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
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 〈◊〉
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
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
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
Replication Quod non habetur tale Recordum per quod liquet c. Et hoc paratus est verificare per Recordum illud is contrarient and naught Where it is said also That if a Plea want an Averment or have not a sufficient Averment the same is not good quod nota And it appears by 37 H. 6. 14. that in a Forcible Entry the Defendant pleaded Excommengement in the Plaintiff without any Averment because no Answer is to be made to that Plea But it appears in the Books of Entries That where a Plea is either pleaded to the Jurisdiction or to the Person by Matter en fait as Profession or Villenage there be always Averments whichs seem to be of Necessity by the last recited Book because to these Answers may be made quod nota And Note that by the Book of 37 H. 6. 23. If one have a Plea to the Whole he may plead the same to a Part Where it is said by Moyle That a Release or Iustification or any Matter in the Affirmative pleaded without an Averment of the Plea or pleaded in the Negative as Nil debet and the like without the Conclusion Et de hoc ponit se super Patriam and yet 1 3 Mar. 124. the General Issue was pleaded without that Conclusion and good or to plead a Bar in an Assize without taking the Tenancy upon him where divers are named in the Writ the same is Ill. There needs no General Averment in a Plea or Particular Averment in a Declaration of that which will come in more properly on the other side Hob. Rep. 78. 124. And by the same Reports 88. 106. there will need no Averment in a Declaration where it appears there are Reciprocal Remedies But by the same Book 251. where the Administrator durante minori aetate is Plaintiff in a Suit there the Nonage of the Executor must be Averred Secus where he is Defendant Yet by Sheppard's Abridgment Tit. Averment fo 230. the Executor of a Grantee of a Rent or Reversion expectant upon an Estate for Life may not Avow his Distress without an Averment that the Arrerages incurred after the Death of the Tenant for Life Adjudged And so by Hobart fo 141 142. he that pleads a Dispensation to hold in Commendam confirmed by the Kings Charter must aver the Performance of the Condition contained in it So by Perkins cap. 147. If the Defeasance of a Recognizance be dated before if in this Case any use be to be made of it it must be Averred to be delivered at or after the time of the Recognizance entred into By Coke's Rep. lib. 8. Case of the. City of London and lib. 9. 54. Averment needs not be of what is apparent as the Constitution made in London concerning the Sale of of Wares and Merchandizes appearing to be agreeable to and waranted by their Charter the same needs not be Averred to be so and if the Son bring an Assize of Mortdancestor he needs not to Aver that it is within the time of Limitation for that it appears to be so And by the same Author Lib. 7. 40. although any other Consideration than what is a Deed may not be Averred yet where there is an Express Consideration in it self in the Case as where a Use of Land is limited to a Wife this implies a sufficient Consideration in it self and therefore needs no Averment By Hobart 32. an Averment may be upon a Will but by Co. lib. 5. 68. an Averment will not lye of any thing that is against or besides that which is against or besides that which is expressed in a Will nor of any thing that cannot be gathered to be the Mind of him that made the Will by the Words thereof nor of any thing that doth not cohere with the Will especially if the Devise be of Lands As where one Devises to A. and the Heirs of his Body the Remainder to B. and the Heirs Males of his Body on Condition that he or they or any of them shall not alien c. In this Case no Averment may be taken by Witnesses that it was the Intent of the Devisor to include A. within the Condition by the words He or They c. So neither may an Averment be taken that the Intent was to give it to any other besides the Devisee But by Hobart 50. an Arbitrement in Writing may not be supplied by an Averment And by Bulstrode first Part fo 220. and Popham fo 201. it appears that if Tenant for three Lives make a Lease to another the Lessee in an Action brought by him needs not to aver the Lives under which he claimeth Nor by Goldesborough fo 97. needs he that sueth an Administrator upon the Assumpsit of the Deceased aver he had Assets after Debts and Legacies paid So by Hobart 297 and Coke on Littleton 373. it appears that if a Tenant disclaim upon an Avowry in Replevin he shall have Judgment tho' it be false For no Averment will lye against a violent Presumption though it be false By the Book of 34. H. 6. 42. and of 9 Ed 4. 4. an Averment may be had against any part of the Rolls or Records of County-Courts Hundred Courts Courts-Baron or other Courts belonging to Lords of Mannors But by Dyer 348. 177. no Averment will lye against such a Retorn as is definitive to the Trial of the thing Retorned as the Retorn of a Sheriff upon his Writs the Retorn of the Mayor Aldermen and Sheriffs of London upon a Writ of Habeas Corpus sent to them and the like But if it be such as is not Definitive as upon a Rescous or the like there an Averment and a Trial upon it may lye So if it be such a Retorn as may endanger a mans Life or Inheritance Also by the Statute of 1 Ed. 3. cap. 3. and Goldesbrough 129 130. and Croke 2 Part fo 13. an Averment will lye against the Bayliffs of Franchises so that the Lords thereof be not prejudiced thereby The same Law of Certificates For by Co. Lib. 7. 14. Lib. 9. 31. and Bro. Abr. 332. no Averment will lye upon such a Certificate as is a Definitive Trial in Law of the thing Certified as the Certificate of a Bishop touching Bastardy Excommunication Marriage c. But by Co. Lib. 7. 14. Lib. 8. 121. and Leon. 1 Part Case 285. an Averment may lye and shall be received against a Certificate which is only to give Information and in the Nature of a Trial and may also lye against a Certificate upon a Commission out of any Court and may likewise be received against the Certificate of Commissioners that affirm a man to be a Bankrupt But by Bro. 332. If a Bishop Certify that such a Parson doth not pay his Tenths Iuxta formam Statuti no Averment shall be received against it And in More Case 295. an Averment will not lye against a Justice of the Kings Bench or Common Pleas and the Custos
Brevium quod habetur Warantum Attorn ' albeit the Party himself against whom the Certificate is be dead and a Scire facias issued out against his Heir So in Yelverton 34. an Averment will not be admitted against a Fine taken by Commission that there is no such man of the Name of one of the Commissioners By Co. on Littleton 171. If a Partition be by Writ although it be unequal it may not be avoided by Averment for such Averment against the Retorn of a Sheriff shall not be good But by Winch in his Reports fo 100. an Averment may be made in another Action tho' not in the same By Co. Lib. 8. 31. and Dyer 244. and Plowden 277. where a man hath two Sons of one Name and one of them hath been long absent and thought to be dead and this is the Eldest and by Will he gives his Land in general to his Son of that Name and the Eldest Son is alive In this Case an Averment will lye that it was his intent to give it to the Youngest and not to the Eldest Son and upon a Trial the Jury may find it so But by Co. Lib. 4. fo 4. no Averment will lye that the Devise was to any other use but to the use of the Devisee himself And by Godbolt in his Reports fo 131. If one devise Land to the Heirs of I. S. and the Clerk writes it To J. S. and his Heirs this may be holpen by Averment for the Intent is written and more and it shall be naught for what is against his Will and good for the rest But if the Devise be to I. S. and his Heirs and it is written but to the Heirs of J. S. there an Averment will not help For an Averment to take away a Surplusage is good but not to increase that which is defective in a Will And Note That an Averment will lye against a Testament or Letters of Administration although they be under the Seal of the Court and it shall be tried by the Country And by Godbolt 214. an Averment may be that one is Sued out of his proper Diocess if it doth not appear in the Libel where one is Sued in the Arches So where one Sueth in the Court of the Admiralty for a thing done upon the Land an Averment may be that the Contract was made infra Corpus Comitatus And by 20 H. 7. 11. an Averment in some Cases shall be received against a Verdict to prove it false But by Dyer 242. If the Matter contained in an Award and the Matter contained in the Submission of that Award do not agree it will hardly be supplied by Averment And lastly by Coke's Commentary upon Littleton fo 352. b. it appears that the Use of an Averment is to ascertain that to the Court which is generally or doubtfully alledged that so the Court may not be perplexed of whom or of what it ought to be understood and a man shall never be Estopped from making such an Averment to ascertain the Intent of the Parties if it be not utterly inconsistent with that which is alledged For an Estoppel being to Conclude a man from speaking that which is Truth must be certain to every Intent and shall never be taken by Argument or Inference But of this see more Tit. Estoppel infra Next in Order some Points shall be discussed touching Matters in Bar and herein shall be shewn What Pleas are sufficient in Bar for the Matters of the same and what not And First What Plea is good in Bar without Deed. Touching which there is a Maxim in Law That where the Action lieth meerly upon the Deed as upon a Bill or Obligation or the like there no Plea can go in discharge of the same without Deed as all the Books agree Yet 10 H. 7. 14. if one Count upon a Lease by Indenture or a Bailment by Indenture the Defendant may plead Nil debet or Non detinet but not Non dimisit by Littleton Quaere of a Bargain and Sale by Indenture for Mony to be paid at a Day For 28 H. 8. Dyer 20. upon a Bill testifying a Receipt of Mony to be laid out in Pruans the Defendant shall not wage his Law The like 37 H. 6. 18. in an Annuity with Clause of Distress Levied by Distress or Payment without Acquittance a good Plea Otherwise if granted without Distress where holden also that if one be bound in a Bond with Condition to pay such an Annuity be the same with Distress or without he may as I conceive plead Payment without Acquittance because contained in the Condition of the Obligation And by 27 H. 8. in Statam's Case in an Action against the Sheriff upon an Escape because the Action is not meerly upon the Record as Debt upon a Judgment the Defendant may plead That he let the Prisoner go at large by the Commandment of the Plaintiff And yet it is holden in Trespass for taking away the Plaintiff's Apprentice 21 H. 6. 31. to be no Plea to say That before taking of the Apprentice away the Plaintiff discharged him of his Service without Deed quod nota And so indeed seemeth 1 H. 7. 14. in Dove's Case in Covenant against an Apprentice And 30 H. 6. 40. no Plea in a Scire facias to have Execution upon an Annuity to say That the Plaintiff did deliver him the Deed of Annuity as a Release and afterwards took it away from him again The like seemeth by 1 H. 7. 14. in Dove's Case before recited in Debt upon an Obligation yet there holden That by some Pleas as Matters in Law viz. Infancy Duress Razure and the like one may avoid a Deed enâ—ealed In the next place we shall observe What shall be taken to be good Bars to avoid Circuit of Action which it seems the two last recited Cases are not And therefore see first 19 H. 6. 62. That if I grant to my Tenant to hold without Impeachment of Wast in Cessavit c. Or the King grants to one to be discharged of Disms the same may be pleaded by Rebutter and the Party not put to bring his Action of Covenant or to sue by Petition And so it seems of Wast in 21 H. 6. 47. be the Grant by Lease whereof Doubt is made afterwards in 21 H. 7. 23 30. where the Principal Case was That the Obligee granted that if he did Implead the Obligor before such a Day the Obligation should be void and a good Bar. And upon that Reason shall the Garnishee or Tenant by Resceit Rebut by a Release or Waranty And upon the Reason aforesaid it is that where one Thing is granted in Law so another especially of Things Executory and not Executed if he be Interpleaded of that which to him appertains he shall plead the same in Bar of that whereof he made the Grant as appears by Perkins in the Title of Exchanges where Rent is granted for Distress But yet by 15 Ed. 4. 9
Lands And so is also 19 H. 7. 14 29. unless in some Special Case there declared as the Defendant doth shew how he administred certain Goods Circa Funeralia ultra quae c. There if the Plaintiff will shew he Administred any other he must shew what they were quod nota Then VVhere if a Place be shewed in Pleading the County shall be intended As 5 Ed. 4. 138. the Defendant in Debt pleaded That the Plaintiff had Received parcel at D. pendente Brevi and no Plea without shewing in what County D. is But otherwise in a Writ where the County is alledged before in the same And 4 H. 7. 8. where it was Surmized that A. had broken the Peace at B. and because not shewed in what County B. was therefore ill But 39 H. 6. 13. in an Annuity by Prescription and Seisin alledged by the Plaintiff at B. not shewing in what County and whether B. was a Town or not and yet holden that it shall be intended in the same County As in a Writ of Praecipe de terris in B. or a Writ of Trespass c. And 36 H. 6. 12. one brought a Writ of Maintenance and declared of a Maintenance in the Common Pleas not shewing where the Bench was and doubted Then in the next place shall be shewn Where when and how a Day or Time certain shall be alledged in Pleading As by 38 H. 6. 3. it seemeth to be sufficient to Plead That the King granted to A. for Life and after by his Letters Patents of such a Dare granted the Reversion to him not shewing the Date of the first or by his Letters Patents reciting how that he had granted for Life before he had granted the Reversion to him Quaere inde For 9 Eliz. Dyer 259. such a Plea in the Case of a Common Person thought ill And 20 Ass. 16. is said That in an Assize in London is used to put in the Plaint the Day and Year of the Assize as in Personal Actions But otherwise in other Assizes no more than in Real or Mixt Actions And so is 7 H. 7. 5. That in Real Actions the Plaintiff shall not need to declare of the Day Plac and Year as in Personal Yet 10 H. 6. 17. the Defendant in Trespass did plead the Gift of the Plaintiff To which the Plaintiff Replied That after that the Defendant gave the same to him again And the Defendant by his Rejoynder did maintain his Bar Absque hoc That he did Re-give those Goods after the first Gift and suffered And see 20 H. 8. Dyer 27. where one pleaded a Defeazance not shewing any Day Vide Librum And 3 H. 6. 31. in Trespass for Taking his Servant the Defendant pleaded That before he was Retained with the Plaintiff he was Retained with him there the Plaintiff shall say in his Replication That such a day he was Retained with him before which Time he was not Retained with the Defendant And 36 H. 6. 44. in an Accompt by an Executor the Defendant did plead That the Testator made the Plaintiff and A. his Executors To which the Plaintiff Replied That afterwards he made the Plaintiff his Sole Executor To which the Defendant in his Rejoynder was forced to shew what Day the Testator made the Plaintiff and the other his Executors Absque hoc That he made the Plaintiff afterwards his Sole Executor quod nota And Note That in Bullock's Case in Dyer 10 Eliz. 281. The Plaintiff in Replevin did plead the Feoffment of the Bishop of Sarum without shewing it to be by Deed or at what Time Then shall be considered How an Act Spiritual shall be Pleaded And therefore first 11 H. 7. 8. Concurrentibus hiis quae de Iure requiruntur is not sufficient in Pleading of an Union but must shew who made the same as the Pope or the Ordinary c. Anno 7 Ed. 4. 32. one Conveyed by a Prior who was afterwards Translated to be an Abbot was forced to shew how he was made Abbot as that the Pope granted to such a Bishop to make him And 5 Ed. 4. 7. one brought Debt against the Provost of the College of T. in Cambridge of a Sale of Goods to his Predecessor who afterwards was amoved and the Defendant Elected and without shewing Coment quod nota And Mich. 12 13 Eliz. Dyer 292. it appeareth in a Quare Impedit that one did declare of a Deprivation and did not shew before whom the same was and holden very sufficient for if it be gainsaid it may come in the Replication for to have a Writ to the Bishop for the same Then touching the Pleading of Matters of Record It is said in 21 Ed. 4. 54. That he that Pleadeth an Utlary in the same Court may begin at the Exigent if he will because good until it be Reversed and that in Debt upon a Recovery he may begin at the Iudgment or at the Original at his pleasure per totam Curiam And see 36 H. 6. 5. That in Debt upon a Recognizance omitting the Condition good Adjudged upon the Plea of Nul tiel Record where 't was said by Danvers That if part of a Record make for one and part against him he may in Pleading or in his Delaration take the one omitting the other But Ashton and Prisot were to the contrary viz. That the party in Pleading a Recovery is to begin at the Original and not to omit so much as any Continuance Summons or Severance And 37 H. 6. 14. by Prisot If one plead a Retorn of a Writ he shall plead That I. S. Vic' did Retorn the same before Iohn Prisot and other his Companions Justices c. But in pleading the Purchase of a Writ he must not say Que tiel Iour il purchase un Brief mes que il purchase un Brief portart Teste tiel Iour retornable devant les Iustices del Common Bank and not as in the Case of a Retorn of the Sheriff devant Prisot ses Compagnions c. quod Nota. For which see more in Brook and Fitzherbert in their Abridgments in the Titles of Record and Failer de ceo And for pleading of a Record see Yelverton 39. Cro. 2 Part 817. Preston versus Preston Style ' s Rep. 22. Case 1. Co. 1 Inst. 225 453. Co. Lib. 10. 92. Lib. 5. 52 218 260. But see Plowden's Com. in Dyve and Maningham's Case where in Debt brought by Dyve upon an Obligation the Defendant shewed That one was in Execution upon a Statute and for his Delivery was this Obligation made to the Plaintiff as Sheriff where holden that this Record of Execution not being the Force of the Defendant's Bar but the Conveyance thereof need not be pleaded Specially from the beginning So in an Action of Disceit against an Attorney or where one doth Avow by reason of an Execution upon a Statute as is 34 H. 6. But as it appears 22 Ed. 4. 8. to
was no such Mis-continuance of Process as is helped by the Statute of 32 H. 8. So if the Trial be in a wrong County Quaera tamen inde for Mich. 2 3 Eliz. Dyer 188. and Mich. 21 22 Eliz. ibid. 367. seem contrary although Process awarded to the Coroners without Cause and although as the first of the said two Books is the Trial was not between the Parties to the Writ but between the Tenant and the Vouchee Yet Annâ— 32 Eliz. it was said to be Ruled That if one pleadeth an Award in Trespass without Satisfaction and Issue and Verdict taken upon the same yet not helped by that Statute quaere inde And Mich. 33 Eliz. in the Case between Upton and Walsh no Venire facias being put upon the File Ruled to be aided by the Statute although it could not be found See a Report 1 2 Mariae where the Declaration doth not warant the Writ As in Debt where it doth appear that the Day is not yet come or in Trespass that the same is committed after the Date of the Writ or a Declaration be in the Debet and Detinet by an Executor The same and the like although Issue and Verdict thereupon are not helped by the Statute of 32 H. 8. Note by what hath been said it appears That the said Statute of 32 H. 8. being touching Mis-pleading and the Matters therein contained in any of the King's Courts of Record that the same helpeth not in that Case in any other Court of Record For as it seems in Stradling's Case in Plowden's Commentaries If a Statute give an Action in any of the King's Courts of Record the same will not extend to Oxford although the Style be Cur ' Domini Regis or to the Exchequer or Chancery And yet if a Statute provides Remedy for a thing by an Action that lay before as it appears in Bro. Tit. Conusance and doth not limit by Express Terms where the Suit shall lye there it will lye in any of the said Courts In which if the Law be so then touching Mis-pleading and Mis-joyning of Issues in other Courts the same is as it was at the Common Law before the Statute of 32 H. 8. See Trin. 29 Eliz. Goldsborough's Reports 48. where in Case sur Assumpsit the Defendant pleaded Non Assumpsit and found for the Plaintiff and Moved There 's no Place laid in the Declaration where the Promise was made and it s there said That when an Issue is Mis-tryed it is not helped by the Statute and here no place is alledged whereupon the Trial may be had But per Cur. the Statute shall be taken liberally so that if the Verdict be once given it shall be a great Cause that shall hinder the Judgment for when it is Tried and Found for the Plaintiff he ought to have Judgment And Trin. 10 Iac. 1. Godbolt 194. In an Action brought in the Common Pleas after Verdict moved to stay Judgment that the Venire facias did vary from the Roll in the Plaintiff's Name for that the Roll was Peter and the Venire Iohn and the Postea agreed with the Roll his true Name Where holden That if no Venire goes forth the same is aided by the Statute of Ieofails and it is in Effect here as if there were no Venire fac or Hab. Corpora yet if the Sheriff do Return a Jury the same is helped by the Statute of Ieofails And Pasch. 12 Iac. Brownl 2 Part 167. Upon a Motion to stay Iudgment it was Objected That the words Et habeas ibi Nomina Iur ' were omitted in the Venire fac ' but Venire fac ' Duodecim c. were in the Writ and good per totam Curiam for that the first words are supplied by the last and the Omission helped by the Statute of Ieofails after Verdict And see Mich. 21 Iac. Cro. 2 Part 672. In Case for Words brought in Chancery by a Clerk there a Venire was awarded Retornable in B. R. in this Form viz. Venire facias duodecim quorum quilibet habet 4 l. terrarum aut minus c. Moved to stay Judgment that the Venire was ill and not helped by the Statute of 27 Eliz. cap. 6. for that extends only to Writs of Venire fac in the Kings-Bench Common-Pleas Exchequer Iustices of Assize and no other Courts and the Chancery is omitted and therefore the Venire not waranted by the Statute But per Cur. This Clause inserted in the Writ although not waranted by the Statute yet is not prejudicial to any but makes the better Trial. And by the Common Law the Judges may direct a Venire to be Quorum quilibet habeat tantum de Terris and Precedents were shewed out of Chancery where the Venire was as in this Case And per Cur. If it was not good at the Common Law yet now câ—early made good by 32 H. 8. Wherefore Adjudged pro Quer. So Trin. 9 Car. 1. Cro. 1 Part 215 228. In a Scire facias in Chancery against C. upon a Recognizance of 200 l. The Defendant was Returned Dead whereupon a Second Scire facias issued against the Heir of C. and the Tenants of the Lands of C. tempore Recognitionis upon which the Sheriff Returned T. Terr-Tenant of such Lands omitted to Return any thing concerning the Heir Whereupon the Defendant pleaded That he had nothing in the Lands at the time of the Recognizance nor ever after It was found for the Plaintiff that C. was seised and moved in Arrest of Judgment because nothing was Returned against the Heir viz. That there was not any Heir or the Heir had nothing And it is a Non-Return of the Sheriff and not a Mis-Return and is not helped by the Statute of Ieofails But per Cur ' Though the Return had been better if it had been found who was Heir and that he was Warned or that there was not any Heir in the said County yet it was well enough and the Mis-Return or Insufficient-Return of the Sheriff quoad the Heir not being named in the Retnrn is but a Dis-continuance helped by the Statute of Ieofails Vide Hobâ— 326. Where the Plaintiff Declared in Debt upon a Demise for Rent To which the Defendant pleaded That before the Rent became due the Plaintiff did Enter upon him not saying He did Expel or Hold him out so that Issue was only Quod Quer ' non Intravit and found for the Defendant and Judgment given for him For tho' the Plea was Insufficient yet the Verdict did fully answer the Issue And see Hob. 76. Banks versus Parker In Trespass for taking a Kettle at W. The Defendant Justified by reason of the Custom of the Mannor of T. And the Plaintiff took Issue de Injuria sua propria absque tali Causa and the Venire was awarded de Visn ' de W. Manerio de T. upon the Roll and a Verdict for the Plaintiff And tho' the Plaintiff should not have Traversed
any Continuance from Trinity Term to Lent Assizes which was much insisted upon yet the Court gave Judgment for the Plaintiff So Brownlow's Rep. Part 1. fo 81. a Bill was Exhibited against one of the Clerks of the Court of Kings-Bench for Mony due upon Bond and Issue being joyn'd the Cause was Tried and found for the Plaintiff And to stay Judgment it was Objected That the Bill not being filed was not helped by the Statute of Ieofails nor within the same To which Opinion the Court seemed to Incline but gave leave to the Plaintiff to File a Bill that so the Matter might be put to Arbitration So Hob. 181. a Bill was Exhibited in Debt against an Attorney of the Common Pleas upon which a Verdict was had for the Plaintiff and to stay Judgment it was Objected That the Original Bill was not Filed with the Custos Brevium as it ought to be But because the Tenor of the Bill was Entred of Record in haec verba it seem'd to be in the Nature of the want of an Original after Verdict and so help'd by the Statute of Ieofails To which Opinion the Court did incline but would Advise of it because it had been otherwise Adjudged in that Court before But then we shall Enquire What Matters are not Remedied or Helped by any or either of the Statutes of 32 H. 8. and 18 El. before-mentioned For which see first Goldesbrough's Rep. fo 49. where the Plaintiff brought his Action against the Defendant for an Assault and Battery and the Defendant was Condemned therein by Nichil dicit and a Writ of Enquiry of Damages issued out and then the Plaintiff's Attorney died and another Attorney without Warant prayed the Second Judgment and had Execution thereupon Cur ' If the Attorney dies after Judgment a New Attorney may pray Execution without Warant but here the Attorney died before the Second Judgment and therefore he that comes after ought to have a Warant of Attorney Prothon If one of the Parties dies after Judgment the Writ shall abate And per Cur ' This is not within the Statute of Ieofails for a Verdict is that which is put in Issue by the Joyning of the Parties So Hob. 112 113. The Plaintiff declared in Trespass for an Assault and Battery made upon him by the Defendant who pleaded Iustification and Conveyed an Estate to himself by Copy of Court-Roll in a certain Piece of Ground Parcel of the Mannor of D. whereof I. S. was seised in Fee and because the Plaintiff came upon it he laid his Hands molliter upon him And the Plaintiff in his Replication also Convey'd to himself an Estate by Copy of Court-Roll to another Piece of Ground within the said Mannor and lays a Prescription in the said I. S. Lord of the Mannor to have a Way over the Defendant's Piece of Ground Upon which they were at Issue and Verdict for the Plaintiff And per Melieur Opinion this was no Issue at all nor Thing nor possibly Issuable and therefore the Verdict must also be void and so not holpen by the Statute of Ieofails For a Verdict cannot make that good which the Court sees cannot be in Law so that this is in the Office of the Court to judge So Cro. Part 2. 526. In Trespass brought in the Kings-Bench for Taking and Carrying away three Loads of Wheat set out for Tithes contra Pacem Domini Regis the words Vi Armis were omitted Per Cur ' the Bill shall abate for it is the Essential part of the Declaration and that which induceth the Court to set a Fine for the King and it is not help'd by the Statute of Ieofails And so Adjudged Hill 13 Iac. in the Case between Welsted and Taylor where Judgment was Reversed because Vi Armis was omitted Vide Hoh 127. In Debt upon the Statute of 21 H. 8. the Writ was Praecipe A. quod reddat Nobis B. qui tam pro Nobis quam pro seipso sequitur Centum decem Libras quas Nobis praefat ' B. debet And the Count was for Taking to Farm six Acres of Land and holding the same for six Months Per quod Actio accrevit for 60 l. And for further Taking to Farm other Lands and holding the same for five Months Per quod Actio accrevit for 50 l. To which the Defendant pleaded Quod ipse non debet praefat ' B. qui tam c. praedict as Centum decem Libras neque aliquem inde Denarium in forma qua c. whereupon Issue was Joyned and the Jury found That the Defendant did owe 30 l. and for the Residue Quod non debet And to stay Judgment it was Objected 1 That the Verdict expresses not for which Farm nor which of the Months the 30 l. was due sed non allocatur for the Demand and Issue were for 110 l. in several tho' it would have been more formal to have distinguished them 2 The Defendant hath not Answered the Writ and Declaration for the Plea ought to have been as the Demand is Quod ipse non debet dicto Domino Regi praefat ' B. qui tam c. And this was allowed because Penal Laws are Excepted out of the Statute of Ieofails And see Hob. 101. where Judgment was Reversed because there were no Pledges to Prosecute Entred for the Plaintiff and so not within the Statute of Ieofails because a Penal Law excepted out of the same But see Trin. 30 Eliz. in Com. B. Goldesbrough 90. where a Writ of Right was brought against Baron Feme of two parts of Forty Acres of Land in S. who pleaded That I. S. was seised and devised to his Wife one of the Tenants for Life the Remainder to B. in Fee who was his Heir who died and they prayed in Aid of B. who joyned in Aid with them and then they came and pleaded to the Grand Assize and the first Day of the Term the Assize appeared and sixteen of them were Sworn whereof four were Knights the rest Esquires and Gentlemen and the Title was as befor in Trinity Term Anno 28. for B. was Tenant in that other Action for the Third part Per Cur ' This is not aided by the Statute for here is no Certainty in the Grant yet if the Thing granted had had a certain Name given to it as Black-Acre or the like then tho' the Parish had been mistaken it would have been good enough See more of these two Statutes of 32 H. 8. and 18 Eliz. after in the Title Error In the next place We shall take a view of the two last Statutes concerning Ieofails viz. 21 Jac. 1. cap. 13 16. and 17 Car. 2. cap. 8. and enquire what Mis-pleadings are aided by the same and what are not By the Statute of 21 Iac. 1. cap. 13. after Verdict given in any Court of Record the Judgment thereupon shall not be stayed or reversed for any Variance in Form only
Damages shall find none because Confest And 8 H. 4. 6. The Iury severed the Damages in a Praemunire against the Principal and Accessary as they ought to do And so 19 H. 6. 32. in Forcible Entry where some found to Detain Forcibly and others to Enter Forcibly And see also in the Title Damages in Brook 22 H. 6. 73. where several Issues several Damages And see there afterwards how Damages may be severed and so it is better to be many times But Costs according to 36 H. 6. must be entire And 17 Ass. 22. in Trespass against Two where one was found guilty of part and the other of other part the Damages severed And so is 22 Ass. 76. But 29 Ass. 33. if one Person be found guilty of several Trespasses the Damages may be assest entirely And see Bro. Damages 118. 5 Ed. 4. That if one of the Issues be a Ieofail and the Damages entirely Assest 't is both ill And 11 H. 7. 19 20. in Trespass against Two of two Horses taken severally Damages must be several Otherwise if one be charged with several Trespasses See more hereof in the said Title of Damages in Bro. Abridgment And Where a Verdict shall make ill Pleading good see before in the Title of Pleading in that Special Division As 21 H. 6. Bro. Verdict 91. where the Demandant intending to Counter-plead a Resceit said That the Plaintiff Riens avoit Iour del Brief and said not Ne unque puis which was ill yet if it be found for the Priee the Verdict hath made the Plea good otherwise not The like of Non-tenure But by Brook The same after Verdict is helped by the Statute of Ieofails The like 22 Ed. 4. 46. Que le Baron ne suit seisie que Dower jour del ' Espousals The like 5 H. 7. 14. If an Executor plead Riens entermains Iour del Brief c. The like 6 H. 7. 6. 3. H. 7. 8. and 20 H. 6. 22. Then Where the Verdict is contrary to other Matter of Record As 11 H. 6. 42. Bro. 96. in a Writ of Error the Death of one of the Parties to the Writ was alledged such a Day Et alii è contra and the Death found accordingly yet because it appeared by the same Record That the said Party alledged to be dead had appeared three Days after in Person at the Nisi prius in the first Action therefore this Verdict was holden a Ieofail And 14 Ass. 9. the Special Verdict was found a Record for the Defendant and the Plaintiff to disable the Verdict shewed the Record to be otherwise and good And 25 Ass. 2. The Defendant in an Assize did plead That he did Enfeoff the Plaintiff within Age and after did Enter upon him To which the Plaintiff Replied That the Defendant was at Age the same time and so found accordingly and the Party being in the Court in Person was Adjudged by Inspection within Age and that stood and the Verdict holden for none And so 9 H. 6. 37. If the Defendant in Debt Plead Matter that proveth his Deed and yet conclude Non est factum and it be found accordingly yet Judgment shall not be given upon the Verdict but upon his own Confession quod nota And 3 4 Mar. Dyer 147. a Verdict could not find That the Party himself was Estopped by Indenture Then touching Special Verdicts there is a Statute viz. Westminster the 2d which says Quod Iustic ' ad Assisas non Compellerentur c. By Equity whereof as it appears in the Parson of Homeland's Assize of Fresh-Force in Plowden's Commentaries as well upon every Special Issue as General the Jury may give a Special Verdict where the Issue in that Case was upon the Entry pendant le Brief And so are divers other Books to that Intent as 33 H. 6. 30 31. and 18 Ed. 4. 48. upon the Plea of Non Detinet And so 43 Ass. 1. upon the Issue Frank de Frank Estate And so 42 Ed. 3. Bro. 85. upon the Issue Ne unque seisie que Dower or Ne dona pas And so 41 Ed. 3. 10. where the Resceipt was Traversed And so 33 H. 6. where the Issue was If the Grantor of a Rent had any thing at the Time of the Grant And so 3 H. 6. 3. upon the Issue of Assets entermains and Assets per discent And so in every General Issue Yet 7 H. 4. 11. upon the Issue of son Franktenement the Court would not suffer a Special Verdict But 1 2 Mar. Dyer 117. One did Traverse a Lease and the Iury found specially and awarded to Replead And so 11 Eliz. Dyer 284. in Crowch and Butler's Case where the Issue was by an Absque hoc and not a General Issue But 30 Ed. 3. Fitzh Abridgment Tit. Iudgment in Parco fracto the Defendant said That the Plaintiff's Wife delivered the Beasts out of the Pound Absque hoc que il infreint le Pound and the Jury found a special Verdict That the Headborough in the absence of the Baily according to Custom did deliver the same and good and the Defendant discharged although the Verdict be Special upon the Issue of Absque hoc because there it is as a General Issue And so is 32 H. 8. in an Assumpsit to make Two things The Defendant said That he did assume to make other Two things without that that he did assume in such manner c. and found that he did assume to make one of the Things contained in the Declaration and not the other and the Verdict for that last recited Reason good for the Plaintiff for that one Thing Otherwise if an Issue be upon a Traverse Absque hoc That A. and B. did Enfeoff And see in Plowden's Commentaries in Walsh's and Sander's Case That upon an Indictment of Felony a Special Verdict may be found And it appeareth also Mich. 1 2 Eliz. Dyer 173. That in an Attaint a Special Verdict was received Then ought to be known What things the Iury may take Conuzance of in their Verdicts as namely Matters in a Foreign County Conditions Records Releases and the like And first touching Matters in a Foreign County the Book of 22 Ed. 4. 19. is That upon the General Issue in Decies tantum the Jury may take Conusance of Mony taken in another County The like of Assets but need not be thereunto enforced Qu. inde because Transitory and not like to Trespass in Land but may not Specially find the Taking in another County And so seems 1 Ass. 16. That they could not find the Death or a Letter of Attorney expresly in another County Quaere tamen Et vide Bro. 24. The like 7 Ed. 4. 15 16. of a Resignation in another County or a Divorce And 3 4 Mar. Dyer 132. the Iury found a Lease in London and alledged as an Exception And touching the Damage that ariseth in another County by an Act they are bound to find as Battery
of the Plaintiffs Servants in one County by reason whereof he lost their Service in another County although it be so declared And by 9 H. 6. 62. in Trespass of Battery or Taking of Goods the Iury may find him Guilty in another Town in the same County Otherwise of Trespass Local But by 2 Ed. 3. 11. cannot Expresly find a Tender of Homage in another County And it appeareth 7 H. 6. Fitzh Abridgment Tit. Assize 359. that the Iury may Specially find a Condition annexed to a Feoffment according to Littleton But otherwise to a Release but may not find a Waranty because that cannot be without Deed. And in a Writ of Right the Iury may find a Release of Right but not a Collateral Waranty And so is 33 Ass. 11. touching a Feoffment upon Condition And so 28 Ass. 17. and 17 Ass. 20. of a Confirmation that doth Enlarge an Estate otherwise not But not a Release 16 Ass. 15. and 43 Ass. 41. A Feoffment given in Evidence the Iury in respect of the Livery are bound to find but may not take Conusance of a Release And by 21 Ass. 28. the Jury did find a Feoffment upon Condition not given in Evidence Then How the Jury may find a Matter of Record See first 3 H. 7. and 2. H. 4. That if a Iury find an Utlary or a Writ of Non Molestando or another Matter of Record the same is void Yet 28 Ass. 17. a Verdict found a Recovery c. And 26 Ass. 5. Verdict found a Fine not pleaded or given in Evidence sub pede sigilli whereof is a Mirum made in the Case by the Reporter And so the like the same Year Placito 3. upon a Recovery found by Verdict And 26 Ass. 2. The Verdict in an Assize found an Attainder and the Court there took it ill But touching this Learning see Newse's and Scholastica's Assize in Plowden's Commentaries where 't is said That a Note of a Fine or a Recovery without the Record it self Sub pede sigilli or the Number-Roll may be given in Evidence if the Jury will so accept of it Otherwise of Pleading the same And so holden without doubt upon the same Book 26 Ass. and other Books That the Iury may and in some Cases ought to find a Matter of Record which seems when given in Evidence Sub pede sigilli See more hereof in the Chap. of General Issue and Special Evidence antea Then How the Iury shall find a Spiritual Matter First see 21 H. 3. 9. where a Verdict in an Assize found That the Father of the Tenant had taken the Order of a Deacon and after Married the Defendants Mother c. And 8 Ass. 5. it was holden That the Jury in an Assize may find the Plaintiff or Defendant to be a Bastard but if it were Pleaded it shall be Tried by a Certificate from the Bishop And 29 Ass. 2. A Verdict in an Assize found a Divorce for that it is not a Matter of Record but a Matter in Fait quod nota Then it appears in Amy Townsends Case in Plowden's Commentaries That if the Jury or an Office find a Special Matter and Conclude contrary the Court shall not in their Judgment respect the Conclusion but the Special Matter found quod nota And so is 28 Ass. 17. But as appears 16 Ass. 15. if they find a Special Matter and Conclude according to the Law the Special Matter is waived And see 18 Eliz. Dyer 153. The Jury found Quod non Concessit prout Def. c. when it should be the Plaintiff and Assigned in Error Then In what Cases the Verdict varying from the Issue shall be good and where ill and for whom the same doth find For which see before in this Chapter of Verdicts in the Division of Special Verdict and in the Chapter of Issues where they find Part or another Day and the like And see the Titles Count or Declaration and Traverse as also the Cases ensuing viz. 36 H. 6. 2. In the Case of Nul tiel Record pleaded and a Recognizance upon Condition certified And 16 Ass. 19. it 's holden That upon the Issue Ne enfeoffa pas the Verdict may find a Conditional Feoffment And 30 Ed. 3. 5. the Defendant in Account did plead Pleinment Accompt devant A. B. and the Verdict found That he did Account before B. tantum and a good Verdict for the Defendant quod nota And 21 Ed. 4. 10. in Entry upon the Statute of Ric. 2. the Verdict upon the General Issue found him guilty of Entry only into two parts of the same and good accordingly And 10 H. 6. 13. in Debt against the Heir who pleaded Riens per Discent to which the Plaintiff Replied Assets in Dale and the Verdict found Assets in S and a good Verdict for the Place is not material And 1 Ass. 14. if one of the Defendants in an Assize be acquitted yet the Plaintiff shall have Judgment against the other and yet they Pleaded Joyntly to the Plaint Non Disseisiverunt See 2 Ed. 3. 49. Brook Tit. Verdict 20. If Executors plead Plene administraverunt and it be found That they did fully Administer to Ten shillings the Verdict doth pass against them and shall answer the whole Action Quaere inde And 7 H. 6. 33. the Issue was upon the Feoffment of A. and B. and the Verdict found That A. did only Enfeoff and by the Better Opinion found against him that doth plead the same Quaere inde And 40 Ed. 3. 35. If in Debt against Two who plead Non est factum it be found to be the Deed of one of them and not of the other yet the Plaintiff shall Recover And see 28 29 H. 8. Dyer 32. where one Declared in Debt upon a Lease of Twenty Acres To which the Defendant pleaded That the Plaintiff Lett the same Twenty Acres and Four Acres over sans ceo que il demise les 20 Acres tantum whereupon they were at Issue and the Verdict found the Demise only of 21 Acres and great Doubt was for whom the Verdict was found or whether for neither of them and so a Ieofail And see Dyer 1 2 Mar. 115. in Debt upon an Obligation the Breach of the Condition was assign'd in Cutting down Twenty Oaks and Issue thereupon viz. Quod non succidit praedict as viginti Quercus nec earum aliquam And the Jury found that he Cut Twelve and the Plaintiff had Judgment And see 22 Eliz. Dyer 367. in an Information of Usury the Defendant did plead Quod non habuit aut acceptavit praedictas Octoginta libr as pro lacro c. and the Jury found Quod acceptavit quadraginta libras Et pro Resid ' Non Culpabilis which was there among other things assigned for Error and nothing else taken notice of And see 47 Ed. 3. 19. One did pray to be Resceived in Default of the Tenant for Life and the Demandant said That the Tenant had Riens
Prist and so at Issue and the Verdict found That neither the Tenant or the Priee had any thing Where holden That it was found against the Priee and the other Matter Que ils ne unque ount Riens not Material quod nota And see 36 H. 6. 29 30. If a man in Pleading confess any thing contrary to his Form of Action his Writ shall abate but otherwise if the Verdict find the same Then Where the Iury find more than their Issue Vide 45 Ed. 3. 25. the Defendant in Trespass of Battery did plead the General Issue and the Verdict found the Defendant Guilty the day mentioned in the Declaration and another day also ad dampnum decem librarum and good for intended the Assault did continue And 26 Ass. 35. the Verdict did find that the Plaintiff in the Assize was seised and disseised but no Disseisor named and the Writ did abate although not pleaded But 39 H. 6. 13. in Mordancestor the Defendant did plead a Bar which was found against him and the Jury enquiring further of the Points of the Writ did find against the Plaintiff and yet Judgment given for him because there the Points of the Writ ought not to be enquired of And see 7 H. 6. 8 9 20. if the Verdict found the Issue and more as the Issue there being upon a Discent do find the same and a Continual Claim that as to the Continual Claim is Surplusage And so 39 Ed. 3. 38. the Plaintiff did Count in Annuity by Prescription which was Traversed by the Defendant and the Verdict found for the Plaintiff and also Riens arrear and Holden as to that Surplusage The like 13 Ass. 4. in an Assise of Rent the Defendant made Default and the Plaintiff to ascertain the Count made Title to a Rent-Service and the Jury found a Rent by Prescription and yet the Plaintiff Recovered quod nota And 13 Ass. 2. in an Assize by I. S. Clerk the Verdict found That he was Prebend Nient nosm and the Assize did abate See more hereof in the Division immediately before the last Case And In some Cases the Verdict found for the Plaintiff and yet he shall be Barred As 40 Ass. 6. in a Mortdancestor all the Points of the Writ found for the Plaintiff and yet he was Barred for this Reason for although he was Heir to his Father yet because his Elder Brother by the Half-Blood did Enter he was Barred Then Where the Iury give divers Verdicts As Mich. 3. 4 Eliz. Dyer 204. To part they gave a Verdict at the Bar for the Plaintiff and being Remanded to enquire of the rest came again and changed that Verdict and with the rest gave for the Defendant So in Sander's Quid Iuris clamat more strongly where the first was but a Private Verdict quod nota And know That every Verdict unless by Writ to Inquire of Damages ought to be by Twelve And therefore 41 Ass. 1. a Verdict taken at the Assizes by Eleven when the Twelfth would not agree 't was holden ill and a new Venire facias awarded and so the Original stood quod nota Where said That the Justices ought to have carried them in Carts and by other Authority The Justices may Fine such a Jury for their Obstinacy after Examination And Observe That if a Protection be laid at the Assizes and the Justices doubt whether the same do lye or not they may take the Verdict de bene Esse as 35 H. 6. 58. and other Books are Then Where the Verdict shall be void in part or in the whole or where a Repleader and a Scire facias de novo See the Cases before in this Chapter of Verdict especially in the Division of Special Verdict or where it doth vary or is contrary to the Issue And see afterwards in Misdemeanour of the Iury and the same Case of 41 Ass. of the Verdict by Eleven and 2 3 Mar. Dyer 132. a Doubt only moved Whether a Verdict shall be void in the Whole or not And Lastly Where the Misdemeanour of the Iury or one of them shall make the Verdict ill See Brook in the Title of Verdict as namely 20 H. 7. 3. where all of them did Eat before they did Commune of the Verdict at their own Costs and the Verdict good but if at the Costs of the Party for whom they found then ill otherwise not Where it s said also That in respect of Necessity or Sickness one or more of them may Eat or Drink And accordingly is 14 H. 7. 29. where the Jury at the Nisi prius by reason of a sudden Tempest departing from the Bar one of them entred into an House where he drank at the Request of a Stranger that told him The Earl of Kent ' s Part was better as well for that the Verdict was found against the Earl of Kent as that the Matter was not shewed in time before Verdict but it was Cause sufficient to Fine the Juror The like of an Escrowl delivered to one of the Jurors c. And accordingly is 24 Ed. 3. 24. the Justice at Nisi prius being informed That the Sheriff had let the Jury go at large to Eat and Drink Refused the Verdict Fined the Jury and the Sheriff and awarded a New Venire facias for Trial of the Cause Yet see 14 H. 7. 1. where in the Common-Pleas the Jury found for the Plaintiff and yet the Defendant had a New Venire facias for that the Jurors after their Charge did Eat and Drink and Disallowed the first Verdict And it appears in Welden and Elkington's Case in Plowden's Commentaries That one of the Iurors was Fined for having a Box of Marmalade about him but the Verdict not avoided But after a Privy Verdict as is 2 H. 4. 21. and 5 Ed. 4. 6. 1. and at their own Expences the Iury are suffered to Eat and Drink together until c. CHAP. XI Of Iudgments NExt in Order We shall Treat of Iudgments And First touching the Form of a Iudgment see 3 H. 4. 2. That whether the Plea be to the Writ Count or in Bar and Judgment thereupon to be given for the Defendant that the Words of the Iudgment are all one and shall be Expounded either Peremptory to other Actions or otherwise as the Matter of the said Plea doth require As if one doth Demur upon the Count the Judgment shall be Eo quod Insufficiens est in Lege Quer ' nichil Capiat per Breve Or Generally Nichil Capiat per Breve sive Billam Et quod Defend ' Eat sine die and shall as before in another Action be Peremptory or not as the Case of the first Plea requireth And 3 H. 4. 11. In Debt in London the Defendant pleaded a Foreign Plea and Iudgment was given for the Plaintiff Quod Quer ' sequatur ad Communem Legem Et quod Defeat sine die and there in a New Action doubted whether this
Whole which is to be Tried first For if that be against the Plaintiff tho' he should have Verdict on the other he can have no Judgment But for the Inconveniency and for that this Plea to the Whole comes after the Venire facias and the other was before therefore 't was Tried but if both had been before the Venire facias it could not have been and 't was found for the Plaintiff and Judgment was had with a Cesset Executio till the other was Tried for the Concord was laid in another County So the Plaintiff Released to him and took Execution tho' the Judgment was on the first Plea CHAP. XII Of Executions EXecution is the last Performance of an Act as of a Judgment in a Suit viz. Where Judgment is given in any Action That the Plaintiff shall Recover the Land Debt or Damages as the Case is and where a Writ is awarded to put him in Possession or to do some other thing whereby the Plaintiff may be the better satisfied his Debt or Damages that is called a Writ of Execution and when he hath the Possession of the Land he sues for or is paid off his Debt or Damages or hath the Body of the Defendant awarded to Prison then he hath Execution And where the Plea is in an Inferiour Court as County-Court Hundred-Court or Court-Baron and they defer Execution in favour of either Party or other Cause then the Party may have a Writ de Executione Iudicii Vide Co. Lib. 6. fol. 87. a. Where is said to be two sorts of Executions the one final the other with a quousque tending to an End An Execution final is that which makes Mony of the Defendant's Goods or Extends his Lands and delivers them to the Plaintiff which he accepts in Satisfaction and is the End of the Suit and all that the King 's Writ Commands to be done The other Execution with a Quousque is tending to an End but not final as in the Case of a Capias ad Satisfaciendum c. which is not final but the Body of the Party is to be taken to the intent to satisfie the Plaintiff and his Imprisonment is not absolute but until the same be performed And by Co. Lib. 8. 141. the Method of obtaining these Executions are by certain Iudicial Writs some of which are against the Person some of them against the Goods and Chattels some of them against the Lands and some against the Body Goods and Lands And by Co. ubi supra The Execution for Debt is Fourfold 1. Of Goods only by Fieri facias 2. Of the Moiety of Lands by Elegit 3. Upon a Statute or Recognizance 4. Of the Body by Capias ad Satisfaciendum Then Touching Executions upon Iudgments by Writs of Capias ad Satisfaciendum First Shall be declared against what Person an Execution will lye by Capias As namely 26 H. 8. 7. Not against an Abbot but upon a Testatum the Plaintiff may have an Elegit into another County Otherwise of a Knight the like as an Abbot of a Bishop Duke c. if it be not upon a Rescous or other Contempt as 11 H. 4. 15. and other Books are And by Co. Lib. 8. 141. Lib. 5. 88. Lib. 6. 53. Lib. 3. 12. Magna Charta 2. 18. Westm. 2. 11. This Writ of Execution may not be had against a Duke Earl or Baron or their Wives but in some Special Cases nor against an Heir or an Executor but in some especial Cases Then In what Actions and other Cases Execution may be had by Capias See first 34 H. 6. and 48 Ed. 3. Bro. 12. That in Scire facias upon a Recognizance no Capias Yet 7 H. 4. 34. granted for the King in a Recognizance for the Peace Nor against Executors in whose hands Assets were found if not as it seems upon a Devastavit Return'd See more touching Executions against Executors in that special Title Devastavit in Brook's Abridgment And in 42 Ed. 3. 11. if one Recover in an Action upon the Case against an Hostler because he is not charged upon a Wrong but a Laches no Execution lieth by Capias The like in an Action upon the Statute of Hue and Cry And so is 42 Ass. 17. in the Case of an Hostler although there was a Capias in the Mean Process But 2 H. 4. 6. and Roll. Abridg. 898. one in Dower did Recover Damages and could not have Execution of them by Capias because no Capias in the Mean Process And so 11 H. 7. 15. in an Assize And 7 H. 6. 45. No Execution by Capias against one not Party to the Writ as there where upon Issue in Detinue found against the Garnishee the Plaintiff recovered the Thing against the Defendant and Damages against the Garnishee and could not have Execution of the Damages by Capias And Note this Difference 40 Edw. 3. 25. That in Detinue of a Bag or Box of Writings Execution lieth by Capias Otherwise if there be one or more Writings in Certain quod Nota. Vide Pluis in Bro. Tit. Capias and Process Court Baron Antient Demeasn Statute Merchant c. And yet as appears 11 H. 7. 15. In an Assise where no Execution by Capias lieth against the Party for the Damages yet if the Disseisin be found to have been with force and the Party to be taken by Capias pro Fine either within or after the year as the said Book is he shall remain in Execution for the Party Quod Nota Et quaere inde And so is 7 H. 4. 39 40. Not mentioning whether the Capias were within the year or after for in all other Cases the difference is taken where the Defendant is taken within the year upon the Capias pro Fine and where after For in Fitz. Nat. Br. 121. In the one Case he shall remain in Execution without the Plaintiffs Request and in the other not altho' he do request the same And 7 H. 6. 5. Somewhat doubtful if the Plaintiff request not the same But 7 H. 4. 4. is clear without request of the Plaintiff because the words of the Writ are Ad Respondend ' tam Nobis quam Parti And see 14 H. 7. 15. and 15 H. 7. 5. In an Assise where the Disseisin was found with Force and the Record removed and the Defendant taken pro Fine Regis within the year yet could not remain in Execution at the request of the Party because there he could not have Execution without Scire Facias And so is 1 H. 7. 20. When it is after the Year or in the time of another King But as appears 11 Ed. 4. 67. This is no Execution for the Party but at his Election for altho' as the Case was there he was discharged by consent of the Plaintiff upon Recognizance given yet the Plaintiff had at his Pleasure a new Execution And so is 4 Edw. 4. 16. But more doubted whether there the Gaoler may
let him go at large by the Commandment of the King and it seems there that he cannot And 22 Ass. 74. One taken pro Fine Regis upon a Disseisin found Pledges pro Fine and there said That he should not go at large if the Plaintiff request him to be in Execution quod nota And see the Book of 14 H. 7. 28. That after a Fieri Facias awarded and not returned the Defendant was taken within the year upon the Capias pro Fine and at the request of the Plaintiff could not be detained for his Execution but found Pledges for the Fine and went at large Otherwise if the Scire Facias had been returned Nichil quod nota Vide Rolls Abridgment fol. 901. Where said That if one be condemned for a Fine to the King and Damages to the Party in an Action where a Capias lies in the Original and he is taken by Capias pro Fine at the suit of the King and after suffered to escape the Party Plaintiff may have Execution by Fieri Facias or Elegit or he may sue the Sheriff for an Escape Vide March's Reports Case 86. Where one is imprisoned for the Kings Fine and upon an Habeas Corpus it is returned That he is in Execution also for the Damages of the Party it shall be intended at the Prayer of the Party But by 13 H. 7. 6. If one be taken by Capias pro Fine in such a Case wherein he shall be said to be in Execution for the Plaintiff also and he do after sue Execution against the Defendant by Fieri Facias or Elegit in that Case the Defendants Body is discharged from Execution as to the Plaintiff Vide Mores Reports Case 172 and Leonards Reports First Part 51. Where G. recovers in Debt in the Common Pleas and upon Error the Judgment was affirmed and he had Process of Outlawry and the Party was taken upon the Capias Utlagatum within the year after the Judgment upon Process continued without Discontinuance against him And it was held that he should be in Execution without any Prayer for it and without Scire Facias because the Process was continued and tho' the Original Judgment were in another Court and that after the year he might have a Scire Facias But if one be taken at the Suit of the King pro Fine Regis after the year upon Process continued he shall be in Execution for the King but not without Prayer But if the Defendant be taken pro Fine Regis in a Suit wherein no Capias lies nor Capias ad Satisfaciendum will lie for the Party yet in that Case upon the Prayer of the Party Plaintiff he shall be in Execution for him but not without Prayer And see Dyer fol. 306. Where said That in all Cases generally where the Plaintiff may have a Capias ad satisfaciendum in the Suit and the Defendant is taken by a Capias pro Fine or a Capias Utlagatum after Judgment there the Defendant shall be in Execution presently at the Suit of the Party also without any Prayer or Motion to the Court And in Case where he may have a Fieri Facias and no Capias ad satisfaciendum as in Assise Redisseisin or the like and the Party is taken by a Capias pro Fine and Committed to Prison at the Kings Suit In all these Cases upon a Prayer and Moving the Court the Defendant shall be in Execution for the Party also but not without Prayer and in Case where the Plaintiff hath a Judgment and doth surcease his time so that now he cannot have Execution by Capias ad satisfaciendum or Fieri Facias without a Scire Facias In these Cases if the Defendant after this happen to be taken by a Capias pro Fine for the King or by a Capias Utlagatum after Judgment he shall not be in Execution for the Plaintiff without Prayer or Moving the Court. In the next place shall be shewn Where Execution shall be had by Capias Fieri Facias or Elegit And first you ought to know That upon Judgments by Course of the Common Law were only Fieri Fac ' and Capias as namely in Trespass or Indictments where Process of Outlawry Fieri Fac ' or Capias at the Election of the Plaintiff and where no Process of Outlawry only Fieri Facias until first Remedy was given by the Statute of Westm ' 2. cap. 19. which is If a man recover Debt or Damages it shall be at his Election to have a Fieri Facias de Terris Catallis or the Sheriff shall deliver to him omnia Bona Catalla Debitoris Exceptis Bobus Affris Carucae quousque Debitum fuit levat ' per Rationabil ' Precium Extent ' and if he be Ousted he shall have Assise and Redisseisin And after in the same Statute Cap. 47. De hijs quae Recordat ' sunt like Execution given upon Recognizances upon which have been divers Cases in the Law of great Learning put since that time as namely 50 Edw. 3. 4. In Decies tantum the Elegit was Returned Nichil and afterwards the Defendant was taken by Capias pro Fine and by the better Opinion could not stay in the Execution for the Party And by 5 Edw. 4. 41. 19 H. 6. 30 Ed. 3. in Bro. 93. After an Elegit awarded and returned Nichil no Execution by Capias And see 13 Eliz. Dyer 299. That after an Elegit the Plaintiff could not have Debt But as 21 H. 7. 19. after one Elegit returned Nichil the Plaintiff may have another But by all the Books if the Writ of Elegit had not been returned at all then the Plaintiff might have a New Execution by Fieri Facias or Capias as appears by 17 Ed. 4. 4. where before the return of the Elegit the year did Elapse and after the Plaintiff had a Scire Facias and a Capias And 42 Edw. 3. 11. after divers Writs of Fieri Facias upon Continuance one was returned Nichil and the Plaintiff had several Elegits in divers Counties And by 45 Ed. 3. 19. after a Fieri Facias returned Nichil a Capias was awarded And 10 Ed. 4. 3. after Execution by Fieri Facias of part the Plaintiff had a Capias for the Rest and so is 18 Ed. 4. 12. But by 22 Ass. 43. the Body being in Execution no further Execution shall be by Elegit or Fieri Facias And by 15 H. 7. 14 15. after a Capias one shall not have an Elegit no more than a Capias after an Elegit So that hereupon and by Fitzh Nat. Brevium it appears That after a Fieri Facias executed in part or not executed the Plaintiff shall have either Capias or Elegit but if he betake himself either to Capias or Elegit and those Writs be returned he must still keep to the same and to no other Execution quod nota See more of this in Brook Title Elegit See also Dyer
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.
two become Bail for him and the Plaintiff Recover and the Process continued till Judgment against the Bail Execution may be against either of the Bail without naming the other And Idem 896. he may have Execution against one of the Bail at one time and after have Execution against another of the Bail But Idem 897. if a man have once Execution against the Bail he may never after have Execution against the Principal Or if once against the Principal never after against the Bail And Idem ibid. if the King Recover in a Scire facias on a Recognizance acknowledged in Chancery he can have no Execution against the Body But a Capias lies on a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in an Action in the Kings-Bench But no Capias will lye upon a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in the Common-Pleas but there an Action of Debt will lye upon the Recognizance So if the Bail in an Inferiour Court enter into a Recognizance That if the Principal pay not the Damages and Costs recovered or render himself to Prison Tunc Concedit the Damages and Costs de terris catallis suis levari ad opus Querentis no Capias will lye upon this Recognizance So neither for the Plaintiff in Detinue to recover Damages against the Garnishee because as by 7 H. 6. 45. before-cited not party to the Writ So if an Inferiour Court be held by Charter and the Bail there Enter into Recognizance no Capias will lye for this But by Hobart 284. Abridged by Rolls 898. If the Principal after Judgment render his Body in Court in Exonerationem Manucaptorum and the Plaintiff doth not take him in Execution and this is Entred of Record as it must be the Plaintiff may after this Take him in Execution by Capias ad satisfaciendum And Idem 899. if A. Recover against B. in the Kings-Bench Damages and Costs and upon this hath Judgment against the Bail after Scire facias and after B. and the Bail joyn in a Writ of Error upon the Statute in the Exchequer-Chamber and while this is Transacted the Year and Day is Elapsed in this Case the Court of Kings-Bench may grant Execution For it is a void Writ of Error and as if none had been brought And Idem 891. if a Recognizance of Bail be taken by a Judge of the Kings-Bench at Serjeants-Inn in London upon an Original brought in London and it be Certified and Inrolled in the Kings-Bench it seems it may be extended in London or Middlesex In the next place we shall Consider Where Execution may be had by Scire facias and where it may be had without And first as to the Writ of Scire facias ought to be known That Execution must be had within a Year of the Iudgment otherwise it cannot be taken out till there be first sued out a Scire facias which is a Writ Iudicial going out of a Record and lies where one hath recovered Debt or Damages in the Kings Court and he sueth not to have Execution within the Year and Day he must have his Writ to warn the Party and if the Party comes not or if he comes and says nothing in discharge or stay of the Execution then the Plaintiff shall have a Writ of Fieri facias to Command the Sheriff to levy the Debt or Damages of the Defendant's Goods Or where the Process is a Capias he may have another Writ of Execution called a Capias ad satisfaciendum to Take and Imprison the Body of the Defendant till he satisfie the Party Plaintiff And so on a Iudgment to Recover Lands if the Plaintiff do not sue out Execution within the Year after the Iudgmenâ— he may not have Execution till he have 〈◊〉 Summoned the Defendant to shew Câ—use why Execution should not be had against him And if the Defendant cannot be found upon Summons or cannot or doth not shew Cause why Execution should not be made then a second Iudgment is awarded That Execution be done upon the first Iudgment And here by Co. 1. Inst. 290. and Dyer 148. this Writ of Scire facias being Entred the Tenant or Defendant may thereunto plead any Matter accruing after the Judgment as Release Outlawry c. to prevent the Execution But it appears by Old Natura Brev. 163. Dyer 270 271. Hobart 56 57. Cro. 1 Part 185. Bulstr. 2 Part 230. Lane 16. Finch's Ley 477. That if the Plaintiff sue out Execution within the Year he may Continue the Iudgment after the Year without Scire facias But see Fitzherbert's Natura Brevium Tit. Scire fac ' and Brook's Abridgment 134. by which as also by divers other Books it appears That Execution may be had within the Year against a Party to the Judgment without a Scire facias but otherwise if the Record be removed into another Court And with these Authorities doth agree 14 15 H. 7. And it appears also there That the Year shall not be accounted from the Time of the Recognizance but only from the Time of the Payment And 23 H. 8. ibid. 119. if one Recover in Annuity a Fieri facias shall go out within the Year and after Scire fac ' infinite because Executory And with this agrees Bro. 28. where said That if one Recover in a Writ of Annuity he may have a Fieri facias of the Arrerages incurred within the Year and a Scire facias after as oft as the Annuity is behind and no Writ of Annuity after And in every Scire fac ' in which he Recovers after the first Judgment he shall have Execution of the Arrerages within the Year by Fieri facias And 11 H. 4. 34. Bro. 119. after Judgment had in Annuity the Plaintiff after a Scire fac ' may have a Fieri fac ' to levy it as it becomes due And 21 Ed. 4. 1 2. if Rent be granted by Fine the Party may have a Scire fac ' in Infinitum as before in Annuity or as in Covenant upon Covenant as one Recovering in Trespass may bring a New Action And 22 H. 6. 15. Bro. 54. one Condemned in the Common-Pleas and in Execution Attainted after in an Assize Remanded also thither and could not be Committed there for that Execution also without Process And see 39 Ed. 3. 15. Bro. 122. One had a Scire fac ' to Execute a Judgment in a Praecipe quod reddat and Execution thereupon by Default and after surmized to the Court That the Person against whom he had his Writ of Scire fac ' and Iudgment was not Tenant but one B. against whom he had another Scire fac ' quod nota And Note by the Book of 22 H. 6. 11 12. That at the Common Law until the Statute of Westm. 2. De hiis quae c. If one had Recovered in Debt and taken out no Scire fac ' within the year
Querela But if a Capias ad satisfaciendum be had against one of them in this Case so as there is such an Execution as is a Satisfaction no other can be had against him or against his Heir or Executor if he die For where the Law gives several kinds of Execution by way of Choice and he Chuseth a Capias ad satisfaciendum and the Body is taken it cannot be for part as in a Fieri facias But see the Statute of 21 Iac. 1. cap. 24. how the Law is thereby changed in this Point For it is Enacted by that Act That he or they at whose Suit any Person is charged in Execution for Debt or Damages recovered their Executors or Administrators may after the Death of the Person so charged in Execution lawfully sue forth New Execution against the Lands and Tenements Goods and Chattels of the Person so Deceased in like manner as if the Person Deceased had never been in Execution And see Roll's Abridgment 903. That if one Recover in Debt against I. S. and then Outlaw him on the Judgment and afterwards I. S. is taken within the Year by Capias Utlagatum at the Suit of the King and dies in Prison before any Prayer made by the Plaintiff That he might be in Execution at his Suit This is no Satisfaction therefore the Executor or Administrator of him that is dead may be charged for the Debt notwithstanding he was in Execution by being taken upon the Capias Utlagatum But by Anderson 1 Part Case 273. if one that hath an Execution of Land Release one Acre of the Execution all is Extinct by the Release of the Execution in one Acre And by Hobart 60. If the Party in Execution Escape of his own wrong the Plaintiff can have no other Execution of him or of his Executors But if he take one in Execution where there are several Debtors by one Obligation there he may take another after the Escape of that one or he may have Satisfaction from the Sheriff upon the Escape at his Choice And by Co. 5 Part 86. and 6 Part 13. and 8 Part 152. and Dyer 152. If the Defendant pay the Mony he is discharged But if the Plaintiff makes any Release or other such like Act to the Defendant being in Execution amounting to a Discharge this will not be a Discharge Ipso facto but by this means he may have a Discharge And yet if the Plaintiff himself shall deliver the Prisoner out of Execution he is thereby Ipso facto discharged of the Execution for ever So if the Plaintiff doth acknowledge Satisfaction upon Record So by 13 H. 7. 1. Plowd Com. 36. and 33 H. 6. 47. If one taken in Execution upon a Capias ad satisfaciendum doth Escape and the Plaintiff bring his Action against the Sheriff or hath a Cepi Returned on the Writ and it be Filed by this the Defendant is discharged against the Plaintiff for ever But if no Cepi be Returned nor Action brought against the Sheriff the Law will Adjudge the Party to be out of Execution But by Co. 5 Part 86. If Two be in Execution for one Debt on a Bond made by Two and the Sheriff suffers one of them to Escape this will not discharge the other till the Plaintiff hath Recovered his Debt of the Sheriff But by Co. 8 Part 143. and 38 H. 6. 4. If one be in Execution upon a Capias ad satisfaciendum and the Court adjudge the Judgment or Execution Erroneous and so null it by this the Defendant is discharged of that Execution Yet by Fitz. Nat. Brev. 146. If Two be in Execution for one Debt and one of them dies under Execution that will not discharge the other But 38 H. 8. Dyer 6. One in Execution being a Burgess of the Parliament and discharged by a Writ of Privilege doubted whether discharged for ever But by the Statute of 1 Iac. 1. cap. 13. it appears That if a Prisoner be delivered out of Execution by Privilege of Parliament it is no discharge but after the Privilege is gone he may be taken again So Pasch. 30 H. 8. Dyer 62. Trewynyard's Case where Trewynyard being a Burgess of Parliament was taken upon an Exigent after a Capïas he brought a Writ of Privilege of Parliament and the Sheriff let him at Liberty In this Case it was Resolved First That the Privilege was Grantable notwithstanding the Execution because the King and Realm have an Interest in the Body of every Burgess of Parliament and the Common-Weal shall be preferred before the Interest of any private Person Secondly That after the Parliament ended he might be taken in Execution again For that the Plaintiff shall not be prejudiced in his Execution by the Act of the Law which doth Wrong to no man See 3 Ed. 6. Dyer 66 67. where the Sheriffs of London in Debt upon an Escape by going at large by Baston in London did plead That their Predecessors let him at large and good And Note by Dyer 4 5 Mar. 162. 10 Eliz. 275. and 12 13 Eliz. 206. If the Prisoner have the King's Protection to go at large by Baston it is an Escape and the Warden of the Fleet may be Charged upon an Escape And see the same Book of Dyer 10 Eliz. where Debt was brought against the Marshal of the Kings-Bench or his Deputy And see Plowden's Commentaries in Platt's Action of Debt against the Sheriffs of London where it seemeth That by the Custom of the City of London one in Execution in Ludgate may go by Baston within London but otherwise in Southwark But Note the same Book of Dyer in 3 Ed. 6. That the Sheriffs of London were there Charged for suffering one in Execution in Ludgate to go at large in London by Baston quod nota Then Where the Act of the Court of the Law or of the Plaintiff doth discharge the Party of the Execution As namely 24 Ed. 3. 44. If one recover the Land and Body in a Writ of Ward and Release the Body the Land is thereby discharged But otherwise of a Grant The like seemeth 40 Ass. although the Land be Extended and Granted over The lik in Popâ—'s Case in Plowden's Commentaries If the Cognizor after Execution Enfeoff the Cognizee of part but it is otherwise before Execution for there the Lands be in the Hands of the Cognizor and his Body is Charged See 6 Ed. 4. 4. and 24 Ed. 3. 45 46. That if one in Execution be Outlawed or Condemned for Felony and afterwards have his Pardon yet touching his Body the same shall still remain in Execution Notwithstanding by the same Book of 6 Ed. 4. if he take himself to his Clergy he shall be out of Execution And so seemeth the Book 7 Eliz. 248. but ibid. 261. è contra See hereof Bro. Abr. 272. And see 10 Eliz. 275. That one in Execution by Agreement of the Parties and the Chief Justice went at large for a
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
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
the Cause generally but the Custom yet that was Adjudged to be helped by the Statute of Ieofails as Matter of Form because Absque tali Causa contained the Custom and more And Idem ibid. Parker versus Parker The Plaintiff brought Trover and Conversion of certain Goods against the Defendant and the Declaration was Entred upon the Imparlance-Roll with Blanks or Spaces for the Day and Year of the Plaintiff's losing the Goods and of the Defendant's finding and converting them to his own proper use but the Issue-Roll and the other Proceedings were perfect in this Point And per Cur ' the Imparlance-Roll being the Original cannot be made perfect by the Issue-Roll which was waranted by it but in regard a Verdict was given for the Plaintiff upon the Issue of Not Guilty the Court gave Judgment for him For the Declaration as Entred on the Imparlance-Roll was good enough in Substance for the Trover and Conversion being laid in the Praeterperfect Tense was before the Action brought and so the Fault in the Declaration being only in Form is helped by the Statute of Ieofails And Idem 117. Napper versus Iasper and George where Issue was taken in Trespass upon a Prescription That I. S. Prebendary of the Prebend of P. in the Church of S. and all his Predecessors Prebendaries c. had used Time out of Mind to keep a Shepherd for certain Sheep of theirs following the same Sheep for the better keeping of them feeding together in a certain Pasture from the Sheep of the Earl of S. in the same Place and the Issue was found accordingly And Moved That this was a Void Verdict for the Prescription was sensless and could not stand That the Sheep could be kept Time out of Mind from the Sheep of the Earl of S. being but one man's Life But yet the Plaintiff had Judgment according to the Verdict for the Substance of the Issue was The keeping the Prebendaries Sheep feeding together and the other part was but a Consequent of it That by that means they were kept from the Earl's Sheep Vide Stiles Rep. 206. where the Plaintiff declar'd upon an Assault and Battery in Surrey To which the Defendant pleaded Justification in Middlesex and the Plaintiff Replied That the Defendant did Beat him in Southwark which is in Surrey de Injuria sua propria absque tali Causa and the Issue was tryed by a Jury in Middlesex and found for the Plaintiff and Objected That the Trial was not good because the Venire facias was from one Place when it should have been from both for here are two Issues to be Tried and so not within the Statute of Ieofails But per Cur ' the Trial is well enough for tho' two Issues yet by Pleading they are made one and so within the Statute of Ieofails and helped by it And see Godbolt 85. where the Plaintiff declared in Account of divers Receipts and Parcels To all which except one the Defendant pleaded to Issue but for that one Parcel he pleaded nothing Whereupon it was Moved That the Plea was Dis-continued for not answering to that Parcel which Dis-continuance was not aided by the Statute of 32 H. 8. and the Plaintiff could not have Judgment according to his Declaration because of the Parcel to which no Answer was made no Judgment could be given But per Cur ' the Statute of 32 H. 8. did Extend to it for the words of that Statute are After Verdict found Iudgment shall be given any Discontinuace notwithstanding And see Cro. Part 2. 534. where the Plaintiff declar'd in Trespass Quare Clausum fregit Et alia Enormia ei intulit The Defendant pleaded the General Issue Non Culp and the Jury found 400 l. Damages in respect of the Abuse done by the Defendant to the Plaintiff's Wife and to stay Judgment it was moved that the Venire facias wanted these words Quilibet Iur ' per Pleg ' and therefore is as if there had been no Return of the Writ But per Cur ' this is not a Blank Return where no Return is at all or where the Name of the Sheriff is omitted but this is an Insufficient Return helped by the Statute of Ieofails For the Omission of the Pledges is but want of Form and not like to Hussey's Case where there was no Pledges Returned upon the Original And Idem Part 2. 353. where the Plaintiff did declare in Trespass against the Defendant for Entring his Close and House in G. To which the Defendant pleaded in Justification That the Sheriff had directed a Warrant to him upon a Capias Utlagatum to Take one I. S. who as the Common Voice went was at the Plaintiff's House whereupon he went thither in a Foot-Path through the said Close and asked the Plaintiff's Leave to Enter his House to search for the said I. S. and the Plaintiff giving him Leave he Entred the same and not finding I. S. there returned the same way The Plaintiff took Issue upon the License and had a Verdict and to stay Judgment it was Objected That there was not any Replication for the Close or any Issue joyn'd thereupon so that all was Discontinued But per Cur ' Judgment shall be given for that which is found and that which is Discontinued is helped by the Statute of Ieofails Vide Hob. 176. where in Trespass the Defendant did plead That Locus in quo no Place being assigned was two Acres called B. in L. which was his Freehold And the Plaintiff Replied That Locus in quo was a Piece of Land containing Twenty Acres Al' quam c. To which the Defendant Rejoyn'd Quoad aliquam Transgr ' in praedictis viginti Acris Non Culp ' Upon which the Plaintiff joyn'd Issue and the Verdict found for him And to stay Judgment the Defendant moved That this was no Issue for there was no Twenty Acres nor Place certain in the Declaration Yet per Cur ' the Plaintiff shall have Judgment for tho' it be not in the Declaration yet cannot be said a Departure from the Declaration for both Parties agree the Trespass to be done at L. and so no Verdict out of the Matter nor Issue but a Verdict help'd by the Statute of Ieofails And see Goldesbrough's Rep. 158. where in Trespass for Entring the Plaintiff's House and breaking his Close the Defendant pleaded That the House and Close contain'd Twenty Acres and was his Freehold To which the Plaintiff Reply'd Quod locus in quo est unum Mesuagium to which he Entitles himself and because by his Replication he only made Title to a Messuage and did not maintain his Declaration which was the Mesuage and Close Awarded Nil Capiat per Billam Quaere If this amounts to any more than a Dis-continuance of the Close only and so help'd by the Verdict But Cro. Part 2. 528. In Debt upon four Bonds for payment of Mony three of them were Tried in London in Trinity Term and the fourth at Lent Assizes after and there was not