by an Act they are bound to find as Battery
of the Plaintiffs Servants in one County by reason whereof he lost their Service in another County although it be so declared And by 9 H. 6. 62. in Trespass of Battery or Taking of Goods the Iury may find him Guilty in another Town in the same County Otherwise of Trespass Local But by 2 Ed. 3. 11. cannot Expresly find a Tender of Homage in another County And it appeareth 7 H. 6. Fitzh Abridgment Tit. Assize 359. that the Iury may Specially find a Condition annexed to a Feoffment according to Littleton But otherwise to a Release but may not find a Waranty because that cannot be without Deed. And in a Writ of Right the Iury may find a Release of Right but not a Collateral Waranty And so is 33 Ass. 11. touching a Feoffment upon Condition And so 28 Ass. 17. and 17 Ass. 20. of a Confirmation that doth Enlarge an Estate otherwise not But not a Release 16 Ass. 15. and 43 Ass. 41. A Feoffment given in Evidence the Iury in respect of the Livery are bound to find but may not take Conusance of a Release And by 21 Ass. 28. the Jury did find a Feoffment upon Condition not given in Evidence Then How the Jury may find a Matter of Record See first 3 H. 7. and 2. H. 4. That if a Iury find an Utlary or a Writ of Non Molestando or another Matter of Record the same is void Yet 28 Ass. 17. a Verdict found a Recovery c. And 26 Ass. 5. Verdict found a Fine not pleaded or given in Evidence sub pede sigilli whereof is a Mirum made in the Case by the Reporter And so the like the same Year Placito 3. upon a Recovery found by Verdict And 26 Ass. 2. The Verdict in an Assize found an Attainder and the Court there took it ill But touching this Learning see Newse's and Scholastica's Assize in Plowden's Commentaries where 't is said That a Note of a Fine or a Recovery without the Record it self Sub pede sigilli or the Number-Roll may be given in Evidence if the Jury will so accept of it Otherwise of Pleading the same And so holden without doubt upon the same Book 26 Ass. and other Books That the Iury may and in some Cases ought to find a Matter of Record which seems when given in Evidence Sub pede sigilli See more hereof in the Chap. of General Issue and Special Evidence antea Then How the Iury shall find a Spiritual Matter First see 21 H. 3. 9. where a Verdict in an Assize found That the Father of the Tenant had taken the Order of a Deacon and after Married the Defendants Mother c. And 8 Ass. 5. it was holden That the Jury in an Assize may find the Plaintiff or Defendant to be a Bastard but if it were Pleaded it shall be Tried by a Certificate from the Bishop And 29 Ass. 2. A Verdict in an Assize found a Divorce for that it is not a Matter of Record but a Matter in Fait quod nota Then it appears in Amy Townsends Case in Plowden's Commentaries That if the Jury or an Office find a Special Matter and Conclude contrary the Court shall not in their Judgment respect the Conclusion but the Special Matter found quod nota And so is 28 Ass. 17. But as appears 16 Ass. 15. if they find a Special Matter and Conclude according to the Law the Special Matter is waived And see 18 Eliz. Dyer 153. The Jury found Quod non Concessit prout Def. c. when it should be the Plaintiff and Assigned in Error Then In what Cases the Verdict varying from the Issue shall be good and where ill and for whom the same doth find For which see before in this Chapter of Verdicts in the Division of Special Verdict and in the Chapter of Issues where they find Part or another Day and the like And see the Titles Count or Declaration and Traverse as also the Cases ensuing viz. 36 H. 6. 2. In the Case of Nul tiel Record pleaded and a Recognizance upon Condition certified And 16 Ass. 19. it 's holden That upon the Issue Ne enfeoffa pas the Verdict may find a Conditional Feoffment And 30 Ed. 3. 5. the Defendant in Account did plead Pleinment Accompt devant A. B. and the Verdict found That he did Account before B. tantum and a good Verdict for the Defendant quod nota And 21 Ed. 4. 10. in Entry upon the Statute of Ric. 2. the Verdict upon the General Issue found him guilty of Entry only into two parts of the same and good accordingly And 10 H. 6. 13. in Debt against the Heir who pleaded Riens per Discent to which the Plaintiff Replied Assets in Dale and the Verdict found Assets in S and a good Verdict for the Place is not material And 1 Ass. 14. if one of the Defendants in an Assize be acquitted yet the Plaintiff shall have Judgment against the other and yet they Pleaded Joyntly to the Plaint Non Disseisiverunt See 2 Ed. 3. 49. Brook Tit. Verdict 20. If Executors plead Plene administraverunt and it be found That they did fully Administer to Ten shillings the Verdict doth pass against them and shall answer the whole Action Quaere inde And 7 H. 6. 33. the Issue was upon the Feoffment of A. and B. and the Verdict found That A. did only Enfeoff and by the Better Opinion found against him that doth plead the same Quaere inde And 40 Ed. 3. 35. If in Debt against Two who plead Non est factum it be found to be the Deed of one of them and not of the other yet the Plaintiff shall Recover And see 28 29 H. 8. Dyer 32. where one Declared in Debt upon a Lease of Twenty Acres To which the Defendant pleaded That the Plaintiff Lett the same Twenty Acres and Four Acres over sans ceo que il demise les 20 Acres tantum whereupon they were at Issue and the Verdict found the Demise only of 21 Acres and great Doubt was for whom the Verdict was found or whether for neither of them and so a Ieofail And see Dyer 1 2 Mar. 115. in Debt upon an Obligation the Breach of the Condition was assign'd in Cutting down Twenty Oaks and Issue thereupon viz. Quod non succidit praedict as viginti Quercus nec earum aliquam And the Jury found that he Cut Twelve and the Plaintiff had Judgment And see 22 Eliz. Dyer 367. in an Information of Usury the Defendant did plead Quod non habuit aut acceptavit praedictas Octoginta libr as pro lacro c. and the Jury found Quod acceptavit quadraginta libras Et pro Resid ' Non Culpabilis which was there among other things assigned for Error and nothing else taken notice of And see 47 Ed. 3. 19. One did pray to be Resceived in Default of the Tenant for Life and the Demandant said That the Tenant had Riens
two become Bail for him and the Plaintiff Recover and the Process continued till Judgment against the Bail Execution may be against either of the Bail without naming the other And Idem 896. he may have Execution against one of the Bail at one time and after have Execution against another of the Bail But Idem 897. if a man have once Execution against the Bail he may never after have Execution against the Principal Or if once against the Principal never after against the Bail And Idem ibid. if the King Recover in a Scire facias on a Recognizance acknowledged in Chancery he can have no Execution against the Body But a Capias lies on a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in an Action in the Kings-Bench But no Capias will lye upon a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in the Common-Pleas but there an Action of Debt will lye upon the Recognizance So if the Bail in an Inferiour Court enter into a Recognizance That if the Principal pay not the Damages and Costs recovered or render himself to Prison Tunc Concedit the Damages and Costs de terris catallis suis levari ad opus Querentis no Capias will lye upon this Recognizance So neither for the Plaintiff in Detinue to recover Damages against the Garnishee because as by 7 H. 6. 45. before-cited not party to the Writ So if an Inferiour Court be held by Charter and the Bail there Enter into Recognizance no Capias will lye for this But by Hobart 284. Abridged by Rolls 898. If the Principal after Judgment render his Body in Court in Exonerationem Manucaptorum and the Plaintiff doth not take him in Execution and this is Entred of Record as it must be the Plaintiff may after this Take him in Execution by Capias ad satisfaciendum And Idem 899. if A. Recover against B. in the Kings-Bench Damages and Costs and upon this hath Judgment against the Bail after Scire facias and after B. and the Bail joyn in a Writ of Error upon the Statute in the Exchequer-Chamber and while this is Transacted the Year and Day is Elapsed in this Case the Court of Kings-Bench may grant Execution For it is a void Writ of Error and as if none had been brought And Idem 891. if a Recognizance of Bail be taken by a Judge of the Kings-Bench at Serjeants-Inn in London upon an Original brought in London and it be Certified and Inrolled in the Kings-Bench it seems it may be extended in London or Middlesex In the next place we shall Consider Where Execution may be had by Scire facias and where it may be had without And first as to the Writ of Scire facias ought to be known That Execution must be had within a Year of the Iudgment otherwise it cannot be taken out till there be first sued out a Scire facias which is a Writ Iudicial going out of a Record and lies where one hath recovered Debt or Damages in the Kings Court and he sueth not to have Execution within the Year and Day he must have his Writ to warn the Party and if the Party comes not or if he comes and says nothing in discharge or stay of the Execution then the Plaintiff shall have a Writ of Fieri facias to Command the Sheriff to levy the Debt or Damages of the Defendant's Goods Or where the Process is a Capias he may have another Writ of Execution called a Capias ad satisfaciendum to Take and Imprison the Body of the Defendant till he satisfie the Party Plaintiff And so on a Iudgment to Recover Lands if the Plaintiff do not sue out Execution within the Year after the Iudgmenâ— he may not have Execution till he have 〈◊〉 Summoned the Defendant to shew Câ—use why Execution should not be had against him And if the Defendant cannot be found upon Summons or cannot or doth not shew Cause why Execution should not be made then a second Iudgment is awarded That Execution be done upon the first Iudgment And here by Co. 1. Inst. 290. and Dyer 148. this Writ of Scire facias being Entred the Tenant or Defendant may thereunto plead any Matter accruing after the Judgment as Release Outlawry c. to prevent the Execution But it appears by Old Natura Brev. 163. Dyer 270 271. Hobart 56 57. Cro. 1 Part 185. Bulstr. 2 Part 230. Lane 16. Finch's Ley 477. That if the Plaintiff sue out Execution within the Year he may Continue the Iudgment after the Year without Scire facias But see Fitzherbert's Natura Brevium Tit. Scire fac ' and Brook's Abridgment 134. by which as also by divers other Books it appears That Execution may be had within the Year against a Party to the Judgment without a Scire facias but otherwise if the Record be removed into another Court And with these Authorities doth agree 14 15 H. 7. And it appears also there That the Year shall not be accounted from the Time of the Recognizance but only from the Time of the Payment And 23 H. 8. ibid. 119. if one Recover in Annuity a Fieri facias shall go out within the Year and after Scire fac ' infinite because Executory And with this agrees Bro. 28. where said That if one Recover in a Writ of Annuity he may have a Fieri facias of the Arrerages incurred within the Year and a Scire facias after as oft as the Annuity is behind and no Writ of Annuity after And in every Scire fac ' in which he Recovers after the first Judgment he shall have Execution of the Arrerages within the Year by Fieri facias And 11 H. 4. 34. Bro. 119. after Judgment had in Annuity the Plaintiff after a Scire fac ' may have a Fieri fac ' to levy it as it becomes due And 21 Ed. 4. 1 2. if Rent be granted by Fine the Party may have a Scire fac ' in Infinitum as before in Annuity or as in Covenant upon Covenant as one Recovering in Trespass may bring a New Action And 22 H. 6. 15. Bro. 54. one Condemned in the Common-Pleas and in Execution Attainted after in an Assize Remanded also thither and could not be Committed there for that Execution also without Process And see 39 Ed. 3. 15. Bro. 122. One had a Scire fac ' to Execute a Judgment in a Praecipe quod reddat and Execution thereupon by Default and after surmized to the Court That the Person against whom he had his Writ of Scire fac ' and Iudgment was not Tenant but one B. against whom he had another Scire fac ' quod nota And Note by the Book of 22 H. 6. 11 12. That at the Common Law until the Statute of Westm. 2. De hiis quae c. If one had Recovered in Debt and taken out no Scire fac ' within the year
he was obliged after the year to take out a New Writ of Debt And see by the Book of 5 Ed. 4. and Experience That where a Scire fac ' is had upon a Iudgment there shall be no Execution without a Garnish i. e. giving Notice or Warning to the Party or two Nichils returned Vide 19 Ed. 4. 5. where said That in all Cases where the Heir Executor or Administrator may sue to have an Execution of any thing recovered by the Ancestor Testator c. he must first have a Scire facias against the Party against whom the Judgment is had to warn him to shew Cause why Execution may not be had for him against the Defendant and then if he either make Default or at his Appearance cannot shew good Cause why Execution should not be had against him Execution shall be awarded for the Plaintiff as it should have been for him under whom he claimed Vide Roll's Abridg. 890. If one recover Damages of A. whereof part is levied by a Fieri facias but not all and A. dies the Plaintiff may have a Scire fac ' against the Heir at his Election And Idem 900. a Scire facias lies upon a Recognizance if the Conusor be dead against the Heir in general or against I. S. Son and Heir of the Conusor without suing of the Ter-Tenants for he shall have no Contribution against the Ter-Tenants And see Dyer 208. If a Judgment be had against one that hath Land who dies and the Land discends to his Heir after a Scire facias had he may have Execution of this Land in the Heirs hands by Elegit against him Vide Co. Lib. 5. 88. If a Judgment be had in the Common-Pleas and removed from thence by Writ of Error into the Kings-Bench and there confirmed within the year the Plaintiff may have the same kind of Execution in that Court as he might have had in the Common-Pleas without any Scire facias But by Hob. 196 197. where the first Action is laid there the Execution must be by Scire facias if it be had Vide Godbolt 76. where W. had Judgment in Debt in the Common-Pleas against F. and after the Year without Scire facias took out a Capias against him and Arrested him whereupon he brought Error upon the Judgment in the Kings-Bench where the Judgment was affirmed and F. was discharged W. took him again by an Alias Ca. sa without any Scire fac ' out of the Kings-Bench and upon that the Sheriff returned a Cepi It was Moved He might be discharged for that having been once in Execution in the Common-Pleas and set at liberty by Sureties in the Kings-Bench upon a Writ of Error he ought not to be taken again But deny'd by the Court. For there said That one being in Execution and discharged by Privilege may be in Execution again But 16 H. 7. 2. and 21 Ed. 4. 67. as also 8 H. 7. 10 12. contra Vide Cro. 1 Part 334. where Judgment was had in Debt by Husband and Wife for the Debt of the Wife as Administratrix of her former Husband and after Judgment and before Execution the Wife died the Husband brought a Scire facias and Scire feci being Returned had Judgment by Nichil dicit and held the Scire fac ' ought not to have been brought by the Husband but being done the Judgment thereupon though Erroneous must stand till Reversed by Error Next we shall consider What Plea or Matter will stay Execution For which see first 10 H. 6. 6. That in Debt or Scire fac ' upon a Iudgment or Redisseisin no Plea that the Defendant hath Error hanging of the first Judgment And so is 37 H. 6. 16. in a Scire facias in the Common-Pleas after the Record removed until it be Reversed For it s there said that 't is but Tenorem Recordi removed and that if nothing be done in the Kings-Bench upon Error or the Judgment be affirmed then at the Election of the Plaintiff in the first Judgment he may have Execution in the Common-Pleas quaere tamen But 19 H. 6. 7 8. if the Record be not removed or the Party be not delay'd the Court useth to grant Execution notwithstanding Error And so 7 H. 6. 42. if the Plaintiff in Error do not sue out a Supersedeas Execution shall be granted notwithstanding his Writ of Error be allowed But 4 H. 6. 31. no Debt or Scire fac ' after the Record be removed by Error unless for a Nomine poenae in the Annuity See more hereof afterwards in the Title Error Next What other Pleas one shall have in Bar of Execution See Brook 6. in Abridging the Case of 20 H. 6. a good Plea That formerly the Sheriff by another Writ levied the Mony or took the Body in Execution although the Writ was not Returned And so 21 H. 6. 5. where also 37 H. 8. and 19 Ed. 3. are Vouched somewhat differing The like 44 Ed. 3. 18 in a Scire fac ' upon Arrerages of Annuity although there Payment or Riens arrere be no Plea Vide Dyer 344. If a Judgment be against an Heir by Nichil dicit in an Action against him on the Deed of his Ancestor on a Scire fac ' he cannot plead Riens per Discent at the time of the Writ brought but Execution shall be against him of his own Lands by Elegit And see Godbolt 79. where Judgment was given on an Obligation of 400 l. and a Scire fac ' was sued on the same Judgment for 300 l. and the Party did not acknowledge that he had received the other 100 l. and held That the Scire fac ' should not Abate and that he should have Execution But by More Case 693. in a Scire fac ' on a Recognizance Joyntenancy will Abate the Writ Vide Noy 143. where A. recovered against B. in Debt and afterwards brought a Scire fac ' To which B. pleaded That A. was Outlawed and held a good Plea if he be Outlawed after the Plea in Bar pleaded in the Action of Debt But otherwise it is if he be Outlawed before for then B. might have pleaded that in Bar of the first Action And it was said there That the Mony being in Court if the King's Counsel pray to have it for the King they must shew the Outlawry sub pede Sigilli and he must confess himself the Party Outlawed And see Godbolt 96. where Debt was upon a Recovery in a Scire fac ' in London on a Recognizance taken in the Chamber of London and it was not shewed That it was a Court of Record and that they had been used to take Recognizances And Exception was taken to it and Cases put That though a judgment were void yet Execution might be by Scire fac ' and the party might not plead that in a Writ of Error And this difference was taken where Execution was sued on such a Judgment and Debt brought
Plaintiff in the first Judgment upon two Scire fac ' shall have Execution or if he be Nonsuit in the first Writ quaere And by 20 H. 6. 18. If upon the Scire fac ' then if the Plaintiff be Nonsuit the Court may award Execution unless he bring a New Writ of Error presently And where the Plaintiff is in Execution there he must assign Error in Person otherwise by Attorney And Note That upon a Writ of Error the Record it self is always removed and not the Transcript But by 24 Ed. 3. 24 25. the Original Writ is not at first removed unless the want thereof be assigned Except upon a Fine which if the Justices Reverse they shall send for the Record of the Fine and avoid it And so 44 Ed. 3. 28. Bro. 24. how Error of a Fine non ritè levat ' in a Franchise shall be prosecuted And sometimes Errors shall be redressed in the same Court as Error in Process in the Kings Bench because the Default of the Clerks but not without Writ tho' the same Term. But the like may be done the same Term in the Common-Pleas without Writ but in another Term neither by or without Writ And it appears by the same Book That Error in Durham in any Mean Court there shall be redressed by Writ of Error there before the Bishop himself And the like in Ireland in the Kings-Bench there but Error there or before the Bishop himself in Durham shall be redressed in the Kings-Bench here And 19 H. 6. 12. Error in County-Palatine to be redressed here at Westminster and Errors in Wales to be redressed by Justices Errants there if there be any otherwise in the Kings-Bench here quod nota And 21 H. 7. 33. Error in Callice was Redressed here although the Judgment was there according to the Civil Law And see 24 H. 6. 241. and 18 Eliz. Dyer 15. How Error in Chester shall be redressed And touching Erroneous Proceedings in London if they be in the Sheriffs Court the Writ shall issue out of Chancery causing the Record to come before the Mayor be the Judgment upon Writ out of Chancery or upon Plaint only and another Writ that after the removing of the Record they Award no Execution But if the Plaintiff in Error there will not proceed then a Writ is to be Awarded to the Mayor to make out Execution But if the Erroneous Judgment in London be given before the Mayor and Sheriffs in the Hustings then to be Reversed by Commission out of the Chancery upon which the Commissioners shall Award a Precept to cause the Record to come before them and to summon the Parties And by the same Book last cited the form of a Writ upon an Erroneous Judgment in an Assize be the same Adjorned into the Bench or otherwise doth appear And where an Erroneous Judgment is given in the Chancery the same shall be Reversed in the Kings-Bench As 14 Eliz. Dyer 315. where a Deed bore Date before the Recognizance and delivered after And touching Erroneous Proceedings in all other Inferiour Courts of Record the same are to be Reformed by Writ of Error out of the Chancery retornable at the Pleasure of the Party either in the Kings-Bench or the Common-Pleas and to assign Errors and warn the Parties as before And see 14 Eliz. Dyer ubi supra That an Erroneous Judgment in the Chancery was Reversed in the Common-Pleas Quaere of the Erroneous Proceedings in the Cinque-Ports Ubi Brevia Domini Regis non currunt For by the Book 30 H. 6. 6. of Debt against a Gaoler of the Cinque-Ports upon an Escape Holden That an Erroneous Judgment there was Reversable before the Constable of Dover And so seems the Book of Diversity of Courts by a Special Writ out of Chancery directed Custod ' Quinque Portuum who shall write to the Barons for the Record And so 23 Eliz. Dyer 376. at Shipway and if it be Reversed the Mayor and Iurats to make a Fine and the Mayor to be Deposed But 3 4 Eliz. Dyer 206. an Attaint here of a False Judgment in Romney-Marsh But if Erroneous Proceedings be in the County-Court Hundred-Court or Court-Baron either in Plea Real as Droit Patent or Personal or by Writ or Plaint the Writ shall issue out of Chancery If in the County-Court then directed to the Sheriff and if in another Court then is the Writ an Accedas ad Curiam to the Sheriff and ought to be Certified by the Suitors for if no Suitors then no Writ of False Iudgment And Note That upon a Judgment in a Real Action in an Inferiour Court the Writ of False Iudgment lieth against the Tenant of the Land and not against him that is Party to the Judgment Neither doth it lye for the Defendant in a Real Action until the Demandant hath Entred upon him The like as it seems in Personal Actions not before Execution But in an Assize of Fresh Force no Writ of False Iudgment but a Writ of Error And when all the Record is Certified as well the Original as all the Mean Process then the Plaintiff is to Assign his Errors And if he proceed not but be Non-suit the other shall not have Execution without a Scire facias against the Plaintiff in the Writ of False Iudgment who then shall Assign his Errors and put in Sureties c. And it appears in the said Writ of False Iudgment That if the Defendant in that Writ of False Iudgment make Default after Appearance a Grand Distress shall be awarded against him And if he make Default again or cannot save his first Default Judgment shall be given against him without respect to the Errors as it seemeth And if upon the Record Returned the Defendant offer to Aver That the Record was otherwise it shall be Tried by the Country quod nota per Stat. 1 Ed. 3. And touching Error in the Exchequer none lay at the Common-Law before the Statute of 32 Ed. 3. which speaks only of Error in Process and that they should amend the Rolls and send them into the Exchequer to proceed to Execution and yet they do Reverse Judgment c. But by the Book of 15 Ed. 4. 18. the Chancellor and Treasurer cannot proceed to Execution as the Justices of the Kings-Bench may do but must Remand the same into the Exchequer for that purpose And it appears 28 H. 6. 11. That the Writ of Error ought to recite the Judgment to be given coram Baronibus and not coram Thesaurario Baronibus And of Error in the Common-Pleas the words of the Writ must be Coram Capital ' Iustic ' Sociis suis for that is the Form of Entry of the Pleas there And touching any Erroneous Judgment given in the Kings-Bench see the Statute of 27 Eliz. cap. 8. How Erroneous
Judgments in certain Actions in the Kings-Bench there particularly named and not touching the King may be Reformed in the Exchequer-Chamber or in Parliament and if in the Exchequer-Chamber then before the Iustices of the Common-Pleas and the Barons of the Degree of the Coif and the Record to be brought back again into the Kings-Bench And see the Statute of 31 Eliz. cap. 1. of Discontinuance of Writs of Error in the Exchequer and the Kings-Bench That it shall not be needful for all to be present And by the Writs of Error in the Register it appears That sometimes a Stranger to the Judgment may have his Writ of Error as Tenant by Resceit Vouchee He in the Reversion or Remainder and the Tenant both at one time And if the Feme be Resceived upon the Default of the Husband both of them may have Error or False Judgment And if Erroneous Execution be awarded upon a Recognizance the Feoffee may have a Writ of Error as appears 17 Ass. 24. See Dyer 4 H. 8. 1. accordingly and that he in the Reversion by the Common Law might have it when his Title accrued and by the Statute of 9 R. 2. presently But 21 Ed. 4. 27. in Debt against a Sheriff upon an Escape he shall have no advantage of Error in the first Record because he is a Stranger to it And so is 9 Ed. 4. 3. That a Stranger shall not Falsify but in that which disproveth the Cause of Action But 22 Ed. 4. 30. the Vouchee Tenant by Resceit Garnishee in Detinue or Foreign Attachment in London may have these Writs Then shall be considered Whether the Heir or Executor or Successor shall have these Writs And first by Fitzh Nat. Brev. touching the Successor if the Matter touch and lye in Succession then the Successor of the Abbot Parson and the like shall have these Writs But if Judgment in Debt or Damages in an Action Personal be given against a Bishop or a Parson his Executor and not the Successor shall have these Writs And for Debt or Damages recovered the Administrator or Executor and not the Heir shall have these Writs But touching that which the Heir is to have by Discent of that the Heir shall have Error and False Judgment The Heir shall likewise have a Writ of Error to Reverse an Utlary of Felony or Treason against his Father as appears by Fitzh Nat. Brevium and by that Reason the Executor shall have a Writ of Error to Reverse an Utlary in Trespass or Debt against his Testator because of his Right to the Goods And so is 11 H. 4. 65. But where the Writ of Error doth both Entitle the Heir and Executor as where Judgment in an Assize or Entry sur Disseisin c. is given against one who dieth if the Heir do not bring Error or Attaint for the Principal the Executors are remediless for the Damages and Costs recovered And so seems the Book of 9 Ed. 4. 12. 314. But if the Heir Reverse the Judgment he shall not as it seems be restored to the Damages but the Executor by Scire facias upon that Judgment of Reversal Yet if two Jointenants lease Land and Damage the Survivor shall be restored to the one and the other And accordingly 46 Ed. 3. 13. the Feme had an Attaint of a Verdict against her and her Husband although the Goods of the Husband subject to the Damages And so 19 Ed. 4. 6. the Executor shall not have Damages recovered in Detinue of Charters before the Heir have a Scire facias to have the Charters And see 50 Ed. 3. 3. where one in the Remainder in Tail recovered in Wast and before Execution died without Issue and his Executor had Execution And see 11 H. 4. 16. That if one of the Sisters after Abatement die and the Aunt and Niece joyn in Mortdancestor the Damages from the Death of the Aunt Jointenant and before the Damages for the surviving Aunt to be several Where also appeareth That if found for the Baron and Feme Plaintiffs in an Assize and that the Goods of the Husband were taken like Judgment as before shall be given And 14 Ed. 3. Fitzh Execution 15. if three Coparceners recover and one of them die before Execution the Damages survive not except they had once joyned in an Elegit See more hereof before in the Title Execution and in the Abridgments of Brook and Fitzherbert under that Title And by this Reason the Heir to the Land and not the Heir at the Common Law shall have these Writs as the Heir in Tail Special and Borough English and the like For it is not like to a Condition or Waranty as are 9 H. 7. 24. 3 H. 4. 19. and other Books Then we shall see What things one shall be Estopped by or past the Advantage to assign Error For which see Fitzh Nat. Brev. as followeth viz. That if one Utlawed do purchase his Charter of Pardon yet he may have Error to Reverse the Utlary And so is 18 Ed. 3. But against a Disclaimer the Tenant shall have no Writ of Error But as there and 6 Ed. 3. after Non-tenure found against him he may And one Condemned shall not assign Error in the Process Yet he that doth Confess the Action shall have a Writ of Error And it appeareth there also That if in a Writ of Entry sur Disseisin there want these words Quod clamat esse Ius Haereditatem if the Tenant plead he shall not have advantage thereof by Error And so in a Writ of Detinue of Charters of Land and in the Count the Certainty of the Land is not declared yet thereof is a quâ—ere And so of the like to this for which see Brook's Abridgment Tit. Error and 25 H. 8. Dyer 5. That the Party having Interest in the Land by Discent or otherwise shall neither have Error or Attaint Some things there be also that one shall not Assign for Error As That the Clerks of their own Heads gave Judgment Or That the Jury gave a Verdict contrary to the Judgment because these are Repugnant to that which the Court do as Judges Neither as there appeareth may many Things be assigned for Error that were for the advantage of him that doth Assign them As That he made an Attorney was Essoined had Aid the View or the like when it ought not or that he had a Day longer than he ought as appeats in Bro. Abridg. Tit. Error See 14 Eliz. Dyer 315. that the Plaintiff shall not Assign That he wanted the Judgment Ideo in misericordia nor the Defendant Quod Capiatur c. And touching Diminution which according to Fitzh Nat. Brev. 25. and Bulstr. 1 Part 43. is where a Record is Certified in part but not all of it so that there is some Diminution in part thereof then the Party concerned in it may have a Writ directed to the Court from whence it came to send the whole 〈◊〉
Informer therefore called a Qui tam from the words in the Information A. B. qui tam pro Domino Rege quam pro seipso sequitur for the Breach of some Statute or Penal Law wherein some part of the Penalty as a Moiety or Third part is given to him and may be either by Action of Debt or Information Informations are also brought by the Attorney General only in Cases where the whole Penalty or Forfeiture is given by some Penal Law to the King Vide Co. 6 Part Gregory ' s Case 3 Inst. 43 194 223. 340 356. 15 Eliz. ca. 5. 29 Eliz. ca. 5. 21 Iac. 1. ca. 4. Cro. 3 Part 375. touching the Duty of an Informer By 18 Eliz. ca. 5. Every Informer upon Penal Statutes must Exhibit his Information in Person not by Attorney and pursue it by himself or Attorney a Note of the Day of the Month of the Entry of it must be made no Jury must be Compelled to Westminster to Try any Offence done Forty Miles off unless the Attorney General for special Reasons requires it and the Informer not to make Composition without License of the Court on pain of Pillory By 15 Eliz. ca. 5. Defendants in Informations upon Penal Statutes may Appear by their Attorneys where they are Bailable by Law or by the leave and favour of the Court. But by 31 Eliz. ca. 10. This last Act shall only extend to Natural Subjects and Denizens By the Statute of 21 Iacobi ca. 4. for all Offences against Penal Laws the Information must be laid in the proper County where the Fact was done and not to be received till the Informer hath made Oath That it was done in that very County and that within a Year before and the Defendant may plead thereto the General Issue But this Statute shall not extend to Informations touching Recusants Tonnage and Poundage Transportation of Gold Silver Powder Shot Wool Wool-fells or Leather And by Cro. 3 Part 138. Co. 3 Part 138. 5 Part 48. 583. 11 Part 65 b. 3 Inst. 141 238. Mo. Case 715. Leon. 1 Part. 292. If the Informer dies the Attorney General may proceed for the Kings Moiety after his death And so 't is if the Informer will not Prosecute any further And so if the Attorney General will not Prosecute any further or will not Reply as the Course is for him to Reply alone in these Cases the Informer may Prosecute for his Part for after the Suit begins the Informer hath an Interest which the King cannot Release or Pardon And it appears by Stile 's Rep. 329 330. where an Action or Information is tam pro Domino Rege quam pro parte there if the Judgment be Entred only for the Party 't is Erroneous And Idem 318 319. upon an Information where part of the Mony did belong to the King the Party sued Execution of all to himself the Execution was ordered to be stayed and a New one awarded and in the mean time the Mony to be brought into Court And Idem 387. an Information was Exhibited for several Things whereof some of them appeared to be done before the Date of the Information and other part of them afterwards yet all well if done before the filing of the Information and Bail upon it for then the Action begins See Mo. Cases 165. Cro. 1 Part 24. 2 Part 366 666. by Dyer where a Statute appoints the Information to be brought within a Year yet if it be brought within six years after 't is sufficient for the Party And so Cro. 1 Part 341. in Demands less than due good for the King tho' ill for the Informer And see 35 H. 6. 27. b. in an Information for Detaining the Kings Goods 't is sufficient to say That they were in his Possession without shewing how they came as it must be in Trover or Detinue by a Common Person See Noy's Rep. 118. where the Defendant pleads to an Information upon the Statute of 23 H. 8. for selling Beer without License that there is another Information depending in the Exchequer for the same Offence 't is a good Plea if there be no Covin in the Case and if there be the Informer may set it forth in his Replication Mich. 22 Car. 2. an Information was brought in the Kings-Bench against one for being Perturbator Pacis Communis Oppressor and for that he took unreasonable Distress of divers of his Tenants after Verdict Judgment was staid for Three Reasons First Because not said which of his Tenants Secondly For that Information lies not for unreasonable Disterss but Action upon the Statute of Marlbridge 43. Thirdly Because Communis Oppressor and Perturbator Pacis are words too General to ground an Information upon So Hill 15 16 Car. 2. an Information was brought in the Kings-Bench against one for using the Trade of a Draper and Ruled to be ill for two Reasons First Because not saying it was a Trade at the time that the Statute of 5 Eliz. was made Secondly Because it wanted the words Contra pacem But Mich. 24 Car. 2. in B. R. an Information That diversis diebus vicibus between such a day and such a day the Defendant did such Offences held good tho' in a Criminal Case A TABLE OF THE CHAPTERS And Their CONTENTS CHAP. I. p. 1 Of Counts or Declarations A Declaration what ibid. Of the formal parts of which a Declaration ought to consist p. 2 Counts shall not abate for want of Form so that they have substance by the Statute of 36 Ed. 3. cap. ult ibid. p. 3 And Counts when defective Relieved by 18 Eliz. cap. 14. of Ieofails ibid. Contra per Maximi for a Count in Substance must be good to every Intent tho' it sufficeth that a Bar be good to Common Intent p. 3 Tho' a Declaration must be certain to every Intent yet in what Cases it shall be holden good by Intendment ib. 4 Vide Chap. 8. of Intendment p. 207. A Declaration shall not abate for Surplusage p. 4 But a Blank or Space in the Declaration shall abate the same ibid. Either Anno Domini or Anno Regni only may be mentioned in the Declaration according to the Specialty ibid. In Debt against the Ordinary or against a Gaoler the Plaintiff needs not declare how they were made Officers because an Action lieth against Officers in possession p. 5 Where a Condition contained in the Obligation is to the advantage of the Plaintiff there he must declare thereof Otherwise if it be to his disadvantage or contained in the Condition of the Obligation ibid. Of Declaring upon Indentures of Covenants ibâ—d Of Declaring in Annuity pro Consilio impenso impendendo by a Counsellour Attorney c. or by a Special Officer as a Keeper Baily Steward c. and the difference Ruled therein ib. 6 In Formedon the Plaintiff may Declare of a Gift without Seisin otherwise in a Bar p. 6 Where two Defendants and the one appears and the Plaintiff Counts
how pleaded Per Nomen how pleaded Continetur Praedict ' Nota benâ— Of the word Ut in Pleading Where a General Plea shall be pleaded for avoiding of Mischief Of Pleading an Entry c. Negative Pregnant Licet an Express Affirmamative Express Seisin or Possession to be alledged not implied Nota bene Of the words Virtute Cujus or Per quod c. Quorum praetextu A Deed how to be pleaded Of the Pleas Non est factum or Riens passa Where an ill Plea is made good by Reference to another Of Pleading Prout per Indenturam or Scriptum plenius liquet apparet Quae sunt omnia c. Quae est eadem dimissio Quod est idem Vastum Et non alia neque diversa Surplusage Pleading Devant son temps or Mispleading Un Plea fait auter bon Ieofail Estoppel Repleader It s Cause Ieofail what Ieofail At what Plea the Parties shall begin to Replead In what Place At what time Statutes aiding Ieofails or Mis-pleadings 32 H. 8. cap. 30. 18 Eliz. cap. 14 Of Matterâ— Remediable by the Statutes of Ieosails * Excepted in Stradling's Case before pag. 179. Matters not Remedied by the Statute Stat. 21 Iac. concerning Ieofails Stat. 16 17 Car. 2. concering Ieofails Averment de vie Averment de Cure License Mis-pleaded Issue Mis-joyned Mis-Trial Ieofail Stat. VVestm 2. cap. 31. Damages where to be found Entire and where Several Verdict ayd bon Pleading Verdict contral ' Matter de Record Of Special Verdicts Of what things the Jury may take Cognizance Of Matters in a Foreign County How the Iury may find a Matter of Record Spiritual Matter how to be found by the Jury Where the Jury find a Special Matter and Conclude contrary Verdict varying from Issue where good and where ill Where the Jury find more than is in the Issue Verdict for the Plaintiff yet he is Barred Where the Jury give divers Verdicts Verdict must be by 12 except by Writ of Inquiry Verdict de bene Esse Where the Verdict shall be void in part or a Ieofail Misdemeanour of the Jury where it makes a Verdict ill Forms of Judgmentâ— What Day Judgment shall be given Where i. e. in what Court Judgment shall be given Causes to stay Iudgment Judgment final Where the Plaintiff may have Judgment for part and relinquish the rest Two Judgments in one Action Where Judgment shall be with Cesset Executio Execution what Against whom Execution by Capias will lye In what Cases Execution may be had by Capias Execution by Capias pro Fine Escape Capiâ—s Utlagatum Where Execution by Capias Fi. Fa. or Elegit Upon Escape Sheriff chargable in Debt or Case Fresh Pursuit Old Sheriffs must give notice to the New of those in Execution Elegit It s Force Execution against Bail or Mainprise Mainpernors what Bail what Execution by or without Scire facias Scire facias what Vide Tit. Errâ—r Division 1. Matter and Pleas that stay Execution Pleas in Bar of Execution Venditioni Exponas Clericus Beneficiatus Where the Defendant may be Committed by the Court without Process Of Executions in the Ports or Franchises In Durham In Court Baron Of the Sheriffs Breaking open a Door or Chest to do Execution Franchise Discharge by Error and Mainprize Execution in B. R. after Error Discharge by Escape Discharge by Privilege of Parliament Going at large by Baston i e. Keeper or Tipstaff Discharge by Act of the Court Law or Plaintiff Attaint of Felony By assent of the Court and Parties Sheriff Fined for Disobeying a Supersedeas Error what Writ of Error what Scire facias Form of assigning Error Discontinuance Nonsuit By Attorney Record not Transcript removed Original Fine In a Franchise In the same Court Durham Ireland Palatine Wales Callice Chester London Supersedeas Hustings In Assize Chancery Inferiour Courts of Record Error in Chancery reformed in C. B. Cinque-Ports Shipway Attaint of a Judgment in Romney-Marsh False Judgment Real Action Personal Action Fresh-force Error in the Exchequer Forma brevis de Errore Error in C B. Error in B R. By a Stranger to the Judgment Heir Executor or Successor Damageâ— What Heir shall have these Writs Of Esâ—oppels in assigning Error Entry sur Disseisin What shall not be Assigned for Error Diminution what Supersedeas Error in Parliament Of Amendments of Erroneous Proceedings Errors not amendâ—â—le Of Error in Fines and Common Recoveries Infant Appeal what Where the Heir shall not have an Appeal of Murder Appeals brought by Infants Of pleading to Appeals Indictment what What shall Quash an Indictment what not Nusances Vi armis Contra pacem Incertainty A Rule to distinguish where an Indictment and where an Action of the Case doth lye Information what