Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	error_n	judgement_n	writ_n	2,999	5	10.1124	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

Nov. 24. 1693. I do Allow of the Printing of this Book R. Atkyns MAXIMS AND RULES OF PLEADING IN Actions Real Personal and Mixt Popular and Penal Describing the Nature of Declarations Pleas Replications Rejoynders and all other Parts of Pleading shewing their Validity and Defects and in what Cases they are Amendable by the Court or Remediable by the Statute-Law or otherwise LIKEWISE Which of the Parties in his Plea shall first Offer the Issue and where Special Matter may be given in Evidence upon the General Issue of Demurrers upon Evidence of Verdicts General and Special and of Bills of Exceptions to the same of Judgments Executions Writs of Error and False Judgment and of Appeals Indictments and Informations and the Pleadings relating thereunto Published from the Manuscript of Sir ROBERT HEATH Knight Lord Chief Iustice successively of the Courts of Common-Pleas and Kings-Bench in the Reign of King Charles the First With Additions of New Matter to every Title from all the Reports since his Time LONDON Printed for Abel Roper at the Mitre near Temple-Bar MDCXCIV TO THE READER THE Author of this Incomparable Treatise made the Sentiments of the Great Littleton his Rule in Chusing that Subject He so much Commendeth in his Tenures viz. The Science of good Pleading as the most Nice and Critical Part in the Study of the Law which He hath Manag'd in such an Extraordinary Method that all Men of Sense of that Profession cannot sufficiently enough Admire and Value this His most Excellent Discourse of Pleading suitable to the Greatness of his Performance therein To do him Iustice No Person among the Writers of the Common Law hath been more happy in the Contrivance of his Design being so Concise and his Matter so handsomly Couch'd that I must beg the Reader 's Pardon if I confess it to be very difficult to Imitate him without taking up as much Time as He was pleased to allow himself which by the way was not within the Limits of my Province However I have so far taken Care to come near him that the Author himself if he were alive would not I presume altogether dislike what I have done But the greatest Obstacle I am to remove is what some Persons who have seen the Original do Object That it is only taken from the Year-Books Plowden ' s Commentaries and Dyer ' s Reports Things probably good in their Times But alas say they what 's that to the most Refin'd Polite and never enough Valued Equalled much less Out-done Reports Abridgments Tracts c. since their Times Tho' these are not wanting in our Composition I think to all this I may modestly Answer That the Year-Books are the very Foundation of the Law Plowden and Dyer perhaps Inimitable and I hope this may be further said without Offence That had it not been for the Clear Pespicuous Light of the Year-Books the later Reporters would have but grop'd as it were in the Dark and been beholden too much to that incertain Goddess Experience the Mistress of Fools as accounted by the Learned which how far Experimental Knowledge differs from Right Reason drawn by Succession of Time from the Maxims and Rules of the Ancients in all Ages I leave the Reader to guess at and if he Doubts to Consult his Coke upon Littleton W. B. MAXIMS AND RULES OF PLEADING CHAP. I. Of Counts or Declarations A Declaration is the setting forth comprizing or exhibiting in Writing the Cause of Action in any Suit or Plaint grounded upon the Common or Statute Law wherein the Party supposeth himself to be injured This hath been by some supposed in an Action Real to be most properly termed a Count but that being a Norman or Law French word is frequently if not as often used in our Books in all other Actions whether Personal or Mixt for a Declaration A Count or Declaration therefore being Terms equivocal and so used in the following Discourse ought principally to contain Three things First The Plaintiffs and the Defendant's Names which in Actions Real are called Demandant and Tenant and the Nature of the Action and this by some is termed the Demonstration or Demonstrative Part of the Count. Secondly The Time the Place and the Act in which ought to be comprehended How and in what manner the Action did accrue or first arise between the Parties When what Day what Year and what Place and to Whom the Action shall be given which is called the Declarative Part of the Count. And Lastly The Perclose or Conclusion which is Unde deterioratus est c. In which the Plainti●f ought to Aver and Profer to prove his Suit and shew the Damage he hath sustained by the Wrong and Injury done unto him by the Defendant And this Definition consisting of a Tria somewhat resembling the Logical Major Minor and Conclusion some of the Ancients among whom none more fond of it than Mr. Fleetwood the Famous Recorder of London conceived to be a perfect Syllogism The Statute of 36 Ed. 3. cap. ult seemeth to help want of Form in Counts in these words By the Ancient Terms and Forms of Pleaders no Man shall be prejudiced so that the Matter of the Action be fully shewed in the Declaration and in the Writ However it was always at least so presumed by the most Eminent Pleaders and Sages of the Law by drawing this Conclusion from the words Count ne abatera pur default de Form issint que eyt Substance that is to say in English A Declaration shall not abate for want of Form so that it hath substance But Counts are more especially Relieved when defective by the Statute of 18 Eliz. cap. 14. of Jeofails after Verdict although they want Form or Agreement with the Register Note well the Statute and what Cases are remedied by the same For notwithstanding the Statute of 36 Ed. 3. before recited there is holden a Maxim in our Books That It sufficeth if a Bar be good to Common Intent but a Count in the Substance thereof must be good to every Intent And so is 3 H. 7. 11 12. where the Retorn of a Writ of Rescous was adjudged ill because the Sheriff named no Place where the Rescous was made the Retorn of a Sheriff resembling a Count which must be good to every Intent And so is 3 Ed. 4. 21. That a Declaration must be certain to every Intent And yet In some Cases a Count shall be holden good by Intendment as 3 H. 6 35. the Plaintiff in Debt did Declare upon an Obligation made at D. which extended into two Counties yet it shall be taken without other Declaration to be made in the County where the Action is laid where Note that the County is not by express Name declared And 20 H. 6. 23. the Plaintiff in Account did declare that the Defendant was Receiver until the Feast of St. Michael but shewed not which St. Michael and by Intendment shall be taken for St. Michael the Archangel

upon the Evidence no more than in Fogassa's Case because but one Witness for that the Jury may upon their own Knowledge give a Verdict without Evidence Nor in any Case may one Demur upon Evidence unless he will admit the Evidence to be true Nor without the Consent of the other Party as it seems which according to the Opinion of many may put himself upon the Jury to find a Verdict which they may do either Generally or Specially at their pleasure which if they do Specially they avoid all occasions of Attaint See for Demurrers in Evidence the Books following viz. 9 H. 6. 33. where it is said That upon a Matter in Law the other Party may Demur in Law for it belongs not to the Lay-Jury to Judge thereof but that it seems ought to be such a Matter that the Judge must take to be doubtful And so in the before-cited Case of Fogassa That the King's Attorney did Demur upon the Evidence and that as it there appears whether the other would agree or not But whether so in Newse and Scholastica's Case quaere And see the Book of 34. H. 6. 36. where the Plaintiff in Annuity by Prescription shewed a Deed in Evidence within time of Mind and the Defendant prayed That the Evidence might be Entred and he would Demur upon the same and the Plaintiff would not agree to it quod nota But if the Court think the Evidence good the other side may as in Tatam's Action upon the Case 27 H. 8. desire the Justices to Seal a Bill of Exception which in the Writ of Error he may alledge and not in Arrest of Iudgment ex Rigore Iuris And see Dyer 6 H. 8. 2. where in Debt against an Executor the Defendant did plead plene Administravit and gave in Evidence a Redemption of a Pledge with his own Mony upon which the Plaintiff did Demur and by Assent of both Parties the Jury was discharged quod nota And so seems Experience at this day that in Demurrer on Evidence the Consent of both Parties is requisite CHAP. V. Of Special Issues and manner of Ioyning them IN the next place we shall Observe the Manner and Form of Ioyning other Issues that is to say Special being such as are different from the General Issues we have already treated of in respect of the Special Matter contained in them And First by 26 H. 8. 3. if the Issue be Joyned on the Defendant's part then must it be Et de hoc ponit se super Patriam but if upon the Plaintiff's part then in this manner Et hoc petit quod inquiratur per Patriam and so is Dyer 18 Eliz. 253. But then it ought to be known as that which is very Material in Pleading which of the Parties in their Pleas shall first Offer the Issue where holden generally in that Title in Brook That he which Pleadeth the first Negative shall as before Conclude the Issue And yet Ibid. 2 H. 7. 4. the Defendant in Debt upon a Lease did plead That the Plaintiff Riens ad tempore dimissionis without such Conclusion and the Plaintiff said That I. S. did him Enfeoff Et sic ussoit c. Et hoc petit quod inquiratur per Patriam And Ibid. 11 H. 4. 19. Issue shall be always Joyned upon a Negative after an Affirmative alledged before or è contra And Ibid. 9 Ed. 4. 36. If the Defendant do plead in the Negative to the Writ the Plaintiff shall Reply in the Affirmative and Conclude the Issue And Ibid. 7 H. 6. 43. It appears That if the Plaintiff declares in the Negative as in Disceit That the Defendant did Sue the Plaintiff in Debt in the Name of N. absque voluntate sua it sufficeth for the Defendant to say Que il sua per son Assent Et de hoc ponit se super Patriam quod nota And Ibid. 19 H. 6. 1. the Defendant did plead to the Writ That he was abiding at Dale and no Plea without saying also and not at B. as the Plaintiff did Name him because the Issue shall always be upon a Negative And there it appears that one of the Defendants in Trespass pleaded That one of his Companions was dead the day of the Writ purchas'd no Plea for the Plaintiff to Reply Que il fuist en vie al Dale but must also say Et nemy mort quod nota As to say by way of Replication in the like Case Mulier nient Bastard or Frank nient Villein Et hoc petit quod inquiratur per Patriam quod nota And so 11 H. 4. 90. the Defendant pleaded the Freehold of J. S. c. and the Plaintiff Replied that it was his Freehold he must say also Et nemy le Franktenement J. S. or Absque hoc que est le Frank enement J. S. c. And it appears 18 Eliz. Dyer 353. That he who taketh the Traverse by Absque hoc ought not properly to Conclude the Issue but the other Party beginning his Plea with Ut prius dicit c. may It appears also by 33 H. 6. 22. That he who pleads Partes ad Finem nichil habent or doth Counterplead the Possession or pleads Ne unque seisie que Dower Ne dona pas Nul Tort Non Culpabilis and the like because these Pleas be in the Negative he shall Conclude with the Issue Et de hoc ponit se super Patriam But 12 Eliz. Dyer 290. in the Plea of Partes ad Finem c. the Party that did plead the same had his Election to Conclude the Issue or not See also 2 3 Mar. Dyer 121. That where the Defendant did plead in the Negative as in an Action upon the Case he did Traverse the Sale and did not Conclude Et de hoc ponit se super Patriam but with Unde petit Iudicium si praedictus Quer ' Actionem suam praedictam versus eum habere debeat c. and yet good because a Perfect Issue may be Joyned thereupon quod nota Nevertheless in some Cases Issue shall be taken upon Affirmatives without Negatives As 6 Ed. 4. 6. Where the Defendant in Replevin doth Avow as within his Fee The Plaintiff may Reply Hors de son Fec prist And so in Debt against an Executor who pleads Pleinment Administer and the Plaintiff Replies Assets And in a Writ of Right the Tenant pleads That he hath better Right c. and the Plaintiff Replies That he hath better Right to Demand c. which is somewhat doubted in 32 H. 6. 25. touching the Plea of Hors de son Fee Next in Order Of Tender and Refusal in Pleading Tender in our Law signifies Carefully to Offer or circumspectly to Endeavour the Performance of any thing belonging to us And Refusal is the Denying or Refusing to accept of the same when offer'd As by 16 H. 7. 13. In Debt upon an Obligation the Defendant pleaded a

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

Issue viz. Et de hoc ponit se meaning the Defendant super Patriam Et praedictus Willielmus the Defendant again for Iohannes the Plaintiff similiter Per Cur ' these are but Misprisions of the Clerk and not Errors and shall be amended being like to the Mistake in 10 H. 7. 23. and 11 H. 7. 2. where Defendens was written for Querens and Iohannes for Rogerus and amended by the Advice of all the Justices And by Coke Chief Justice Misprisions were amendable the same Term at the Common Law because during the Term the Record is said to be in pectore Iudicis and not esteemed to be on the Roll so absolutely but that they may amend the same at their Discretions But the Justices of the Common-Pleas after a Writ of Error cannot at all amend the Roll where a Judgment was given the same Term and is mistaken in the Entry because the Roll is not a Record of that Term. And by 5 Ed. 3. this was so at the Common Law until the Statute of 14 Ed. 3 gave power to amend Misprisions in another Term. But 46 Ed. 3. the Case was that Defendens was mistaken for Querens but could not be amended because an Old Roll and the Statute gives Power only to amend New Rolls of the same Term they are Entred By the Statute of 26 H. 8. the Justices of the Common-Pleas have Power to amend a Plea-Roll in Misprision only but not Omissions Misprisions are Vicia Scriptoris Faults of the Clerk as the Declaration varying from the Writ or the Roll from the Original or the Mean or Judicial Process these by 19 H. 6. shall be amended if it be only in default of the Clerk But if in a Plea that be Omitted which should be Averred this shall not be amended because it ought to have been part of the Plea and cannot be said to be any Default of the Clerk but a meer Omission which makes the Plea imperfect So Mich. 5 6 Mar. Dyer 164. a Record came out of Ancient Demesn in Banco by Writ of False Iudgment and the Writ was Sub sigillo suo sigillis quatuor legalium hominum ejusdem Curiae which according to Fitzh Nat. Brev. fo 18. b. ought to have been per quatuor legales homines c. upon which the Court doubted if it might be amended but seemed to be of Opinion That the Plaintiff might have a New Writ to the Justices of the Common-Pleas to Authorize them to proceed to discuss the Errors in the Record which lay before them So 2 Mar. Dyer 105. a Common Recovery was suffered to Bar the Issue in Tail and the Warrant of Attorney was That Alicia po lo. suo for Elizabetha also the Writ of Error was de loquela quae fuit in Cur ' nostra coram Iustic ' nostris per breve nostrum It was a Quaere if it were amendable but Resolved in Blackmores Case Co. Lib. 8. fo 152. quod vide nota And see Brownl Rep. 2 Part fo 300. where a Writ of Error was brought by Frances Fulgham against Sergeant Harris in this manner Praecipe c. quod c. Franciscae Fulgham Viduae contrary to the Form of the Register which is quae fuit Uxor and not Widow and the subsequent words were rationabilem dotem Tenementorum quae fuerunt Francisci Fulgham quondam viri sui Per Cur ' this is Error for tho' it varies not in substance yet because it is contrary to the Form of the Register it shall not be amended So Cro's Iacobi 21 Merrel's Case in a Writ of Error of a Judgment in the Common-Pleas in Ejectment it was assigned for Error That the Plaintiff declared that I. S. 25 Martii Anno sexto Iacobi had demised to him for Seven years by virtue whereof he Entred and was thereof possessed until the Defendant postea scilicet Anno sexto did oust him After Imparlance the Plaintiff made a Second Declaration wherein he supposed the Ejectment to be done 26 Maii Anno supradicto and of this Ejectment the Writ was brought it was found against the Defendant and Judgment for the Plaintiff and whether it was Erroneous because no day was mentioned in the first Declaration was the Question Agreed That the first Declaration is the Principal and if any Matter of Substance be omitted in it it cannot be helped or amended by the second for that is but a meer Recital and therefore if the first be not good the Trial is Erroneous But per Cur ' the first Declaration was good for the Demise is laid to be 25 Martii sexto Iacobi which is the first Day of the year and the postea scilicet 6 Iacobi that the Defendant Ejected him is certain enough for the Year when the Ejectment was made and the Day of the Ejectment are not material being before the Action brought Then Of Errors in Fines upon Writs of Covenant and Common Recoveries upon Writs of Entry in the Post. For which see first Brownl Rep. 2 Part fo 300. where upon a Fine the first Proclamation was made in Trinity Term 5 Iac. the second in Michaelmass Term 5 Iacobi the third in Hillary Term 6 Iacobi when it should have been Hill 5 Iacobi and the fourth and fifth Proclamations were in Easter Term 6 Iacobi Per Cur ' This is palpable Error for the fourth Proclamation was not entred at all and the fifth was entred as of Hillary Term 6 Iacobi when it should have been of Hillary Term 5 Iacobi and so cannot be amended because it was of another Term. And see Cro's Iac. 77. Earl of Bedford's Case where in a Writ of Error to Reverse a Fine it was assigned for Error that the Writ was Praecipe c. quod teneat c. Conventionem c. de octo Mesuagiis duobus Toftis decem Gardinis and it was Certified de octo Mesuagiis decem Gardinis c. and Adjudged no Error But see Cro's Caroli fo 300. Done and Smithy's Case where a Writ of Error was brought to Reverse a Fine levied by Baron and Feme and others and the Writ of Covenant wat directed to the Coroners with this Clause fiat Executio brevis praedict ' per Coronatores ita quod Vic' se non intromitteret because the Sheriff was one of the Cognizees and this was Objected for Error because as there said if the Sheriff had been sole party to the Fine yet the Writ ought to have been directed to him because but a Summons for the Sheriff may summon himself But Resolved to be Error because a Doubt in Law if the Sheriff as Plaintiff may Execute a Writ upon himself and therefore the general Course is to direct the Writ to the Coroners to avoid such Doubt And see Co. Lib. 5. fo 38. Tey's Case where A. and B. his Wife levied a Fine of divers Mannors Lands and Tenements to I. S. and I. D. in several Towns in the County of E. in

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 Sur●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

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 Ann● 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 c●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 Hob● 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

it cannot be so Intended of the Court. And a New Trial was Awarded And see Co. Lib. 5. 120. Long 's Case where in an Indictment of Murder Error was alledged because the Indictment was said to be taken before W. S. Coronatore Dominae Reginae infra Libertatem dictae Dominae Reginae Villae suae de Cossam praedict ' per Visum Corporis and it was not alledged to what Places the Liberty did Extend nor what part or any part of the Town of Cossam was within the Liberty So as it doth not appear that the Coroner had Jurisdiction and it was said That Indictments which do concern Life and which are the King's Counts ought to have a plain and precise Certainty to which the Party may answer and shall not be taken by Argument But Resolved by the Court that the Indictment was good enough For if an Indictment be Certain to a general Intent the same is good enough And in this Case the Indictment is certain enough to a general Intendment because Cossam is within the Liberty of Cossam and that the Town it self shall be Intended to be out of the Liberty of the Town is a strain'd Construction which the Law will never allow of And see Co. Lib. 4. 65. Fulwood's Case Mich. 33 Eliz. where A. being seised of a House in London acknowledges a Statute to the Chamberlain of London for Orphanage-Mony according to the Custom and afterwards acknowledges another Recognizance before the Recorder and Mayor to B. who sued Execution thereupon and had a Liberate but it was not Returned and the Sheriffs upon that delivered the House in Execution to B. The Successor of the Chamberlain sued Execution upon his Recognizance by Elegit to the Serjeant at Mace Amongst other Matters in this Case it was Objected That here was no Recognizance in the nature of a Statute found for the Jurors have found Quod A. veniebat coram Recordatore Civitatis London T. O. Majore Stapulae Et recognovit se debere B. 200 l. and doth not say Secundum formam Statuti c. nor Per scriptum suum Obligatorium Whereas the Statute of 32 H. 8. provides that it shall be by Bill Obligatory sealed with three Seals But it doth not appear by the Verdict that it was according to the Statute and although that Verdict being the words of Lay-men shall be taken according to their meaning and there needs not so precise Form in them as in Pleading yet the Substance of the Matter ought to appear either by Express words or by words Equivalent so as there ought to be a convenient Certainty the which if it be false the Party for such Falsity may have an Attaint But it was Resolved that the Verdict was good for inasmuch as they have found a Recognizance before the Mayor and Recorder c. It shall be in a Verdict of Lay-men Intended according to the Statute for otherwise they cannot take any Record and also the sequel of the Verdict doth imply That there was a Recognizance in the Nature of a Statute otherwise no Execution could be sued thereupon CHAP. IX Of Bills of Exception THen touching Bills of Exception This as it seems by 27 H. 8. in Tatam's Action upon the Case is when one of the Parties for the Insufficiency of the Evidence on the other side as he conceives it doth offer to Demur upon the same and the Court thinking it to be good or the other Party Refusing the same do not Agree to it then the Court ought upon Request to Seal to the Party so refusing this Exception in a Bill which upon a Writ of Error as appears by Fitzh Nat. Brevium may be assigned for Error whereupon by the Statute a Writ if need be is to be Awarded to those Justices to acknowledge or deny their Deed but as it seems by the said Book of 27 H. 8. need not de Rigore Iuris be allowed in Arrest of Iudgment And it appears by Fitz. Natura Brevium and 11 H. 4. That this Bill must be Sealed before Iudgment and not after For the Formal Drawing up of Bills of Exception see one to the Evidence upon the Trial at the Assizes in an Action of Trespass Assault and False Imprisonment brought by Verdon against Decele Heyward and others in the King 's Bench Hill 33 34 Car. 2. in Brownl Latine Redivivus Tit. Bills des Exceptions and ibid. Mich. 32 Car. 2. where a Writ of Error was brought in the King 's Bench at Westminster upon a Bill of Exception to Evidence upon a Trial at the Bar of the Common-Pleas Court in Ireland upon an Ejectione firmae with some others there under the same Title CHAP. X. Of Verdicts A Verdict is the Answer of a Iury made upon any Cause committed by the Court to their Trial Which is twofold Special or General A Special Verdict is when they say at large That they find such and such Matters to be done by the Tenant or Defendant so declaring the Course of the Fact as in their Opinions it is proved and as to the Law upon the Fact they pray the Advice of the Court thereupon And this Special Verdict if it contain any ample Declaration of the Cause from the beginning to the end is also called a Verdict at large Whereof see divers Examples in Stamford's Pleas of the Crown Lib. 3. cap. 9. A General Verdict is that which the Jury find in General Terms upon a General Issue As in an Action of Disseisin the Defendant pleads No Wrong No Disseisin then the Issue is General whether the Fact be a Wrong or not which being put to the Jury they weighing the Evidence do either bring in their Verdict for the Plaintiff That it is a Wrong and Disseisin or for the Defendant That it is No Wrong No Disseisin Vid. Co. 1 Inst. fo 228. a. and New Book of Entries Tit. Verdict First As to a Verdict it must be sufficient in Matter and Form be the same Special or General as if the Jury do not Assess Costs and Damages where the same ought to be found and the like And therefore 21 Ed. 4. 11. where a Tender of Homage was found to be made and not shewed in what County the same was ill Quaere thereof for it appeared in the Pleading c. Next where the Damages are to be found entire or several Touching which see a good Case in 1 Ed. 5. 5. where the Plaintiff did Count in Detinue of Damages touching every part in several and the Jury found for the Plaintiff to the Damage of Twenty Pounds entirely if the Things could not be had where by the Better Opinion the Damages ought to be found several as the Declaration was See the same Case more at large in Bro. Tit. Count and so is 3 H. 6. 43. And by 9 H. 6. 66. in Wast the Iury ought to sever the Damages for every several Tree and every several Parcel but in a Writ to Enquire of

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 qu●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 〈◊〉