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.
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
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
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
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
any Continuance from Trinity Term to Lent Assizes which was much insisted upon yet the Court gave Judgment for the Plaintiff So Brownlow's Rep. Part 1. fo 81. a Bill was Exhibited against one of the Clerks of the Court of Kings-Bench for Mony due upon Bond and Issue being joyn'd the Cause was Tried and found for the Plaintiff And to stay Judgment it was Objected That the Bill not being filed was not helped by the Statute of Ieofails nor within the same To which Opinion the Court seemed to Incline but gave leave to the Plaintiff to File a Bill that so the Matter might be put to Arbitration So Hob. 181. a Bill was Exhibited in Debt against an Attorney of the Common Pleas upon which a Verdict was had for the Plaintiff and to stay Judgment it was Objected That the Original Bill was not Filed with the Custos Brevium as it ought to be But because the Tenor of the Bill was Entred of Record in haec verba it seem'd to be in the Nature of the want of an Original after Verdict and so help'd by the Statute of Ieofails To which Opinion the Court did incline but would Advise of it because it had been otherwise Adjudged in that Court before But then we shall Enquire What Matters are not Remedied or Helped by any or either of the Statutes of 32 H. 8. and 18 El. before-mentioned For which see first Goldesbrough's Rep. fo 49. where the Plaintiff brought his Action against the Defendant for an Assault and Battery and the Defendant was Condemned therein by Nichil dicit and a Writ of Enquiry of Damages issued out and then the Plaintiff's Attorney died and another Attorney without Warant prayed the Second Judgment and had Execution thereupon Cur ' If the Attorney dies after Judgment a New Attorney may pray Execution without Warant but here the Attorney died before the Second Judgment and therefore he that comes after ought to have a Warant of Attorney Prothon If one of the Parties dies after Judgment the Writ shall abate And per Cur ' This is not within the Statute of Ieofails for a Verdict is that which is put in Issue by the Joyning of the Parties So Hob. 112 113. The Plaintiff declared in Trespass for an Assault and Battery made upon him by the Defendant who pleaded Iustification and Conveyed an Estate to himself by Copy of Court-Roll in a certain Piece of Ground Parcel of the Mannor of D. whereof I. S. was seised in Fee and because the Plaintiff came upon it he laid his Hands molliter upon him And the Plaintiff in his Replication also Convey'd to himself an Estate by Copy of Court-Roll to another Piece of Ground within the said Mannor and lays a Prescription in the said I. S. Lord of the Mannor to have a Way over the Defendant's Piece of Ground Upon which they were at Issue and Verdict for the Plaintiff And per Melieur Opinion this was no Issue at all nor Thing nor possibly Issuable and therefore the Verdict must also be void and so not holpen by the Statute of Ieofails For a Verdict cannot make that good which the Court sees cannot be in Law so that this is in the Office of the Court to judge So Cro. Part 2. 526. In Trespass brought in the Kings-Bench for Taking and Carrying away three Loads of Wheat set out for Tithes contra Pacem Domini Regis the words Vi Armis were omitted Per Cur ' the Bill shall abate for it is the Essential part of the Declaration and that which induceth the Court to set a Fine for the King and it is not help'd by the Statute of Ieofails And so Adjudged Hill 13 Iac. in the Case between Welsted and Taylor where Judgment was Reversed because Vi Armis was omitted Vide Hoh 127. In Debt upon the Statute of 21 H. 8. the Writ was Praecipe A. quod reddat Nobis B. qui tam pro Nobis quam pro seipso sequitur Centum decem Libras quas Nobis praefat ' B. debet And the Count was for Taking to Farm six Acres of Land and holding the same for six Months Per quod Actio accrevit for 60 l. And for further Taking to Farm other Lands and holding the same for five Months Per quod Actio accrevit for 50 l. To which the Defendant pleaded Quod ipse non debet praefat ' B. qui tam c. praedict as Centum decem Libras neque aliquem inde Denarium in forma qua c. whereupon Issue was Joyned and the Jury found That the Defendant did owe 30 l. and for the Residue Quod non debet And to stay Judgment it was Objected 1 That the Verdict expresses not for which Farm nor which of the Months the 30 l. was due sed non allocatur for the Demand and Issue were for 110 l. in several tho' it would have been more formal to have distinguished them 2 The Defendant hath not Answered the Writ and Declaration for the Plea ought to have been as the Demand is Quod ipse non debet dicto Domino Regi praefat ' B. qui tam c. And this was allowed because Penal Laws are Excepted out of the Statute of Ieofails And see Hob. 101. where Judgment was Reversed because there were no Pledges to Prosecute Entred for the Plaintiff and so not within the Statute of Ieofails because a Penal Law excepted out of the same But see Trin. 30 Eliz. in Com. B. Goldesbrough 90. where a Writ of Right was brought against Baron Feme of two parts of Forty Acres of Land in S. who pleaded That I. S. was seised and devised to his Wife one of the Tenants for Life the Remainder to B. in Fee who was his Heir who died and they prayed in Aid of B. who joyned in Aid with them and then they came and pleaded to the Grand Assize and the first Day of the Term the Assize appeared and sixteen of them were Sworn whereof four were Knights the rest Esquires and Gentlemen and the Title was as befor in Trinity Term Anno 28. for B. was Tenant in that other Action for the Third part Per Cur ' This is not aided by the Statute for here is no Certainty in the Grant yet if the Thing granted had had a certain Name given to it as Black-Acre or the like then tho' the Parish had been mistaken it would have been good enough See more of these two Statutes of 32 H. 8. and 18 Eliz. after in the Title Error In the next place We shall take a view of the two last Statutes concerning Ieofails viz. 21 Jac. 1. cap. 13 16. and 17 Car. 2. cap. 8. and enquire what Mis-pleadings are aided by the same and what are not By the Statute of 21 Iac. 1. cap. 13. after Verdict given in any Court of Record the Judgment thereupon shall not be stayed or reversed for any Variance in Form only
the Plaintiff did surmize That the Lands did lye in the Cinque Ports and had a Writ of Execution to the Constable of the Ports And see 1 Ed. 4. 10. for Lands in Durham And by 22 Ass. 12. Execution shall be in Court Baron but by Distress as in a Return Irreplegiable Yet 38 Ed. 3. 3. seemeth otherwise And so seemeth 7 H. 4. Abridged by Bro. Pl. 26. And see 18 Ed. 4. 4. and Co. 5 Part 93. That if the Sheriff do make Execution upon a Fieri facias or otherwise at the Suit of a Common Person and break open his House Door or Chest Trespass doth lye against him for Breaking of his House Door or Chest although the Execution will be good fieri non debet factum valet Yet by 18 Ed. 2. Abridged by Fitzherbert Tit. Execution 152. The Sheriff may break Door or Chest to do Execution for otherwise th Plaintiff shall lose the Effect of his Suit And 11 H. 4. 7 9. if the Sheriff enter into a Franchise and do Execution the same is good according to the Rule above and yet he is a Trespassor to the Lord of the the Franchise who may have an Action of Trespass upon the Case against him for Infringing his Liberty But if a Bailiff of a Franchise do any such Execution without his Franchise that will be void And by 40 Ed. 3. 21 22. The Sheriff in Execution of Dower of Rent cannot drive the Beasts from the Ground although he may deliver Execution by the Beasts a Clod or Bough But upon a Capias Utlagatum or a Capias for Felony the Officer may break open the Doors Otherwise as it seemeth not although the Execution be a Non omittas propter aliquam Libertatem But the Sheriff or his Under-Officer may as it seemeth upon any Capias Enter into any mans Ground or House open to Arrest any man that he seeth Enter and if his Prisoner Escape may follow and break open Doors to take him Quaere inde And see Bro. Abridgment Tit. Faux Imprisonment And by Justice Iones and Berkley 12 Car. 1. in B. R. If the Sheriff have a Fieri facias or Capias ad satisfaciendum against a man and before Execution he pay him the Mony he may not do Execution afterwards for if he do Trespass or False Imprisonment will lye against him for it And see Co. 4 Part 91. Iinmayn's Case where it appeared That there were two Joint-Tenants of a House one of which acknowledged a Statute and died possessed of divers Goods therein and the Sheriff came to Extend the Goods and he and the Jury offered to Enter the House to Extend the same but the Defendant intending to disturb the Execution shut the Door so as the Sheriff could not Enter to do his Office In which Case these Points were Resolved First That if a Recovery be in a Real Action or in an Ejectione firmae the Sheriff upon an Habere facias Seisinam or Possessionem may break the House to do Execution because after the Judgment it is not the House of the Defendant Secondly In all Cases where the King is Party after the Sheriff hath signified the Cause of his coming if no Door be open he may Break-open the House to do Execution but if he may Enter it without Breaking of it or upon a Request if in such Case he Break the House he is a Trespassor Thirdly In all Cases of a Common Person If the Door be open the Sheriff may Enter the House of a Subject to do Execution against Body or Goods Fourthly That it is not lawful for the Sheriff upon Request and Denial in Case of a Common Person to Break the House of a Subject to Execute any Process And the Sheriff cannot Break the House by virtue of a Fieri facias but he shall be a Trespassor But if he doth so and doth Execution the Execution done by him is good And see for this Co. 11 Part 82. Bowle's Case and see 18 Eliz. 44. by all the Justices Then ought to be known How one in Execution shall be delivered without Payment And therefore by 16 H. 7. 2. If the Party be in Execution and the Record be removed by Error and he find Mainprise to Prosecute with Effect and to satisfie c. although the Judgment be affirmed he shall never be in Execution by his Body upon the same unless he will render his Body to save his Sureties voluntarily And so is 21 Ed. 4. 67. if the Plaintiff be once in Execution And so is 8 H. 7. 10. But by the said two Books last cited If no Execution be awarded before the Writ of Error then Execution in the King-Bench may be awarded And so is 6 Ed. 4. 19. If a Judgment in a Mean Court be reversed by a Writ of False Iudgment or Error in the Common-Pleas And so is 12 H. 4. 24. if he that Removed the Record do nothing See accordingly 39 H. 6. 3 4. and after in the Title Error Then is to be Observed That in some Cases an Escape is a Discharge of Execution for ever As namely If the Prisoner in Execution go at large by Consent of the Plaintiff or of the Gaoler But as 13 H. 7. 1. is If he Break Prison of himself and afterwards the Gaoler take him again because of his own Wrong whereof he shall have no advantage he shall remain for the first Execution unless the Plaintiff by bringing an Action of Debt against the Gaoler do refuse that Advantage against the Prisoner And so seemeth Stamford Yet 14 H. 7. 1. although the Gaoler may take him yet the Plaintiff shall have no Advantage thereof But by 11 H. 4. 12. the Plaintiff may also have Debt against the Party And by 41 Ass. 15. after an Escape of the Prisoner and Death of the Keeper of the Prison the Plaintiff prayed a New Capias against the Defendant and it was granted Quaere If not to be in Execution again because no Remedy else for the Plaintiff And 33 H. 6. 47. If the Party in Execution die the Debt is discharged So against him if he Escape See Mo. Case 1177 and Hobart 55 56. Foster and Iackson's Case where said That if the Defendant die in Execution it is a Discharge of the Execution for ever as an Escape is Yet see Co. 5 Part 86. contra But by Hob. 59. If two be Bound joyntly and severally to one who sues them joyntly he may have a Capias against them both and the Death or Escape of the one shall not discharge the other But he may not have a Capias against one and another kind of Execution against the other when he sues them joyntly but if he sues them severally he may sever them in their several kinds of Execution but yet so as if once a very Satisfaction be had of one or against the Sheriff upon the Escape of one the other may be relieved by Audita
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
advantage and the other resting upon the Plea of the Defendant as Misnosmer Iointenancy Non-tenure Non habetur aliqua talis Villa or Over-Dale and Nether-Dale of the Place where the Action is laid and not of which the Defendant is named unless in Cases where Utlary lieth and that the Lands lye in A. and not in B. and the like which the Defendant is bound to take in time and to look that he be not Concluded of them by his General Appearance Continuance or Imparlance as before is mentioned And Note that it appeareth in a Report 3 Eliz. That if the Defendant for Matter apparent plead to the Writ he shall in the beginning and ending of his Plea petere Iudicium de brevi but otherwise in the Conclusion only And touching Pleas to the Action of the Writ they are where by the Plaintiff's own Declaration or the Defendant's Plea it appeareth that the Plaintiff ought not to have the same but another Writ And as 26 H. 8. Brook Brief 409. The Defendant may choose either to Conclude to the Writ or to the Action of the Writ And so 9 Ed 4. 31. where Dower was brought against a Guardian and he said he was not Guardian Iudgment de Brevi In the next place we will proceed to the Form of the Defendant's Pleadings And first touching his Defence against the Plaintiff it appeareth 34 H. 6. 33. and other Books in Bro. Title Defence That in divers Actions as namely Assise Dower Darein Presentment Mortdancestor Per quae servitia Attaint and Scire facias the Defendant shall only say Venit dicit without other Defence And 46 Ed. 3. 23. in an Assise of Nusance in the Common Pleas there shall be Defence otherwise not and in Brook's Abridgment Title Defence Num. 67. where one Pleads to the Iurisdiction there shall be no Defence But it appears in the said Title 2 Ed. 4. and 40 Ed. 3. and 35 H. 6. That where the Defendant pleads to the Person he may make half a Defence viz. Venit defendit vim injuriam without saying quando c. And so is 7 H. 6. there in a Praemunire or Plea to the Jurisdiction it is only said Venit defendit vim injuriam So as by these and other Books in the said Title of Defence it appears that in Pleas to the Jurisdiction or the Person the Defendant as before cannot make above Half Defence For if he adds to the same the words quando c. which make the Whole Defence the ability of the Jurisdiction and Person is thereby admitted but in Pleading to the Writ one may make a Full Defence as appears by all the Books of Entries The Full Defence is in some Cases Ordinary and in others Special And the Ordinary Full Defence in some Actions is Venit defendit vim injuriam quando c. and in others Venit defendit jus suum quando c. and where the Defendant shall in his Defence say Venit defendit vim injuriam quando c. are these Actions viz. Account Action upon the Case Covenant Debt Detinue Ejectment Ne injuste vexes Partition Parco fracto Quare Impedit Quo jure Replevin Rescous Recaptione Averiorum Recto Rationabili parte bonorum Rationabilibus Estoveriis in all Actions where Debt and Trespass are given by the Statute in all Actions of Trespass de Clauso fracto or de Clauso domo fractis with their Incidents as de Bladis herba depast ' conculcat ' consumpt ' succis ' Averiis pedibus ambulando c. or de Arboribus succis ' amputat ' c. or de Sepibus Fossatis Solo Eradicat ' vel amputat ' implet ' subvers ' c. or de Bonis capt ' asportat ' spoliat ' c. or for Battery False Imprisonment or Menacing the Plaintiff or his Servants as also in Waste and other Personal and Mixt Actions But in a Writ of Intrusion and every Praecipe quod reddat Ayel Escheat and the like the Defence is Venit defendit Ius suum quando c. And in some Cases the Defence is more Special than before as Brook Defence 45. In Recto quando Dominus Remisit Curiam suam the Defence shall be Venit defendit Ius praedicti Petentis Seisinam suam quando c. And ibid. 16 40. in Nativo habendo the Defence shall be Venit defendit jus suum omnem Nativitatem quando c. And also vide Ibidem 23 30 31. That in Actions upon the Statutes of Mainteance Labourers and the like and in Recaptione averiorum the Defence is Venit defendit vim Injuriam quando c. Et quicquid c. And in Prohibition upon the Statute of Ric. 2. H. 4. Venit defendit vim injuriam quando c. Et omnem Contemptum Et quicquid c. And in an Appeal of Mayhem as appears 40 Assize 9. the Defence is Ven ' defendit vim injuriam Et omnes Felonias Appella de Mayhemio Et quicquid quod est contra pacem Domini Regis Coronam Dignitatem suas c. And it also appeareth in Brook 46. that where the Defendant pleadeth Misnosmer he shall alledge the same before Defence and then shall make Defence and shew the certainty of the Misnosmer And the Vouchee as it appeareth there Num. 24. shall make his Defence in this manner Et praedictus A. B. ut Tenens per Warantiam suam defendit Ius sum quando c. And Ibidem 14 H. 6. 18. it is a Doubt whether one shall take his Protestation before or after Defence and by 21 H. 6. 't is said That to every of the Plaintiff's Pleas the Defendant shall make his Defence de novo quod nota And touching Protestations we shall first consider what they are and in the next place inform you how and in what manner they ought to be pleaded A Protestation in Pleading therefore is by some defined to be a Defence of Safeguard to the Party that makes it from being Concluded by the Act he is about to do that Issue cannot be joyned upon it Plowd fol. 276 b. per Walsh ibidem Or it is a Form of Pleading when one doth not directly affirm or deny any thing that is alledged by another or which he himself alledgeth But by Plowden in Grayslake and Fox's Case in his Com. it is said to be A Saving or Excluding of a Conclusion and by that Book ought to be after the Defence which is in that Point left doubtful by the before-mentioned Book of 21 H. 6. 26. and may not be contrary in it self or double As in the before recited Case of Grayslake and Fox Protestando that he made no Testament pro Placito that he made not the Plaintiff his Executor because if he made no Testament he could make no Executor And as it there appears the Effectual Matters of
and Avoid the Estoppel and therefore the Tenant would have waived his Plea and pleaded in Bar and could not but said there That he might well do it in an Assize de Mort d'Ancestor Nota diversitatem And see the same Book of 50 Ed. 3. 19. and sundry other Books and Experience That after Plea by Baily the Defendant in Person or by an Attorney may plead Matter in Bar whereof a Certificate of an Assize doth lye But 3 H. 6. 16. if an Infant plead by Guardian he may afterwards come in Person and Plead himself at his pleasure For that the Admittance of a Guardian for him is the Act of the Court which shall in no case prejudice him And also see 5 Ed. 4. 122. The King after Demurrer entred by himself may waive the same by his Prerogative and take Issue And so is 28 H. 6. 2. and that he may Declare de Novo the same Term but not in another But see in the Title Prerogative 116. That in an Information he shall not waive his Issue and Demur but otherwise upon a Traverse And see accordingly in Plowden's Com. in Partridge's Case touching his waiving of Demurrer and taking Issue and è contra But if another Party be joyned with the King as there then the King shall have no advantage CHAP. VII Of Repleaders and Ieofails THen the Learning touching Repleaders and Ieofails ought to be known And First Touching the Cause of Repleaders which is for that the Pleading hath been ill and vicious Or the Issue misjoyned and then it s called a Ieofail Or as 22 23 H. 6. and other Books where part of the Matter contained in the Plaintiff's Suit is Omitted to be answered and the like But as 6 Ed. 4. 2. if an ill Plea be made good afterwards by Admittance as hath been said before that is no Cause of Repleader But otherwise as it seems by the Books of 7 Ed. 4. 1. and 35 H. 8. The Court the Jury being at the Bar if there be a Ieofail apparent in the Record will discharge the Jury And this Repleader for the most part hath been upon Misjoyning of Issues or before Demurrer and not after Yet 9 H. 6. 35. in a Replevin the Defendant did plead an ill Bar and the Plaintiff a worse Replication whereupon the Defendant did Demur and a Repleader awarded And so is Dyer 3 4 Mar. 139. the like If the Rejoynder had been ill and they shall begin at the first ill Plea But see Plowden in Trespass brought by Hill against Grange That the Plaintiff Demurring upon the Rejoynder his Replication being good Judgment shall be gien for or against him as the Law doth fall out But his Replication being ill it seems there that they shall Replead Quaere inde for at this time greatly doubted Whether Judgment shall not in like case be given against him that pleadeth the first ill Plea For by the greater Opinion no Repleader after Demurrer And in Smith and Hart's Case 31 Eliz. the Avowry being good and the Bar and Rejoynder in a Replevin ill no Repleader after a Demurrer But if the Declaration be ill or such an Avowry which is in nature of a Declaration or by that Reason a Replication where no Title is made in the Declaration there Judgment shall be given against the Plaintiff without any Repleader Quaere tamen Then Where the Parties shall begin to Replead The same Book 9 H. 6. saith At that Plea which first was faulty and so is 21 H. 6. 14. 22 H. 6. 19. and 5 Ed. 4. 18. And by that Book 22 H. 6. it appears That an Issue in an Assize Adjourned in the Common-Pleas to be Tried in which pleading there was a Ieofail the Parties shall Re-plead in the Bench and not be Remanded to Replead in the Country quod nota Then At what time they shall Replead For which see 22 H. 6. 57. where Mispleading was and the Parties after Verdict by Nisi prius were awarded to Replead quod nota Where it s said also That it hath been often so used until Judgment although the Defendant have no Day in Court to be demanded And see in Brook in this Title 39 in Abridging the same Case 9 H. 6. That after the Defendant hath Confest the Action yet there may be a Repleader These Mis-pleadings in some sort are Aided by the Statutes of Ieofails of which there be four in number namely Anno 32 H. 8. cap. 30. Anno 18 Eliz. cap. 14. Anno 21 Iac. 1. cap. 13. Annis 16 17 Car. 2. cap. 2. The first after this manner viz. That upon Issues tried in any the King's Courts of Record Judgment shall be given any Mis-pleading want of Colour Insufficient Pleading Ieofail Mis-continuance Discontinuance Mis-conveyance of Process Mis-joyning of Issues want of Warrant of Attorney for the Party against whom c. or other default of the Parties their Counsellors c. The Second namely 18 Eliz. cap. 14. to this purpose viz. After Verdict upon Action in any Court of Record notwithstanding default of Form False Latin or Variance from the Register or other default in Form in Writs Original or Judicial Count Declaration Bill Plaint Suit or Demand or Want of Original or Judicial Writ Imperfect or Insufficient Retorn Want of Warrant of Attorney Default in Process upon or after any Aid Prayer or Voucher but not to extend to Informations As by the two first Statutes may appear Now hereupon it is observed That neither of the two Statutes above-recited extends to Aid any person before but after Verdict and not upon Demurrer And that the Statute of 32 H. 8. which goeth only to Defaults in Pleading and Matters therein mentioned and not to Declarations extends but to the Kings Courts of Record and not to other Inferiour Courts But touching Mis-pleading and the Matters therein mentioned it helpeth in Indictments and Informations after Verdict which the Statute of 18 Eliz. doth not but Aids only in Declarations Writs and the Cases therein particularly set down quod nota Out of both which Statutes of 32 H. 8. and 18 Eliz. have since been taken divers Cases as namely upon the first Statute if no Issue be joyned at all or as a Report 8 Eliz. by Catlyn where an Issue is joyned that is not proper to the Action as Not Guilty in Debt See touching that the Book 28 Eliz. Dyer 347. where Not Guilty is pleaded upon an Information of Usury The like upon the Statute of 18 Eliz. if the Declaration be ill for Matter As if Tenant for Life doth bring a Quod permittat in the Debet only when the same ought to be in the Debet and Solet And Agreed by all the Court 31 Eliz. where the Venire facias to the Coroners without Cause at all or as the Case there lies where the Justices of Nisi prius awarded to the Coroners a Tales and Verdict thereupon which
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
137. Tit. Averment where the Plaintiff moved to stay Judgment in Ejectment because the Life of the Party during whose Life the Defendant hath a Lease was not Averred according to 10 Ed. 4. 18. which by 21 Iac. 1. cap. 13. is to be Inquired of by the Sheriff or other Officer as the Court shall think fit And by Foster the like Rule was made before the Statute in the Lady Morleys Case after Verdict as here But see Mich. 21 Car. 2. Lee versus Edwards in Modern Reports fo 14. where an Action upon the Case was brought upon two Promises And the First was That in Consideration the Plaintiff would bestow his Labour and Pains about the Defendant's Daughter and would Cure her the Defendant did Promise to pay so much and would also pay for the Medicaments Secondly In Consideration the Plaintiff had Cured the Defendants Daughter the Defendant did Promise to pay so much And to stay Judgment it was Objected by Raymond That the Plaintiff did not Aver in his Declaration That he had Cured the Defendants Daughter the Consideration of the first Promise being Future and both Promises found and entire Damages given But Twisden said It is well enough for now it lies upon the whole Record whether he hath Cured her or not but if it had rested upon the first Promise only it had been ill And in the second Promise there is an Averment of the Cure so that now after Verdict it is helped and the want of an Averment is helped by a Verdict in many Cases Vide Hil. 22 23 Car. 2. Rotulo 233. in B. R. Hoskins versus Robins in Sander's Reports Part 2. fo 32. where said That the Insufficiency of Pleading a License is helped by the Statute of Ieofails after Verdict And see Mich. 24 Car. 2. in B. R. Holman against Dodde Keb. Vol. 3. Tit. Amendment Pl. 15. where the Plaintiff in Debt upon an Obligation to perform Covenants in an Indenture assigns Breach for Non-payment of Rent at Michaelmass according to the Lease but then or 40 Days after by the Bond. To which the Defendant did Rejoyn That he paid the same at Michaelmass Et de hoc ponit se super Patriam Et praedictus the Plaintiff similiter After Verdict it was Moved by Staples to stay Judgment for that the Issue is Mis-joyned and tho' it were quod praedictus Robertus who was the Defendant for Rowlandus the Lessee and the Directions to the Clerk were right yet being no Issue there was no Verdict and so not Aided by the Statutes of 16 17 Car. 2. cap. 8. And here it s no Issue That the Defendant did Perform Et de hoc ponit c. Et praedictus the Plaintiff similiter For as in 1 Cro. 317. Pl. 380. it s an Issue by the Rejoynder That Robert did not pay c. therefore not Aided by the Statute according to 2 Cro. 579. Pl. 9. in Aldridge's Case But the Rent being Reserved only at Michaelmass by the Lease tho' the Bond be at Michaelmass or 40 days after is well enough Vide Pasch. 26. Car. 2. in C. B. Naylor versus Sharpley al' Coronator ' Com' Palatin ' Lanc ' in Modern Reports 188 189. where one brings Debt against the Sheriff of that County and Sues him to the Outlawry and directs a Capias to the Chancellor who makes a Precept to the Coroners of the same County being Six to take his Body and have him before the Justices of the Common Pleas at Westminster at such a day And one of the Coroners being in sight of the Defendant and having Opportunity enough to Arrest him doth it not but they all Return Non est inventus tho' he might have been Taken every day Whereupon the Plaintiff brings his Action in Middlesex against all the Coroners and has a Verdict for 100 l. And to stay Judgment Serjeant Baldwyn Objected That the Action ought to have been brought in Lancaster He agreed to the Cases put in Bulwer's Case in Co. Lib. 7. where the Cause of Action ariseth equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancellor of the County Palatine only who makes a Return to the Court. He insisted upon Hussey and Gibb's Case in Dyer 38. and further said That this Action is grounded upon two Wrongs one The not Arresting him when he was in sight and the other For the Returning Non est inventus when he might have easily been taken Now for the Wrong of one of them they are all charged and entire Damages given He Allow'd That two Sheriffs make but one Officer but said That every Coroner is responsible for himself only and not for his Companion Serjeant Turner and Pemberton contra That the Action was well brought in Middlesex because the Plaintiff's Damage arose there by not having the Body here at the Day They cited Bulwer's Case and Dyer 159. b. and Agreed That the Chancellor of the County Palatine Returns to the Court the same Answer that the Coroners Return to him so that their False Return is the Cause of the Prejudice that accrâ—es to the Plaintiff in this Action the Ground whereof is the Return of Non est inventus which is the Act of them all That one of them saw him and might have Arrested him and that the Defendant was daily to be found c. are but mentioned as Arguments to prove the False Return And they Conceiv'd That an Action would no more lye against one Coroner than against one Sheriff in London or any other Place where there are two Then as to the first Objection taken by Baldwyn they said That admitting the Action to be laid in another County than where it ought yet after Verdict it is Aided by the Statute of 16 17 Car. 2. if the Venire come from any place of the County where the Action is laid It is not said in any place of the County where the Cause of Action ariseth Now this Action is laid in Middlesex and so the Trial by a Middlesex Jury is good let the Cause of Action arise where it will Cur ' That Statute doth not help your Case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the words Proper County implies But they inclined to give Judgment for the Plaintiff upon the Reasons given by Turner and Pemberton And see Keble Vol. 2. Pl. 8. Tit. Escape Hepping against Huneyard where in an Action on the Case for Rescuing of one taken in Execution after Verdict Stroud moved to stay Judgment on Hetley 34. That no Action upon the Case will lye against the Sheriff or by him Sed non allocatur for the Sheriff may be a Beggar and therefore though the Plaintiff may have an Action upon the Case against him for the Escape yet he may take the
Prisoner again And as to its being said That the Party being Arrested by the Sheriff of Devon at Topsham the Defendant rescued him at Exeter the Court agreed the Escape to be the same all over England but that it ought to have been shewed how the Party came into Exeter For this cannot be intended nor being the Substance of the Matter is it Aided by the Statute of 16 17 Car. 2. cap. 8. And Idem Vol. eodem Pl. 26. Frain Uxor Administratrix of Smalman versus Painter where in an Action of Debt for Rent the Plaintiffs did declare That the Intestate out of his Term made an Under-Lease to the Defendant yielding and paying c. and that the Intestate died such a Day and Administration was committed to the Plaintiff's Wife To which the Defendant did plead That the Intestate Assigned to K. to commence after his Death Absque hoc That he died possessed of such a Term prout And upon this Traverse Issue was joyned and Verdict for the Plaintiff And to stay Judgment Sanders Objected 1 That the Action was in the Debet and Detinet which cannot be by Administrators as Plaintiffs 2 That the Rent is reserved Half-yearly and there is a Year and Quarters Rent found due which is impossible Iones pro Quer ' The Right is Tried and so the Declaring in the Debet and Detinet when it ought to have been in the Detinet only is Aided by the Statute of 16 17 Car. 2. cap. 8. of Ieofails as in the Case of Cumber against Walton 3 The Exposition of the Year and Quarter is well enough the Time being one of the Terms upon which it was reserved Cur ' If it did not appear the Plaintiff were Administrator as it doth the Debet were of the Substance and Aided by the Statute which the Court agreed and the Second Exception was mistaken otherwise it had been ill And Idem Vol. eodem Pl. 51. Tit. Slander Croft against Winter where an Action upon the Case was brought for words spoken in London of a Minister viz. He is a Thievish Rogue and stole a Plate out of Wadham-College in Oxon. And the Plaintiff having a Verdict in London to stay Judgment Sanders moved for the Defendant That here was a Mis-Trial which ought to have been at Oxford as in Ford and Brook's Case Cro. Part 3. 261. Iones contra on the Statute of 16 17 Car. 2. cap. 8. this being Tried by a Jury in the proper Place and the Justification should have been in London the Felony being Transitory and not Local as Robbery c. And the Court Agreed this was a Ieofail Twisden The Felony is Local whether it come in by way of Justification or Declaration and as in the Case of Throbwalke the Justification makes the Matter to arise there as where a Constable on an Action laid here in London doth Justify in Essex there the Trial must be in Essex Keeling Chief Justice and the Court Agreed to it in the Case of a Constable But in Case of a Sheriff or Bailiff it s Aided by the Statute especially the words being confest to be spoken in London And Judgment was Affirmed CHAP. VIII Of Intendment IN the next place we shall give an Account more amply than before What Construction the Law doth make of the Intention of the Parties as to Contracts and other Matters And for this first see Cro. 1 Part 141. Paynter versus Paynter Trin. 6 Car. 1. in B. R. where in an Action upon the Case sur Assumpsit the Plaintiff declared That the Defendant Promised if the Plaintiff ad ejus Instanciam would Marry his Daughter he would pay unto him 20 l. and give to him 20 French Crowns towards a Wedding-Dinner And the Plaintiff saith in Fact That he Married the Defendants Daughter and required him to pay the 20 l. which he had not paid Upon Non Assumpsit it being found for the Plaintiff it was Moved That the Declaration was not good for the Promise is but Conditional viz. If the Plaintiff ad Instanciam Defendentis would Marry the Defendants Daughter and so he hath not Averred the Performance of the Condition But the Whole Court conceived upon this Agreement To Marry the Daughter ad Instanciam and he Marrying her it shall be Intended ad Instanciam without Averment And see Cro. 1 Part 163. Mich. 7 Car. 1. in B. R. Taverner and Skingles Case where the Plaintiff Declared in Debt upon an Obligation with Condition to Perform the Award of I. S. and I. D. so that they made it before the 10th Day of October next under their Hands and Seals And if they do not Agree then to stand to the Umpirage of I. N. so that he made it in Writing under his Hand and Seal before the 28th of October following The Defendant pleaded That I. S. and I. D. did make no Award before the 10th day of October The Plaintiff Replied It is true They did not but I. N. did make the Umpirage and Award before the 28th day of October inter alia the Defendant was to pay 30 l. unto the Plaintiff upon such a day at such a place And for Non-payment c. It was Moved That the Submission was void and incertain for it is That if they do not Agree and it doth not appear to what they should agree sed non allocatur for the words If they do not Agree have the Intendment If they do not Agree to make their Award under their Hands and Seals before such a day For otherwise it is quasi a Non-Agreement within the Condition 2 It was Objected That the Award was void because the Money was appointed to be paid at the House of one W. S. a Stranger sed non allocatur for the Appointment of the Payment of the Money at a Strangers House especially as here being a Common Inn cannot be unreasonable nor an unlawful Act for by Intendment the Plaintiff shall procure such Kindness that the Mony may be paid there so the Award was Adjudged good prima facie and the Plaintiff had Judgment And see Style 's Rep. 465. Wood and Gunston's Case Mich. 1655. in B. R. where in an Action upon the Case for Scandalous words spoken of the Plaintiff viz. for calling him Traytor the Issue was tried at the Bar and the Jury found for the Plaintiff and gave him 1500 l. Damages And upon Supposition that the Damages were Excessive the Defendant moved for a New Trial. It was said That after a Verdict Partiality of the Jury ought not to be Objected or questioned and therefore no New Trial. Glyn Chief Justice It is in the Discretion of the Court to grant a New Trial but that must be a Judicial and not an Arbitrary Discretion and the Court may take notice of the Miscarriages of Juries and grant New Trials upon them For a Jury may sometimes by Indirect Dealing be moved to side with one Party and not to be Indifferent between both Parties but
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
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
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
not the Plea over See 1 Cro. 247. Southby and Price's Case An Appeal of Murder was brought in A. being the next County to B. where the Murder was done the Writ shall abate For by 26 H. 8. cap. 6. Indictments may be in Counties next adjoyning but not Appeals By Yelverton 204. Bradley and Bank's Case and 2 Cro. 283. Discontinuance of Process in an Appeal is not aided by Appearance afterwards And by Yelverton ibid. Conviction with Clergy is a good Bar in Appeal And Idem 205. Non Culpabilis ad Murdrum Feloniam praedict ' is a good Bar in an Appeal of Manslaughter See Dyer 348 349. where A. Appeals one as Accessary to B. C. of D. in the County of E. who pleads Nulla talis persona in rerum natura as B. C. die impetrationis brevis nec unquam postea 'T is good tho' there be one named B. C. in another County And so it is if he were dead the Day of the Writ brought But 26 H. 6. 8. A. brings an Appeal and the Defendant pleads Nulla talis persona in rerum Natura die impetrationis brevis It seems not to be a good Plea for he should have pleaded Quod Quer ' obiit ante diem impetrationis brevis or Nulla talis persona unquam fuit in rerum Natura By Keilway 106 107. the Court will not suffer the Defendant to plead Variance between the Appeal and the Indictment and to Conclude to the Felony Vide eundem ibid. What Pleas are Peremptory in Appeals By Co. Lib. 3. fo 30. If a Stroke be struck in one County and the Party die in another County an Appeal of Murther may be brought in either of the Counties although nothing be done in that County where he died towards his Death By Co. Lib. 4. fo 47. one Appeal of Murder must be brought against all the Parties Principals and Accessories and not several Appeals and the Declaration must be against them all for the Wife brought an Appeal of Murder of her Husband against divers and afterwards brought another Appeal against others Resolved by the whole Court That all the said Appeals but the first should abate That she ought to have one Appeal against them all That she cannot have two Appeals of Death but ought to joyn all in one Writ That if one brings an Appeal of Death against divers and all but one makes Default yet the Plaintiff must declare against them all But by Keilway 83. In Murder an Appeal shall be first brought against the Principal and after that another against the Abettor So per eundem ibid. an Appeal of Robbery shall be first brought against the Principal and then against the Accessory An Accessory shall be discharged where the Principal before Judgment obtains his Pardon as appears by Co. Lib. 4. fo 43. where the Brother and Heir brought an Appeal of Murder against A. B. as Principal and C. D. as Accessory of the Death of his his Brother The Principal pleaded Not Guilty but was found Guilty of Manslaughter and had his Clergy It was Resolved in this Case 1. That the Accessory was discharged because he could not be guilty before the Fact in case of Manslaughter 2. Although the Principal was Convicted yet forasmuch as he had his Clergy before Judgment the Accessory shall be discharged So where the Principal upon his Arraignment confesseth the Felony and before Judgment obtains his Pardon the Accessory is thereby discharged Vide Cro. Car. 382 383. where an Appeal was brought against two one for Petty-Treason the other for Felony The Defendants pleaded Not Guilty the same Term in which the Appeal was Arraigned and therefore there was no other Declaration filed But if they had pleaded a Plea which was adjorned to another Term or had not pleaded that Term then it ought to have been filed And it was then agreed by the Court That the Plaintiff might take out one or several Writs of Venire facias for doubt of Challenge And see Co. Lib. 4. fo 45. That Auterfoits Indicted of Manslaughter and thereof Convicted and Clergy allowed was a good Bar in Appeal of Murder But contra if the Indictment be insufficient And see 6 Ed. 6. Dyer 88. where an Appeal is brought by a Woman of the Death of her Husband To which the Defendant pleaded Not Guilty and afterwards the Plaintiff took another Husband and it was Adjudged that the Appeal was determined by her Intermarriage See 3 H. 7. 5. where in an Appeal of Death one Challenged above 35 and had Judgment of Pein fort dure that is was Prest to Death So 21 Ed. 3. 18. Bro. Tit. Corone Pl. 43. fo 181. where one against whom an Appeal of Robbery was brought did stand Mute out of Malice and it was found by the Jury that he could Speak whereupon he was presently Condemned to be Hanged and the Appellor had his Goods But if it had been by Indictment at the King's Suit he should have had Judgment of Pein fort dure Lastly by Co. 3 Inst. 212 If the Defendant in an Appeal be Vanquished or Slain the Judgment is the same that is Suspendere per Collum And thus much shall suffice of Appeals In the next place We shall say something of Indictments and the Pleadings thereupon and what will Maintain or Quash the same An Indictment is an Accusation drawn and ingrossed in Form of Law in the nature of a Bill or Declaration against one for some Offence Criminal or Penal and presented to the Grand Jury to be Inquired of who in case they Find the same do write Billa vera upon it but otherwise do Indorse the word Ignoramus thereupon An Indictment is always at the Suit of the King so that he who Prefers it is no way tied to the Proof of it upon any Penalty except there appear Conspiracy It ought to be drawn with the greatest Exactness Curiosity and Certainty and the Day Year and Place must be sure not to be omitted Indictments are called Pleas of the Crown and are exhibited for Treason Felony Misprisions of Treason High Misdemeanors against the Common-Weal and all other Crimes which touch the Life or Mutilation of a Man and these cannot be Prosecuted in the Name of any one but the King because he only can Pardon them as Offences committed against his Crown and Dignity By Co. 3 Inst. 106 107. If any of the Grand Jury discover what persons are Indicted of Felony or Treason they are guilty of high Misdemeanour and shall be Fined and Imprisoned for thereby the parties Indicted may Escape Vide Co. 3 Inst. 230. and 4 Rep. Sier's Case where said That it is not necessary for the Coroner to set down the Day precisely in his Inquisition of Felony or Murder for if it be alledged to be a day before or after the Fact done the Jury ought to find the party Guilty and also find the Day when it was done and the Attainder shall relate to the Day found
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