Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	discharge_v	execution_n	null_a	20	3	17.0497	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A43221	Maxims and rules of pleading, in actions real, personal and mixt, popular and penal describing the nature of declarations, pleas, replications, rejoynders, and all other parts of pleading, shewing their validity and defects, and in what cases they are amendable by the court, or remediable by the statute-law, or otherwise : likewise, which of the parties in his plea shall first offer the issue, and where special matter may be given in evidence upon the general issue : of demurrers upon evidence, of verdicts, general and special, and of bills of exceptions to the same, of judgments, executions, writs of error and false judgment, and of appeals, indictments, and informations and the pleadings relating thereunto / published from the manuscript of Sir Robert Heath ... ; with additions of new matter to every title, from all the reports since his time.	Heath, Robert, Sir, 1575-1649.	1694 (1694)	Wing H1340; ESTC R21584	172,855	372

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 Pop●'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

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 gra●ia Curiae and not of necessity And Mich. 14 Iacobi in C. B. The Case was That Judgment was given against one in the King's Bench upon which he was in Execution and had another Judgment a-against him in the Common Pleas in which Court the Sureties to save their Bail brought him to Bar by Habeas Corpus to render his Body but before that he had brought a Writ of Error in the King's Bench to reverse the Judgment in the Common Pleas but the Record was not removed In this Case the Court said That when a Man comes in to save his Bail he shall not be Committed if the Party do not pray it but when Error is brought before that he be in Execution it is a Supersedeas so that they cannot Commit him at the Prayer of the Party And Waller Praenotary said That the Bail is to render the Principals Body in Execution so that the Plaintiff may have it in Execution but here he cannot in regard a Writ of Error is brought and therefore the Bail shall be discharged Vide Latch's Rep. fol. 192 193. One had Judgment in Debt in the Common Pleas against the Defendant and there after the year without any Scire Facias took out a Capias against him and Arrested him and upon this he brought Error in the King's Bench where the Judgment was affirmed whereupon he was discharged and the Plaintiff took him again by a Capias ad Satisfaciendum without any Scire Facias out of the King's Bench and there this difference was taken where one is lawfully taken in Execution and after discharged by Writ of Error upon which Judgment is affirmed there a New Capias will not lie against him but Execution shall go out against the Sureties unless he will render himself but otherwise where one was never lawfully in Execution when the Judgment is reversed there he may be taken again Vide Rolls Abridgment 888. If in Debt against I. S.

he was obliged after the year to take out a New Writ of Debt And see by the Book of 5 Ed. 4. and Experience That where a Scire fac ' is had upon a Iudgment there shall be no Execution without a Garnish i. e. giving Notice or Warning to the Party or two Nichils returned Vide 19 Ed. 4. 5. where said That in all Cases where the Heir Executor or Administrator may sue to have an Execution of any thing recovered by the Ancestor Testator c. he must first have a Scire facias against the Party against whom the Judgment is had to warn him to shew Cause why Execution may not be had for him against the Defendant and then if he either make Default or at his Appearance cannot shew good Cause why Execution should not be had against him Execution shall be awarded for the Plaintiff as it should have been for him under whom he claimed Vide Roll's Abridg. 890. If one recover Damages of A. whereof part is levied by a Fieri facias but not all and A. dies the Plaintiff may have a Scire fac ' against the Heir at his Election And Idem 900. a Scire facias lies upon a Recognizance if the Conusor be dead against the Heir in general or against I. S. Son and Heir of the Conusor without suing of the Ter-Tenants for he shall have no Contribution against the Ter-Tenants And see Dyer 208. If a Judgment be had against one that hath Land who dies and the Land discends to his Heir after a Scire facias had he may have Execution of this Land in the Heirs hands by Elegit against him Vide Co. Lib. 5. 88. If a Judgment be had in the Common-Pleas and removed from thence by Writ of Error into the Kings-Bench and there confirmed within the year the Plaintiff may have the same kind of Execution in that Court as he might have had in the Common-Pleas without any Scire facias But by Hob. 196 197. where the first Action is laid there the Execution must be by Scire facias if it be had Vide Godbolt 76. where W. had Judgment in Debt in the Common-Pleas against F. and after the Year without Scire facias took out a Capias against him and Arrested him whereupon he brought Error upon the Judgment in the Kings-Bench where the Judgment was affirmed and F. was discharged W. took him again by an Alias Ca. sa without any Scire fac ' out of the Kings-Bench and upon that the Sheriff returned a Cepi It was Moved He might be discharged for that having been once in Execution in the Common-Pleas and set at liberty by Sureties in the Kings-Bench upon a Writ of Error he ought not to be taken again But deny'd by the Court. For there said That one being in Execution and discharged by Privilege may be in Execution again But 16 H. 7. 2. and 21 Ed. 4. 67. as also 8 H. 7. 10 12. contra Vide Cro. 1 Part 334. where Judgment was had in Debt by Husband and Wife for the Debt of the Wife as Administratrix of her former Husband and after Judgment and before Execution the Wife died the Husband brought a Scire facias and Scire feci being Returned had Judgment by Nichil dicit and held the Scire fac ' ought not to have been brought by the Husband but being done the Judgment thereupon though Erroneous must stand till Reversed by Error Next we shall consider What Plea or Matter will stay Execution For which see first 10 H. 6. 6. That in Debt or Scire fac ' upon a Iudgment or Redisseisin no Plea that the Defendant hath Error hanging of the first Judgment And so is 37 H. 6. 16. in a Scire facias in the Common-Pleas after the Record removed until it be Reversed For it s there said that 't is but Tenorem Recordi removed and that if nothing be done in the Kings-Bench upon Error or the Judgment be affirmed then at the Election of the Plaintiff in the first Judgment he may have Execution in the Common-Pleas quaere tamen But 19 H. 6. 7 8. if the Record be not removed or the Party be not delay'd the Court useth to grant Execution notwithstanding Error And so 7 H. 6. 42. if the Plaintiff in Error do not sue out a Supersedeas Execution shall be granted notwithstanding his Writ of Error be allowed But 4 H. 6. 31. no Debt or Scire fac ' after the Record be removed by Error unless for a Nomine poenae in the Annuity See more hereof afterwards in the Title Error Next What other Pleas one shall have in Bar of Execution See Brook 6. in Abridging the Case of 20 H. 6. a good Plea That formerly the Sheriff by another Writ levied the Mony or took the Body in Execution although the Writ was not Returned And so 21 H. 6. 5. where also 37 H. 8. and 19 Ed. 3. are Vouched somewhat differing The like 44 Ed. 3. 18 in a Scire fac ' upon Arrerages of Annuity although there Payment or Riens arrere be no Plea Vide Dyer 344. If a Judgment be against an Heir by Nichil dicit in an Action against him on the Deed of his Ancestor on a Scire fac ' he cannot plead Riens per Discent at the time of the Writ brought but Execution shall be against him of his own Lands by Elegit And see Godbolt 79. where Judgment was given on an Obligation of 400 l. and a Scire fac ' was sued on the same Judgment for 300 l. and the Party did not acknowledge that he had received the other 100 l. and held That the Scire fac ' should not Abate and that he should have Execution But by More Case 693. in a Scire fac ' on a Recognizance Joyntenancy will Abate the Writ Vide Noy 143. where A. recovered against B. in Debt and afterwards brought a Scire fac ' To which B. pleaded That A. was Outlawed and held a good Plea if he be Outlawed after the Plea in Bar pleaded in the Action of Debt But otherwise it is if he be Outlawed before for then B. might have pleaded that in Bar of the first Action And it was said there That the Mony being in Court if the King's Counsel pray to have it for the King they must shew the Outlawry sub pede Sigilli and he must confess himself the Party Outlawed And see Godbolt 96. where Debt was upon a Recovery in a Scire fac ' in London on a Recognizance taken in the Chamber of London and it was not shewed That it was a Court of Record and that they had been used to take Recognizances And Exception was taken to it and Cases put That though a judgment were void yet Execution might be by Scire fac ' and the party might not plead that in a Writ of Error And this difference was taken where Execution was sued on such a Judgment and Debt brought

or Riens passa ibid. Where an ill Plea is made good by Reference to another p. 167 Of Pleading Prout per Indenturam or Scriptum plenius liquet apparet p. 168 Of the words Quae sunt omnia singula c. in Pleading ibid. Of the words Quae est eadem Dimissio in Pleading ibid. Of the words Quod est idem Vastum in Pleading ibid. Of the words Et non alia neque diversa in Pleading p. 169 Of Pleading out of Time or Mispleading ibid. Where an ill Plea may be made good by Admittance ibid. Where the Defendant may waive his Pleading and betake himself to the General Issue p. 171 CHAP. VII p. 174 Of Repleaders or Ieofails CAuse of Repleaders ibid. Ieofail what ibid. At what Plea the Parties shall begin to Replead ibid. In what Place ibid. At what Ti●e p. 176 Statutes aiding Ieofails or Mis-pleadings viz. 32. H. 8. cap. 30. 18 Eliz. cap. 14. 21 Iac. 1. cap. 13. and 16 17 Car. 2. cap. 2. ibid. Observations upon the two first Statutes p. 177 Cases upon the said two Statutes p. 178 Of Matters Remediable by the Statutes of Ieofails p. 180 Of Matters not Remedied by the Statute of Ieofails p 189 Of the Statutes of 21 Iacobi and 16 17 Car. 2. concerning Ieofails p. 193 194 Observations upon the two last Statutes p. 197 What Defects in Pleading or otherwise are aided by the said Statutes ibid. CHAP. VIII p. 207 Of Intendment WHat Construction the Law doth make of the Intention of the Parties as to Contracts and other Matters ibid. CHAP. IX p. 212 Of Bills of Exception BIll of Exception what it is ibid. Need not de Rigore Iuris be allowed in Arrest of Iudgment ibid. Must be Sealed before and not after Judgment p. 213 CHAP. X. p. 214 Of Verdicts VErdict what ibid. Must be sufficient in Matter and Form p. 215 Damages where to be found entire where several ibid. Where a Verdict shall make ill Pleading good p. 216 Where the Verdict is contrary to other Matter of Record p. 217 Of Special Verdicts 218 Of what things the Jury may take Cognizance p. 220 How the Jury may find a Matter of Record p. 221 Spiritual Matters how to be found by the Jury 222 Where the Jury find a Specil Matter and Conclude contrary p. 223 Verdict varying from the Issue where good where ill ibid. Where the Jury find more than is in the Issue p. 226 Where tho' the Verdict be found for the Plaintiff yet he shall be Barred p. 227 Where the Jury gives divers Verdicts p. 228 Verdict must be by Twelve except by Writ of Inquiry ibid. Verdict de bene Esse ibid. Where the Verdict shall be void in part or a Ieofail ibid. Misdemeanor of the Jury where it shall make a Verdict ill p. 229 CHAP. XI p. 231 Of Iudgments OF the Forms of Judgments ibid. What Day Judgment shall be given p. 232 Where or in what Court Judgment shall be given ibid. Causes to stay Judgment ibid. Where Judgment shall be final p. 233 Where the Plaintiff may have Judgment for part and Relinquish the rest ibid. Of two Judgments in one Action p. 236 Where Judgment shall be with Cesset Executio ibid. CHAP. XII p. 238 Of Executions EXecution what ibid. Of the Method of obtaining Executions p. 239 Execution for Debt fourfold ibid. Against whom Execution by Capias will lye ibid. In what Cases Execution may be had by Capias p. 240 Of Executions by Capias pro Fine p. 241 Of Executions by Capias Utlagatum p. 243 Where Execution shall be had by Capias Fieri facias or Elegit p. 245 Upon Escape the Sheriff chargable in Action of Debt or upon the Case p. 248 Of Fresh Pursuit ibid. Old Sheriffs must give Notice to the New of those in Execution ibid. Where two bound joyntly and severally and in Execution and one Escapes and he brings Audita Querela and held not to lie p. 249 Whether the Defendant dying in Execution be a Discharge for ever as an Escape is ib. Elegit its force p. 251 Of what an Elegit may be sued ibid. Of Execution against Bail or Mainprise 252 Mainpernors what ibid. Bail what p. 253 Of the Writ of Scire facias what it is and where Execution may be had by Scire fac ' or without p. 258 What Plea or Matter will stay Execution 264 What other Pleas one shall have in Bar of Execution p. 265 Of the Writ Venditioni exponas where it is to be awarded and the power of the same 269 270 Of Execution against a Clerk upon the Retorn of Clericus est Beneficiatus p. 271 Where the Defendant may be Committed in Execution by the Court without Process ib. Of Executions in the Cinque-Ports Counties-Palatine or other Franchises ib. 272 Of the Sheriffs Breaking open a Door or Chest to do Execution ib. 273 274 How one in Execution shall be delivered without Payment p. 274 That the Party in Execution may be discharged by Error and Mainprise ibid. Where an Escape shall be a Discharge of the Execution for ever and where not 275 276 Death of the Defendant in Execution no discharge of the Debt p. 277 Discharge by Priviledge of Parliament 279 Of going at large by Baston Keeper or Tipstaff p. 280 Where the Act of the Court the Law or the Plaintiff doth discharge the Party of the Execution p. 281 Where the Sheriff shall be Fined for Disobeying a Supersedeas p. 282 CHAP. XIII p. 283 Of Error and False Iudgment ERror what ibid. Writ of Error what p. 284 Of a Writ of Error where it lies and the Statutes that concern the same p. 285 How one shall proceed to reform Erroneous Proceedings against him p. 286 Whether the Heir or Executor or Successor shall have these Writs of Error and False Iudgment p. 294 What Heir shall have these Writs p. 296 Of Estoppels in Assigning Error ibid. What shall not be Assigned for Error p. 297 Diminution what ibid. Of Error in Parliament p. 299 Of Amendments of Erroneous Proceedings ib. Of Error in Fines and Common Recoveries p. 306 CHAP. XIV p. 309 Of Appeals Indictments and Informations APpeal what ibid. Where the Heir shall not have an Appeal of Murder p. 310 How Appeals shall be brought by Infants 311 Of Pleading to Appeals p. 312 Of Indictments and the Pleadings thereupon and what will maintain or quash the same p. 317 Indictment what ibid. What shall quash an Indictment what not p. 320 Of Indictments of Nusances p. 325 Of the words Vi armis in an Indictment 327 Of the words Contra pacem in an Indictment ibid. Indictments quashed for Incertainty p. 328 Rule to distinguish where an Indictment and where an Action of the Case doth lye ibid. Information what p. 329 Of the Duty of an Informer ibid. Information must be laid in the proper County where the Fact was done p. 330 If the Informer dies or will not Prosecute the

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 Iudgmen● he may not have Execution till he have 〈◊〉 Summoned the Defendant to shew C●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

not the Plea over See 1 Cro. 247. Southby and Price's Case An Appeal of Murder was brought in A. being the next County to B. where the Murder was done the Writ shall abate For by 26 H. 8. cap. 6. Indictments may be in Counties next adjoyning but not Appeals By Yelverton 204. Bradley and Bank's Case and 2 Cro. 283. Discontinuance of Process in an Appeal is not aided by Appearance afterwards And by Yelverton ibid. Conviction with Clergy is a good Bar in Appeal And Idem 205. Non Culpabilis ad Murdrum Feloniam praedict ' is a good Bar in an Appeal of Manslaughter See Dyer 348 349. where A. Appeals one as Accessary to B. C. of D. in the County of E. who pleads Nulla talis persona in rerum natura as B. C. die impetrationis brevis nec unquam postea 'T is good tho' there be one named B. C. in another County And so it is if he were dead the Day of the Writ brought But 26 H. 6. 8. A. brings an Appeal and the Defendant pleads Nulla talis persona in rerum Natura die impetrationis brevis It seems not to be a good Plea for he should have pleaded Quod Quer ' obiit ante diem impetrationis brevis or Nulla talis persona unquam fuit in rerum Natura By Keilway 106 107. the Court will not suffer the Defendant to plead Variance between the Appeal and the Indictment and to Conclude to the Felony Vide eundem ibid. What Pleas are Peremptory in Appeals By Co. Lib. 3. fo 30. If a Stroke be struck in one County and the Party die in another County an Appeal of Murther may be brought in either of the Counties although nothing be done in that County where he died towards his Death By Co. Lib. 4. fo 47. one Appeal of Murder must be brought against all the Parties Principals and Accessories and not several Appeals and the Declaration must be against them all for the Wife brought an Appeal of Murder of her Husband against divers and afterwards brought another Appeal against others Resolved by the whole Court That all the said Appeals but the first should abate That she ought to have one Appeal against them all That she cannot have two Appeals of Death but ought to joyn all in one Writ That if one brings an Appeal of Death against divers and all but one makes Default yet the Plaintiff must declare against them all But by Keilway 83. In Murder an Appeal shall be first brought against the Principal and after that another against the Abettor So per eundem ibid. an Appeal of Robbery shall be first brought against the Principal and then against the Accessory An Accessory shall be discharged where the Principal before Judgment obtains his Pardon as appears by Co. Lib. 4. fo 43. where the Brother and Heir brought an Appeal of Murder against A. B. as Principal and C. D. as Accessory of the Death of his his Brother The Principal pleaded Not Guilty but was found Guilty of Manslaughter and had his Clergy It was Resolved in this Case 1. That the Accessory was discharged because he could not be guilty before the Fact in case of Manslaughter 2. Although the Principal was Convicted yet forasmuch as he had his Clergy before Judgment the Accessory shall be discharged So where the Principal upon his Arraignment confesseth the Felony and before Judgment obtains his Pardon the Accessory is thereby discharged Vide Cro. Car. 382 383. where an Appeal was brought against two one for Petty-Treason the other for Felony The Defendants pleaded Not Guilty the same Term in which the Appeal was Arraigned and therefore there was no other Declaration filed But if they had pleaded a Plea which was adjorned to another Term or had not pleaded that Term then it ought to have been filed And it was then agreed by the Court That the Plaintiff might take out one or several Writs of Venire facias for doubt of Challenge And see Co. Lib. 4. fo 45. That Auterfoits Indicted of Manslaughter and thereof Convicted and Clergy allowed was a good Bar in Appeal of Murder But contra if the Indictment be insufficient And see 6 Ed. 6. Dyer 88. where an Appeal is brought by a Woman of the Death of her Husband To which the Defendant pleaded Not Guilty and afterwards the Plaintiff took another Husband and it was Adjudged that the Appeal was determined by her Intermarriage See 3 H. 7. 5. where in an Appeal of Death one Challenged above 35 and had Judgment of Pein fort dure that is was Prest to Death So 21 Ed. 3. 18. Bro. Tit. Corone Pl. 43. fo 181. where one against whom an Appeal of Robbery was brought did stand Mute out of Malice and it was found by the Jury that he could Speak whereupon he was presently Condemned to be Hanged and the Appellor had his Goods But if it had been by Indictment at the King's Suit he should have had Judgment of Pein fort dure Lastly by Co. 3 Inst. 212 If the Defendant in an Appeal be Vanquished or Slain the Judgment is the same that is Suspendere per Collum And thus much shall suffice of Appeals In the next place We shall say something of Indictments and the Pleadings thereupon and what will Maintain or Quash the same An Indictment is an Accusation drawn and ingrossed in Form of Law in the nature of a Bill or Declaration against one for some Offence Criminal or Penal and presented to the Grand Jury to be Inquired of who in case they Find the same do write Billa vera upon it but otherwise do Indorse the word Ignoramus thereupon An Indictment is always at the Suit of the King so that he who Prefers it is no way tied to the Proof of it upon any Penalty except there appear Conspiracy It ought to be drawn with the greatest Exactness Curiosity and Certainty and the Day Year and Place must be sure not to be omitted Indictments are called Pleas of the Crown and are exhibited for Treason Felony Misprisions of Treason High Misdemeanors against the Common-Weal and all other Crimes which touch the Life or Mutilation of a Man and these cannot be Prosecuted in the Name of any one but the King because he only can Pardon them as Offences committed against his Crown and Dignity By Co. 3 Inst. 106 107. If any of the Grand Jury discover what persons are Indicted of Felony or Treason they are guilty of high Misdemeanour and shall be Fined and Imprisoned for thereby the parties Indicted may Escape Vide Co. 3 Inst. 230. and 4 Rep. Sier's Case where said That it is not necessary for the Coroner to set down the Day precisely in his Inquisition of Felony or Murder for if it be alledged to be a day before or after the Fact done the Jury ought to find the party Guilty and also find the Day when it was done and the Attainder shall relate to the Day found