it cannot be so Intended of the Court. And a New Trial was Awarded And see Co. Lib. 5. 120. Long 's Case where in an Indictment of Murder Error was alledged because the Indictment was said to be taken before W. S. Coronatore Dominae Reginae infra Libertatem dictae Dominae Reginae Villae suae de Cossam praedict ' per Visum Corporis and it was not alledged to what Places the Liberty did Extend nor what part or any part of the Town of Cossam was within the Liberty So as it doth not appear that the Coroner had Jurisdiction and it was said That Indictments which do concern Life and which are the King's Counts ought to have a plain and precise Certainty to which the Party may answer and shall not be taken by Argument But Resolved by the Court that the Indictment was good enough For if an Indictment be Certain to a general Intent the same is good enough And in this Case the Indictment is certain enough to a general Intendment because Cossam is within the Liberty of Cossam and that the Town it self shall be Intended to be out of the Liberty of the Town is a strain'd Construction which the Law will never allow of And see Co. Lib. 4. 65. Fulwood's Case Mich. 33 Eliz. where A. being seised of a House in London acknowledges a Statute to the Chamberlain of London for Orphanage-Mony according to the Custom and afterwards acknowledges another Recognizance before the Recorder and Mayor to B. who sued Execution thereupon and had a Liberate but it was not Returned and the Sheriffs upon that delivered the House in Execution to B. The Successor of the Chamberlain sued Execution upon his Recognizance by Elegit to the Serjeant at Mace Amongst other Matters in this Case it was Objected That here was no Recognizance in the nature of a Statute found for the Jurors have found Quod A. veniebat coram Recordatore Civitatis London T. O. Majore Stapulae Et recognovit se debere B. 200 l. and doth not say Secundum formam Statuti c. nor Per scriptum suum Obligatorium Whereas the Statute of 32 H. 8. provides that it shall be by Bill Obligatory sealed with three Seals But it doth not appear by the Verdict that it was according to the Statute and although that Verdict being the words of Lay-men shall be taken according to their meaning and there needs not so precise Form in them as in Pleading yet the Substance of the Matter ought to appear either by Express words or by words Equivalent so as there ought to be a convenient Certainty the which if it be false the Party for such Falsity may have an Attaint But it was Resolved that the Verdict was good for inasmuch as they have found a Recognizance before the Mayor and Recorder c. It shall be in a Verdict of Lay-men Intended according to the Statute for otherwise they cannot take any Record and also the sequel of the Verdict doth imply That there was a Recognizance in the Nature of a Statute otherwise no Execution could be sued thereupon CHAP. IX Of Bills of Exception THen touching Bills of Exception This as it seems by 27 H. 8. in Tatam's Action upon the Case is when one of the Parties for the Insufficiency of the Evidence on the other side as he conceives it doth offer to Demur upon the same and the Court thinking it to be good or the other Party Refusing the same do not Agree to it then the Court ought upon Request to Seal to the Party so refusing this Exception in a Bill which upon a Writ of Error as appears by Fitzh Nat. Brevium may be assigned for Error whereupon by the Statute a Writ if need be is to be Awarded to those Justices to acknowledge or deny their Deed but as it seems by the said Book of 27 H. 8. need not de Rigore Iuris be allowed in Arrest of Iudgment And it appears by Fitz. Natura Brevium and 11 H. 4. That this Bill must be Sealed before Iudgment and not after For the Formal Drawing up of Bills of Exception see one to the Evidence upon the Trial at the Assizes in an Action of Trespass Assault and False Imprisonment brought by Verdon against Decele Heyward and others in the King 's Bench Hill 33 34 Car. 2. in Brownl Latine Redivivus Tit. Bills des Exceptions and ibid. Mich. 32 Car. 2. where a Writ of Error was brought in the King 's Bench at Westminster upon a Bill of Exception to Evidence upon a Trial at the Bar of the Common-Pleas Court in Ireland upon an Ejectione firmae with some others there under the same Title CHAP. X. Of Verdicts A Verdict is the Answer of a Iury made upon any Cause committed by the Court to their Trial Which is twofold Special or General A Special Verdict is when they say at large That they find such and such Matters to be done by the Tenant or Defendant so declaring the Course of the Fact as in their Opinions it is proved and as to the Law upon the Fact they pray the Advice of the Court thereupon And this Special Verdict if it contain any ample Declaration of the Cause from the beginning to the end is also called a Verdict at large Whereof see divers Examples in Stamford's Pleas of the Crown Lib. 3. cap. 9. A General Verdict is that which the Jury find in General Terms upon a General Issue As in an Action of Disseisin the Defendant pleads No Wrong No Disseisin then the Issue is General whether the Fact be a Wrong or not which being put to the Jury they weighing the Evidence do either bring in their Verdict for the Plaintiff That it is a Wrong and Disseisin or for the Defendant That it is No Wrong No Disseisin Vid. Co. 1 Inst. fo 228. a. and New Book of Entries Tit. Verdict First As to a Verdict it must be sufficient in Matter and Form be the same Special or General as if the Jury do not Assess Costs and Damages where the same ought to be found and the like And therefore 21 Ed. 4. 11. where a Tender of Homage was found to be made and not shewed in what County the same was ill Quaere thereof for it appeared in the Pleading c. Next where the Damages are to be found entire or several Touching which see a good Case in 1 Ed. 5. 5. where the Plaintiff did Count in Detinue of Damages touching every part in several and the Jury found for the Plaintiff to the Damage of Twenty Pounds entirely if the Things could not be had where by the Better Opinion the Damages ought to be found several as the Declaration was See the same Case more at large in Bro. Tit. Count and so is 3 H. 6. 43. And by 9 H. 6. 66. in Wast the Iury ought to sever the Damages for every several Tree and every several Parcel but in a Writ to Enquire of
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
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
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 〈◊〉
See the Book of 9 Ed. 4. 32. where one of the Errors assigned was the want of a Writ of Re-summons To which the Defendant did plead In nullo Erratum est and had a Writ to Certify and yet upon the Assignment of Error in fait In nullo est Erratum was held no Plea And so Note That after the Plea of In nullo est Erratum the Defendant had advantage to alledge Diminution Yet 7 Ed. 4. 25. to the contrary See 22 Ed. 4. 24. touching this Matter See also 11 Ed. 4. 10. That one shall not alledge Diminution in a thing meer contrato the Record And see 15 Eliz. Dyer 321. That where Diminution is alledged a Certiorari shall be awarded And Note by the Book of 19 H. 6. 7 8. If after the Writ of Error be allowed the Plaintiff in Error Remove not the Record the Iudges of the Common-Pleas will award Execution Or if he make the Retorn of the Writ of Error too long or if they think the Errors assign'd to be frivolous But the Court of Kings-Bench may award a Supersedeas And by 21 H. 6. 26. If one in Prison upon a Judgment to Account brings Error yet he shall remain in Prison quod nota And it appears 21 Ed. 3. Bro. 61. That a Writ of Error hanging is no Supersedeas to have a Scire facias against a Stranger to the Judgment And as appears by 28 29 H. 8. Dyer 32. and 18 Ed. 4. Debt lieth upon the Judgment notwithstanding Error and for the Costs although the Judgment be Reversed See 23 Eliz. Dyer 375. where upon a Recovery in Assize Error was brought in the Kings-Bench and the Judgment there affirmed and a New Writ was brought in Parliament upon that Judgment and the Lord Chief Justice of the Kings-Bench brought the Record into Parliament as likewise the Transcript and after that they were Examined Remanded the Record and divers Errors were assigned in the Kings-Bench Then touching Amendment of Errors escaped in the Proceedings of a Suit and in what Cases the Judges of the same Court may amend them and save the bringing of the Writ of Error and where they must be Redressed by Writ of Error and cannot be otherwise done see 14 Ed. 3. cap. 6. And see Cro. 2 Part 479 526 528 545 672. That there are some Errors in the Proceedings of Suits that the Iudges of the Courts wherein they are depending ought to take Notice of and Cause them to be amended as all apparent Faults in Proceeding in the Action as in False Latin want of Form in the Writ Insufficiency in an Office or Indictment Mis-awarding of Process c. As if an Exigent go forth where none lieth Impossibility in the Plea as in Account supposing the Defendant to be the Plaintiff's Receiver for Seven years and he pleads Plene Computavit tali die which is the first Day of the Seven years In these and the like Cases the Court is to take notice of it ex Officio to Abate the Writ award a Supersedeas upon such Offices Indictments or Process to stay Judgments if the Defendants Plea be found against him c. and this without any Exception taken or motion made by the Party The Judges likewise are to see that neither Party in a Suit be prejudiced by any Error or Mistake in the Clerks of the Court as by writing a Syllable or Letter too little or too much or by Razing Interlining Adding or Diminishing of Words or Letters in any Record Process Warrant of Attorney Writ Panel or Retorn All which tho' they appear suspicious to the Court yet the Judges may amend them And see Co. Lib. 4. 62. Lib. 5. 37 45. Lib. 8. 133. Lib. 11. 6 7. Dyer 367. and Stat. 21 Iac. 1. cap. 13. That in Case of Appeals and Indictments for Felonies and Utlaries thereupon and after Demurrer joyned and entred the same Court wherein they are depending may amend the Imperfections in want of Form other than such as the Party demurring unto shall particularly set forth in his Demurrer And after a Verdict given in any Cause on either side neither Party in the Suit shall be hurt by reason of any Variance in any Matter of Form only between the parts of the Record or for lack of an Averment for Life if the Party be alive and it be proved by Examination or by reason any Venire Habeas Corpora or Distringas is awarded to a wrong Officer or that the Visne is Mis-awarded or any one of the Jurors Mis-named in any of the Writs or Retorns so he appear to be the same Person or for lack of Entry or Mis-entry of the Retorn of those Writs so a Panel be retorned and annexed to them or for that the Officers Name is not put to the Retorn so the Writ be retorned by him or that the Plaintiff being an Infant doth prosecute in Ejectment or any Personal Action by Attorney For the Judges of the Court have Power of themselves to amend all these things And see Bridgman's Reports 70. Bulstr. 1 Part 178. Brownlow's Rep. 30 35 57 80 130 136 144 149 151. Co. Lib. 1. 76. Lib. 2. 57 77. Lib. 5. 38 144. Stat. 23 Eliz. cap. 3. and Stat. 27 Eliz. cap. 9. By all which it appears that most Mistakes in Fines and Common Recoveries are not fatal but may be amended But by More Case 332. the Justices may not Reform Error in Law before themselves though it be the same Term but Error in Fact or Process they may So by Dyer 195 196. an Utlary in the Kings-Bench was Reversed by Error in the same Court but that was for Error in Fact not in Law as if no Utlary in the Case And Trin. 26 Car. 2. in B. R. it was holden That the Clerk in the Kings-Bench may amend the Roll until a Recordatur be made thereof either upon Writ of Error or by Rule of Court And see Mich. 8 Iac. 1. in C. B. Co. Lib. 8. fo 156. where said That before the Statute of 8 H. 6. cap. 12. no Original might be amended in the Common-Pleas and this Statute enables that Court to amend only Misprisions namely when the Clerk mistakes one word for another or where he writes Words which are not Latin As 9 H. 7. 16. hos breve for hoc breve or Bendloe ' s Rep. fo 19. Imaginavit for Imaginatus fuit or by Mistaking the Words of an Original to say Ostens quare non fuit for fuerit Or as 22 Ed. 4. Mistaking the words of Form namely Praecipe quod solvat for Praecipe quod reddat In all these Cases there shall be no Amendment But Mich. 9 Iac. 1. in C. B. in Ejectione firmae Weeks against Blackstead Lessee of Camden where after Verdict to stay Judgment the Defendants Council Objected that there were two Errors in the Record one in the Declaration namely prout praedictus Willielmus for praedictus Iohannes and the other was in the
Nov. 24. 1693. I do Allow of the Printing of this Book R. Atkyns MAXIMS AND RULES OF PLEADING IN Actions Real Personal and Mixt Popular and Penal Describing the Nature of Declarations Pleas Replications Rejoynders and all other Parts of Pleading shewing their Validity and Defects and in what Cases they are Amendable by the Court or Remediable by the Statute-Law or otherwise LIKEWISE Which of the Parties in his Plea shall first Offer the Issue and where Special Matter may be given in Evidence upon the General Issue of Demurrers upon Evidence of Verdicts General and Special and of Bills of Exceptions to the same of Judgments Executions Writs of Error and False Judgment and of Appeals Indictments and Informations and the Pleadings relating thereunto Published from the Manuscript of Sir ROBERT HEATH Knight Lord Chief Iustice successively of the Courts of Common-Pleas and Kings-Bench in the Reign of King Charles the First With Additions of New Matter to every Title from all the Reports since his Time LONDON Printed for Abel Roper at the Mitre near Temple-Bar MDCXCIV TO THE READER THE Author of this Incomparable Treatise made the Sentiments of the Great Littleton his Rule in Chusing that Subject He so much Commendeth in his Tenures viz. The Science of good Pleading as the most Nice and Critical Part in the Study of the Law which He hath Manag'd in such an Extraordinary Method that all Men of Sense of that Profession cannot sufficiently enough Admire and Value this His most Excellent Discourse of Pleading suitable to the Greatness of his Performance therein To do him Iustice No Person among the Writers of the Common Law hath been more happy in the Contrivance of his Design being so Concise and his Matter so handsomly Couch'd that I must beg the Reader 's Pardon if I confess it to be very difficult to Imitate him without taking up as much Time as He was pleased to allow himself which by the way was not within the Limits of my Province However I have so far taken Care to come near him that the Author himself if he were alive would not I presume altogether dislike what I have done But the greatest Obstacle I am to remove is what some Persons who have seen the Original do Object That it is only taken from the Year-Books Plowden ' s Commentaries and Dyer ' s Reports Things probably good in their Times But alas say they what 's that to the most Refin'd Polite and never enough Valued Equalled much less Out-done Reports Abridgments Tracts c. since their Times Tho' these are not wanting in our Composition I think to all this I may modestly Answer That the Year-Books are the very Foundation of the Law Plowden and Dyer perhaps Inimitable and I hope this may be further said without Offence That had it not been for the Clear Pespicuous Light of the Year-Books the later Reporters would have but grop'd as it were in the Dark and been beholden too much to that incertain Goddess Experience the Mistress of Fools as accounted by the Learned which how far Experimental Knowledge differs from Right Reason drawn by Succession of Time from the Maxims and Rules of the Ancients in all Ages I leave the Reader to guess at and if he Doubts to Consult his Coke upon Littleton W. B. MAXIMS AND RULES OF PLEADING CHAP. I. Of Counts or Declarations A Declaration is the setting forth comprizing or exhibiting in Writing the Cause of Action in any Suit or Plaint grounded upon the Common or Statute Law wherein the Party supposeth himself to be injured This hath been by some supposed in an Action Real to be most properly termed a Count but that being a Norman or Law French word is frequently if not as often used in our Books in all other Actions whether Personal or Mixt for a Declaration A Count or Declaration therefore being Terms equivocal and so used in the following Discourse ought principally to contain Three things First The Plaintiffs and the Defendant's Names which in Actions Real are called Demandant and Tenant and the Nature of the Action and this by some is termed the Demonstration or Demonstrative Part of the Count. Secondly The Time the Place and the Act in which ought to be comprehended How and in what manner the Action did accrue or first arise between the Parties When what Day what Year and what Place and to Whom the Action shall be given which is called the Declarative Part of the Count. And Lastly The Perclose or Conclusion which is Unde deterioratus est c. In which the Plaintiâ—f ought to Aver and Profer to prove his Suit and shew the Damage he hath sustained by the Wrong and Injury done unto him by the Defendant And this Definition consisting of a Tria somewhat resembling the Logical Major Minor and Conclusion some of the Ancients among whom none more fond of it than Mr. Fleetwood the Famous Recorder of London conceived to be a perfect Syllogism The Statute of 36 Ed. 3. cap. ult seemeth to help want of Form in Counts in these words By the Ancient Terms and Forms of Pleaders no Man shall be prejudiced so that the Matter of the Action be fully shewed in the Declaration and in the Writ However it was always at least so presumed by the most Eminent Pleaders and Sages of the Law by drawing this Conclusion from the words Count ne abatera pur default de Form issint que eyt Substance that is to say in English A Declaration shall not abate for want of Form so that it hath substance But Counts are more especially Relieved when defective by the Statute of 18 Eliz. cap. 14. of Jeofails after Verdict although they want Form or Agreement with the Register Note well the Statute and what Cases are remedied by the same For notwithstanding the Statute of 36 Ed. 3. before recited there is holden a Maxim in our Books That It sufficeth if a Bar be good to Common Intent but a Count in the Substance thereof must be good to every Intent And so is 3 H. 7. 11 12. where the Retorn of a Writ of Rescous was adjudged ill because the Sheriff named no Place where the Rescous was made the Retorn of a Sheriff resembling a Count which must be good to every Intent And so is 3 Ed. 4. 21. That a Declaration must be certain to every Intent And yet In some Cases a Count shall be holden good by Intendment as 3 H. 6 35. the Plaintiff in Debt did Declare upon an Obligation made at D. which extended into two Counties yet it shall be taken without other Declaration to be made in the County where the Action is laid where Note that the County is not by express Name declared And 20 H. 6. 23. the Plaintiff in Account did declare that the Defendant was Receiver until the Feast of St. Michael but shewed not which St. Michael and by Intendment shall be taken for St. Michael the Archangel
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
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.
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
by 13 H. 7. 1 Co. lib. 5. 87. 25 H. 7. 15. 33 H. 6. 47. 28 H. 8. 9. 19 H. 6. 4. 17 Ed. 4. 4. after an Elegit sued out and returned the Plaintiff may not have a Capias ad Satisfaciendum or a Fieri Facias but he must have an Alias Elegit or an Elegit in another County And by Hob. ubi supra The Plaintiff may have an Alias Elegit or an Elegit in divers Counties one after another And Idem 58. An Elegit may be had for a Residue after a part is levied by a Fieri Facias and if upon the Elegit nothing be taken but Goods which are not enough the Plaintiff may have a Fieri Facias But ibidem Dubitatur whether if a Lease of Lands for three years be taken which is not enough if now the Elegit be Peremptory Then ought to be known How a mans Bail or Mainprise shall be had in Execution or discharged For which see first 47 Edw. 3. 25. 26. That Mainpernors are there taken but to observe the day that is to say They are such Persons as do take or receive a man into Friendly Custody that otherwise is or might be Committed to Prison upon security given by them for his forth-coming or appearance at the day assigned or return of the Writ or Process So that he that is Mainprised is always said to be at large and go at his own liberty not of Ward after the day is set to Mainprise until the day of appearance by reason of Summons or otherwise But it is otherwise where a man is let to Bail to four or two Persons by a Judge till such a day for there he is always accounted by Law to be in their Ward or Custody for the time And they may if they will keep him in Ward or Prison all the time or otherwise at their pleasure so that he that is so Bailed shall not be said by the Law to be at large or at his own liberty For as before 47 Ed. 3. in Trespass the Defendant coming in by Capias found Mainpernors and had a Supersedeas and at the day appeared and made an Attorney and the Mainpernors discharged But Experience is otherwise at this day for the Mainpernors now answer the Execution in default of the Principal And 8. H. 4. 21. three Persons brought a Homine Replegiando and found Mainpernors to prosecute with Effect where said That if they fail the Defendant shall have Execution against the Mainpernors And 2 H. 4. 6. an Inquest did pass against the Defendant who was demanded and came not and his Mainpernors awarded to Prison quod nota Quaere tamen inde for by experience at this day no Execution can be had against the Mainpernors unless some Writ of Execution be returned against the Principal Nichil or Non est Inventus and the Bail or Mainprise be discharged upon the bringing in of the Principal either hanging the Plea or after Judgment before Execution for after Execution is once had against the Bail or Mainpernors the Principal is discharged Quaere tamen inde And this Bail may be after discharged as by death of the Principal Demise of the King c. And as 32 H. 8. Brook Tit. Mainprise If a Record be removed out of London by a Writ of Priviledge altho' the same be after Remanded by Procedendo yet the Mainpernors are discharged The like where Judgment is to Replead and the Plaintiff makes a New Declaration But if the Priviledge were never allowed then it is otherwise as it seems 31 H. 8. Procedendo 13. and Surety in Brook 28. See likewise 38 H. 6. 4. 12. Where one having cause of Priviledge in the Court of Common Pleas was Arrested in London and drawn into Plea in one of the Sheriffs Courts there and before Judgment he delivered a Supersedeas to the Inferior Court yet they proceeded to Judgment and the Party was taken in Execution and brought by Habeas Corpus in the Court of Common Pleas and the Court awarded That the Party should be discharged of the Execution Vide Co. Rep. lib. 5. fol. 70. If the Principal upon a Special Bail do not pay the Mony or render his Body after Judgment in discharge of his Bail then and not before Execution is to be had against the Bail And see Goldesbroughs Rep. fol. 175. Where said That Execution may not be sued out against the Bail till a Default be returned against the Principal But by Hob. 116. If the Bail be in Execution and a Writ of Error be brought the Court may not discharge him Vide Touch. Prec 64. If a Capias be awarded and returned non est inventus against the Principal and the Bail bring him not in if the Principal die altho' there be no Scire Facias against the Bail yet the Bail is chargable for tho' the Court will excuse the Bail yet the Bail if they bring in the Principal before the return of the second Scire Facias this is ex graâ—ia Curiae and not of necessity And Mich. 14 Iacobi in C. B. The Case was That Judgment was given against one in the King's Bench upon which he was in Execution and had another Judgment a-against him in the Common Pleas in which Court the Sureties to save their Bail brought him to Bar by Habeas Corpus to render his Body but before that he had brought a Writ of Error in the King's Bench to reverse the Judgment in the Common Pleas but the Record was not removed In this Case the Court said That when a Man comes in to save his Bail he shall not be Committed if the Party do not pray it but when Error is brought before that he be in Execution it is a Supersedeas so that they cannot Commit him at the Prayer of the Party And Waller Praenotary said That the Bail is to render the Principals Body in Execution so that the Plaintiff may have it in Execution but here he cannot in regard a Writ of Error is brought and therefore the Bail shall be discharged Vide Latch's Rep. fol. 192 193. One had Judgment in Debt in the Common Pleas against the Defendant and there after the year without any Scire Facias took out a Capias against him and Arrested him and upon this he brought Error in the King's Bench where the Judgment was affirmed whereupon he was discharged and the Plaintiff took him again by a Capias ad Satisfaciendum without any Scire Facias out of the King's Bench and there this difference was taken where one is lawfully taken in Execution and after discharged by Writ of Error upon which Judgment is affirmed there a New Capias will not lie against him but Execution shall go out against the Sureties unless he will render himself but otherwise where one was never lawfully in Execution when the Judgment is reversed there he may be taken again Vide Rolls Abridgment 888. If in Debt against I. S.
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
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
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
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
Law or not and must be given to the Plaintiff and not to another that enfeoffeth the Plaintiff And therefore 2 19 H. 6. Br. 1 c. it is a good Colour to say That the Plaintiff Claiming as Executor when he was not c. And for the Defendant to give the Plaintiff Colour by the Bailment of A. who afterwards gave to the Defendant is a good Colour by 6 H. 7. 7. But 28 H. 6. 4. to give the Plaintiff Colour only by a Bailment Ill notwithstanding to give him Colour by the Gift of the Defendant as Bailor by 7 H. 6. 31. is good And so is 21 H. 6. 36. and 35 H. 6. 54. to say That the Plaintiff pretending his Father to die seised when he did not did Enter no Colour because the Defendant himself destroyeth the same But 9 H. 4. Bro. 9. that the Plaintiff supposing his Father to die seised in Fee when but for Life is a good Colour It is a good Colour in Trespass by a Parson to say That he Claimeth by the Bishop and not by the Predecessor of the Parson as is 8 H. 6. 9. But 19 H. 6. 20. that the Plaintiff Claiming as Parson when he never was Inducted no Colour Otherwise if Parson 21 H. 6. 30. But to say That the Plaintiff Claimed as Heir when he was a Bastard a good Colour and so is that Year fol. 21. Or to say That the Plaintiff pretending Title to a Reversion without Attornment a good Colour And 19 H. 6. 46. 16. to give Colour by a Coparcener or Iointenant is Good And 21 H 6. 43. Doubted whether a good Colour to say that the Plaintiff claimeth by the Son and Heir of him by whom the Defendant doth pretend Title And 24 Ed. 3. 50. to give Colour as Heir of the part of the Father c Good By 2 Ass. 7. it is a good Colour to say That the Plaintiff Claimed to Enter as Lord by Escheat c. But otherwise as it appeareth by the same Book to give the Plaintiff Colour meerly by Abatement is no Colour But by 12 H. 7. 25. it is a good Colour to say That the Plaintiff Sowed the Corn and he did Reap and Cut the same And 18 Ed. 4 10. a good Colour by a Lease at Will And 22 Ed. 4. 23. it is a good Colour in Trespass for Tithes to say That the Plaintiff claimeth as Parson and the Defendant as Vicar And by 40 Ed. 3. 23. it is a good Colour to plead That the Plaintiff Claiming by Confirmation made to her Husband and her self or by the Confirmation of an Infant or Tenant in Tail or Claiming Dower did Enter although a Woman having Right cannot enter into her Dower Yet all these are good Colours Other Cases there be of Colours but by those above-cited the Reason of the others may well appear The next Point touching Matter of Form in the Defendant's Plea is the Conclusion of his Plea and when his Plea shall be to the Writ or otherwise By 8 H. 6. 18 19. in London or other Places where they have Special Grant not to be Impleaded elsewhere there they Conclude Iudgment de brevi and shall not Conclude to the Iurisdiction And 38 H. 6. 19. where the Defendant's Plea doth prove that the Plaintiff may have another Writ in the same Court there he shall Conclude to the Writ and not to the Jurisdiction But by Prisot 37 H. 6. 24. if the Plea be in Bar and the Conclusion to the Writ it shall be taken in Bar and so is 34 H. 6. 1 2. But of the contrary side is 37 H. 6. 48. in Forcible Entry If the Defendant Pleads to the Writ and Concludes to the Action he shall be Condemned because by his Conclusion he hath admitted the Writ to be good The like Law if he Plead to the Jurisdiction and Conclude to the Writ And by 26 H. 8. Brook Brief 409. If the Plea be to the Action of the Writ he may so Conclude to the Writ And as it appears in the Titles of Estoppel and Waranty If a man Plead in Bar an Estoppel Waranty or the like he shall Conclude upon the same and not to the Action although it were in a Writ of Right as in Fitzherbert's Natura brevium in the Writ of Right Patent appeareth But it appears to be otherwise at this day by all the Books of Entries For the Tenant or Defendant after his Defence immediately doth not only defend the Action by these words Et dicit quod praedictus A. the Plaintiff Actionem suam praedictam inde versus eum the Defendant habere non debet but also in the End of his Plea immediately after his Averment useth again the same words with an Et caetera c. And so is the Practice at this day Next in order we shall Treat of Averments their Natures and Signification and in what Cases they are to be made use of in Pleading and where not The word Averment is diversly used in our Law by some it is taken to be where a man pleadeth a Plea in Abatement of the Writ or Bar of the Action which he saith he is ready to prove as the Court shall award Others say it is an Offer of the Defendant to make good or justifie an Exception pleaded in Abatement or Bar of the Plaintiff's Action and signifies also the Act as well as the Offer of Justifying the Exception Averment likewise is either General or Particular A General Averment which is the Conclusion of every Plea to the Writ or in Bar of Replications or other Pleadings containing Matter Affirmative ought to be Averred with an hoc paratus est verificare c. Particular Averment is where the Life of Tenant for Life or Tenant in Tail or the Age of an Executor or the sense or meaning of Words in an Action of the Case for Slander are Averred in these words Cum hoc quod idem J. S. verificare vult quod c. And touching the General Averment used in the Conclusion of the Defendants Plea by the words Et hoc paratus est verificare c. that ought to be to all Pleas in Bar and to the Writ But by 3 Mar. Bro. Averments 81. need not to be to an Avowry because an Avowry is in the Nature of a Count or Declaration yet in the Books of Entries it is sometimes used in Avowries and most commonly in all Pleas of Replication but not in Rejoynders neither seems it to be hurtful if used where needless for then but Surplusage and Surplusagium non nocet But upon the General Issue or a Plea in the Negative or a Plea apparent in the Writ ought to be no Averment and 27 H. 8. 14. Adjudged that upon a Challenge to the Array there needs no Averment And it appears by 2 H. 7. 2. that in a
Replication Quod non habetur tale Recordum per quod liquet c. Et hoc paratus est verificare per Recordum illud is contrarient and naught Where it is said also That if a Plea want an Averment or have not a sufficient Averment the same is not good quod nota And it appears by 37 H. 6. 14. that in a Forcible Entry the Defendant pleaded Excommengement in the Plaintiff without any Averment because no Answer is to be made to that Plea But it appears in the Books of Entries That where a Plea is either pleaded to the Jurisdiction or to the Person by Matter en fait as Profession or Villenage there be always Averments whichs seem to be of Necessity by the last recited Book because to these Answers may be made quod nota And Note that by the Book of 37 H. 6. 23. If one have a Plea to the Whole he may plead the same to a Part Where it is said by Moyle That a Release or Iustification or any Matter in the Affirmative pleaded without an Averment of the Plea or pleaded in the Negative as Nil debet and the like without the Conclusion Et de hoc ponit se super Patriam and yet 1 3 Mar. 124. the General Issue was pleaded without that Conclusion and good or to plead a Bar in an Assize without taking the Tenancy upon him where divers are named in the Writ the same is Ill. There needs no General Averment in a Plea or Particular Averment in a Declaration of that which will come in more properly on the other side Hob. Rep. 78. 124. And by the same Reports 88. 106. there will need no Averment in a Declaration where it appears there are Reciprocal Remedies But by the same Book 251. where the Administrator durante minori aetate is Plaintiff in a Suit there the Nonage of the Executor must be Averred Secus where he is Defendant Yet by Sheppard's Abridgment Tit. Averment fo 230. the Executor of a Grantee of a Rent or Reversion expectant upon an Estate for Life may not Avow his Distress without an Averment that the Arrerages incurred after the Death of the Tenant for Life Adjudged And so by Hobart fo 141 142. he that pleads a Dispensation to hold in Commendam confirmed by the Kings Charter must aver the Performance of the Condition contained in it So by Perkins cap. 147. If the Defeasance of a Recognizance be dated before if in this Case any use be to be made of it it must be Averred to be delivered at or after the time of the Recognizance entred into By Coke's Rep. lib. 8. Case of the. City of London and lib. 9. 54. Averment needs not be of what is apparent as the Constitution made in London concerning the Sale of of Wares and Merchandizes appearing to be agreeable to and waranted by their Charter the same needs not be Averred to be so and if the Son bring an Assize of Mortdancestor he needs not to Aver that it is within the time of Limitation for that it appears to be so And by the same Author Lib. 7. 40. although any other Consideration than what is a Deed may not be Averred yet where there is an Express Consideration in it self in the Case as where a Use of Land is limited to a Wife this implies a sufficient Consideration in it self and therefore needs no Averment By Hobart 32. an Averment may be upon a Will but by Co. lib. 5. 68. an Averment will not lye of any thing that is against or besides that which is against or besides that which is expressed in a Will nor of any thing that cannot be gathered to be the Mind of him that made the Will by the Words thereof nor of any thing that doth not cohere with the Will especially if the Devise be of Lands As where one Devises to A. and the Heirs of his Body the Remainder to B. and the Heirs Males of his Body on Condition that he or they or any of them shall not alien c. In this Case no Averment may be taken by Witnesses that it was the Intent of the Devisor to include A. within the Condition by the words He or They c. So neither may an Averment be taken that the Intent was to give it to any other besides the Devisee But by Hobart 50. an Arbitrement in Writing may not be supplied by an Averment And by Bulstrode first Part fo 220. and Popham fo 201. it appears that if Tenant for three Lives make a Lease to another the Lessee in an Action brought by him needs not to aver the Lives under which he claimeth Nor by Goldesborough fo 97. needs he that sueth an Administrator upon the Assumpsit of the Deceased aver he had Assets after Debts and Legacies paid So by Hobart 297 and Coke on Littleton 373. it appears that if a Tenant disclaim upon an Avowry in Replevin he shall have Judgment tho' it be false For no Averment will lye against a violent Presumption though it be false By the Book of 34. H. 6. 42. and of 9 Ed 4. 4. an Averment may be had against any part of the Rolls or Records of County-Courts Hundred Courts Courts-Baron or other Courts belonging to Lords of Mannors But by Dyer 348. 177. no Averment will lye against such a Retorn as is definitive to the Trial of the thing Retorned as the Retorn of a Sheriff upon his Writs the Retorn of the Mayor Aldermen and Sheriffs of London upon a Writ of Habeas Corpus sent to them and the like But if it be such as is not Definitive as upon a Rescous or the like there an Averment and a Trial upon it may lye So if it be such a Retorn as may endanger a mans Life or Inheritance Also by the Statute of 1 Ed. 3. cap. 3. and Goldesbrough 129 130. and Croke 2 Part fo 13. an Averment will lye against the Bayliffs of Franchises so that the Lords thereof be not prejudiced thereby The same Law of Certificates For by Co. Lib. 7. 14. Lib. 9. 31. and Bro. Abr. 332. no Averment will lye upon such a Certificate as is a Definitive Trial in Law of the thing Certified as the Certificate of a Bishop touching Bastardy Excommunication Marriage c. But by Co. Lib. 7. 14. Lib. 8. 121. and Leon. 1 Part Case 285. an Averment may lye and shall be received against a Certificate which is only to give Information and in the Nature of a Trial and may also lye against a Certificate upon a Commission out of any Court and may likewise be received against the Certificate of Commissioners that affirm a man to be a Bankrupt But by Bro. 332. If a Bishop Certify that such a Parson doth not pay his Tenths Iuxta formam Statuti no Averment shall be received against it And in More Case 295. an Averment will not lye against a Justice of the Kings Bench or Common Pleas and the Custos
no Plea in Attaint or other Matter of Record but if the Matter of Record be mixt with a Matter en fait then it is a good Plea But in Wast as is 11 H. 7. 13. Accord or Arbitrement no Plea because the Action Mixt nor in any Real Action but in Forger of Faits and other Actions upon Statutes Accord or Arbitrement is a good Plea But 5 Ed. 4. 7. this difference is taken that Accord pleaded is not good without a Satisfaction executed before the Action brought and that it must be Executed in the whole and not in part as is 6 H. 7. 10. But an Arbitrement is without Execution a good Plea because an Action lieth thereupon And therefore 19 H. 6. 29. the Defendant did plead That in Satisfaction he gave the Plaintiff a Pottle of Wine and did not plead the same by way of Accord soy prist But see thereof more especially for the Pleadings in the Books of Entries And in some Actions especially Actions Real the Waranty of the Ancestor of the Plaintiff shall be a good Bar but then the Conclusion of the Plea must be considered which appears by the Books of Entries to be Si encounter le Garanty son Auncestor qui Heir c. But as it appears by 14 H. 4. and H. 7. 12. and other Books in the Title Garanty in Brook's Abridgment the same by the better Opinion is no Plea in Trespass until the Freehold come in debate Yet 21 Ed. 4. 18. Ibidem 63. the Defendant in Trespass did plead That I. S. was seised in Fee to whom the Ancestor of the Plaintiff did Release with Waranty whose Estate the Defendant had and Concluded ut supra and there is no Question made whether that Plea might be in Trespass but whether he that made himself no Title shall plead the same Notwithstanding 20 H. 6. 20. in Trespass upon the Statute of Rich. the Feoffment of the Ancestor of the Plaintiff with Waranty holden no Bar But there it is said That if the Defendant plead his Free-hold the Plaintiff may have the Plea aforesaid and Conclude Iudgment si encounter le fait son Ancestor c. And 20 H. 7. holden no Plea that the Plaintiff did Confirm to the Defendant Lessee for years with Waranty nor that in Assize by Tenant by Statute the Waranty Collateral of his Ancestor a good Bar because but a Chattel demanded yet there holden that a Ward may be granted with Waranty and the Voucher may be in a Writ of Ward And see 5 H. 7. 18. and other Books in the Title of Waranty and 22 H. 7. That a Sale of a Chattel without Esplees of Waranty bindeth not the Seller to Warant and that Waranty also must be made at the time of the Sale and not after and no advantage thereof to be taken by way of Bar but by way of Action quod nota In the next place we shall consider where the Plea of Auterfoits bar shall be a good Bar and where not And therefore for that first see 12 Ed. 4. and Bro. Action sur le Case 92 110. that Ley gager in Detinue is a good Bar in an Action on the Case for the same Goods And by Bryan 2 R. 3. 14 19. in Account upon Goods delivered it is a good Plea to say That in Detinue before brought by the Plaintiff the Defendant did Wage his Law And so seems 15 Ed. 3. Fitz. Assize 96. that in an Assize a Retraxit by the Plaintiff in another Assize is a good Bar Otherwise of a Nonsuit by Experience for until the Statute of Second Deliverance one might have one Nonsuit after another in Replevin ad infinitum quod nota But if the Plaintiff be once barred by Judgment in the same or in one of the like Nature or in an Action of a higher Nature he shall be also Barred in another meaner Action But as it appears in 14 Assize 6. the Using of a Writ of Entry is no Bar in a Formedon nor in an Assize to plead That the Plaintiff had of this Land brought a Formedon but the same is a good Plea to the Writ And so is 4 Ed. 3. Bro. Bar. 61. But as it seemeth to Plead a Recovery of the Land in question against the Plaintiff or one whose Estate he hath in the same or higher Nature of Action it is a good Bar by many Books And 18 Ed. 4. 28. Bro. Ioynder in Action 70. that in Trespass upon the Statute of 5 Ric. 2. by three Persons a Recovery of a Third part of a Moiety against one of them and Execution thereupon a good Bar. But as it seems in 21 H. 6. 55. no Plea in Detinue of Goods to say that before in Detinue and Garnishment against him the Defendant he did Recover the Goods And 19 H. 6. 239. in an Annuity by Prescription against a Parson who Prayed in Aid and Traversed the Prescription and found against the Parson and afterwards in a Scire facias he would have had the same Plea again but could not although all the first Jury were dead because it was his Default But see Brook Bar 12. 20 H. 6 and 43 Ed. 3. in Debt where said That if the Defendant plead a former Recovery by the Plaintiff in Plea Real or Personal without Execution it is no Bar because he that Recovered may at his pleasure bring a New Writ And so is 9 Ed. 4. 50. in Trespass as likewise 4 H. 7. 7. where Three are bound joyntly and severally but Execution is had only against one of them yet this shall be a good Bar for the other two The next Thing observable in Pleading is to know Where the Plea of the Defendants or one of them shall go to part or to the whole For which see first 9 H. 6. 46. That if in a Praecipe against Two One doth plead in Bar for his Part and the other doth plead a Plea that goeth to the Whole as Bastardy c. yet it shall not bar the Plaintiff against the other But it is otherwise in a Personal Action for there the Plea to the Whole shall be first Tried and if found against the Plaintiff shall serve for both the Defendants And by 31 H. 6. 23. If one pleadeth a Plea in Bar in an Assize that goeth to the Whole he may at his pleasure Conclude it but to the Moiety Where it is said by Prisot That if one Pleads a good Matter in Bar and Concludes to the Writ it shall be taken in Bar. In the next place we shall Treat of Certainty in Pleading And first Where the Defendant in his Bar shall be forced to set down the Certainty of the Land or give a Name to the same For which see 5 H. 7. 28. in Trespass of Goods the Defendant did plead that the Place was his Freehold and that he took the Goods there Damage fesant the Defendant was forced to set down the Land in certain because
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.
Cloth and had the same in Court The like 8 H. 6. 25. of Mony to be paid And yet 21 Ed. 4. 8. in Dower the Defendant pleaded That the Plaintiff detained a Hamper of Evidences To which the Plaintiff Reply'd That she was always ready to deliver the Hamper of Evidences by Reason whereof she had Iudgment Maintenant and yet she had not the Hamper in Court And 24 Ed. 3. 31. if the Defendant in a Writ of Ward Claim nothing but because of Nurture he ought to have the Infant in Court And so is 24 Ed. 3. although the Infant be Sick And yet Fitz. 8 Ed. 3. he found Mainprize to have the Infant in Court And 6 Ed. 4. 11. the Defendant in Detinue of Corn did plead Tout Temps uncore est without having the Corn in Court and the Plaintiff Replied That such a Day he Required the same and the other Refused to pay and Issue thereupon Then In what other Case a man shall plead Uncore prist As 14. H. 7. 32. and 15 H. 7. 1. in a Writ of Annuity which was granted until the Plaintiff was Promoted to a Benefice If the Defendant do plead a Tender hanging the Writ he ought not to Tender the Arrerages also because the Plaintiff shall have Debt for the same And 33 H. 6. 26. the Garnishee in Detinue did plead That the Goods were delivered to the Defendant upon this Condition That if the Garnishee did perform the Arbitrement of I. S. then he should have them and that I. S. did Arbitrate he should pay to the Plaintiff Forty shillings which he did Tender and need not plead Uncore prist for that the Mony was not in demand in that Action And upon that Reason is 7 H. 4. 3. That if the Defendant in Trespass of Goods make a sufficient Iustification although he Confess a Detainer yet he need not plead Uncore prist And by the Book of 1 R. 3. 1. in Debt upon a Single Bill or Obligation by the way the Defendant may plead That he was and yet is ready to pay if the Plaintiff would have delivered him an Acquittance by which it should seem that the Plaintiff in that Case ought to Offer an Acquittance as he is to demand Rent that is payable on the Ground quaere inde In which said Case and 21 Ed. 3. which are abridged by Fitzherbert in his Title of Verdict 13. If the Defendant Tender Parcel the Payments being several as Rents at several Feasts and the like There if the Defendant upon the Demand of the Plaintiff or otherwise where he is bound to Tender without demand do Offer Parcel the Plaintiff is bound to Receive the same and the Defendant may plead it as it seems to the Whole The like in Detinue of several Parcels but otherwise of an Entire Sum or Parcel where in the said Book of 1 R. 3. it s said That if the Plaintiff in Detinue of several Parcels lay an Entire Value as he may then if the Defendant can plead Tout temps prist of any Parcel or according to some do before Verdict Offer any Parcel in Court the Plaintiff is at a Mischief touching his Recovery of the Value of the rest because he hath not laid several Values But if in that Case there be a Verdict then is the Sum of the Value made a thing Entire whereof the Plaintiff is not bound to Receive part without the whole But of this Plea of Tout temps prist the Defendant may be Concluded As if he Imparl by the Book of 5 Ed. 4. 141. which was in Dower Otherwise if in Debt he came in upon the Distress as is 7 H. 4. 9. because it may be he was Nient Summon ' by the Sheriff Otherwise in Annuity 2 H. 4. 3. and 14 H. 6. 3 4. after an Essoin in Dower because it may be laid by an Estranger the Defendant shall plead Tout temps prist And so is 7 H. 6 7 17. And by 2 H. 4. 7. if the Tenant in Dower came in the first day and pleaded Tout temps prist the Demandant cannot Reply That before she demanded Dower in the Country because the Writ affirms the Tenant's Title quod nota Then is to be Considered the Plea of De son Tort demesn That upon many Iustifications the Plaintiff is to Answer to the Matter of the Defendant's Plea especially and not to Traverse generally De son Tort demesne sans tiel Cause As 16 H. 7. 3. where the Defendant in Trespass doth Justify as by Commandment License or Delivery of the Plaintiff And so is also 12 Ed. 4. 11 and 20 Ed. 4. 4. And so is 9 Ed. 4. 4. The like by Brian and Townsend 2 H. 7. 3. where the Defendant in False Imprisonment doth Justify by Reason of a Robbery and that the Common Voice and Fame went upon the Plaintiff The like as it seems by the same Book 20 Ed. 4. where the Defendant doth Iustify by reason of a Matter in Law and to see if Wast were done or To Enter a Tavern to Drink And by 33 H. 6. 41. and 14 H. 4. 31. the Defendant in Trespass did Justify for that the Ancestor of the Plaintiff held of his Master by Knights Service and that by the Commandment of his Master he seised the Plaintiff here the Plaintiff is to Traverse the Commandment And so is also 14 H. 4. 32. in the Case of an Apprentice And so 44. Ed. 3. 18. where the Plaintiff pleaded a Grant And 38 Ed. 3. 3. the Defendant in a Replevin did Justify by reason of an Execution upon a Recovery in a Court Baron and De son Tort demesn General no Plea And so is 33 H. 6. 29. if the Defendant do Justify by the Kings Patent because a Matter of Record The like 10 H. 6. 3. where the Defendant in Trespass did Justify to make Replevin by a Warrant of the Sheriff or came in Aid of the Servant that had a Warrant to Arrest the Plaintiff as is 2 H. 4. 6. The like 2 H. 5. 1. where the Defendant in a Replevin doth make Conusance as Bailiff to A. And so 28 Ed. 3. 98. if the Defendant do Justifie the Taking of Goods by the Commandment of A to whom the Plaintiff is Villain And so 16 Ed. 4. 4. where the Defendant in Trespass doth Justifie for Disms severed from the Nine parts And 28 H. 6. 9. the Defendant did Justify in Trespass by reason of a Way and the Plaintiff Replied De son Tort demesn Absque hoc que le Defendant ses Auncestors ount use d'aver tiel Chymin c. Notwithstanding see this Title in Brook in many of these Cases the Issue of De son Tort demesn sans tiel Cause sufficient and especially where the Defendant doth himself make no Title but as Servant or doth come in Aid of the Sheriff or the like and in all Cases d'Assault le Plaintiff or where the Sheriff maketh 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
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
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
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
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
Whole which is to be Tried first For if that be against the Plaintiff tho' he should have Verdict on the other he can have no Judgment But for the Inconveniency and for that this Plea to the Whole comes after the Venire facias and the other was before therefore 't was Tried but if both had been before the Venire facias it could not have been and 't was found for the Plaintiff and Judgment was had with a Cesset Executio till the other was Tried for the Concord was laid in another County So the Plaintiff Released to him and took Execution tho' the Judgment was on the first Plea CHAP. XII Of Executions EXecution is the last Performance of an Act as of a Judgment in a Suit viz. Where Judgment is given in any Action That the Plaintiff shall Recover the Land Debt or Damages as the Case is and where a Writ is awarded to put him in Possession or to do some other thing whereby the Plaintiff may be the better satisfied his Debt or Damages that is called a Writ of Execution and when he hath the Possession of the Land he sues for or is paid off his Debt or Damages or hath the Body of the Defendant awarded to Prison then he hath Execution And where the Plea is in an Inferiour Court as County-Court Hundred-Court or Court-Baron and they defer Execution in favour of either Party or other Cause then the Party may have a Writ de Executione Iudicii Vide Co. Lib. 6. fol. 87. a. Where is said to be two sorts of Executions the one final the other with a quousque tending to an End An Execution final is that which makes Mony of the Defendant's Goods or Extends his Lands and delivers them to the Plaintiff which he accepts in Satisfaction and is the End of the Suit and all that the King 's Writ Commands to be done The other Execution with a Quousque is tending to an End but not final as in the Case of a Capias ad Satisfaciendum c. which is not final but the Body of the Party is to be taken to the intent to satisfie the Plaintiff and his Imprisonment is not absolute but until the same be performed And by Co. Lib. 8. 141. the Method of obtaining these Executions are by certain Iudicial Writs some of which are against the Person some of them against the Goods and Chattels some of them against the Lands and some against the Body Goods and Lands And by Co. ubi supra The Execution for Debt is Fourfold 1. Of Goods only by Fieri facias 2. Of the Moiety of Lands by Elegit 3. Upon a Statute or Recognizance 4. Of the Body by Capias ad Satisfaciendum Then Touching Executions upon Iudgments by Writs of Capias ad Satisfaciendum First Shall be declared against what Person an Execution will lye by Capias As namely 26 H. 8. 7. Not against an Abbot but upon a Testatum the Plaintiff may have an Elegit into another County Otherwise of a Knight the like as an Abbot of a Bishop Duke c. if it be not upon a Rescous or other Contempt as 11 H. 4. 15. and other Books are And by Co. Lib. 8. 141. Lib. 5. 88. Lib. 6. 53. Lib. 3. 12. Magna Charta 2. 18. Westm. 2. 11. This Writ of Execution may not be had against a Duke Earl or Baron or their Wives but in some Special Cases nor against an Heir or an Executor but in some especial Cases Then In what Actions and other Cases Execution may be had by Capias See first 34 H. 6. and 48 Ed. 3. Bro. 12. That in Scire facias upon a Recognizance no Capias Yet 7 H. 4. 34. granted for the King in a Recognizance for the Peace Nor against Executors in whose hands Assets were found if not as it seems upon a Devastavit Return'd See more touching Executions against Executors in that special Title Devastavit in Brook's Abridgment And in 42 Ed. 3. 11. if one Recover in an Action upon the Case against an Hostler because he is not charged upon a Wrong but a Laches no Execution lieth by Capias The like in an Action upon the Statute of Hue and Cry And so is 42 Ass. 17. in the Case of an Hostler although there was a Capias in the Mean Process But 2 H. 4. 6. and Roll. Abridg. 898. one in Dower did Recover Damages and could not have Execution of them by Capias because no Capias in the Mean Process And so 11 H. 7. 15. in an Assize And 7 H. 6. 45. No Execution by Capias against one not Party to the Writ as there where upon Issue in Detinue found against the Garnishee the Plaintiff recovered the Thing against the Defendant and Damages against the Garnishee and could not have Execution of the Damages by Capias And Note this Difference 40 Edw. 3. 25. That in Detinue of a Bag or Box of Writings Execution lieth by Capias Otherwise if there be one or more Writings in Certain quod Nota. Vide Pluis in Bro. Tit. Capias and Process Court Baron Antient Demeasn Statute Merchant c. And yet as appears 11 H. 7. 15. In an Assise where no Execution by Capias lieth against the Party for the Damages yet if the Disseisin be found to have been with force and the Party to be taken by Capias pro Fine either within or after the year as the said Book is he shall remain in Execution for the Party Quod Nota Et quaere inde And so is 7 H. 4. 39 40. Not mentioning whether the Capias were within the year or after for in all other Cases the difference is taken where the Defendant is taken within the year upon the Capias pro Fine and where after For in Fitz. Nat. Br. 121. In the one Case he shall remain in Execution without the Plaintiffs Request and in the other not altho' he do request the same And 7 H. 6. 5. Somewhat doubtful if the Plaintiff request not the same But 7 H. 4. 4. is clear without request of the Plaintiff because the words of the Writ are Ad Respondend ' tam Nobis quam Parti And see 14 H. 7. 15. and 15 H. 7. 5. In an Assise where the Disseisin was found with Force and the Record removed and the Defendant taken pro Fine Regis within the year yet could not remain in Execution at the request of the Party because there he could not have Execution without Scire Facias And so is 1 H. 7. 20. When it is after the Year or in the time of another King But as appears 11 Ed. 4. 67. This is no Execution for the Party but at his Election for altho' as the Case was there he was discharged by consent of the Plaintiff upon Recognizance given yet the Plaintiff had at his Pleasure a new Execution And so is 4 Edw. 4. 16. But more doubted whether there the Gaoler may
4 5. Mariae 162. How the Plaintiff Recovering 40 l. against one that hath Land in divers Counties may dividing his Debt or intirely have several Elegits But by Hobart 58. There may not be two several sorts of Executions out an once but one after another Yet Idem fo 2. If one Elegit be sued out and entred of Record tho' the Plaintiff get nothing by it yet he shall never have other Execution till something be found and no man will Record the Execution till he find somewhat Vide Yelvertons Reports fo 52. Where said That if a man be taken upon a wrong Writ of Execution tho' it be returned Executed yet because he in Truth never was in Execution a new Capias may issue out against him And Idem 180. Where Goods are taken in Execution in another County upon a Testatum returned That the Defendant Nulla habet Bona c. in London where the Action was Tried but in the County of B. where the Goods were taken which is false the Execution shall be avoided and the Party restored to his Goods again But by Moor Case 428. though the Court grant an Erroneous Execution yet that will not excuse the Sheriff where there is an Escape Yet by Hetley Rep. 157. Where the Sheriff upon a Fieri Facias takes a part of the Defendants Goods in Execution and delivers them to the Plaintiff and they be taken from him he shall have Execution de novo And by Popham in his Reports fo 206. one may be discharged out of Execution by word only as where one is in Execution at my Suit and I bid the Sheriff let him go this is a good discharge Vide Dyer 306. Where said That in all Cases where the Law doth once adjudge a Defendant to be in Execution at the Suit of the Plaintiff if the Sheriff suffer him to escape he shall be chargeable to the Plaintiff for the same in an Action of Debt or upon the Case Yet by Popham 41. if he be taken in a Fresh Pursuit tho' in another County by that he shall be in Execution again And by Co. lib. 3. 71. where the Sheriffs of London at the going out of their Office by Indenture did deliver B. in Execution to the New Sheriffs and he being in Execution at the Suit of C. and D. did make his Escape D. only is named C. sues the Escape and had Judgment and held that B. was not in Execution of the Old or new Sheriffs and that the Old are to give notice to the New Sheriffs of them in Execution tho' they be upon Record and the Prisoners are in Custody of the Old Sheriffs tho' out of Office till delivered to New and if the Old Sheriffs die the New must take notice of them at their Peril and the Prisoners are in Custody of the Law between the death of the Old and the coming in of the New Sheriffs But see Co. lib. 4. Blomfields Case where two were bound jointly and severally by Bond both sued and condemned and taken in Execution the one escaped the other brought an Audita Querela and held not to lie Vide Rolls Abridgment 904. Where said That if A. be taken in Execution on a Capias ad Satisfaciendum at the Suit of B. and escape from the Sheriff and no return is made of the Writ nor is the Writ filed or any Record made of the Award of the Capias B. may have a Scire Facias against A. and thereupon what Execution he will And see More Case 1177. and Hob. 55 56. Foster and Iacksons Case If the Defendant die in Execution this is a discharge of the Execution for ever as an Escape is Yet Co. lib. 5. 86. contra But by Hob. 59. If two be bound jointly and severally to me and I sue them jointly I may have a Capias against them both and the Death or Escape of the one shall not discharge the other But I may not have a Capias against one and another kind of Execution against the other when I sue them jointly But when I sue them severally I may sever them in their several kinds of Execution but yet so as if a very satisfaction be had of one or against the Sheriff upon the Escape of one the other may be relieved by Audita Querela But if a Capias ad Satisfaciendum be had against one of them in this Case so as there is such an Execution as is a Satisfaction no other can be had against him or his Heir or Executor if he dies here none may be had against either of the others For where the Law gives three or four kinds of Execution by way of Choice and the Plaintiff chooseth a Capias ad satisfaciendum and the Defendants Body is taken thereupon it cannot be for part as in a Fieri Facias Vide Anderson Part 1. Case 166. Where the Plaintiff sued a Capias ad Satisfaciendum against one of the County of C. that was brought into Court in Custody of the Sheriff where the Plaintiff was present and being asked by the Court whether he would pray that the Prisoner might be committed to the Fleet answered that he would not And this he did because the Prisoner was poor and not able to pay and had escaped out of the Sheriffs Custody against whom he said he intended to bring his Action and thereupon the Court discharged him of his Execution not committing him to the Fleet nor leaving him in the Custody of the Sheriff because the Sheriff did not pray it Then as to the Force of an Elegit See Westm. 2. cap. 18. Dyer 206 335. Co. lib. 7. 49. lib. 4. 67 68. Fitzh Nat. Brev. 48. Plowd 224. 178. 2 H. 4. 14. Bulstrode part 2. 98 99. Lane 20. That upon an Elegit the Sheriff is to make Execution of a moiety or one half of all the Houses Lands Meadows Pastures Rents Reversions and Hereditaments whereof and wherein the Defendant at the time of the Judgment had or after had any sole Estate or Interest in Fee Tail or for Life into whose hands soever the same do afterwards come So also if the Husband and Wife do hold Lands for their two Lives they are Extendable upon this Writ But a Right only to Land an Annuity Copyhold-land the Land the Husband holds in Right of his Wife in Fee or for Life is not Extendable after her Death nor liable to Execution And all the Goods and Chattels except only the Beasts of the Plow which the Defendant hath or at time of Execution had are liable to Execution on this Writ as on a Fieri Facias But no Goods and Chattels really and Bona Fide made away before Execution are liable to be taken upon this Writ Vide Hob. 57. An Elegit may be sued of Lands in Ancient Demesn And ibidem it may be sued after a Capias or Fieri Facias both and after a Capias returned non est inventus But
upon it and held tho' Debt might not be brought on such a Judgment yet That upon a voidable Judgment a man should recover and might take out Execution and that it should stand good until the Judgment were Reversed And see Mo. Case 672. where said That in a Scire fac ' to have Execution it is a good Plea to say That the Plaintiff hath assigned the Damages to the King tho' the King hath not levied them so that the Sheriff hath levied them by Fieri fac ' tho' he hath not Returned the Writ By Co. Lib. 8. fo 12. if one pleads a Plea to a Scire facias unto which the Plaintiff demurs the Defendant may joyn in Demurrer and plead over part of a Statute ad Informandum Curiam By 1 Cro. 65 66. The Plaintiff shall not after Issue find a Fault in his own Pleadings and take advantage thereof As in a Scire fac ' against an Administrator durante Minori Aetate Executoris the Defendant pleads Plene Administravit specially The Plaintiff Replies Quod Devastavit but doth not say Quis Devastavit but the Issue was Quod praedictus A. B. the Administrator non Devastavit and it was found for the Defendant Upon which it was moved in Arrest of Judgment by the Plaintiff and alledged for Cause That it is not said in the Replication who Devastavit and so might be the Executor under Age sed non allocatur for the Plaintiff shall not take advantage of a Fault in his own Replication after Issue And with this agrees 1 Cro. 135. where said That the Plaintiff after Verdict shall take no advantage of his own ill Declaration Vide 1 Cro. 39. Co. Lib. 5. 39. b. Lib. 7. 4 6. Lib. 8. 59. Vide Mo. Case 11. fo 78. where an Executor pleads to a Scire facias upon a Judgment against him Plene administravit jour del Brief purchase and ill for he might have paid Specialties before The like if he had pleaded Nulla bona temps del mort le Testator ou unque puis but the Plaintiff lost the advantage he might have made of that ill Plea by taking Issue Where there be several Defendants they must joyn in Dilatories tho' they may sever in Pleas to the first Action As Pasch. 26 H. 8. Pl. 7. where a Scire facias was brought against Two for Damages recovered in Assize by Three one of the Defendants pleaded That one of the Plaintiffs suggested by the Writ to be dead was alive at the time the Scire facias was brought and the other Defendant pleaded That another of the Plaintiffs supposed by the Writ to be alive is dead and ill For they ought to Joyn in their Pleas to the Scire facias because they are Dilatories tho' there said they might have severed in their Pleas at first to the Writ or Action But Mich. 7 H. 7. Pl. 8. Mich. 10 H. 7. Pl. 6. and Mich 12 H. 7. Pl. 3. one Imparls and the other demands the View in a Praecipe quod reddat Quaere tamen de hoc Then of the Venditioni Exponas If the Sheriff Return Quod cepit bona ad Valenciam Et quod non invenit Emptores the same Writ of Venditioni Exponas is to be awarded out Touching which see 34 H. 6. 36. where the Sheriff did Return That the Goods were not taken by him but by his Predecessor Et ideo venditioni exponere non potuit and thereupon a Distringas nuper Vic' was awarded See the Form thereof in Brook 11. And see Cro. 1 Part 567 568. where the Sheriff took Goods on a Fieri facias and before Sale the Record was removed by Error and a Supersedeas awarded and yet upon Cepit bona return'd by the Sheriff a Venditioni Exponas was awarded And by Yelverton 6. If one recover Debt on an Obligation and delivers a Fieri facias to the Sheriff to levy the same and the Defendant brings a Writ of Error upon the Judgment and hath a Supersedeas upon it to the Sheriff here so much Goods as the Sheriff took by virtue of the Fieri facias before the Supersedeas came to him shall be liable to satisfie the Plaintiff and a Venditioni Exponas shall go out upon it But after the Supersedeas comes to the Sheriff he must not proceed upon it And by Dyer 363. If the Sheriff Return upon a Fieri facias Quod cepit bona non invenit Emptores or delay to deliver the Goods the Plaintiff shall have a Venditionâ— Exponas to compel him to sell the same and bring in the Mony But if he Return That the Goods were taken by his Predecessor the Plaintiff may have a Distringas nuper Vic' to Command the former Sheriff to sell the Goods and bring in the Mony But by Co. Lib. 3. 12. after the Sheriff hath Returned on a Fieri facias Non invenit Emptores the Plaintiff cannot have a Capias ad satisfaciendum or an Elegit Vide Co. Lib 5. 90. If the Sheriff levy Mony on Execution and give it to the Plaintiff tho' he Return not the Writ yet the Execution is good And the Sheriff ought to use his utmost Endeavour to levy the Mony on a Fieri fac ' upon the Defendant's Goods and Chattels and for that purpose to Enquire after them and it behoves the Plaintiff to Enquire also and search diligently if he can find any and upon finding them to give Notice to the Sheriff who ex Officio is to take and sell them if he can otherwise he must be Impowered by a Venditioni Exponas by virtue whereof he may sell them and give the Plaintiff his Mony But by Yelverton 44. If the Sheriff do seize the Defendant's Goods on a Fieri fac ' the Property is not altered yet the Sheriff may not sell them without a Venditioni Exponas where he hath made no Return of his Writ and is out of his Office Then Touching Execution against a Clerk If the Sheriff Return Clericus est Beneficiatus upon a Fieri fac ' then shall be awarded a Writ to the Bishop to Sequester his Spiritual Promotion See thereof 13 H. 4. Abridged by Brook Pl. 38. But that seems upon the Return of Nulla habet bona c. See hereof more in Brook Process 2. And see 21 Ed. 3. 7. Bro. 44. That if the Party Condemned be present in Court at any time within the Year and the Day and deny not but that he is the same Party the Court at the Request of the Plaintiff may Commit him in Execution Otherwise after the Year and the Day quod nota And so 21 Ed. 4. 13. if the Defendant be present in Court at the Judgment See also accordingly Dyer 2 3 Eliz. 182 183. and 14 Eliz. 306. And see more hereof in Bro. Tit. Office de Court. And see 21 Ed. 3. 29. where upon a Return of a Writ of Execution upon a Statute Merchant Returned Nichil
Issue viz. Et de hoc ponit se meaning the Defendant super Patriam Et praedictus Willielmus the Defendant again for Iohannes the Plaintiff similiter Per Cur ' these are but Misprisions of the Clerk and not Errors and shall be amended being like to the Mistake in 10 H. 7. 23. and 11 H. 7. 2. where Defendens was written for Querens and Iohannes for Rogerus and amended by the Advice of all the Justices And by Coke Chief Justice Misprisions were amendable the same Term at the Common Law because during the Term the Record is said to be in pectore Iudicis and not esteemed to be on the Roll so absolutely but that they may amend the same at their Discretions But the Justices of the Common-Pleas after a Writ of Error cannot at all amend the Roll where a Judgment was given the same Term and is mistaken in the Entry because the Roll is not a Record of that Term. And by 5 Ed. 3. this was so at the Common Law until the Statute of 14 Ed. 3 gave power to amend Misprisions in another Term. But 46 Ed. 3. the Case was that Defendens was mistaken for Querens but could not be amended because an Old Roll and the Statute gives Power only to amend New Rolls of the same Term they are Entred By the Statute of 26 H. 8. the Justices of the Common-Pleas have Power to amend a Plea-Roll in Misprision only but not Omissions Misprisions are Vicia Scriptoris Faults of the Clerk as the Declaration varying from the Writ or the Roll from the Original or the Mean or Judicial Process these by 19 H. 6. shall be amended if it be only in default of the Clerk But if in a Plea that be Omitted which should be Averred this shall not be amended because it ought to have been part of the Plea and cannot be said to be any Default of the Clerk but a meer Omission which makes the Plea imperfect So Mich. 5 6 Mar. Dyer 164. a Record came out of Ancient Demesn in Banco by Writ of False Iudgment and the Writ was Sub sigillo suo sigillis quatuor legalium hominum ejusdem Curiae which according to Fitzh Nat. Brev. fo 18. b. ought to have been per quatuor legales homines c. upon which the Court doubted if it might be amended but seemed to be of Opinion That the Plaintiff might have a New Writ to the Justices of the Common-Pleas to Authorize them to proceed to discuss the Errors in the Record which lay before them So 2 Mar. Dyer 105. a Common Recovery was suffered to Bar the Issue in Tail and the Warrant of Attorney was That Alicia po lo. suo for Elizabetha also the Writ of Error was de loquela quae fuit in Cur ' nostra coram Iustic ' nostris per breve nostrum It was a Quaere if it were amendable but Resolved in Blackmores Case Co. Lib. 8. fo 152. quod vide nota And see Brownl Rep. 2 Part fo 300. where a Writ of Error was brought by Frances Fulgham against Sergeant Harris in this manner Praecipe c. quod c. Franciscae Fulgham Viduae contrary to the Form of the Register which is quae fuit Uxor and not Widow and the subsequent words were rationabilem dotem Tenementorum quae fuerunt Francisci Fulgham quondam viri sui Per Cur ' this is Error for tho' it varies not in substance yet because it is contrary to the Form of the Register it shall not be amended So Cro's Iacobi 21 Merrel's Case in a Writ of Error of a Judgment in the Common-Pleas in Ejectment it was assigned for Error That the Plaintiff declared that I. S. 25 Martii Anno sexto Iacobi had demised to him for Seven years by virtue whereof he Entred and was thereof possessed until the Defendant postea scilicet Anno sexto did oust him After Imparlance the Plaintiff made a Second Declaration wherein he supposed the Ejectment to be done 26 Maii Anno supradicto and of this Ejectment the Writ was brought it was found against the Defendant and Judgment for the Plaintiff and whether it was Erroneous because no day was mentioned in the first Declaration was the Question Agreed That the first Declaration is the Principal and if any Matter of Substance be omitted in it it cannot be helped or amended by the second for that is but a meer Recital and therefore if the first be not good the Trial is Erroneous But per Cur ' the first Declaration was good for the Demise is laid to be 25 Martii sexto Iacobi which is the first Day of the year and the postea scilicet 6 Iacobi that the Defendant Ejected him is certain enough for the Year when the Ejectment was made and the Day of the Ejectment are not material being before the Action brought Then Of Errors in Fines upon Writs of Covenant and Common Recoveries upon Writs of Entry in the Post. For which see first Brownl Rep. 2 Part fo 300. where upon a Fine the first Proclamation was made in Trinity Term 5 Iac. the second in Michaelmass Term 5 Iacobi the third in Hillary Term 6 Iacobi when it should have been Hill 5 Iacobi and the fourth and fifth Proclamations were in Easter Term 6 Iacobi Per Cur ' This is palpable Error for the fourth Proclamation was not entred at all and the fifth was entred as of Hillary Term 6 Iacobi when it should have been of Hillary Term 5 Iacobi and so cannot be amended because it was of another Term. And see Cro's Iac. 77. Earl of Bedford's Case where in a Writ of Error to Reverse a Fine it was assigned for Error that the Writ was Praecipe c. quod teneat c. Conventionem c. de octo Mesuagiis duobus Toftis decem Gardinis and it was Certified de octo Mesuagiis decem Gardinis c. and Adjudged no Error But see Cro's Caroli fo 300. Done and Smithy's Case where a Writ of Error was brought to Reverse a Fine levied by Baron and Feme and others and the Writ of Covenant wat directed to the Coroners with this Clause fiat Executio brevis praedict ' per Coronatores ita quod Vic' se non intromitteret because the Sheriff was one of the Cognizees and this was Objected for Error because as there said if the Sheriff had been sole party to the Fine yet the Writ ought to have been directed to him because but a Summons for the Sheriff may summon himself But Resolved to be Error because a Doubt in Law if the Sheriff as Plaintiff may Execute a Writ upon himself and therefore the general Course is to direct the Writ to the Coroners to avoid such Doubt And see Co. Lib. 5. fo 38. Tey's Case where A. and B. his Wife levied a Fine of divers Mannors Lands and Tenements to I. S. and I. D. in several Towns in the County of E. in
which divers Grants and Renders were made and in the third Render all the Mannors Lands and Tenements were rendred to A. and B. and the Heirs of the Body of A. and in the fourth Render part of the Premisses were rendred to B. in Tail the Remainder to the Right Heirs of A. It was Resolved that the same was not Error First That the fourth Render as to that was contained in the third Render should be in the quality of a Charter which needs not such a precise Form as a Judgment Secondly That the Conusor should not assign that for Error because he gets an Estate by it and no man shall reverse any thing for Error unless he can shew that the Error is to his advantage So More Case 202. If an Infant levy a Fine and take an Estate by Render he may not have Error for this And see Mich. 31 Eliz. in B. R. Leon. Rep 1 Part 317. Pigot and Harrington's Case where Baron and Feme were Tenants for Life the Remainder in Fee to an Infant and they three levied a Fine and the Infant only brought Error to Reverse it It was Objected that they all Three ought to joyn in the Writ according to 29 Ed. 3. 14. But per Cur ' the Writ is well brought for the Error is not Assigned in the Record but without it in the person of the Infant and that is the Cause of Action for him and for no other and the Fine was reversed as to the Infant only Vide Cro's Iacobi 330. Point's Case and Bulstrode's 1 Part 206. Batts and Ienning's Case where Inspection of an Infant in Error to Reverse a Fine upon the day of Adjornment of the Term held good by all the Judges of England And see Mo. Case 701. That a Writ of Covenant Retornable before the Date is Error CHAP. XIV Of Appeals Indictments and Informations APPEAL according to Co. on Littleton Lib. 2. cap. 11. comes from the Latin word Appello to Call quia Appellans vocat Reum in Iudicium and is used in our Law for the private Accusation of a Murderer by a Person who had Interest in the Party murdered It is as much as Accusatio with the Civilians for as in their Law Cognizance of Criminal Causes is taken either upon Inquisition Denunciation or Accusation so it is in ours upon Indictment or Appeal Indictment comprehending both Inquisition and Denunciation Accusation or Appeal being a lawful Declaration of another man's Crime of Felony at least for tho' there be an Appeal of Mayhem yet that according to Bracton is but in a manner an Action of Trespass before a Competent Iudge by one who sets his Name to the Declaration and undertakes to prove it upon the Penalty that may ensue of the contrary Appeal by others is defined to be The violent pursuing of a Subject unto Death and is the most nice kind of Suit that is commenced at the Common Law for every small matter will quash the same if it be not freshly pursued and shall in divers respects be taken strictly in favorem vitae And Note That the Process in every Appeal is to bear Date the same day of the Retorn and if not it will be a Discontinuance of the Process Note also That the Omission of any word which is material in the Writ of Appeal will abate the same And it is to be Observed That the Process in an Appeal doth vary from all other Proceedings at the Common Law for there shall be no Amendment of a Writ of Appeal nor is the Discontinuance of it helped by any Statute Then Where an Appeal of Murder will not lie for the Heir For which see Mich. 33 H. 8. Dyer 50. The Statute of 31 H. 8. made it Treason for a Woman to Poison her Husband A Woman Poisoned her Husband Afterwards the Statute of 32 H. 8. Of General Pardon pardoned the Offence the Heir brought an Appeal of Murder And it was the Opinion of all the Justices that now an Appeal of Murder did lye for the Heir for that now Murder was turned into Treason and the greater Offence shall extinguish the lesser And see Co. Lib. 6. fo 13. in the Case of Pardons acc and 7 Eliz. Dyer 235. where Petty Treason is pardoned by a General Pardon there one who killed his Master was Indicted of Murder and holden the Indictment did not lye against him but being found Guilty was Reprieved And see Mich. 33 H. 8. Dyer 51. and 33 Eliz Co. Lib. 4. 45. where an Appeal of Murder was brought against W. to Answer to A. B. alias dict' A. B. Fratri haered ' of the Person murthered but because the Plaintiff in the Appeal was named Brother and Heir in the Alias dictus which is no part of the Name the Appeal did Abate and the Defendant discharged by the Court. And see 5 Ed. 6. Dyer 69. where there were three Brothers and the Middle Brother is killed and the Eldest Brother dies within the Year without bringing any Appeal and the Question was If the Younger Brother might maintain an Appeal It was not Resolved but left a Quaere See 11 Ed. 4. 11. Stamf. 59. 20 H. 6. 43. by Fortescue that he shall not but 16 H. 7. 15. contra Then How Appeals shall be brought by Infants First See Pasch. 17 Ed. 4. Pl. 4. and More Case 646. where an Appeal was brought by an Infant and the Defendant prayed to be dismissed because the Plaintiff was an Infant Per Cur ' If the Defendant be guilty he shall stay in Ward till the Infant comes of Age. But by 27 H. 8. 1. b. the Plaintiff now shall appear by Guardian By Co. 2 Inst. 5. If an Infant bring an Appeal of the Death of his Ancestor the Parol shall not demur for want of Battail but the Infant shall be outed of it as if the Appellor were Old or Maimed But Mirror of Iustices 127. contra the Parol shall demur And see 2 Ed. 4. 19. b. and 20. a. acc and 11 H. 4. 93. a. And Pasch. 27 H. 8. 25. an Infant brought an Appeal of Murder in the time of H. 8. and prayed that the Parol might demur and Resolved it should not By 35 H. 6. 10. If an Infant be found guilty of Felony 't is in the discretion of the Court to give Judgment or not as they find the Infant hath Discretion or Malicious Intent By Owen 59 63. and Popham 115. in an Appeal of Murder after Pleading to the Writ the Defendant must Plead over to the Felony else it is a Confession of it for there his Life is in question And see 3 Cro. 223 224. where in an Appeal of the Death of an Husband the Defendant pleads Ne unques accouple c. and quoad c. Not Guilty The Plaintiff Replies fueront accouple but pleads nothing to the rest yet it seems the Plea is not Discontinued because the first Plea is not Triable at Common Law so answers
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