
 
 <^ 
 
 >«=> 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 Farrand 's Premium Edition. 
 
 THE 
 
 PRACTICE 
 
 OF THE 
 
 COURT OF KING'S BENCH 
 
 IN PERSONAL ACTIONS: 
 
 WITH 
 
 REFERENCES TO CASES OF PRACTICE 
 
 IN THE 
 
 COURT OF COMMON PLEAS. 
 
 IN TWO VOLUMES. 
 
 VOL. IL 
 
 first american, 
 :fuom the corrected and enlarged londod edition- 
 
 By WILLIAM TIDD, Es(^. 
 
 OF THE inner TEMPLE. 
 
 PHILADELPHIA: 
 
 PUBLISHED BY WILLIAM P. FARRAND. 
 1807.
 
 
 TO THE PUBLIC. 
 
 In order to insure correctness the publisher of this book has 
 subjected it to a critical examination in the following manner 
 —Two proof-sheets have been put up for public examination ; 
 one at the publisher's counting-house, the other at the city 
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 designated d^ premium edition. 
 
 
 PRINTED BY TRY AND KAMMEREU, 
 Printers of W. P. Farrand's premium editione
 
 [ 665 ] 
 CHAPTER XXXI. 
 
 O/MAKiyiG UP, and entering the Issue. 
 
 A N issue is defined to be a single, certain, and 
 material point, issuing out of the allegations or 
 pleadings of the plaintiff and defendant ^; but it more 
 commonly signifies, the entry of the allegations or 
 pleadings themselves : And it is either in iaWj upon 
 a demurrer, or in fact, which is triable by the court, 
 upon nul del record, or by a jur}^, upon pleadings 
 concluding to the country. 
 
 An issue in fact triable by a jury, is either such 
 as arises in the course of an adverse suit, or is 
 directed by some court of law or equity, or framed 
 under the authority of an act of parliament, for the 
 trial of a disputed question; which latter is called a 
 feigned issue ^ Two or more issiles are sometimes 
 joined in the same cause ; as where the defendant de- 
 murs and pleads to different counts of a declaration, 
 or the plaintiff demurs and replies to different pleas, 
 or where, in an action against two or more defen- 
 dants, they appear by different attornies, and sever in 
 pleading. 
 
 The 
 
 « 
 
 » Co. Lit. 1 26. a. «> Append. Chap. XXXL $ 37 
 
 Vol IL B
 
 666 OF MAKING UF, AND 
 
 The issue, as dependent on the pleadings, \% gene- 
 ral or special. In every action, wherein the defendant 
 pleads the general issue, or demurs generally to the 
 declaration ; on a plea oiplene administramt by an ex- 
 ecutor or administrator ; in debt^ where the defendant 
 pleads a special non est factum^ comperuit ad diem to a 
 bail-bond, or nul tiel record to an action on a j udgment 
 or recognisance ; in coiienantj where hisplea concludes 
 to the country ; and in trespass^ where he pleads son 
 assault demesne^ liherwn tenementum^ or not guilty to 
 a new assignment ; the issue is made up, on treble- 
 penny stamped paper, by theattornies; who likewise 
 make up all issues and demurrers upon writs of error, 
 scire facias, ^ax^auditaquerda^ and repleaders, or other 
 matters formerly entered of record '^. In all other 
 cases, both by bill and original, the issue, or as it is 
 commonly termed, the paper-hook, or upon an issue 
 in law, the demurrer-hook, is made up by the clerk 
 of the papers '^; who charges the plaintiff's attorney 
 eight pence per sheet for the whole book, zn^-four 
 pence per sheet for all the pleadings subsequent to 
 the declaration, (which the plaintiff's attorney fur- 
 nishes him with a copy of,) besides stamps. 
 
 Formerly, 
 
 -- R. T. 12 W. III. a. d Say. Rep. 97. but see 2 Str.1266.
 
 ENTERING THE ISSUE. 667 
 
 Formerly, when the plaintiff in his replication con- 
 cluded to the country, or demurred, the issue could 
 not have been made up, till a four-day rule had been 
 given and expired, to rejoin, or join in demurrer; but 
 the practice in that respect is now altered, it being a 
 rule, that in all special pleadings, where the plaintiff 
 t^kes issue upon the defendant's pleading,or traverses 
 the same, or demurs, so as the defendant is not let in 
 to allege any new matter, the plaintiff may make up 
 the paper-book, without giving a rule to rejoin "": but 
 otherwise a rule must be given for that purpose, un- 
 less the defendant be bound, by a judge's order, to 
 rejoin gratis. 
 
 The issue contains an entry or transcript of the 
 declaration, and other subsequent pleadings *"; 
 and in actions by bi//y should be made up of the 
 term in which it is joined^: And it is prefaced 
 with a memorandum, stating the exhibiting of the 
 bill, and that there are pledges for the prosecu- 
 tion of it ''. The reason for a memorandum \s, 
 that proceedings by bill were formerly considered 
 as the bye-business of the court ': And it varies 
 in four cases: first, when the issue is of the same 
 term in which the cause of action accrued; se- 
 condly, when it is of a term subsequent to the 
 
 cause 
 
 e R.T. 1 G. II. a. ^ Append. Chap. XXXI. $ 
 
 f Append. Chap. XXXI. § J, &c. 
 
 1, Sec. i Oilb. C.P. 47. 
 K 3 East, 204. 
 
 I
 
 668 or MAKING UP, AND 
 
 cause of action, but of the same term with the decla- 
 ration ; thirdly, when it is of a term subsequent to 
 the declaration, and within four terms after; fourthly, 
 when it is more than four terms after the declaration. 
 In the first case, the memorandum is specialj^stating 
 the bill to have been exhibited on a particular day in 
 term, after the cause of action accrued : In the se- 
 cond case, it states the bill to have been exhibited on 
 the first day of the term in which the declaration was 
 delivered : In the third and fourth cases, it pursues 
 the fact, but with this difference, that in the third case, 
 the term of exhibiting the bill is referred to as last 
 past, and in the fourth, as in a certain year of the 
 king^s reign. 
 
 The bill or declaration then follows ; and afterwards, 
 if the plea be of a term subsequent to the declaration, 
 the issue by bill contains the entry of an imparlance ^ ; 
 which, we have seen, is general or special. Where a 
 special imparlance is necessary, to enable the defen- 
 dant to plead any particular plea, it must be entered 
 in the issue ; but otherwise the entry of a general im- 
 parlance is sufficient : And it is not necessary to en- 
 ter more than one imparlance, though several terms 
 have intervened between the declaration and the 
 plea ^. When the replication is of a term subse- 
 quent to the plea, it is usual for the clerk of the 
 
 papers 
 
 J Append. Chap. XXXI. § 2. k Id, ibid.
 
 ENTERING THE ISSUE. 669 
 
 papers to insert continuances in the paper-book ; but 
 this does not seem to be necessary ^ 
 
 The pleadings are next copied, in their proper or- 
 der, beginning each with a new line ; and under them, 
 the clerk of the papers is directed to write the names 
 of the counsel by whom they are signed, as well on 
 the part of the plaintiff, as of the defendant "". For- 
 merly, if there had been a plea in abatement, upon 
 which a respondeas ouster was awarded, and after- 
 wards the defendant had pleaded in chief, it was ne- 
 cessary to enter the plea in abatement, and judgment 
 of respondeas ouster, in making up the issue, as well 
 as the plea in chief"; and where they were entered 
 in the plea-roll, but omitted in the record of Nisi 
 PriuSj the court on that ground arrested the judg- 
 ment, the record of Nisi Prius not appearing to be 
 in the same cause ". Afterwards a rule was made, 
 that for the future, a copy of the plea in chief only 
 should be delivered and paid for p; and agrecably 
 thcreto, where the plea in abatement, and judgment 
 of respondeas ouster^ were omitted in the plea-roll, the 
 court held rfie omission to be immaterial; particu- 
 larly, as the defendant had accepted and paid for the 
 issue '^. 
 
 An issue in fact by bill, Avhen triable by the 
 country, concludes with the award of the 'venire 
 
 facias, 
 
 1 5 Co. 75. 447. 5 Mod. 399. 12 Mod. 
 
 ■n R. E. 18 Car. II. 119.S. C. 
 
 " 7 Mod. 51. 1 Salk. 5. p 7 Mod. 51. 1 Salk. 5. 
 
 « 4 Ld. Raym. 329. Carth. i 3 Bur. 1.682.
 
 670 OF MAKING UP, AND 
 
 facias^ or process to bring in the jury, as follows: 
 " Therefore let a jury thereupon come^ before our lord 
 '* the king at Westminster, on (the return of the writ, 
 " being a day certain), by whom^ £sV. and ixiho nei- 
 " ther^ %sc. to recognise ^ ^c. because as 'mell^ £s?c. *"; 
 " the same day is given to the parties aforesaid, 
 " at the same place ""^ If there are several issues 
 in fact, triable by the country, the conclusion is as 
 follows " Therefore as well to try this issue, as the 
 *' said other issue, or issues, above joined between the 
 " parties aforesaid, let a jury thereupon come, £s?c*.'* 
 Or if there are several defendants, who pleads sepa- 
 rately, the award of the venire facias states between 
 whom the different issues are joined, thus: " There- 
 ^^ fore as well as to try this issue, as the said other 
 *' issue, or issues, above joined between the said A. B. 
 *' and C. D. ^c. let a jury thereupon come, £?*^"," 
 
 Where there are several defendants, some of 
 whom plead, and others let judgment go by de- 
 fault, the venire facias is awarded specially, as 
 well to try the issues, as to assess the damages 
 against the latter defendants. In this case, as it 
 is a rule that tlie jury who try the issues, shall 
 
 assess 
 
 "■ For the explanation of * Apend. Chap. XXXI. 
 
 these et cetera, see the writ of § 1- 
 
 ■venire facias, fiost. Chap. ^ ld.% S, 
 
 XXXV. ^Id.^7.
 
 ENTERING THE ISSUE. 671 
 
 assess the whole of the damages ' , there is an en- 
 try of an iinica taxatio as follows: " And because it 
 " is coni}e7iient and necessary that there be but one 
 " taxation of damages in this suitj therefore let the 
 '■^ gimng of judgment in this behalf against the said 
 " CD. (the defendant who let judgment go by de> 
 " fault) be stayed^ until the trial and determination of 
 " the said issue., or issues, above joined between the 
 " said A. JB. and the said E. jp." (the other defen- 
 dants "). 
 
 If there be several issues, in fact and in law, the 
 award of the 'venire is, as well to try the former, as 
 to assess the damages upon the latter; absolutely , if 
 the issues in law have been already determined in fa- 
 vour of the plaintiff, or othtrwist conditionally, in case 
 judgment shall be thereupon given for him". In these 
 cases, if the issues in law are first determined, and 
 the plaintiff is in consequence entitled to damages 
 upon part of the declaration, or against one of seve- 
 ral defendants, there is an entry of an unica taxatio, 
 to postpone the assessment of such damages, until 
 the trial of the issues in fact : But if the issues in 
 fact are first tried, an unica taxatio is unnecessary; 
 for in such case, the jury who try the issues in fact 
 will of course assess the damages. 
 
 In 
 
 V II Co. 5, 8cc. w Append. Chap. XXXT. M- " ^d. § 6.
 
 672 OF MAKING Vt, AND 
 
 In actions by original^ the issue is entitled of the 
 same term as the declaration y ; and begins with a 
 copy of the declaration, without a inemorandum'^: 
 And it is not necessary to enter imparlances % if the 
 pleadings are of a subsequent term ^.This however is 
 sometimes done ; and imparlances are commonly en- 
 tered by the clerk of the papers, between the plea and 
 replication '', where they are of different terms, in 
 making up the issue by original, as well as by bill. 
 The award of the 'venire facias by original, is as fol- 
 lows: " Therefore it is commanded to the sheriff ^ that 
 " he cause to come before our lord the king^ on (a gene- 
 " ral return day,) wheresoever he shall then be in Eng- 
 " land, twelve J ^c. by whom, ^c. and who neither, 
 *' l^c. to recognise, ^c. because as well, £5?^/" But 
 where the sheriff is a party, or interested in the cause, 
 the venire is awarded to the coroner^; or if there are 
 two sheriffs, and one of them is interested, to the 
 other *; and if the coroner, as well as the sheriflp, is in- 
 terested, th^venire is awarded to two persons, appoint- 
 ed by the court, called elisors K Where the venire is 
 
 laid 
 
 y Imp. K. B. 541. Or it = Id. § 3. 
 
 may be entitled of the term d 2 Lil. P. R. 124. Append, 
 
 issue is joined, as in actions Chap. XXXI. § 16, 17. 
 
 by bill. Id. 398. e Append. Chap. XXXI. 
 
 ^ Append. Chap. XXXI. § 14, 15. 
 
 §3. f 3 East, 141. Barnes, 465. 
 
 ^ Id. ibid. Append. Chap. XXI. § 18. 
 
 *> Id. § 4.
 
 ENTERING THE ISSUE. 673 
 
 laid in a county -palatine, instead of the common 
 award of a 'venire facias, there is a special award of 
 a mittimus to the justices there, commanding them 
 to issue the jury-process, and when the cause is 
 tried, to send the record back again, to the court 
 above '^. At what time the practice originated, of 
 sending records by mittimus into counties- palatine, 
 is not quite clear; but so late as the 11 W. III. the 
 court expressly said, they could not order a trial in 
 the county- palatine of Lancaster, and therefore they 
 sent the record to be tried in Yorkshire, as being the 
 next county ^. 
 
 When a fair and impartial, or at least a satis- 
 factory trial cannot be had, in the county where 
 the action is laid, the court must be moved, on 
 an affidavit of the circumstances, for leave to enter 
 a suggestion on the roll, with a nient dedire, in or- 
 der to have the trial in the next adjoining county ' : 
 And as the suggestion in such case is not travers- 
 able, the court will see that it is necessary, before 
 they give leave to enter it ^ The cause in that case 
 must be tried in the next adjoining county, though 
 it be a county-palatine'. And by the statute 38 
 
 Geo. 
 
 g Append. Chap. XXXI. § ^ 3 Bur. 1333. By Ld. 
 
 9, 10. Mansjidd and the court. E. 
 
 h 12 Mod. 313. and see Say. 23 G. III. 
 
 Rep. 47. 1 T. R 368. 1 7 T. R.735. 1 T. R. 363 
 
 • Append. Chap. XXXI. § contra. 
 19. 
 
 Vol. XL C
 
 674 OF MAKING UP, AND 
 
 Geo. III. c. 52. § 1. it is enacted, that " in every 
 " action, whether the same be transitorj'^ or local, 
 *' which shall be prosecuted or depending in any of 
 *' his Majesty's courts of record at Westminster, if 
 " the venue in such action be laid in the county of 
 *' any city or town corporate in England, the court 
 *' in which such action shall be depending may, at 
 " the prayer and instance of any plaintiff or defendant, 
 " direct the issues joined in such action to be tried 
 *' by a jury of the county next adjoining to the 
 " county of such city or town corporate, and award 
 '' proper writs of venire and distringas accordingly, 
 " if the court shall think proper." The cities of 
 London and IVestminster, Bristol and Chester, and 
 the borough of Soiithwark, are excepted out of this 
 statute'". When the action is laid in a place where 
 the king's UTit of venire does not run, as in Wales " 
 and Berwick upon Tweed'', &c. it is awarded to the 
 sheriff of the next English county, upon a sugges- 
 tion that the issue ought to be tried there. In Sir Pe- 
 ter Delme''s case p, it was settled, and has ever since 
 been the practice of the court, that if either party 
 would suggest any special matter, about awarding 
 the venire out of the common course, he should 
 
 give 
 
 «n § 10. 1036. and see Append. Chap, 
 
 n Append. Chap. XXXI. § XXXI. §21. 
 
 20. PlO Mod. 198 
 o 2 Bur. 855. 2 Blac. Rep.
 
 ENTERING THE ISSUE. 675 
 
 give a copy of it to the adverse party, and allow 
 him a reasonable time to consider it, before a merit 
 dedire is entered*^. And where there are several 
 plaintiffs or defendants in a personal action, and one 
 of them dies before issue joined, his death should 
 be suggested, in making up the issue ; but other- 
 wise it need not be suggested, till the judgment-roll 
 is made up^ 
 
 An issue in fact^ triable by the record, may con- 
 elude by praying an inspection of it, if the record be 
 of the same court '; or whether it be of the same, or 
 of a different court, the issue may conclude by giv- 
 ing the party pleading a day to produce it '. And on 
 an issue in /^w, the demurrer-book concludes as 
 follows: " But because the court of our lord the king 
 " now here is notyet admsed, what judgment, to ghe 
 " of and upon the premises^ a day is given to the par - 
 " ties aforesaid y before our said lord the king at 
 " Westminster, (if by bill^ or if by original where- 
 " soever, fee.) on (the day appointed for argument), 
 " to hear judgment thereon, for that the court of our 
 " said lord the king now here is not yet advised tliere- 
 " of, &c." 
 
 The 
 
 q 1 Str. 235. Append. Chap. &:c. 35. 
 
 XXXI. § 11, &c. And for the ^ Append. Chap. XXXI. ^ 
 
 nature and effect of a nient 22. 24. 
 
 dedire, see 1 Str. 183. t Id. § 23. 25. 
 
 «• 1 Bur. 363. and see Ap- «» Id. % 26. 
 pend. Chap. XXXI. § 11,
 
 676 07 MAKING UP, AND 
 
 The general issue or paper-book being made up, 
 is delivered to the defendant's attorney or agent; and 
 if there are several defendants, who appear by differ- 
 ent attornies, a copy should be delivered to each of 
 them. In the margin of the paper- book, a condition- 
 al rule is given by the clerk of the papers, signify- 
 ing, that unless the defendant receive the paper-book, 
 and return it by a particular day, to be enrolled, a 
 writ of inquiry will issue, or rule for judgment be 
 entered "". If a paper-book be made up and delivered 
 in term-time, or within Jour days exclusive after 
 term, with a rule given thereon, by the clerk of the 
 papers, for bringing the same to be inrolled, and 
 the defendant's attorney do not, within four days 
 after the delivery thereof, bring it back, and join 
 with the plaintiff in the special issue or demurrer, 
 or waive his special plea, and give the general issue, 
 or demurrer to any special issue tendered, judg- 
 ment may be entered and signed, as if no plea 
 had been pleaded. And the clerk of the papers has 
 no discretion to give a rule to return the paper- 
 book in less than four days, even though the defen- 
 dant be under terms to take short notice of trial '^. 
 But where a plea is not put in in time, so that a 
 paper-book may be made up and delivered in term, 
 or within four days after, yet if it be made up and 
 delivered within eight days after the term, the 
 
 defendant's 
 
 V Append. Chap. XXXI. § ^ Hale v. Smallwoodj E. 35 
 27. G.III.
 
 ENTERING THE ISSUE. 677 
 
 defendant's attorney is obliged to take it, and re- 
 turn it again in four days after the delivery, or judg- 
 ment may be signed ''. 
 
 If a plea be pleaded in term, or in time after term, 
 and the paper-book be not made up and delivered 
 within eight days exclusive after term, if it be an 
 issue to be tried in London or Middlesex^ or a de- 
 murrer, the other pai ty is not bound to deliver back 
 the book, till within the first four days of the next 
 term ; but if it be an issue to be tried at the assizes y 
 the defendant's attorney should deliver back the book 
 within four days after the delivery thereof, and join 
 in the special issue, or give the general issue, and 
 take notice of trial; or else the plaintiff's attorney 
 may sign judgment by default, as if the defendant 
 had not pleaded '. If the paper-book be of an issue 
 in fact^ the four days for keeping it are reckoned 
 exclusive; if of a demurrer, or issue in la'w, they are 
 inclusi'ue '■. And when a paper- book is not returned 
 within the four days, the plaintiff's attorney may 
 afterwards refuse to accept it, and sigii judgment ^; 
 but judgment cannot be signed after the paper- 
 book is accepted, though it be not returned in due 
 time. 
 
 Within 
 
 " R. T. 1 G. II. (c). a Dou£?. 197. 4 T. R. 195. 
 
 y Id. ibid. but see DoUg. 67. 1 T. R. 16. 
 
 ^ R. T. 1 Geo. II. (a); but scmb. contra. 
 see Imp. K. B. 294.
 
 678 OF MAKING UP, AND 
 
 Within the time limited for that purpose, the de- 
 fendant's attorney or agent either returns the paper- 
 book, or not; and if returned, he either returns it 
 in the state it was delivered to him; or if he has not 
 been ruled to abide by his plea, he may waive the 
 special pleadings, and give the general issue ^; or if 
 the similiter to the replication has been added by the 
 plaintiff, he may strike it out and demur ^ In the 
 latter case, the plaintiff having joined in demurrer, a 
 demurrer-book is made up by the clerk of the pa- 
 pers, and delivered over to the defendant's attor- 
 ney; who must return it in twenty-four hours, 
 unless the demurrer be special, and the defendant 
 has not been ruled to abide by his plea, in which 
 case he may still waive his special plea and demur- 
 rer, and give the general issue. If the paper-book 
 be returned with the general issue, the plaintiff's at- 
 torney makes up and delivers the issue afresh, . in 
 the common form. 
 
 On the delivery of the issue ^, or returning 
 the paper-book ^, the defendant was formerly 
 obliged to pay for copies of the pleadings, ex- 
 cept in actions by a pauper*^, or against an at- 
 torney 
 
 b2Salk. 515. «» R. T. 12 W. III. 7 Mod. 
 
 «= For the form of the notice 51. Say. Rep. 19. Wenhams. 
 
 of having struck out the re- Tristram^ H. 21 G, III. 
 
 joinder, &c. see Append. «■ 5 T. R. 400. 
 
 Chap. XXXI. § 28. i Id 509.
 
 ENTERING THE ISSUE. 679 
 
 tomey^ or prisoner^; and in a qui tarn action, he 
 paid double '. This was called issue- money ; on non- 
 payment of which, the plaintiff might have signed 
 judgment ^. But by a late rule of court ^, no judg- 
 ment shall be signed for non-payment of issue-mo- 
 ney; but the same shall remain to be taxed, as part 
 of the costs in the cause : Which rule is construed 
 to extend, not only to general issues, but also to all 
 special issues, and the paper and demurrer-books 
 made up therein '". 
 
 By accepting the issue, or returning the paper- 
 book, the defendant's attorney admits it to be pro- 
 perly made up " : And therefore if there be any 
 variance therein from the pleadings delivered, or 
 other irregularity in making it up, the defendant's 
 attorney or agent, instead of accepting it, should 
 take out a judge's summons, and obtain an order 
 for setting it right, as he cannot otherwise take ad- 
 vantage of the irregularity, on a motion in arrest of 
 judgment, or for a new trial. 
 
 When the issue is accepted, or the paper-book 
 returned, the plaintiff should enter it on record, 
 and proceed to argument, if an issue in law, or to 
 
 trial, 
 
 g Say. Rep. 77. R. 218. 
 
 h 2 Wils. 11. m 6 T. R. 477. R. M. 36 
 
 i But see 3 T. R. 137. G. IIL and see I Bos. & Pul. 
 
 k Barnes, 263. 275. 2 Blac. 292. 
 
 Rep. 1098. "2 Str. 1131. 1266. Say. 
 
 » R. H. 35 Geo. III. 6 T. Rep. 154. 3 Bur. 1682.
 
 680 OF MAKING UP, AND 
 
 trial, if an issue in fact: And if he neglect to do so, 
 the defendant may compel him, by obtaining a rule 
 from the master ", on the back of the issue, entering 
 it with the clerk of the rules, and serving a copy 
 on the plaintiff's attorney. But the defendant cannot 
 give a rule to reply, and enter the issue, in the same 
 term : And if the action be laid in London or Mid- 
 dlesex^ the defendant ought not to give a rule for the 
 plaintiff to enter his issue, the same term it is join- 
 ed, unless notice of trial has been given: And in a 
 country cause, the plaintiff is no ways bound to en- 
 ter his issue, the same term ''. 
 
 The plaintiff being ruled to enter the issue, must 
 enter it, if in London or Middlesex^ and bring the 
 record into the office, within four days after notice 
 of the rule: If in (he country, before the continuance- 
 day of that term: Otherwise, a non pros may be 
 signed, and the defendant shall have his costs '^ But 
 a judgment of non pros cannot be regularly signed, 
 after the issue is entered, though it be not entered 
 within the time allowed by the rule '. And where it 
 appeared by affidavit, that the plaintiff's attorney had 
 mislaid the papers, the court ordered the defendant's 
 attorney to give him a copy of the issue, the better 
 to enable him to enter it '. 
 
 In 
 
 o Append. Chap. XXXI. Ann. (c). 
 § 29, 30. r 1 T. R. 16. but see 4 T. 
 
 P R. M. 4 Ann. (c). R. \95.semb. contra. 
 ii Lil. P. R. 87. R. M. 4 si Str, 414.
 
 ENTERING THE ISSUE. 681 
 
 In order to enter the issue, a roll must be obtain- 
 ed, of the term it is joined, from the person ap- 
 pointed to dehver out the rolls of the court'^ ; which 
 is called the issue-roW'^. This roll begins with an 
 entry of the warrants of attorney for the plaintiff and 
 defendant, which is said to have been introduced by 
 JVright Chief-Justice, in the reign of. James the 
 Second''; previous to which time, the warrants of 
 attorney were entered on a separate roll ". The de- 
 claration and subsequent pleadings are then entered, 
 as in the issue or paper- book; and the entry of 
 them should be made in a full fair hand, with a 
 margin of an inch at least, and a convenient distance 
 at the top, for binding up the same ; and at the bot^ 
 torn, that the writing be not rubbed out ''. The 
 issue being thus entered on the roll, a number should 
 be got for it, from tlie clerk of the judgments, if it 
 be an issue of the same term, or otherwise from the 
 clerk of the treasury; and the roll being numbered, 
 is carried to and docketed^ with the clerk of the 
 judgments, who takes for the entries, after which it 
 \% filed in the treasury of the court. 
 
 In 
 
 t R. T. 11 8c Geo. II. Salk. 88. 
 
 " Append. Chap. XXXI. § " R. H. 1657. 
 
 3 1 , &c- y For the form of the dock- 
 
 V R. E. 4 Jac. II. et-paper, see Append. Chap. 
 
 w 1 Ld. Raym. 509. 2 Ld. XXXI. § 36. 
 Raym. 895. Carth. 517. 1 
 
 Vol. II. D
 
 682 OF MAKING UP, AND 
 
 In practice, it is not usual to enter the issue at 
 full length, if triable by the countr}'^, until after the 
 trial, unless the plaintiff be ruled to enter it; but 
 only to make an incipitur on the roll, at the time of 
 passing the record of Nisi Prius. An incipitur how- 
 ever is necessary; it being declared, by rule of 
 court % that no record of Nisi Prius shall be sealed, 
 or passed at the Nisi Prius office, before the issue 
 is fairly entered on record, or an incipitur thereof; 
 and such entry, Avith the record of Nisi Prius, first 
 brought to be signed by the secondary. 
 
 Hitherto we have spoken only of issues made 
 up and entered by the plaintiff: But in actions 
 of replevin, prohibition, and quare impedit, wherein 
 the defendant is considered as an actor, the issue 
 may be made up and entered by the defendant, as 
 well as the plaintiff. And there is a rule of court % 
 that if the plaintiff demur in law to the defendant's 
 plea, rejoinder or rebutter, and the defendant join 
 in demurrer, the plaintiff's attorney shall enter the 
 demurrer of record ; and in default thereof, upon a 
 rule given by the secondary **, it may be entered of 
 record by the defendant's attorney. Accordingly, 
 if the plaintiff demur, or take issue on the defen- 
 dant's plea, rejoinder or rebutter, and the defen- 
 dant, in case of a demurrer, join therein, and the 
 
 plaintifl" 
 
 ^ R. M. 5 Ann. reg. I. *> Append. Chap. XXXI 
 
 ^ R. E. 11 W. III. §30.
 
 s 
 ENTERING THE ISSUE. 683 
 
 plaintiff will not make up the book, and enter it on 
 record, the defendant may, pursuant to this rule, 
 make up the book, and deliver it to the plaintiff, 
 who has a right to enter the issue, at any time be- 
 fore the expiration of the rule given by the secon- 
 dary ; which rule ought to be served on the plaintiff, 
 at the same time the book is delivered to him. If 
 the plaintiff do not enter the issue, the defendant 
 may, at the expiration of the rule, and give notice 
 f)f trial by proviso ". 
 
 *■■ R. E. 1 1 W. III. (a). 
 
 CHAP,
 
 [ 6S4 ] 
 
 CHAPTER XXXII. 
 
 Of ARGUING Demurrers. 
 
 X^ 711 EN the issue in law, upon a demurrer, has 
 been entered on record by the plaintiff, or in 
 his default by the defendant, either party may move 
 the court for a concilium^ and proceed to argument *. 
 Where there are several issues, in law and in 
 fact, there has been great diversity of opinion upon 
 the question, which of them should be first tried 
 or determined. According to the earlier authori- 
 ties, if a man demur to part, and take issue on 
 other part, or if the declaration be against two de- 
 fendants, and one demur and the other take issue, 
 the court shall determine which they please first''; 
 though it was reckoned the more orderly way to 
 give judgment first on the demurrer". In another 
 book it is said, that the issue in fact ought to be 
 first tried; because if this be found for the plaintiff", 
 the jury who try it may assess conditional damages, 
 as to the demurrer '^. But according to the later 
 cases, where there are several issues, in law and in 
 
 fact, 
 
 ^ R. T. 1 Geo. II. (a). c Co. Lit. 72. a. 
 
 f* Co. Lit. 72. a. Gilb. C. "^ Say. Z)aw. 11 5. cites Lutw- 
 P. 57. 875.
 
 OF ARGUING DEMURRERS. 685 
 
 fact, the determination of the issue in law may be ei- 
 ther before or after the trial of the other, at the elec- 
 tion of the plaintiff ^ In practice, it is usual and ad- 
 ^'isable to determine the issue in law first, for the fol- 
 lowing reasons; first, that the determination of an 
 issue in law is generally more expeditious, and less 
 expensive, than the trial of an issue in fact: second- 
 ly, that if the issue in law go to the whole cause of 
 action, and be determined against the plaintiff, it is 
 conclusive, and there is no occasion afterwards to try 
 the issue in fact; whereas, if the issue in fact be first 
 tried, and found for the plaintiff, he must still pro- 
 ceed to the determination of the issue in law, and 
 if that be found against him, he will not be allowed 
 his costs of the trial of the issue in fact: And 
 lastly, that whether the demurrer go to the whole or 
 part of the cause of action, if the plaintiff proceed to 
 argue it first, and the court are of opinion against 
 him, he may amend as at common law; but after the 
 cause has been carried down to trial, he cannot amend 
 any farther than is allowable by the statutes of amend- 
 ments. 
 
 The concilium^ dies concilii, or day to hear the 
 counsel of both parties \ was formerly moved for, 
 upon reading the record in court ^'; but now it is 
 a motion of course, which only requires a coun- 
 sel's signature: Still however the record is taken 
 
 to 
 
 e 2 Lil. p. R. 85, R. E. 23 f R. E. 2 Jac. II. 
 Car. LB. R. g /f/. 2 I,il. P. R. 421
 
 686 OF ARGUING DEMURRERS. 
 
 to the clerk of the papers, who marks it read^ and 
 signs the initials of his name on the brief or motion- 
 paper; which being carried to the clerk of the rules, 
 he draws up the rule thereon, which is a four-day rule, 
 and then the cause is entered for argument with the 
 clerk of the papers ''. It is not necessary, though 
 usual, for the plaintiff to serve the rule for the conci- 
 lium upon a demurrer, or to give notice of putting it 
 in the paper; it being in strictness the defendant's 
 duty to search '. Signing a concilium is considered 
 as a step in the cause, so as to make it unnecessary 
 ro give a term's notice K 
 
 Previous to the day appointed for argument, 
 copies of the demurrer- books should be delivered 
 by the plaintiff or his attorney, on unstamped paper, 
 to the chief-justice and senior judge, and by the de- 
 fendant or his attorney, to the two other judges ''; in 
 which should be inserted the names of the counsel 
 who signed the pleadings ' : and the exceptions 
 intended to be insisted upon in argument, 
 should be marked in the margin "". In causes en- 
 tered for argument on Tuesday, the books, we 
 have seen, are to be delivered to the chief-justice, 
 and the rest of the judges, on the Saturday pre- 
 ceding; 
 
 h R. T. I G. II. (a). 1 R. E. 18 Car. II. 
 
 i 2 Str. 1242. -ii R. E. 2 Jac. II. revived 
 
 J 3 T. R. 530. by R. H. 38 G. Ill 
 
 k R. M. 17 Car. I.
 
 OF ARGUING DEMURRERS. 687 
 
 ceding; and in those entered for argument on. Fri- 
 day , they are to be delivered on the Tuesday preced- 
 ing ". If either party neglect to deliver the books, 
 they ought to be delivered by the other ; and the par- 
 ty neglecting shall not be heard, until he have paid 
 for them °. 
 
 The judgment for the plaintiff, or demurrer to a 
 plea or replication in abatement, is not final, but only 
 a respondeas ouster '' : In other cases, it is interlocu- 
 tory or final, according to the nature of the action: If 
 the action be for damages in assumpsit^ &:c. it is in- 
 terlocutory, and should be signed, on treble-penny 
 stamped paper, with the clerk of the judgments, af- 
 ter which the damages should be assessed, on a writ 
 of inquiry 'J, or reference to the master; but in debt, 
 &c. for a sum certain, the judgment is final, except 
 where it is necessary to proceed on the statute 8 &. 
 9 W. III. c. 11. \ 8. ■■; and there being no neces- 
 sity for a rule for judgment % the plaintiff may imme- 
 diately tax his costs, and take out execution. 
 
 " R. T. 40 G. III. I East, of inquiry, after judgment ou 
 
 131. and see R. E. 2 Jac. II. demurrer, it is not competent 
 
 (a). Ante., 460. to the defendant to controvert 
 
 o R. M. 17 Car. I: any thing but the amount of the 
 
 p Gilb. C. P. 53^ 1 Ld. sum in demand. IBos. ScPul. 
 
 Raym. 351. Say. Rep. 46. 2 3 68. 
 
 Wils. 367. Ante, 588, 9. ' Ante., 508, 9, 10. 
 
 <i On the execution of a writ ^ 1 Sfr. 4?^. 
 
 CHAP.
 
 [ 688 ] 
 
 CHAPTER XXXIII. 
 
 Of the Issue, <^«</ Trial by the Record. 
 
 npHE issue we are now treating of, arises upon a 
 plea or replication oinul tiel record. The plea of 
 nul tiel record is always concluded with an averment, 
 and prayer of judgment si actio ^ &c. ^; and if it de- 
 ny the existence of a record of the same court, the 
 replication thereto may conclude with a prayer that 
 it he viewed and inspected by the court ^ : but where 
 the record is of another court, the plaintiff shall have 
 a day given him to bring it in ". 
 
 Where a judgment, or other matter of record, in 
 the same court is pleaded, and the plaintiff replies nul 
 tiel record^ the replication may conclude as follows, 
 *' and this he is ready to verify^ Sec. and because the 
 " court of our lord the ki?ig now here will admse them- 
 *' sehes^ upon i?ispection and examination of the record, 
 " by the said (defendant) abo'ue cdleged, a day is given 
 " to the parties aforesaid, before our said lord the king 
 ' ' at Westminster, until, &c. '' : " or, instead of replying, 
 
 the 
 
 ^ 2 Wils. 114, 330, 31.' 
 ''Herne,2r8.2Lutw. 1514. d Dyer, 227, 8. 2 Lutw. 
 
 Barnes, 336. 1514. 2 Salk. 566. Carth. 517 
 
 ^ 2 Salk. 566. 3 Blac. Com. 1 Ld. Raym. 550. S. C
 
 OF THE ISSUE, &C. ' 689 
 
 the plaintiff may crave oyer of the record, or at least 
 a note in writing of the term and number-roll, and 
 if it be not given him in convenient time, he may sign 
 judgment. This practice was originally confined to 
 pleas in abatement^; but was afterwards extended 
 to pleas in bar ^'. and accordingly it is now settled, 
 that \\ herever a judgment or matter of record in the 
 same court is pleaded, the party pleading it must, on 
 demand, give a note in writing of the term and num- 
 ber-roll, whereon such judgment or matter of record 
 is entered and filed, or in default thereof, the plea is 
 not to be received '. Where the record is of another 
 court, the plaintiff may either conclude his replica- 
 tion of nul tiel record^ by giving the defendant a day 
 to bring it in, or with an averment and prayer of the 
 debt and damages '' : In the former case, the issue is 
 complete upon the replication '; but in the latter, 
 there ought to be a rejoinder, that there is such a re- 
 cord J, &c. 
 
 This issue is triable by the record itself, if it be 
 of the same court; or by the tenor of the record, if 
 it be of a different court ^. Where the record is 
 
 of 
 
 e Keilw. 95, 6. Carth. 453. • Cas. Pr. C. P. 56. Pr. 
 
 5ir. 1 Ld. Raym. 347. 550. Ret^. 227, 8. Barnes, 16 1. 335, 
 
 2 Ld. Raym. 1179. 6. Com. Rep. 533. 2 Bos. 8t 
 
 fSStr. 823. Pul. 302. 
 
 E R. T. 5 8c 6 Geo. II. {b\ J 1 Ld. Raym. 550. 
 
 Ante, 529. k Eui. aV. Pri. 230. GLlb= 
 
 h Barnes, 161. 2 Wils. 113. Evid. 26. 2 Bur. 1031. 
 
 Vol. II. E
 
 690 or THE ISSUE, ANi) 
 
 of the same court, and the plaintiff avers its existence^ 
 notice is given to the defendant's attorney, that he will 
 produce it on a particular day ; being a general re- 
 tuni-day, or day certain, according to the nature of 
 the proceedings : And if he be not then ready, it 
 seems that he may continue the day for bringing in 
 the record '. But where the existence of the record is 
 averred by the defendant, the plaintiff's attorney gives 
 him a four- day rule to produce it, which he obtains 
 from the master, on the paper-book ; and having en- 
 tered it with the clerk of the rules, serves a copy on 
 the defendant's attorne}'. 
 
 On the day appointed for producing the record, 
 the issue being previously entered, is brought into 
 court; and proclamation being made by the crier, 
 for producing the record, it is or is not produced. 
 If produced, the party producing it is entitled to 
 judgment, that he hath perfected the record; but 
 otherwise the judgment is given for the adverse 
 I)arty, that he hath failed in producing it "". If 
 the defendant plead in abatement, another action 
 depending for the same cause, and the plaintiff 
 afterwards discontinue such action, the issue on 
 7iul tiel record must be found against him ; because 
 the plea was true at the time of pleading it: but 
 jf a recovery be pleaded in bar, and the judgment 
 
 afterwards 
 
 i Barnes, 85. ™ 3 Salk. 1 5 1 . and see 7 T. R. 447. {d).
 
 TRIAL BY THE RECOilD. 691 
 
 afterwards reversed, before the day given to bring in 
 the record, there, upon mil tiel record, the issue 
 must be found for the plaintiff; because by the re- 
 versal, the record is avoided ab initio ". 
 
 Where the record is of a different court, the mode 
 of proceeding for bringing in the tenor of it, is by 
 certiorari; which, we have seen °, is a writ issuing 
 sometimes out of Chancery^ and sometimes out of 
 the King^s Bench. And where nul tiel record is 
 pleaded, to the record of a superior court, or court 
 of equal jurisdiction, there is no way to have it, but 
 by certiorari and mittimus out of Chancer}'-''; for 
 one court is not bounded by the other, in point of 
 jurisdiction, nor can they write to each other to cer- 
 tify their records : But the Chancery may, by its 
 original constitution, award a certiorari, for bringing 
 up the tenor of the record of a superior court, and 
 afterwards send it by mittimus to another; and the cer- 
 tifying such tenor does not hinder the court where 
 the record is, from proceeding upon it: And this me- 
 thod was contrived, to communicate evidence of the 
 record from one superior court to another, without 
 the actual removal of the record itself'. 
 
 If 
 
 n 1 Lord Raym. 274. 2 Ld. p 2 Burr. 1034. and ^ee Cro. 
 
 Raym. 1014. 1 Salk. :^29 Car. 297. 
 
 S. C. '1 Gilb. Exec. 145. 153. 
 
 o Ante, 329. i69. and see Gilb. Evid. 1.1.
 
 692 OF THE ISSUE, hc. 
 
 If a recovery in an inferior court be declared on, or 
 pleaded in a superior one, and denied, the certiorari 
 may be issued out of the superior court % as well as 
 from the court of Chancery '. And on this writ, 
 where the superior court doth not send for the record 
 of an inferior one, to see whether they keep within 
 the limits of their jurisdiction, but merely, onnultiel 
 recordy to know whether there be such a record or 
 not, it is sufficient to certify the tenor of the record ''; 
 and in Chancery they seldom certify any thing more, 
 for that court does not in general send for the record 
 of the inferior one, to bound their jurisdiction, but to 
 send it to other courts by mittimus '': But where the 
 record is to be proceeded upon in a superior court, 
 the record itself must be returned ''. 
 
 On a replication oinul tiel record X.o a plea in abate- 
 ment, the judgment for the plaintiff is not final, but 
 only a respondeat ouster; for failure of record in this 
 case is not peremptory ". In other cases, the judg- 
 ment is interlocutory or final, as upon demurrer; 
 and if it be final, a rule for judgment must be given, 
 which expires in four days exclusive, but otherwise 
 the rule for judgment is not given till the return of 
 the inquiry ''. 
 
 ' Cro. Eliz. 821. V 2 Atk. 317. Jnte, 334, 5. 
 
 «Gilb. Exec. 148, 9. 170. ^Carth. 517. 1 Ld. Raym. 
 
 ^ Id. 143. Dyer, 187. 3 550. .^«/f, 5 88, 9. 687. 
 
 Salk. 296. 2 Atk. 317, 18. ^ Imp. K. B. 290. Barnes, 
 
 " Gilb. Exec. 145. 264. 
 
 CHAP--
 
 [ 693 J 
 
 CHAPTER XXXIV. 
 
 Of Proceedings upon an Issue, triable by the 
 Country. 
 
 "PREVIOUS to the sitting or assizes, at which 
 the cause is intended to be tried, the plaintiff 
 should give due notice of trial ; and if he proceed to 
 trial, without giving such notice, the verdict may be 
 set aside for irregularity. Every notice of trial ought 
 to be in writing '; and given to the defendant, if he 
 appear in person, or odierwise to his attorney or 
 agent in town, if his place of abode be known ; but 
 if it be unknown, the notice may be given to the de- 
 fendant himself: And where the defendant is a 
 prisoner, notice of trial may be given to the turnkey ", 
 Upon the delivery of a paper-book, wherein 
 issue is joined, and notice of trial given, (as it 
 may be,) on the back of the book, if the special 
 pleadings be afterwards waived, and the general 
 issue given, the notice which was given for the 
 trial of the special issue, shall serve for notice of 
 trial upon the general issue ^. And so where the 
 plaintiff, upon any pleading of the defendant, 
 
 tenders 
 
 a R. M. 4 Ann. (c), c i Str. 248. Antc^ 319. 
 
 «» Say. Rep. 13? d R. H. 8 Geo. I. (o).
 
 694 or NOTICE of irial, &c. 
 
 tenders an issue, and the paper-book is made up and 
 delivered with notice of trial, and the defendant 
 strikes out the similiter, and returns the book with 
 a demurrer, if judgment be given thereon for the 
 plaintiff, and a writ of inquiry be necessary to ascer- 
 tain the damages, the same notice that was given for 
 the trial of the issue, shall serve for executing the 
 writ of inquiry ""t but then, the plaintiff ought to 
 give notice of the hour and place of executing it ^. 
 
 Notice of trial may be, and is usually given on the 
 back of the issue or paper- book; or it may be given 
 on a separate paper ^. In the former case, it need not 
 be so particular as in the latter: and therefore, where 
 the issue was indorsed as follows, " Take notice of 
 trial at the next assizes," this was held to be a suf- 
 ficient notice, without any mention of the date, 
 county, or attorney's name; though it would have 
 been otherwise, if given on a separate paper ^. Where 
 there are several defendants, and one of them pleads, 
 and the other lets judgment go by default, the notice 
 should express that the issue joined with the former 
 will be tried, and that the jury will at the same time 
 assess the damages against the latter '. 
 
 If 
 
 «■ Same rule, jlnte,, 520. ^ 2 Str. 1237. 
 
 i Idem (a). i Append. Chap. XXXIV. 
 
 g Append. Chap. XXXIV. § 4.
 
 or NOTICE OF TRIAL, &C. 695 
 
 If the venue be laid in London or Middlesex, and 
 die defendant live within forty compuied ^ miles of 
 London, there must be eig/it days notice of trial, ex- 
 clusive of the day it is given, but inclusive of that 
 on which the trial is to be had; and if the defen- 
 dant live above forty computed miles from London, 
 then fourteen days notice must be given ^. In country- 
 causes, eight days notice of trial seems to have been 
 formerly sufficient; but now, by statute 14 Geo. IL 
 c. 17. § 4. " where the defendant resides above for- 
 " ty miles from town, no cause shall be tried at Nisi 
 " FriiiSy either at the assizes or sittings in I^ondon 
 *' or JVestminster, unless notice of trial in writing has 
 *' been given, at least ten days before such intended 
 "trial:'* and hence ?(?;/ days notice of trial is re- 
 quired, in all cases, at the assizes. But as this statute 
 has no negative words, it is still necessary to give 
 fourteen days notice of trial, for the sittings in London 
 or Westminster^ where the defendant lives above for- 
 ty computed miles from London. And where a de- 
 fendant, residing in town at the issuing of the 
 writ, changes his residence permanently to the 
 country, at the distance of above forty miles 
 from town, before the delivery of the issue, he is 
 entitled to fourteen days notice of trial '. If there 
 be several defendants, and one of them reside 
 
 within 
 
 ) 2 Str. 954. 1216. » 1 East, 688. 
 
 k R. M. 4 Ann. fey
 
 696 01- NOTICE OF TRIAL, &C. 
 
 within forty miles of London, so long a notice is said 
 not to be necessary '". The venue was laid in Lon- 
 don, and the defendant residing m India, a verdict for 
 the plaintiff was set aside, because only eight days 
 notice of trial had been given '. 
 
 Upon an old issue, or in other words, where there 
 have been no proceedings for four terms exclusive 
 after issue joined, a term's notice is requisite °; which 
 notice must be given before the essoign-day ot the 
 fifth, or other subsequent term ^ : And a judge's sum- 
 mons, if no order has been made upon it, is not a 
 proceeding within the meaning of this rule ; nor the 
 suing out of a 'uenire facias or distringas, in the va- 
 cation of the fourth term, though it be tested and en- 
 tered as of that term "^ : But a notice of trial, though 
 countermanded, or notice that the plaintiff will pro- 
 ceed in the cause, which has not been acted under, 
 is such a proceeding, as will prevent the necessity of 
 giving a term's notice \ The rule requiring a term's 
 notice does not extend to a motion for judgment as in 
 case of a nonsuit ' ; and being confined to voluntary de- 
 lays, it does not apply, where the cause has been stay- 
 ed by injunction or privilege , or where there has been 
 an agreement to stay proceedings for a limited time, 
 
 to 
 
 ^ Per Ashburst, Just. 4 T. Pi Str. 211. 2 Str. 1164. 
 
 R. 520. q 2 Salk. 457. 650. 
 
 ■1 4 T. R. 552. r 1 Str. 531. 3 East, 1. 
 
 o 2 Salk. 645. 650. R. s 5 T. R. 634. 
 
 M.4 Ann. (r); and see Ap- ^ 1 Sid. 92. R. M. 4 Ann. 
 
 pend. Chap. XXXIV. § 6, (c). Doug. 71.
 
 OF NOTICE OF TRIAL, &C. 697 
 
 to enable the defendant to pay the debt, in default 
 of which the plaintiff is to be at liberty to proceed ". 
 Short notice of trial, in country causes, must be 
 given four days at least before the commission- day, 
 one exclusive and the other inclusive^: In town 
 causes, two days notice seems to be sufficient"''; but 
 it is usual to give as much more, as the time will 
 admit of. And Sunday is to be accounted a day in 
 these notices, unless it be the day on which the 
 notice is given''. 
 
 If the plaintiflp be not ready to proceed to trial, 
 pursuant to notice, he may countermand or in some 
 cases continue it. Notice of countermand, like notice 
 of trial, ought to be in writing ^^ and may be given 
 to the attorney in the country, as well as the agent 
 in town ^ Before the statute 14 Geo. II. c. 17. two 
 days notice of countermand appears to have been 
 sufficient in all cases, unless it was for a trial at the 
 assizes, and the countermand was given to the agent 
 in town; in which case it was required to be given, 
 four days before the commission-day '. But now, 
 by that statute, ^ 5. the countermand of notice 
 
 of 
 
 " 2 Bur. 650. 2 Blac. Rep. y Id. ibid. 
 762. 784. ^ 2 Str. 1073. ; and see Ap- 
 
 y R. E. 30 Geo. III. 3 T. pend. Chap. XXXIV. § 8. 
 R. 660. a R. M. 4 Ann. (c). 2 S*-. 
 
 « Pr. Reg. 390. 849. 1073. 
 
 " R. M. 4 Ann. (c). 
 Vol. \}. F
 
 698 OF NOTICE OF TRIAL, &C. 
 
 of trial at the assizes, or in a town-cause where the 
 defendant lives above forty miles from London^ 
 must be given six days at least before the intended 
 trial: In other cases, Hvo days notice of counter- 
 mand is still sufficient, the day of countermand be- 
 ing one, exclusive of the commission-day, or day of 
 sittings. 
 
 If the plaintiff give notice of trial, and proceed not 
 accordingly, he cannot in general take the cause 
 down to trial again, without new notice, to be given 
 as before, unless by consent or rule of court ''. But if 
 notice of trial be given for a day certain in London 
 or Middlesex.^ and the plaintiff be not ready to pro- 
 ceed, the cause may be tried at the next sitting, upon 
 giving two days previous notice, one inclusive and 
 the other exclusive ; which is called a notice of trial 
 by continuance ". So, if the defendant enter a ne red- 
 piatur, and by that means hinder the plaintiff from 
 trying his cause at one sitting, the plaintiff may pro- 
 ceed to trial at the next, upon notice given before 
 the rising of the court at the first sitting ^. But the 
 plaintiff cannot continue his notice of trial, more 
 than once in a term ^ And in either of the before- 
 mentioned cases, if the cause be not tried at ,such 
 
 next 
 
 b R. M. 1654. § 18. d R. M. 4 Ann. 2 Salk. 
 
 c Append. Chap. XXXIV. 653. 
 § 7. ^2 Su-. 1119.
 
 OF NOTICE OF TRIAL, &C. 699 
 
 next sitting, notice is to be given as at first, unless 
 it be made a remanet ^, and then new notice of trial 
 is never given, for the defendant is bound to attend 
 till the cause be tried ^. But if the trial be put off by- 
 rule of court, there must be a fresh notice of trial '' : 
 and even when the plaintiff gives a peremptory un- 
 dertaking, to try at the next sittings or assizes, there 
 also a new notice of trial must be given ; because 
 notwithstanding such undertaking, the plaintiff" may 
 decline trying his cause '. 
 
 If the plaintiff do not proceed to trial pursuant 
 to notice, or countermand it in time, the defen- 
 dant, on a proper affidavit J, shall be allowed his 
 costs of the day ^ ; and if they are not paid, may 
 on an affidavit of demand and refusal ', have an 
 attachment: or, after the issue is entered, he may 
 proceed to trial by proviso^ as at common law, 
 or move the court for judgment as in case of a 
 nonsuit, upon the statute 14 Geo. II. c. 17. But 
 the defendant cannot move for judgment as in 
 case of a nonsuit, and costs for not proceed- 
 ing 
 
 f When a cause is made a ' Id. ibid. Monk v. Wade, T. 
 
 remanet, the costs of the first 29 G. III. K. B- 
 
 sittings or assizes abide the J Append. Chap. XXXIV. 
 
 event of the trial. Say. Rep. §9, 10. 
 
 272. 4 Bur. 1988. k r. ;m. 1554. § 18. R. M. 
 
 K R. M- 4 Ann. (c). 8 T. 4 Ann. (c). 
 
 R. 245, 6. 1 Append. Chap. XXXIV. 
 
 fc ST. R. 245, 6. § 11.
 
 700 or TRIAL BY PROVISO. 
 
 ing to trial, at the same time""; though he may 
 move for either of them separately, and it is indif- 
 ferent which is first moved for. In practice, it is 
 usual for the defendant to move for judgment as in 
 a case of nonsuit; and then if the court, on shewing 
 the cause against the rule, grant further time to the 
 plaintiff, it is always on the condition of his paying 
 costs for not proceeding to trial. 
 
 The trial by proviso is so called, from a clause 
 in the distringas^ which provides, that if two writs 
 come to the sheriff, he shall only execute and re- 
 turn one of them ". And if both the plaintiff and 
 defendant happen to carry down the record, at the 
 same time, the trial shall be by the plaintiff's re- 
 cord, if he enter it with the marshal; but if he do 
 not enter it, the defendant may proceed on his re- 
 cord ®. This trial cannot be had in civil actions, 
 till there has been some laches or default in the 
 plaintiff, in not proceeding to ti'ial, after issue 
 joined; except in cases where the defendant is con- 
 sidered as an actor, as in replevin^ prohibition^ and 
 quare imp edit y which are to have a return, con- 
 sult"t!on, and writ to the bishop p. In criminal 
 cases, the defendant is never allowed to carry down 
 
 the 
 
 » Earl of Leicester \. Wood, ° R. M. 4 Ann. (c). 
 
 en^M. 21 Geo. II. p 2 Salk. 652. R. M. 4 
 
 " 2 Lil. P. R. 612. 617. 2 Ann. (c); but see 4 T, R. 
 
 East, 206. (g). 757.
 
 OF TRIAL BY PROVISO. 701 
 
 the record to trial by promso; because no laches can 
 be imputed to the king '. But in indictments of trea- 
 son or felony, if the attorney-general will delay, the 
 court may give the defendant leave to bring on the 
 trial, as they see fit '^ : So in indictments for misde- 
 meanors, the defendant may, in the first instance, 
 by the consent of the prosecutor, and leave of the 
 attorney-general, carry down the cause to trial; but 
 it shall not be allowed by surprise on the attorney- 
 general, nor without consent of the prosecutor, or 
 some default in him \ And it is a rule, that when 
 an indictment is removed hither by the prosecutor, 
 the defendant shall not carry it down to trial, with- 
 out leave of the court on motion '. 
 
 Before the defendant can have a trial by promso^ 
 the issue must be entered on record; and therefore, 
 unless this be done, the defendant must obtain a 
 rule from the master, and enter it with the clerk of 
 the rules, for the plaintiff to enter the issue ; and if 
 it be not entered, he may sign a non-pros ' : If it 
 be, and the plaintiff has been guilty of laches, the 
 defendant should procure from the master, and 
 enter with the clerk of the rules, a rule for a trial 
 by proviso " ; which he may do, after he has given 
 
 notice 
 
 q 2 Salk. 652. 6 Mod. 247. t 2 Lil. P. R. 84. 87. 612. 
 
 Willes, 535. 7 T. R. 661. 2 615. 617. 3 Salk. 362, 3. R. 
 
 East, 202. M. 4 Ann. (c). 
 
 ^ 2 Salk. 652. a 2 Str. 1055. Append. 
 
 »/rf. 653. Chap. XXXIV. § 12.
 
 702 GF JUDGMENT 
 
 notice of trial "", Of a trial by proviso, the defendant 
 must give the like notice to the plaintiff, as the 
 plaintiff would have been obliged to give to him ""' : 
 and if he do not proceed to trial according to notice, 
 or countermand it in time, the plaintiff shall have 
 his costs ''. 
 
 The delay and expence attending the trial by pro- 
 mso, gave rise to the statute 14 Geo. II. c. 17. by 
 which it is enacted, *' that where any issue is or 
 *' shall be joined, in any action or suit at law, 
 " in any of his majesty's courts of record at fVest- 
 *' m'uister, &c. and the plaintiff or plaintiffs in any 
 " such action or suit hath or have neglected, or 
 " shall neglect, to bring such issue on to be tried, 
 " according to the course and practice of the said 
 "^ courts respectmely^ it shall and may be lawful for 
 *' the judge or judges of the said courts respective- 
 *My, at any time after such neglect, upon motion 
 '"'■ made in open court, (due notice having been 
 *' given thereof,) to give the like judgment for the 
 " defendant or defendants in every such action or 
 *' suit, as in cases of nonsuit; unless the said judge 
 *' or judges shall, upon just cause, and reasonable 
 '^' terms, allow any further time for the trial of such 
 *' issue: And if the plaintiff or plaintiffs shall ne- 
 *' gleet to try such issue, within the time so allowed, 
 
 " then 
 
 V 1 T. R. 695. X R. M. 4 Ann. (c). 2 Str. 
 
 w R. M. 1651, 797.
 
 AS IN CASE OF A NONSUIT. 703 
 
 ■** then and in every such case, the said judge or 
 ''judges shall proceed to give such judgment as 
 *' aforesaid. Provided always, That all judgments, 
 " given by virtue of this act, shall be of the like force 
 ** and effect as judgments upon nonsuit, and of no 
 " other force or effect: Provided also, That the de- 
 " fendant or defendants shall, upon such judgment, 
 *' be awarded his, her or their costs, in any action or 
 " suit, where he, she or they would upon nonsuit he 
 " entitled to the same, and in no other action or suit 
 " whatsoever." 
 
 This statute has been held to extend to actions 
 brought by executors or administrators ^, and to qui 
 tarn actions % as well as others ; and also to the tra- 
 verse of the return of a mandamus ^ : but it does not 
 extend to actions of repleiiin ^, &c, in which the 
 defendant is considered as an actor, and may there- 
 fore' enter the issue, and carry down the cause to 
 trial himself: and where there are two defendants, 
 one of whom lets judgment go by default, the 
 other cannot have judgment as in case of a non- 
 suit ^ Also, where the cause has been once car- 
 ried 
 
 y Willes, 316, Barnes, 130. 317. 
 
 S. C. but without costs. Id. <= Say. Rep. 22. Say. Costs, 
 
 I 1 Wils. 325. Barnes, 315. 163. 1 Wils. 325. S. C. Say. 
 
 1 East, 554. Rep. 103. Say. Costs, 164. S. 
 
 a Say. Rep. 1 10. Say. Costs, C. 1 Bur. 358. Say. Costs, 
 
 166. S.C.4 T. R. 689. 168. S. C. Cowp, 483. 3 T. 
 
 *> 1 Blac. Rep. 375. Say. R. 662. Gosse v. J/acaw/rt/ and 
 
 Costs, 168. S. C. 3 T. R. 662. others, T. 42 Geo. III. 
 5 T. R. 400. but see Barnes,
 
 704 OF JUDGMENT 
 
 ried down to trial, the defendant cannot have such 
 judgment, for not carrying it down again ^. 
 
 The course and practice of the court, referred to 
 by the statute, is that which before regulated the 
 trial by promso; and as the defendant could not have 
 had such trial, until the plaintiff had been guilty of 
 laches ^, nor until after the issue was entered on re- 
 cord, so neither till then, is he entitled to judgment 
 as in case of a nonsuit. We have seen ^, that if the 
 action be laid in London or Middlesex, the defendant 
 ought not to give a rule for the plaintiff to enter his 
 issue, the same term in which it is joined, unless no- 
 tice of trial hath been given ^ : And accordingly it is 
 held, that in a town cause, unless notice of trial has 
 been given, the defendant cannot move for judgment 
 as in c^se of a nonsuit, the next term after that in 
 which issue was joined, although it was joined early 
 enough, to enable the plaintiff to give notice of trial for 
 the sittings after that term ^ ; the plaintiff, in such case, 
 having the whole of the next term to enter the 
 issue, and no laches can be imputed to him till 
 
 the 
 
 d 1 T. R. 492. 3 T. R. 1. g But the defendant may 
 
 1 H. Blac. 101. rule the plaintiff to enter the 
 
 e For the time within which issue, and move for judgment 
 
 issues must have beew former- as in case of a nonsuit, the 
 
 ly tried, see R. H. 15, 16 Car. same term. 1 Bos. & Pul. 387. 
 
 II. Reg. 2. R. II. 20, 21 Car. ^ 4 t. R. 557. 1 H. Blac. 
 
 II. 65. contra; and see 1 H. Blac, 
 
 '■Jnie. 680. 123. 282.
 
 AS IN CASE OF A NONSUIT. 70.5 
 
 the term after K But if notice of trial has been given, 
 in a town cause, for a sitting in or after term, the de- 
 fendant may move for judgment as in case of a non- 
 suit tlie next term, being the term after that in which 
 the issue ought to have been entered ^. To support 
 a rule for judgment as in case of a nonsuit, in the 
 next term after that in which the issue was joined, 
 the affidavit must state that notice of trial was given 
 for a sitting in or after the preceding term • ; but in 
 the third or other subsequent term, a general affida- 
 vit, stating the term when the issue was joined, is 
 deemed sufficient "". In a country cause, where notice 
 of trial is given to the assizes, the defendant may 
 move for judgment as in case of a nonsuit, the next 
 term : but the plaintiff is not bound to give notice of 
 trial, till the term succeeding that in which issue 
 was joined " ; and if he do not, the defendant cannot 
 move for judgment as in case of a nonsuit, till after 
 the next assizes. Where the plaintiff withdraws his 
 record, after entering it for trial, the defendant may 
 have judgment as in case of a nonsuit °. 
 
 The 
 
 ' Issue was joined in Easter gerald v. Smith, T. 36 G. III. 
 
 term, and notice of trial ^ Harman v, Gilbert, M. 
 
 given for the first sittings in 36 Geo. III. C. B. 
 
 Trinity; and the plaintiff ' Append. Chap. XXXIV. 
 
 having contiimed it till tlie § 14. 
 
 sittings after that term, the '" Id. ibid. 1 H. Blac. 282 
 
 defendant in the same term, "2 T. R. 734. 
 
 moved for judgment as in » Read v. Stone, E. 36 G- 
 
 case of a nonsuit, which was III. 1 East, 346. 
 refused by the court. Fitz- 
 Vol. II. G
 
 706 OF JUDGMENT 
 
 The rule for judgment as in case of a nonsuit ^ is 
 a rule to shew cause, founded on an affidavit of the 
 state of the proceedings, and of the plaintiff's default 
 in not proceeding to trial ; which rule has been held 
 to be sufficient notice of motion within the act "^ : and 
 the roll must be in court, at the time the motion is 
 made. This rule is made absolute of course, on an 
 affidavit of service, unless the plaintiff shew a good 
 cause for not proceeding to trial, as the absence of a 
 material ^vitness, &:c. but a slight cause is in general 
 deemed sufficient, even in a qui tarn action \ if the 
 plaintiff will wnd^rtakt peremptorily to try at the next 
 sittings or assizes. The plaintiff having become 
 insolvent after issue joined, this was allowed as 
 good cause against judgment as in case of a non- 
 suit; and the court would not bind him down to 
 a peremptory undertaking, it being alleged, that 
 his creditors were about to decide, whether they 
 would prosecute or abandon the cause \ So the 
 insolvency of the defendant ^ after the action brought, 
 is good cause against judgment as in case of a 
 nonsuit*; but unless the plaintiff will consent to 
 stay all further proceedings, and to enter a cesset 
 
 processus^ 
 
 p Append. Chap. XXXIV. XXXIV. § 13. 
 
 §15. r7 T. R. 178. I East, 554. 
 
 q Lofft, 265. 1 H. Blac. s Fisher v. Hancocky H. 36 
 
 527. C. P. contra. And for Geo.III. 
 
 the form of the notice of *■ Doug. 671. 
 motioA, see Append. Chap.
 
 AS IN CASE OF A NONSUIT. 707 
 
 processus^ the court will bind him down to a peremp- 
 tory undertaking. The plaintiff in a qui tarn action on 
 the statute 7 Geo. II. c. 8. withdrew his record, be- 
 cause the broker who negotiated the illegal bargain for 
 stock, refused to give evidence, least he should sub- 
 ject himself to a penalty on the same statute ; and the 
 court held this a sufficient reason to discharge a rule 
 for judgment as in case of a nonsuit, for not proceed- 
 ing to trial; although the witness's liability to be su- 
 ed would not be removed, till after the end of three 
 succeeding terms ^ Where the rule to shew cause 
 was discharged, on an affidavit which contained an 
 answer false in itself, the court would not afterwards 
 open the matter, on an affidavit which disproved the 
 contents of the former one ' . 
 
 If the rule be made absolute, the defendant 
 having drawn it up with the clerk of the rules, and 
 got it stamped with a double half-crown stamp, 
 may sign judgment as in case of a nonsuit, and tax 
 his costs, &:c. But if further time be given, on a 
 peremptory undertaking, the plaintiff must draw 
 up the rule, and serve a copy of it on the defend- 
 ant's attorney; after which, if he do not proceed 
 to trial pursuant to his undertaking, the defend- 
 ant, having obtained an office-copy of the rule, 
 should move the court for judgment, on an affida- 
 vit 
 
 ■i 7 T. R. 178 V 3T. R 405.
 
 708 OF PUTTING OFT THE TRIAL. 
 
 vit of the circumstances ^. And a mistake in the de- 
 claration is not a good excuse for not proceeding to 
 trial, pursuant to an undertaking ''. The statute only 
 gives costs to the defendant, where he would have 
 been entitled to them upon a nonsuit : And therefore 
 the tenant is not entitled to costs, in a writ of right 5"; 
 nor are they allowed as against an executor, who 
 merely sues en miter droit ^. 
 
 If the defendant be unable to proceed to trial, on 
 account of the absence of a material witness, he may 
 move the court in term-time, or apply to a judge in 
 vacation, on an affidavit of the facts, to put it off till 
 the next term \ The application for this purpose 
 should in general be made two days at least before 
 the day of trial '', if the necessity for it was at that 
 time known to the defendant ; if not, it may be made 
 afterwards, even when the cause is called on at nisi 
 prius ". In that case however, notice should first be 
 given, with a copy of the affidavit to be produced ^. 
 In other cases also, it is usual, though not necessary, 
 
 to 
 
 * Append, Chap. XXXIV. as mentioned above: But 
 
 § 16. where there is no probabiHty 
 
 ^ Say. Rep. 74. Say. Costs, of the defendant's being pre- 
 
 166. S. C. pared to try till a more dis- 
 
 y 2 Blac. Rep. 1093. tant time, he may apply to 
 
 z 4 Bur. 1928. Willes, 316. put off the trial till that time. 
 
 Barnes, 130, S. C. 2 H. i^ Barnes, 437. 
 
 Biac. 277. c Peak, Cas. M. Pri. 97. 
 
 *Itis usual to put off the <^ Cas. tern/}. Hardw. 128. 
 trial only till the next term, 
 
 i
 
 OF PUTTING OFF THE TRIAL. 709 
 
 to give previous notice of the intended motion *". The 
 affidavit should regularly be made by the defendant 
 himself *^, unless he be abroad, or out of the way; in 
 which case it may be made by his attorney ^, or a third 
 person : and it in general states, that the person ab- 
 sent is a material witness, without whose testimony 
 the defendant cannot safely proceed to trial ; that he 
 has endeavoured, withouteffect, to get him subpoenaed, 
 but that he is in hopes of procuring his future attend- 
 ance ''. An affidavit in the common form is sufficient, 
 ^where no cause of suspicion appears; and it is not ne- 
 cessary to swear to merits in such cases ': But if there 
 be any cause of suspicion, the court should be satis- 
 fied from circumstances, first, that the person absent 
 is a material witness ; secondly, that the party apply, 
 ing has not been guilty of any laches or neglect; and 
 thirdly, that he is in reasonable expectation of being 
 able to procure his attendance, at the time to which 
 the trial is prayed to be deferred ''. 
 
 There 
 
 «■ Append. Chap. XXXIV. state particularly in his affida- 
 
 § 17, vit, in what respect his evi- 
 
 f Barnes, 437. dence is material. Corbin v. 
 
 g Peakc, Cas. JVi. Pri. 97. Dawson, E. 36 Geo. III. C.B. 
 
 ^ Append. Chap. XXXIV. ^ Duncan v. Thomasin, IM. 
 
 § 18. In the common pleas, if 38 Geo. III. 
 
 the ground of the application ^ 3 Bur. 15 Ik 1 Blac. Rep. 
 
 be the absence of a material 514. S. C. and see 1 Blac. 
 
 witness, the defendant must Rep. 436.
 
 710 OF PUTTING OFF THE TRIAL. 
 
 There are other causes for putting off the trial; 
 such as the iUness of the defendant's attorney *, or on 
 account of a paper published with intent to influence 
 the jury •", &c. : And when any of these occur, the 
 affidavit should be framed accordingly. But the court 
 will not put off a trial, pending a suit relating to the 
 same matter, in a spiritual court " : And in an action 
 on a penal statute, they will not put it off, in favour of 
 the plaintiffs upon the absence of a material witness °. 
 
 ' Say. Rep. 63. common pleas, the court would 
 
 ^ 1 Bur. 512. 4 T. R. 285. not put off the trial, on ac- 
 
 " 2 Salk. 646. 649. count of the absence of a raa- 
 
 " Per Lord Kenyan, as for- terial witness, by whose evi- 
 
 merly ruled by Lord Mans- dence the defence of slavery 
 
 field, in a Chester case; M. was intended to be established. 
 
 ;^8 Geo. III. And in the ! Bos. & Pul. 454. 
 
 CHAP-
 
 [ 711 3 
 
 CHAPTER XXXV. 
 
 6yM(? Record o/T^isi Prius, Jury, Evidence, 
 and Witnesses. 
 
 TT AVING, in the preceding chapter, shewn what 
 is to be done, where the parties are not ready 
 or willing to proceed to trial ; I shall next consider, 
 when they are, the preparatory steps to be taken, 
 with regard to the record of nisi prius ^ jury, evidence , 
 and witnesses. 
 
 The record of nisi prius, which is supposed to be 
 transcribed from the issue- roll, contains an entry of 
 the declaration and pleadings, and the issue or issues 
 joined thereon, with the award of the venire facias, 
 as in the issue or paper-book ; and is in nature of a 
 commission to the judges at nisi prius, for the trial 
 of the cause ^. It begins with the placita, or style of 
 the court, of the term issue was joined ; and after the 
 award of the venire facias, there is a second placita ^ 
 of the term in or after which the cause is tried; and 
 the record then concludes with an entry, called the 
 jurata, as follows: 
 
 to 
 
 » Append. Chap. XXXV. in the Common Pleas, where 
 
 § 1 . the parties do not go to trial, 
 
 ^ For the reason of a se- the same term issue is joined, 
 
 cond t^latita in the King's- see Gilb. C. P. 80, 81. 1 
 
 Bench, and why jt is omitted Cromp. 234,
 
 or THE llE<iORD 
 
 ■ to wit. The jury betwee?i A. B. by his attorney 
 
 plaintiff, and CD. defendant, of a plea of ^c. (ac- 
 cording to the nature of the action,) is respited before 
 our lord the king at fFestminster, (or, by original, 
 wheresoever, &c.) until (the return of .the dis- 
 tringas,) unless the king''s right trusty and well-beloved 
 Edward Lord Ellenborough, his majesty'' s chief -jus- 
 tice, assigned to hold pleas before the king himself, (if 
 in London or Middlesex; or, if at the assizes, unless 
 his majesty'' s justices assigiied to take the assizes, in 
 
 and for the county of ,) shall first come on (the 
 
 day of trial,) at the Guildhall in the said city, (if in 
 London; or if in Middlesex, at Westminster-hall, or, 
 if at the assizes, at the place of trial, in the said coun- 
 ty) according to the form of the statute in such case 
 made and provided, for default of the jurors, because 
 none of them did appear: Therefore let the sheriff 
 have the bodies of the said jurors, to make the said ju- 
 ry, between the parties aforesaid, of the plea aforesaid, 
 accordifigly; the same day is given to the parties afore- 
 said, at the same place. 
 
 At the assizes, the jurata concludes with what is 
 called the sciendum, as follows : And be it kfiown, that 
 the king''s writ on record was delivered to the deputy 
 
 sheriff of the said county, on the day of 
 
 in the same term, (the last day of term preced- 
 ing die trial,) before our lord the king at Westminster , 
 to be executed according to law, at his peril. 
 
 The
 
 OF NISI PRIUS. 713 
 
 The record of nisi prius was formerly made out; 
 by the clerks of the chief-clerk "; but it is now done 
 by the attomies, and is to be fairly engrossed, on a 
 press or skin of parchment, stamped with a double 
 half-crown stamp ''. The record being engrossed, is 
 carried to the nisi prius office, where it is sealed and 
 passed; for which is paid seven shiUings and six- 
 pence for the first eight sheets, seven shillings for 
 every eight sheets after, and sixpence to the sealer ^. 
 In London and Middlesex^ all records of nisi prius 
 are to be sealed, on or before the respective days ap- 
 pointed by the lord chief-justice, in the sittings- 
 paper, for their trial ^ And there is an old rule of 
 court, that no record of nisi prius ^ for the trial of an 
 issue at the assizes, shall be sealed after the end of 
 three weeks next after the end of the term ^ : But by 
 obtaining a judge's order, for which the clerk is paid 
 two shillings, and which he will procure at his 
 leisure, the record may now be sealed at any time 
 before the assizes'". In causes which stand over 
 from one sitting to another, the records should be 
 regularly resealed, previous to the sitting to which 
 
 they 
 
 '^ R. T. 1 Jac. II. R. M. former rules of T. 15 Car. II. 
 
 5 Ann. reg. 1. reg. 2. R. H. 15 & 16 Car. 
 
 JR. M. 5 Ann. reg. 1. (A). II. reg. 2. R. H. 20 & 2 1 
 
 e Same rule, (c). Car. II. 
 
 iR. E.7 Geo. I. ^rt. 31 Car. II. (a) 
 K R. T. 31 Car. II. anU see 
 
 Vol II. H
 
 714 OF THE JURY-PROCESS. 
 
 they stand over; or in default thereof, the causes 
 cannot be tried '. 
 
 If the issue has not been previously entered of re- 
 cord, it must be so entered, or at least an mcipitur 
 made, before the passing of the record of nisi prius: 
 For it is a rule of court, that no record of nisi 
 prius shall be sealed, or passed at the nisi prius 
 office, by the custos brei}ium, or any clerk of that 
 office, before the issue in that cause be fairly entered 
 on record, or an incipitur thereof, and such entry, 
 with the record of nisi prius ^ be first brought to and 
 signed by the secondary ; for which no fee shall be 
 demanded or paid, but the usual and accustomed fee, 
 due to the chief clerk, for entry of such issue on re- 
 cord ^. In practice it is usual, when the record has 
 not been previously entered, to make an incipitur on 
 a roll of the term issue was joined, and to take the 
 roll, record of nisi prius^ and draft of the issue, to the 
 clerk of the judgments, who enters the issue, and 
 marks the roll, record and issue-paper, taking three 
 shillings and sixpence for the first ten sheets, and one 
 ''shilling for every six more. 
 
 The first process for convening the jury^ is a 
 Deriire facias, which is a judicial writ, commanding 
 the sheriff, or other officer to whom it is directed, 
 
 to 
 
 i R. E. 33 G. III. E. 1657. and T. 1 Jac. II 
 
 k R. M. 5 Ann. reg. 1. See ante, 682, 
 also the rules of 11. 1649, 

 
 OF THE JU»Y-PROCESS. 
 
 715 
 
 to cause to come before the king at Westmi?ister^ (by 
 <^///, or by o/7^?«<^/ wheresoever, &c.) on a certam 
 day therein mentioned, twelve free and lawful men 
 of the body of the county ^, each of whom has ten 
 pounds a year of lands, tenements, or rents, at the 
 least ", by whom the truth of the matter may be the 
 better known, and who are in no wise of kin either 
 to the plaintiff or to the defendant, to make a jury of 
 the country between the parties in the action, be- 
 cause as well the plaintiff as the defendant, between 
 whom the matter in variance is, have put themsehes 
 upon that jury; and that he return the names of the 
 jurors", &c. 
 
 By the statute JVestm. 2. (13 Ediu. I.) c. 30. the 
 clause of nisi prius was directed to be inserted in the 
 venire facias ; and at first, the trial was had upon 
 
 that 
 
 1 Stat. 4 Ann. c. 16. § 6. 
 and see the 24 Geo. II. c. 18. 
 Willes, 597. 1 Wils. 125. S. C. 
 
 "» Stat. 4 8c 5 W. & M. c. 
 24. § 15. and by the 3 G. II. 
 c. 25. § 18. any leaseholder, 
 for the term of 500 years ab- 
 solute, or for any term deter- 
 minable upon life or lives, of 
 an estate in possession in his 
 own right, of the clear yearly 
 value of twenty pounds or up- 
 wards, over and above the 
 rent reserved, is qualified to 
 serve upon juries ; and in 
 Londoriy any person is qua- 
 
 lified, who is a householder 
 within the city, and has lands, 
 tenements, or personal estate, 
 to the value of one fnmdred 
 pounds. Stat. ult. § 19. Also, 
 by the 4 Geo. II. c. 7. §2. none 
 shall be returned to serve on 
 juries in Aliddlesexy who have 
 served within the two last 
 terms: and by § o. leaseholders 
 foi" any term, where the im- 
 proved rents amount to 50/. 
 /2er annum, are liable to serve 
 on juries in Middlesex. 
 
 " Append. Chap. XXXV. 
 §2, 8cc.
 
 716 OF THE JURY-PIIOCESS. 
 
 that writ °, as it still is, in the case of a trial at bar. 
 This practice was attended with many inconvenient 
 cies : for in the first place, the jury were not obliged to 
 attend, under any penalty, on the day of nisi prius; 
 and ifthey did attend, the defendant might have cast 
 an essoig/i, and so the jury, after much expence and 
 trouble, were obliged to return, leaving the cause 
 untried p. Another inconvenience was, tliat the par- 
 ties, not seeing the panel beforehand, could not be 
 prepared to make their challenges '^. To obviate this 
 latter inconvenience, it was enacted, by the statute 
 42 Ediv. III. c. 11. that *' no inquests, except of 
 " assize and gaol- deli very, shall be taken by writ of 
 *' nisi pri'us, or otherwise, at the suit of any one, 
 *' before the names of all them that shall pass in the 
 *' inquests, shall be returned in court." From 
 thenceforward, the clause of nisi priiis could not be 
 inserted in the 'uenire facias^ as was directed by the 
 statute Westm.. 2. ; and therefore it was take.n out of 
 that writ, and placed in the distringas % as the prac- 
 tice continues to this day. The iienire too was made 
 returnable on a day before the trial, by which means 
 they got rid of the essoign at nisi prius: for by the 
 statute of Marlbridge, (52 Hen. III.) c. 13. " after 
 *' a man hath put himself upon any inquest, he shall 
 
 " have 
 
 o Gilb. C.P. 74. 2 Salk. 454. P Id. 76. 7. 
 2 Ld. Raym. 1143. S. C. ^ /^. 77. 2 Salk. 454. 2 Ld 
 
 P Gilb. C. P. 74, 5. 78. Raym. 1 143. S. C.
 
 OF THE JURY-PROCESS. 717 
 
 *' have but one essoign, or one default;" and by the 
 statute Westm. 2. (13 Edw. I.) c. 27. the essoign 
 shall be allowed him at the next day, which is the 
 day of the return of the venire '. And though the de- 
 fendant never appears now, upon the return of the 
 "venire, yet heretofore he was demanded solemnly; 
 and if he made default, there went out a distringas 
 against the jury, with a clause in it to distrain the 
 defendant: And if after this, he made default again, 
 it was peremptory, because there was no process left 
 to bring him in ^ If a -venire be awarded, and the 
 parties do not go to trial for several terms, a new 
 i)e?iire is awarded from term to term, and the cause 
 continued by vicecomes non misit breiie"'-, but the 
 venire never in fact issues, till the term when the 
 cause is tried. 
 
 The distringas, upon which the trial is had, is a 
 judicial writ, commanding the sheriff, or other officer 
 to whom it is directed, to distrain the jurors, by all 
 their lands and chattels, &c. so that he may have 
 their bodies before the king at IVestniinster, or (by 
 original) wheresoever, &c. on [the first return-day 
 in term, after the trial], or before the chief-justice, 
 
 or 
 
 •^ Gilb. C. P. 74, 5. 77, 8. 925. S, C. • 
 
 iSalk. 216. 2 Ld.Raym.925. " Gilb. C. P. 83. and sec 
 
 S.C. 2 Salk. 454. 2 Ld. Raym. Append. Chap. XXXI. § 32, 
 
 1143.S. C. 34. 
 
 ^ 1 Salk. 216. 2 Ld. Raym. .
 
 718 or THE JUKY-PROCESS. 
 
 or judges of assize, if they shall first come on [the 
 day of trial"), at [the place where the cause is intend- 
 ed to be tried], to make a certain jury between the 
 said parties, of a plea of, &c. (according to the 
 nature of the action,) and to hear thereof their judg- 
 meat of many defaults ^', &c. 
 
 After a distringas had issued, with a clause of nisi 
 pi'ius, if the cause stood over, for default of jurors, 
 till a subsequent term, the plaintiff at common law 
 could not have had a 'venire de novo^, unless for some 
 fault in executing or returning the distringas "" ; but 
 he must have sued out an alias or pluries distringas, 
 for bringing in the same jury. And still, if after a 
 special jury has been struck, the cause goes off for 
 default of jurors, no new jury can be struck; but the 
 cause must be tried by the jury first appointed ^. 
 And the same jury shall serve for the trial of the 
 cause, notwithstanding an intermediate change of 
 sheriffs ^ 
 
 But with regard to common juries, it is enacted, 
 by the statute' 7 & 8 /F". III. c. 32. \ I. '' that if 
 *^ any plaintiff or demandant, in any cause depend- 
 " ing in any of the courts at Westminster, which 
 *' shall be at issue, shall sue forth, or bring to any 
 " sheriff, any writ of 'oenire facias, upon which any 
 
 *' writ 
 
 ••- Append. Chap. XXXV. ^ Id. 92, 5 T. R. 464. 
 § 6. y 5 T. R. 453. 
 
 ^' Gilb. C. P. S3. ■ z Cowp. 412. 
 
 I
 
 OF THE JURY-PROCESS. 719 
 
 -*' writ of habeas corpora or distringas^ with a nisi 
 *' priuSj shall issue, in order to the trial of such issue 
 " at the assizes, and such plaintiff or demandant shall 
 " not proceed to the trial of the said issue, at the said 
 " first assizes after the teste of every such writ of 
 " habeas corpora or distringas y \v'i\h a 7iisi priuSs 
 " that then and in all such cases, (other than where 
 " iiieivs by jurors shall be directed '^,) the plaintiff or 
 " demandant, whensoever he shall think fit to try the 
 '* said issue at any other assizes, shall sue forth and 
 " prosecute a new writ of 'venire facias, directed to 
 *' the sheriff, in this form: That you cause to come 
 " anew ^, before, &:c. twelve free and lawful men of 
 *' the neighbourhood of j1. [now, of the body of your 
 *' county,] each of whom has ten pounds a year, of 
 " lands, tenements or rents, at the least, by whom, 
 " &c. and who neither, &c. and the residue of the 
 *' said writ shall be after the ancient manner; which 
 " writ being duly returned and filed, a writ of habeas 
 *' corpora or distringas, with a nisi prius, shall issue 
 " thereupon, (for whicli the ancient and accustomed 
 " fees shall be taken, and no more, as in the case of 
 " the pluries habeas corpora or distringas, with a nisi 
 " prius,) upon which the plaintiff or demandant shall 
 " and may proceed to trial, as if no former writ of 
 
 'venire 
 
 ^ Com. Rep. 248. »> Append. Chap. XXXV. § 5.
 
 720 OF THE JURY-PROCESS. 
 
 " "venire facias had been prosecuted or filed in that 
 " cause, and so tones quot'ies as the case shall require. 
 '' And if any defendant or tenant, in any action de- 
 '' pending in any of the said courts, shall be minded 
 " to bring to trial any issue joined against him, when 
 " by the course in any of the said courts, he may 
 " lawfully do the same by proviso^ such defendant or 
 ' ' tenant shall or may, of the issuable term next pre- 
 " ceding such intended trial, to be had at the ne:^t 
 *' assizes, sue out a new ijemre facias to the sheriff, 
 '' in form aforesaid, by proi^iso; and prosecute the 
 '^ same by writ o^ habeas corpora or distringas^ with 
 " a nisi prius^ as though there had not been any for- 
 *' mer 'uenire facias sued out or returned in that 
 " cause, and so toties quoties as the matter shall re- 
 " quire." 
 
 Tlie "uenire and distringas are directed, according 
 to the award of these writs % to the sheriff of the 
 county in which the action is laid, or of an adjoin- 
 ing county: but where the sheriff is a party, or 
 interested in the cause, they are directed to the 
 coroner^; or if there are two sheriffs, and one of 
 them is interested, to the other: and if the coro- 
 ner, as well as the sheriff, is interested, the 'venire 
 and distringas are directed to elisors ". In a county- 
 palatincy the record is sent by mittimus to the 
 
 justices 
 
 «: Ante, 672.
 
 -OF THE JURY-PROCESS. 721 
 
 justices there, commanding them to issue the jury- 
 process, and when the cause is tried, to send the 
 record back again to the court above '^. 
 
 In point of form, the venire and distringas are 
 general, or special. Where only one issue is to be 
 tried, or there are several issues of the same nature, 
 the venire and distringas are general, to make a jury 
 of the countr}'', between the parties, of the plea or 
 action, whatever it may be: But where there are 
 several issues, in fact and in law, or several defen- 
 dants, and some of them plead and others let judg- 
 ment go by default, the writs are special, as well to 
 try the issues in fact, as to assess the damages upon 
 the issues in law, or against the defendants who let 
 judgment go by default. If the defendant carry 
 down the cause by proviso, the following clause is 
 inserted in the distringas: Provided always, that if 
 two writs shall come to the sheriff, he shall only exe- 
 cute and 7-etur?i one of them ^ 
 
 The venire facias is tested on the first day of the 
 term, in or after which the cause is to be tried; 
 and is made returnable on some day before the trial, 
 being a general return-day, or day certain, accord- 
 ing to the previous proceedings ^ : If in a country 
 
 cause, 
 
 d Jnte, 672, 3, and see Ap- Ent. 676. and see Append, 
 
 pend. Chap. XXXV. § 12, Sec. Chap. XXXV. § 7. 
 
 e 2 Lil. P. R. 636. ^7i(e, s On the traverse of an in- 
 
 680, 81. and see Append, quisition out of chancery, the 
 
 Chap. XXXV. § 3, 4. venire is returnable on a gene- 
 
 f 2 Lil. P. R. 612. 617. Lil. ral return-day. I Wils.77. 
 
 Vol. II. I
 
 722 OF COMMON JURIES. 
 
 cause, the 'venire by original is made returnable oa 
 the last general retuni-day, or if by bill^ on the last 
 day of the term, before the assizes : And the distrin- 
 gas is tested on the quarto die post of the return by 
 original^ or by billon the return of the venire; and 
 made returnable on the first general return-day, or 
 day certain, in term-time, after the trial. It is not 
 necessary by origitial, that there should be fifteen 
 days between the teste and return of the jury-pro- 
 cess ^. The venire facias and distringas are sued out 
 together; and after being sealed, (for they do not re- 
 quire signing,) are taken to the sheriff's office, to be 
 returned. In causes which stand over from one sit- 
 ting to another, the writ of distri?igas should be 
 regularly altered and rcsealed, previous to the sit- 
 ting to which they stand over; or in default thereof, 
 the causes cannot be tried '. 
 
 The jury returned by the sheriff, on the venire 
 facias^ is common or special. A common jury is 
 nominated, summoned, and returned by the sheriff, 
 pursuant to the balloting act, (3 Geo. II. c. 25. 
 § 8.) by which it is enacted, " that every sheriff 
 '*^ or other officer, to whom the return of the ve- 
 '■'■ nire facias jiiratores, or other process for the trial 
 " of causes, before justices of assize or nisi prius, 
 " in any county in England^ doth or shall belong, 
 
 " shall 
 
 ^ Stcit. 13 Car. n. Stat. 2. c. 2. § 6. i R. E. 33 G. IIL
 
 OF COMMON JURIES. /2a 
 
 *' shall upon his return of every such writ of 'vewre 
 *^ facias J (unless in causes intended to be tried at 
 '' bar, or in cases where a special jury shall be 
 " struck by order or rule of court,) annex a panel 
 " to the said writ, containing the christian and sur- 
 " names, additions and places of abode, of a com- 
 *' petent number of jurors, named in the lists men- 
 *' tioned in the act, as qualified to serve on juries, 
 " (the names of the same persons to be inserted in 
 " the panel, annexed to every veriire facias^) for the 
 " trial of all issues at the same assizes, in each re- 
 *' spective county; which number of jurors shall be 
 " not less than forty-eight in any county, nor more 
 " than seventy-two, without direction of the judges 
 ** appointed to go the circuit, and sit as judges of as- 
 " size or iiisi prius in such county, or one of them, 
 " who are thereby respectively empowered and re- 
 ** quired, if he or they see cause, by order under 
 '' his or their respective hand or hands, to direct a 
 *' greater or lesser number, and tli'en such number 
 " as shall be so directed shall be the number to 
 '* serve on such jury; and that the writs of habeas 
 '* corpora juratorum^ or distringas^ subsequent to 
 " such Avrit o^ "venire facias jurator'es, need not havQ 
 *' inserted in the bodies of such respective writs, the 
 '* names of all the persons contained in such panel, 
 " but it shall be sufficient to insert in the mandatory 
 " part of such writs respectively, the bodies of the 
 
 " several
 
 724 or COMMON juries. 
 
 sei)eral persons named in the panel to this writ an- 
 ?iexed, or words of the like import, and to annex 
 to such writs respectively, panels, containing the 
 same names as were returned in the panel to such 
 venire Jacias, with their additions and places of 
 abode, that the parties concerned in any such 
 trials may have timely notice of the jurors who 
 are to serve at the next assizes, in order to make 
 their challenges to them, if there be cause; and 
 that for making the returns and panels aforesaid, 
 and annexing the same to the respective writs, no 
 other fee or fees shall be taken, than what were 
 then allowed by law to be taken for the return of 
 the like writs, and panels annexed to the same; 
 and that the persons named in such panels shall 
 be summoned to serve on juries, at the then next 
 assizes or sessions of nisi prius, for the respective 
 counties to be named in such writs, and no 
 other •"." 
 
 And by § llv " the name of each and ever)' 
 person who shall be summoned and impaneled 
 as aforesaid, with his addition and the place of 
 his abode, shall be Avritten in several and distinct 
 pieces of parchment or paper, being all as near 
 as may be of equal size and bigness, and shall 
 be delivered unto the marshal of such judge of 
 assize or nisi prius^ &c. who is to try the cause in 
 
 "the 
 
 kSeeR. E. 1651.
 
 OF SPECIAL JURIES. 725 
 
 *' the said county, by the under-sheriff of the said 
 " county, or some agent of his; and shall, by di- 
 *' rection and care of such marshal, be rolled up, all 
 " as near as may be in the same manner, and put 
 '* together in a box or glass, to be provided for that 
 " purpose." 
 
 Upon the execution of a writ of inquiry, the plain- 
 tiff, we may recollect, sometimes moves the court 
 for a rule to have a good ]ury \ which is a better sort 
 of common jury"': And before the introduction of 
 special juries, this rule appears to have been fre- 
 quently granted, for the trial of causes at nisiprms "*. 
 
 A special jury is nominated, in the presence of 
 the attomies on both sides, by the secondary, or 
 master of the King's Bench-office, who makes out 
 a list of forty-eight jurors, from the freeholders' 
 book, or book kept by the sheriff, of persons quali- 
 fied to serve on juries, out of whom each party is 
 at liberty to strike twelve, and the remaining twen- 
 ty-four are summoned and returned by the sheriff. 
 Special juries appear to have been first introduced 
 upon trials at bar, in causes of great consequence; 
 wherein the court would anciently make a rule, 
 upon motion and affidavit, for the secondary to 
 name forty-eight freeholders, and that each party 
 
 should 
 
 1 Mte^ 513, 19. "» 5 T, R. 460. " 1 Str. 265.
 
 726 OF SPECIAL JURIES. 
 
 should strike out twelve, by one at a time, (the 
 plaintiff or his attorney beginning first,) and that the 
 remaining twenty-four should be the jury, to be re- 
 turned for the trial of the cause °. A rule having 
 been made accordingly, the plaintiff's attorney at- 
 tended the secondary, but the defendant's attorney 
 ^vould not attend, and thereupon the secondary 
 nominated forty-eight, in the presence of the plain- 
 tiff's attorney only : Upon a motion to set aside this 
 nomination, the court thought fit to order a new jury 
 to be struck ; but made it a standing rule for the 
 future, that when the secondary is to strike a jury, 
 he shall give notice to the attornies on both sides to 
 be present, and if one comes and the other does not, 
 he that appeal's shall, according to the ancient 
 course, strike out twelve, and the master shall 
 strike out the other twelve, for him that is absent p. 
 If, by rule of court, the secondary is ordered to 
 strike a jury, in case it be not expressed in the rule 
 that he shall strike forty-eight, and each of the par- 
 ties shall strike out twelve, the secondary is to strike 
 twenty-four, and the parties have no liberty to strik* 
 out any ''. 
 
 Analogous to the practice upon trials at bar, it 
 was sometimes usual, in other cases, where it was 
 conceived an indifferent jury would not be return^ 
 
 ed, 
 
 « 2 Lil. P. R. 123. T. 8 W. III. reg. 2. 
 
 p Id. 127. 1 Salk. 405. R, <» 1 Salk. 405.
 
 OF SPECIAL JURIES. 727 
 
 ed, for the court upon motion to order the sheriff to 
 attend the secondary, with the freeholders' book, 
 and the secondary, in the presence of the attornies 
 on both sides, to strike a jury '. But probable mat- 
 ter must have been shewn to the court, to induce 
 them to grant this rule ' : and it being doubted, 
 whether it could be had without consent \ it was 
 declared and enacted by the statute 3 Geo. II. c. 25. 
 § 15. " that it shall and may be lawful to and for his 
 " majesty's courts of King's Bench, &c. on the 
 *' motion of any plaintiff or plaintiffs, defendant or 
 " defendants, in any action, cause or suit what- 
 " soever, depending or to be brought and carried 
 " on in the said courts of King's Bench, &c. and 
 " the said courts are thereby authorised and re- 
 " quired, upon motion as aforesaid, to order and 
 *' appoint a jury to be struck, before the proper of- 
 " ficer of each respective court, for the trial of any 
 " issue joined in any of the said cases, and triable 
 *' by a jury of twelve men, in such manner as spe- 
 " cial juries have been and are usually struck in 
 " such courts respectively, upon trials at bar had in 
 *' the said courts; which said jury so struck as 
 " aforesaid, shall be the jury returned for the trial 
 " of the said issue." 
 
 Upon this statute it was holden, that the fees 
 for striking a special jury should be paid by the 
 
 party 
 
 ^ 2 Lil. P. R. 123. Td. Ibid. • ],i. 12:.
 
 728 OF SPECIAL JURIES. 
 
 party applying for it; but that the other expences of 
 the trial should abide the event of the suit ". This 
 being found inconvenient, gave rise to the statute 
 24 Geo. II. c. 18. § 1- by which it is enacted, " that 
 " the party who shall apply for a special jury, shall 
 ^' not only bear and pay the fees for striking such 
 " jury, but shall also pay and discharge all the ex- 
 " pences, occasioned by the trial of the cause by 
 " such special jury; and shall not have any further 
 '* or other allowance for the same, upon taxation of 
 " costs, than such party would have been entitled 
 *' unto, in case the cause had been tried by a com- 
 " mon jury, unless the judge before whom the 
 " cause is tried, shall immediately after the trial, 
 *' certify in open court, under his hand, upon the 
 *' back of the record, that the same was a cause 
 " proper to be tried by a special jury""." And by 
 the same statute, § 2. "no person who shall serve 
 " upon a special jury, shall be allowed or take, for 
 " serving on any such jur}', more than the judge 
 " who tries the cause shall think just and reason- 
 " able, not exceeding one pound one shilling, ex- 
 "=' cept in causes where a view hath been directed. '* 
 
 Since 
 
 u Say. Costs, 181, 2 Str. judge cannot certify for the 
 
 1080. Cas. Pr. C. B. 138. costs of a special jury. 1 Esp. 
 
 Barnes, 123. S. C. Cas. M. Pri. 229. 
 
 ^ In criminal cases, the
 
 OF SPECIAL JURIES. 729 
 
 Since the making of this statute, the motion for a 
 special jury is become a motion of course, requiring 
 only counsel's signature ; upon which a rule is drawn 
 up by the clerk of the rules, and an appointment ob- 
 tained tliereon from the master, to nominate the for- 
 ty-eight: Which rule should be drawn up in London 
 and Middlesex, before the adjournment-day after 
 each term '' . A copy of this rule and appointment is 
 served upon the opposite attorney, and also on the 
 under-sheriff, who attends the master, at the time ap- 
 pointed, with the freeholder's book; and the nomi- 
 nation being made, lists of the persons nominated 
 are made out for each party, by the master's clerk. 
 Another appointment is then obtained from the mas- 
 ter, to reduce the jury, and served on the opposite 
 attorney; upon which the attornies on both sides 
 should attend, and the master will strike out twelve 
 names for each of them, beginning with the plaintiff 
 first, or if either of the attornies does not attend, he 
 will strike out twelve names for him that is absent ''. 
 The plaintiff, it seems, ought in all cases to sue out 
 the jury-process, even though the special jury be 
 moved for by the defendant ^; and in London^ he 
 chuses his own officer to summon them. 
 
 The facility of obtaining a rule for a special 
 jury is attended with this inconvenience, that when 
 
 the 
 
 « R.T. 30 G. III. ^R.T. 8W. III. y Imp. K.B. 324. 
 Vol. II. K
 
 730 OF VIEWS. 
 
 the cause is to be tried at a sitting in term, the defen- 
 dant, by obtaining it, may put off the trial, till the sit- 
 tings after term, it not being usual to try special ju- 
 ry causes in term-time ; by which means, the plain- 
 tiff is delayed from getting judgment till the next 
 term, which may be at the distance of some months. 
 To obviate this inconvenience, it might be proper to 
 make the defendant, in such case, undertake to give 
 judgment, of the term in which the cause would 
 otherwise have been tried ^. 
 
 In actions oi waste, trespass quare clausum fregit^ 
 and other actions, where it appears to the court to be 
 proper and necessary, that the jurors, whether com- 
 mon or special, who are to try the issues, should, for 
 the better understanding of the evidence, have a 'oieijj 
 of the messuages, lands, or place in question, the 
 court is authorised by the statute 4 Ann. c. 16. ^ 8. 
 *' to order special writs of distringas or habeas cor- 
 " pora to issue, by which the sheriff, or other officer 
 " to whom they are directed, shall be commanded 
 
 '' to 
 
 ^ In the Common Pleas, cause to be tried in term, un- 
 
 when delay is suggested as the less such terms are submitted 
 
 true motive for the application to, as obviate the objection ; 
 
 for a special jury, and this is and giving judgment of the 
 
 not satisfactorily denied on the term, is not in all cases satis- 
 
 part of the person applying, factory, 
 the chief-justice directs the
 
 OF VIEWS. 731 
 
 *' to have six out of the first twelve of the jurors 
 *' named in such writs, or some gi-eater number of 
 *' them, at the place in question, some convenient 
 " time before the trial, who then and there shall have 
 *' the matters in question shewn to them, by two per- 
 " sons in the said writs named, to be appointed by 
 " the court =*; and the said sheriff or other officer, 
 *' who is to execute the said writs, shall, by a special 
 *' return upon the same, certify that the view hath 
 *' been had, according to the command of the said 
 " writ," And by the 3 Geo. II. c. 25. ^ 14. "where 
 " a view shall be allowed in any cause, in such case 
 *' six of the jurors named in such panel, or more, 
 " who shall be mutually consented to by the parties, 
 *' or their agents on both sides, or if they cannot agree, 
 " shall be named by the proper officer of the re- 
 " spective courts of King's Bench, &:c. for the causes 
 " in their respective courts, or if need be, by a judge 
 " of the respective courts where the cause is depend- 
 *' ing, or by the judge or judges before whom the 
 " cause shall be brought on to trial respectively, shall 
 " have the view, and shall be first sworn upon the 
 " jury to try the cause." 
 
 Before the statute 4 Ann. c. 16. there could be 
 no view, till after the cause had been brought on 
 
 to 
 
 ^^ Append. Chap. XXXV. § 10, &c.
 
 732 OF VIEWS. 
 
 to trial; when, if the court saw the question involved 
 in any obseurit}^ which might be cleared up by a 
 view, the cause was put off, that the jurors might 
 have a view before it came on again ^. Upon this 
 statute, it had become the practice to grant a view of 
 course, upon the motion of eitlier party : And a no- 
 tion having prevailed, that six of the first twelve up- 
 on the panel must attend upon the view, and appear 
 at the trial, and that if they did not, the cause must 
 be put off, the judges thought it their duty to inter- 
 fere, and to take care that their ordering a view should 
 not obstruct the course of justice, and prevent the 
 cause from being tried: for they were all clearly of 
 opinion, that the act of parliament meant that a view 
 should not be granted, unless the court were satisfi- 
 ed that it was proper and necessary ; and they thought 
 it better, that a cause should be tried upon a view 
 had by any six, or by fewer than six, or even with- 
 out any view at all, than that the trial should be de- 
 layed for a great length of time. Accordingly 
 they resolved, not to order a view any more, 
 without a full examination into the propriety and 
 necessity of it, unless the party applying would come 
 into such terms, as might prevent an unfair use being 
 made of it "". Agreeabjy to this resolution, they re- 
 quired 
 
 b 1 Bur 253. 2 Salk. 665. c i Bur. 253.
 
 OF VIEWS. 733 
 
 quired a consent, which has ever since been made a 
 part of the rule, that in case no view be had, or if a 
 view be had by any of the jurors, though not six of 
 the first twelve, yet the trial shall proceed, and no ob- 
 jection be made on either side, on account thereof, 
 or for want of a proper return to the writ '^. 
 
 In actions of waste, and trespass quare clausum 
 fregit, the necessity for a view appearing on the face 
 of the pleadings, the motion for it is a motion of 
 course, requiring only counsel's signature; upon 
 which a rule of court " is drawn up in term-time, or 
 a judge's order in vacation. But in other cases, a 
 special application must be made for the rule or or- 
 der, to the court or a judge, upon an affidavit of the 
 circumstances; and it is always made a part of the 
 rule or order, that the expences of taking the view 
 shall be equally borne by both parties, and that no 
 evidence shall be given on either side, at the time of 
 taking thereof ^ Before the rule or order is drawn 
 up, an application should be made to the opposite 
 attorney, for the name of his shewer; and the names 
 of both shewers must be inserted in the rule or order, 
 and also in the writ of distringas, with the time and 
 place of meeting for proceeding on the view. The 
 
 rule 
 
 d 1 Bur. 257. and see Ap- § 8, 9. 
 pend. Chap. XXXV. § 8. i Id. ibid. 
 
 e Append. Chap. XXXV.
 
 734 OF EVIDENCE. 
 
 rule or order being drawn up, a copy of it must be 
 served on the opposite attorney, and the original left 
 ivith the sheriff, together with the names of the jurors, 
 if special, and he will summon them ; if common^ he 
 will summon ^uch as he thinks proper. 
 
 The next circumstance to be attended to is the 
 E'Didence; for unless the parties are prepared to 
 prove their allegations, it is needless for them to 
 go to trial : And herein, there are two things to be 
 principally considered in every action, first, what 
 is to be proved; and secondly, the manner of 
 proving it. The evidence, in all cases, is governed 
 by the pleadings ; it being necessary to prove every 
 thing that is put in issue, and no more. On the 
 general issue, the plaintiff must prove the whole 
 of his case; but on a special issue, it is only neces- 
 sary to prove the particular point referred to the 
 jury; for whatever is not expressly denied, is ad- 
 mitted by the pleadings. The manner of proof 
 depends on the nature of the evidence, which is 
 written or unwritten ^ : the former is of a public or 
 private nature, and is either found in the custody 
 of the parties, or of third persons; the latter arises 
 from the testimony of witnesses. In general, the 
 
 parties 
 
 ?: Gilb. Evid. 5.. Bnl. A7. Pri. 221
 
 OF WITNESSES. /3n 
 
 parties must come prepared with the best existing 
 evidence, the nature of the case admits of; and 
 the w^itnesses must be such, as are not interested in 
 the event of the suit ^. But when an objection is made 
 to a witness, that admits of any doubt, the courts, of 
 late years, have endeavoured as far as possible, con- 
 sistently with the old cases, to let the objection go 
 to his credity rather than his cornpetency \ 
 
 The mode of procuring the attendance of wit- 
 nesses, is by subpoena ad testificandum ; which is a 
 judicial writ, commanding them to appear at the 
 trial, to testify what they know in the cause, on 
 the part of the plaintiff or defendant, as the case 
 is, under the penalty of one hundred pounds each ^. 
 Four witnesses only can be put in one writ of sub- 
 pxna ' ; and therefore it is frequently necessary to 
 have several writs, which are signed and sealed. 
 And if a cause appointed for one sitting be made 
 a remanct, the subpczna must be re-sealed and re- 
 served "\ 
 
 If a witness have in his possession any deeds or 
 writings, which it is deemed necessary to produce 
 at the trial, there should be a special clause inserted 
 
 in 
 
 •» Cas. temjj. Hardw. 358. §16. 
 
 4 Burr. 2251. 3 T. R. 27. i Cowp. 846. 
 
 ' Same cases; 1 T. R. 300. "> Imp. K. B. 367. 
 '' Append. Chap. XXXV,
 
 736 
 
 OF WITNESSES. 
 
 in the subpoena, called a duces tecum, commanding 
 the witness to bring them with him " ; or if deeds, 
 &c. are in possession of the opposite party, his at- 
 torney or agent, a notice should be given to pro- 
 duce them°: And even in penal actions, it is not 
 necessary to give the notice to the defendant him- 
 self; notice to his attorney or agent being deemed 
 .sufficient p. In tronjer for a bill of exchange, the 
 defendant must have notice to produce it, or the 
 plaintiff cannot go into evidence of its being in the 
 defendant's possession '^. And the giving of notice 
 to produce deeds, &c. must be proved at the trial, 
 before the party can insist on the production of 
 
 them: 
 
 " Append. Chap. XXXV. 
 § 18. But under a subfixna 
 duces tecum^ a witness is not 
 compellable to produce pri- 
 vate papers in his custody. 
 1 Esp. Cas. .A^z. Pri. 405. 
 
 " The subpoena., with a clause 
 of c?uce.? ;^cm77,and a n>ere no- 
 tice, ought not to be used indif- 
 ferently, as if both were calcu- 
 lated to answer the same end. 
 The former is the mandate of 
 the court, to compel a witness 
 to produce at the trial, any 
 written evidence he may be 
 in possession of; and is the 
 regular and proper process 
 for that purpose : But a notice 
 would be only a call upon his 
 candour, to produce such evi- 
 dence; and his omitting to do 
 
 so, would not be punishable as 
 a contempt of the court. The 
 use o{2L notice is, where written 
 evidence is in the hands of an 
 adverse party ; in which case, 
 though he is not perhaps, in 
 strictness of law, bound to 
 produce it against himself, yet 
 he may produce it; and 
 therefore the party who wants 
 it cannot be permitted to 
 supply its place by the 
 next best evidence, nor to 
 observe upon a refusal to 
 produce it, without proving 
 a notice to the adverse party 
 or his attorney, having first 
 shewn that it was in his pos- 
 session or power. 
 
 p 3 T. R. 306. 
 
 1 1 Esp. Cas. M. Pri. 50.
 
 OF WITNESSES. 737 
 
 them: It is not sufficient that tlie attorney admits 
 the receipt of the notice ^ And where notice has 
 been given to produce books, if the party giving it 
 call for and inspect them, it does not make them evi- 
 dence for the other party, to whom they belong '. 
 
 The subposna being issued, a ticket should be 
 made out for each witness ', and personally delivered 
 to him ", a reasonable time before the day of trial ; 
 for witnesses ought to have a convenient time, to 
 put their own affairs in such order, as that their at- 
 tendance upon the court may be of as little prejudice 
 to themselves as possible '': And notice in London, 
 at two in the afternoon, for the witness to attend the 
 sittings at Wesiminster that evening, has been held to 
 be too short. Where the witness lives within the 
 weekly bills of mortality, it is usual to leave a shil- 
 ling with the subpoena ticket : but where he lives at a 
 greater distance, he is not obliged to attend, unless 
 his reasonable expences are paid or tendered him, not 
 only for going to, but also for returning from the 
 trial; and where less is offered, the witness is not 
 obliged to trust to the court's allowing him more, 
 when he comes to the book, for perhaps the party 
 
 may 
 
 •• Esp. Cas. M. Pri. 216. § 17. 
 
 ' Id. 210. "2 Str. 1054. 
 
 ^ Append. Chap. XXXV. v i str. 510. 
 
 Vol. II. L
 
 738 OF WITNESSES. 
 
 may not call him, and then it may be difficult for 
 him to get home again '". 
 
 If the witness, not having a sufficient excuse, 
 neglect to attend upon the subpcena, he is liable to 
 be proceeded against three ways; first, by attach- 
 ment, for a contempt of the process of the court "^ ; 
 secondly, by a special action on the case for dama- 
 ges, at common law ''; and thirdly, by action on 
 the statute 5 Ellz. c. 9. \ 12. for the penalty of ten 
 pounds, and also for the further recompence given 
 by that statute, if it has been previously assessed 
 by the court out of which the process issued ^ An 
 attachment lies against an attorney in the cause, for 
 not attending upon a subpoena, to give evidence of 
 collateral facts "^; and it may be even had against a 
 peer of the realm ^ But in order to ground this 
 summary mode of proceeding, it is necessary to 
 prove that the witness was personally served ", and 
 that his reasonable expences were paid or tendered 
 him '. The motion for an attachment against a 
 person subpcena'd as a witness, for not attending, 
 
 should, 
 
 w 2 Str. 1150. 1 Blac. Rep. 1528. S. C. Cowp. 845. but 
 
 36. 1 H. Blac. 49. see 3 Bur. 1687. 
 
 '^ 1 Str. 510. 2 Str. 810. ^ Say. Rep. 50. 1 Wils. 
 
 1054. 1150. Cowp. 386. Doug. 332. S. C. but x;/a?e a72/e, 170, 
 
 561. 71. 
 
 y Doug. 561. c 2 Str. 1054. 
 
 •'» Id. ibid. ^ Id. 115Q. 1 Blac. Rep. 36 
 
 a 2 Str. 810. 2 Ld. Raym.
 
 OF WITNESSES. 739 
 
 should, as in other cases of contempt, be brought 
 forward as soon as possible : and therefore the court 
 refused an attachment in Hilary term, for non-at- 
 tendance at the preceding summer assizes, and left 
 the party to his civil remedy *. 
 
 When the witness is detained in prison, a habeas 
 corpus ad testificandum ^ is necessary, to bring him 
 up; for which an application is made to the court 
 or a judge, upon an affidavit^, sworn to by the 
 party applying'', stating that he is a material wit- 
 ness, and willing to attend ". Upon this applica- 
 tion, the court in their discretion will make a rule, 
 or the judge, if he thinks proper, will grant his fiat 
 for the writ, which is then sued out, signed and 
 sealed. But a habeas corpus ad testificandum will 
 not lie, to bring up a prisoner of war " : And where 
 the application for it appeared to be a mere con- 
 trivance, to remove a prisoner in execution, the 
 court refused to grant it '. The writ being sued 
 out, should be left with the sheriff, or other officer 
 in whose custody the witness is detained, who will 
 bring him up, on being paid his reasonable charges '. 
 
 When 
 
 e V. St, Leger, H. 37 ^ Dous.419.; and see 6 T. 
 
 G. III. R. 497. 7 T. R. 745. 
 
 f Append. Chap. XXXV. i 3 Bur. 1440. 
 
 §21. >" 1 Cromp. 248, 9. Qu. 
 
 E Id. ^ 19. whether the officer may not 
 
 ^ Fortes. 396. require an indcmnitxj^ against 
 
 ' Cowp. 672. Per Cur. Hil. the prisoner's escape? /c/. ibid. 
 
 1780.
 
 740 OF EXAMINING WITNESSES 
 
 When a material witness is going, or resides 
 abroad, so that he cannot attend at the trial, the par- 
 ty requiring his testimony may move the court in 
 term-time, or apply to a judge in vacation, for a rule 
 or order to have him examined on interrogatories 
 de bene esse, before one of the judges of the court, 
 if he reside in town, or if in the country or abroad, 
 before commissioners specially appointed, and ap- 
 proved of by the opposite party ''. The rule or order 
 for this purpose cannot be obtained without consent; 
 the depositions of witnesses upon interrogatories not 
 being the best existing evidence the nature of the 
 case admits of. The court however will do every 
 thing in their power to make the parties consent, 
 when necessary ; as by putting oft' the trial, at the 
 instance of the defendant, if the plaintift' will not 
 consent": And if the defendant refuse, the court 
 will not give him judgment as in case of a nonsuit. 
 
 The application, in the first instance, is for a 
 rule or summons to shew cause, upon an affidavit 
 stating that the witness is material, and going or 
 resident abroad: which being consented to, the 
 court will make the rule absolute, or the judge, 
 an order upon the summons. The interrogatories 
 should be then prepared p, which are signed by 
 counsel, and ought not to be too leading : this done, 
 
 a copy 
 
 '' I Cromp. 229. Pul. 210. 
 
 " Cowp. 174. Doug. 419. p Append. Chap. XXXV\ 
 sed quxre; and see 1 Bo.s. 8c §22,3.
 
 ON INTERROGATORIES. 74i 
 
 a copy of the interrogatories is given to the opposite 
 attorney, with notice of the time when the witness 
 is to be examined, in order that he may file cross 
 interrogatories '^, if he think proper. At the time ap- 
 pointed, the^ witness is taken, together with the inter 
 rogatories, to the judge's chambers, or before the 
 commissioners appointed by the rule or order, where 
 he is examined; and his depositions being sworn to, 
 copies are made out, and deUvered to the party re- 
 quiring them. And as the depositions are only taken 
 de bene esse, they cannot be made use of, if the wit- 
 ness should happen to be in this country, at the time 
 of the trial "". The party succeeding is not entitled to 
 the costs of examining witnesses on interrogatories, 
 or taking office-copies of depositions ; but each party 
 pays his own expence, unless it be otherwise ex- 
 pressed in the rule ^ 
 
 By the statute 13 Geo. III. c. 63. \ 44. it is 
 enacted, " that when and as often as the East-In- 
 " d'la company, or any person or persons, shall 
 '' commence and prosecute any action or suit, in 
 *' law or equity, for which cause hath arisen in 
 '' India, against any other person or persons, in 
 *' any of his majesty's courts at Westminster, it shall 
 " and may be lawful for such court respective. 
 
 - "ly 
 
 H Append. Chap. XXXV. 493.; and see Bui. M. PH. 
 § 24. 239. 
 
 «• 2 Salk. 691. 12 Mod. ' 2 East, 259.
 
 742 OF EXAMINING WITNESSES, &C. 
 
 ** ly, upon motion there to be made, to provide and 
 ** award such writ or writs, in the nature of a man- 
 *' damns or commission, as therein mentioned, for 
 *' the examination of witnesses; and such examina- 
 " tion being duly returned, shall be allowed and 
 " read, and shall be deemed good and competent 
 " evidence, at any trial or hearing between the par- 
 " ties in such cause or action.'* These writs have 
 been accordingly issued in several cases * ; and in one 
 of them ", the motion being made on the last day of 
 the term, the court awarded such a writ, even before 
 issue joined. 
 
 t Mullick V. Luahington, M. Company^ M. 33 Geo. III. 
 26 G. III. East-India Com- « Sfialding v. Mure, T. 35 
 
 pany v. Lord Maiden^ E. 32 G. III. 
 G. III. Taylor v, East-India 
 
 CHAP-
 
 [ 743 ] 
 
 CHAPTER XXXVL 
 
 Of Arbitration. 
 
 T^HE record of nisi prius being made up and 
 passed, the jur)^-process sued out, and the wit- 
 nesses subpoena^ d^ the cause is entered for trial. And 
 in this stage of the proceedings, or more frequently 
 at the trial, when one or other of the parties is com- 
 monly fearful of the event, the matter in dispute is 
 sometimes referred to arbitration ^. 
 
 Arbitrations are of two kinds, first, where there 
 is a cause depending in court, and secondly, where 
 no cause is depending. The submission, in the 
 former case, is either by rule of court before the 
 trial, or by order of nisi prius at the trial '', which is 
 afterwards made a rule of court; and upon a sub- 
 mission of this kind, the plaintiff usually takes a 
 verdict for his security, particularly when there is 
 special bail, who would not otherwise be liable for 
 the sum awarded. In the other case, the submis- 
 sion 
 
 a The subject of arbitration ment of the parties, to refer 
 
 is not necessarily connected them to the decision of one or 
 
 with a suit at law, as it fre- more indifferent persons as ar- 
 
 quently exists, where no suit bitrators. 
 is depending ; being a mode •> Append. Chap. XXXVI 
 
 of settling disputes by agree- § 1.
 
 744 OF ARBITRATION. 
 
 sion is by agreement of the parties, which is either 
 in writing, or by parol; or by the positive direc- 
 tions of an act of parliament, as in the case of in- 
 closure acts. 
 
 References made by rule of court having been 
 found to contribute much to the ease of the subject, 
 in the determining of controversies, the parties be- 
 ing obliged thereby to submit to the award, under 
 the penalty of imprisonment, it was enacted, by the 
 statute 9 and 10 W. III. c. 15. \ 1. " that it shall 
 " and may be lawful for all merchants and traders, 
 " and others desiring to end any controversy, suit or 
 *' quarrel, for which there is no other remedy but by 
 " personal action or suit in equity, by arbitration, 
 " to agree that their submission of their suit to the 
 " award or umpirage of any person or persons, 
 " should be made a rule of any of his majesty's 
 *' courts of record, which the parties shall choose, 
 " and to insert such their agreement in their submis- 
 " sion, or the condition of the bond" or promise, 
 *' whereby they oblige themselves respectively, to 
 ' ' submit to the award or umpirage of any person or 
 *' persons; which agreement being so made, and 
 ' ' inserted in their submission or promise, or condi- 
 *' tion of their respective bonds, shall or may, upon 
 " producing an affidamt thereof made by the wit- 
 " nesses thereunto, or any one of them, in the court 
 
 " of 
 
 - Append, Chap. XXXVI. § 2.
 
 OF ARBITRATION. 745 
 
 ** of which the same is agreed to be made a rule, and 
 " reading and filing the said affidavit in court, be en- 
 '* tered of record in such court; and a rule shall 
 ** thereupon be made by the said court, that the par- 
 *' ties shall submit to, and finally be concluded by 
 *' the arbitration or umpirage which shall be made 
 " concerning them, by the arbitrators or umpire, 
 " pursuant to such submission; and in case of dis- 
 " obedience to such arbitration or umpirage, the party 
 " neglecting or refusing to perform and execute the 
 " same, or any part thereof, shall be subject to all 
 " the penalties of contemning a rule of court, when 
 " he is a suitor or defendant in such court, and the 
 " court on motion shall issue process accordingly; 
 " which process shall not be stopped or delayed in 
 " its execution, by any order, rule, command, or 
 *' process of any other court, either of law or equity, 
 " unless it shall be made appear on oath to such 
 *' court, that the arbitrators or umpire misbehaved 
 " themselves, and that such award, arbitration, or 
 " umpirage was procured by corruption, or other 
 '■*■ undue means." The intent of this act was to put 
 submissions, where no cause was depending in court, 
 upon the same footing with those, where there was a 
 cause depending; and it is only declaratory of what 
 the law was before, in the latter case '^. 
 
 This 
 
 ^ 2 Bur. 701. 
 Vol. II. M
 
 746 OF ARBITRATION. 
 
 This statute is confined to the submission of dis- 
 putes of a chil nature : Therefore the court will not 
 make a submission to an award a rule of court, where 
 part of the matter agreed to be referred has been 
 made the subject of an indictment ^. And a parol 
 submission is not within the statute ^; nor a submis- 
 sion in wTiting, unless it is agreed to be made a rule 
 of court: But where there is such an agreement, it 
 seems that the court will enforce the execution of a 
 parol award by attachment °. A consent, in the ar- 
 bitration-bond, to make the award a rule of court, 
 instead of the submission^ \\'\X\ it seems warrant the 
 interposition of the court, under this act ^ : And 
 where a submission was by bond, and at the end of 
 the condition there was this clause; And if the obli- 
 gor shall consent^ that this submission be made a rule 
 of courts that thcn^ ^c. the court on motion held 
 these conditional words to be a sufficient indication 
 of consent, and made the submission a rule of court \ 
 So where the agreement, to make the submission 
 a rule of court, was no part of the condition, but 
 was thereunder written, and not signed; it appear- 
 ing by affidavit, that the subscription was made 
 before the execution of the bond, it was taken by 
 
 * the 
 
 ^ 8 T. R. 520. Bos. & Pul. 444. but see 2 
 
 '7 T. R. J. Str. 1178. contra, 
 
 t Barnes, 54. i 1 Salk. 72. \ Ld. Raym. 
 
 '■■^ Powell \. Philli/is, E. 30 674. S. C 
 
 G. III. 3 East, 603. K. B. 2 ;*
 
 OF ARBITRATION. 747 
 
 the court to be part of the condition, as an in- 
 dorsement by way of defeazance is part of the 
 deed; and the submission was made a rule of 
 courts 
 
 A submission to arbitration, by iiile of court, of 
 all matters in difference between the parties in the 
 cause y is not confined to the subject-matter in the par- 
 ticular action then depending ; but will extend to 
 cross demands between the paities, though not plead- 
 ed by way of set-off; and the costs being to abide 
 the event, will make no difference ""r But a reference 
 of all matters in difference in tlie cause between the 
 parties^ is confined solely to the matters in dispute 
 in that particular action. A submission to an award 
 having been made a rule of court, between A. and B. 
 the parties on the record, which award not having 
 been made in time, the dispute was referred to a se- 
 cond arbitrator, by B. and C. who were the real par- 
 ties in the suit, the court would not grant an attach- 
 ment against B. for not obeying the award made by 
 the second arbitrator, because the reference should 
 have been made by the parties on the record; and 
 even if it had, there should have been another rule, 
 to make the second submission a rule of court: And 
 as the court had no jurisdiction in this case, they could 
 
 not 
 
 i Barnes, 55. »« 2 T. R. 645.
 
 748 OF ARBITRATION. 
 
 not go into the merits, though B. consented to waive 
 the objection '. 
 
 It was formerly holden, that a reference to arbitra- 
 tion was an implied stay of proceedings ". But in 
 the beginning of queen Anne'^s time, a rule was made, 
 that no reference whatsoever, of any cause depend- 
 ing in this court, should stay the proceedings; un- 
 less it was expressed, in the rule of reference, to be 
 agreed, that all proceedings in this court should be 
 stayed ". And it has been frequently decided, that an 
 agreement to refer all matters in difference to arbitra- 
 tion, is not sufficient to oust the courts of law or 
 equity of their jurisdiction °. 
 
 There are several ways, however, in which the 
 power of arbitrators may be legally determined; as 
 first, by the death of the parties to the submis- 
 sion ''; secondly, by the arbitrators not making an 
 award, within the time limited; thirdly, by their 
 disagreement, and refusal to act or intermeddle any- 
 further, or by their appointing an umpire to act 
 for them''; and fourthly, by the re'vocation of the 
 parties : Respecting which it is laid douTi, that al- 
 though a man be bound in a bond to stand to the 
 
 arbitrament 
 
 1 2 T. R. 643. q 1 Rol. Abr. 261, 2. 1 Sid. 
 
 »n 1 Mod. 24. 428. 2 Saund. 129. 1 Lev. 
 
 n 2 Ld. Raym. 789. 174. 285. 302. 3 Lev. 263. 2 
 
 • 8 T. R. 139. Vent. 1 13. 1 Salk. 70, 71, 72. 
 p But see Barnes, 2 10. 
 
 1
 
 OF ARBITRATION. 749 
 
 arbitrament of another, yet he may countermand df 
 revoke the power of the arbitrator; for a man cannot, 
 by his own act, make an authority, power, or war- 
 tant not countermandable, which by the law and of 
 its own nature may be countermanded "^ : But by this 
 countermand, or revocation of the power of the ar- 
 bitrator, the bond is forfeited, and the obligee shall 
 take the benefit thereof % A matter was referred by 
 consent at nisiprius, to the three foremen of the jury, 
 and before the award was made, one of the parties 
 served the arbitrators with a subpoena out of Chan- 
 cery, which hindered their proceeding to make the 
 award; the court held this to be a breach of the rule, 
 and granted an attachment nisi \ So where the par- 
 ties, upon a reference, consented to abide by the 
 award, and not to bring any bill in equity, and their 
 submission was made a rule of court, and after an 
 award made, one of them filed a bill in Chancerv 
 against the other, the court made a rule absolute for 
 an attachment ". 
 
 When a cause is referred at the trial, it is usual 
 to get the witnesses sworn, before they leave the 
 court; otherwise (if required) they must be sworn 
 before a judge : And the order of nisi prius being 
 obtained, from the clerk of nisi prius in London or 
 
 Middlesex^ 
 
 ' 8 Co. 82. t 1 Salk. 73. 
 
 s Id. ibid. T. Jon. 134. « 3 Bur. 1256.
 
 750 OF ARBITRATION. 
 
 ■Middlesex, or from the judge's associate at the as- 
 sizes, the arbitrator will make an appointment in 
 writing, of a time and place for the parties and their 
 witnesses to attend him ; which appointment should 
 be subscribed to a copy of the order ofnisiprius, and 
 served therewith on the defendant's attorney. And, 
 previous to the meeting, the arbitrators should be 
 furnished with a state of the case, and the names of 
 the witnesses, &.c. A similar mode of proceeding is 
 to be observed, where the reference is by agreement 
 without suit. 
 
 The arbitration then proceeds : And it has been 
 holden that arbitrators, having power to choose an 
 umpire, may elect one before they enter upon the ex- 
 amination of the matter referred to them ". When 
 a cause is referred to three persons, and they or any 
 two of them are empowered to make an award, 
 an award made by two of them is good, if the third 
 had notice of the meetings, &c.; but otherwise, 
 such an award is bad '". If the arbitrators cannot 
 make their award, within the time limited by 
 the rule of court, or order of ?iisi priuSy a rule may 
 be obtained, by consent, for enlarging it; or 
 where the submission is by agreement without 
 suit, the time may be enlarged by consent of the 
 
 parties . 
 
 V 2 T. R. 644. w Willes, 215. Barnes, 57. S. C
 
 OF ARBITRATION. 75i 
 
 parties. But where the submission is by bond '', 
 an agreement to enlarge the time for making an 
 award, must contain a consent that it shall be made 
 a rule of court; otherwise no attachment will be 
 granted, for not performing an award made under 
 it y. The rule, when necessary, is drawn up by the 
 clerk of the rules, on a brief or motion-paper 
 signed by the counsel on both sides, and a copy of 
 it served, with an appointment thereon; but be- 
 fore this rule can be obtained, a motion must be 
 made, for making the order of nisi prius or agree- 
 ment a rule of court. 
 
 It will next be proper to consider the award; 
 and the mode of enforcing it, by the party in whose 
 favour it is made, or of setting it aside, by the op- 
 posite party. The general requisites of an award 
 are, that it be certain, mutual, and final'': But 
 certainty to a common intent is sufficient ^. And 
 an award may be good in part and bad in part, 
 provided the latter be independent of, and uncon- 
 nected with the former^. Though the award be 
 final, as to all matters referred, and decided upon 
 by the arbitrators, yet upon a reference of all mat- 
 ters in difference between the parties, an award 
 
 does 
 
 " fitter, where the submis- trament; Kyd on Award; and 
 
 sion is by ov(\tT oi nisi firius . I Saund. 327 (2). 
 
 Per Cur. E.41 G. III. ■' 1 Bur. 274. and see 7 T. 
 
 VST. R. 87. R. 76. 
 
 ^See Bac. Abr. tit. Jrhi- Ij Willes. 62. 66. 25"
 
 752 ' OF ARBITRATION. 
 
 does not preclude the plaintiff from suing for a cause 
 of action, existing against the defendant at the time 
 of the reference, upon proof that the subject-matter 
 of such action was not laid before the arbitrators, nor 
 included in the matters referred ", 
 
 Where a cause is depending, the submission is 
 either silent with regard to costs, or they are directed 
 to abide the event of the award, or else to be in the 
 discretion of the arbitrator. The power of awarding 
 costs is necessarily consequent to the authority con- 
 ferred upon the arbitrator, of determining the cause; 
 and the reason why, in references of this sort, a pro- 
 vision is frequently inserted, that the costs shall abide 
 the event of the award, is that the arbitrator may not 
 have it in his power to withhold costs, from the par- 
 ty who is in the right : But that is to be considered 
 as the restriction of a power, which he would other- 
 wise necessarily have, of allowing costs at his elec- 
 tion '^. 
 
 Where the costs are directed to abide the e'uent, 
 that must be taken to mean the legal event : There- 
 fore, where an action of trespass was brought 
 for pulling down the plaintiff's gates, and assault- 
 ing him, and the defendants pleaded not guilty to 
 the whole declaration, and justified as to all the* 
 counts but one, under different rights of way; and 
 
 the 
 
 ^ 4 T. R. 146. but see d 2 T. R. 644, 5. but see 
 
 Willes, 268. 7 Mod. 349. Willes, 62, 
 
 oct. ed. S. C,
 
 OF ARBITRATION. 755 
 
 the arbitrator awarded a right of way to the defend- 
 ants, different from any of those set forth, and gave 
 five shillings damages to the plaintift' for the assault, 
 as having been committed when the defendants were 
 attempting to exercise a right of way, negatived by 
 the arbitrator; the court held, that the plaintiff could 
 recover no more costs than damages, the award of 
 the arbitrator not being tantamount to a judge's cer- 
 tificate, under the 22 & 23 Car. II. c. 9.^ So where 
 a cause is referred to arbitration, and the costs are di- 
 rected to abide the event of the suit, the plaintiff is 
 not entitled to them, if it appear by the award, that 
 his original demand was under forty shillings, and 
 he might have recovered it in a court of conscience ^. 
 If a cause be referred to arbitration, under an order 
 of nisi prius^ but a verdict be nevertheless taken for 
 the plaintiff, for a certain sum, as a security for what 
 shall be awarded to be paid to him, and costs , the ar- 
 bitrator cannot award a sum to be paid to the i^\i\\n- 
 tiW wit/iout costs; because, by the terms of the order, 
 he was precluded from entering at all into the ques- 
 tion concerning costs ^. 
 
 Where the costs are left to the discretion of the 
 arbitrator, he may either award a gross su?n to be 
 
 paid 
 
 3 T. R. 138. H. 30 Geo. III. 
 
 f Id. 139. Waston v. Gibaon^ s Say. Costs, 177. 
 Vol. II. N
 
 754 OF ARBITRATION. 
 
 paid for costs''; or he may award, that one of the 
 parties shall pay to the other, costs to be taxed by the 
 master'; or he may award costs generally^ in which 
 case the master shall tax them ''. But he cannot award, 
 that one of the parties shall pay to the other such costs 
 as two persons named in the award, but not officers of 
 the court, shall appoint; for this is an improper dele- 
 gation of his authority '. If an arbitrator award costs, 
 to be taxed by the master, such costs shall be taxed 
 as between party and part}^ and not as between at- 
 torney and client "" : And it is settled, that an arbitra- 
 tor cannot award any other than the common costs, as 
 between party and party, unless he be expressly au- 
 thorised so to do ". Where a submission to arbitra- 
 tion is under an order of nisiprius, the arbitrator may 
 award costs, subsequent to the order; but whei'e the 
 submission is by bond, he cannot award subsequent 
 costs °. And if an arbitrator appointed under an 
 order of nisi prius, only aw ard costs to be taxed ge- 
 nerally, 
 
 '' Cas. temfi. llardw. 53. P. 69, 70, 2 Blac. Rep. 953. 
 
 i 1 Salk. 75. 6 Mod. 195. ° Pr. Reg. C. P. 45. Barnes, 
 
 S. C. 7 T. R. 77. 58. And if arbhrators award 
 
 k 2 Str. 737. Say. Rep. 240. the defendant to pay the plain- 
 Barnes, 56. 58. and see Hul- tiff his costs of suit, to be tax- 
 lock on Costs, 418, 19.Willes, ed by the proper officer before 
 62. a particular day, it is tl>e busi- 
 
 1 Cas. teinji. Hardw. 181. v\it?>?> oi t\vi defendaiit to have 
 
 2 Str. 1025. S.C. tliem taxed before that day- 
 
 '" Cas. tcm/i. Hardw. 161. Willes, 62. 
 
 '> Cowp. 127, Cas. Pr. C. 
 
 1
 
 OF ARBITRATION. 755 
 
 iierally, the costs of the reference ought not to be al- 
 lowed on the taxation, but merely the costs of the 
 suit P : Neither will an award that one party shall pay 
 to the other, the costs by him sustained in the action, 
 include the costs of the reference '^. Where the cause 
 goes off upon an ineffectual arbitration, and is after- 
 wards tried, costs are allo^ved as upon a remanet \ 
 
 The mode of enforcing an award, by the party in 
 whose favour it is made, is by action, or when the sub- 
 mission is made a rule of court, by attachment ' ; and 
 if a lierclict has been taken for the plaintiff's security, 
 by entering up judgment thereon, and taking out exe- 
 cution. Upon a submission being made a rule of 
 court, it was formerly holden, that the party might 
 proceed both by action and attachment at the same 
 time ' ; but a different doctrine has been since laid 
 down ". 
 
 Where the submission is by deed with a penalty, 
 and the award is made within ihe time limited, an 
 action of debt lies upon the deed, for the non-per- 
 formance of the award; and that, \^'hether the 
 award be for the payment of money, or the per- 
 formance 
 
 p Barnes, 123. 1 H. Blac. 71. 131. 144. 1 H. Blac. 
 
 223. I Bos. Ec Pul. 34. 639. 
 
 q 1 H. Blac. 223. « 1 Salk. 83. 
 
 ' 5 Bur. 2694. Say. Costs, t Id. 7:!,. 
 179. S. C. but see Doug. " Andr. 299. Cas. tcmii. 
 
 437, 3 T. R. .507. 6 T. R. Harilw 106.
 
 756 OF ARBITRATION. 
 
 formance of a collateral act. But where in an arbitra 
 tion-bond, a time was limited for the arbitrator to 
 make his award, and such time was afterwards en- 
 larged by mutual consent, it was held that no action 
 could be maintained on the bond, to recover the pe- 
 nalt}^ for not performing the award, made after the 
 time first limited " : In such case, the plaintiff should 
 have proceeded by action of debt or assumpsit^ on the , 
 submission implied in the agreement, to enlarge the 
 time. An action of debt also lies upon a submission 
 by deed, without a penalty, or upon a submission in 
 writing Vv'ithout deed, or by parol, where the award 
 is. for the payment of money; but where it is for the 
 perlbrmance of a collateral act, the plaintiff should 
 proceed by action of coijenatit upon the deed, or if 
 the submission be without deed, by action of as- 
 sinnpsit "''. And when matters in dispute are refeiTed 
 to arbitration, without bond, and the arbitrators 
 award a certain sum to be due, it may be recover- 
 ed under a coimt on an insimul comput assent ". Two 
 several tenants of a farm agreed with the succeed- 
 ing tenant, to refer certain matters in difference re- 
 specting the farm to arbitration, and jointly and 
 severally promised to perform the award; the ar- 
 bitrator awarded each of the two to pay a certain 
 sum to the third ; and the court held, that they were 
 
 jointly 
 
 ^3 T. R. 592. in nods. " 1 Esp. Cas. M. Pri. 194. 
 
 ^ 2 Ld. Raym. 1040. but see id. 377.
 
 OF ARBITRATION. 757 
 
 jointly responsible for the sum awarded to be paid 
 by each ^. 
 
 Where the submission is by rule of court origi- 
 nally, or by order of nisi prius or agreement, whicl; 
 is afterwards made a rule of court, the party disobey- 
 ing an award is not only liable to an action, but also 
 to an attachment, as for a contempt \ And where the 
 original award was lost, the court, on a proper affida- 
 vit, granted an attachment upon a copy of it ^. Bui 
 an attachment cannot be granted against a peer of the 
 realm, or member of the house of commons, for non- 
 payment of money pursuant to an award ''. If an ar- 
 bitrator award, among other things that each party 
 shall pay a moiety of the costs of the arbitration, and 
 of making the submission a rule of court; and one 
 party, in order to get the award out of the hands of 
 the arbitrator, pay the whole ; it seems that he may 
 have an attachment against the other party, if he re- 
 fuse to pay his moiety ". 
 
 The party having a remedy by action on the 
 award, it is discretionary in the court, whether or 
 not they will enforce it by attachment. And 
 therefore, where there was a contrariety of evi- 
 dence, they would not deterhiine it upon affida- 
 vits, 
 
 y 7 T. R. 352. h 7 T. R. 171. 448. Jnte, 
 
 '■ 1 Salk. 83. 170, 71. 
 
 ^ 1 Str. 526. - 1 T^os. & Pul. 93.
 
 758 OF ARBITRATION. 
 
 vits, in a summary way ^. So where the defendant 
 was a bankrupt, and incapable of paying the sum 
 awarded, the court refused an attachment for non- 
 payment of it '^ : And where a party was taken upon 
 an attachment for not performing an award, after 
 which he became bankrupt and obtained his cer- 
 tificate, the court ordered him to be discharged; for 
 this was a demand for which debi would lie, and the 
 act says, he shall not be arrested, /^ro^'^'cz//*?^ or im- 
 pleaded for any debt due before the bankruptcy : It 
 would therefore be hard to keep him in custody, 
 when the duty is discharged ^ A kmt-sole having 
 agreed to a reference, was awarded to deliver up two 
 notes, and pay a sum of money ; she married, and the 
 husband refusing to pay, it was doubted if the court 
 could grant an attachment, against both or either of 
 them ^. 
 
 The court will not grant an attachment against 
 an administrator, for not performing a rule of court 
 entered into by the intestate''. And a submission 
 to arbitration by an executor or administrator, is not 
 of itself holden to be an admission of assets; and 
 therefore, if upon such a submission, the arbitrator 
 simply awards a certain sum to be due from the tes- 
 tator 
 
 •i 1 Str. 695. g Jnon. 1 Cromp. 270. and 
 
 •^ Anon. K. B. 1 Crotnp. see 6 T. R. 161. 
 '270. ^ Willes, 315. 
 
 f 2 Str. 1152.
 
 OF ARBITRATION. 759 
 
 tator or intestate's estate, without saying by whom it 
 is to be paid, the executor or administrator is not 
 personally liable to the payment ol" the sum awaided, 
 nor can be attached for the non-payment of it '. But 
 a submission to arbitration by an executor or admi- 
 nistrator, is considered as a reference not only of the 
 cause of action, but also of the question, whether or 
 not he has assets: And therefore if an arbitrator, un- 
 der a reference between A. and B. administrator 
 award that B. shall pay a certain sum as the amount 
 of A.'s demand, B. cannot afterwards object that he 
 had no assets; for this is equivalent to determining, 
 as between these parties, that he had, and therefore he 
 may be attached for non-payment ''. A foreign at- 
 tachment in London, if properly pleaded, is a good 
 bar to an action on an award ', or on a bond condi- 
 tioned for its performance '"; but where the submission 
 is made a rule of court, it is no answer to an attach- 
 ment in this court, for non-payment of the sum 
 awarded ". 
 
 Before any application is made for an attach- 
 ment, or to set aside an award", the submission 
 
 must 
 
 i 5 T. R. 6. And trustees, i 1 Sid. 327. 
 
 by submiting matters to ar- f" 1 Ld. Raym. 636. 3 Salk. 
 
 bitration, do not make them- 49. S.C. 
 
 selves personally liable. 3 Esp. ^^ Grant, v. Hwuxiing, 4 T. 
 
 Cas.A7.iV/. 101. R. 313. in notis. 1 Cromp 
 
 k 7 T. R. 453. and see 270. 
 
 1 T. R. 691. « ? Str. 1178.
 
 760 OF ARBITRATION. "" 
 
 must be made a rule of court, if not one already; 
 which is done on an affidavit, by one of the wit- 
 nesses, of the due execution of the bond, or agree- 
 ment containing the submission p; and if he refuse to 
 make it, the court will compel him '^. But where a 
 matter is referred to arbitrators, by rule of court, 
 and they make their award, the court will compel a 
 performance of it, as much as if the award were part 
 of the rule ; so that a new rule is needless ^ 
 
 In order to proceed by attachment, there must be 
 personal notice of the award, and a demand of the 
 money, or other thing awaided*; which demand 
 may be made by the party himself, or by a third per- 
 son under a power of attorney. And at the time of 
 demanding it, a copy of the rule must be served up- 
 on the opposite party, and of the master's allocatur 
 thereon, if the demand be of taxed costs, and also a 
 copy of the award, and of the power of attoiTiey, if the 
 demand be made by a third person "^ ; the original rule 
 and allocatur^ and also the award and power of attor- 
 ney, when required, being at the same time produced 
 and shewn. After a demand and refusal, the court 
 
 upon 
 
 p Append. Chap. XXXVI. 312. Per lord Kenyan, E. 35 
 
 53. G. III. 1 Bos. & Pul. 394. 
 
 1 1 Str. 1. Barnes, 58, ^ Per lord Ke?tuon, H. 38 
 
 ^ 1 Salk. 71. Geo. III. 
 
 - Id. 83. 12 Mod. 257.
 
 OF ARBITRATION. 761 
 
 Upon an affidavit of the due execution ot" the award ^, 
 and power of attorney, and another of the service of 
 a copy of the rule, and of the demand and refusal, 
 &.C. "' will grant a rule for an attachment ?iisiy which 
 they will afterwards make absolute, on an affidavit of 
 service, if no sufficient cause be shewn to the con- 
 trary. Where a submission to an award is made a 
 rule of court under the statute, there being no action, 
 the affidavit upon which to apply for an attachment, 
 for disobeying the award, need not be intitled in any 
 cause ; but the affidavits in answer must "" : And if 
 an affidavit be put into court, without any title, the 
 court cannot take notice of it, though the adverse 
 party is willing to waive the objection • . The affir- 
 mation of a ^laker has been holden not sufficient to 
 ground an attachment, for the non-performance of 
 award ^ 
 
 Where a cause is referred at the trial, and a ver- 
 dict taken for the plaintiff's security, and an award is 
 afterwards made in his favour, the plaintifi" ma}' make 
 
 his 
 
 ^ Append. Chap. XXXVI. Potvel v. Ward^ cited in Andr. 
 
 § 4. 200. and Taylor v. Scott, cited 
 
 ^v/rf. §5, 6. in Cowp. 394. 1 T. R. 266. 
 
 =^ 3 T. R. 601. Ante, 451. and the several cases referred 
 
 y 2 T. R. 643. to by Mr. Dumford, in a very 
 
 2 1 Str. 441. Willes, 291. copious note on Willes, 292. 
 
 S. P. but see the eases of scmb. centra. 
 
 Vol. II. O
 
 762 OF ARBITRATION. 
 
 his election, either to proceed on the award, by ac- 
 tion or attachment, or on the verdict; and in the lat- 
 ter case, the plaintiff is entitled to sign judgment, 
 and take out execution for the money awarded, 
 without first applying to the court for leave ^. If in 
 such case the award be made before the term, the 
 dctendciut in the common pleas can only impeach it 
 within the four first days of term : And personal ser- 
 vice of the award is not necessary to warrant the 
 issuing of execution, if the attorney of the defendant 
 has been served with a copy of the award.* 
 
 The mode of setting aside an award is by applica- 
 tion to the court, founded on some objection to its 
 legality, appearing on the face of the award itself, or 
 from the reasons given by the arbitrators in support 
 of it '; or else on an afiidavit of some irregularity, as 
 want of notice of the meeting '^, or collusion or gross 
 misbehaviour of the arbitrators '^ : And upon such an 
 apjDiication, if made in due time, every ground of 
 relief in equity, against an award, is equally open in 
 tills court ". The usual practice is, to oblige the par- 
 ty who complains of the award, to move to set it 
 aside, unless the objections appear on the face of it; 
 and then both rules come on together: This gives 
 the other side an opportunity of answering the alle- 
 gations, on which the objections to the award are 
 founded. But the court on motion will not enter into 
 the merits at large; for if they did, no person, it is 
 said, would ever undertake to be an arbitrator ^. And 
 
 they 
 
 a 1 East, 401. I Bos. £c 529. 
 
 Pul. 97.480. SBos.&cPul. 244. d 3 Atk. 529. 2 Bur. 701, 
 
 but see 1 Salk. 8 ;. Barnes, 58. «= 3 Bur. 1258, 9. 
 
 contra. f 1 Salk. 71. 1 Str. 301. 3 
 
 b 3 East, 18. Atk. 529. 2 Bur. 701. 
 
 c 1 Salk. 7 1. but see 3 Atk. * 3 Bos. & Pul. 244.
 
 OF ARBITRATION. 763 
 
 they will not set aside the award of an umpire, because 
 he received evidence from the arbitrators, without 
 examining the witnesses, unless he were required to 
 re-examine them, before the making of his umpi- 
 rage 5. If an award be made on an improper stamp, 
 and no application be made to enforce the award, the 
 court will not set it aside "": And if an objection to 
 the stamp be not alleged, as a ground for obtaining 
 a rule to shew cause to set aside an award, the court 
 will not suffer it to be relied upon afterwards, when 
 cause is shewn '. On a motion respecting an award of 
 commissioners, under an inclosure act, the court 
 said: *' We may punish upon this, if there be any 
 corruption; or enforce its execution by mandamus: 
 But we are not to interpret or set aside these awards, 
 upon complaint of their obscurity \ &.c." 
 
 By the statute 9 & 10 ^. III. c. 15. § 2. " any 
 *' arbitration or umpirage, procured by corruption or 
 " undue means, shall be judged and esteemed void 
 " and of none effect, and accordingly be set asidt* by 
 ** any court of law or equity, so as complaint of such 
 " corruption or undue practice be made, in the court 
 " where the rule is made for submission to such 
 " arbitration or umpirage, before the last day of the 
 
 " next 
 
 g 4 T. R. 589. And see 1 38 G. III. 
 Bos. & Pul. 9 1 . 175. k OvtT'Kdlet Inclosure Act, 
 
 ''7TR.95. H. 38 Geo. III. 
 * Liddell v. Johns toncy H.
 
 764 or ARBITRATIOK. 
 
 " next term after such arbitration or umpirage made 
 *' and published to the parties'." And where the 
 appHcation is to refer back an award to the same ar- 
 bitrator to reconsider it, on the ground that he had 
 not sufficient materials before him, it must be made 
 within the same time ; although the arbitrator be not 
 charged with corruption or undue practice °\ But 
 the 9 & 10 W. III. c. 15. \ 2. which limits the time 
 of complaining against awards, to the last day of the 
 next term after the award made, extends not to such 
 as are made in pursuance of an order of nisi pr'ius^ 
 but only where the submission is by obligation ". 
 
 The court will not set aside an a^ ard, though for 
 defects appearing on the face of it, after the expira- 
 tion of the time limited by the statute ° : And a party 
 cannot, in shewing cause against an attachment, im- 
 peach die award for any extrinsic matter p. But upon 
 an application for an attachment, for non-perform- 
 ance of an award, it is competent to the parties to 
 object to the award, for any illegality apparent on the 
 face of it, although the time limited by the statute, 
 for applying to the court to set aside the award, is 
 expired '^ : The reason is, tliat upon a motion for an 
 
 attachment, 
 
 ' Co\vp. 23. Barnes, 55. Barnes, 55. 
 
 m 2 T. R. 781. p 6 T. R. 161. 
 
 " 1 Str. 301. 2 Bur. 701. q 7 T. R. 73. and see Barnes, 
 
 o Per Powell, Just. Andr. 57. 
 i97. 1 East, 276. and see
 
 OF ARBITRATION. 765 
 
 attachment, the party would be without remedy, if 
 the attachment were granted, notwithstanding the 
 illegality of the award ; whereas if the party were left 
 to his remedy, by bringing his action on the award, 
 it would be competent to the defendant to take advan- 
 tage of any illegality appearing upon the face of it "■. 
 The court, we may remember, will not, on the last 
 day of term, hear a motion for a rule nisi to set aside 
 an award *; nor can counsel be heard on that day, to 
 shew cause against such a rule, but the same must 
 be enlarged, and made peremptory for the next ensu- 
 ing term '. 
 
 «■ 1 East, 277, B.fier Lawrence, J. s Jnte, 452. 
 
 CHAP-
 
 [ 766 ] 
 
 CHAPTER XXXVII. 
 
 0/^Trials ^^Ad" Country, and their In cibents. 
 
 '' I TRIALS by the country are at bar, or nisi prius. 
 -*- Before the statute JVestm. 2. (13 Ed. I.) c. 30. 
 civil causes were tried either at the bar, before all the 
 judges of the court, in term-time; or when of no 
 great moment, before the justices in Eyre: a practice 
 having very early obtained, of continuing the cause 
 from term to term, in the court above, provided the 
 justices in Eyre did not previously come into the 
 county where the cause of action arose; and if it 
 happened that they arrived there within that interval, 
 then the cause was removed from the jurisdiction of 
 the justices at Westminster, to that of the justices in 
 Eyre ^. Afterwards, when the justices in Eyre were 
 superseded, by the modern justices of assize, it was 
 enacted, by the above statute, " that inquisitions to 
 *' be taken of trespasses, pleaded before the justices 
 " of either be?ich ^ shall be determined before the 
 *' justices of assize, unless the trespass be so heinous, 
 
 " that 
 
 ^ 3 Blac. Com. 352. the Exchequer, to be tried 
 b This statute, extending in the country, there is a par- 
 only to the courts of King's ticular commission, autho- 
 Bench and Common Pleas, rising the judges of assize to 
 whenever an issue is joined in try it. Bui. M. Fri. 304.
 
 OF TRIALS AT BAR. 767 
 
 " that it requires great examination; and that inqui- 
 " sitions of other pleas, pleaded in either bench, 
 *' wherein the examination is easy, shall be also de- 
 *' termined before them; as when the entry or seisin 
 " of any one is denied, or in case a single point is to 
 *' be inquired into: But inquisitions of many and 
 *' weighty matters, which require great examination, 
 *' shall be taken before the justices of the benches % 
 *' &c. ; and when such inquests are taken, they shall 
 *' be returned into the benches, and there judgment 
 *' shall be given, and they shall be enrolled." Since 
 the making of this statute, causes in general are tried 
 at Tiisi prius; trials at bar being only allowed in causes 
 which require great examination '^. 
 
 When the crown is immediately concerned, the 
 Attorney -General has a right to demand a trial at 
 bar ^. In all other cases, it is entirely in the discre- 
 tion of the court ^, governed by the circumstances of 
 the case ^ : Even if the parties consent, such a mode 
 of trial cannot be had, without leave of the court ^. 
 The grounds on which this trial ought to be granted, 
 are the great value of the subject-matter in question, 
 the probable length of the inquiry, and the likelihood 
 
 that 
 
 <: 2 Salk. 648. f 1 T. R. 367. 
 
 d 1 Str. 52. 644. 2 Str. 816. f> 2 Lil. P. R. 608. 1 Str. 
 
 1 Barnard. K. B. 88. S.C- 696, 
 <: Say. Rep. 79.
 
 768 OF TRIALS AT BAR. 
 
 that difficulties may arise in the course of it ^, In 
 ejectment, it is said, the rule has been not to allow a 
 trial at bar, except where the yearly value of the land 
 is one hundred pounds'; and value alone J, or the 
 probable length of the inquiry, is not a sufficient 
 ground for it: But difficulty must concur; and in 
 order to obtain it upon that ground, it is not sufficient 
 to say generally, in an affidavit, that the cause is ex- 
 pected to be difficult; but the particular difficulty, 
 which is expected to arise, ought to be pointed out, 
 tliat the court may judge whether it be sufficient ''. 
 And in a late instance, the court refused a trial at 
 bar, on the mere allegation of length, and proba- 
 ble questions of difficulty, in a cause respecting a 
 pedigree ^ 
 
 If one of the justices of either bench, or a master 
 in Chancery, be concerned, it is a good cause for a 
 trial at bar, be the value what it may '" : And it 
 is said, that such trial was never denied to any 
 officer of the court, nor hardly to any gentleman 
 at the bai' ". The plaintiff may have a trial of this 
 nature, by the favour of the court, though he sue 
 in forma pauperis °: but where the plaintiff is poor, 
 
 the 
 
 ^ Per Kenyon^ arg. Doug. ' JDoe ex deyn. Angell v 
 
 437. and see 1 T. R. 363. Jngell, T. 36 G. III. 
 
 ■• 1 Barnard. K. B. 141. but ■" 1 Sid. 407. 
 
 see 1 Str. 479. " 2 Salk. 651. 6 Mod. 123. 
 
 J 2 Salk. 648. S. C. but see 2 Lil. P. R. 
 
 kSay.Rep.79. and see 2 Lil. 608. 
 
 P. R. 604. 1 Barnard. K. B. « 12 Mod, 318. 
 141.
 
 OV TRIALS AT BAR. 
 
 769 
 
 the court will not grant it to the defendant, unless he 
 will agree to take nisi prius costs, if he succeed, and 
 if he fail, to pay bar costs ''. In London, it is said, a 
 cause cannot be tried at bar, by reason of the charter 
 of the citizens, which exempts them from serving 
 upon juries out of the city '^. And where the cause 
 of action arises in a county -pa/atine, it has been 
 doubted whether this court can compel the inhabi- 
 tants of the palatinate to attend as jurors "■. 
 
 A trial at bar is never granted before issue joined % 
 except in ejectment; in which, as issue is very 
 seldom joined till the term is over, it would after- 
 wards be too late to make the application \ This 
 sort of trial should regularly be moved for, in the 
 term preceding that in which it is intended to be 
 had; as in Hilary for Easter^ and in Trinity for 
 Michaelmas tenn ", except where lands lie in Mid- 
 dlesex "" : and it is never allowed in an issuable term '", 
 
 unless 
 
 P2 Salk. 648. Doug. 421. 
 but see 2 Barnard. K. B. 146. 
 
 1 2 Lil. P. R. 607. 2 Salk. 
 644. But notCy the great cause 
 oiLockyer against the East In- 
 dia Comfmny was tried at bar, 
 (M. 2 Geo. III.') by a special 
 jury of merchants of London. 
 2 Salk. 644. 1 T. R. 366. In 
 that case however, the jury 
 consented to be sworn, and 
 waive their privilege. 2 Wils. 
 136. 
 
 r Say. Rep. 47. and see 1 
 1 . R. 363. 
 
 Vol. II. I 
 
 s 2 Lil. P. R. 238. 608. 12 
 Mod. 331. 1 Str. 696. 2 Bar- 
 nard. K. B. 125. IT. R. 364, 
 in notis. 
 
 t Say. Rep. 155. 
 
 " 2 Lil. P. R. 603. 611. 
 
 V 2 Salk. 649. 
 
 ^v Fitzgib. 267. Per Buller 
 Just, in Colemanv. City of Lon- 
 don, M. 21 Geo. III. But the 
 case of Goodiitle ex dern. Re- 
 vett v. Brafiam, (4 T. R. 497.) 
 was tried at bar, in Hillary 
 term, 32 G. III.
 
 770 OF TRIALS AT BAR. 
 
 unless the crown be concerned in interest ^, or under 
 very particular and pressing circumstances^. In 
 Easter term, they did not formerly allow more than 
 ten trials at bar ^ ; and they must have been brought 
 on, a fortnight at least before the end of it ^, to allow 
 sufficient time for the other business of the court. 
 
 Anciently, there was no other notice given of such 
 trial, than the rule in the office; but now it is said, 
 there must be fifteen days notice ^. The plaintiff how- 
 ever, as in other cases, may countermand his notice, 
 and prevent the cause from being tried at the day ap- 
 pointed; after which, it cannot be brought to trial 
 again, unless some new day be appointed by the 
 court '^ : And it is said, that a second rule cannot be 
 made for a trial at bar, between the same parties, in 
 the same term ^. Previous to giving notice, the day 
 appointed for the trial must be entered with the clerk 
 of the papers ^; and it could not formerly have been 
 on a Saturday \ or the last paper-day in term, except 
 in the king's case ^. 
 
 A trial 
 
 " 2 Lil. p. R. 603. R. IVI. 4 that now there must be the 
 
 Ann. (c). 1 Str. 52. same notice of trials at bar as 
 
 y 2 Lil. P. R. 615. 1 Str. in other cases. 
 52. 1 Barnard. K. B. 370. <^ R. M. 4Ann . (c). 
 
 2 2 Lil. P. R. 607. ^ Fitzgib. 267. 
 
 ^Id. 609. <^ 2 Lil. P. R. 608. 
 
 b Append. Chap. XXXIV. f/rf. 602. 
 §5.2 Salk. 649. but see Imp. g 2 Salk. 625 
 K. B. 353. where it is said,
 
 OF TRIALS AT BAR. 771 
 
 A trial at bar is had upon the 'uenire facias or dis- 
 tringas, &c. as at common law, without any clause 
 oi nisi prius ; and it is mostly by a special jury of the 
 county where the action is laid ''. Six days notice at 
 least ought to be given to the jurors before the trial '; 
 and if a sufficient number do not attend to make a 
 jury, the trial must be adjourned, and a dece?7i or octo 
 tales awarded, as at common law ^ ; for the parties in 
 this case cannot pray a tales upon the statutes ^ And 
 no ^vrit of alias or pluries clistri?igas, with a tales , for 
 the trial of an issue at bar, shall be sued out, before 
 the precedent writ of distringas, with a panel of the 
 names of the jurors annexed, shall be delivered to the 
 secondary of this court, to the intent that the issues 
 forfeited by the jurors, for not appearing upon the 
 precedent writ, may be duly estreated '". After a trial 
 at bar, if either party be dissatisfied with the verdict, 
 he may move for a new trial, as in other cases ". 
 
 Trials 
 
 h 2 Lil. P. R. 123. 1 Salk. ^ 5 T. R. 457, 8. 462. 
 
 405. R. T. 8 W. III. 1 Bur. > 35 Hen. VIII. c. 6. 4 £c 
 
 292. but see Doug. 438. where 5 Ph. & M. c. 7. 5 El. c. 25. 
 
 the trial was had, by consent, 14 El. c. 9, 7 & 8 W. III. c. 
 
 by a jury of a different county ; 32. § 3. 
 
 and in Wales or Berwick \x\ion ■" R. H.*15 Car. II. 2 Lil. 
 
 Tweed, Sec. or where an im- P. R. 123. 
 
 partial trial cannot be had, the ■ Sty. Rep. 462. 466. 2 Ld. 
 
 jury must come from the next Raym. 1358. I Str. 584. S. C. 
 
 English or adjoining county. 2 Str. 110". 1 Bur. 395. S. P. 
 
 » Say. Rep. 30.
 
 772 OF TRIALS AT NISI PRIUS. 
 
 Trials at nisiprius are always had in the county where 
 the venue is laid, and where the fact w^as, or is sup- 
 posed to have been committed °; except where the 
 venue is laid in fVaks, or Berwick upon Tweed '', &c 
 or in a county where an impartial trial cannot be had, 
 in which cases the cause shall be tried in the next 
 English or adjoining county '^. 
 
 The parties being prepared, and ready to proceed 
 to trial, the cause is entered with the clerk of the pa- 
 pers, on a trial at bar, or wdth the marshal at nisi pri- 
 us. The old rule for entering causes in London and 
 Middlesex was, that unless they were entered with 
 the chief-justice, two days before the sittings, upon 
 which they were to be tried, the marshal might enter 
 a ne recipiatur^ at the request of the defendant or his 
 attorney "" : And this rule still holds, with regard to 
 trials at the sittings in term. But if a cause was to be 
 tried at the sittings after term, a ne recipiatur could 
 not be entered, until after proclamation made, by or- 
 der of the chief-justice, for bringing in the record : 
 and then, if the lecord was not brought in, the de- 
 fendant's attorney might enter a ne recipiatur '. 
 
 At present, the practice with regard to entering 
 causes for trial, at the sittings after term, or assizes, 
 
 stands 
 
 03 Ear. 1354. » R. H. 15 & 16 Car. II 
 
 ? 2 Bur. 859. reg- 2. 
 
 a Ante, 673. 4-. ' K. M. 4 Ann. {a).
 
 OF ENTERING THE CAUSE FOll TRIAL. 77.3 
 
 stands thus : All causes to be tried at the sittings af- 
 ter term, must be entered, and the records delivered 
 to the marshal, at the times following ; viz. the causes 
 in Middlesex, the first day of the sitting after term 
 in Middlesex; and the causes for London^ two days 
 before the adjournment-day in London ^ At the as- 
 sizes , the writ and record are entered together " : And 
 no writ and record of nisi prius shall be received, in 
 any county in England, unless they shall be deliver- 
 ed to, and entered with the marshal, before the first 
 sitting of the court, after the commission-day, except 
 in the county of 2''ork, and there the writs and records 
 shall be delivered to and entered with the marshal, 
 before the first sitting of the court, on the second 
 day after the commission- day, others vise they shall 
 not be received ''. And both in London and Middle- 
 sex, as well as at the assizes, every cause shall be 
 tried in the order in ^\ hich it is entered,^ beginning 
 with remanets, unless it shall be made out to the sa- 
 tisfaction of the judge, in open court, that there is 
 reasonable cause to the contrary; who thereupon 
 
 may 
 
 ^ R. H. 34 G. III. and see and entering writs and records 
 
 ■notice, M. 17 Geo. II. oi nisi fir ins, at the assizes foi- 
 
 " R. T. 10 & 11 Geo. II. the county oi .Norfolk, or city 
 
 V R. H. 14 Geo. II. In this of Ac/?-7y/c/i, is the same as in 
 
 rule, there is an exception of other counties. And for the 
 
 the county of •A'bj/o/.t ; but by fees payable to the mai'shal, 
 
 R. H. 32 G. III. that excep- for putting in the record of n?- 
 
 tion is taken away, and the d firius vA the. assizes, see R. 
 
 time allowed for delivering K. 13 Jac, I.
 
 774 OF PLEAS, ike. 
 
 may make such order for the trial of the cause, so to 
 be put off, as to him shall seem just ^\ Special jury 
 causes are appointed for particular days: And ia 
 London and Middlesex, no cause can be tried by a 
 special jury, unless the rule for such jury be drawn 
 up, and the cause marked as a special jury, in the 
 marshal's book of causes, before the adjournment- 
 day after each term ". 
 
 The cause being entered, stands ready for trial, at 
 the bar of the court, or before the judge at nisi prius : 
 And previous to its coming on, a brief should be 
 prepared for each party, and delivered to counsel; 
 containing a short abstract of the pleadings, a clear 
 statement of the case, and a proper arrangement of 
 the proofs, with the names of the witnesses. The 
 grand rule to be observed in drawing briefs, as it is 
 well expressed in a late useful publication '', consists 
 in conciseness with perspicuity. 
 
 When the cause is called on, the defendant 
 may plead any matter of defence, arising after 
 the last continuance, or as it is called in French, 
 puis darrein cotitinuance, or in Latin, post ulti- 
 matn continuationem: and such a plea may be 
 
 pleaded, 
 
 -^ R. H. 14 Geo. II. and ^ R. T. 30 Geo. III. 
 
 .notice, M. 17 Geo. II. v 1 Sel. 472.
 
 PUIS DARREIN CONTINUANCE. 775 
 
 pleaded, after die jury are gone from the bar; but 
 not after they have given their verdict ^ The last con- 
 tinuance, previous to the sittings or assizes, is the day 
 of the return of the 'uenire facias, from whence the 
 plea is continued, by the award of the distringas, to 
 the next term, unless the chief-justice or judges of 
 assize shall first come on the day of?iisiprius ''i And 
 on this day, if any matter of defence has arisen after 
 the last continuance, it may be pleaded by the de- 
 fendant; as that the plaintiff has given him a release, 
 or is a bankrupt, outlawed, or excommunicated; 
 or that there has been an award made, on a refer- 
 ence after issue joined ''. So it may be pleaded, 
 that ^ifeme plaintiff is married, or in cledt by an ad- 
 ministrator, that the plaintiff's letters of administra- 
 tion are revoked, puis darrein continuance ". 
 
 These pleas are twofold, in abatement and in 
 bar ''. If any thing happen, pending the writ, to 
 abate it, this may be pleaded puis darrein continu- 
 ance, though there be a plea in bar ; for this only 
 waives all pleas in abatement, that were in being at 
 the time of the bar pleaded, and not subsequent 
 
 matter : 
 
 z Doc. fil- 177. Pearson v. ''2 Esp. Cas. M Pri. 504, 
 
 Parkins, H. 3 Geo. I. Bui. M. c Bui. M Pri. 309. and see 
 
 ^".310. Com. Dig. lit. j^batetncnt, T. 
 
 ^ Bui. M. Pri. 310. and see 24. 
 
 Dyer, 361.2 Lutw. 1143.1 'i Gilb. C. P. 105. Aleyn, 
 
 Blac. Rep. 497. for the time 66. 
 fo which the plea is continued
 
 776 OF PLEAS 
 
 matter: but though it be pleaded in abatement, ytt 
 after a former bar pleaded, it is peremptory, as well 
 on demurrer as on trial; because after pleading in 
 bar, the defendant has answered in chief, and there- 
 fore can never have judgment to answer over ^. Af- 
 ter a plea in bar, if the defendant plead a plea puis 
 darrein continuance, this is a waiver of his bar, and no 
 advantage shall afterwards be taken of it \ 
 
 The great requisite of these pleas is certainty ^ and 
 it is not good pleading to say generally, that after 
 the last continuance such a thing happened, but the 
 time and place must be precisely alleged ^. The 
 form of the plea, if at the assizes, is as follows : And 
 71010 at this day, that is to say, on ^c. comes the said 
 C. D. by S. S. his counsel, and says (if in bar) that 
 the said A. B. ought not further to maintain this 
 action against him the said CD. because he says, that 
 
 after the day of last past, from which day 
 
 imtil the day of in tertn next, fun- 
 less the justices of our lord the king, assigned to hold 
 the assizes of our lord the king, in and for the county 
 
 of should first come on the day of at 
 
 in the said county of ,) the action aforesaid 
 
 is continued, to ivit, on £s?c. at ^c. the said A. B. by 
 his deed, dated ^c. did release ^c. ; and so shew the 
 
 particular 
 
 '^ Gilb. C. P. 105. Aleyn. 261. Freem. 1 12. 2 Lutw. 
 
 66. Freem. 252. 1 143. 2 Salk. 519. 2 Wils. 
 
 f 1 Salk. 178. 139. 
 
 s Yelv. 141. Crn. Jar. h Bui. A7. Pri. 309.
 
 PUIS DARREIN CONTINUANCE. 777 
 
 particular matter '. In abatement^ the plea concludes, 
 by praying judgment of the ivrit, and tliat the same 
 may be quashed^ \ or if the writ is abated de facto, by 
 praying judgment if the court will further proceed^: 
 In bar, the conclusion of the plea is, that the plaintiff 
 ought not further to maintain his action, and not, that 
 the former inquest should not be taken; because it is 
 a substantive bar of itself, and comes in place of the 
 former, and therefore must be pleaded to the action '. 
 There are likewise some pleas, which may be 
 pleaded at nisi prius, that cannot properly be termed 
 pleas j&«i5 darrein continuance, because the matter 
 pleaded need not be expressly mentioned to have hap- 
 pened after the last continuance ; as in trespass, that 
 the plaintiff was outlawed for felony °' : So the de- 
 fendant may plead, that in feme plaintiff was covert on 
 the day of the writ purchased; but he cannot plead, 
 that she took baron pending the writ, without pleading 
 it after the last continuance : the diversity seems to be, 
 between such things as disprove the writ in fact, 
 and such as disprove it in law ". 
 
 Pleas 
 
 ifiul. M. Pri. 310. 1143. Bui. A7. Pri. 310. but 
 
 J Gilb. C. p. 105. 2 Lutw. see Dyer, 361. in marg. 
 
 1143. "> Thel. Dig. 204. 
 
 k 3 Lev. 120. Bui. JVi. Pri. " Bro. Abr. tit. Continuance, 
 
 31 1. ill. 57. Bui. Xi. Pri. 310. 
 
 » Cro. Eliz. 49. 2 Lutw. 
 
 Vol. II. Q
 
 778 OF PLEAS PUIS, &c. 
 
 Pleas after the last continuance being productive 
 of delay, are subject to the same sort of restraints as 
 pleas in abatement: They must be verified on oath, 
 before they are allowed °; and they cannot be amend- 
 ed, after the assizes are over ^ : There can be but one 
 plea puis darrem continuance '^ ; and such a plea can- 
 not be pleaded after a demun*er ^ But if a plea puis 
 darrein continuance be filed, and verified on oath, the 
 court cannot set it aside on motion, but are bound to 
 receive it '. 
 
 When a plea/?z/ij darrein continuance is put in at the 
 assizes, the plaintiff is not to reply to it there; for the 
 judge has no power to accept of a replication, nor to 
 try it, but ought to return the pica, as parcel of the 
 record of nisi prius ^ ; and if the plaintiff demur, it 
 cannot be argued there ". Where a plea is certified 
 on the back of the postea^ and the plaintiff de- 
 murs, if the defendant, on the expiration of a rule 
 
 given 
 
 ° Freem. 252. 1 Str. 493. of the judge, whether he will 
 
 p Yelv, 181. Freem. 252. accept such plea or not, that 
 
 Bui. Alf.' Pri. 309. is, whether he will or will not 
 
 5 Bro. Abr. tit. Continuance^ proceed in the trial. And in 
 pi. 5. 41. Jenk. 160. Gilb. Say. Rep. 268. aplea/^M^■srfGr- 
 C. P. 105. rein continuance was set aside, 
 
 «■ 1 Str. 493. cites Mo. 871. because the matter of it arose 
 
 1 Ld. Raym. 266. but see before the last continuance. 
 
 Hob. 81. contra. t Yelv. ISO. Cro. Jac. 261. 
 
 ^2 Wils. 137. 3T.R. 554. S. C. Freem. 252. 2 Mod. 307. 
 
 but see Jenk. 159. Yelv. 180. S. C. 
 
 and Bui. M. Pri. 309. where « 2 Mod. 307. 
 it is said to be in the breast 
 
 I
 
 or CHALLENGING JURORS. 779 
 
 given for him to join in demurrer, refuses to do so, 
 the plaintiff may sign judgment ''. 
 
 Previous to swearing the jury, the plaintiff may 
 withdra\v the record, and by that means prevent the 
 cause from being tried : But otherwise the trial pro- 
 ceeds; and as the jury are called, they may be chal- 
 lenged. 
 
 Challenges are of two sorts; first, to the array; and 
 secondly, to the polls. Challenges to the array are at 
 once an exception to the whole panel, in which the 
 jury are arrayed, or set in order by the sheriff in his 
 return ; and they may be made upon account of par- 
 tiality, or some default in the sheriff, or his under- 
 officer who arrayed the panel "\ And generally 
 speaking, the same reasons that before awarding the 
 venire, w-ere sufficient to have directed it to the co- 
 roners or elisors, will be also sufficient to quash the 
 array, when made by an officer, of whose partiality 
 there is any good ground of suspicion. Also, though 
 there be no personal objection against the sheriff, yet 
 if he arrays the panel at the nomination, or under 
 the direction of either party, this is good cause of 
 challenge to the array. 
 
 Challenges to the polls, in capita, are excep- 
 tions to particular jurors; and according to Sir 
 
 Edward 
 
 ^ Freem. 252 . BuJ. M. Pri. 311. ^ Cowp. 112.
 
 780 OF CHALLENGING JURORS. 
 
 EdiMard Coke^, they are of four kinds ; first, propter 
 honoris respectum^ as if a lord of parliament be im- 
 panneled on a jury, in which case he may challenge 
 himself, or be challenged by either party. Secondly, 
 propter defectum^ as if a jurj- man be an alien bom, or 
 a slave or bondman ; so if he be not resident in the 
 county, or have not the necessary qualification of 
 estate. All incapable persons, as infants, idiots, and 
 persons of non-sane memory, are likewise excluded 
 upon this ground y. Thirdly propter affectum^ as that 
 a juror is of kin to either party, within the ninth de- 
 gree^; that he has been arbitrator, or declared his 
 opinion on either side ; that he has an interest in the 
 cause *; that there is an action depending between 
 him and the party ; that he has taken money for his 
 verdict, or even eat and drank at either party's ex- 
 pence ; that he has formerly been a juror in the same 
 cause; that he is the party's master, servant, tenant ^, 
 counsellor, steward, or attorney, or of the same so- 
 ciety or corporation with him. All these are prin- 
 cipal causes of challenge: Besides which, there 
 are challenges to the faiiour, where the party ob- 
 jects only on account of some probable grounds of 
 suspicion, as acquaintance, and the like; the va- 
 lidity of which must be left to the determination of 
 
 triers, 
 
 X 1 Inst. 156. a 3 Bur. 1856. 
 
 y Gilb. C. P. 95. «»Gilb.C. P. 95. 
 
 ^ Finch. L. 401.
 
 OF SWEARING JURORS. 781 
 
 irierSf who, in case the first man called be challenged, 
 are two indifferent persons named by the court; and 
 if they try one man and find him indifferent, he shall 
 be sworn ; and then he and the tv\^o triei's shall try 
 the next; and when another is found indifferent and 
 sworn, the two triers shall be superseded, and the two 
 first sworn on the jury shall try the rest "". Fourthly, 
 a juror may be challenged propter delictum, as for a 
 conviction of treason, felony, perjury, or conspiracy; 
 or if, for some infamous offence, he has received 
 judgment of the pilloiy, tumbrel, or the like, or to 
 be branded, whipped or stigmatized; or if he be 
 outlawed or excommunicated, or hath been attainted 
 of false verdict, pnpjmmire, or forgery. A juror may 
 himself be examined on his voire dire, with regard to 
 such causes of challenge, as are not to his dishonour 
 or discredit; but not with regard to any crime, or 
 any thing which tends to his disgrace or disadvan- 
 tage*^. 
 
 By the balloting act, we may remember, the 
 names and additions of the jurors are to be written 
 on pieces of parchment or paper, of equal size, 
 and delivered to the marshal, by the under-sheriff 
 or his agent; and are to be rolled up, by the di- 
 rection and care of the marshal, all as near as may 
 
 be 
 
 = Co. Lit. 158. C. P. Chap. 8. Bac. Abr. tit. 
 
 ^ For more of challenges, Juries, (E). 3 Blac. Com = 
 see Co. Lit. 156, &c. Gilb. 358, &c.
 
 782 OF SWEARING JURORS. 
 
 be ill the same manner, and put together in a box or 
 glass, to be provided for the purpose *. And by the 
 same act ^, *' when any cause shall be brought on to 
 " be tried, some indifferent person, by direction of 
 *' the court, may and shall, in open court, draw out 
 " twelve of the said parchments or papers, one after 
 *' another J and if any of the persons whose names 
 " shall be so drawn, shall not appear, or be challeng- 
 " ed and set aside, then such further number, until 
 " twelve persons be drawn who shall appear, and af- 
 " ter all causes of challenge, shall be allowed as fair 
 " and indifferent; and the said twelve persons so first 
 *' drawn and appearing, and approved as indifferent, 
 " their names being marked in the panel, and they 
 " being sworn, shall be the jury to try the said cause; 
 " and the names of the persons so drawn and sworn, 
 " shall be kept apart by themselves, in some other 
 " box or glass to be kept for that purpose, till such 
 *' jury shall have given in their verdict, and the same 
 " is recorded, or until such jury shall, by consent of 
 *' the parties, or leave of the court, be discharged; 
 *' and then the same names shall be rolled up again, 
 " and returned to the former box or glass, there to 
 " be kept, with the other names remaining at that 
 *' time undrawn, and so toties qiiotiesy as long as any 
 *' cause remains then to be tried." 
 
 Where 
 
 ^Jinte,724,, 5. f 3 Geo, IT. c. 25. $ 1 1. 
 
 i
 
 • OF TALES-MEN. 785 
 
 Where a 'oiew is allowed in any cause, it is pro- 
 vided by the same statute s, that the jurors who took 
 the view, or such of them as shall appear, shall be 
 first sworn upon the jury to try the cause, before any 
 drawing as aforesaid; and so many only shall be 
 drawn, to be added to the viewers who appear, as 
 shall, after all defaulters and challenges allowed, make 
 up the number of twelve, to be sworn for the trial of 
 the cause. 
 
 At common law, if a sufficient number of jury- 
 men did not appear at the trial, or so many of them 
 were challenged and set aside, as that the remainder 
 would not make up a full jury, there issued a writ to 
 the sheriff, ofundecim, decetij^ or octo tales, according 
 to the number that was deficient, in order to com- 
 plete the jury '': And this is still necessary, on trials 
 at bar '. But now, by the statute 3^ Men. VIII. c. 6. 
 § 6, 7, 8. (extended to qui tarn actions, by the 4 & 5 
 Ph. & M. c. 7.) " the justices of assize or nisiprius>, 
 *' upon request made by the plaintiif or defendant, are 
 '' authorized to command the sheriff', or other minis- 
 '' ter to whom the making of the return shall apper- 
 " tain, to name and appoint, as often as need shall re- 
 '* quire, so many of such other able persons of the 
 " said county, then present at the said assizes or 
 ^' TusipriuSy as shall make up a full jury; which per- 
 
 " sons 
 
 x^U. '^ Gilb. C. P. 73. ^ 5 T. R. 457, 8. 462.
 
 "784 OF TALES-MEN. 
 
 *' sons shall be added to the former panel, and their 
 " names annexed to the same; and that the parties 
 " shall have their challenges to the jurors so named, 
 " added and annexed to the said former panel, as if 
 " they had been impannelcd upon the 'oenire facias ; 
 " and that the said justices shall and may proceed to 
 " the trial of every such issue, with those persons 
 *' that were before impanneled and returned, and 
 " with those newly added and annexed to the said 
 " former panel, in such wise as they might or ought 
 *' to have done, if all the said jurors had been return- 
 *' ed upon the writ of venire facias; and that every 
 " such trial shall be as good and effectual in the law, 
 *' to all intents and purposes, as if such trial had been 
 " had by twelve of the jurors impanneled and re- 
 '* turned upon the writ of venire facias.''^ 
 
 The qualification of a tales-many in point of estate, 
 is only^T;*? pounds per annum K And, by the 7 & 8 
 l^F. III. c. 32. § 3. the sheriff is directed to return 
 such persons, to serve upon the tales, as shall be re- 
 turned upon some other panel, and then attending the 
 court. Hence it is usual to draw their names out of 
 the box ; though where it is desired by the gentlemen 
 of the panel who appear, and consented to by the par- 
 ties, the sheriff may return such other gentlemen as 
 can be procured to attend ''. The pl^tiff may avoid a 
 
 nonsuit, 
 
 J Stat. 4 & 5 W. & M. c. 24. § 18. k Bui. M. Pri. 305.
 
 OF BILLS OP EXCEPTIONS. 785 
 
 nonsuit, by refusing to pray a tales * : And after a 
 juror has been challenged on the principal panel, he 
 ought not to be sworn as a tales-man ™. 
 
 After the jury are sworn, the cause is opened, and 
 the trial proceeds, unless the parties agree to imth- 
 draw a juror "; which is frequently done, at the re- 
 commendation of the judge, where it is doubtful 
 whether the action will lie; and in such case the 
 consequence is, that each party pays his own costs. 
 
 In the progress of the trial, either party, if there 
 be occasion, may tender a bill of exceptions, or de- 
 mur to the evidence. To understand the nature of 
 these proceedings, it should be observed, that in 
 the first stage of that process under which facts are 
 ascertained, the judge decides whether the evidence 
 offered conduces to the proof of the fact, which is to 
 be ascertained; and there is an appeal from his judg- 
 ment, by a bill of exceptions. The admissibility of 
 the evidence being established, the question how far 
 it conduces to the proof of the fact which is to be 
 ascertained, is not for the judge to decide, but for 
 the jury exclusively ; with which the judges interfere 
 
 in 
 
 ' 1 Str. .707. where a juror is withdrawn, 
 
 '" Id. 640. 2 Ld. Raym. see Append. Chap. XXXVI 1. 
 1410. S.C. §26. 
 
 " For the form of the fiostea. 
 Vol. II. R
 
 786 OF BILLS OF EXCEPTIONS. 
 
 in no case, but where they have in some sort sub- 
 stituted themselves in the place of the jury in at- 
 taint ^ upon motions for new trials. When the jury 
 ha^e ascertained the fact, if a question arises whether 
 the fact thus ascertained, maintains the issue joined 
 between the parties, or in other words, whether the 
 law arising upon the fact (the question of law in- 
 volved in the issue depending upon the true state of 
 the fact,) is in favour of one or other of the parties, 
 that question is for the judge to decide. Ordinarily 
 he declares to the jury, what the law is upon the 
 fact which they find, and then they compound their 
 verdict of the law and fact thus ascertained. But if 
 the party wishes to withdraw from the jury, the ap- 
 plication of the law to the fact, and all consideration 
 of what the law is upon the fact, he then demurs in 
 law upon the evidence; and the precise operation 
 of that demurrer is, to take from the jury, and refer 
 to the court, the application of the law to the fact °, 
 A bill of exceptions is founded upon some objec- 
 tion in point of law, to the opinion and direction 
 of the court, upon a trial at bar, or of the judge at 
 nisi prills^ either as to the competency of witnesses ^ , 
 the admissibility of evidence '^, or the legal effect 
 
 of 
 
 « 2 H. Blac. 205, 6. P 3 T. R. 27. q 1 Salk. 284.
 
 OF BILLS OF EXCEPTIONS. 787 
 
 of it % or for over-ruling a challenge, or refusing a 
 demurrer to evidence % &:c. In these cases it is en- 
 acted, by the statute fFestm. 2. (13 Edw, I.) c. 31. 
 that " if the party write the exception, and pray that 
 " the justices may put their seals to it for a testimo- 
 " ny, the justices shall put their seals; and if one 
 " will not, another shall: And if the king, on com- 
 *' plaint made of the justices, cause the record to 
 " come before him, and the exception be not found 
 *• in the roll, and the party shew the exception writ- 
 " ten, wirii the seal of the justice affixed, the justice 
 '* shall be commanded that he appear at a certain 
 " day, to confess or deny his seal; and if the justice 
 *' cannot deny his seal, judgment shall be given, 
 *' according to the exception, as it may be allowed 
 " or disallowed." This statute extends to trials at 
 bar, as well as those at nisi prius; but it has been 
 doubted, whether the statute extends to criminal 
 cases '. If a judge allow the matter to be evidence, 
 but not conclusive, and so refer it to the jury no 
 bill of exceptions will lie; as if a man produce 
 the probate of a will, to prove the devise of a term 
 for years, and the judge leave it to the jury; be- 
 cause 
 
 f T. Raym. 404. T. Jon. Show. P. C. 120. Append. 
 
 146. S. C. 1 Blac. Rep. 555. Chap. XXXVII. § 46. 
 
 3 Bur. 1693. S. C. Cowp. ' See the cases referred lo 
 
 161. 2 Blac. Rep. 929. S. C. in 1 Bac. Abr. 325. Wiiles, 
 
 ■^ Cro. Car. 341. and see 535. Bui. AV. P;-f. 316.
 
 788 OF BILLS OF EXCEPTIONS- 
 
 cause though the evidence be conclusive, yet the 
 jury may hazard an attaint^ if they please, and the 
 proper ^vay had been, to have demurred to the evi- 
 dence ". 
 
 The bill of exceptions must be tendered at the 
 trial: for if the party then acquiesce, he waives it, 
 and shall not resort back to his exception, after a 
 verdict against him, when perhaps, if he had stood 
 upon his exception, the other party had more evi- 
 dence, and need not have put the cause on that 
 point. The statute indeed appoints no time ; but the 
 nature and reason of the thing require, that the ex- 
 ception should be reduced to writing, when taken 
 and disallowed, like a special verdict, or demurrer 
 to evidence : not that it need be drawn up in form, 
 but the substance must be reduced to writing, while 
 the thing is transacting, because it is to become a 
 record ". 
 
 The bill of exceptions is either tacked to the 
 record, or not: If it be not tacked to the record, 
 it is necessary to set out the whole of the proceed- 
 ings, previous to the trial; but otherwise, it be- 
 gins with the proceedings after issue joined ". And 
 in either case, it goes on to state, according to the 
 circumstances, that a witness was produced "^ to 
 prove certain facts; the particular evidence offer- 
 
 ed, 
 
 ■^ T. Raym. 404, a. T. Jon. ^" Bui. Az. Pri. 317. 
 146. S.C. -3T.R. 27. 
 
 V 1 Salk. 283, 9.
 
 OF BILLS Of liXCEPriOKS. VS9 
 
 ed -, or given to the jury, in support of the whole or 
 a part of the case; or that a challenge was made, or 
 demurrer to evidence tendered; the allegations of 
 counsel, respecting the competency of the witness, 
 the admissibility of the evidence, or the legal effect 
 of it, &c. ; the opinion and direction of the court or 
 judge thereon; the verdict of the jury; and the ex- 
 ception of the counsel, to the opinion given ^ And 
 where the bill of exceptions respects the legal effect 
 of evidence, the conclusion is as follows: " And 
 ' inasmuch as the said several matters, so produced 
 ' and given in evidence for the party objecting, and 
 ' by his counsel objected and insisted on, do not ap- 
 ' pear by the record of the verdict aforesaid, the said 
 ' counsel did then and there propose their aforesaid 
 ' exception to the opinion of the judge, and request- 
 ' ed him to put his seal to this bill of exceptions, 
 ' containing the said several matters so produced 
 ' and given in evidence for the party objecting as 
 ' aforesaid, according to the form of the statute in 
 ' such case made and provided; and thereupon the 
 ' aforesaid judge, at the request of the said coimsel 
 
 " for 
 
 y 1 Lutw. 984. 1 Salk. 284. Mostyn, XL Stat. Tri. 187, 8. 
 
 ^ For precedents of bills of And for precedents of a bill of 
 exceptions, as to the legal ef- exceptions, as to the legal ef- 
 fect of the ivhfjle of the evi- feet of evidence in support of 
 dcnce, see Brownl. 129. il/oney di particular fact, see Brownl. 
 and others v. Z-cacA, Bui. A7. 131. Append. Chap. XXXVII. 
 Pri. 317. and Fabri^as v. § 46.
 
 790 OF BILLS OF EXCEPTIONS. 
 
 '* for the party objecting, did put his seal to this bill 
 " of exceptions, pursuant to the aforesaid statute in 
 
 '* such case made and provided, on the day 
 
 '' of in the year of the reign, &c/" 
 
 On tendering the bill, if the exceptions therein 
 are truly stated, the judges ought to set their seals, 
 in testimony that such exceptions were taken at the 
 trial: but if the bill contain matters false, or untruly 
 stated, or matters wherein the party was not over- 
 ruled, the judges are not obliged to affix their seals; 
 for that would be to command them to attest a falsi- 
 ty ^. If the judges refuse to sign the bill of excep- 
 tions, the party grieved may have a writ, grounded 
 upon the statute, commanding them to put their 
 sGcds, juxlajhrfnam statuti'^^ &c. This writ contains 
 a surmise of an exception taken and over-ruled, and 
 commands the justices, that if it be so, they put their 
 seals '^ ; upon which, if it be returned quod non ita 
 est, an action lies for a false return, and thereupon 
 the surmise will be tiied, and if found to be so, 
 damages will be given; and upon such recovery, 
 there issues a peremptory writ *=. 
 
 When the bill of exceptions is sealed, the truth 
 of the facts contained in it can never afterwards be 
 disputed ^ And judgment being entered, a writ 
 
 of 
 
 ^ Bui. jYi. Pri. Sir. d Reg, Brcv. 182. 
 
 ^ Show. P. C. 120. e 2 Inst. 427. 
 
 c 2 Inst. 427. Bui. M. Pri. f Show. P. C. 120. 
 516.
 
 OF DEMURRERS TO EVIDENCE. 791 
 
 of error is brought, to remove the proceedings into 
 the court above; for a bill of exceptions is only to 
 be made use of upon a writ of error : And therefore, 
 where a writ of error will not lie, there can be no 
 bill of exceptions ^. Upon the return of the writ of 
 error, the judge is called upon by writ, either to 
 confess or deny his seal*"; and if he confess it, the 
 proceedings being entered of record, the party as- 
 signs error': If the judge deny his seal, the plain- 
 tiff in the writ of error may take issue thereupon, 
 and prove it by witnesses *". 
 
 The judgment on the wTit of error, as in other 
 cases, is either that the former judgment be affirmed, 
 or reversed. If it be reversed, a vefiire de novo is- 
 sues; which shall be made returnable in this court, 
 although the judgment was given in the Common 
 Pleas'. 
 
 A demurrer to evidence is a proceeding, by 
 which the judges of the court in which the action 
 is depending, are called upon to declare what the 
 law is, upon the facts shewn in evidence, analo- 
 gous to the demurrer upon facts alleged in plead- 
 ing '". The reason for demurring to evidence is, 
 
 that 
 
 g 1 Salk. 284. Rex v. Inha- k 2 Inst. 428. 
 
 bitanta of Preston^ Bui. jYi.Pri. i 3 T. R. ZQ. 
 
 316. 1 Blac. Rep. 679. Cowp. «" 2 H. Blac. 205. and see 
 
 501. but see 2 Lev. 236. 3 Salk. 122. 4 Bac. Abr. 136. 
 
 ^ Rast. Ent. 293. b. 3 Bur. 3 Blac. Com. 372. and see 
 
 1693. 1 Blac. Rep. 556. S.C. Append. Chap. XXXVII. ^ 
 
 ' 2 Lutw. 905, 6. 42, gcc.
 
 792 OF DEMURRERS TO EVIDENCE. 
 
 that the jury, if they please, may refuse to find a 
 special verdict, and then the facts never appear on 
 the record " : And the question upon a demurrer to 
 evidence being, whether the evidence offered be suf- 
 licient to maintain the issue, the party, on such de- 
 murrer, cannot take advantage of any objection to 
 the pleadings °. A demurrer to evidence is not al- 
 lowed in the king's case ; and therefore if a doubt 
 arise, upon the effect of the evidence, the judge 
 must direct the jury to find the matter specially ''. 
 
 If a matter of record^ or other matter in writing, 
 be offered in evidence, to maintain an issue joined 
 between the parties, all the books agree, that the ad- 
 verse party may insist upon the jury being discharged 
 from giving a verdict, by demurring to the evidence, 
 and obliging the party offering the same to join in 
 demurrer, or waive the evidence '^ : And the reason 
 given for it is, that there cannot be any variance of 
 matter in writing'. The books also agree, that if 
 parol evidence be offered, and the adverse party de- 
 mur, he who offers the evidence may join in demur- 
 rer, if he will. But the languiige of the old books is 
 very indistinct upon the question, whether t|ie party 
 
 offering 
 
 " Per BuUer, Just. Doug,-. <\ 2 H. Blac. 206. 
 
 134. -Cro.Eliz. 7.'?.'?. h Co. 104 
 
 o 7^.218. S. C. 
 V Co. Lit. 72, 5 Co. 104.
 
 OF DEMURRERS TO EVIDENCE. 79S 
 
 offering jf;^/(7/ evidence shall be obliged to join in 
 demurrer. In a late case % which came before the 
 House of Lords, it was observed, in delivering" the 
 opinion of the judges, that /?^ro/ evidence is some- 
 times certain, and no more admitting of any variance, 
 than a matter in writing; but it is also often loose 
 and indeterminate, often circumstantial. The reason 
 for obliging the party offering evidence in writing, to 
 join in demurrer, applies to the first sort of parol evi- 
 dence ; but it does not apply to parol evidence that is 
 loose and indeterminate, which may be urged with 
 more or less effect to a jurj^ ; and least of all, will it ap- 
 ply to evidence of circumstances, which evidence is 
 meant to operate beyond the proof of the existence 
 of those circumstances, and to conduce to the proof 
 of the existence of other facts. In such cases how- 
 ever, if the party who demurs will admit the evidence 
 of the fact, which evidence is loose and indetermi- 
 nate, or in the case of circumstantial evidence, if he 
 will admit the existence of the fact, which the cir- 
 cumstances offered in evidence conduce to prove, 
 there will then be no more variance in this parol evi- 
 dence, than in a matter in writing; and in such case, 
 the party shall be allowed to demur, and his adver- 
 sary must join in demurrer. But on a demurrer to 
 circu7nstantial evidence, unless the party demurring 
 
 will 
 
 "5 Gibnon andJo/imon v. Hunter, 2 II. Blac 187. 
 
 Vol. II. S
 
 ^94 OF DEMURRERS TO EVIDENCE. 
 
 \ 
 
 will distinctly admit upon the record, every fact and 
 every conclusion which the evidence offered con- 
 duces to prove, it is not competent for him to insist 
 upon the jury being discharged from giving a ver- 
 dict, by demurring to the evidence, and obliging the 
 party offering it to join in demurrer ^ : though, if the 
 party offering the evidence consent to waive the ob- 
 jection, and join in demurrer, every fact is to be con- 
 sidered by the court as admitted, which the jury 
 could infer in his favour, from the evidence demur- 
 red to'': And the court will, if they can, give judg- 
 ment upon such evidence '' ; but otherwise a venh-e 
 de 1101)0 must be awarded '"^ 
 
 The whole operation of entering the matter upon 
 record, and conducting a demurrer to evidence, is 
 and ought to be under the direction and control of 
 the court, upon a trial at bar, or of the judge at 7iisi 
 pr'ius "■ ; subject however to an appeal, by a bill of ex- 
 ceptions, if the demurrer be refused ■ . And where a 
 demurrer to evidence is admitted, it is usual for the 
 court or judge to give orders to the associate, to take 
 a note of the testimony; which is signed by the 
 counsel on both sides, and the demurrer is affixed to 
 the postal ^ Upon a demurrer to evidence, we have 
 
 seen. 
 
 t Gibson ^x\dL Johnson v. Hun- ^ 2 H. Blac. 209. 
 
 ttr, 2 H. Blac. 187. and see -^ /J. 268. 
 
 Alfvn, 18. Sty. Rep. 22. 34, y /rf. z/^irf. Cro. Car. 341. 
 
 S. C. '^ Bui. ^'V. PH. 313. and see 
 
 u Doug. 119. Append. Chap. XXXVII. C 
 
 V Id. ibid. 42.
 
 OF THE jury's WITHDRAWING. 795 
 
 seen, the damages may be assessed conditionally by 
 the principal jury, before they are discharged; or 
 they may be assessed by another jur}^, upon a writ of 
 inquiry, after the demurrer is determined*: And it 
 is said to be the most usual course, when there is a 
 demurrer to evidence, to discharge the jury without 
 further inquiry ''. 
 
 The evidence being gone through, and summed 
 up by the judge, the jury, if they think proper, may 
 ivithdraiv from the bar, to dehberate on tlieir verdict. 
 And they are allowed to take with them, by leave of 
 the court, letters patent and deeds under seal, and 
 the exemplification of witnesses in Chancery, if dead; 
 but wi'itings or books which are not under seal, ought 
 not to be delivered to the jurors, without the assent 
 of both parties", nor any evidence but what was 
 shewn to the court''. If the jury take with them 
 patents, deeds, &c. without leave of the court, or 
 writings not under seal, books, &c. which have been 
 given in evidence, without the assent of both parties, 
 this, however irregular, will not avoid the verdict; 
 though they be taken by tlie delivery of the party 
 
 for 
 
 ^ Jnte, 517, 18. Plowd. 410. 44. 
 
 1 Ld. Raym. 60. Doug. 222. c Cro. Eliz. 411. 
 
 *> Cro. Car. 143. and sec d o Rol. Abr. 686, 
 Append. Chap. XXXVII. §
 
 796 or A NONSUIT. 
 
 for whom the verdict was given ' : So though one of 
 the jury shew a writing, which was not given in evi- 
 dence, to his companions^. But if the paity for 
 whom the verdict is given, or any for him, deliver to 
 the jury, after they are gone from the bar, a letter or 
 other writing not given in evidence, it will avoid the 
 verdict': And so if they examine witnesses by 
 themselves, w^ho were examined before, though to 
 the same evidence as was given in court ^. But they 
 may come back into court, to hear the evidence of a 
 thing whereof they are in doubt '. The objection in 
 these cases must be returned upon tlie postea^ or 
 made parcel of the record; otherwise it will not be a 
 ground for staying judgment, or bringing a writ of 
 error ). 
 
 When the jury have agreed, they return to the 
 bar: but before they gave their verdict, it was for- 
 merly usual to call or demand the plaintiff, in order 
 to answer the amercement, to which by the old law 
 he was liable, in case he failed in his suit ^'; and it is 
 now usual to call him, whenever he is unable to make 
 out his case, either by reason of his not adducing 
 evidence in support of it, or evidence arising in the 
 proper county. The cases in which it is necessary 
 
 that 
 
 «^ Cro. Eliz. 411. and see 2 ■ Rol. Abr. 676. 
 
 Salk. 645. iCro. Eliz. 616. and see 
 
 fCro. Eliz. 616. Bui. A?. Pn. 308. 
 
 K Co. Lit. 227. b. , J^ 3 B!ac. Com. 376. 
 hCro. Eliz. 411,12.
 
 OF A NONSUIT. 797 
 
 that the evidence should arise in a particular county, 
 are either where the action is in itself local ; or made 
 so by act of parliament, as in actions upon penal sta- 
 tutes, &c. or where, upon a motion to change or re- 
 tain the venue, the plaintiff undertakes to give mate- 
 rial evidence, in the county v\ here the action was 
 brought '. And there is this ad\'antage attending a 
 nonsuit; that the plaintiff, though subject to the pay- 
 ment of costs, may afterwards bring another action 
 for the same cause, which he cannot do, after a ver 
 diet against him. 
 
 A nonsuit can only be at the instance of the defen- 
 dant : And therefore where the cause at nisi prim 
 was called on, and jury sworn, but no counsel, at- 
 tornies, parties, or witnesses appeared on either side, 
 the judge held, that the only way was to discharge 
 the jury ; for nobody has a right to demand the plain- 
 tiff, but the defendant, and the defendant not de- 
 manding him, the judge could not order him to be 
 called'". In an action against ^^'ZJ(?r^/ defendants, the 
 plaintiff must be nonsuited as to all, or none of them; 
 and therefore, if one of two defendants suffer judg- 
 ment by default, and the other go to trial, the plain- 
 tiff cannot be nonsuited as to him; but such defen- 
 dant 
 
 1 2 Blac. Rep. 1039. but see "^ 1 Str. 267. see ajso 2 Str. 
 :^T. R. 281. 1117.
 
 798 OF DAMAGES. 
 
 dant must have a verdict, if the plaintiff fail to make 
 out his case ". 
 
 The plaintiff in no case is compellable to be non- 
 suited"; and therefore, if he insist upon the matter 
 being left to the jury, they must give in their verdict^ 
 which is general or special. A general verdict is a 
 finding by the jury, in the terms of the issue, or 
 issues referred to them ; and it is either wholl}' or in 
 part, for the plaintiff or for the defendant. If it be for 
 the plaintiff, or for the defendant in replemn p, the 
 jury should regularly assess the damages : But when 
 the plaintiff is nonsuited on the trial of an issue, he 
 cannot have contingent damages assessed for him on 
 a demurrer''; though, when the plaintiff in replemn 
 is nonsuited, the jury may assess damages for the 
 defendant ^ 
 
 Damages are a pecuniary compensation for an in- 
 jury ; and may be recovered in every personal action 
 that lies at common law : But in an action for a pe- 
 nalty given by statute to a common informer, they 
 are not recoverable ' ; nor for delay of execution, in a 
 scire facias founded on the statute of Westm, Q. 
 c. 45 '. 
 
 In 
 
 " 3 T. R. 662. and see 1 ed on a distress for rent, pur- 
 Bur. 358. Cowp. 483. suant to the statute 17 Car, 
 o 2 T. R. 281. II. c. 7. In other cases, the 
 P If an issue be found for jury find only damages, 
 the defendant in refilevi?i, the i 1 Str. 507. 
 jury, besides damages, may "■ Comb. 11. 5 Mod. 76. 
 find the value of the distress, ^ i RqI. Abr. 574. 4 Bur. 
 and the amount of the rent in 2018. 2489. 
 arrear, if the action was found- * 3 Bur. 179 1.
 
 OF DAMAGES. 799 
 
 In actions purely real, no damages are recover- 
 able '', as in a writ of right, &c. ; but damages may 
 be recovered in actions of a mixed wdXwYt, as in eject- 
 ment ' , or in an assize, or writ of entry in nature of 
 an assize of 7io'uel d isseis i?j, 'dgsiinst the disseisor ''' : 
 And by the statute of Gloucester , (6 £dw. 1.) c. 1. 
 damages were given in an assize, or writ of entry 
 upon a novel disseisin, against the alienee, or him that 
 was found tenant after the disseisor; and also in all 
 cases where a man recovered by assize of 7Jiort 
 d'' ancestor '', or upon writs of cosinage, aiel and be- 
 saiel, or against a tenant upon his own intrusion or 
 act. By the statute Westm. 2. (13 Edw. 1.) c. 26. 
 double damages are recoverable upon a writ of re- 
 disseisin; and by the 3 & 4 Edijo. VI. c. 3. ^4. 
 treble damages may be recovered in an assize of 
 novel disseisin, upon the statutes respecting the im- 
 provement of wastes ^, &c. In a writ of dovjer wide 
 nihil habet, the widow is entitled, by the statute of 
 Merton, (20 Hen. III.) c. 1. to recover in damages 
 the value of her dower, from the time of the death 
 
 of 
 
 ■^ Booth, on r<?a/' Actions, 74. was recovered against the 
 
 ^ 3 Blac. Com. 200, 1. chief-lord. 
 
 ^•^ 2 lust. 286. 10 Co. Pil- y See also the statutes of 
 
 fold's case; and see 3 Blac. Westm. 1. 3 Edw. I. c. 24. 
 
 Com. 187, 8. Westm. 2. 13 Edw. I. c. 25. 
 
 •^ Damai>;es had been be- 1 Ric. II. e. 9. 1 Hen. IV. 
 
 fore given in an assize oi mort c. 8. and 4 Hen. IV. c. 8. by 
 
 d'ancestor, by the statute of which double or treble dama- 
 
 - Marlbridge, 52 Hen. III. c. ges are given upon disseisir.- 
 
 16. in cases where the land in particular cases.
 
 300 OF DAMAGES. 
 
 of her husband \ In waste, treble damages are re- 
 coverable by the statute of Gloucester, (6 Edw. I.) 
 c. 5. to which costs are superadded, by the 8 &: 9 
 /v. III. c. 11. § 3. But in an action of ivaste, on 
 the statute of Gloucester, against tenant for yeai's, 
 for converting three closes of meadow into garden 
 ground, if the jury give only one farthing damages 
 for each close, the court will give the defendant 
 leave to enter up judgment for Iiimself ''. And by 
 the statute M'^estJii. 2. (13 Edw. I.) c. 5. \ 3. da- 
 mages are given in writs of quare impedit, and 
 darrein presentment. 
 
 In actions upon the case, trespass, reple'uin, &c. 
 the damages at common law are single, and propor- 
 tioned to the injury complained of; but double or 
 treble damages are sometimes given by statute, in 
 cases \\ here single damages were before recoverable, 
 as upon the 2 Hen. IV. c. 11. for wrongfully suing 
 in the admiralty court'', upon the 8 Hen. VI. c. 9. 
 for a forcible entry *", and upon the 2 h 3 ff. h M. 
 sess. 1. c. 5. for rescuing a distress for rent^. 
 
 In an action of debt for a penalty, the damages 
 at common law are merely nominal^. But where 
 
 an 
 
 ' For the construction of '^ Bro. Dam. fil. 70. 10 Co. 
 
 this statute, and in what cases 115. b. Co. Lit. 257. b. 2 
 
 the widow is entitled to da- Inst. 289. Cro. Eliz. 582. 
 
 mages thereon, see Co. Lit. ^ Carth. 321. 1 Salk. 205. 
 
 32, 3. 1 Ld. Raym. 19. 342. Skin. 
 
 a 2 Bos. & Pul. 86. 555. Holt, 172. S. C. 
 
 b 10 Co. 116. Dyer, 159 b. « 6 T. R. 303. but see 2 
 
 Cavth. 297 T. R. 388. 7 T. R, 446.
 
 GF DAMAGES. 801 
 
 an action is brought upon a bond, for the non-per- 
 formance of covenants, the jury, upon the trial or a 
 writ of inquiry, are, by virtue of the statute 8 &: 9 
 W. III. c. 11. ^ 8. to assess not only the ordinary 
 damages and costs of suit, but also damages for 
 such of the breaches as the plaintiff proves; and 
 judgment shall be entered in the common form, 
 which shall afterwards remain as a security to the 
 plaintiff, against future breaches. In an action on a 
 charter-party, damages may be recovered beyond 
 the amount of the penalty ^; and w here the precise 
 sum is not the essence of the agreement, the quan- 
 tum of damages may be assessed by the jury; but 
 where the precise sum is fixed and agreed upon be- 
 tween the parties, that sum is the ascertained da- 
 mage, and the jury are confined to it ''. 
 
 On a declaration consisting of several counts, the 
 jury may either assess intire damages, on the whole 
 or part of the declaration, or they may assess several 
 damages on the different counts '. If intire damages 
 be assessed, and any one or more of the counts be 
 bad or inconsistent, judgment may be an'csted^; be- 
 cause it must be intended, that some part of the da- 
 mages 
 
 8 1 Blac. Rep. 395. and see ' 1 Rol. Abr. 570. /il. I. 
 
 3 Bur. 1345. j Say. Ouju. ch. 25. bur see 
 
 ^ 4 Bur. 2225. and see 2 the distinction taken in WH- 
 
 Bos. 8c Ful. 346, les, 44o. 
 
 Vol. II. T
 
 802 OP DAMAGES. 
 
 mages was assessed upon those counts. In order to 
 cure this defect, if there was evidence given at the 
 trial upon such of the counts only as are good and 
 consistent, a general verdict may be altered, from 
 the notes of the judge, and entered only on those 
 counts ^ ; but if there was any evidence, which ap- 
 plied to the other bad or inconsistent counts, (as for 
 instance in an action for words, where some action- 
 able words are laid, and some not actionable, in dif- 
 ferent counts \ and evidence given of both sets of 
 words, and a general verdict,) there the postea can- 
 not be amended ; because it would be impossible few 
 the judge to say on which of the counts the jury had 
 found the damages, or how they had apportioned 
 them: In such case, therefore, the only remedy is 
 by awarding a Denire de nouo '". If the jury find a 
 verdict for the plaintiff with one penalty generally, 
 in a penal action, and the plaintiff apply it to one 
 count, lie cannot afterwards apply it to another, 
 though the former is bad in law, and though the evi- 
 dence A\ould have warranted the verdict on any other 
 count ''. 
 
 If there be judgment by default as to part, and 
 an issue upon other part, or in an action against 
 several defendants, if some of them let judgment 
 go by default, and others plead to issue, there 
 ought to be a special i^enirc, as well to try the issue 
 
 as 
 
 '< 1 Bos. & Pul. 329. 542. 6 T. R. 694. 
 
 ' Willes, 443. "ST. R. 448. but see 3 
 
 ™ Doug. 376. 722. 1 T. R. Bur. 1237. semb. contra.
 
 OF DAMAGES. 803 
 
 as to inquire of the damages, tarn ad triandum qiiam 
 ad inquirendum^ and the jury who \x)' the issue shall 
 assess the damages for the whole, or against all die 
 defendants ". But if a declaration in trespass contain 
 two counts, and the defendant plead to one, and suf- 
 fer judgment by default on the other, and on the 
 trial of the first, the plaintiif prove one act of tres- 
 pass only, which is covered by the second count, he 
 is not entided to a verdict on the first count p. In the 
 case of several defendants, when those who plead to 
 issue are acquitted at the trial, the jury, in some in- 
 stances, shall assess damages against the defendants 
 u^ho let judgment go by default, and in others not. 
 In actions upon contract^ as covenant \ assumpsit *", 
 &c. the plea of one defendant, for the most part, 
 enures to the benefit of all ; for the contract being 
 intire, the plaintiff must succeed upon it against all 
 or none ; and therefore if the plaintiff fail at the trial, 
 upon the plea of one of the defendants, he cannot 
 have judgment or damages against the others, who 
 let judgment go by default: But in actions of torty 
 as trespass^ &c. where the wrong is joint and several, 
 the distinction seems to be this, that u here the plea 
 of one of the defendants is such, as shews the plain- 
 tiff could have no cause of action against any of 
 
 them, 
 
 1 1 Co. 5. 2 Bos. and Pul. Keb. 284. S. C. 
 
 163. :• Cas. Pr. C. B. 107. Prac. 
 
 P 7 T. R. 727. Reg. 102. S. C. r> T. R. 662. 
 
 1 1 I<ev. 6.^>. 1 Sid. 76. 1
 
 804 or DAMAGES. 
 
 them, there, if this plea be found against the plaintiff, 
 it shall operate to the benefit of all the defendants, 
 and the plaintiff cannot have judgment or damages 
 against those who let judgment go by default ''; but 
 where the plea merely operates in discharge of the 
 party pleading it, there it shall not operate to the 
 benefit of the other defendants, but notwithstanding 
 such plea be found against the plaintiff, he may have 
 judgment and damages against the other defendants ^ 
 
 If there be a demurrer to part, and an issue upon 
 other part, or in an action against several defendants, 
 if some of them demur, and others plead to issue, 
 the jury who try the issue shall assess the damages 
 for the whole, or against all the defendants : In this 
 case, if the issue be tried before the demurrer'is ar- 
 gued, the damages are said to be contingent ", de- 
 pending upon the event of the demurrer. But where 
 the issue, as well as the demurrer, goes to the whole 
 cause of action, the damages shall be assessed upon 
 the issue, and not upon the demurrer. 
 
 Where there ai'e several defendants, who sever in 
 pleading, the jury who try the first issue shall assess 
 damages against all, with a cesset executio; and the 
 other defendants, if found guilty, shall be contri- 
 te butory 
 
 s2 Ld. Raym. 1372. 1 Str. ^ '2 Str. 1108. 1222. 
 610. 8 Mod. 217. S. C. ^ Ante, 671.
 
 OF DAMAGES. 805 
 
 butory to those damages '. In trespass against seve- 
 ral defendants, who join in pleading, if the jury on 
 the trial find them all jointly guilty, they cannot as- 
 sess several damages ■. But they may find some of 
 them guilty, and acquit others; in which case, the 
 damages can be assessed against those only w ho are 
 found guilty : Or they may find some of the defen- 
 dants guilty of the whole trespass, and others of a 
 part only ''; or some of them guilty of part, or at one 
 time, and the rest guilty of other part, or at another 
 time ' ; in either of which cases, they may assess 
 several damages. And ^vhere in an action against 
 several defendants, the jury by mistake have assess- 
 ed several damages, the plaintiff may cure it, by en- 
 teri;ig a nolle prosequi as to one of the defendants, and 
 taking judgment against the others '; or he may enter 
 a remittitur as to the lesser damages ^\ or even with- 
 out entering a remittitur^ he may take judgment 
 against all the defendants, for the greater damages '\ 
 
 Where 
 
 ^ 11 Co. 5. If A. recover in see 1 Str. 79. 2 Str. 1140. 
 
 tort against two defendants, =^ Cro. Eliz. 860. 11 Co. 5. 
 
 and levy the whole damages Sty. Rep. 5. 
 
 on one of them, that one can- y 1 1 Co. 6. Brownl. 233. 
 
 not recover a moiety against Cro. Car. 54. 
 
 the other for his contribution ; ^ 11 Co. 5. Cro. Car. 239. 
 
 alitcr in asHumlisit. 8 T. R. 243. Carth. 19. 
 
 186. all Co. 7. a. Cro. Car. 
 
 w Cro. Eliz. 860. 11 Co. 192. 1 Wils. 30. 
 
 5. 1 vStr. 422. 2 Str. 910. 5 ^ Id. ibid. 
 
 Bur. 2792. 6 T. R. 199. but
 
 806 or SPECIAL VERDICTS. 
 
 Where the jury, upon the trial of an issue, have 
 omitted to assess the damages, we have before seen 
 in what cases the omission may be suppUed, by a 
 VvTit of inquiry ". Where the jury give greater da- 
 mages dian the plaintiff" has declared for, it may be 
 cured by entering a remittitur of the surplus, before 
 judgment '^; or the plaintiff may amend his declara- 
 tion, and have a new trial •". And in an action for a 
 mayhem^ the damages may be increased by the 
 court, on view of the party '". 
 
 On a general verdict, if false, the jury were liable 
 to be attainted^. To relieve them from this diffi- 
 culty, it was enacted by the statute oiWestm. 2. (13 
 EdiM. 1.) c. 30. \ 2. " that the justices of assize 
 *' shall not compel the jurors to say precisely whc- 
 " ther it be disseisin or not, so as they state the 
 *' truth of the fact, and pray the aid of the justices; 
 " but if they will say, of their own accord, that it is 
 " disseisin, their verdict shall be admitted at their 
 '* own peril." Upon this statute, it has become the 
 practice for the jury, when they have any doubt as to 
 the matter of law, to find a special verdict, stating the 
 facts, and referring the law arising thereon to the de- 
 cision of the court; by concluding conditionally, that 
 if upon the whole matter alleged, the court shall be 
 
 of 
 
 c Ante^ 516, Sec ^ 1 Ld. Raym. 176. 3 Salk. 
 
 <! Yelv. 45. 2 Str. 1110. 115. S.C. 1 Wils. 5. Barnes, 
 
 1171. 153. 
 
 ^^ Jn(e, 652, o. g Gilb. C. P. 71. 
 
 I
 
 OF SPECIAL VERDICTS. 807 
 
 of opinion, that the plaintiff had cause of action, they 
 then find for the plaintiff; if otherwise, then for the 
 defendant ". In finding special verdicts, where the 
 points are sing-le and not complicated, and no special 
 conclusion, the counsel (if required,) are to sub- 
 scribe the points in question, and agree to amend 
 omissions or mistakes in the mesne conveyance, ac- 
 cording to the truth, to bring the point in question 
 to judgment': Arid unnecessary finding of deeds 
 hi licec verba, where the question rests not upon 
 them, but which are only derivation of title, ought 
 to be spared, and stated shortly, according to the 
 substance they bear in reference to the deed, as feofi"- 
 ment, lease, grant ', &:c. It is also a general rule, that 
 in a special verdict, the jury must find facts, and not 
 merely the evidence of facts ^ : And if in this, or any 
 other particular, the verdict be defective, so that the 
 court are not able to give judgment thereon, they 
 will amend it, if possible, by the notes of coun- 
 sel, or even by an affidavit of what was proved 
 upon the trial '' ; or otherwise, they will supply the 
 defect, by awarding a nicnire de novo \ 
 
 If there be a special verdict, the plaintiff's at- 
 torney generally has it drawn, from the minutes 
 
 taken 
 
 •' 3 Blac Com. 377, 8. and S. C. 1 East, 1 H. 
 
 see Append. Chap. XXXVII. ^ Jnte, 662. 
 
 § 41. 12 Ld. Raym. 1521. 1584. 
 
 iR. M. 1654. § 20. 2 Str. 887. S. C. 1124. S. P 
 
 J 1 Wils. 48. 2 Str, 1185. 1 i:ast, 111.
 
 808 OF SPECIAL CASES. 
 
 taken at the trial, and settled by his counsel, who 
 signs the draft. It is then delivered over to the op- 
 posite attorney, who gets his counsel to peruse and 
 sign it; and \vhen the verdict is thus settled and 
 signed, it is left with the clerk of nisi prius in a town 
 cause, or with the associate in the country, who 
 makes copies for each party. The whole proceed- 
 ings are then entered, docketed, and filed of record; 
 after ^\ hich a concilium is moved for, a rule drawn 
 up thereon with the clerk of the rules, the cause en- 
 tered with the clerk of the papers, copies of the re- 
 cord made and delivered to the judges, and counsel 
 instructed and heard, in like manner as upon argu- 
 ing a demurrer"'; only that a special verdict must 
 be set down in the paper for argument within four 
 days ", and cannot be set down afterwards, without 
 leave of the court". After judgment given, the pre- 
 vailing party is immediately entitled to tax his costs, 
 and take out execution, without a rule for judg- 
 ment; but the other party may have a rule to be pre- 
 sent at taxing costs ''. 
 
 Another method of finding a species of special 
 verdict, is when the jury find a verdict generally 
 for either party, but subject nevertheless to the 
 opinion of the court above, on a special case, 
 stated by the counsel on both sides, with regard 
 to a matter of law; which has this advantage 
 
 over 
 
 m Ante^ 685, 6. o Imp. K. B. 352. 
 
 ^ Bur. in firef. IV. v Id. ibid.
 
 OF SPECIAL CASES. 809 
 
 over a special verdict, that it is attended with much 
 less expence, and obtains a speedier decision; the 
 postea being stayed in the hands of the officer of 
 nisi prius, till the question is determined, and the 
 verdict is then entered for the plaintiff or defendant; 
 as the case may happen. But as nothing appears 
 upon the record but the general verdict, the parties 
 are precluded hereby from the benefit of a writ of 
 error, if dissatisfied with the judgment of the court 
 upon the point of law '^. 
 
 In a special case, as in a special verdict, the facts 
 proved at the trial ought to be stated, and not merely 
 the evidence of facts '. It is usually dictated by the 
 court, and signed by the counsel, before the jury are 
 discharged ; and if in settling it, any difference arises 
 about a fact, the opinion of the jury is taken, and the 
 fact stated accordingly '. For the argument of a spe- 
 cial case, the same steps must be taken, as for that of 
 a special verdict, except that it is not entered of re- 
 cord. But it is a rule, that all special cases to be set 
 down by the clerk of the papers to be argued, must 
 be entered within the four first days of the term 
 next after the trial, at which such special cases 
 shall have been reserved; and that such special cases 
 shall never be set down for argument, on any of 
 the four last days of the term \ In arguing a spe- 
 cial 
 
 '1 3 Blac. Com. 378. ^ 1 Bur. in /iref. IV. 
 
 '•2WiIs. 163. t R. M. 38 Geo. III. 
 
 Vol. IL U
 
 810 OF SFECIAL CASES. 
 
 cial case, the counsel are not permitted to go out of 
 it, and the court must judge upon it as stated ": If 
 it be mis-stated, the parties must apply to amend; or 
 if it be so defective, that the court are not able to 
 give judgment, they will grant a new trial, in order 
 to have it re- stated ^. 
 
 Upon trial of the issue, a case was made, and af- 
 terwards argued in court, but the fact not being suf- 
 ficiently stated, so as tlie court could give judgment 
 according to the justice of the cause, it was recom- 
 mended to the parties, and accordingly they agreed 
 to go to a new trial, when the plaintiff was nonsuit- 
 ed : and the question being about the costs, whether 
 the master should tax the common costs of a non- 
 suit, or take into his consideration all the former 
 proceedings; upon motion for the court's direction 
 to the master, it was ordered, that he should tax 
 the defendant his costs upon the whole, as well 
 with relation to the first trial, as the last '". From 
 the statement of this case, it does not appear whe- 
 ther, upon granting a new trial, any thing was said 
 about the costs of the former trial, or whether they 
 were directed to abide the event of the suit: If 
 they were not, it seems from subsequent cases % 
 that at this day they would not have been allowed. 
 But where, after the argument of a special case, the 
 court directed a new trial, because the case was in- 
 sufficiently 
 
 ^ 1 Bur. 617. "3 T. R. 507. 6 T. R. 71. 
 
 V 1 Str. 300. 3 T. R. 507. Post. 823, 4. 
 w 1 Str. 300.
 
 OF THE POSTEA. 811 
 
 sufficiently stated; and the defendant, without going 
 to trial again, gave the plaintiff a cogno'oit; the court 
 held, that the defendant was liable to pay the costs 
 of the former trial ^, 
 
 The verdict, whether general or special, nonsuit, 
 &c. is entered on the back of the record of nisi 
 prtus; which entry, from the latin word it began 
 with, is called the postea ^ When the cause is tried 
 at the sittings in London or Middlesex^ the associate 
 delivers the record to the attorney of the party for 
 whom the verdict is given, and he afterwards in- 
 dorses the postea^ from the associate's minutes, on 
 the panel; but when the cause is tried at the assizes, 
 the associate keeps the record till the next term, and 
 then delivers it, with the postea indorsed thereon, to 
 thfe party obtaining the verdict. On a motion for 
 a new trial, the postea was brought into court, and 
 after the new trial had been denied, the postea 
 could not be found; the court on debate ordered 
 a new one to be made out, from the record above, 
 and the associate's notes*. If the postea be wrong, 
 it may be amended by the plea-roll, by the memory 
 or notes of the judge, or by the notes of the associate 
 or clerk of assize ^ But the court will not, at a dis- 
 tance 
 
 y 6 T. R. 144. 8cc. and for the defendant on 
 
 ^ For the form of the fioatea a nonsuit or verdict in assum/i- 
 
 on a verdict hr the /i/airitiff] in sic, 8cc. Id. § 27, 8tc. 
 
 as8U7n/isit, debt, case, refilevin, » 2 Str. 1264. 
 
 tres/iass, and ejectment, see '^ ^nte, 662. 
 
 Append. Chap. XXXVII. § 1,
 
 812 OF THE POSTEA. 
 
 tance of time after the trial, amend the postea, by 
 increasing the damages given by the jury; although 
 all the jurymen join in an affidavit, stating theii' in- 
 tention to have been, to give the plaintiff such in- 
 creased sum, and that they conceived the verdict 
 they had found was calculated to give him such 
 sum ^ 
 
 = 2 T. R. 281. 
 
 CHAP-
 
 [ 813 ] 
 
 CHAPTER XXXVIII. 
 
 O/'New Trials; ^«^ Arrest of Judgment, 
 
 \ FTER a general verdict, or upon a writ of in- 
 quiry, either on demurrer or judgment by de- 
 fault ^, it is incumbent on the prevailing party to 
 enter a rule for judgment nis'i causa, on tht postea or 
 inquisition, with the clerk of the rules. This rule 
 expires in four days'" exclushe after it is entered; 
 and Sunday % or any other day on which the court 
 doth not sit, is not reckoned one of the four days, 
 unless the rule be entered on the last day of the 
 term, or within four days after; during which four 
 days, it is the practice to enter these rules, as of the 
 last day of the term; and at the expiration of four 
 days exclusive after entering such rule, if no suffi- 
 cient cause be shewn to the contrary, judgment may 
 be entered \ The rule for judgment ought not to be 
 entered before the day in bank ; and it is not neces 
 
 sary 
 
 a 1 Salk. 399. after the return of the fiabeas 
 
 ^ 3 Salk. 215. 6 Mod. 241. corpora Juratorum, does not 
 
 c 4 Bur. 2130. extend to a case where the 
 
 <! R. E. 5 Geo. II. reg. 3. term closes before the four 
 
 (a). The rule in the common days are expired. 2 Bos. & 
 
 pleas, that final judgment can- Pul. 393. 
 
 not be signed till four days
 
 814 or NEW TRIALS. 
 
 sary if the plaintifF be nonsuited, for in that case 
 judgment may be entered immediately after the day 
 in bank ^ 
 
 Within the time limited by the rule, the unsuc- 
 cessful party may move the court for a new trial, or 
 inquiry; or in arrest of judgment; or for judgment 
 non obstante 'veredicto^ a repleader, or s)enire facias 
 de no'vo, 
 
 'I'he first instance to be met with in the books, of 
 a new trial on the evidence, was in the case of Wood 
 and Gunston^ A. D. 1665 ^, But Holt^ Ch. J. seems 
 to have been of opinion, that new trials were more 
 ancient, from the challenge to be met with in the old 
 books, that the juror had before given a verdict in 
 the same cause ^ ; Yet it does not from thence fol- 
 low, that the court granted a new trial upon the evi- 
 dence; for it might appear to be a mis- trial upon the 
 record, or there might be other reasons for awarding 
 a venire facias de ?iovo ^. 
 
 But whatever might have been the origin of the 
 practice, trials by jury in civil causes could not 
 subsist now, without a power somewhere to grant 
 new trials. If an erroneous judgment be given in 
 point of law, there are many ways to review and 
 
 set 
 
 e R. E. 5 G. II. reg. 3. s 2 Salk. 648. and see 6 T. 
 (a). R. 622, 3. 
 
 f Sty. Rep. 462. 466. ^ 2 Str. 995.
 
 OF NEW TRIALS. 815 
 
 set it right. Where a court judges of facts upon 
 depositions in writing, their sentence or decree may 
 many ways be reviewed and set right. But a general 
 verdict can only be set right by a new trial; which 
 is no more than having the cause more deliberately 
 considered by another jury, when there is a reason- 
 able doubt, or perhaps a certainty, that justice has 
 not been done. The writ of attaint is now a mere 
 sound in every case ; in many it does not pretend to 
 be a remedy. There are numberless causes of false 
 verdicts, without corruption or bad intention of the 
 jurors: They may have heard too much of the mat- 
 ter before the trial, and imbibed prejudices without 
 knowing it. The cause may be intricate: The ex- 
 amination may be so long, as to distract and con- 
 found their attention. Most general verdicts include 
 legal consequences, as well as propositions of fact: 
 In drawing these consequences, the jury may mis- 
 take, and infer directly contrary to law. The parties 
 may be surprised, by a case falsely made at die 
 tiial, which they had no reason to expect, and there- 
 fore could not come prepared to answer. If unjust 
 verdicts, obtained under these and a thousand like 
 circumstances, were to be conclusive for ever, the 
 determination of civil property, in this method of 
 trial, would be very precarious and unsatisfactory '. 
 
 It 
 
 i 1 Bur. 39.-^
 
 816 OF NEW TRIALS. 
 
 It was not formerly usual to grant a new trial in 
 .yect7nent ^, or after a trial at bar \ nonsuit "', or two 
 concurring verdicts "; but for the sake of obtaining 
 justice, it may be now had in these as well as in 
 other cases ". Where there are two contrary verdicts, 
 It is not of course to grant a third trial, but the court 
 in their discretion will grant or refuse it, according 
 to circumstances; there being no rule, either at law 
 or in equity, which entitles the losing party in that 
 case to the benefit of a third trial, if the second ver- 
 dict be satisfactory to the court p. In an inferior 
 court, a verdict cannot be set aside, and a new trial 
 had, upon the merits, but only for irregularity "^ : An 
 inferior court, however, has power to set aside a 
 regular interlocutory judgment, in order to let in a 
 trial of the merits. 
 
 The principal grounds or reasons for setting aside 
 a verdict or nonsuit, and granting a new trial, are 
 first, the want of due notice of trial'; but if the 
 defendant appear and make defence, he shall not 
 
 have 
 
 s2Salk. 648, 4 Bur. 1986. 2 Blac. Rep. 
 
 17 Mod. 37. 155. 2 Salk. 698. 3 Wils. 146. 338. after 
 
 550. S. C. a 7ionsuit; 4 Bur. 2109. 1 T 
 
 i^' 1 Blac. Rep. 532. R. 171. after two concurriiit^ 
 
 •^ 6 Mod. 22. 2 Salk. 649. verdicts, 
 
 i Str. 692. i' 2 Blac. Rep. 963. 
 
 ° 2 Sir. 1105. 4 Bur. 2224. ^2 Salk. 650. 1 Str. I]?. 
 
 in ejectment; Sty. Rep. 462. 392. 499. 
 
 466. 1 Str. 584. 2 Ld. Raym. ^ 1 Bur. 571. 
 
 1358. S. C. 2 Str. 1105. 1 '• Bill. .\7. Pr/. .327. 
 Bur. '^'}5. after a trial at bar^
 
 OF NEW TRIALS. 817 
 
 have a new trial on that ground \ Secondly, for wunt 
 of a proper jury; as where one of the jurymen w^^s 
 not returned on the nisi priiis panel, but answered to 
 the name of a person who was ' . Thirdly, the mibtje- 
 haviour of the prevailing party, towards the jury or 
 witnesses ''; but merely desiring a juror to appear, is 
 no cause for setting aside the verdict'. Fourthly , 
 the misbehaviour of the jury, in castin.^ lots for thtir 
 verdict ", Sec : But the court will not receive an affi- 
 davit of misbehaviour from any of the jurymen 
 themselves, in all of whom such conduct is a very 
 high misdemeanor - ; nor will they suffer the jury to 
 explain by affidavit the grounds of their verdict, 
 or to shew that they intended something different 
 from what they found ^. Fifthly, the court \\ ill 
 sometimes, though rarely, grant a new trial, on ac- 
 count of the unavoidiible absence of the attornies or 
 witnesses ", or upon the discovery of new and ma- 
 terial evidence, since the trial'': But a new trial is 
 never granted for the default or omission of the 
 parties, their counsel or attornies, in not coming 
 prepared with, or going into evidence which they 
 were apprised of, and might have produced at the 
 
 former 
 
 t 2 Salk. 6'1 G. Bui. A7. Pri. .326. 
 
 " Willes, 484. Barnes, 453. y Say. Rep. 100. 1 T.R. 11. 
 
 S. C. and see 4 T. R. 473. '■■ 5 Bur. 2667. 2 Bkt. Rep. 
 
 ^nte^ 524. Post, 838 (a). 803. 2 T. K 281. but see 1 
 
 V 7 Mod. 156. Bur. 383. srmb. com ra. 
 
 w 1 Str. 643. a 2 Salk. 645. 6 Mod. 22. 
 
 =< 2 Salk. 645. 1 Str. 642. i> 2 Blac. Rep. 955. 
 
 Vol. II. X
 
 818 
 
 or NEW TRIALS. 
 
 former trial '' ; or because a witness has either from 
 inattention, or the want of being prepared, made a 
 mistake in giving his evidence*^; or on account of 
 an o!)jection to the competency of witnesses, disco- 
 vered after the trial ". Sixthly, the misdirection of 
 the judge is a good ground for a new trial ^; or his 
 admitting or refusing evidence contraiy to law ^. 
 But it is no ground ibr the court to grant a ne\^^ trial, 
 that a witness called to prove a certain fact was reject- 
 ed, on a supposed ground of incompetency, where 
 another witness ^vho was called established the same 
 fact, which was not disputed by the other side; and 
 the defence proceeded upon a collateral point, on 
 which the verdict turned. 3 East, 451. Seventhly, 
 a new trial may be, and is commonly moved for, on 
 account of the error or mistake of the jury, in finding 
 a verdict without, or contrary to evidence''; but 
 where there is evidence on both sides, it is not usual 
 to grant a new trial ', unless the evidence for the pre- 
 vailing party be very slight, and the judge declare 
 himself dissatisfied with the verdict ^i And, except 
 where a point has been saved at the trial '% it is a 
 general rule, not to grant a new trial, except for 
 the misdirection of the judge \ and in a penal "", hard, 
 
 or 
 
 ^ 2 Salk. 647. 653, 6 Mod. 
 22. 1 Str. 691. I Wils. 98. 
 
 1 Blac. Rep. 298. 2 Blac. 
 Rep. 802, 3. 1 T. R. 84. 
 
 2 T. R. 113. But the court 
 of Common Pleas will grunt 
 a new trial, if tiie testimony 
 of witnesses, on which a ver- 
 dict has proceeded, be found- 
 ed on and derive its credit from 
 particular circumstances, and 
 those circumstances be after- 
 wards clearly falsified by affi- 
 davit. 1 Bos.'Sc Pul. 427. 
 
 •^ Say Rep. 27. 
 
 e 1 T. R. 717. 1 Bos. 8c Pul. 
 429. (a). 
 
 f 2 Salk. 649. 2 Wils. 273. 
 
 g 6 Mod. 242. 
 
 ^ 1 Bur. 12.54.2 Bur. 665. 
 936. 
 
 i 2 Str. 1106. 1142. 1 Wils. 
 22. 3 Wils. 47. 
 
 J Say. Rep. 264. and see 3 
 Wils. 38, 9. 
 
 i^ 1 Bos. & Pul. 338, 9. 
 
 I 4 T. R. 753. 5 T. R. 
 19. 
 
 '" 2 Str. 899. 1238. 1 Wils. 
 17. 3 Wils. 59.
 
 '' OF NEW TRIALS. 819 
 
 or trifling action ", after a verdict for the defendant ; 
 nor after a verdict forlbeplainiiff, where the defence 
 is unconscionable ", and the verdict is found accord- 
 ing to tiie justice and honest}' of the case ■'. Eiglithly, 
 a new trial may be had for excessiiie damages "^ ; but 
 in that case, the damages oiight not to be weighed 
 in a nice balance, but must be such as appear at first 
 blush to be outrageous, and indicate passion or par- 
 tiality in the jury. And where a new trial is granted 
 for excessive damages, the former verdict stands as a 
 security in the mean time, for the damages which 
 may be given on the second trial ^ It is not usual to 
 grant a new trial for smallness of damages '; though 
 inquisitions, on writs of inquiry, have been some- 
 times set aside on that ground ^ 
 
 A new trial cannot be granted in chil cases, at 
 the instance o^ one of several defendants "; nor for a 
 
 pan 
 
 n 2 Salk. 644. 648. 653. 1 1 Bos. Sc Pul. 338. 
 
 Bur. 12.54. 664.3 Bur. 1306. q 1 SU'. 692. 1 Bur. 609. 2 
 
 2 Blac. Rep. 851. Cowp. 37. Wils. 160.205.244.252. 405. 
 
 And an action is considered as 3 Wils. 18. 62. 2 Blac. Rep. 
 
 triflinj^ in this respect, where 929. 942. 1327. Cowp. 230. 1 
 
 the sum to be recovered is un- T. R. 277. 4 T. R. 65 1. 5 T. 
 
 der 20/. Taylor v. Greeii, H. R. 257. 7 T. R. 529. 
 
 38 G. III. ' 7 T. R. 529. 
 
 o 2 Salk. 644. 646, 7. 1 Bur. ^ 2 Salk. 647. 2 Str. 940. 
 
 12. 54. 2 Bur. 664. 4 T. R. 105 1. 
 
 468. t Jlntc^ 524. 
 
 P 2 Bur. 936. 2 Wils. 306. " 3 Salk. 361. 12 Mod. 275. 
 
 362. 2 T. R. 4. 4 T. R. 468. 2 Str. 814.
 
 82(:) OF NEW TRIALS. 
 
 part only of the cause of action": and therefore, 
 where one issue out of four was found against evi- 
 dence, the court granted a new trial, not only as to 
 such issue, for that they said could not be, but for the 
 whole \ But then, the issue found against evidence 
 must be a material one ; for if, out of three issues, 
 two are found against evidence, yet if the material 
 issue in the cause be agreeable to evidence, the court 
 will not grant a new trial ''. In criminal cases, where 
 several defendants are tried at the same time for a 
 misdemeanor, and some are acquitted, and some con- 
 victed, the court may grant a new trial as to those 
 convicted, if they think the conviction improper y. 
 
 The motion for a new trial must be made with- 
 in four da}s exchisiDe after the entry of a rule for 
 judgment ^ ; and if it be not made within that time, 
 the party complaining cannot afterwards be heard, 
 on the subject of a new trial *: and there is no dif- 
 ference in this respect between civil and criminal 
 cases '; though in the latter, where the court have 
 seen of themselves, or it has appeared to them 
 on the suggestion of counsel, that substantial jus- 
 tice has not been done, they have sometimes inter- 
 posed 
 
 V 2 Bur. 1224. 1 Blac. Rep. 25 Geo. II. Bui. M. Pri. 326. 
 
 298. S. C. y6 T.R. 619. 
 
 w Rexw Pool, E. 1734. Bui. ^ Doug. 171. 
 
 Ki. Pri. 326. a 5 T. R. 436. 
 
 ^ Dexter v. Parrowby, E. ^ Id. ibid.
 
 OF NEW TRIALS. 821 
 
 posed after the regular time, and granted a new trial '^. 
 It is a general rule, that the party shall not move for 
 a new trial, after he has moved in arrest of judg- 
 ments^: This rule however extends only to cases, 
 where the party has knowledge of the fact, at die 
 time of moving in arrest of judgment; therefore a new 
 trial was granted, after such a motion, on affidavits of 
 two of the jury, that they drew lots for their verdict ^ 
 And where the defendant, pending his motion for a 
 new trial, served the plaintiff with a copy of an al- 
 lowance of a writ of error, the court held this to be 
 an admission of the facts of the case, and refused to 
 grant a new trial ^ 
 
 An affidavit is necessary to move for a new trial, 
 unless the ground of it appears on the face of the evi- 
 dence : and the rule, if granted, is a rule, to shew cause ; 
 on obtaining which, application should be made to the 
 judge who tried the cause, for his report of the evi- 
 dence, and if he be not of the same court, his clerk 
 will deliver it to the puisne judf^e of the court in u hich 
 the action is brought. If the judge who tried tlie 
 
 cause 
 
 ^ 2 Str. 845. 995. 2 Bur. (ju. whether such affidavits 
 
 1189. Doug. 171. 797. 5 T. would now be received? Jnte, 
 
 R.436, 7. 1 East, 146. 817. 
 
 d 2 Salk. 647. 1 Bur. 334. ( Bennet v. Hunt, T. 15 G. 
 
 -,Bul. J^i. Pri. S25, S. but III.
 
 *22 Of NEW TRIALS. 
 
 t;ause declare himself satisfied with the verdict, it 
 hath been usual not to grant a new trial, on account of 
 its being against evidence : On the other hand, ii" he 
 declare himself dissatisfied with the verdict, it is 
 pretty much of course to grant it ^. In a case where 
 a judge only reported evidence, without declai'ing 
 . himself to be satisfied or dissatisfied with the ver- 
 dict, the court were under difficulty how to act : they 
 seemed inclined however to hear it spoken to; but 
 through their interposition, the paities agreed to 
 abide by the determination of the point of law ''. 
 
 The granting of a new trial is either without, or 
 upon payment of the costs of the former trial, or such 
 costs are directed to abide the event of the suit, or 
 nothing is said respecting them. If a new trial be 
 granted for irregularity, the costs of the former tri- 
 al ought not to be paid ' ; and the party applying 
 is in such case entitled to the costs of the ap- 
 plication. Where the plaintiff has been nonsuited, 
 by the mistake of the judge in point of law, the 
 court have in several instances ordered the nonsuit 
 to be set aside, without costs ^ ; and verdicts have 
 been set aside in a similar manner, when they have 
 been obtained by unfair practice '', or contrary to 
 
 law 
 
 % Bui. AV. Pri. 327. J 1 Blac. Rep. 670. Say. 
 
 'i Rex V. Philips 23 Geo. . Costs, 189. .3 Wils. 146. ".38 
 II. Bui. AiPn. 327. '^ 1 Bur. 3.^2. 
 
 ■' 12 Mod. 57U.
 
 OF NEW TRIALS. 823 
 
 law and the judge's direction ': But generally speak- 
 ing, where a new trial is granted for the error or mis- 
 take of the jury, either in finding a verdict without 
 or contrary to evidence, or in giving excessive da- 
 mages, it is always upon payment of the costs of the 
 former trial "'. 
 
 On granting a new trial for the misbehaviour of 
 the jury, the costs of the former trial were directed 
 to abide the event of the suit ". And upon setting 
 aside a nonsuit, when the costs are directed to 
 abide that event, though the plaintiff succeed on the 
 second trial, he is not entided to the costs of the first; 
 neither is the defendant in such case entitled to the 
 costs of the first trial : but when the same party suc- 
 ceeds on both trials, he is entitled to the costs of both". 
 Where the costs of the former trial are not ordered to 
 be paid, nor directed to abide the event of the suit, 
 they shall not be allowed, though the verdict has gone 
 the same way, unless it be so expressed in the rule 
 granting the new trial ; and if the rule be silent in 
 that respect, the costs of the first trial are never 
 
 allowed, 
 
 1 Say. Costs, 189. 2 Bur. 665. K. B. Pr. Reg. 408. C. 
 1224. 1 Blac. Rep. 298. S. B. and see 1 T. R. 20. 
 C. 1 Blac. Rep. 670. S. P. " 1 Str. 642. and see Willes, 
 
 "» 12 Mod. 370. 1 Str. 488. 
 642. 1 Bur. 12. 39".. 2 Bur. » 8 T. R. 619. 1 East, 114 
 
 fr7). S.C. cited.
 
 824 OF ARREST OF JUDGMENT, SlC. 
 
 allowed, whichever way the verdict may go upon the 
 second trial ^. 
 
 If the verdict or nonsuit be set aside, and a new 
 trial granted, the rule for that purpose should be 
 drawn up and served ; and if it be on payment of 
 costs, they must be forthwith paid, (the rule being 
 conditional.) or the prevailing party may move the 
 court for leave to enter up judgment, and take out 
 execution. In order to proceed to a new trial, it is 
 not necessary that the Jiisi prius record should be re- 
 engrossed, unless the postea be indorsed on it, or that 
 any new entries should be made or paid for; but 
 the record must be passed again, with an alteration 
 oftheji/rata; and notice of trial being given, another 
 'venire and distringas must be sued out and returned, 
 and the cause set down anew ^. 
 
 The only ground of arresting judgment^ at this 
 day, is some matter intrinsic, appearing upon the 
 
 face 
 
 p Doug. 437. 3 T. R. 507. go the same way, the party 
 
 6 T. R. 71. 131. 1 East, succeeding has the costs of 
 
 111. 1 H. Blac. 639. but see both trials; but if the ver- 
 
 1 Str. 300. 5 Bur. 2694. 6 diets go different ways, the 
 
 T. R. 144. In the court of party ultimately succeeding 
 
 Common Pleas, the rule is has not the costs of the first 
 
 different; for there, if a new trial. 1 East, 1 12. and see 
 
 trial be granted, and the rule 1 H. Blac. 641. 
 
 say nothing about costs, if q Imp. K. B. 361. and see 
 
 the verdict on the second trial R. Ev 5 3 G. III. 
 
 Il
 
 OF ARREST OF JUDGMENT, &C. 825 
 
 face of the record, which would render it erroneous 
 and reversible ; for though it seems to have been 
 otherwise formerly % yet it is now settled, that judg- 
 ment cannot be airested for extrinsic or foreign mat- 
 ter, not appearing on the face of the record, but the 
 court are to judge upon the record itself, that their 
 successors may know the grounds of their judgment\ 
 The old course of taking advantage in arrest of judg- 
 ment was dius: The party, after a general verdict, 
 having a day in court, (for so he has, as to matters of 
 law, though not of fact,) did assign his exceptions in 
 arrest of judgment, by way of plea, and it was called 
 pleading in arrest of judgment: This differed from 
 moving in arrest of judgment, which was done by 
 one as amicus curia, where the party w^asout of court ^ 
 After judgment on demurrer, there can be no mo- 
 tion in arrest of judgment, for any exception that 
 might have been taken on arguing the demurrer; 
 the reason is, that the matter of law having been al- 
 ready settled, by the solemn determination of the 
 court, they will not afterwards suffer any one to come 
 as amicus curia, and tell them that the judgment 
 which they gave on mature deliberation is ^vrong: 
 but it is otherwise after judgment by default, for that 
 is not given in so solemn a manner ". 
 
 The 
 
 «■ 1 Salk. 77. Bur. 2287. 
 
 s 1 Ld. Raym. 232. 1 t 1 SJk. 77, 8. 215. 
 
 Salk. 77. b. C. /rf. 315. 4 6 Mod 143. 
 
 o 1 Str. 435. 
 Vol. II. Y
 
 826 OF ARREST OF JUDGMENT, hC. 
 
 The parties cannot move in arrest of judgment, 
 for any thing that is aided after verdict, at common 
 law ; or amendable at common law, or by the statutes 
 of amendments ; or cured, as matter of form, by the 
 statutes of Jeofails. 
 
 At common law, where any thing is omitted in the 
 declai'ation, thought it be matter of substance, if it be 
 such as that without proving it at the trial, the plaintiff 
 could not have had a verdict, and there be a verdict 
 for the plaintiff, such omission shall not arrest the 
 judgment '. This rule however is to be understood 
 with some limitation; for on looking into the cases, 
 it appears to be, that where the plaintiff has stated his 
 title or ground of action defectively or inaccurately, 
 (because, to entitle him to recover, all circumstances 
 necessary, in form or substance, to complete the title 
 so imperfectly stated, must be proved at the trial,) 
 it is a fair presumption, after a verdict, that they 
 were proved; but that where the plaintiff totally 
 omits to state his title or cause of action, it need 
 not be proved at the trial, and therefore there is 
 no room for presumption '". And hence it is a 
 general rule, that a verdict \mll aid a title defec- 
 
 tvoely 
 
 V 2 Show. 233. T. Raym. 2 Wils. 5. 4 Bur. 2020.Cowp. 
 
 487. S. C. and see Cro. Jac. 825. 1 T. R. 141. 3 T. R. 147. 
 
 44. Hob.78. 1 Sid.218.Carth. 7 T. R. 518. 2 Bos, 8cPul.259.. 
 
 304.389. 1 Salk. 130. 2 Ld. 267. 
 Raym. 1214. 1 Wils. 1. 255. ^^ Doug. 679.
 
 OF ARREST OF JUDGMENT, ScC, 827 
 
 ihefy set out, but not a defect'me title " ; or in other 
 words, nothing is to be presumed after verdict, but 
 what is expressly stated in the declaration, or neces- 
 sarily implied from thefacts which are stated . Thus, 
 where the grant of a reversion was stated, ^vhich 
 could not take effect without attornment, that, being 
 a necessary ceremony, might be presumed to have 
 been proved ' : But where, in an action against the 
 indorser of a bill of exchange, the plaintiff did not al- 
 lege a demand on and refusal by the acceptor, when 
 the bill became due, or that the defendant had notice 
 of the acceptor's refusal, this omission was held to 
 be error, and not cured by the verdict '^ : for in this 
 case, it was not requisite for the plaintiff to prove, 
 either the demand on the acceptor, or the notice to 
 the defendant, because they were neither laid in the 
 declaration, nor were they circumstances necessary 
 to any of the facts charged. 
 
 Another rule at common law is, that surplusage 
 will not vitiate after verdict ; utile per inutile non 
 'vitiatur^': and therefore in trover, if the plaintiff 
 declare that on the third of March he was possessed 
 of goods, which came to the defendant's hands, 
 
 and 
 
 X 1 Salk. 365. 2 Ld. Raym. y Per Buller, Just. 1 T. R. 
 
 1325. S. C.2 Str. 1011. 1023. 1 45. and see 7 T. R. 521. 
 Cas. temfi. Ilardw. 1 16. S. C. ' Doug. 683. 
 1 Bur. 301. 2 Bur. J 159. 4 T. ^ Id. 679. 
 R. 472. b Co. Lit. 303. b. Plowd 
 
 2^32. 1 Saund. 1C9. 287.
 
 828 OF ARREST OF JUDGMENT, &C. 
 
 aiid that afterwards, to wit, on the first of Marchy he 
 converted them to his own use, this is cured after 
 verdict; for " that he afterwards converted them" 
 is sufficient, and the scilicet is void '^. 
 
 As the plaintiff's action must have all the 
 essentials necessary to maintain it, so the de- 
 fendant's bar must be substantially good; and if 
 the gist of the bar be bad, it cannot be cured by a 
 verdict found for the defendant : but if it be found 
 for the plaintiff, he shall have judgment, either 
 for the badness or falsity of the bar*^. Thus, 
 before the satute for the amendment of the law % if 
 the defendant had pleaded payment without an ac- 
 quittance, and it had been Ibund for him, yet he 
 could not have had judgment; because the gist of 
 the plea was bad, since the obligation remained in 
 force, until dissolved eoclem ligamine quo ligatur ; but 
 if it had been found for the plaintiff, he should have 
 had judgment ^, 
 
 Where a plea confesses the action, and does not 
 sufficiently avoid it, judgment shall be given on the 
 confession, without regard to a verdict for the defen- 
 dant, which is called a judgment non obstante ^ere^ 
 dicto ^; and in such case, a writ of inquiry shall issue. 
 
 A ver- 
 
 cCro. Jac.428. g Cro. Eliz. 241. Carth.370. 
 
 d Gilb. C. P. 140. 1 Salk. 173. S. C. 6 Mod. 1. 
 
 e 4 Ann. c. 16. 2 Ld. Raym. 924. S. C. 1 Str. 
 
 f 5Co. 43. Cro. Eliz. 455. 394. 2 Str. 873. Willes, 364. 
 
 Moor, 692. S. C. Cro. Eliz. 1 Bur. 301. 
 778.
 
 OF ARREST or JUDGMENT, &C. 829 
 
 A verdict cannot help an immaterial issue; but 
 an informal one is aided by the 32 Hen. VIII. c. 30\ 
 An immaterial issue is, where that M-hich is ma- 
 terially alleged by the pleadings is not traversed, 
 but an issue taken on such a point as will not de- 
 termine the merits of the cause: An infoimal issue 
 is, where such allegation is not traversed in a proper 
 manner '. 
 
 Where the issue is immaterial, the court will 
 award a repleader; respecting which, the following 
 rules were laid down by the court, in the case of 
 Staple and Haydon ^ : First, that at common law, a 
 repleader was allowed before trial, because a verdict 
 did not cure an immaterial issue ; but now a replea- 
 der ought never to be allowed till trial, because the 
 fault of the issue may be lielped after verdict, by 
 the statute of Jeofails. Secondly, that if a repleader 
 be denied where it should be granted, or granted 
 where it should be denied, it is error. Thirdly, that 
 the judgment of repleader is general, namely, quod 
 partes replacitent; and the parties must begin again 
 at the first fault, which occasioned the immaterial 
 issue '': Thus, if the declaration be ill, and the bar 
 and replication are also ill, the parties must begin 
 de novo; but if the bar be good, and the replication 
 
 ill, 
 
 «> Gilb. C. P. 147. 1.2Ld. Raym. 922.3 Salk. 
 
 iCro. Eliz.227. Carth.371. 121. S. C. 
 
 1 Lev. 32. 2 Mod 137. k i Ld. Raym. 169. 
 J 2 Salk. 579. and see 6 Mod.
 
 830 OF ARREST OF JUDGMENT, &.C. 
 
 ill, at the replication K Fourthly, no costs are allowed 
 on either side ". Fifthly, that a repleader cannot be 
 awarded, after a default at nisi prius. To which may 
 be added, that a repleader can never be awarded af- 
 ter a demurrer, or writ of error, but only after issue 
 joined '■; nor where the court can give judgment on 
 the whole record " : And it is not grantable in favour 
 of the person who made the first fault in pleading •'. 
 The distinction between a repleader, and a judg- 
 ment 7ion obstante lieredicto^ seems to be this : that 
 where the plea is good in form, though not in tact, or 
 in other words, if it contain a defective title, or ground 
 of defence, by which it is apparent to the court, up- 
 on the defendant's own shewing, that in any way of 
 putting It, he can have no merits, and the issue join- 
 ed thereon be found for him, there, as the awarding 
 of a repleader could not mend the case, the court, for 
 the sake of the plaintiff, will at once give judgment 
 non obstante n^eredicto '^; but where the defect is not 
 so much in the title, as in the manner of stating it, 
 and the issue joined thereon is immaterial, so that 
 
 the 
 
 1 3 Keb. 664, p I Ld. Raym. 170. Doug. 
 
 '" 2 Vent. 196.6 T.R. 131. 396.747. 
 
 Barnes, 125. 2 Bos. Sc Pul. i 1 Salk. 173. 6 Mod. 1. 2 
 
 376. Ld. Raym. 924. S. C. 1 Str. 
 
 n 3 Salk. 306. 394. 2 Str. 873. Willes, 364. _, 
 
 » Wille5,532, 3. 1 Bur. 301. Cowp. 510. Doug. ^ 
 
 749. 
 
 I
 
 OF ARREST OF JUDGMENT, &C. 831 
 
 the court know not for whom to give judgment, 
 whether for the plaintiff or defendant, there, for their 
 own sake, they will award a repleader *" : A judg- 
 ment therefore non obstante ve?x'clicto is always upon 
 tlic merits ; a repleader, upon the form and manner 
 of pleading. 
 
 A •venire facias de noDo ^ is grantable, in the fol- 
 lowing cases: First, where the jury are improperly 
 chosen, or there is any irregularity in returning t em''. 
 Secondly, where thty have improperly conducted 
 themselves ". Thirdly, where they give general da- 
 mages, upon a declaration consisting of several 
 counts, and it afterwards appears that one or more of 
 them is defective ^. Fourthly, where the verdict, 
 whether general or special '^, is imperfect, by reason 
 of some uncertainty or ambiguity '', or by finding- 
 less than the whole matter put in issue, or by not as- 
 sessing damages •'. Fifthly, by the statute 1 h. ^ W. 
 
 III. c. 32. 
 
 • 3 Salk. 305. 1 Ld. Riiym. though some of them be not 
 391. S. C. 2 Str. 847. 994. 1 actionable : aems, where are 
 Bur. 301. two counts, and none of the 
 
 * For the difference between words in one are actionable, 
 a ffmrerfenofo and a new trial, and there is a general verdict 
 see 1 Wils. 55. for the plaintiff. WilJes, 443. 
 
 t 2 T. R. 126. in nods. ^ 2 Ld. Raym. 1521. 1584. 
 
 " Id. ibid. 2 Str. 887. S. C. 1 124. S. P. 
 
 V R. M. 1654. § 21. Doug. ^^ Same cases ; 5 Bur. 2669. 
 
 377, 8. and see 1 T. R. 542. 6 7 T. R. 52. 1 East, 111. 
 
 T. R. 691. But the court will y 2 Str. 1052. 2 Wils. 367. 
 
 not arrest the judgment in an 377. 2 T. R. 136. in nods. 
 action for words in one count.
 
 832 OF ARREST OF JUDGMENT, ScC. 
 
 c. 32. § 1. if the piaintifF, after issuing jury-process, 
 do not proceed to trial at the first assizes : but if the 
 jury be discharged at the assizes, in order to have a 
 view, there is no need of a 'venire de now ^. A 'uenire 
 de no'vo may be granted by a court of error ^ ; or af- 
 ter a demurrer to evidence '\ or bill of exceptions ^ 
 And where a venire de novo is awarded, the party 
 succeeding is only entitled to t^ie costs of the second 
 trial ^, 
 
 The doctrine of amendments having been already 
 considered, 1 shall next proceed to take a short re- 
 view of the statutes of Jeofails^ and the decisions 
 tliereon, as applicable to different proceedings in the 
 course of the suit. And first, of the original writ. 
 
 The want of an original writ, we have seen ^, 
 is aided after verdict, by the 18 Eliz. c. 14. which 
 stiitute has been extended, by an equitable con- 
 struction, to the want of a hill upon the file ^. This 
 statute also cures the want of form, touching 
 
 false 
 
 ■t- Com. Rep. 248. 367. 2 H. Blac. 211. 
 
 a2Str. 1051. 1124. Cowp. c 2 T. R. 125. 3 T. R. 36. 
 
 89. 91. Doug. 730. 1 T. R. d 6 T. R. 131. 1 East, 111. 
 
 783. 5 T. R. 367. 2 H. Blac. Jnte,755. 810, 11. 823,24. 
 
 2 1 1. but see 2 Str. 1055. 1 T. e Jnte, 102. 
 
 R. \52. f>c77ib. ccTifra. f Hob. 130. 134. 264. 281. 
 
 i-Sty.Rep. 34.335. 5 T.R. 304.
 
 OP ARREST OF JUDGMENT, &C. 833 
 
 felse Latin^ or variance from the register, or other 
 defaults in form, in any writ original or judicial, &c. 
 By the 21 Jac. I. c. 13. " judgment after verdict 
 " shall not be stayed or reversed, by reason of any 
 " variance in form only, between the original writ 
 *' or bill, and the declaration, plaint or demand." 
 And by the 16 & 17 Car. II. c. 8. (which Twisden 
 Justice used to call the Omnipotent act^,) " judg- 
 " ment after verdict shall not be stayed or reversed, 
 *' for want of form, or pledges returned upon the 
 " original writ, or because the sheriff's name is not 
 " returned thereon, or for want of pledges upon any 
 " bill or declaration, &c." Lastly, by the 5 Geo. I. c. 
 13. (lord King's act '',) " judgment after verdict shall 
 ** not be stayed or reversed, for any defect or fault, 
 " either in form or substance, in any bill, writ origi- 
 " nal or judicial, or for any variance in such writs, 
 " from the declaration or other proceedings." 
 
 Secondly, The want of a nvarrant of attorney for 
 either party is aided, after verdict, by the 32 Hen. 
 VIII. c. 30. and 18 Eliz. c. 14. And by the 21 
 Jac. I. c. 13. " judgment shall not be stayed or 
 •' reversed, for that the plaintiff in ejectment, or 
 " other personal action, being under age, appeared 
 " by attorney." But if the defendant being under 
 age, appears by attorney, it is still error ': Thougli 
 if an attorney undertake to appear for an infant de- 
 fendant, 
 
 g 1 Vent. loe. and see ?" i' 3 Atk. 601. 
 T. R. 587. i Ante^ 70. Barnes, 413. 
 
 Vol it. Z
 
 834 or ARKEST OF JUDGMENT, &C. 
 
 fendant, the court will oblige him to do it in a pro- 
 per manner ''. 
 
 Thirdly, Mistakes dnd omissions in the declara- 
 tion^ and other subsequent pleadings^ are oftentimes 
 cured by the statutes of Jeofails; which declare, 
 " that judgment, after verdict, shall not be stayed 
 " or reversed, by reason of any mispleading, lack of 
 " colour, insufficient pleading or y>o/j7i/, or other de- 
 " fault or negligence of the parties, their counsellors 
 " or attornies '; want of form in any count, declara- 
 " tion, plaint, bill, suit, or demand '"; lack of aver- 
 " ment of any life, so as the person be proved to be 
 *' alive "; want of d^ny prof en, or the omission of Dt 
 " et arm'is or contra pacem, mistaking the christian 
 " name or surname of either party, sums, day, 
 " month or year, in any bill, declaration or pleading, 
 ' ' being right in any writ, plaint, roll or record pre- 
 " ceding, or in the same roll or record wherein the 
 " same is committed, to which the plaintiff might 
 " have demurred, and shewn the same for cause; 
 " want of the averment of hoc paratus est Derificare, 
 " or hoc paratus est "verijicare per recordum, or for 
 " not alleging prout patet per recordum, or the want 
 " of a right venue, so as the cause were tried by a 
 " jury of the proper county, where the action is laid; 
 '■'• or any other matters of like nature, not being 
 
 " against 
 
 k I Str. 114.445. "> 18 Eliz. c 14. 
 
 1 32 Hen. VIII. c. 3Q. "^ 21 Jac. I.e. 13.
 
 OF ARREST OF JUDGMENT, &C. 835 
 
 " against the right of the matter of the suit, nor 
 " whereby the issue or trial are altered °.'' The last 
 of these statutes seems to extend not only to those 
 cases where there is a wrong venue in a right coun- 
 ty, but also to those where the cause has been im- 
 properly tried in a wrong county ''. 
 
 Fourthly, The misjoining of the issue is aided by 
 the 32 Hen. VIII. c. 30. which also extends to any 
 miscontinuance or discontinuance, or misconveying 
 of process: And a discontinuance is cured by the 
 appearance of the party, in penal as well as other ac- 
 tions ''. But the want of a similiter was formerly 
 holden not to be aided or amendable ' : And where, 
 in the similiter^ the defendant's name was put in- 
 stead of the plaintiff's, the chief-justice dismissed the 
 jury, conceiving that he had no commission to try 
 the issue '. But in a subsequent case, where a similar 
 mistake was made, the court, after trial of the issue, 
 refused to arrest the judgment'; and at length, the 
 want of a similiter was holden to be amendable, upon 
 three grounds; first, that it was merely an omission of 
 the clerk; secondly, that it was implied in the ^c. 
 added to the last pleading; and diirdly, that by amend- 
 ing' 
 
 " 16 Sc irCar. II.c. 8. q 6 T. R. 255. 
 
 V 7 T. R. 583. and see 1 M Str. 641. 8 Mod. ."76. 
 
 Ld. Raym. 330. Carth. 448. S. C 
 
 S. C. Willes, 431. 3 East, ^ 2 Str. 1117. 
 
 580. f 1 Bxir. 1793.
 
 836 OF ARREST OF JUDGMENT, &C. 
 
 ing, the court only made that right, which the de- 
 fendant himself understood to be so, by his going 
 down to trial ". 
 
 Fifthly, With respect to the ^z^ry-process, it is 
 provided by the statute 21 Jac. I. c. 13. " that af- 
 *' ter verdict, judgment shall not be stayed or re- 
 *' versed, by reason that the venire facias, habeas 
 *' corpora, or distringas is awarded to a wrong offi- 
 *' cer, upon any insufficient suggestion; or by reason 
 *' the 1)15716 is in some part mis-awarded, or sued out 
 " of more places, or of fewer places, than it ought 
 *' to be, so as some one place be right named; or by 
 *' reason that any of the jury which tried the said 
 " issue is mis- named, either in the surname or addi- 
 '* tion, in any of the said writs, or in any return upon 
 " any of the said writs, so as upon examination it be 
 " proved to be the same man that was meant to be 
 " returned; or by reason that there is no return upon 
 " any of the said writs, so as a panel of the names of 
 " the- jurors be returned and annexed to the said 
 " \vrit; or for that the sheriff's name, or other offi- 
 '* cer's name, having the return thereof, is not set to 
 *' the return of any such writ, so as upon examina- 
 " tion it be proved that the said writ was returned 
 " by the sheriff or under-sheriff, or any such other 
 •' officer." 
 
 If 
 
 V Cowp. 407. and see 1 Str. 551.
 
 Of arrest of judgment, &c. 
 
 837 
 
 If a <vmire be of the same action, and between the 
 same parties, all other faults are amendable ''. But 
 these are incurable ; and therefore in ejectment^ if the 
 venire be of a plea of trespass, omiitin^ and ejectfnent 
 of farm, it is ill, because not in the same action; but 
 if the distringas had been right, tlic court would 
 have adjudged the venire to be null, and the want of 
 it is aided ". So in scire facias against an executor, 
 to haveexecutionof a judgment for dcunages in trover, 
 it was moved in arrest of judgment, that the venire 
 was in a plea of debt, and a new venire was award- 
 ed ^. The statute 21 Jac. I. only extends to the sur- 
 names and additions of the jurors; and therefore if 
 there be a mistake in the christian name, it is in- 
 curable ^. It is necessaiy, by this statute, that there 
 should be a panel returned ; ■ therefore if the sheriff 
 return but 23 on the venire, and 24 on the distrin- 
 gas or habeas corpora, and the twenty-fourth omit- 
 ted on the venire appear and be sworn, the verdict 
 will be void '. But if 12 of the 23 be sworn, and not 
 
 the 
 
 w Gilb. C. P. 174. 
 
 X /(/. 175. Bui. M. PH. 
 320. but see Cro. Cur. 275. 
 278. where a similar mistake 
 in the jurata was amended, 
 the venire and distri7igus being 
 right. 
 
 y Cro. Jac. 528. Bui. M. 
 Pri. 320. 
 
 z 5 Co. 42. Cro. Car. 202. 
 Gilb. C. P. 177. But the court 
 
 of common pleas refused to 
 set aside a verdict, and grant 
 a new trial, because one of 
 the jurors was named Henry 
 in the venire, tiie habeas cor- 
 {lora, and the Jiostca-, his real 
 christian name being Han-y, 
 Willes, 488. Barnes, 454. S, 
 C. 
 
 a Cro. Car. 278. Gilb. C. 
 
 P. 17S. So a verdict has been 
 
 set
 
 138 or ARREST OF JUDGMENT, &C. 
 
 the 24th, it is aided by the 18 ERt.. So where there 
 were but 24 returned upon the panel annexed to the 
 ijemre facias, and there were 48 on the habeas cor- 
 pora^ upon which the defendant made no defence; 
 the court upon motion set aside the verdict without 
 costs, saying, that the 21 Jac. I. means only the 
 formal words upon the writ, for there must be a 
 panel annexed to the return ''. 
 
 The statutes of jeofails are extended by the statute 
 for the amendment of the law '^, to judgments en- 
 tered upon confession, nihil dicit, or non sum infor- 
 matus, in any court of record; and it is thereby 
 enacted, " that no such judgment shall be reversed, 
 *' nor any judgment upon any writ of inquiry of da- 
 '' mages executed thereon be stayed or reversed, for 
 " or by reason of any imperfection, omission, defect, 
 *' matter or thing whatsoever, which would have 
 " been aided and cured by any of the said statutes of 
 " jeofails, in case a verdict of twelve men had been 
 " given in the said action or suit, so as there be an 
 " original writ or bill, and warrants of attorney duly 
 " filed according to law." And by a subsequent acf*, 
 
 this 
 
 set aside, because one of the '' Browyi and Johnston, C. B. 
 
 jurymen was not returned on T. 1 1 Geo. II. Bui. A1. Pri. 
 
 the nisi firius panel, but an- 324. 
 
 swered to the name of a per- <=■ 4 Ann. c. 16. § 2. 
 
 son v/ho was. Willes, 484. ^ 9 Ann. c. 20. 
 
 Barnes, 453. S. C. Ante, 817.
 
 OF ARREST OF JUDGMENT, &C. 839 
 
 this and all the statutes of jeofails are extended to 
 writs of mandamus, and informations in nature of a 
 quo 'iijarranto. As there cannot however be the same 
 intendment, in support of a judgment by default, as 
 after a verdict, it has been holden, that the statutes 
 of jeofails do not protect judgments by default, 
 against objections that are cured by a verdict at 
 common law, but such only as are remedied after a 
 verdict by the statutes ^. 
 
 The statute 32 Hen. VIII. c. 30. is confined to 
 actions at common law; and in all the subsequent 
 statutes of jeofails, there is a proviso, that they shall 
 not extend to criminal proceedings, nor to any writ, 
 bill, action, or information upon any popular ox penal 
 statute, other than such as concern the customs and 
 subsidies of tonnage and poundage ^. It has however 
 been determined, that the statute 32 Hen. VIII. c. 
 30. extends to penal actions '^. And by the statute 4 
 Geo. II. c. 26. which reduces the forms of legal pro- 
 ceedings into the English language, " all and every 
 statute and statutes for the reformation and amending 
 of the delays arising from any jeofails, shall and may 
 extend to all and every form and forms, and to all 
 proceedings in courts of justice, (except in criminal 
 
 cases,) 
 
 « 2 Str. 933. 8 3 Lev. 375. 1 Str. 136. 2 
 
 f 16 & 17 Car. II. c. 8. and Sir. 1227. Doug. 115. 
 see 1 Wils. 127. Cowp. 392.
 
 840 OF ARREST OF JUDGMENT, &C. 
 
 cases,) when the forms and proceedings are in Eng- 
 lish; and all errors and mistakes are amendable and 
 remedied thereby, in like manner as if the proceed- 
 ings had been in Latin.'''' And though by the 16 
 and 17 Car. II. c. 8. the several omissions, variances 
 and defects therein mentioned, are required to be 
 amended by the judges of the court where the judg- 
 ment is given, or the record removed by writ of er- 
 ror, yet an actual amendment is never made on this 
 statute; but the benefit of the act is attained, by the 
 court's overlooking the exception ''. 
 
 The motion in arrest of judgment, or for judg- 
 ment non obstante •veredicto, ^c. may be made at any 
 time before judgment is given '; though a new trial 
 has been previously moved for^. But it is against 
 the ancient course of the court, to make a rule to 
 stay judgment, unless the postea be brought in; and 
 therefore it is said, that if one move in arrest of judg- 
 ment, he ought to give notice to the clerk in court 
 on the other side; but the better way is, to give a 
 rule upon the postea, for bringing it into court, and 
 that is notice of itself ''. 
 
 h 2 Str. 1011. Cas. te77i/i. i Doug. 745, 6. 
 Hardw. 314, 15. k Salk. 78. 6 Mod. 24. S. 
 
 i 2 Str. 845. 5 T. R. 445. C. and see 5 T. R. 454, 5. 
 
 CHAP-
 
 [ 84.1 ] 
 CHAPTER XXXIX. 
 
 Q/'JUDGMENTS. 
 
 /^N the expiration of the rule for judgment, if 
 ^""^ there be no previous motion for a new trial, or 
 in arrest of judgment, &:c. the prevailing party hav- 
 ing got the postea stamped with a double half-crown 
 stamp, and marked by the clerk of the posteas % may 
 proceed to sign final judgment. 
 
 Judgment is the conclusion of law, upon facts 
 found or admitted by the parties, or upon their; 
 default in the course of the suit. And it is either 
 for the plaintiff, or for the defendant : for the for- 
 mer, by 7iihil die it '', non sum informatus ", or con- 
 fession '*; for the latter, on a non-pros ^, discon- 
 tinuance % 7wlle prosequi '^j cassetur billa "vel breije '', 
 retraxit^ nonsuit ', or as in case of a nonsuit '; and 
 for either party, upon demurrer'', nul tiel record\ 
 
 or 
 
 a There is an old rule of « Append. Chap. XXXIX. 
 court, requiring the fiostca to § 15, 16. 
 
 be marked in two days after <^ Id. § 17, Scc- 
 
 it comes to the attorney's « /c/. § 5 1, Sec. 
 
 hands: R. T. 2 Jac. I. reg. 2. f Id. § 65, 6. 
 
 but now, it is deemed suffi- b Id. § 67, 8. 
 
 cient to mark the fiostea, at ^ Id. § 69. 
 
 any time before the costs are » Id. § 63, 4. 
 
 taxed. 1 Cromp. 277. k Jd. § 32, Sec. 70. 
 
 »> Append. Chap. XXXIX. i Id. § 36, 7.7\. 
 5 1, S^c. 
 
 Vol. IT. 2 A
 
 842 OF JUDGMENTS. 
 
 or verdict ". The present chapter will be principally 
 confined to the latter judgment, on an issue in fact 
 found by verdict; the other species of judgments 
 lia^'ing been already treated of. 
 
 In assumpsit^ covenant ^ case^ replevin^ and trespass^ 
 the judgment for the plaintiff is, that he recover his 
 damages " and costs against the defendant; to be 
 levied, in an action against an executor or admi- 
 nistrator, of the goods of the testator or intestate, in 
 the hands of the defendant, if he hath so much there- 
 of in his hands to be administered; and if not, then 
 the costs to be levied de bonis propriis °. In debty the 
 judgment for the plaintiff' is, that he recover his debt, 
 together with his damages and costs ; to be levied, 
 in an action against an executor or administrator, of 
 the goods of the testator or intestate, if, &c. and if 
 not, then the damages and costs to be levied de bonis 
 propriis ''. In annuity^ the judgment is, for the plain- 
 tiifto recover the annuity, and arrearages of the same, 
 as well before the bringing of the action as after^ 
 wards, tip to the time when judgment is given ''. 
 
 In 
 
 "" Append. Chap. XXXIX. assessed by the jury who try 
 
 § 38, etc. 72, Sec. the issue, on a verdict. 
 
 f The damages in assmn/i- " 4 T. R. 648. 7 T. R. 359. 
 
 sit, Sec. are either confessed Append. Chap. XXXIX. § 8. 
 
 by the defendant, ascertained 18. 42. 
 
 by the court, on a bill of ex- p Append. Chap. XXXIX. 
 
 change, Sec. found by the in- § 25. 45. 
 quisition of a sheriff's jury, i Co. Ent. 50. Cro. Car. 
 
 on a judgment by default, or 436.
 
 OF JUDGMENTS. 843 
 
 Li detinue^ it is for the plaintiff to recover the 
 goods, or their value, with damages and costs ^ In 
 replevin, the judgment for the defendant, at common 
 law, is to have a return of the goods ' ; or upon the 
 statute 17 Car. If. c. 7. to recover the arrearages oi 
 rent, or value of the goods, and costs ' ; and in other 
 actions, the judgment for the defendant upon a non- 
 pros, nonsuit or verdict, is to recover his costs only ". 
 
 The taxing costs upon a postea is considered as 
 signing final judgment: after which, execution may 
 be immediately taken out, against tlie defendant's 
 person or goods; but in order to charge him in exe- 
 cution, or bind his lands, or to proceed against him 
 by action of debt or scire facias on the judgment, or 
 against his bail on their recognisance, or if a writ of 
 error be brought, it is necessary that the judgment 
 should be entered of record, and docketed, and the 
 judgment-roll carried to, and filed in the treasury of 
 the court. 
 
 The judgment after verdict, &:c. is entered on the 
 issue-roir, which from thenceforth is called the judg- 
 ment-roll; and if the roll has already been carried in, 
 which seldom happens but where the plaintiff has been 
 ruled to enter the issue, xht postea is taken, with the 
 master's allocatur, to the treasury at Westminster, and 
 the clerk of the treasury continues the proceedings, 
 
 and 
 
 ■• ApiTcnd. Chap. XXXIX. ^ Id.% 59, 60. 74. 
 
 §47, ' . /^. §5 1, Sec. 
 
 s Jd. 57, Sec. .'Intr, 681.
 
 844 
 
 OF JUDGMENTS. 
 
 and enters the judgment. But if, as is more frequent- 
 ly the case, an incipitur only is made on the issue- 
 roll, at the time of passing the record of nisi prius, 
 the whole proceedings are to be entered, beginning 
 with the wan-ants of attorney "'. The proceedings are 
 continued on the issue-roll, after the award of the 
 venire Jacias, by the following entry : Afterwards the 
 process thereof is continued between the parties afore- 
 said^ of the plea aforesaid^ hy the jury being respited 
 between them^ before the lord the king at Westmin- 
 ster, or (by original) "wheresoe^uer, &c. until \jhe re- 
 turn of the distringas"] ufilesSy &c. [^as in the juratd\ 
 according to the form of the statute in such case made 
 and promded^ for default of the jurors^ because none of 
 them did appear: At which day^ before the said lord 
 the king at Westminster, comes the said (plaintiff) 
 hy his said attorney^ and the said chief justice \_or 
 justices of assize^ before whom the said issue was 
 tried, sent hither his \_or their'] record, had in these 
 ■words, to wit, [then follows a copy oHh^postea, from 
 the nisi prius record, and afterwards the final judg- 
 ment ''.] 
 
 These entries were formerly made by the clerks 
 of the chief-clerk ^, who were called enteruig clerks; 
 
 but 
 
 ^■^ Jnte, 6?>\,2, which the clerks mtist an- 
 
 ^ Append. Chap. XXXIX. ciently have accounted with 
 
 § 38. the secondary see R. E. 15 
 
 y R. M. 1654. § 14. R. Car. II. Reg. ^. R. H. 15 
 
 T. 1 Jac. II. R. M. 5 Ann. & 16 Car. II. Reg. 1. R. T. 
 
 And for the times within 20 Car- II.
 
 OF JUDGMENTS. 
 
 845 
 
 but they are now made by the attoniies^ and ought 
 to be written in a full fair hand, with a large margin, 
 of an inch at least, and a convenient distance at the 
 top, for binding up the same, and at the bottom, that 
 the writing be not rubbed out \ In this manner, the 
 proceedings may be entered on both sides of the roll, 
 beginning on the back, over against the first line of 
 the first warrant of attorney, and taking care to leave 
 a sufficient space at the end, for the co7nmittitur , and 
 entry oi" satisfaction, 8^,c. 
 
 The rule with regard to bringing in rolls, is that 
 every attorney ought to bring them into the office, 
 fairly engrossed, by the following times, (that is to 
 sa} ) the rolls of Trinity, Michaelmas, and Hilary 
 terms, before the essoign-day of every subsequent 
 term, and the rolls of Easter term, before the first 
 day of Trinity term '\ And formerly, no roll could 
 have been brought in and filed, with a post tcrmi- 
 num, without leave of the court ''. But in order to 
 accommodate the attornies, the custos brevium now 
 usually attends, the day but one before every term, 
 to receive and file their rolls ^ And a roll may 
 be had of a preceding term, as a matter of course, 
 
 by 
 
 '■ R. H. 1657. Jnte, 681. 87. 2 Ld. Raym. 850. 6^ Mod. 
 
 >R. E. 5 W. Ec M. M. 191. 
 
 9 W. III. T. 10 W. III. M. c R. E. 9 W. III. (a). 1 Sel. 
 
 5 Ann. 535 
 
 bR. E. 9 W. III. 1 Salk
 
 846 OF JUDGMENTS. 
 
 by applying to the clerk of the treasury, and paying 
 'cl post terminum; which roll may be docketed and fil- 
 ed, on paying some small additional fees to the offi- 
 cers of the court ^. 
 
 At common law, the death of a sole plaintiff or de- 
 fendant, before final judgment, would have abated the 
 suit : but if either party after verdict had died in va- 
 cation, judgment might have been catered tliat va- 
 cation, as of the preceding term, and it would have 
 been a good judgment at common law, as of the pre- 
 ceding term ; though it be not so, upon the statute 
 of frauds, in respect of purchasers, but from the 
 signing ^. And if either party die, after a special ver- 
 dict, and pending the time taken for argument or ad- 
 vising thereon, or on a motion in arrest of judgment, 
 or for a ncAv trial, judgment may be entered, at 
 common law, after his death, as of the term in which 
 the postea was returnable, or judgment would other- 
 wise have been given, ?iimc pro tunc ^; that the delay 
 arising from the act of the court, may not turn to the 
 prejudice of the party. 
 
 So 
 
 <! 1 East, 409. T. R. 368. 7 T. R. 20. 
 
 e 1 Salk. 87. 3 Salk. 116. f 1 Leon. 187. Latch, 92. 1 
 
 I Ld. Raym. 695. 2 Ld. Sid. 462. 1 Vent. 5%. 90. S. 
 
 Rayn\. 766. 849.869. 7 Mod. C. 10 Mod. 30. 325. 1 Str. 
 
 2. 93. S. C. 3 Salk. 159. 2 427. 1 Bur. 147. 226.4 Bur. 
 
 Salk. 401. 7 Mod. 39. S. C.6 2277. 1 East, 409. Barncs,255. 
 
 Mod. 191. 3 P. Wi-ns. 399. 261. 
 Willes, 427. Barnes, 266. 6
 
 or JUDGMENTS. 847 
 
 So in actions against executors or administrators, 
 if the application be made in a reasonable time, the 
 court will give the plaintiff leave to enter up judg- 
 ment, as of a preceding term, when it was signed, 
 nunc pro tunc ^. I'his however is discretionary in the 
 court; and being a matter of indulgence, they have 
 sometimes refused to allow it, after a considerable 
 lapse of time, where the delay has been owing to the 
 plaintiff or his attorney ''. And in granting this in- 
 dulgence, the court will take care that it shall not 
 operate to the prejudice of the defendant, by making 
 the plaintiff undertake not to disturb intermediate 
 payments made by the defendant ', or impeach judg- 
 ments obtained in the interval "". In an action of debt 
 on judgment, the court will not give lea\ e to enter up 
 the judgment nunc pro tuncy where the proceedings 
 were stayed pending a writ of error, and the plaintiff" 
 died before the affirmance of the judgment '. And in 
 general it should seem, that if there be a rule for 
 judgment, and it be not entered for many years, the 
 court will not suffer it to be entered, without exa- 
 mining how it came not to be entered before "'. 
 
 Where either party dies bctivecn Dcrdict a?id 
 judgment J it is enacted by the statute 17 Car. II. 
 
 c. 8. 
 
 K 6 T. R. 6. Baker v. Ba- i 6 T. R. 11. 
 
 Afr, execuU'ix, H. 35 G. lil. ^ Lloyd \. i/o7w//, admiuis- 
 
 Lloyd V. Hoivell^ administra- tratrix, 11. 37 Geo. III. 
 
 trix, H. Z7 G. III. 1 1 T. R. 637. 
 
 h 1 Str. 639. Barnes, 262. •" 6 Mod. 59. 
 see also 6 Mod. 191.
 
 848 OF JUDGMENTS. 
 
 c. 8. " that his death shall not be alleged for error, 
 *' so as the judgment be entered within two terms af- 
 " ter the verdict." In the construction of this statute 
 it has been holden, that the death of either party be- 
 fore the assizes is not remedied ; but if the party die 
 after the assizes begin, though before the trial, that 
 is within the remedy of the statute ; for the assizes are 
 considered but as one day in law, and this is a reme- 
 dial act, which shall be construed favourably ". The 
 judgment upon this statute is entered by or against 
 the party, as though he were alive °; and it should be 
 entered, or at least signed '', within t\vo temis after 
 the verdict. 
 
 By a subsequent statute ""j it is enacted " that in 
 " all actions to be commenced in any court of re- 
 " cord, if the plaintiff or defendant happen to 
 "die after interlocutory and before final judgment^ 
 " the action shall not abate by reason thereof, if 
 " such action might have been originally prose- 
 " cuted or maintained, by or against the executors 
 " or administrators of the party dying; but the 
 " plaintiff, or if he be dead after such interloCu- 
 " tory judgment, his executors or administrators, 
 " shall and may have a scire facias against the de- 
 
 " fendant, 
 
 " 1 Salk. 8. and see 2 Ld. p 1 Sid. 385. Barnes, 261. 
 
 Raym. 1415. in notis. 7 T. R. q Stat. 8 & 9 W. III. c. H . 
 
 31. ^6. 
 
 ° 1 Salk. 42.
 
 OF JUDGMENTS. 849 
 
 ** fendant, if living after such interlocutory judg- 
 *' ment, or if he died after, then against his execu- 
 " tors or administrators, to shew cause why damages 
 *' in such action should not be assessed and recover- 
 '* ed by him or them." And by the same statute '', 
 *' if there be iwo or more plaintiffs or defendants y 
 " and one or more of them die, if the cause of 
 " action survive to the surviving plaintiff or plain- 
 *' tiffs, or against the surviving defendant or defen- 
 *' dants, the writ or action shall not be thereby 
 ** abated; but such death being suggested upon the 
 " record, the action shall proceed, at the suit of the 
 ** surviving plaintiff or plaintiffs, against the surviv- 
 ** ing defendant or defendants." And if the plaintiff 
 become bankrupt, after interlocutory judgment, his 
 assignees may proceed to final judgment ' and exe- 
 cution', in the bankrupt's name, without a scire facias. 
 So where the plaintiff after verdict, was discharged 
 under an insolvent act, the court held that the assig- 
 nee might make use of liis name, in entering up 
 judgment, and talking out execution \ 
 
 The judgment, by general intendment of law, 
 has relation to the first day of the term whereof it is 
 
 entered, 
 
 1 § 7. 372. 378, and Winter and 
 
 «■ 2 Wil3. 358. 374. 378. others v. Kretchnian, 2 T. R. 
 
 » 3 T. R. 437. but note, 45. and see 1 Mod. 93. 1 
 
 there was a scire facias after Vent. 173. S. C. 5 Mod. 58. I 
 
 judgment, to warrant execu- T. R. 463. \ 
 
 tion, in the cases of Gibbins « Abbias v. Barnard, M. 35 
 
 and others v. Mantle, 2 Wils. G. III. 
 
 - Vol. II. 2 B
 
 856 or JUDGMENTS. 
 
 entered'', unless any thing appear on the record, 
 shewing that it cannot have that relation ' ; and as 
 against the defendant and his heirs, it binds a moi- 
 ety of all the freehold lands and tenements '% which 
 he or any person or persons in trust for him *, was 
 or were seised of, at or after the time to which the 
 judgment relates. And a court of equity will not 
 oblige a judgment- creditor to wait, till he is paid 
 out of the rents ; but will accelerate the payment, 
 by directing a sale of the moiety ^ . Where there 
 is a term attendant on the inheritance, a judgment 
 is an equitable lien on the inheritance, and conse- 
 quently affects the term '^\ but generally speaking, 
 a judgment does not bind leasehold property, which 
 is affected only by the writ of execution ^, and, as 
 against purchasers, by the delivery of it to the 
 sheriff ^ 
 
 As Xo freehold lands, they are bound at common 
 law, from the time of the judgment, so that exe- 
 cution may be had of these, though the party ali- 
 ene bond fide before execution sued out. There- 
 fore 
 
 n 3 Salk. 212. 1 Wils. 39. the lien created by it. 1 Salk. 
 
 7 T. R. 2 . In actions by ori- 80. 
 
 ginal^ the judgment seems to ^ Stat. 29 Car. II. c. 3. § 10. 
 
 relate to the essom-day; in ac- 2 Vern. 248. 
 
 tions by bill^ to the first day in y 2 Atk. 610. Amb. 17. S. 
 
 full term. See 1 Sel. 8. and C. 
 
 the cases there cited. ^ 2 Vera. 525. 
 
 V 3 Bur. 1696. a Godb. 161. 8 Co. 171. 
 
 w Stat. Westm. 2. (13 Ed. 2 Nels. Abr. 783. 
 
 I.) c. 18. And bringing debt b Stat. 29 Car. II. c. 3. i 
 
 on a judgment is no waiver of 16.
 
 OF JUDGMENTS. 851 
 
 fore if a man has judgment for a debt, and the 
 debtor, before execution sued, aUenes by fine, and 
 five years pass, yet the plaintiff may still sue out 
 execution ^ But if one article to buy an estate, and 
 pay the purchase-money, and afterwards a judgment 
 is recovered against the vendor by a third person, 
 who had no notice, yet this judgment shall not in 
 equity affect the estate; because from the time of 
 the articles, and payment of the money, the vendor 
 was only a trustee for the purchaser '^. In such case 
 however, it must be understood, that the considera- 
 tion paid is somewhat adequate to the thing purcha- 
 sed ; for if the money be but a small sum, in respect 
 of the value of the land, this shall not prevail over a 
 mesne judgment-creditor ^ And a mortgagee for a 
 valuable consideration, and without notice ^ of such 
 a covenant, shall hold place against the covenantee; 
 for in this case, the money is lent upon the title ajid 
 credit of the estate, and attaches upon the land; but 
 it is not so in the case of a judgment- creditor, who 
 (for aught appears) might have taken out execu- 
 tion against the person or goods of the party, 
 that gave the judgment; and a judgment is 
 
 only 
 
 «: 1 Chan. Cas. 268. 1 Mod. was held, by Lord Chancellor 
 217. Taidot, not to amount to con- 
 
 d 1 P. Wms. 278. 10 Mod. structive notice; for judj;:- 
 468. 2 Eq. Cas. Abr. 683. ments, he said, are infinite. 2 
 
 e 1 P. Wms. 282. Eq. Cas. Abr. 682. but see 
 
 f Docketing a judgment Amb. 680.
 
 852 
 
 OF JUDGMENTS. 
 
 only a general security, not a specific lien upon the 
 land ^. 
 
 If A. and B. recover several judgments against 
 C, and A. sue out an elegit ^ and have a moiety of 
 C's lands delivered to him, and then B. sue out an 
 elegit, the sheriff it seems can only extend a moiety 
 of the remaining lands". But if /?. have two judg- 
 ments against (?., and in the same term take out two 
 elegitSy on the one he may have a moiety of the 
 whole, and on the other the other moieiy, and is not 
 restrained on the latter, to a moiety of the moiety; 
 for in judgment of law, the v/hole term is but as 
 one day '. On lending money therefore, il" the lender 
 take two several bonds and warrants of attorney, one 
 for a part, the other for the residue of the money, 
 and enter up two several judgments theieon, of the 
 same ternni, he may take the \\'hoie of the defen- 
 dant's lands under them ^ 
 
 A. a trader, seised of lands in fee, gives a 
 Judgment to B., and then, in consideration of 
 5000/. paid down, and 650/. to be paid at Christ- 
 7nas, articles to sell the lands to C. and let him 
 into possession at Michaelmas, and afterwards 
 becomes bankrupt, the judgment not being served 
 and executed, and the 650/. remaining unpaid, 
 
 B. shall 
 
 t 1 P. Wms. 279. 
 
 ^ Cro. Eliz. 483. 2 Bac. 
 Abr. 350. Gilb. Exec. 55, 6. 
 But qu. whether it must not 
 be understood in this case, 
 
 that the elegits were sued out 
 in different terms ? 
 
 i Ilardr. 23. 
 
 k Gilb. Exec. 56.
 
 OF JUDGMENTS. 85-3 
 
 B. shall only come in pro rata with the rest of the 
 creditors; the words of the statute 21 Jac. I. c. 
 19. ) 9. being full and plain, that all the creditors 
 of a bankrupt, unless there ia a mortgage, shall 
 be equally paid \ But if A. a trader, confesses 
 judgment to B. and then sells and conveys the 
 land, for a valuable consideration, to C. and af- 
 terwards becomes bankrupt, it seems that the 
 judgment- creditor shall extend the land, in the 
 hands oft*., who bought prior to the bankruptcy, 
 this not prejudicing the other creditors. 
 
 On a judgment against A. upon his own bond, 
 a moiety only of his freehold property can be taken 
 in the Jiands of his heir'". But if a judgment be 
 obtained against an heir, on the obligation of his 
 ancestor, the plaintiiT was at common law entitled 
 to execution out of the whole of the property, which 
 he had by descent, at the time of issuing the origi- 
 nal writ ", or filing the bill ". And by the statute 
 3 JV. &. M. c. 14. \ 5. " in all cases where any 
 *' heir at law shall be liable to pay the debt of his 
 " ancestor, in regard of any lands, tenements or 
 " hereditaments descending to him, and shall sell, 
 '* aliene, or make over the same, before any 
 " action brought, or process sued out against him, 
 *' such heir at law shall be answerable for such debt 
 
 " or 
 
 I 1 P. Wms. 737. 739. a. b. 3 Co. 12. a. 2 Atk. 609, 
 
 m Dyer, 271. a. Carth.107. 10. Amb. 16, 17. S. C. 
 
 3 Bac. Abr. 25. o Carth. 245. and see 2 
 
 " Plowd. 441. Co. Lit. 102. Wms. Saund. 7. (4).
 
 854 
 
 OF JUDGMENTS. 
 
 " or debts, in an action or actions of dcbt^ to the 
 " value of the said land, so by him sold, aliened, 
 " or made over; in which cases all creditors shall 
 " be preferred, as in actions against executors and 
 " administrators; and such execution shall be taken 
 *' out, upon any judgment or judgments so obtained 
 " against such heir, to the value of the said land, as 
 " if the same were his own proper debt or debts; 
 '* saving that the lands, tenements, and heredita- 
 " ments bona fide aliened before the action brought, 
 " shall not be liable to such execution." A bond, 
 therefore, is in some cases, a preferable security to 
 a judgment. 
 
 The judgment against an he'ir^ on the bond of 
 his ancestor, is general or special^. In debt against 
 an heir, who pleaded riens per discern, or any other 
 plea which was false within his own knowledge, 
 and found against him, the judgment at common 
 law was general, to recover the debt, and not 
 special, to be levied of the lands descended "J. So 
 if judgment be given against an heir by ni/ii/ dicit "j 
 or ?ion sum informattis^, or by confession, without 
 
 shewing 
 
 P2 Rol. Abr. 70, 71. and 
 see Vin. Abr. tit. Heir, C. and 
 Bac. Abr. tit. Heir and Ances- 
 tor, H. 
 
 1 Dyer, 149. a. Bro. Abr. 
 iii. Assets fier discent, 3.; but 
 see the statute 3 W. and M. c. 
 
 14. § 6. hy which the judg- 
 ment on a plea of riens per dis- 
 cent, seems to be altered. 
 
 •• Dyer, 344. a. b. Plovrd. 
 440. Cro. EHz. 692. 
 
 s Dyer, 344. a. b. Plowd. 
 440.
 
 OF JUDGMENTS. 855 
 
 shewing in certain what assets he has by descent % 
 the judgment is general: And if the profits of the 
 lands descended, from the death of the ancestor 
 to the time of bringing the action, are sufficient 
 to satisfy the demand, and the plaintiff will shew it 
 to die court, in an action of debt against an heir, 
 and the defendant cannot deny it, the plaintiff 
 shall have a general judgment, and execution 
 presently". But in an action of debt against an 
 heir, if he acknowledge the action, and shew the 
 certainty of the assets which he has by descent, 
 the judgment shall be special, to recover the debt, 
 to be levied of the lands descended ''. And if the 
 defendant plead non est factum^ or any other plea 
 which is not false within his own knowledge, there 
 shall be like a judgment '\ 
 
 By the statute 3 /F". & M. c. 14. S 6. " where 
 '* any action of debt upon specialty is brought 
 '^' against an heir, he may plead riens per discent, 
 " at the time of the original writ brought, or the 
 " bill filed against him; and the plaintiff in such 
 ** action may reply, that he had lands, tenements 
 " or hereditaments from his ancestor, before the 
 *' original writ brought, or bill filed; and if upon 
 ** issue joined thereupon, it be found for the 
 " plaintiff, the jury shall inquire of the value of 
 
 " the 
 
 « Dyer, 344. a. b. Plowd. -^ 2 Rol. Abr. 70. Dyer, 
 440. but see Dyer, 149, a. 149. a. 373. b. 
 
 » Dyw, 344. b. vv Cro. Car. 436, 7.
 
 856 OJ JUDGMENTS. 
 
 "' the lands, tenements or hereditaments so dc- 
 '* scended, and thereupon judgment shall be given, 
 '' and execution awarded, as therein directed; 
 " but if judgment be given against such heir, by 
 " confession of the action, without confessing the 
 '' assets descended, or upon demurrer, or nihil 
 " dicit^ it shall be for the debt and damages, 
 '* without any writ to inquire of the lands, tene- 
 " ments or hereditaments so descended." The judg- 
 ment against a devisee upon this statute, is the same 
 as against an heir ". 
 
 The relation of judgments to the first day of the 
 term, is taken away, as against purchaser's^ by the 
 statute of frauds and perjuries ^; by which it is 
 enacted, that " the judge or officer who shall sign 
 " any judgments, shall, at the signing of the 
 *' same, set down the day of the month and year 
 " of his so doing, upon the paper-book, docket, 
 *' or record which he shall sign; which day of the 
 " month and year shiill be also entered, upon the 
 " margent of the roll of the record, where the said 
 *' judgment shall be entered. And such judg- 
 *' ments, as against purchasers bond Jide, for valu- 
 *' able considerations, of lands, tenements or he- 
 *' reditaments to be charged thereby, shall in 
 *' consideration of law, be judgments only from 
 
 " such 
 
 « See the statute, § 3. 7. counties Palatine, by the 8 G. 
 
 y 29 Car. II. c. 3. § 14, 15. I. e. 35. § 6. 
 extended to Hales, and the
 
 OF JUDGMENTS. 857 
 
 " such time as they shall be so signed, and shall not 
 " relate to the first day of the term whereof they are 
 " entered, or the day of the return of the original, or 
 "filing the bail." 
 
 This statute is confined to purchasers; and does 
 not apply, as between the parties to the suit. There- 
 fore if the defendant die in vacation, judgment may 
 still be entered after his death, as of the preceding 
 term, when he was living; and it will be a good 
 judgment at common law, as of that term"^; but 
 then, the roll ought to be brought in and filed be- 
 fore the essoign-day of the subsequent term ^. And 
 it is said, that if judgment be signed in term-time, 
 and in the subsequent vacation the defendant sell 
 lands, and before the essoign-day of the next term 
 the plaintiff enter his judgment, it shall affect the 
 lands in the hands of the purchaser ^. 
 
 The operation of judgments, upon purchasers 
 and mortgagees, is still further limited and restrain- 
 ed by the 4 & 5 IF. & Tlf. c. 20. ^ 3. by which it 
 is enacted, " that no judgment not doggcted and 
 " entered, according to that act, shall affect any 
 " lands or tenements, as to purchasers or mort- 
 " gagees, or have any preference against heirs, 
 
 " executors 
 
 ^ 1 Salk. 87. 3 Salk. 116. 6 T. R. 368. 7 T. R. 20. 
 
 1 Ld. Raym. 695. 2 Ld. ^ 1 Salk. 87. 2 Ld. Raym. 
 
 Raym. 766. 849. 869. 7 Mod. 850. 6 Mod. 191. 
 
 2. 93. S. C. 2 Salk. 401. 7 ^ « Mod. 191. Tamen Qu. 
 
 Mod. 39. S. C. 3 Salk. 159. if the judgment be not docket- 
 
 3 P. Wms. 399. Willcs, 428. ed at the time of the sals? 
 
 Vol. II. 2C
 
 858 OF JUDGMENTS. 
 
 " executors or administrators, in the administration 
 *' of their ancestors, testators, or intestates' effects." 
 By this statute, a debt on judgment against a tes- 
 tator or intestate, not docketed according to the di- 
 rection of the statute, is put on a level with simple- 
 contract debts: And therefore, on a plea of plene 
 administrai}it, to debt on judgment against the intes- 
 tate, not docketed, the defendant may give in evi- 
 dence payment of bond and other specialty debts, 
 which exhausted all the assets '^. And where leave is 
 given to enter up judgment as of a preceding term, 
 7iimc pro tiinc^ the court, in order that it may not 
 affect purchasers and mortgagees, will order it to be 
 docketed of the term in which the application is 
 made ^. 
 
 The dogget^ or as it is commonly called, the dock- 
 et or docqiiet^ is an index to the judgment, invented 
 by the courts for their own ease, and the security of 
 purchasers, to avoid the trouble and inconvenience 
 of tuiTiing over the rolls at large ^. The practice of 
 docketing judgments seems to have first obtained in 
 the court of Common Pleas, where the dockets were 
 formerly entered on a separate roll, called the dock- 
 et-roll or common docket; which was of so higli 
 an authority, as even to warrant an amendment of 
 the judgment itself^. But in this court, the docket 
 
 was 
 
 c 6 T. R. 384. 1 Esp. Cas. trix, H. 35 G. III. 
 
 Xi. Pri. 313. S. C. 1 Bos. 8c e Gilb. C. P. 164, 5. 
 
 Pul. 30r. f T. Raym. 39. Sid. 70. 
 
 d Baker v. Baker, Execu- Cro. Car. 574.
 
 OF JUDGMENTS. 859 
 
 was originally nothing more than a note in parch- 
 ment or paper, containing the christian and sur- 
 names of the plaintiff and defendant, the debt and 
 damages recovered, with the term and number of 
 the judgment- roll ^. By a subsequent regulation, the 
 defendants' names were required to be entered in a 
 remembrance or docket alphabetically, for better 
 finding out the judgments ^. And at length, by the 
 statute 4 & 5 /T. & M. c. 20. \ 2. it was enacted, 
 ' that the clerk of the essoins of the court of Com- 
 ' mon Pleas, and the clerk of the doggets of the 
 
 * court of King's Bench, &;c. shall make an alpha- 
 ' betical dogget, by the defendants' names, o,f all 
 
 * the judgments entered in their respective courts, 
 ' of Michaelmas and Hilary terms, before the last 
 ' day of the ensuing terms; and of the judgments 
 ' of Easter and Trinity terms, before the last day of 
 ' Michaelmas term ; under the penalty of 100/. : 
 
 ' Which dogget shall contain the names of the 
 ' plaintifl' and defendant, with the addition of the 
 ' latter, (if in the record of the judgment,) the debt, 
 ' damages and costs recovered, the venue and num- 
 ' ber of the judgment- roll; and shall be fairly put 
 
 * into and kept in books in parchment, to be search- 
 ' ed and viewed by all persons, at reasonable times, 
 ' paying for every term's search 4</. and no more.'' 
 
 This 
 
 kR. E. 17 Jar. 1 h R,E. )657.
 
 860 or JUDGMENTS. 
 
 This statute did not supersede the former prac- 
 tice, of docketing the judgment in parchment or 
 paper, which is still necessary to be done by the at- 
 tornies, on entering and bringing in their rolls; but 
 was intended to operate, in addition to that practice, 
 by requiring the dockets to be entered in alphabeti- 
 cal order, b}'^ the officers of the court. Before the 
 making of this statute, the judgment bound the 
 lands, and the docket was nothing more than an in- 
 dex, to find it readily '. But now it is deemed neces- 
 sary, that the judgment should be docketed, in order 
 to bind the lands, as to purchasers and mortgagees : 
 And if it be not docketed '', or if there be a false 
 docket, which is as none \ though a right judgment, 
 the purchasers or mortgagees will be safe ; and in 
 the latter case, the party grieved must take his re- 
 medy against the attorney or officer, for not docket- 
 ing it truly. 
 
 The judgment should be docketed at the time of 
 bringing in the roll, or entering it thereon, if already 
 brought in. But though the judgment be not dock- 
 eted, yet under particular circumstances, a pur- 
 chaser with notice may be affected by it, in a court 
 of equity. Thus, where a bill in equity w^as filed, 
 to have satisfaction of a judgment, against a pur- 
 chaser of the equity of redemption of land, or to 
 
 redeem 
 
 i Gilb. C.P. 165. 11 Bac. Abr. 103. Gilb. C. 
 
 1 1 Str. 639. and see Barnes, P. 165. 1 Wils. 61. 2 Str. 
 
 261,2. 1209. S.C.
 
 OF JUDGMENTS. 861 
 
 redeem incumbrances, &cc. and it appeared, that the 
 purchase was made in 1718, and the judgment not 
 docketed till 1721; the defendant insisted on the 
 statute 4 & 5 /F. Sc M. c. 20. : On tlie other hand 
 it was contended, that the defendant (the purchaser) 
 had notice of this judgment, and an allowance for it 
 in the purchase, and that raised an equity for the 
 plaintiff against him. By Lord Chancellor Maccks- 
 Jield^ " it is plain the defendant had notice of the 
 judgment, and did not pay the value of the estate, 
 and that is a strong presumption of an agreement to 
 pay off the judgment; and since the plaintiff cannot 
 proceed at law against the defendant upon the judg- 
 ment, for want of docketing it in due time, he 
 ought to be relieved in a court of equity :" Decreed, 
 that the defendant pay to the plaintiff, the money 
 bond fide due upon the judgment •". 
 
 If an attorney neglect to enter and docket the 
 judgment in due time, by which a loss arises to his 
 client, it seems that he is liable to an action " : And 
 Lord Mansfield intimated, that it very much con- 
 cerned the chief-clerk, to take care that judgments 
 be actually entered up on the roll in due time, and 
 
 docketed ; 
 
 "> 7 Vin. Abr. p. 53. 2 Eq. being docketed, notice to the 
 
 Cas. Abr. 684. but see 7 Vin. purchaser or no notice is im- 
 
 Abr. p. 54. where it is said, material. And see Cowp. 2S0. 
 
 that the statute being express 712. 
 
 and positive, that a judgment " 1 Sir. 6."''J. 
 shall not bind lands, without
 
 B62 OF JUDGMENTS. 
 
 docketed ; for that after he has received his fees for 
 making such entr}^, he would be liable to an action 
 upon the case, to be brought by a purchaser, who 
 should have become charged with it, and had search- 
 ed the roll, without finding it entered up : And he 
 said, that the attorney who had undertaken to do 
 this, and neglected it, would be liable mdeed to the 
 chief-clerk; but still the chief-clerk \vould be liable 
 to the purchaser, who had suffered by this neglect °. 
 
 There is still another circumstance, necessary to 
 give effect to the judgment, as against purchasers 
 and mortgagees of lands in Middlesex and Tor ks hire; 
 namely, that it should be registered: for, by the 5 
 A7m. c. 18. ^ 4. and several subsequent statutes'', 
 " no judgment shall affect or bind any manors, 
 " lands, tenements or hereditaments, in those coun- 
 " ties, but only from the time that a memorial of 
 " such judgment, shall be entered at the rcgister- 
 *' office, in such manner as therein is directed." 
 
 During the same term in which the judgment 
 is given, it is amendable at common law, in form 
 or in substance *> ; but after that term, it is amend- 
 able no further than is allowed by the statutes of 
 
 amend- 
 
 o 2 Bur. 722. Sel. 537. Imp. K. B. 401. 
 
 P6 Ann. c. 35. § 19. 7 Append. Chap. XXXIX. § 76, 
 
 Ann. c. 20. § 18. 8 G. II. c. &c. 
 
 6. § 1. 8c 18. For the mode of i 8 Co. 157. Gilb. C. P. 
 
 registering judgments, see 1 108.
 
 OF JUDGMENTS. 865 
 
 amendments *■. Upon these statutes it has been hol- 
 den, that if there be any thing to amend by, the 
 judgment may be amended in point of form, for the 
 misprision of the clerk " ; and it is amendable by the 
 verdict ^ In a qui-tam action for a penalty, on the 
 statute of usury, it is not cause of error to enter a 
 judgment of misericordia'^: And in other actions, 
 the want of a capiatur or misericordia^ or the sub- 
 stitution of one for the other, is aided by the sta- 
 tutes of jeofails "^ ; which have been construed to 
 extend to the addition of a capiatur^ where none 
 lies'": And the loss of the judgment-roll may be 
 supplied by a new entry ''. 
 
 «• 1 Wils. 61. 2 Str. 1209. V 16 8c 17 Car. II. c. 8. 4 
 
 S, C. 4 Bur. 1988. Ann. c. 16. §2i 
 
 s2 Str. 1132. 1156. 1182. w i Str. 313. 
 
 5 Bur. 2730. 3 T. R. 349. ^ Id. 141. 2 Str. 833. 2 
 
 t 2 Str. 787. AntCy 662. Bur, 722. 
 
 « 6 T. R. 255. 
 
 CHAP-
 
 [ 864 ] 
 
 CHAPTER XL. 
 
 Of Costs. 
 
 TNCIDENT to the judgment are the Costs ^ or 
 expences of the suit; which are interlocutory or 
 final: the former, or such as are awarded on inter- 
 locutory matters, arising in the course of the suit, 
 have been already considered, in treating of the mat- 
 ters to which they relate; the latter, or such as de- 
 pend on the final event of the suit, will be the sub- 
 ject of the present chapter *. 
 
 No final costs were recoverable, by the plaintiff 
 or defendant, at common law *". But by the sta- 
 tute of Gloucester^ (6 Ed'Ui. I.) c. 1. § 2. it is pro- 
 vided, " that the demandant may recover against 
 " the tenant, the costs of his ijorit purchased, 
 " (which, by a liberal interpretation, has been 
 " construed to extend to the <whole costs of his 
 
 " suit,) 
 
 ^ The subject of costs, in- 
 terlocutory as well as final, is 
 treated of in a clear and per- 
 spicuous manner by Mr. Hid- 
 lock: And the table of costs, by 
 Mr. Palmer, will also be found 
 a valuable acquisition to the 
 profession, as it contains a full 
 collection of bills of costs, ac- 
 
 curately drawn, and methodi- 
 cally arranged, by which the 
 practiser may not only know 
 how to charge for his business, 
 but may see beforehand in 
 what order it is to be conduct- 
 ed. 
 
 '• : Inst. 288. Hard. 152. 
 
 '
 
 OF COSTS.. 865 
 
 " suit%) together with the damages given by that 
 " statute; and that this act shall hold place, i?i all 
 ^' cases where a man recovers damages.''^ This was 
 the origin of costs de incremento '^: And hence the 
 plaintiff has, generally speaking, a right to costs, 
 in all cases where he was entitled to damages, an- 
 tecedent to, or by the provisions of, the statute of 
 Gloucester *= ; as in assumpsit, covenant, debt on con- 
 tract, case, trover, trespass, assault and batterj'^, 
 replevin, ejectment, dower unde nihil habet \ Ike. ; 
 or where, by a subsequent statute, double or treble 
 damages are given, in a case where single damages 
 were before recoverable^; as upon the 2 Hen. IV. 
 c. 11. for wTongfully suing in the admiralty court ^, 
 &c. And he has also a right to costs, in all cases 
 where a certain penalty is given by statute to the 
 party grieved ' ; for otherwise the remedy might 
 prove inadequate. 
 
 But the statute of Gloucester did not extend to 
 cases where no damages were recoverable at com- 
 mon law, as in real actions '', scire facias^ prohibi- 
 tiofi •, &c. ; nor where double or treble damages 
 
 were 
 
 >^ 2 Inst. 288. Abr. 574. Skin. 363. Carth. 
 
 *Gilb. Eq. Rep. 195. 230. 1 Salk. 206. 1 Ld. 
 
 elOCo. 116. a. Raym. 172. Willes, 440. 
 
 f2Bac.Abr. 148.^«^e,799. Say. Costs, 11, 7 T. R. 267. 
 
 K 10 Co. 116. a. 2 Inst. 1 H. Blac. 10. 
 
 289. Cowp. 368. k Ante, 799. 
 
 h Ante, 800. ' Comb. 20. 
 iCro. Car. 560. I Roll. 
 Vol. IT. 2D
 
 866 OF COSTS. 
 
 were given by a subsequent statute, in a new case 
 where single damages were not before recoverable; 
 as in ivaste, against tenant for life or years "\ upon 
 the statute of Gloucester, (6 Edw, I.) c. 5. ; for not 
 setting out tithes % upon the 2 & 3 Edw, VI. c. 
 13.; or for driving a distress out of the hundred", 
 upon the 1 & 2 Ph. & M. c. 12. Nor does this 
 statute extend to popular actions, where the whole 
 or part of a penalty is given by statute to a com- 
 mon informer P; as upon the 5 Eliz. c. 4. § 31. 
 for exercising a trade, without having served an 
 apprenticeship; or upon the statute of usury, 12 Ann^ 
 Stat. 2. c. 16. In these and such like cases there- 
 fore^ the plaintiff is not entitled to costs, unless 
 they are expressly given him by the statute; but 
 wherever they are so given, he is of course entitled 
 to them. 
 
 Where single damages are given by a statute, 
 subsequent to the statute of Gloucester, in a new- 
 case wherein no damages were previously recover- 
 able, it has been doubted whether the plaintift' 
 shall recover costs, if they are not mentioned in 
 the statute. The rule in PilfoWs case is, that he 
 
 shall 
 
 ™ 2 Hen. IV. 17. 9 Hen. v l Roll. Abr. 574. 1 Vent. 
 
 VI. 66. b. 10 Co. 116. b. ISS.-Carth. 231. 1 Salk. 206. 
 
 2 Inst. 289. Jnte, 800. 1 Ld. Raym. 172. Cas. Pr. C. 
 
 "Moor, 915. Noy, 136. B. 87. Barnes, 124. S. C. 
 
 Hardr. 152. Cowp. 366. 1 H. Blac. 10, 
 
 2 Inst. 289. Dyer, 177. Bui. .AL Pn. 3,33. 
 but see Cro. Car. 560. 1 
 Roll. Abr. 574.
 
 OF COSTS. 867 
 
 shall not •" : and accordingly it is holden, that he is 
 not entitled to costs in quare impedit \ wherein 
 damages are given by the statute of Westm. 2. 
 (13 Ed-w. I.) c. 5. § 3. But the rule in Pilf old's 
 case is contradicted by lord Coke himself', who 
 says, that " this clause (respecting the statute of 
 *' Gloucester''^ holding place, in all cases where a 
 " man recovers damages) doth extend to give 
 " costs, where damages are given to any demand- 
 " ant or plaintiff, in any action, by any statute 
 " made after this parliament." And the rule has 
 been since narrowed, by several modem decisions; 
 from whence it may be collected, that the plain- 
 tiff is entitled to costs, in all cases where single da- 
 mages are given by statute to the party grieved ^j 
 although costs are not particularly mentioned in the 
 statute. 
 
 In several of the foregoing cases, wherein costs 
 were not recoverable by the plaintiff at common 
 law, they are expressly given him by the statute 8 
 h 9 PF, III. c. 11. by which it is enacted, that 
 *' in all actions of waste, and actions of debt upon 
 " the statute for not setting forth tithes, wherein 
 " tlie single value or damage found by the jury 
 
 " shall 
 
 q 10 Co. 116. a. « 2 Inst. 289. 
 
 '■2 Hen. IV. 17. 27 Hen. '2 Wils. 91, Barnes, 151. 
 
 VI. 10. 10 Co. 116. a. 2 S. C. 3 Bur. 1723. Say. 
 
 Inst. 28l 362. Barnes, 140. Costs, 10. S. C. 1 T. R. 71. 
 
 and see Cro. Car. 360. Carth. 6 T. R. 355. 7 T. R. 267. 
 
 231. Covvp. 367, 8. ante, 800. but see Cowp. 367, 8,
 
 868 OP COSTS. 
 
 " shall not exceed the sum of twenty nobles; and 
 " in all suits upon any writ or writs of scire facias, 
 '•' and suits upon prohibitions, the plaintiff obtaining 
 '■'■ judgment, or any award of execution, after plea 
 " pleaded or demurrer joined therein, shall likewise 
 " recover his costs of suit; and if the plaintiff shall 
 '' become nonsuit, or suffer a discontinuance, or a 
 '' verdict shall pass against him, the defendant shall 
 " recover his costs, and have execution for the same 
 " \yY capias ad satisfaciendum, fieri facias, ox elegit.'''' 
 Upon this statute there have been the following 
 determinations. 
 
 In an action of debt for the penalty of the statute 
 2 & 3 Edw. VI. c. 13. for not setting out tithes, 
 ^vith a count for the single value, after a demurrer 
 to the declaration, the parties submitted to arbi- 
 tration, and the arbitrator awarded the single value 
 to be less than twenty nobles (6/. 13^. 4^/.); the court 
 held, that the plaintiff v/as not entitled to costs on 
 the counts for the penalty, under the statute of 8 & 
 9 JV. III. c. 11. the value not having been found 
 by a jury ; but they allowed him to have the costs 
 taxed, on the count for the single A^alue ". 
 
 In Prohibition, the rule is, that the plaintiff, suc- 
 ceeding after plea pleaded or demurrer joined, ought 
 to have his costs from the time of the suggestion, 
 
 or 
 
 ^ 1 H. Blac. 107. and see Barnes, 150. 
 
 li
 
 OF COSTS. 869 
 
 or first motion for a prohibition, and all costs inci- 
 dent and subsequent thereto ' . And where the de- 
 fendant pleaded nothing to the merits, but only that 
 he did not proceed in the spiritual court after the 
 prohibition, the court ordered the defendant to pay 
 the plaintiff's costs of the proceedings in prohibi- 
 tion '\ Where the defendant in prohibition lets 
 judgment go by default, the plaintiff is entitled, by 
 the common law, to a Mrit to inquire of his damages., 
 for the contempt in proceeding after the prohibition 
 delivered ; and of consequence, by the statute o^ Glou- 
 cester., to his costs "^. In this case however, the plain- 
 tiff is only entitled to costs, from the time that the 
 rule for a prohibition was made absolute, as the de- 
 fendant could not possibly be in contempt before ^ : 
 And where the plaintiff was nonsuited, it was holden 
 that the defendant ought only to have tlie costs of 
 the nonsuit, and not what were incurred by oppo- 
 sing the rule to shew cause, why the writ of prohi- 
 bition should not be granted \ If judgment be 
 given for the plaintiff, as to part of what is in issue, 
 he is entitled to costs, although a consultation be 
 granted as to the residue =*: And in like manner, if 
 the defendant prevail as to part, he is entided to 
 
 costs. 
 
 ^ Cas. Pr. C. B. 11. 1 Str. y Id.2\. 
 s:. 2 Str. 1062. z Say. Costs, 137. 
 
 ''•' Barnes, 148. a 2 Str. 1062, 5-. 
 
 - Cas. Pr. C. B. 20,
 
 870 OF COSTS. 
 
 costs ^. But it seems, that if the defendant succeed 
 upon demurrer, he is not entitled to costs''; this 
 being' a casus omissus out of the statute. There is a 
 proviso in the statute ^^ that it shall not extend to 
 executors or administrators; and hence it has been 
 determined, that in prohibition, they are not hable 
 to the payment of costs "". 
 
 The plaintiff's general right to costs being thus 
 settled and established, upon the footing of the 
 statute of Gloucester^ has been since altered, re- 
 strained and modified, by subsequent statutes. 
 The first statute that restrained the plaintiff's 
 right to costs, was the 43 Eliz. c. 6. (extended 
 to Wales, and the counXiQs-paladney by the 11 & 
 12 /F. III. c. 9.); by which it is enacted, that 
 " if in any personal action, to be brought in any 
 *' of her majesty's courts of Westminster, not being 
 " for any title or interest of lands, nor concerning 
 " the freehold or inheritance of any lands, nor for 
 " any battery, it shall appear to the judges of the 
 " same court, and be so signified by the justices 
 " before whom the same shall be tried, that the 
 " debt or damages to be recovered tlierein shall 
 " not amount to the sum of forty shillings, that 
 " in every such case, the judges or justices before 
 '' whom such action shall be pursued, shall not 
 
 " award 
 
 i> Barnes, 138,9. *= Cas. Pr. C. B. 158. Pr. 
 
 c Bryme7- and Atkyns, H. Reg. 118. Barnes, 127. 129. 
 
 22 Geo. III. C. B. S. C. 3 East, 202. 
 A%5.
 
 OF COSTS. 871 
 
 " award to the plaintiff any more costs, than the 
 " sum of the debt or damages so recovered shall 
 *' amount to, but less at their discretion." The 
 intention of this statute was to confine trifling 
 actions to inferior courts^; and a certificate may- 
 be granted upon it, at any time after the trial of 
 the cause •''. The first instance of a certificate being 
 granted upon this statute, was in the case of White 
 V. Smith, E. 17 Geo. II. ; wherein Willes Ch. J. 
 certified in an action for taking sand \ And since 
 that time, there have been several instances of such 
 certificates '. But as the judges, for a long time, 
 were unwilling to certify upon this statute, think- 
 ing it hard to deprive a plaintiff of his right to costs, 
 merely because he had resorted to a superior court, 
 when perhaps he could not have obtained justice 
 in an inferior one, the legislature was obliged to 
 inteqiose its authority, still farther to guard against 
 trifling and vexatious actions. 
 
 Thus, by the 3 Jac, I. c. 15. \ 4. it is enacted, 
 that " if in any action of debt, or action upon the 
 *' case upon an assumpsit for the recovery of any 
 " debt, to be sued or prosecuted against any citi- 
 *' zen and freeman of the city of London, or any 
 •' other person, being a victualler, tradesman or 
 
 " labouring 
 
 f Gilb. Eq. Rep. 196. S. C. 3 Wils. 325. 
 Gilb. C. P.261, 2. i2 Str. 1232. 1 Wils. 93. 
 
 K Say. Costs, 18. 3 T. S. C. 3 Wils. 325. Say, Rep. 
 
 R. 38. (d). 250. 2 Wils. 258. 3 T. K 
 
 >» 2 Str, 1232. I Wils. 93. sr.
 
 872 OF COSTS. 
 
 " labouring man, inhabiting within the said city 
 " or the liberties thereof, in any of the king's courts 
 " at Westminster^ or elsewhere out of the court of 
 " requests for the same city, it shall appear to the 
 " judge or judges of the court Avhere such action 
 *' shall be sued or prosecuted, that the debt to be 
 " recovered by the plaintiff shall not amount to 
 "the sum of forty shillings, and the defendant 
 *' shall duly prove, either by sufficient testimony or 
 " his own oath, that at the time of commencing 
 " such action, the defendant was inhabiting and 
 " rcsiant in the city of London or the liberties 
 " thereof, the said judge or judges shall not allow 
 " to the plaintiff any costs of suit, but shall award 
 *' the plaintiff to pay so much ordinary costs to the 
 *' defendant, as the defendant shall justly prove, 
 " before the said judge or judges, it hath truly 
 " cost him in defence of the suit." 
 
 The jurisdiction of the court of requests for 
 London v\as extended, by the 14 Geo. II. c. 10. 
 to " e'Dery citizen and freeman of the city of Lon- 
 " don^ and every other person and persons inhabit- 
 " ing within the said city or its liberties, and also 
 " to persons renting or keeping any shop, shed, 
 "stall or stand, or seeking a livelihood there, who 
 " have debts owing them, not exceeding the sum 
 *' of forty shillings, by any person or persons inha- 
 " biting or seeking a livelihood within the said city 
 " or its liberties, during their respective inhabi- 
 " tancy or seeking a livelihood as aforesaid ^" And 
 
 by 
 
 .i See 5 T. R. 535. I East, 353, 353. (c). S. C. riteil
 
 OF COSTS. 873 
 
 by the 39 h 40 Geo. III. c. 104'^. it was still further 
 extended to " debts not exceeding the sum of 51 K 
 "due to any person or persons, whether residing 
 " within the city of London or elsewhere, or to bo- 
 " dies politick or corporate, and fraternities or bro- 
 " therhoods, whether corporate or not corporate, from 
 " any person or persons, residing or inhabiting with- 
 " in the said city or its liberties, or keeping any 
 *' house, warehouse, shop, shed, stall or stand, of 
 " seeking a livelihood, or trading or dealing within 
 " the same city or liberties '". And if any action or 
 " suit shall be commenced in any other court than 
 ** the said court of requests, for any debt not ex- 
 " ceeding the sum of 5/., and recoverable by virtue 
 " of the former acts, or of this act, in the said court 
 " of requests, the plaintiff or plaintiffs in such ac- 
 *' tion or suit shall not, by reason of a verdict for 
 " him, her or them, or otherwise, have or be entitled 
 " to any costs whatsoever; and if the verdict shall 
 " be given for the defendant or defendants in sucli 
 *' action or suit, and the judge or judges before 
 *' whom the same shall be tried or heard, shall 
 ** think fit to certify that such debt ought to have 
 " been recovered in the said court of requests, then 
 " such defendant or defendants shall ha\e double 
 " costs, and shall have such remedy for recovering 
 
 " the 
 
 •« This act of parliament took on the 9th of July preceding, 
 effect from the 30th o{ Sefiiem- 2 East, 135. 
 ber 1800, and not from the '§2. 
 passing of the act, which was '" § 5. 
 I Vol. II. 2E
 
 874 OF COSTS. 
 
 " the same, as any defendant or defendants may have 
 " for his, her or their costs, in any cases by lavv'\" 
 This act of parHament has been construed to extend 
 to an action of debt for less than five pounds, on the 
 judgment of a superior court °. 
 
 Towards the latter end of the last reign, several 
 acts of parliament were also made, establishing courts 
 of conscience in various districts, in and about the 
 metropolis ; as in the town and borough of South- 
 uoark, &c. by the 22 Geo. II. c. 47. (explained and 
 amended by the 32 Geo. II. c. 6.); in the city and 
 liberty of IVestminste?; and part of the dutchy of 
 Lancaster, by the 23 Geo. II. c. 27. (explained and 
 amended by tlie 24 Geo. 11. c. 42.); and in the Tow- 
 er-hamlets, by the 23 Geo. II. c. 30. And by the 23 
 Geo. II. c. 33. the county court of Middlesex was 
 put on a different footing, for the more easy and spee- 
 dy recovery of small debts. 
 
 In these acts of parliament there are exceptions, 
 relating to particular causes and pejsons, of which, 
 and over whom, the courts have no jurisdiction. 
 Thus, in the 3 Jac. I. c. 15. there is an exception 
 or proviso ^, that " it shall not extend to any debt 
 *' for rent upon any lease of lands or tenements, or 
 
 " any 
 
 n§ 12. ment of the court of requests for 
 
 •^ 2 Bos. & Pul. 588. but see London. Sed quxre, whether 
 
 3 Esp. Cas. M. Pri. 280. the plaintiff would have been 
 
 where an action of debt was entitled to costs in such action, 
 brought in a superior court for p § 6. and see the statute 39 
 
 less than five poundsonajudg- Sc 40 G. III. c. 104. § 1 1. 
 
 il
 
 OF COSTS. 875 
 
 " any other real contracts, nor to any other debt 
 '* that shall arise by reason of any cause concem- 
 *' ing a testament or matrimony, or any thing 
 *' concerning or properly belonging to the eccle- 
 *' siastical court, although the same be under for- 
 " ty shillings." And there is a similar exception 
 in the court of conscience acts for fVeswiinster ■*, and 
 the Tower hamlets'' \ which exception has been con- 
 strued to apply in London, to an action for use and 
 occupation ^ : and the court of conscience act there 
 does not extend to cases, where the plaintiff recovers 
 less than forty shillings, in a special action on the 
 case, for the breach of an agreement *. Also it is a 
 constant and invariable rule, that none of the court of 
 conscience acts extend to cases, Avhere the sum re- 
 covered is reduced under forty shillings, by means 
 of a set-off '', or tender "'. Where a cause is referred 
 to arbitration, and the costs are directed to abide the 
 event of the suit, the plaintiff, we have seen, is not 
 entitled to them, if it appear by the award that his 
 original demand was under forty shillings, and he 
 might have recovered it in a court of conscience '^ 
 
 The 
 
 1 22 Geo. II. c. 47. § 16. Pul. 223. But it is otherwise, 
 
 r Doug. 245. where the plaintiff's demand is 
 
 s Id. 244. but it is otherwise reduced under forty shillings, 
 
 in Middlesex. 2 Bos. & Pul. 29. by payments in part. Barnes, 
 
 t 5 T. R. 529. 353. 4 Bur. 2133. 
 
 1 2 Str. 1191. 1 Wils. 19. ^ Doug. 448, 9. 
 
 S. C. 2 Wils. 68. 3 Wils. 48. w Ante, 762, 3. 
 
 Say. Costs, 65. S. C. 1 Bos. &
 
 876 OF COSTS. 
 
 The court in one instance permitted a suggestion to 
 be entered on the roll, in an action brought by an ad- 
 mmistrator "^ : But in an action brought against an ex- 
 ecutor ^ they refused it^; saying, it could not be 
 meant to give the court of conscience a jurisdiction 
 over executors; and that if there was no express ex- 
 ception, there was one implied from the nature and 
 reason of the thing. An attorney is nqt subject 
 to the jurisdiction of the county court of Middlesex ^\ 
 but in London^ Westminster^ and the Tower hamlets^ 
 he is expressly subjected thereto ''. And where a 
 person is sued in a superior court, for a debt under 
 forty shillings, he may move the court to stay the 
 proceedings ^ 
 
 The mode of taking advantage of these statutes is 
 hy plea or suggestion. Where there is a prohibitory 
 clause in the act, declaring that " no action for any 
 " debt under fort}^ shillings, and recoverable in the 
 *' court of requests, shall be brought against any 
 " person within the jurisdiction thereof, in any other 
 ** court whatsoever," as in Westminster y the proper 
 mode of taking advantage of the act is by pleading 
 it, or giving it in evidence under the general issue "^ : 
 And if that mode be not adopted, the court will not, 
 after verdict, enter a suggestion on the record, that 
 the defendant lived within the jurisdiction, or stay 
 
 the 
 
 X Doug. 246. S3 e 2 Bos. 8c Pul. 29. 
 
 y Id. 263. Stat. 14 Geo. II. ^ Ante., 265. 
 
 .:. 10. 5 T. R. 535. Id. 529. l' Ante., 465. 
 
 I 2 Wils. 42. Doug. 380. = 2 H. Blac. 352. 
 Bur. 1583. «em6. contra; and
 
 OF COSTS. 877 
 
 the proceedings ^. The Tower-hamlets act has the 
 same prohibitory clause ; and though it gives no 
 form of plea, yet it may be pleaded, or the facts 
 which bring a case within it may be given in evi- 
 dence under the general issue, to nonsuit ihe plain- 
 tiffs, or obtain a verdict against him ^ In the Lo?i- 
 don act, as well as in the acts for Sout/iivark and 
 Middlesex, there is no such prohibitory clause ; and 
 therefore the proper mode of proceeding upon these 
 acts is, for the defendant to apply to the court, by af- 
 fidavit, for leave to enter a suggestion on the roll, of 
 ^he facts necessary to entitle him to the benefit of the 
 act ^: which suggestion may be traversed, or demur- 
 red to ''. The application for leave to enter a sugges- 
 tion, should be made before final judgment signed ': 
 And where the plaintiff demurred to the suggestion, 
 which was adjudged against him, the costs of the ap- 
 plication were allowed, as well as of the trial and for- 
 mer proceedings \ though not strictly speaking costs 
 of the defence. But where the inquest is taken by 
 default, there can it seems be no suggestion on the 
 roll ^; for the defendant is said to be out of court, 
 
 as 
 
 '1 3 T. R. 452. 1 East, 354. Wils. 68. Doug. 244. and see 
 
 (a). S. C. cited. Append. Chap. XL. § 1. 
 
 e 2 H. Blac. 352. h 2 H. Blac. 354. 
 
 f 1 East, 352. i Id. ibid. 
 
 t 1 Str. 47. 50. 2 Str. 1 120. J 2 Str. 1 120. 
 
 1191. Barnes, 353. Say. Rep. ^ i Str. 46. but sec 2 H. 
 
 273. Say. Costs, 64. S. C. 2 BLic 351.
 
 878 OF COSTS. 
 
 as to all purposes, but that of having judgment 
 against him. 
 
 By the 21 Jac. I. c. 16. it is enacted, that " in all 
 *' actions upon the case for slanderous words, to be 
 *' sued or prosecuted in any of the courts of record 
 *' at Westminster^ or in any court whatsoever that 
 *' hath power to hold plea of the same, if the jury 
 ** upon the trial of the issue in such action, or the jury 
 *' that shall inquire of the damages, do find or assess 
 " the damages under forty shillings, then the plain- 
 *' tiff or plaintiffs in such action shall have and reco- 
 " ver only so much costs as the damages so given 
 " or assessed amount unto, without any further in- 
 *' crease of the same; any law, statute or usage to 
 " the contrary notwithstanding." The operation of 
 this statute is confined to actions for slanderous words 
 spoken of the person^ and does not extend to actions 
 for slander of title ', &c. wherein the special damage 
 is the gist of the action: neither, for the same reason, 
 does it extend to an action for special damage, in 
 consequence of words not in themselves actionable '" ; 
 though, where the words are actionable in them- 
 selves, a special damage will not take the case out 
 of the statute ". This statute applies to a writ of 
 
 inquiry-, 
 
 » Cro. Car. 141. 163. 1 Str. " 2 Ld. Raym. 1588. 2 Str. 
 
 645. 936. S.C.Willes,438. Barnes, 
 
 'n2Ld. Rayni.831. 1 Salk. 132. S. C. Id. 142. 3 Bur. 
 
 206. 7 Mod. 129. S.C.Willes, 1688. 2 Blac. Rep. 1062. Say. 
 
 438. Barnes, 132. S. C. Id. Costs, 25. S. C. Cas. Pr, C. 
 
 135. 2 H. Blac. 531. B. 137. contra. 
 
 I
 
 OF COSTS. 879 
 
 inquiry^ as well as a trial, where the damages are un- 
 der forty shillings °; and ^justification found for the 
 plaintiff will not, in that event, entitle him to full 
 costs p. In actions upon judgments, it is enacted by 
 the statute 43 Geo. III. c. 46. § 4. that " the plain- 
 " tiffs shall not recover or be entitled to any costs of 
 " suit, unless the court in which such actions shall be 
 " brought, or some judge of the same court, shall 
 " otherwise order." 
 
 But the principal statute, made for restraining the 
 plaintiff's right to costs, is the 22 & 23 Car. II. c. 9. 
 (extended to Wales, and the counties palatine, by the 
 11 & 12 ^. III. c. 9.); by which it is enacted, that 
 " in all actions of trespass, assault and battery, and 
 *' other personal actions, wherein the judge, at the 
 " trial of the cause, shall not find and certify under 
 " his hand, upon the back of the record, that an as- 
 " sault and battery was sufficiently proved by the 
 " plaintiff against the defendant, or that the freehold 
 " or title of the land mentioned in the plaintiff's de- 
 *' claration was chiefly in question; the plaintiff, in 
 " case the jury shall find the damages to be under 
 " the value of forty shillings, shall not recover or ob- 
 *' tain more costs of suit, than the damages so found 
 " shall amount unto." It seems to have been the 
 intention of this statute, that the plaintiff should 
 have no more costs than damages, in any personal 
 action whatsoever, if the damages were under forty 
 shillings, except in cases of batter}-, or freehold; and 
 not even in these, without a certificate : And this 
 construction was adopted, in some of the first cases 
 
 that 
 
 « 2 Str. 934. C. P. 22. 2 Wils. 258 
 
 p Banies, 128. Cas. Pr.
 
 880 
 
 OF COSTS. 
 
 that arose upon tlie statute ''. But a difterent con- 
 struction soon prevailed ; and it is now settled, that 
 the statute is confined to actions of assault and bat- 
 tery; and actions for local trespasses, wherein it is 
 possible for the judge to certify, that the freehold or 
 title of the land was chiefly in question ^. Therefore 
 it does not extend to actions of assumpsit^ debt, co- 
 venant, trover % false imprisonment, or the like; or 
 to actions for a mere assault ^ ; or for criminal con- 
 versation ", or battery of the plaintiff's servant ^^ per 
 quod consortimn "vel servitium ajnisit. 
 
 In actions for local trespasses, the statute applies, 
 wherever an injury is done to tht freehold "", or to 
 any thing grooving "" upon, or affixed ■ to, the free- 
 hold : and in a modern case % it was carried still 
 
 further. 
 
 q 2 Keb. 849. 3 Keb. 121. 
 247. 
 
 ■• T. Raym. 487. T. Jon. 
 232. 2 Show. 258. S. C. 3 Mod. 
 39. 1 Salk. 208. 1 Str. 577. 
 Gilb. Eq. Rep. 195. Barnes, 
 134. 3 Wils. 322. S. C. 1 H. 
 Blac. 294. 2 East, 162. Per 
 Laivrence^ J. 
 
 s 3 Keb. 31. 1 Salk. 208. 
 
 t 3 T. R. 391. but see 6 T. 
 R. 562. 
 
 1 3 Wils. 319. 
 
 v3 Keb. 184. 1 Salk. 208. 1 
 Str. 192. 
 
 w 2 Vent. 48. Com. Rep. 
 19. I Salk. 208. 1 Str. 577. 
 
 633. 645. Gilb. Eq. Rep. 195. 
 2 Str. 726. 2 Ld. Raym. 1444.. 
 S. C. 6 T. R. 281. 
 
 •'' HiU V. Reevesj Bui. M. 
 Pri. 330. Barnes, 144. 
 
 y Birch V. Daffey^ Bui. M. 
 Pri. 330. 1 Str. 633 . Cas. Pr. 
 C. B. 86. Barnes, 121. 6T.R. 
 281. 
 
 2 Doug. 779. and see 1 Str. 
 633. 645. Gilb. Eq. Rep. 197, 
 8.S.C.3Bur. 1282. Say. Costs, 
 50. S. C. accord, but see 2 
 Vent. 215. Skin. 66. Com. 
 Rep. 19. 1 Salk. 208. 1 Str. 
 192. semb. contra.
 
 OF COSTS. 881 
 
 further. That was an action of trespass qiiare clau- 
 sum f regit: the first count stated, that the defen- 
 dants broke and entered the close of the plaintiffs, 
 and the grass of the plaintiffs there then growing, 
 with their feet in walking, trod down, spoiled, and 
 consumed; and dug up and got divers large quan- 
 tities of turf, peat, sods, heath, stones, soil and 
 earth of the plaintiffs, in and upon the place in 
 which, is'c. and took and carried away the same, 
 and converted and disposed of the same to their own 
 use: There was another count, upon a similar 
 trespass, in another close. The defendants pleaded 
 the general issue to the whole declaration, and two 
 special pleas to the second count: And on the trial, 
 a verdict was found for the plaintiffs on the gene- 
 ral issue, with one shilling damages; and for the 
 defendants on the special pleas, and the judge had 
 not certified. Per Lord Mansjield: " The question 
 ' on this record is, whether the plaintiffs are en- 
 ' titled to any more costs than damages, under 
 ' the statute 22 & 23 Car. II. c. 9. ? There is a 
 ' puzzle and perplexity in the cases on this part 
 ' of the statute, and a jumble in the reports; and 
 
 * as the question is a general one, we thought it 
 ' proper to consult all the judges; and they are 
 ' all of opinion, that this case is within the sta- 
 
 * tute, and that the plaintiffs ought to have no 
 ' more costs than damages. You will obser\'e, 
 ' that what has been called an asportavit in this 
 
 Vol. II. 2 F " decla-
 
 882 OF COSTS. 
 
 " declaration, is a mode or qualification of the 
 *' injury done to the land: The trespass is laid to 
 " have been committed on the land, by digging, 
 " tfr. and the asporta'uit as part of the same act; 
 *' and on the trial of the issue, the freehold cer- 
 " tainly might have come in question. This is 
 *' clearly distinguishable from an asportaiiit of per- 
 " sonal property, where the freehold cannot come 
 *' in question, and which therefore is not within 
 *' the act: Thus, after trees are cut down, and 
 " thereby severed from the freehold, if a trespasser 
 " comes and carries them away, that case is not 
 *' within the statute, because the freehold cannot 
 " come in question; here it might." In an ac- 
 tion for mesne-profits, if the plaintiff recover less 
 than forty shillings damages, and the judge do 
 not certify that the title came in question, the 
 plaintiff is entitled to no more costs than damages ^. 
 Where an injury is done to a personal chattel, 
 it is not within the statute ^ ; nor where an injury 
 to a personal chattel is laid in the same declara- 
 tion with an assault and battery, or local trespass " : 
 and consequently, in these cases, though the dam- 
 ages be under forty shillings, the plaintiff is en- 
 titled 
 
 ^ 1 Esp. Cas. .Vz. Pn. 359. 1 Str. 192.' 551. Gilb. Eq. 
 
 6 T. R. 593. Rep. 197. S. C. Barnes, 
 
 b 3 Keb. 389. 469. T. 119, 20. 134. 3 Wils. 322. 
 
 Jon. 232. 1 Salk. 208. 1 S. C. 2 Str. 1130. Saj. 
 
 Str. 534. Gilb. Eq. Rep. Costs, 39. but see 1 Esp. Cas. 
 
 197. S.C. A7. Pr/. 255. 
 
 c 3 Mod. 39. 1 Salk. 208. 
 
 1
 
 OF COSTS. 883 
 
 titled to full casts, without a certificate. But then 
 it must be a substantive and independent injury; 
 for where it is laid or proved merely in aggravation 
 of damages, as a mode or qualification of the as- 
 sault and battery, or local trespass'^, or there is a 
 verdict for the defendant upon that part of tlie 
 declaration which charges him with an injury to a 
 personal chattel*, it is within the statute. So 
 where a lacera'uit^ or tearing of the plaintiff's clothes, 
 is laid in the declaration, or found by the juiy, to 
 be merely consequential to \ or committed at the 
 same time ^ as an assault and battery, the plaintiff, 
 recovering less than forty shillings damages, is not 
 entitled to full costs, without a certificate. 
 
 The certificate required by this statute need not, 
 it seems, be granted at the trial of the cause ^. And 
 where the defendant lets judgment go by default ', 
 or justifies the assault and battery \ or pleads in 
 such a manner as to bring the freehold or title of 
 the land in question, on the face of the record, or 
 a 'oiew is granted *", a certificate is holden to be un- 
 necessary. But where, in an action for an assault 
 and battery, the defendant justifies tlie assault only ', 
 
 or 
 
 d 1 Str. 624. Ante, 881, 2. ^ W Mod. 198. Post. 887. 
 
 «2 Vent. 180. 195. Cas. "> Bui. WI. Pr/. 329. 
 
 Pr. C. B. 118. J 6 T. R. 562. 
 
 »Say. Rep. 91. IT. R. 655. k i Ld. Raym. 76. ?. 
 
 B 1 H. Blac. 291, 5 T. R. Salk. 665. S. C. 
 
 482. 13T. R. 391.
 
 884 OF COSTS. 
 
 or an assault only is certified by the judge '", the 
 plaintiff, recovering less than forty shillings, is not 
 entitled to more costs than damages; though, in 
 the latter case, to entitle him to full costs, the 
 judge may certify, on the 8 &. 9 PV. III. c. 11. that 
 the assault was wilful and malicious ". The award 
 of an arbitrator is not tantamount to a judge's cer- 
 tificate, under the 22 & 23 Car. II. c. 9 °. 
 
 Where the plaintiif recovered less than forty 
 shillings damages, and the plea or issue, though 
 special, was collateral to the question of freehold 
 or title to the land, as where the defendant justi- 
 fied an entry as bailiff under process, and issue was 
 joined upon the door's being shut p, or where, upon 
 a plea of a distress for rent, there was an issue on 
 the defendant's being bailiff *^, a certificate was for- 
 merly holden to be necessary, to entitle the plain- 
 tiff to full costs: for it was considered, that a 
 plaintiff who recovered less than forty shillings da- 
 mages, in trespass giiare clausumf regit ^ was not en- 
 titied to full costs, unless the freehold or title ap- 
 peared to have come in question, either by the 
 judge's certificate, or by the pleadings. But it has 
 since been determined, in several cases \ that if the 
 defendant in trespass quare clausum /regit, plead a 
 licence, or other justification, which does not make 
 
 title 
 
 =" 2 Lev. 102. q Say. Rep. 250. 
 
 " 3 Wils. 326. r 2 H. Blac. 2. 341. 7 T. 
 
 3 T. R. 138. R. 659. 
 
 a 2 Barnard. K. B. 277
 
 OF COSTS. 885 
 
 title to the land, and it is found against him, the 
 plaintiff is entitled to full costs, though he do not 
 recover forty shillings damages: The principle on 
 which these determinations have proceeded is, that 
 where tlie case is such, that the judge who tries 
 the cause cannot in any view of it grant a certifi- 
 cate, it is considered to be a case out of the statute *. 
 So on a plea of not guilty to a new assignment of 
 extra viam^ the plaintiff obtaining a verdict for less 
 than forty shillings damages, is entitled to full costs, 
 without a judge's certificate '; unless the way plead- 
 ed be set forth by metes and bounds ". And where 
 the plaintiff is entitled to costs upon the new assign- 
 ment, he is entitled to the costs of all the previous 
 pleadings ' . 
 
 None of the statutes made for restraining the 
 plaintiff's right to costs, except the 21 Jac. I. c. 
 16. '', extend to actions brought in an inferior 
 
 court, 
 
 ' 7 T. R. 660. holder), that courts-baron, and 
 
 ^ 2 Lev. 234. 2 Ld. Raym. other inferior courts, wherein 
 
 1444. 2 Str. 726. S. C. Id. the jury are precluded from 
 
 1168. Say. Rep. 251. Cock- legally assessing damages to 
 
 erilly. Allansoriy T. 22 G.III. the amount of forty shillings, 
 
 K. B. Hul. Costs, 86. S. C. arc not within the meaning or 
 
 i East, 350. but see Barnes, intent of this statute, but that 
 
 124. 129. S. C. Id. 149. such courts have still a power 
 
 Bui. AT. Pri. 330. contra. of allowing full costs, in actions 
 
 " Cockerill v. Allanson, T. of slander prosecuted therein, 
 
 22 G. III. K. B. Hul. Costs, however small the quantum of 
 
 86. S. C. 1 East, 351. damages found or assessed 
 
 V 1 T. R. 636. may be. 1 Ld. Raym. 181. 
 
 ^'^^ Hul. r>9. And it hath been
 
 886 OF COSTS. 
 
 court, and removed by the defendant into a supe- 
 rior one ^ : And it has been holden, that the latter 
 statute \ as well as the 22 & 23 Car. II. c. 9. % 
 only restrains the court from awarding more costs 
 than damages; but the jury, not being restrained 
 thereby, may give what costs they please. 
 
 The restraint put upon the plaintiff's general 
 right to costs, by the 22 & 23 Car. II. c. 9. has 
 been since partly taken off, by subsequent statutes. 
 Thus, by the statute 4 ^ 5 IV. & ilf. c. 23. § 10. 
 after reciting, that great mischiefs ensue by infe- 
 rior tradsemen, apprentices, and other dissolute 
 persons, neglecting their trades and employments, 
 who follow hunting, fishing, and other game, to 
 the ruin of themselves and damage of their neigh- 
 bours, it is enacted, that '' if any such person shall 
 *' presume to hunt, hawk, fish, or fowl, (unless in 
 " company with the master of such apprentice, duly 
 " qualified by law,) such person shall be subject to 
 " the penalties of this act, and shall or may be 
 " sued or prosecuted for his wilful trespass, in such 
 " his coming on any person's land; and if found 
 *' guilty thereof, the plaintiff shall not only reco- 
 *' ver his damages thereby sustained, but his full 
 " costs of suit; any former law to the contrary 
 " notwithstanding." It has been holden, that a 
 
 clot /iter 
 
 X 2 Lev. 124. 4 Mod. 378, y i Salk. 207. 
 9. 1 Ld. Raym. 39,5. Cos. Pr. ' Cas. Pr. C B. 45. 
 t. B. 45 («).
 
 OF COSTS. 887 
 
 clothier is an inferior tradesman, within the mean- 
 ing of this statute ^ ; and it is said, that the words 
 *' inferior tradesmen'''' extend to every tradesman 
 who is not qualified to kill game^: but this was 
 doubted in a subsequent case •", wherein the judges 
 were divided in opinion upon the question, whe- 
 ther a surgeon and apothecary should be considered 
 as an inferior tradesman. 
 
 So by the 8 & 9 /T. III. c. 11. § 4. for the pre- 
 venting of wilful and malicious trespasses, it is 
 enacted, that " in all actions of trespass, to be 
 *' commenced or prosecuted in any of his majesty's 
 *' courts of record at Westminster^ wherein at the 
 " trial of the cause it shall appear, and be certified 
 *' by the judge under his hand, upon the back of 
 " the record, that the trespass, upon which any 
 " defendant shall be found guilty, was luilfid and 
 *' malicious, the plaintiff shall recover not only his 
 " damages, but his full costs of suit; any former 
 " law to the contrary notwithstanding''." The cer- 
 tificate required by this statute, need not be grant- 
 ed at the trial of the cause ''; and if it appear on the 
 trial, that the trespass, hower trifling, was com- 
 mitted after notice, and the jury give less than 
 
 forty 
 
 a Barnes, 125. and see 1 Ld. statute, see 3 Wils. 325. 
 
 Raym. 149. Com. Rep. 26. ^ Sivinnerton v. Jarvis, E. 22 
 
 S. C. Geo. III. C. B. 1 T. R. 636. 
 
 •'2 Wils. 70. Say. Costs, 6 T. R. 1 1. 7 T. R. 449. K. B. 
 
 54. S. C. but see 2 Wils. 21. Doug. 108, 
 
 '^ For the exposition of this n. contra.
 
 888 Of COSTS. 
 
 forty shillings damages, it has been usual for t'nc 
 judge to consider himself bound to certify, that the 
 trespass was wilful and malicious, in order to entitle 
 the plaintiif to his full costs ''.* 
 
 Where the declaration consists of several counts, 
 the plaintiff in this court is only entitled to the 
 costs of such as are found for him ^; and neither 
 party is allowed the costs of those which are found 
 for the defendant ^. Where the plaintiff's decla- 
 ration consisted of two counts, to one of which the 
 defendant pleaded the general issue, which was 
 found for the plaintiff, and to the other a justifi- 
 cation, to which the plaintiff demurred, and 
 judgment was thereupon given for the defendant; 
 the court agreed, that the defendant could have 
 no costs upon the demurrer ''. But if there be two 
 distinct causes of action, in two separate counts, 
 and as to one the defendant suffers judgment to go 
 by default, and as to the other takes issue, and ob- 
 tains a verdict, he is entitled to judgment for his 
 costs on the latter count, notwithstanding the 
 
 plaintiff 
 
 • 6 T. R. 11. and see 7 T. the case put by Z,e J?/anc, Just. 
 R. 449. 8 T. R. 467. 
 
 f But it is otherwise in the s Say. Costs, 212. Doug. 
 
 Common Pleas; for there, if 677. 6 T. R. 602, 3. 2 Bos. & 
 
 the plaintiff succeed upon any Pul. 50. (6). but see 1 Wils. 
 
 one of the counts, he is enti- 331. 
 
 tied to the costs of his whole ^ Say. Costs, 211.2 Bur, 
 
 declaration, though the de- 1232. S. C. but differently re- 
 
 fendant succeed upon the ported. Tamen quare^ and see 
 
 others. Bui. M. Pri. 335. 2 the stat. 8 & 9 W. III. c. 11. 
 
 Blac.Rep. 800. 1199. 6 T. R. § 2. 
 602. 2 Bos. & Pul. 49. but see 
 
 * From the Addenda to the London edition. " The granting of a certi- 
 ficate however, upon this statute, seems to be discretionary in the 
 judge before whom the trial is had, who may certify or not, accord- 
 ing as it appears to him, under the circumstances proved, that the 
 trespass was wilful and malicious: And the judge having declined 
 to certify, in a case where notice was given by the plaintiff's wife 
 to the defendant not to enter the locus in quo in his cart, there being 
 110 road there, notwithstanding which the defendant persisted in going 
 on, in the exercise of a disputed right of common in .an adjoining in-
 
 OF COSTS. 889 
 
 plaintiff is intitled to judgment and costs on the first 
 count '. So where the declaration in trespass con- 
 sisted of one count only, to which there were seve- 
 ral pleas of justification J on which issues were taken, 
 and a new assignment on which judgment passed by 
 default, and a venire was awarded, as well to assess 
 the damages on the judgment by default, as to try 
 the issues ; all the 'issues being found for the defen- 
 dant, it was holden that he was intitled to the costs 
 of them J. 
 
 An inclosure-act directed, that the parties who 
 were dissatisfied with the determination of the com- 
 missioners, might bring actions to try their rights, 
 adding "that if the verdict should be in favour of 
 *' the commissioners' determination, the costs should 
 " be borne by the plaintiff, and if against such deter- 
 " mination, then by the proprietors at large:" A 
 proprietor brought an action, claiming nine distinct 
 rights, and recovered for three only ; and the court 
 held, that he should only have his costs on those is- 
 sues which were found for him, and that the defen- 
 dant should have his costs of the other issues'". 
 
 It has already been observed \ that no costs 
 were recoverable by a defendant at common law: 
 
 And 
 
 is T. R. 654, and see 6 East, 350. 
 T.R. 602, 3. k 6 T-. R. 599. 
 
 i 8 T. R. 466. and see 1 > Ante, 864. 
 
 Vol. TT, 2G
 
 890 OF COSTS^ 
 
 And the reason seems to be, that if the plaintiff 
 failed in his suit, he was amerced to the king pro 
 falso clamore^ which was thought to be a sufficient 
 punishment, without subjecting him to the pay- 
 ment of costs. The first instance of costs being gi- 
 ven to a defendant, was in a writ of right of ward, 
 by the statute of Marleberge, (52 Heji. III.) c. 6^ 
 Afterwards, costs Mere given to the defendant in 
 eiror, by the 3 Hen. VII. c. 10. and 1? I^en. VII. 
 c. 20. and in replemn, by the 7 Hen. VIII. c. 4. and 
 21 Hen. VIII. c. 19, &.c. But in one of these cases, 
 die defendant is to be considered as an actor; and in 
 the other of them, the provision is virtually for the 
 benefit of the plaintiff in the original action "\ 
 
 In raple'Din, or second deliverance, the defendant, 
 making avowry, cognizance, or justification, for 
 rents, customs, or services, or for damage feasant, 
 is intitled to costs, by the 7 Hen. VIII. c. 4, § 3. 
 and 21 Hen. VIII. c. 19. \ 3. if the avowry, cog- 
 nizance, or justification be found for him, or the 
 plaintiff be nonsuit, or otherwise barred; which 
 statutes extend to avowries, &c. made by an 
 executor", or for an estray ", and as it should seem, 
 for an amercefuent by a court-leef; but not to 
 pleas of prisel en auter lieu., upon which the ^vrit is 
 abated '*, or to pleas of property in the thing dis- 
 trained. 
 
 r 
 
 m Say. Costs, 70. Cro. Eliz. 300. semb. contra. 
 
 "2 Rol. Rep. 457. i Com. Rep. 122.2 Ld. 
 
 o Cro. Eliz. 330. Ruym. 788. S. C 
 
 p Cro. Jac. 520. but see
 
 OF COSTS. 891 
 
 trained'. By the 17 Car. II. c. r. § 2. the defen- 
 dant obtaining judgment thereon, for the arrearages 
 of rent, or value of the goods distrained, is also in- 
 titled to his y«// costs of suit And by the 11 Geo. 
 JI. c. 19. § 22. if the defendant avow, or make cog- 
 nisance in replemn^ upon a distress for rent, relief, 
 heriot, or other service, and the plaintiff be nonsuit, 
 discontinue his action, or have judgment against him, 
 the defendant shall recover double costs of suit. But 
 this latter statute does not extend to a rent-charge % 
 or seisure for a heriot custom ^: And where by a canal 
 act, the company were authorised to take certain 
 lands for the purposes of the act, on making certain 
 payments, either by annual rents or sums in gross; 
 and the persons from \\hom the land was to be 
 taken, were empowered to distrain the goods of the 
 company, ev^en off the premises, incase of non-pay- 
 ment of such sums; an avowant, stating a distress 
 under this act of parliament, was holden not to be 
 intitled, on obtaining a verdict, to double costs un- 
 der the statute of 11 Geo. II. c. 19. § 22 ". 
 
 By the statute 23 Hen. VIII. c. 15. § 1. it was 
 enacted, that *' in trespass upon the statute 5 Rich. 
 *' II. debt, covenant, detinue, account, trespass 
 *' on the case, or upon any statute for an offence 
 *' or wrong personal, immediatelj^ supposed to be 
 " done to the plaintiff, if the plaintiff, after the 
 
 *' appear- 
 
 >• Hardr. 153. Say. Costs, 107. 
 "Willes, 429. 1 Bos. 8c " 7 T. R. 500. and see I 
 
 Pul. 214. Bos. & Pul.213. S. P 
 f Barnes, 148. 2 Wils, 28,
 
 892 OF COSTS. 
 
 " appearance of the defendant, be nonsuited, or a 
 " verdict pass against him, the defendant shall have 
 *' judgment to recover his costs against the plaintiff, 
 " to be assessed and taxed by the discretion of the 
 ''judge or judges of the court where such action 
 " shall be commenced or sued; and shall have such 
 " piocess and execution for the recovery of the same, 
 " against the plaintiff, as the plaintiff should or might 
 " have had against the defendant, in case judgment 
 ^' had been given for the plaintiff." 
 
 Execiims and administrators ai'e not particularly 
 excepted out of the statute 23 Hen. VIII. c. 15; 
 yet as that statute only relates to contracts made 
 with, or wrongs done to the plaintiff'', it has been 
 uniformly holden ", that they are not liable to costs, 
 upon a nonsuit or verdict, where they necessarily 
 sue in their representative character, and cannot 
 bring the action in their own right; as upon a con- 
 tract entered into with the testator or intestate '', 
 
 or 
 V 2 Str. 1 107. executor or administrator, ne- 
 
 ^■^ Cro. Eliz. 503. Cro. Jac. cessarily suing as such, upon 
 229. 2 Bulst. 261. 1 Salk. a contract entered into with 
 207. 314. 3 Bur. 1586. Say. the testator or intestate, is 
 Costs, 97. not made liable to costs by 
 
 ^ T. Jon. 47. 1 Vent. 92. the statute, and no costs can 
 2 Ld. Raym. 1414. 1 Str. be awarded against him on 
 682. S. C. Cas. Pr. C. B. record; yet in a late case, 
 157. Pr. Reg. 118. S. C. where the plaintiff sued as ad- 
 Barnes, 141. 1 H. Blac. 528. ministrator, upon a contract 
 1 Bo . £c Pul. 445. 2 Bos. Sc made with his intestate, and 
 Pul. 253. 2 Eastj 395. Cookand assigned by the plaintiff to J. 
 others^ Executors, v. Lucas, E. S. for whose benefit the ac- 
 42 G. III. But though an tion was brought, and it ap- 
 peared 
 
 III
 
 OF COSTS. 
 
 8% 
 
 or lor a wrong done in his life-time ^. But where 
 the. cause of action arises after the death of the tes- 
 tator or intestate, and the plaintiff may sue thereon 
 in his own right, he shall not be excused from the 
 payment of costs, though he bring the action as 
 executor or administrator; as upon a contract % ex- 
 press or implied, or in trover ^, for a conversion af- 
 ter the death of the testator or intestate : And exe- 
 cutors or administrators are not necessarily ex- 
 empted from costs, on interlocutory motions ''. An 
 executor or administrator is liable to costs, upon a 
 judgment of non-pros "■ : And where he has know- 
 ingly brought a wrong action, or otherwise been 
 guilty of a ivilfid default, he shall pay costs upon a 
 discontinuance ^, or for not proceeding to trial ac- 
 cording to notice " ; but otherwise he is not liable 
 
 to 
 
 peared in evidence that the 
 contract had been annulled, 
 with the privity both of the 
 plaintiff and J. S. and that the 
 former was indemnified by 
 the latter; a verdict being 
 found for the defendant, the 
 court of common pleas made 
 a rule upon the plaintiff, to 
 pay the defendant his costs, 
 as for a contempt, in fraudu- 
 lently abusing the process of 
 the court. 3 Bos. 8c Pul. 115. 
 
 y Barnes, 129. 
 
 »6 Mod. 91. 181. 1 Salk. 
 207. S. C. 1 Ld. Raym. 
 436. 1 Str. 682. Barnes, 119. 
 
 2 Str. 1106. 4 T. R. 277. 
 5 T. R. 234. 2 East, 396. 
 
 •^ Com. Rep. 162. Cas. Pr. 
 C. B. 61. Barnes, 132. Cas. 
 tcwfi. Hardw. 204. 7 T. R. 
 358. Monkland v. De Grainge, 
 M. 41 G. III. but see 3 Lev. 
 60. semb. contra. 
 
 b Ptr Cur. M. 42 G. III. 
 
 '^ Cas. Pr. C. B. 14. 157,8. 
 
 3 Bur. 1585. 6 T. R. 654. 
 
 'I Cas. Pr. C. B. 79. 3 Bur. 
 1451. 1 Blac. Rep. 451. S. 
 C. Arde, 628. 
 
 e Cas. Pr. C.B. 158. 3 Bur 
 1585. 1 H. Blac. 217,
 
 894 oy COSTS. 
 
 to costs, in either of these cases ^ Nor, where he 
 merely sues en aiiter droit, is he liable to costs, upon 
 a judgment as in case of a nonsuit ^. 
 
 Executors and administrators are liable to costs, 
 when defendants, if they plead falsely'^'; and the 
 judgment in such case is, that the costs be levied, of 
 the goods of the testator or intestate, if the defen- 
 dant hath so much thereof in his hands to be ad- 
 ministered, and if not, de bonis propriis \ A bank- 
 rupt sued as executor, pleaded a false plea, and 
 it being found against him, the plaintiff' had judg- 
 ment for the costs de bonis propriis, after which he 
 had obtained his certificate; and the court held, 
 that this judgment for the costs was not discharged 
 by the certificate ''. But where an executor or ad- 
 ministrator pleads plene administra'vit, and the plain- 
 tiff, admitting the truth of the plea, takes judg- 
 ment of assets in futiiro, the defendant is not lia- 
 ble to costs '. So where an executor or adminis- 
 trator pleads several pleas to the whole declaration, 
 
 as 
 
 f2Str. 871. Barnes, 133. termined in the Common 
 
 4 Bur. 1927. Say. Costs, 96, Pleas: and it seems that th6 
 
 7. S. C. defendant is not liable to costs, 
 
 8 4 Bur. 1928. Per Cur. where he pleads /i/e-wc arfTwznz-s- 
 
 T. 37 Geo. III. Barnes, 130. travH firxter, and the plain- 
 
 2 H. Blac. 277. 2 East, 396. tiff, admitting the truth of the 
 
 >i Plowd. 183, Hut. 69.79. plea, takes judgment of the 
 
 ■' 4 T. R. 648. 7 T. Pv. 359. assets admitted in part, and 
 
 k 3 Bur. 1368. 1 Blac. Rep. for the residue, of assets my«- 
 
 400. S. C. ^w/p, 182. iuro. See Rast. Ent. 323. 8 
 
 > Imp; K. B. 428. where Co. 134. 2 Saund. 226. Sid. 
 
 it is said to have been so de- 448. S. C.
 
 OF COSTS. 895 
 
 .i}i noil assumpsit and pkne administra'uk, and one of 
 them is found for him, he is intitled to the postea 
 and costs, though the other plea be found against 
 him. But if the plaintiff take judgment of assets 
 infutiiro, upon the plea oi plene adinmistramt, and 
 go to trial upon the plea of non assumpsit ^ he will 
 be intitled to costs, if he obtain a verdict; and there- 
 fore in such case, unless the defendant has a good 
 ground of defence upon jion assumpsit^ it is usual for 
 him to move to withdraw his plea, which the court 
 will permit him to do, upon payment of costs ™. 
 
 There being still many cases, in which the de- 
 fendant was not aided by the provisions of the be- 
 fore-mentioned statutes ", it was enacted by the sta- 
 tute 4 Jac. I. c. 3. that " if any person shall com- 
 " mence in any court, any action of trespass, 
 " ejectione fir may or any other action whatsoever, 
 *' wherein the plaintiff or demandant might have 
 " costs, in case judgment should be given for him, 
 " and the plaintiff or demandant shall be non- 
 *' suited therein, after the appearance of the de- 
 *' fendant, or a verdict shall pass against him by^ 
 " lawful trial, that then the defendant, in every 
 " such action, shall have judgment to recover his 
 " costs against the plaintiff or demandant, to be 
 " assessed and levied in like manner as upon the 
 " 23 Hen. VIII. c. 15." By the above statute, 
 the defendant is intitled to costs, on a nonsuit or 
 
 verdict. 
 
 n» 2 Blac. Rep. 1275. Bui. AY. Prl. .'3.^i. 
 
 " 2 Leon. 9. 3 Leon. 92.
 
 896. OF COSTS. 
 
 verdict, in all cases where the plaintiff would have 
 been entitled to them, if he had obtained judgment; 
 as in assumpsit ", &:c. And though the declaration 
 be insufficient, so that the plaintiff could not have 
 had costs thereon, the defendant is nevertheless in- 
 titled to costs, for the unjust vexation p. But this 
 statute, being framed upon the model of the 23 Hen. 
 Vill. c. 15. does not extend, any more than that, 
 to actions brought by executors or administrators '^. 
 
 The statutes which have been hitherto mentioned, 
 as giving costs to defendants, only relate to cases 
 where the plaintiff is nonsuited, or has a verdict 
 against him. But there are other statutes, by which 
 the defendant is intitled to costs upon a nolle prose- 
 qui^ ?ion-pros^ discontinuance, or demurrer; or where 
 the plaintiff does not recover the amount of the sum 
 for which the defendant was arrested, provided it ap- 
 pear that he had not any reasonable or probable cause 
 for arresting him to that amount, and the court shall 
 thereupon make a rule or order for the allowance of 
 such costs. 
 
 By the 8 Eliz. c. 2. " upon process issuing out 
 " of the court of King's Bench, if the plaintiff do 
 *' not declare in three days after bail put in, or 
 " if after declaration, he do not prosecute his suit 
 " with effect, but willingly suffer the same to be 
 *■' delayed or discontinued, or he be nonsuited 
 " therein, the judges, by their discretions, shall 
 " award to the defendant his costs, damages and 
 " charges in that behalf sustained." If the plaintiff 
 enter a 7iolle prosequi^ the defendant is intitled to 
 costs upon this statute \ But it does not extend, 
 
 an}' 
 
 ' Ante, 865. but see Cro. Jac. 158, 9. semh 
 
 I'Moor, 625. 1 Bulst. 189. contra. 
 .1 Bulst. 248. Hob. 219. q Gilb. C. P. 271. 
 Hut. 16. S. C. Cro. Car. 17. v •• .t t. R. 511.
 
 OF COSTS. 897 
 
 any more than the former, to actions brought by exe- 
 cutors and administrators ' in their representative cha- 
 racter. 
 
 By the 13 Car. II. stat. 2. c. 2. ^ 3. it is enacted, 
 that " upon an appearance entered for the defen- 
 *' dant by attorney, of the term wherein the pro- 
 *' cess is returnable, unless the plaintiff shall put 
 " into the court from whence the process issued, 
 " his bill or declaration against the defendant, in 
 " some personal action or ejectment of farm, be- 
 *' fore the end of the term next following after 
 " appearance, a nonsuit for want of a declaration 
 *' may be entered against him; and the defendant 
 " shall have judgment to recover costs against the 
 " plaintiff, to be taxed and levied in like manner as 
 " upon the 23 Hen, VIII. c. 15." 
 
 And still further to discourage the bringing of 
 frivolous and A'cxatious actions, it is enacted, by 
 the statute 8 & 9 /T. III. c. 11. § 2. tha! " if any 
 *' person shall commence or prosecute any action, 
 *' in any court of record, wherein upon demurrer, 
 " eitlier by plaintiff or defendant, demandant or 
 " tenant, judgment shall be given by the court 
 " against the plaintiff or demandant, the defendant 
 " or tenant shall have judgment to recover his costs, 
 *• and have execution for the same by capias ad sa- 
 " tisfaciendum, fieri facias^ or elegit.'^'' This statute 
 
 does 
 
 s Cro. Eliz. 69. Cro. Jac. 361. 
 Vol. IT. 2 H
 
 898 
 
 Oi- COSTS. 
 
 does not extend to demurrers to pleas in abatement "^ ; 
 nor any action, wherein the defendant would not have 
 been entitled to costs, upon a nonsuit or verdict ''. * 
 The plaintiff, we may remember, is not entitled to 
 costs in a popular action, for the whole or part of the 
 penalty given by statute to a common informer, 
 unless they are expressly given him by the statute ^'. 
 Nor was the defendant entitled to costs in such an 
 action, until the statute 18 Eliz. c. 5. ^ 3. (made 
 perpetual by the 27 E/iz. c. 10.) by which it is en- 
 acted, that " if any common informer shall willingly 
 *' delay his suit, or shall discontinue, or be nonsuit, 
 *' or shall have the matter pass against him therein 
 •' b}^ verdict or judgment in law, the said informer 
 •' shall pay to the defendant his costs, charges, and 
 "' damages, to be assigned by the court in which the 
 '' suit shall be attempted:" With a proviso, that 
 '' this act shall not extend to any officer, who in re- 
 '• spect of his office, has heretofore usually sued 
 " upon penal laws; nor to any officer, suing only 
 '' for matters concerning his office"''." This act of 
 
 parliament, 
 
 M. Pri. 324. and see the sta- 
 tute 24 Hen. VIII. c. 8. which 
 exempts plamtiffs, suing to 
 the use ot the king, in any 
 action whatsoever, from the 
 payment of costs, in case they 
 be nonsuited, or a verdict pass 
 against them. See also 7 T. 
 R. 367. 
 
 = 1 Ld. Raym. 337. 1 Salk. 
 194. 12 Mod. 195. Comb. 
 482. S. C. 2 Ld. Raym. 992. 
 1 Salk. 194. 6 Mod. 88. S. C. 
 
 "Cas. Pr. C. B. 25. 1 H. 
 Blac. 530. but see Cas. Pr. C. 
 B. 4. contra. 
 
 V Ante, 866. 
 
 ■^' 2 Ld. Raym. 1333. Bui. 
 
 • From tr.c Addenda to the London Edition. " And for the more ef- 
 fectual prevention of frivolous and vexatious arrests and suits, it is 
 enacted by the statute 43 Geo. III. c. 46. $ 3. that " in all actions to be 
 '* brought in Eni^land or Ireland, wherein the defendant or defendants 
 " shall be arrested and held to special bail, and wherein the plaintiff 
 '' or plaintiffs shall not recover the amount of the sum for which the 
 " defendant or defendants in sucli actions shall have been so arrested 
 " and held to special bail, such defendant or defendants shall be entit- 
 "■ led to costs of suit, to be taxed according to the custom of the 
 
 " court
 
 OF COSTS. 899 
 
 parliament, which seems to give costs upon arrest 
 of judgment ""j extends to actions brought upon a 
 subsequent statute ^, or one that is repealed ' ; and al- 
 so to actions qui tarn, for part of a penalty, as well as 
 where the whole is given to a common informer ^ : 
 But it does not extend to actions, brought by the 
 party grieved, upon a remedial statute ^. 
 
 Where there are several defendants, who succeed 
 in the action, the plaintiff may pay costs to which of 
 them he pleases ": And if they fail, each of them is 
 answerable for the whole costs. Thus, where an 
 ejectment was brought against several defendants, 
 who defended severally, and at the assizes one of 
 them confessed lease, entry and ouster, and had a 
 verdict against him, but the others did not confess; 
 the court upon application said, the officer must tax 
 the same costs against all the defendants ; and that if 
 the plaintiff, after he had satisfaction against one, 
 should take out execution against another, the latter 
 might apply to the court ^. 
 
 Where one of several defendants lets judgment 
 go by default, and the other pleads a plea which 
 goes to the whole declaration, and shews that the 
 
 plaintiff 
 
 ^ Gilb. C. P. 271. but see Vin. Abr. 341, 2. S. C. 
 
 Hul. Costs, 203. b 1 And. 116. 2 Leon. 116. 
 
 y Willes, 392. 440. 1 Wils. 4 Leon. 55. Cro. Eliz. 177. 
 
 177. Hut. 22. 1 Salk. 30. 
 
 z Hut. 35, 6. 2 Keb. 106. c i Str. 516.2 Str. 1203. 
 
 ^ Cowp. 366. Say. Costs, 75. '^ Bui. Mi. Pri. 335, 6. 
 S. C. and see 2 Str. 1103. 6 
 
 " court in which such action shall have been bioupfht; provided that 
 " it shall be made appe:u', to the satisfaction of the court in which 
 " such action is broup^'ht, upon motion to be made in court for that 
 " purpose, and upon hearin,^ the parlies by affidavit, tliat the plaintiff' 
 " or plaintiffs in such action had not any reasonable or probable cause 
 •' for causing the defendant or defendants to be arrested and held to 
 " special bail in such amount as aforesaid, and provided such court shall 
 " thereupon, by a rule or order of the same court, direct that such 
 " costs shall be allowed to ihe defendant o'* "defendants: And the 
 
 " plaintiff"
 
 900 OF COSTS. 
 
 plaintiff had no cause of action, if this plea be found 
 for the defendant who pleaded it, he shall have costs ; 
 and being an absolute bar, the other defendant shall 
 have the benefit of it, and shall not pay costs to the 
 plaintiff ^ But where the plea does not go to the 
 whole, but is merely in discharge of the party plead- 
 ing it, there the other party shall not have the bene- 
 fit of it; but shall pay costs, though it be found 
 against the plaintiff'. 
 
 Before the statute ShOlf. III. c. 11. if one of 
 several defendants had been acquitted^ he was not 
 entitled to his costs; the courts construing the 
 former acts to relate only to the case of a total ac- 
 quittal, of all the defendants s. This being found 
 inconvenient, it was enacted by the same statute, 
 § 1. that " where several persons shall be made 
 " defendants, to any action of trespass, assault, 
 "false imprisonment, or c'jectione firvia^ and any 
 " one or more of them shall be, upon the trial 
 " thereof, acquitted by verdict, every person so 
 " acquitted shall recover his costs of suit, in like 
 " manner as if the verdict had been given against 
 *' the plaintiff, and acquitted all the defendants; 
 '* unless the judge, before whom the cause is 
 
 " tried, 
 
 e Co. Lit. 125. Cro. Jac. Keg. 102.S. C. 
 
 134. 1 Lev. 63. 1 Sid. 76. 1 ^ Id. ibid. 1 Wils. 89. 3 T. 
 
 Keb. 284. S. C. 2 Ld. Raym. R. 656. 
 
 1372. 1 Str. 610. 8 Mod. 217. K 2 Str. 1005. and seel Salk. 
 
 S. C. Cas. Pr. C. B. 107. Pr. 194. 
 
 " plaintiff or plaintiffs sliall, upcm such rule or order beintj made as 
 ■' aforesaid, be disabled from takinc" out any execution for Die sum 
 " recovered in any sucli action, unless the same shall exceed, and 
 " then in such sum only as the same shall exceed, the amoimt of the 
 " taxed costs of the defendant or defendants in sucli action; and in 
 " case the simi recovered in any such action shall be less than the 
 " amount of the costs of the defendant or defendants to he taxed as 
 " aforesaid, that then the defendant or defendants shall be entitled, 
 " after deducting tlie sum of money recovered bv the plaintiff or plain- 
 
 " tiffsi
 
 OF COSTS. 901 
 
 " tried, shall immediately after the trial thereof, in 
 " open court, certify upon the record under his hand, 
 " that there was a reasonable cause for making such 
 *' person a defendant." This statute is confined to the 
 particular actions therein mentioned; and does not 
 extend to an action of trespass upon the case '', nor 
 consequently to an action of trover ': neither does it 
 extend to an action of rcplemn '', or to an action of 
 debt on bond against executors, one of whom was 
 acquitted on the plea of plerie admimstramt prater '. 
 When a feigned issue is ordered by a court of 
 /aiu, whether it be in a civil or criminal proceed- 
 ing, the costs always follow the verdict, and must 
 be paid to the party obtaining it "". But when a 
 feigned issue is ordered by a court of equity^ the 
 costs do not follow the verdict, as a matter of 
 course; but the finding of the jury is returned back 
 to the court which ordered the issue, and the costs 
 there arc in the discretion of the court "". Where 
 
 the 
 
 '' 2 Str. 1005. 69. 204. But in the case of 
 
 ' Barnes, 139. Hoskins v. Ld. Berkeley, (4 T. 
 
 k 3 Bur. 1284. 1 Blac. Rep. R. 402.) tlie court strongly 
 
 355. Say. Costs, 215. S. C. intimated an opinion, that as 
 
 ' Duke ofJVorfolk v. Anthony feigned issues were only grant- 
 
 and another, E. 42 G. III. ed with the leave of the court, 
 
 '" Still and Rogers, 1 Lil. P. it would be prudent in future, 
 
 R. 344. Per //o//r,Ch. J. Barnes, when they permitted such is- 
 
 130. 1 Wils. 261. 331. Say. sues to be tried, to compel the 
 
 Rep. 24. 1 Wils. 324. S. C. parties to consent, that the 
 
 and see Biu't. Prac. Excheq. costs should be in the discre- 
 
 248,9. Peake, Cas. M. Pri. tion of the court. 
 
 " tiffs in such nction, from the amount of liis or their costs so to be 
 " taxed as aforesaid, to t.ike out execution for such costs, in like nian- 
 " ner as a defendant or defendants may now by law bavc execution for 
 " costs in other cases."
 
 -90f^ OF COSTS. 
 
 the issue is ordered by a court of law, on a rule for 
 an information ", or motion for an attachment ", the 
 costs of the original rule or motion do not in gene^- 
 ral follow the verdict, but only the costs of the feign- 
 ed issue; which costs are to be reckoned from the 
 time when the feigned issue Mas first ordered and 
 agreed to ''. Yet, m here it was ordered by the con- 
 sent-rule, that the costs should abide the event of the 
 issue, the court directed the "iXihole costs to be paid 
 under it ''. 
 
 Having thus shewn, in what cases the parties are 
 entided to costs, I shall proceed to consider, what 
 costs they are respectively entitled to, with the means 
 of taxing and recovering them, as between jf)<3;r{y and 
 party. 
 
 Where the plaintiff' recovers single damages, he 
 is only entitled to single costs, unless more be ex- 
 pressly given him by statute: But if double or tre- 
 ble damages are given by a statute, subsequent to 
 the statute of Gloucester, in a case wherein single 
 damages were before recoverable, the plaintiff is 
 entitled to double or treble costs, although the sta- 
 tute be silent respecting them "" ; as in an action 
 upon the 2 Hen. IV. c. 11, &c '. In some cases, 
 
 double 
 
 " Say. Rep. 229. 1 Bur. 603. 'i 2 Bur. 1021. 
 
 Say. Costs, 144. S. C ' «■ Say. Costs, 22S. 
 
 o Suy. Rep. 253. ' Jnic, 865 
 " 1 Bur. 604.
 
 or COSTS. 903 
 
 double and treble costs are expressly given to the 
 plaintiff; as upon the game-laws, by the statute 
 
 2 Geo. III. c. 19. \ 5. And wherever a plaintiff is 
 entitled to double or treble costs, the costs given by 
 the court de incremento are to be doubled or trebled, 
 as well as diose given by the jury '. But double or 
 treble costs are not to be understood to mean, accord- 
 ing to their literal import, twice or thrice the amount 
 of single costs. Where a statute gives double costs, 
 they are calculated thus: 1. the common costs; and 
 then halftht common costs: If treble costs, 1. the 
 common costs; 2. half of these; and then half of the 
 latter ". 
 
 Double or treble costs are also in some cases ex- 
 pressly given to the defendant; as in actions against 
 justices of the peace, constables, &c. by the 7 
 Jac. 1. c. 5. '' (made perpetual by the 21 Jac, I. 
 c. 12. \ 2.); for distresses for rents and services, 
 by the 11 Geo. II. c. 19. \ 21, 2.; and against 
 officers of the excise or customs, by the 23 Geo. III. 
 c. 70. \ 34. and 24 Geo. III. sess. 2. c. 47. \ 'iS. 
 In these and similar cases, where it does not ap- 
 pear, on the face of the record, that the defen- 
 dant is entided to the benefit of the act, (as where 
 
 he 
 
 '2 Leon. 52.Cro. Eliz. 582. v- This statute does not ex- 
 
 3 Lev. 351. Garth. 297. 321. tend to actions for a merejio//- 
 1 Salk. 205. 1 Ld. Raym. 19, /caswncf, but only where sonie- 
 S. C. 2 Str. 1048. but see 1 thing is done by the officers. 
 T. R. 252. 2 Lev. 250. 3 East,,92. 
 
 " Table of Costs, in firincip.
 
 904 OF COSTS. 
 
 he pleads the general issue,) and riiere is no parti- 
 cular mode appointed for recovery of the costs, 
 the proper mode, after a nonsuit or verdict for the 
 defendant, is to apply to the court, upon an affida- 
 vit of the facts, for leave to enter a suggestion on 
 the roll ^''. And it cannot be done by rule of court '', 
 unless where the plaintiff moves for leave to discon- 
 tinue, on payment of costs; in which case, the court 
 may make it part of the rule, that he shall pay dou- 
 ble or treble costs ^. But where a particular mode is 
 appointed by statute, for the recovery of double or 
 treble costs, as by the certificate of the judge who 
 tried the cause, on the 7 Jac. I. c. 5. there that parti- 
 cular mode must be observed "^ : so that if the judge 
 certify, there is no need of a suggestion ; and if he 
 do not, it is of no avail, except where judgment goes 
 by default ^. 
 
 Costs are taxed by the master, upon a bill made 
 out by the attorney for the prevailing party; or 
 more frequently without a bill, upon a view of the 
 proceedings; and if there have been any extra ex- 
 pences, which do not appear on the face of the 
 proceedings, there should be an affidavit made of 
 such expences, to warrant the allowance of them; 
 
 which 
 
 "' 1 Str. 49, 50. Cas. Pr. y 2 Str. 974. Cas. Temti. 
 
 C. B. 16. Cas. Temfi, Hardw. Hardw. 125. 
 
 126. Id. 138. 2 Str. 1021. S. ^ 2 Vent. 45. Doug. 307, 8. 
 
 C. Say. Rep. 214. 3 Wils. 7 T. R. 448. but see Doug. 
 
 442. 308. n. 
 
 X 1 Str. 50. '»Cas. TVwz/K Hardw. 138, P
 
 OF COSTS. 905 
 
 which is called an affidavit of increased costs ''. It is 
 usual to give notice to the opposite attorney, of the 
 time when the costs are intended to be taxed; but 
 in order to enforce it, there must be a rule to be pre- 
 sent at taxing costs ": which rule is obtained from 
 the clerk of the rules, and a copy of it should be 
 duly served ; after which, if the costs are taxed with- 
 out notice, the taxation is irregular, and the attorney 
 liable to an attachment. 
 
 The means of recovering costs, as between party 
 and party, are by execution or action, upon a judg- 
 ment obtained for them; or by attachment, upon a 
 rule of court '^ Thus in ejectment, where there is a 
 verdict and judgment against the tenant, execution 
 may be taken out, or an action brought thereon, for 
 the costs ^: but where the plaintiff is nonsuited, for 
 the defendant's not confessing lease entry and ouster, 
 the lessor of the plaintiff must proceed by attach- 
 ment, upon the consent-rule K And so where the 
 nominal plaintifl' is nonsuited upon the merits, or has 
 a verdict and judgment against him, the only remedy 
 is by attachment, against the lessor of the plaintiffs. 
 
 In proceeding by attachment, a copy of the rule, 
 with the officer's allocatur thereon, should be per- 
 sonally 
 
 >• Append. Chap. XL. § 3. f Id. ibid. 1 Salk. 259. 
 
 ^ Id.%2. Barnes, 182. 
 <i 2 H. Blac. 248. k Run. Eject. 415, 16; 7¥//j/ 
 
 « Run. Eject. 415. and Baily, Mich. 6 Geo. II. 
 
 Vol. II. S I
 
 906 OF COSTS- 
 
 sonally '' served on the party liable to the payment of 
 costs ; and at the same time, the original rule should 
 be shewn to him ', and a demand of payment made '': 
 And where the costs are ordered to be paid to the 
 attorney, the demand may be by the acting attorney 
 in the cause, although he act in the name of another 
 attorney ^ And if the costs be not paid, the court, 
 upon an affidavit of the circumstances, will grant an 
 attachment. In this court, the rule for an attachment 
 is absolute in the first instance '" ; and may be moved 
 for on the last day of term ". 
 
 To assist the parties in the recovery of costs, they 
 are allowed to deduct or set off the costs in one ac- 
 tion, against those in another. This practice, how- 
 ever agreeable to natural justice, does not seem to 
 have obtained till lately, in the court of King's 
 Bench": But in the Common Pleas, it has been 
 frequently allowed; and that, not only where the 
 parties have been the same ^', but also where they 
 have been in some measure different. Thus, a party 
 has been permitted to set off a separate demand, 
 
 for 
 
 h 3 T. R. 35 1 . Pope V. Smithy " 5 Bur. 2686. 
 
 fier Cur. ° 2 Str. 891. 1203. Bui. A7. 
 
 i Id. ibid. Pri. 336. 4 T. R. 124. 8 T. 
 
 k Hubbard v. Norton^ H. 36 R. 69. 
 
 G. Ill, p Barnes, 145. 2 Blac. Rep. 
 
 J Say. Rep. 95. 826. Say. Costs, 256. S. C. 
 
 m Per Buller, Just. M. 24 Bui. M. Pri. 336. 3 Bos. 8c 
 
 Geo. III. 1 Bos Sc Pul. 477. Pul. 28,
 
 OF COSTS. 907 
 
 for costs payable to himself alone, against a joint 
 demand, for costs payable by himself and others "^ : 
 and he has also been permitted to set off a joint de- 
 mand, for costs payable to himself and another, 
 against a separate demand, for damages and costs 
 payable by himself only ^ But where, in an action 
 of trespass against four defendants, the plaintiff ob- 
 tained a verdict against one, and the other three were 
 acquitted, the court would not suffer the costs of the 
 three defendants, who were acquitted, to be deduct- 
 ed out of the plaintiff's costs, against that defendant 
 who was found guilty; declaring the motion to be 
 unprecedented '. And a judgment recovered by A. 
 against B. and C. cannot be set off, on application to 
 the general jurisdiction of the court, against another 
 judgment recovered against A. by the assignees of 
 B. under an insolvent-debtor's act; the interest of 
 third persons intervening, who have peculiar claims 
 by the statute ^ Where the application is made by 
 the party to whom the larger sum is due, the rule is 
 for a stay of proceedings, on acknowledging satis- 
 faction for the less sum " : But where the less sum 
 
 is 
 
 q Barnes, 146. but see 336. but see 1 H. Blac. 25. 
 
 Barnes, 130. 217. 657. 
 
 «• Say. Costs, 254. 2 Blac. t 3 East, 149. 
 Rep. 827. S. C. cited ; and see "^ Bui. M. PH. 336. S T 
 
 1 H. Blac. 217. 657. R. 69. 
 
 " Barnes, 145. Bui. M. Pri.
 
 908 
 
 OF COSTS. 
 
 is due to the party applying, the rule is to have it 
 deducted, and for a stay of proceedings, on payment 
 of the balance "". 
 
 V Say. Costs, 254. and see 4 T. R. 124. 
 
 I 
 
 1
 
 [ 909 ] 
 
 CHAPTER XLl. 
 
 Of Execution. 
 
 A FTER final judgment signed "*, the plaintiff may 
 in general, at any time within a year and a day, 
 and whilst the parties continue the same, take out 
 execution against the body, lands, or goods of the 
 defendant; provided there be no writ of eiTor depen- 
 ding, or agreement to the contrary ^. 
 
 There are some cases however, in which execu- 
 tion cannot be taken out, without leave of the court; 
 as where, in actions on a policy of assurance, there 
 is a verdict for the plaintiff against one of several un- 
 derwriters, and the rest have entered into the consoli- 
 dation rule, and agreed to be bound by it ". And it 
 seems, that on a writ of error coram nobis, execu- 
 tion taken out without leave of the court is irregu- 
 lar**. So where in ejectment , the landlord is admitted 
 to defend on the tenant's non-appearance, and judg- 
 ment is thereupon signed against the casual ejector, 
 with a stay of execution till further order, the lessor 
 of the plaintiff having succeeded, must apply to the 
 court for leave to take out execution; and in such 
 case, if a writ of error be brought by the landlord, 
 
 it 
 
 a And even before it is en- Hardw. 53. Jnte, 505. 
 
 tered. Gilb. C. P. 24. Law of ^ .^nte, 438, 9. 557. 
 
 Executions, 43. d Say. Rep. 166. Barnes. 
 
 '' 1 Mod. 20. Cas. tem/i. 201. 2 Blac. Rep. 1067.
 
 910 OF EXECUTION. 
 
 it may be shewn for cause, and will be a sufficient 
 reason, against taking out execution^: but if the 
 landlord omit the opportunity of shewing it for 
 cause, the execution is regular, and cannot be set 
 aside ^ Where a verdict is taken pro forma at the 
 trial, for a certain sum, subject to the award of an 
 arbitrator, the sum afterwards awarded must be taken 
 as if it had been originally found by the jury, and 
 the plaintiff is entitled to enter up judgment for the 
 amount, without first applying to the court for 
 leave ^. But where a verdict is taken, and judgment 
 entered up, for a less sum than is afterwards found 
 due by the award, the plaintiff cannot take out exe- 
 cution for the whole sum awarded, but only for the 
 sum recovered by the judgment; and must proceed 
 for the residue, by action or attachment. Bonner and 
 Charlton, E. 43 Geo. III. K. B. 
 
 Where several actions are brought against differ- 
 ent parties for the same debt, as upon a bail-bond, 
 promissory note, or bill of exchange, each party is 
 liable to an execution for the whole debt, and the 
 costs of the action against himself; but neither of 
 them is liable to the costs of the actions against the 
 other defendants ^. And in suing out execution in 
 actions upon a bail-bond, we have seen, that it is 
 usual to apportion the debt and costs in the original 
 action, amongst the different defendants, so as to 
 levy a part on each, together with his own costs '. 
 
 in an action of debt on bond for a penalty, the 
 sheriff may be directed to levy the sum secured by 
 the condition, together with the damages and costs 
 recovered by the judgment, and all subsequent costs 
 
 of 
 
 e2 Str. 1241. but see 1 Salk. 84. Barnes, 58. 
 
 f 2 Bur. 757. contra. 
 
 g 1 East, 401. 1 Bos. Sc Pul. ^ Ante, 482. 
 
 97. 480. 3 Bos. £c Pul. 244. ' Jnte, 250.
 
 OF EXECUTION. 911 
 
 of the execution, &c. ; which direction is usually in- 
 dorsed on the writ : And by a late act of parliament, 
 (43 Geo. III. c. 46. § 5.) " in every action in which 
 " the plaintiff' shall be entitled to levy under an exe- 
 ** cution against the goods of the defendant, such 
 '* plaintiff' may also levy the poundage, fees and ex- 
 " penses of the execution, over and above the sum 
 " recovered by the judgment." But this clause of the 
 act seems only to apply to cases where the execution 
 is taken out against the goods of the defendant. 
 
 The execution following the judgment, is either 
 for the plaintiff", or for the defendant: for the former, 
 upon a judgment in assumpsit j co'venant^ case, reple- 
 vin, or trespass, for the damages and costs, or in 
 debt, for the debt damages and costs recovered; to 
 be levied, in an action against an executor or admi- 
 nistrator, of the goods of the testator or intestate, in 
 the hands of the defendant, if he hath so much there- 
 of in his hands to be administered, and if not, then 
 the costs, or damages and costs, to be levied de bonis 
 propriis K Upon a judgment in detinue, the execution 
 is for the goods or their value, with damages and 
 costs. For the defendant, upon a judgment in reple- 
 vin at common law, the execution is for a return of 
 the goods; or upon the statute 17 Car. II. c. 7. for 
 the arrearages of rent and costs: and in other actions, 
 upon a judgment of non-pros, nonsuit or verdict, it 
 is for the costs only. 
 
 To obtain execution of the damages, or debt da- 
 mages and costs recovered, or the costs only, there 
 are four different species of writs: first, 2i fieri facias, 
 against the goods; secondly, an elegit, against the 
 goods, and a moiety of the lands; thirdly, c\\\ extendi 
 facias, or extent, against the w hole of the lands, or 
 
 in 
 
 > Cro. Eliz. 887. Dyer, 185 (6). Append, Chap. XLI. §6.11.
 
 912 OF EXECUTION. 
 
 in some cases, against the body lands and goods; 
 fourthly, a capias ad satisfaciendum against the per- 
 son. These are judicial writs, issuing out of the 
 court where the record is, upon which they are 
 grounded; and therefore when a record is removed 
 here from a county-palatine, or other court, by writ 
 of error, and the plaintiff is nonprossed, this court . 
 will award execution ''. So if proceedings are re- 
 moved out of the county court, or other court not 
 of record, by writ of false judgment, and the plain- 
 tiff is nonprossed, the execution shall issue out of the 
 court above ' : but in the latter case, a scire facias 
 seems to be necessary "\ 
 
 The plaintiff having sued out one writ of exe- 
 cution, may, before it is executed, abandon that 
 writ, and sue out another of a different sort: Or he 
 may have several writs, of the same sort, running 
 against the defendant or his goods at the same time, 
 in different counties. But after the execution of one 
 ^vrit, the plaintiff cannot sue out or proceed upon 
 another, of the same or a different sort, until that 
 which has been executed is returned; and then, if 
 a part only be levied upon a fieri facias^ the plain- 
 tiff may have an alias fieri facias^ or other execu- 
 tion for the remainder; or if the capias ad satisfacien- 
 dum be rendered ineffectual, by the death or escape 
 rjf the defendant, the plaintiff may have a new 
 
 wril: 
 
 '^ 3 T. R. 657. and see the 1 12. tit. Faux -judgment^ 6. 
 
 statutes 19 G. III. c. 70. 33 "' Id. Bro. Brev. Jud. 206 
 
 G. III.c. 68. 318.320. 
 
 ' Bro. Abr. tit. E.rccutiovs. 
 
 i
 
 OF EXECUTION. 913 
 
 writ for the whole: And he may sue out and 
 execute several elegits, for lands in different coun- 
 ties. 
 
 A ^eri facias is a common-law execution ; and, 
 except in a county palatine, is directed to the 
 sheriff of the county where die action is laid", 
 commanding him that of the goods and chattels of 
 the defendant, in his bailiwick, he cause to be 
 made, or levied, the sum recovered, and have it 
 before the king at PFes (minster, (by bill, or by ori- 
 ginal, wheresoever, &c.) on the return-day °, In 
 point of form, it should invariably pursue the 
 judgment; and therefore it has been hoiden, that 
 a special execution is not warranted by a general 
 judgment ''. 
 
 This writ should be tested in term-time 'J, on a day 
 after the judgment is, or may be supposed to have 
 been given: And as the judgment relates in law 
 to the first day of the term wherein it is signed, it 
 seems that t\\<t fieri facias may be tested on any day^ 
 
 in 
 
 " A writ o{ fieri facias di- Chap. XLI. § 1, 8cc. in debt^ 
 
 Fectecl in the first instance to id. § 7, &c. in detinue, id. § 9. 
 
 the bailiff of the isle of Ely, out in covenant, id. § 1 2 . in caae, id. 
 
 of this court, is erroneous and § 13, &c. in refUevin, id. § 16. 
 
 void; and the bailiff" is guilty of in trespass, id. § 17, £cc. and 
 
 a trespass in executing it. 3 {or the defendant, on a. ?ion/iros, 
 
 East, 128. &c. id. § 25, &c. 
 
 o For the forms of the writ i' 1 T. R. 80. and see 6 T. 
 
 oi fieri facials for the filaintiff, R. 525. 7 T. R. 27. 
 in assu7njisitf see Append. 'i 2 Salk. 700. 
 
 Vol. II. 2 K
 
 014 OF EXECUTION. 
 
 in that term ' ; and it should be made returnable m 
 term-time, on a day certain by bill, or by origi- 
 nal, on a general return-day. If it be tested' or 
 returnable ' out of term, or in an action by bill, if 
 it be returnable on a general return-day", it is 
 void, or at least erroneous; and may be quashed 
 or set aside on motion, together with the proceed- 
 ings that have been had under it. A writ o{ fieri 
 facias must be signed, as well as sealed "; and may 
 be amended, by adding or altering the teste or 
 return " . 
 
 At common laAV, the fieri facias had relation to 
 its testc^ and bound the defendant's goods from that 
 time ; so that if the defendant had afterwards sold 
 the goods, though bond fide and for a valuable con- 
 sideration, they were still liable to be taken in exe- 
 cution, into whose hands soever they came ". This 
 relation being productive of great mischief to pur- 
 chasers, was taken away by the statute 29 Car. II. 
 c. 3. \ 16. which enacts " that no writ ai fieri fa- 
 " cias^ or other writ of execution, shall bind the 
 " property of the goods of the party, against whom 
 " such writ of execution is sued forth, but from the 
 
 " time 
 
 r 1 Cromp. 372, w Say. Rep. 12. Davey v. 
 
 s 2 Salk. 700. HollingswQj-th and another, T. 
 
 t Davey v. HoUings'U)orth 24 Geo. III. K. B. 
 
 and another, T. 24 Geo. III. ^ Gilb. Exec. 13, 14. 8 Co. 
 
 K. B. 171. Cro. Eliz. 174.440. Cro. 
 
 " 1 Wils. 155. Car. 149. 2 Vent. f218. 7 T. 
 
 ' R. E. 1659. R. 21, 2. but see I Lev. 174.
 
 OF EXECUTION. 915 
 
 " time that such writ shall be delivered to the sheriff, 
 " under-sheriff, or coroners, to be executed; and 
 " for the better manifestation of the said time, 
 " the sheriff, under-sheriff, and coroners, their 
 " deputies and agents, shall upon the receipt of 
 *' any such writ, (without fee for doing the same,) 
 *' indorse upon the back thereof, the day of the 
 " month or year whereon he or they received the 
 " same." But neither before this statute, nor since, 
 is the property of goods altered^ but continues in the 
 defendant, till execution executed. The meaning 
 of these words, " that no writ of execution shall 
 " bind the property, but from the delivery of the 
 " writ to the sheriff" is, that after the writ is 
 so delivered, if the defendant make an assignment of 
 his goods, unless in market-overt, the sheriff may 
 take them in execution "". 
 
 This statute, being made in favoiu' of purchasers, 
 does not alter the law as between the parties: 
 therefore, if the execution be tested in the defend- 
 ant's life-time, it may be taken out^ and execu- 
 ted "^ after his death. And the sheriff deriving 
 
 his 
 
 y 2 Eq. Cas. Abr. 38 1 . and ' 20. 1 Bos. and Pul. 571. Alitcr^ 
 
 see 1 Ld. Raym. 252. if the execution be tested after 
 
 2 1 Ld. Raym. 695. Com. the defendant's death. 6 T. 
 
 Rep. 117. Bunb. 271. 12xMod. R. 368. 
 
 5. 2 Ld. Raym. 850. 7 Mod. » Qilb. Exec. 15, 16. Law 
 
 95, S. C. and see 3 P. Wms. oi Exec. 46. Cro. Eliz. 181. 
 
 399. and the case of Finch v. 1 Mod. 188. Comb. 33. Pr. 
 
 the earl of Tfmchelsea^ id. in Reg. 215. 7 T. R. 20. 
 nods. Willcs, 131. 7 T. R.
 
 916 OF EXECUTION. 
 
 his authority from the writ, it has been holden, 
 that if the plaintiff die, after a fieri facias sued out, 
 it may be executed notwithstanding; and his exe- 
 cutor or administrator shall have the money '': Or 
 if the plaintiff has made no executor, or admini- 
 stration is not committed, the money must be 
 brought into court, and there deposited, until 
 &c^ 
 
 The king is not bound by this statute'': And 
 therefore an extent at his suit, still binds from the 
 teste, or fiat of the baron on which it issues ". And 
 as between different plaintiffs, if two writs of execu- 
 tion are delivered to the sheriff on the same day, 
 he ought to execute that first which was first deli- 
 vered \ except it be fraudulent, and then he ought 
 to execute the other '^; and the court on motion 
 will not assist the plaintiff in the second execution ''. 
 But if the sheriff levy goods in execution, by vir- 
 tue of the writ last delivered, and make sale of 
 them, w hether the last writ was delivered upon the 
 same or a subsequent day, the property of the 
 goods is bound by the sale, and the party cannot 
 seize them by virtue of his execution first deli- 
 vered; 
 
 ^ Cro. Car. 459. 1 Sid. 29. 222. 2 Str. 754. S. C. 2 
 
 2 Ld. Raym. 1073. 1 Salk. Blac. Rep. 1251. 
 
 -,22. S. C. f 1 T. R. 729. 
 
 '^ Noy, 73. 2 Ld. Raym. gl Wils. 44. and see Peakc 
 
 J073, Cas. M.Pri. 66. 
 
 «l 3 Atk. 739. 1 Vez. 196. «» 1 T. R. 729. 
 
 ^ Bunb. 39. Gilb. Rep.
 
 OF EXECUTION. 917 
 
 vered; but he may have his remedy against the 
 sheriff'. 
 
 By this writ, the sheriff has authority to seize 
 and sell every thing that is a chattel, belonging to 
 the defendant ^ except his necessary wearing ap- 
 parel: It has even been holden, that if the defend- 
 ant have two gowns, the sheriff may sell one of 
 them *". And he may sell leases or terms for years, 
 and fructiis mdustriaksj as corn growing, which 
 goes to the executor'; or fixtures which may be 
 removed by the tenant "" : but furnaces, or apples 
 upon trees, which belong to the freehold, and go 
 to the heir, cannot be sold by the sheriff on this 
 writ". Money in the sheriff's hands, belonging to 
 the defendant, may be taken in execution ° : But 
 the sheriff cannot take bank-notes ", &c. nor 
 goods pawned, or gaged for debt; nor goods de- 
 mised or letten for years; nor goods distrained '^ 
 or taken and in custody of the sheriff upon a .for- 
 mer execution '^; nor any thing which cannot be 
 sold, as deeds, writings \ &.c. 
 
 In 
 
 i 1 Ld. Raym. 252. 1 Sulk. " Gilb. Exec. 19. 
 
 320. Garth. 419. S. C. and see » Doug. 231. 
 
 the case of Rybot v. Peckham, p Cas. temp. Hardw. 53. 
 
 1 T, R. 731. in notts. 4 Bac. Abr. tit. Exec. 352. 
 
 J Gilb. Exec. 19. 3 Co. 12. and see Willes, 131. 
 
 ^ Comb. 356. r Show. 173. 3 Mod. 236. 
 
 > Gilb. Exec. 19. • Cas. tanfi. Hardw. 53. 
 
 «" 1 Salk. 368. 3 Atk. 13.
 
 918 OF EXECUTION. 
 
 Ill assigning a term for years, which has been 
 taken in execution, it is not necessary for the she- 
 riff to state in the assignment, the particular inter- 
 est which the defendant has, for he may not be able 
 to come at the precise knowledge of it; but it is 
 sufficient for him to state, that the defendant is 
 possessed of the premises for a term of years, yet 
 to come and unexpired, and to assign all his interest 
 therein generally*; and it is more prudent in the 
 sheriff to state the interest in this way, for if he at- 
 tempt to state it particularly and fail, the vendee 
 will not have a good title". It is said, that if a 
 sheriff, on a Jieri facias, sell a lease or term of an 
 house, he cannot legally put the party out of pos- 
 session, and the vendee in; but the vendee must 
 bring his ejectment". This however must be 
 understood of a forcible expulsion ; for it has been 
 determined, that luider a feri facias, the sheriff 
 may justify expelling the defendant peaceably "'', or 
 in other words, if the defendant will consent to go 
 out, the sheriff may put the vendee in possession. 
 If the defendant, subsequent to the deliver)^ of the 
 writ to the sheriff, make an assignment of a lease- 
 hold estate, the judgment- creditor need not bring 
 a suit in equity to come at the estate, by setting aside 
 the assignment; but may proceed at law to sell the 
 
 term, 
 
 t 4 Co. 74. Cro. Eliz. 584. ^ 2 Show. 85. 
 S. C. w 3 T. R, 292. 
 
 a Id. ibid. 3 T. R. 294.
 
 OF EXECUTION. 919 
 
 term, and the vendee, who is generally a friend of 
 the plaintiff, will be entitled at law to the posses- 
 sion, notwithstanding such assignment ''. Where 
 the defendant has only an equity of redemption, in 
 a leasehold estate, it seems that an execution will 
 not affect it, as the legal estate is in the mortgagee ^ : 
 The plaintiff's only remedy in that case, is by 
 filing a bill in equity, to redeem the estate, by 
 paying off the principal and interest due on the 
 mortgage ^'. 
 
 The sheriff, upon this writ, may take any goods 
 which have been fraudulently sold, or conveyed 
 away by the defendant; and a principal badge of 
 fraud is the defendant's continuing in possession '^t 
 For if a man sell goods, and still continue in pos- 
 session, as visible owner of them, such sale is frau- 
 dulent and void as against creditors'*. So if a 
 creditor by fieri facias seize the goods of his 
 debtor, and suffer them to remain long in the 
 debtor's hands, and another creditor obtain a 
 subsequent judgment and execution, it has been 
 determined often, that this is evidence of fraud in 
 the first creditor, and the goods in the hands of 
 
 the 
 
 ^ 3 Atk. 739. 
 
 Pri. 205. 357, 8. 8 T. R. 
 
 y Id. ibid. 
 
 82. 521. but see 2 Bos. & 
 
 '■ Gilb. Exec. 15. and see 
 
 Pul. 59. 3 Esp. Cas. Ni. Pru 
 
 Twine's case, 3 Co. 81. 
 
 52. S. C. 
 
 Godb. 161. I F.sp. Cas. A'i. 
 
 * Prec. in Chan. 286, 7.
 
 920 OF EXECUTION. 
 
 the debtor remain liable '\ So where it was prov- 
 ed, in an action for a false return, that the war- 
 rant upon a fieri facias was directed to three 
 persons, as special bailiifs; that the plaintiff's at- 
 torney was present at the time of executing it, and 
 ordered one of the persons to use the defendant 
 kindly, and not to take any of his household goods, 
 for that his landlord would soon be in the country, 
 and pay the debt; and thereupon another of the 
 persons rode round the farm and grounds, and 
 said, " / seize all this corn and cattle^'''' and took 
 some account thereof, for the use of the plaintiff; 
 afterwards, the landlord sued out a fieri facias^ and 
 the sheriff's bailiffs not being in possession of the 
 goods, under the former writ, nor having left any 
 body for them, he got his execution executed; 
 and there was no proof that he promised to pay the 
 j)laintiff; it was left to the juiy, upon this evidence, 
 whether the first execution was intended to be, or 
 was really executed; and the jury thought it was 
 not, and gave a verdict for the sheriff, which was 
 afterwards confirmed by the court, on a motion 
 for a new trial ". 
 
 But if the defendant sell his goods bond fide^ and 
 lor a valuable consideration, before the delivery 
 of the writ to the sheriff, they cannot be taken in 
 execution; and though he sell them fraudulently, 
 
 yet 
 
 '^ Prec. in Chan. 286, r. M Wils. 44. 
 
 I Vcz. 24i. 456. 
 
 i
 
 OF EXECUTION. 921 
 
 yet if they be afterwards sold to another, bona fide ^ 
 they are not liable to be taken in the hands of die 
 second vendee "*. And if A^ indebted to B. and C, 
 after being sued to judgment and execution by B^ 
 go to C. and voluntarily give him a warrant of at- 
 torney to confess judgment, on which judgment is 
 immediately entered, and execution levied on the 
 same day on which B. \vould have been intitled to 
 execution, and had threatened to sue it out; the 
 preference so given by A. to C. is not unlawful 
 nor fraudulent, within the meaning of the -statute 
 13 £/iz. c. 5^ 
 
 In an action against one of two partners, the 
 sheriff must seize all their joint property, because 
 the moieties are undivided; for if he seize but a 
 moiety, and sell that, the other will have a right 
 to a moiety of that moiety ; but he must seize the 
 whole, and sell a moiety thereof undivided, and the 
 vendee will be tenant in common with the other 
 partner ^* 
 
 On a fieri facias, the sheriff is bound at his pe- 
 ril to take only the goods of the defendant: and 
 therefore if he take the goods of a third person, 
 though the plaintiff assure him they are the defcn- 
 dant's, he is a trespasser; for he is obliged at his 
 peril to take notice whose the goods are. And if 
 
 he 
 
 ■J Godb. 161. Rep. 277. Cowp. 449. Doug. 
 
 *= 5 T. R. 235. 650. 1 East, 367. 3 Bos. & 
 
 f 1 Salk. 392. and see 2 Ld. Piil. 254. 
 Raym. 871. Comb. 217. Com. 
 
 * From the Addenda to the London edition. " In such case, the court 
 of common pleas will not, at the request of the partnership creditors, 
 give the sheriiVtime to return the writ, until an account can be t.iken 
 of the several claims upon the partnership property. 3 Bos. & Pul. 
 288. And 2i fieri facias havinpf issued afjainst the effects of the defen- 
 <lant, who was jointly concerned in a manufactory with other persons, 
 to whom he was indebted to a greater amount than his whole share, 
 and tlie sheriff having seized the whole of the partnership property, 
 that court refused to refer it to the prothonotary, to inquire what was 
 the defendant's interest in the effects seized." .'^ Bos. i< Pul 289 
 
 Vol. II. 2L
 
 922 OF EXECUTION. 
 
 he doubt wliether the goods shewn him are the 
 defendant's, he may summon a jury, debene esse., to 
 satisfy himself^: This will justify tlie sheriiFin re- 
 turning, if it be so found, that the defendant has no 
 goods within his baiUwick; or if it be found that he 
 has, will mitigate damages in an action of trespass, 
 provided the goods should afterwards turn out not 
 to be the defendant's. And as this is not a proceed- 
 ing immediately from the court, but merely to in- 
 demnify the sheriff in making his return to the writ, 
 the court will not set aside the inquisition of a jury, 
 summoned by the sheriff to inquire in whom the 
 property of goods seized by him under 21. fieri facias 
 is vested ''. 
 
 As the sheriff cannot take the goods of a diird 
 person, so if the defendant become bankrupt^ before 
 the delivery of the writ to the sheriff, or as it 
 should seem, before it is actually executed ', the she- 
 riff cannot legally take or dispose of them, after no- 
 tice of the act of bankruptcy, and of a commission 
 sued out or docket struck: For, per Holt Ch. J. 
 "ifa writof execution be deliv^ered to the sheriff 
 against A. who becomes bankrupt before it is exe- 
 cuted, the execution is superseded; consequently, 
 the property of the goods is not absolutely bound 
 
 by 
 
 sDalt. Sher. 146. Gilb. R. 177. 
 Exec. 21. Bac. Abr. tit. Exec. ^ 6 T. R. 88. 
 352. 4 T. R. 633. 648. 7 T. ' 1 Lev. 173, 4.
 
 OF EXECUTION. 923 
 
 by the delivery of the writ to the sheriff J." But if 
 the sheriff seize and sell the goods, before he has no- 
 tice of an act of bankruptcy, &.c. he is excused''; 
 and if he sell them after such notice, though he may 
 be sued in tro'uer \ yet he is not liable to an action 
 of trespass '". An execution against the goods of a 
 bankrupt, taken out after his certificate is signed, but 
 before it is allowed, is valid": And where a defen- 
 dant was taken in execution, under similar circum- 
 stances, and paid the debt and costs to the sheriff, 
 the court on application refused to relieve him. But 
 \i2i fieri facias^ issued against a bankrupt before his 
 certificate obtained, be not executed till after, the 
 court will order the goods to be restored, even though 
 he has not pleaded the certificate •* : and if any thing 
 be alleged to invalidate the effect of the certificate, 
 the court will direct a trial on a plea of bankruptcy ''. 
 On 2i fieri facias against a husband^ it seems that 
 the sheriff cannot take in execution goods vested in 
 trustees before marriage, for the benefit of the isiife^. 
 
 And 
 
 J 1 Ld. Raym. 252. and see " JVeatly and Eaglcton^ E. 24 
 
 2Eq. Cas. Abr. 581. Geo. III. K. B. 
 
 k 1 Blac. Rep. 205. 2 Blac. p 1 Bos. 5c Pul. 427. 
 Rep. 829. S. P. 4 Id. ibid. 
 
 1 1 Burr. 20. 1 Blac. Rep. •• Cowp. 432. 3 T; R. 
 
 65. S.C. 618. and see Co. Lit. 351. a. 
 
 Bi 1 T. R.475. n. 1. but see 2 Vern. 239. 4 
 
 n/rf. 361. and see 1 Blac. T. R. 638,9. 8 T. R. 82. 
 
 Rep. 400, 521,
 
 924 OF EXECUTION. 
 
 And it has been determined at nisi prius^ that the 
 mere possession of goods is not sufficient to subject 
 them to an execution, issued against the party pos- 
 sessing them, if it be satisfactorily proved that they 
 were really and bond fide sold to a third person, as a 
 trustee for his wife, and possession taken by such 
 third person '. 
 
 On 2, fieri facias against an executor^ for his own 
 debt, the goods of the testator, in the hands of the 
 defendant, cannot be taken in execution '. But if an 
 executrix use the goods of her testator as herown, and 
 afterwards marry, and then treat them as the goods 
 of her husband, she shall not be allowed to object to 
 tlieir being taken inexecution forherhusband'sdebt". 
 
 The sheriff, upon a fieri facias, cannot justify 
 breaking open the outer door of a dwelling-house ' ; 
 but if that be open, he may, after demanding and 
 being refused admittance, break open an inner 
 door''': And as goods may be distrained, so it 
 seems they may be tiiken in execution, through 
 the windows, if open ''. When the officers are once 
 in the house, they may break open any chamber- 
 doors, or trunks, for executing the writ^, A 
 seizure of part of the goods in a house, by virtue 
 oi2i fieri facias, in the name of the whole, is a good 
 
 seizure 
 
 -^ 2 Esp. Cas. A7. Pri. 574. 5 Co. 93. Gilb. Exec. 17, 18, 
 
 * 4T. R. 621, Cowp. 1. 
 >i 1 Bos. &c Pul. 293. 2 ^^ Comb. 17. 
 Ksp. Cas. Mi. Pri. 657. S. C. ^1 Rol. Abr, 671. 
 V J 8 Ed. IV. 4. pi. 19. y 2 Show. 87. 
 
 i
 
 OF EXECUTION. 925 
 
 seizure of all ^ : And the sheriff, by the seizure, has 
 such a property in the goods, that he may maintain 
 trespass or tro'uer^ against the defendant or a third 
 person, for taking them away ^. And he may sell 
 them after the return of the writ, and even after he 
 is out of office, without a venditioni exponas ^. 
 
 But, before the removal of the goods, the sheriff 
 should take care, if the defendant be tenant of the 
 premises on which the goods are taken, that the 
 landlord is satisfied what, if any thing, is due to him, 
 not exceeding a year's rent. For by the statute 8 
 Ann. c. 14. () 1. "no goods or chattels whatsoever, 
 " lying or being in or upon any messuage, lands or 
 *' tenements, which are or shall be leased for life or 
 *' lives, term of years, at will, or otherwise, shall be 
 " liable to be taken by virtue of any execution, on 
 " any pretence whatsoever, unless the party, at whose 
 " suit the said execution is sued out, shall before the 
 *' removal of such goods from off the said premises, 
 " by virtue of such execution or extent, pay to the 
 " landlord of the said premises, or his bailiff, all 
 *' such sum or sums of money, as are or shall 
 *' be due for rent for the said premises, at the 
 " time of the taking such goods or chattels, by 
 *' virtue of such execution, provided the said ai'- 
 
 " rears 
 
 7' 2 Ld. Raym. 725. »> Cro. Jac. 73. Yelv. 44. 
 
 ^GWh.Exec. 15.2 Saund. S. C. 1 Salk. 323. 1 Vez. 
 4T. 2 Ld. Raym. 1073. 196.
 
 926 OF EXECUTION. 
 
 *" rears of rent do not amount to more than one year's 
 " rent; and in case the said arrears shall exceed one 
 " year's rent, then the said party, at whose suit such 
 " execution is sued out, paying the said landlord or 
 "his bailiff one year's rent, may proceed to execute 
 "his judgment, as he might have done before the 
 " making of this act ; and the sheriff, or other officer, 
 " is thereby empowered and required to levy, and 
 " pay to the plaintiff, as well the money so paid for 
 "rent, as the execution- money." 
 
 " Provided always, that nothing in this act con- 
 " tained shall extend, or be construed to extend, to 
 " let, hinder or prejudice her majesty, her heirs or 
 " successors, in the levying, recovering, or seizing 
 "any debts, fines, penalties or forfeitures, that are or 
 "shall be due, payable or answerable to her said 
 "majesty," he''. 
 
 This statute extends to all manner of execu- 
 tions for the subject, upon judgments for the de- 
 fendant as well as the plaintiff''; and the landlord 
 is intitled to his whole rent, without deduction 
 of poundage ^. But after he has had one year's rent 
 paid him, he is not intitled to another, upon a se- 
 cond execution^; and the ground-landlord is not 
 within the act, where there is an execution against 
 
 the 
 
 ■^ § 8. and see Bunb. 5. 269, « 1 Str. 643. 
 d 2 Wils. 140. f2 Str. 1024.
 
 OF EXECUTION. 927 
 
 the under-lessee ^. The goods of a tenant are liable 
 to a year's rent, notwithstanding an outlawry in a 
 civil suit''. And where a sheriff's officer, being in 
 possession of the tenant's effects under an outlawry, 
 made a distress for rent, and sold the goods so dis- 
 trained, and afterwards the outlawry was reversed; it 
 was ruled, that the officer washable to pay the pro- 
 duce of the goods to the landlord, in an action for 
 money had and received''. But a commission of 
 bankrupt is not considered as an execution within 
 this statute ; and as the landlord, on the one hand, 
 may distrain for his whole rent, even after an as- 
 signment and sale by the assignees, before the goods 
 are removed off the premises; so, on the other hand, 
 if he suffer the goods to be removed, without dis- 
 training, he must in general come in for his rent pro 
 rata with the other creditors '. If the sheriff remove 
 the goods, without satisfying the landlord, he is li- 
 able to an action, which may be brought by the ex- 
 ecutor or administrator of the landlord ^ ; but in or- 
 der to maintain an action, there must be a demand 
 made of the rent, before the goods are removed ': Or, 
 instead of bringing an action, the landlord may move 
 the court, that he may be paid what is due to him, 
 out of the money levied, if sufficient for the purpose, 
 or otherwise so much as it will satisfy '". 
 
 On 
 
 K2 Sir. 787, 1 Id. 97. 
 
 ''7T. R. 259. mCas. temfi. Hardw. 255. 
 
 i 1 Atk. 103,4. 2 Wils. 140. 1 Cromp. 381. 
 
 •^ 1 Str. 212. Willcs, 377. Barnes, 199.211.
 
 928 01- EXEC U HON. 
 
 On the return- day of the fieri facias^ the sheriff 
 may be called upon by rule, to return the WTit; and 
 if he do not return it, or offer a reasonable excuse, 
 the court will grant an attachment against him. But 
 if the property of the goods be disputed, which fre- 
 quently happens on a commission of bankrupt, &c. 
 the court, on the suggestion of a reasonable doubt, 
 will enlarge the time for the sheriif 's making his re- 
 turn, till the right be tried between the contending 
 parties, or one of them has given him a sufficient 
 indemnity. And accordingly in a late case, the court, 
 upon the application of the sheriff, enlarged the 
 time for his making a return to a writ oS. fieri facias ^ 
 upon suggestion of a reasonable doubt, whether the 
 goods seized under the writ were not covered by an 
 extent^ afterwards issued at the suit of the crown for 
 malt-duties, for the purpose of inducing the plaintiff^ 
 to go into the court of Exchequer, and there contest 
 the question of right with the crown, in a more eli- 
 gible manner than in this court ". 
 
 The returns, commonly made by the sheriff to 
 2i fieri facias 2iVQ first, ?mlla bona°^ which is either 
 general, that the defendant has no goods in his 
 bailiwick, whereof he can cause to be made the 
 sum directed to be levied, or any part thereof; or 
 special, with this addition, that the defendant is a 
 
 bencr 
 
 n 7 T. R. 174. and see I « Append. Chap. XLI. ^ 
 East, 338. 3 Bos. £^ Pul. 288. 33. 35.
 
 OF EXECUTIQN. ^29 
 
 beneficed clerk, having no lay fee within his baili- 
 wick''; or, being an executor or administrator, that 
 he has wasted the goods of the testator or intestate "^ ; 
 secondly ^ Jie?'i Jeci, or that die sheriff has caused to 
 be made, of the defendant's goods, the whole or a 
 part of the money, which he has ready to be paid to 
 the plaintiff; thirdly, that he has taken goods of the 
 defendant, to a certain amount, which remain in his 
 hands for want of buyers '; or fourthly, that he has 
 made his mandate to the bailiff of a libert}% who has 
 given him no answer, or returned mdla bona, &c ^ 
 
 If the sheriff return, on ?l fieri facias y that the de- 
 fendant has no goods in his bailiwick, the plaintiff, 
 if it be true, may have an alias fieri facias ", and af- 
 ter that, if necessary, a piuries ' into the same county; 
 or he may have a testatum fieri facias into a different 
 county, suggesting that the defendant has goods 
 there ^^ : And a testatum may be awarded into 
 Wales y or a county palatine ". In any of these 
 writs, there may be a clause of non omittas y ; com- 
 manding the sheriff, that he do not omit, on ac- 
 count 
 
 p Append. Chap. XLI. §34. i /(/. § 44. 
 
 q Tlies. Bre-v. 116, 17. Ap- v /rf. ibi^, 
 
 pend. Chap. XLI. § 36. w u. § 46, 48, &c. 
 
 r Append. Chap. XLI. § J' Cro. Jac. 484. and see 1 
 
 37, 8cc. Lev. 256. 29 1 . T. Raym, 206. 
 
 ^ Id. % 42, 3. 2 Saund. 193. R. H. 19 Jac. L 
 
 r/rf. § 38.41. y Append. Chap. XLL $ 45. 
 
 Vol. II. 2 M
 
 930 OF EXECUTION. 
 
 count of any liberty in his county, but that he enter 
 the same, &c. If the return be not true, the plaintiff 
 may maintain an action against the sheriff for a false 
 return. And where the sheriff returns nulla bona^ 
 and there is a recovery against him for his false return, 
 that vests no property of the goods in him or tlie 
 plaintiff; but they remain in the defendant, and are 
 liable to a subsequent execution for his debt ^. 
 
 The plaintiff cannot regularly sue out 2i fieri facias, 
 into a difFerent county from that where the action is 
 laid, without a testatum "; nor a testatum without a 
 -^x^ViQM^ fieri facias ''. But the award of a testatum 
 on the roll, is sufficient to warrant a ^my^d^^ into 
 a different count}^ "; or if a fieri facias be sued out 
 into one county, when it should have been a testatum, 
 without any ou.^\y\^ fieri facias, and the plaintiff af- 
 terwards sue out an oxi^xvi^ fieri facias, the court will 
 permit the party to amend the former, on payment 
 of costs '^; and they will not set aside a testatum, sued 
 out \vithout an oxi^msX fieri facias to warrant it, if the 
 plaintiff afterwards sue out such QiX\^vi\?\ fieri facias, 
 
 and 
 
 ''^ 2 Vern. 239. sufficient however, to verify 
 
 3 2 Blac. Rep. 694. Palter the fact of an ov\%\\\zS. fieri fa- 
 
 and Ellhon, H. 25 Geo. III. cias having been auarded, by 
 
 K. B. 3 T. R. 657. affidavit ; but the plaintiff 
 
 b 3 T. R. 388. ought to have the roll in 
 
 <= Barnes, 196, 7. and see court. -Per O^r. M. 42 G. Ill 
 
 Prac. Reg. 210. 12. It is not '^ 3 T. R. 657.
 
 OF EXECUTION. 
 
 931 
 
 and get it returned and filed, so as to be able to pro- 
 duce it on shewing cause % though a writ of error 
 has been previously brought ^. So where the record 
 was produced in court, on which an original capias 
 ad satisfaciendum was entered, with the sheriff's re- 
 turn thereto, the court permitted the plaintiff to sue 
 out and seal an original capias ad satisfaciendum^ to 
 warrant a testatum into a different county 2. And it 
 is said, that the fieri facias on which the testatum is 
 founded, is returned of course by the attornies them- 
 selves, as originals are ^. In all continued writs, the 
 alias or testatum must be tested the day the former 
 was returnable ' ; and \i2i fieri facias issue to the she- 
 riff, returnable on a general return-day, and he at 
 that day return nulla hona^ a testatum fieri facias may 
 issue on the day following, and execution thereon 
 will be good; for though, on mesne -process, there 
 can be no testatum^ till the quarto die post^ yet it is 
 otherwise in writs of execution, for on these the par- 
 ty has no day in court J. 
 
 If the sheriff return nulla bona^ and that the de- 
 fendant is a beneficed clerk, having no lay fee, there 
 goes a leijari facias to the bishop of the diocese 
 wherein the benefice is, commanding him to le- 
 vy 
 
 e2 Salk. 589, 90. Bames, g 6 T. R. 450. 
 
 200,201.208,9.11. 3 T. R. »' 2 Salk. 590, 
 388. 657. i Id. 699. 
 
 f 5 T. R. 272. j T, Jon. 200.
 
 932 OF EXECUTION. 
 
 vy the sum recovered, of the ecclesiastical ^oods and 
 chattels of the defendant ''. This writ is similar 
 to a Jieri facias; and the bishop, who is in nature 
 of a temporal officer or ecclesiastical sheriff, may 
 seize and sell the profits of the benefice ': But he 
 must return fej'i feci, and not sequestrari feci, upon 
 this writ "". He may also, like the sheriff, be cal- 
 led on by rule to return the writ; and if he make 
 a false return, will be liable to an action ". Upon 
 this writ, the bishop or his officer makes out a 
 sequestration, directed to the churclwardens, or 
 iipon a proper security, to persons of the plaintiff's 
 own appointment, requiring them to sequester the 
 tithes, and other profits of the benefice ° ; which 
 sequestration should be forthwith duly published, 
 by reading it in church during divine service, and 
 afterwards at the church-door, and fixing a copy 
 tliereon : for where a sequestration was made out, 
 and not published while the writ was in force, but 
 was stayed in the register's hands, by desire of the 
 plaintiff's attorney, the court held, that it had no 
 priority, as against other sequestrations, afterwards 
 made out and duly published ; but that if it had 
 been published, the execution would have taken 
 
 effect, 
 
 k Gilb. Exec. 26. Bac. Abr. 1 Salk. 320. 1 Ld. Raym. 265. 
 
 at. Exec. 360. Append. Chap. S. C. 
 XLI. § 5 1, Sec. o Burn, Eccles. Law, tit. Se- 
 
 > 2 Mod. 257, 8. questration, 3 V. 317. Append 
 
 ^ 1 Str. 87. Chap. XLI. §56. 
 
 * Gilb. Exec. 26. and see
 
 OF EXECUTION. 933 
 
 effect, and must have been first satisfied, notwith- 
 standing it was then returnable ^\ It is said, that 
 this writ of sequestration must be renewed every 
 term^; but it seems, that if the writ be laid and 
 executed, before the day of the return, the mesne 
 profits may be taken under it, after the writ is re- 
 turnable, otherwise not ^ 
 
 In an action against an executor or ad7ninistrator, 
 if the sheriff return nulla bona to the Jieri facias, 
 the plaintiff must proceed by scire Jieri inquiry % 
 or action of debt upon the judgment, suggesting 
 a de'uastaiyit: but if a devastavit be returned by the 
 sheriff, the plaintiff may have execution immedi- 
 ately against the defendant, by capias ad satisfacien- 
 dum S or feri facias de bonis propriis ". 
 
 li fieri feci be returned, the plaintiff may proceed 
 against the sheriff for the money, by rule of court, 
 or action of debt founded on his return ; or, though 
 no return be made, an action of debt^ account or 
 assumpsit, will still lie against the sheriff, or his 
 executors, for the money levied ^ : And in such an 
 action, the defendant cannot plead the statute of li- 
 mitations ; 
 
 V Legassickev.BishofiofEx- Chap. XLII. § 47. 
 
 eter, E. 22 Geo. III. K. B. 1 ' Append. Chap. XLI. § 
 
 Cromp. 359. 103, &c. 
 
 q 1 Cromp. 345. Wood's ^ Thcs. Brev. 46, 7. 122. 
 
 Inst. 608, 9. 125. Append. Chap. XLI. § 
 
 «■ Burn, Eccles. Law, tit. Se- 57, 8. 
 
 questration,SY.3l7. ^ Cro. Car. 539. 2 Sho\y 
 
 » Lil. Ent. 664. Append. 79. 281. Gilb. AVcc. 25,
 
 934 OF EXECUTION. 
 
 mitations; for though, till the ^vrit be returned, 
 it is not a matter of record, yet it is founded upon 
 a record, and has a strong relation to it ". If a part 
 of the money only be levied, the plaintiff may have 
 2i fieri facias for the residue""; and the first writ must 
 be returned, before a second execution can be taken 
 out; for that must be grounded on the first writ, 
 and recite that all the money was not levied thereon : 
 But if upon the first, all the money had been levied, 
 the writ need not have been returned, for no further 
 process was necessary ^ : And if nothing be levied 
 on the first writ, it need not be recited in the second. 
 If the sheriff return, that he has taken goods, 
 which remain in his hands for want of buyers, the 
 plaintiff may sue out a writ of lienditioni exponas^ 
 reciting the former writ and return, and comman- 
 ding the sheriff to expose the goods to sale, and 
 have the monies arising therefrom in court, at the 
 return of it ^ If goods are not taken to the value 
 of the whole, the plaintiff may have a 'venditioni 
 exponas for part, and 2i fieri facias for the residue, 
 in the same writ ^ ; and it seems, that a "venditioni 
 exponas may be directed to the new sheriff, where 
 
 the 
 
 w 2 Show. 79. ■^ Append. Chap. XLI. § 64. 
 
 '' Append. Chap. XLI. § Cowp. 406. but see 1 Bos. & 
 
 59, &c. Pul. 359. 
 
 y 1 Salk. 318. Gilb. Exec. ^ Thes. Brev. 305. Append 
 
 36. Chap. XLI. § 65.
 
 OF EXECUTION. 935 
 
 the old one returns, that he has taken goods, which 
 remain in his hands for want of buyers ''. But the 
 more usual way of proceeding, in such case, is by 
 writ of distringas to the new sheriff, commanding 
 him to distrain the old one, till he sell the goods % 
 &c. Of this writ there are two sorts; the first, 
 which is the more ancient, commands the sheriff, 
 to whom it is directed, to distrain the late sheriff, \ 
 so that he expose the goods to sale ^, and cause 
 the monies arising therefrom to be delivered to the 
 present sheriff, in order that such sheriff may have 
 those monies in court, at the return ^ : The other 
 writ, which is the most usual \ is to distrain the late 
 sheriff, to sell the goods, and have the money in 
 court himself ^ 
 
 If the writ of Jieri facias^ &c. be iiTcgular, the 
 defendant may move the court to set it aside, and 
 that the goods or money levied may be restored to 
 him. A third person, whose goods are taken un- 
 der it, may also move the court, to have them re- 
 stored. But if the right be not clear, the court 
 will leave him to his action against the sheriff; or 
 they will sometimes direct an issue for trying it, and 
 
 retain 
 
 ^ 2 Saund. 343. f 6 Mod. 299. 
 
 c Append. Chap. XLI. § 66, e Rast. 164. Thes. Brev. 90, 
 
 Sec. Off. Brev. 45. Append. Chap. 
 
 J Gilb. Exec.^X. XLI. § 66, &c. 2 Ld. Raym, 
 
 = 34Hen. VI. p6, 1074, 5. 1 Salk. 323. S. C. ■
 
 936' OF EXECUTION. 
 
 retain the money in court, to abide the event of the 
 trial. 
 
 Upon an erroneous judgment, if there be a regu- 
 lar writ, the party may justify under it, till the 
 judgment be reversed; for an erroneous judgment 
 is the act of the court '' : And the party need not 
 set forth in his plea, that the writ has been retur- 
 ned. But if the judgment or execution be irre- 
 gular^ the party cannot justify under it, for that is 
 a matter in the privity of himself or his attorney: 
 And if the sheriff or officer, m such case, join in 
 the same plea with the party, he forfeits the bene- 
 fit of his defence '. The sheriff or officer however 
 may justify under an irregular judgment, as well as 
 an er-oneous one; for they are not privy to the ir- 
 regularity : And so as the writ be not void, it is a 
 good justification, however irregulai-, and the pur- 
 chaser will gain a title under the sheriff; for it would 
 be very hard, if it should be at the peril of the pur- 
 chaser, \jnd.eY 2i fieri facias y whether the proceedings 
 were regular or not'^'. But a justification by the 
 sheriff or officer, under a returnable process, is ill, 
 without shewing a return of it; and if the plaintiff 
 join with the officer, there must be judgment against 
 both ^ Where the plaintiff has execution, and the 
 money is levied and paid, and the judgment is af- 
 terwards reversed, there the party shall have resti- 
 
 tut ion 
 
 h 1 Str. 509. k 1 Vez. 195. 
 
 '^ Id. ibid. 1 2 Str. 1184.
 
 OF EXECUTION. 937 
 
 tution without a scire facias ; because it appears on 
 the record that the money is paid, and there is a cer- 
 tainty of what was lost; otherwise where it was. le- 
 vied, but not paid, for then there must be a scire 
 faciasy suggesting the matter of fact, uiz. the sum 
 levied, &.c. But where judgment is set aside after 
 execution for irregularity, there needs no scire facias 
 for restitution ; but if it be not made, an attachment 
 shall be granted upon the rule, for a contempt "'. 
 
 When the sheriff has taken goods upon 2iferi fa- 
 cias, to the amount of the sum directed to be le- 
 vied, the defendant is discharged, and may plead it 
 in bar to an action of debt, or scire facias, upon the 
 judgment": But where two persons are jointly and 
 severally bound, and execution is had against one of 
 them, and his goods are seized, but not sold, this 
 cannot be pleaded in an action of debt against the 
 odier obligor ; because it is no actual satisfaction °. 
 
 After 2i fieri facias, if the plaintiff be not satisfied, 
 he may have an elegit against the goods of the de- 
 fendant, and a moiety of his lands ■', or a capias ad 
 
 satisfaciendum 
 
 « 2 Salk. 588. ^ Id. ibid. 2 Show. 394. 
 
 n 2 Ld. Raym. 1072. 1 Salk. p Append. Chap. XLI. f 
 822. S. C. 69. 
 
 Vol. II. 2N
 
 93S OF EXECUTION. 
 
 satisfaciendum against his person; or he may sue out 
 either of these writs in the first instance. 
 
 An elegit is founded on the statute Westm. 2. 
 (13 Ediv. I.) c. 18. by which it is enacted, " that 
 " when a debt is recovered or acknowledged in 
 " the king's court, or damages awarded, it shall be 
 " in the election of him who sues for such debt or 
 *' damages, to have a writ to the sheriff, for levy- 
 " ing the debt of the lands and chattels, or that the 
 " sheriff cleliver to him all the chattels of the debt- 
 " or, (except his oxen, and beasts of the plough,) 
 " and a moiety of his land, until the debt be le- 
 *' vied, by a reasonable price or extent; and if he 
 " be evicted, he shall recover by WTit of novel dis- 
 " seisifi, and aftenvards by writ of re-disseisin, if 
 *' there be occasion." The writ we are now speak- 
 ing of lies against the defendant in his life-time, or 
 his heir and tertenants after his death '^ : And it may 
 be had against peers of the realm, as well as others; 
 and also against executors and administrators, 
 upon a de'vasta'oit returned ^ But it lies not against 
 an heir, till his full age; and therefore, on a scire 
 facias brought against him, the parol shall demur, 
 because he may have a good plea to bar the exe- 
 cution, which might be mispleaded '. This writ 
 may be sued out after a year, without a scire facias, 
 upon awarding an elegit on the roll % and continuing 
 
 it 
 
 a Append. Chap. XLI. § ^ Gilb. Exec. 58. 
 70. ' Carth. 283. Append. Chap 
 
 ' I Cromp. 346. XLI. § 72..
 
 or EXECUTION, 939 
 
 at down by vkecomes non misit bre'oe; and the plain- 
 tiff may have elegits awarded into as many different 
 counties as he pleases, without being under the ne- 
 cessity of suing out testatums "*. But it is said, that if 
 he award an elegit into one county, and extend the 
 lands upon that writ, and afterwards file it, he is bar- 
 red, and cannot sue out an elegit into another count}'- '^^. 
 Upon this writ, the sheriff is to impanel a jury; 
 who are to make inquiry of all the goods and chat- 
 tels of the debtor, and to appraise the same, and also 
 to inquire as to his lands and tenements'''. The 
 goods and chattels being appraised, are to be deli- 
 vered to the plaintiff, at the price set upon them ^; 
 and in this respect, an elegit differs from ^. fieri fa- 
 cias^ upon which the sheriff cannot deliver the 
 goods, though he may sell them, to the plaintiff >'. 
 If the goods and chattels are sufficient to satisfy 
 the plaintiff's demand, the sheriff ought not to ex- 
 tend the lands', but otherwise he may extend 
 them: And he may not only extend a moiety of 
 the lands, properly so called, but also of a reversion '', 
 or rent-charge issuing out of land ''; and by the 29 
 Car. II. c. 3. lands, &c. held in trust may be ex- 
 tended, 
 
 » 1 Cromp. 546. 352. Law " Gilb. Exec. 33. 
 
 of £xec. 208. Append. Chap. y 1 Ld. Raym. 346. Bac. 
 
 XLI. § 73. Abr. tit. Exec. 352. 
 
 V 1 Cromp. 346. 352. Law ^ 1 Cromp. 346. 2 Inst 
 
 of Exec. 287. but see Gilb. 395. 
 
 Exec. 53. a Gilb. Exec. 38. 
 
 »•• Bac. Abr. tit. Exec. 349. b Id. 39. Moor, 32.
 
 940 OF EXECUTION. 
 
 tended, in the hands of trustees, for the debt of 
 cestui que trust. But copyhold lands are not exten- 
 dible ^•, nor a rent- seek '^, advowson in gross ^'j or 
 glebe belonging to a parsonage or vicarage "". A 
 term for years may be either extended, or sold as 
 part of the personalty f^: If it be extended, the 
 plaintiff is accountable for all the profits he receives 
 out of the term, upon such extent; and if he re- 
 ceive the debt out of such term, before it expires, 
 the defendant shall be restored to the term itself '', 
 but otherwise he shall keep the term, and not ac- 
 count for the profits of it '. 
 
 No notice is given of executing an elegit K And if 
 there be no lands, the sheriff need not take or return 
 an inquisition ''; but otherwise an inquisition must be 
 taken and returned, describing the lands with conve- 
 nient certainty ^; and after it is taken, the sheriff must 
 deliver a moiety to the plaintiff, by metes and bounds ^ : 
 If he do not, the return is ill, and may be quashed for 
 uncertainty " ; and if the defendant be joint-tenant, or 
 tenant in common, it ought to be specially alleged 
 
 in 
 
 c 1 Rol. Abr. 888. 3 Blac. J 1 Cromp. 363. 
 
 C^om. 419. k2Str. 874. 
 
 d Cro. Eliz. 656. ' Moor, 8 Com. Dig. tit. 
 
 e Gilb. Exec. 39. Exec.{Q,. 14). Append. Chap. 
 
 f/(i. 40. XLI. §71. 
 
 SB Co. 171. "^Dalt. Sher. 135. 
 
 ^ Gilb. Exec. 35. ^- Garth. 453. 
 
 ^ Id. 
 
 oo.
 
 OF EXECUTION. 941 
 
 in the return °. But it has been adjudged, that upon 
 an elegit^ the sheriff is not bound to deliver a moiety 
 of each particular tenement and farm, but only cer- 
 tain tenements, &c. making in value a moiety of the 
 whole ''. If he deliver more than a moiety, the exe- 
 cution is void ''. 
 
 It was formerly usual for the sheriff to deliver ac- 
 tual possession of a moiety of the lands : But he now 
 only delivers legal possession, and in order to obtain 
 actual possession, the plaintiff must proceed by <?;>rr- 
 ment'' \ in which he must not only prove the judg- 
 ment, and by the judgment-roll, that ^xs. elegit issued 
 and was returned, but he must also prove the WTit of 
 elegit^ by a true copy thereof, and the inquisition 
 thereon; for it is the elegit^ and inquisition upon it, 
 which carve out the term, and give the right of entry, 
 the judgment-roll being no more than a memorandum^ 
 that the elegit issued and was returned % 
 
 After an elegit^ if lands be duly extended, and 
 delivered to the plaintiff, he cannot afterwards 
 have any other species of execution, unless in case 
 of eviction; when he may proceed, in the metiiod 
 pointed out by the statute JVestm. 2. or if he be 
 evicted out of all the lands, he may sue out a scire 
 
 facias 
 
 o Hut. 16. r 2 Eq. Cas. Abr. 38 1 . 3 T. 
 
 1' Doug. 472. R. 295. 
 
 q 2 Salk. S63, 4. 1 Vent.259. '^ Gilb. £vid. (by Lojt,) 
 
 S, C. 10, 1 1 . Run. Eject. 330.
 
 942 
 
 OF EXECUTION. 
 
 facias upon the statute 32 Hen. VIII. c. 5. to have 
 a new writ of execution, for what remains unsatis- 
 fied : But if lie be evicted out of part onl}', or of the 
 whole but for a time, as by a prior judgment, so that 
 the extent is still continuing, there is no remedy by 
 this statute ^ If the defendant has no lands, and the 
 goods are not sufficient to satisfy the plaintiff, he may 
 have a capias ad satisfaciendum after an elegit " : And 
 a void elegit or inquisition, being as none, will not 
 prevent the plaintiff from having a new elegit with- 
 out a scire facias^ though it be after the year "'. 
 
 A question having arisen, in the court of Chan- 
 cery, whether, upon an elegit, the plaintiff could 
 be allowed interest, beyond the penalty of a judg- 
 ment, lord Hardwicke was of opinion, that at law, 
 upon a judgment entered up, the penalty is the de- 
 bitum recuperatum, and the stated damages between 
 the parties; but if the creditors do not take out an 
 execution against the person of the debtor, or his 
 personal estate, but extend the lands by elegit, 
 which the sheriff does only at the annual value, 
 and much below the real, the creditor holds quous- 
 que debitum satisfaction fuerit, and at law the 
 debtor cannot, upon a writ ad computandiim, in- 
 sist upon the creditor's doing more than account 
 
 for 
 
 t Co. Lit. 289. b. Gilb. Exec. 1451 . S. P. 
 sr, 8. V Gilb. Exec. 54. 
 
 a 1 Str. 226. 2 Ld. Raym.
 
 OF EXECUTION. 943 
 
 for the extended value ; but if the debtor come into 
 a court of equity for reUef, this court will give it 
 him, by obliging the creditor to account for the 
 whole that he has received; and as a person who 
 comes for equity must do equity, will direct the debt- 
 or to pay interest to the creditor, even though it 
 should exceed the principal : And he said, he remem- 
 bered very well, upon Serjeant Whitaker''^ insisting, 
 before Lord Chancellor Cowper^ that this would be 
 repealing the statute of Westminster, his Lordship 
 said, he would not repeal the statute, but he would 
 do complete justice, by letting the creditor carry 
 on the interest upon his debt, as he was to account 
 for the whole he had received "". 
 
 An extendi facias or extent " lies in the following 
 cases ; first, for the debt of the crown; secondly, 
 on a statute-merchant or statute-staple, or recogni- 
 sance in nature of a statute- staple ; and thirdly, on 
 a judgment in an action of debt against an heir, on 
 the obligation of his ancestor. 
 
 The king's debts are either of record, or not of 
 record: in either case, the execution for them is a 
 writ of extent, which is either an immediate extent ^, 
 
 or 
 
 w 3 Atk. 517, 18. and see cution at the suit of the 
 
 Amb. 520, 1. 1 East, 403. crown. 1 East, 338. (c). 
 
 436. y Append. Chap. XLI. ^ 
 
 -'' This is properly an exe- 75, &c.
 
 944 OF EXECUTION. 
 
 or an extent in aid of the king's debtor \ As to 
 debts of record, they bind the lands of the debtor, 
 from the time of his becoming in debt to the king; 
 and an execution may be taken out for such debts, 
 though an elegit may have been issued at the suit of 
 a subject ^ : And if the king's debt be prior on record, 
 it binds the lands of the debtor, into whose hands 
 soever they come ; because it is in the nature of an 
 original charge upon the land itself, and therefore 
 must subject every one that claims under it: But 
 if the lands were aliened in the whole or in part, as 
 by granting a jointure, before the debt contracted, 
 such alienee claims prior to the charge, and in that 
 case the land is not subject ''. 
 
 As to debts not of record, the remedy for the 
 recovery of them is governed by the statute 33 
 He?u VIII. c. 39 ^ by which it is enacted, that 
 " all obligations and specialties, which shall be 
 " made for any cause or causes touching or in any 
 *' wise concerning the king's most royal majestj', 
 " or his heirs, or to his or their use, commodity 
 *' or behoof, shall be made to his highness, and 
 " to his heirs, kings, in his or their name or names, 
 " by these words, to the lord the kingy and to none 
 " other person or persons to his use, and to be 
 
 *' paid 
 
 2 Append. Chap. XLI. § 79. tit. Execution, K. 
 ^ 2 Rol. Abr. 156, 7. Gilb. ^ Id. ibid. 
 fixcheq. 88. 51, Bar. Abr, ^ § oO. 
 
 li
 
 OF EXECUTION. 945 
 
 paid to his highness by these words, to be paid 
 to the said lord the Hng, his heirs or executorsy 
 with other words used and accustomed in com- 
 mon obligations ; and that all such obligations 
 and specialties shall be good and effectual in the 
 law, to all intents and purposes, and shall be of 
 the same nature, kind, quality, force and ef- 
 fect, to all intents and purposes, as the writings 
 obligatory taken and acknowledged according 
 to the statute of the staple at Westminster : And 
 that all suits, process, judgments, decrees and 
 executions, hereafter to be taken, pursued, or 
 given for the king, in any of the king's courts 
 mentioned in that act, of or upon any of the 
 same obligations, shall be of the same or like 
 strength, force, effect and intent in the law to 
 all purposes, only against all and all manner 
 such person and persons as have been bound in 
 such obligations or specialties, as well spiritual 
 as temporal, and against their heirs, successors 
 executors and administrators, and every one of 
 them, and against none other, as writings obli- 
 gatory taken and acknowledged according to the 
 statute of the staple at Westminster, at any time 
 before the making of that act, had been used to 
 be taken, exercised and executed against any 
 lay person or persons''." 
 
 " And if any suit be commenced or taken, or 
 
 " any 
 
 ^ § 53. 
 Vol. II. 20
 
 946 OF EXECUTION. 
 
 " any process awarded for the king, for the reco- 
 " very of any of his debts, then the same suit and 
 *' process shall be preferred before the suit of any 
 " person or persons ; and that the king, his heirs 
 " and successors, shall have first execution against 
 ^' any defendant or defendants, of and for his said 
 " debts, before any other person or persons, so 
 " ahvays that the k'mg''s suit be taken and com- 
 " menced^ or process awarded for the said debt ^ at 
 " the king^s suit, before judgment given for the 
 *' said other person or persons^.'''' 
 
 This statute is not confined in its operation to 
 bond debts only, but extends to all debts and exe- 
 cutions, at the suit of the king^. And it is held 
 to be restrictive upon the old prerogative, and in- 
 troductive of anew law; for ita quod, so always 
 that the king^s suit, &.c. makes a condition prece- 
 dent, and a limitation : Hence therefore, a judgment 
 and execution executed by elegit, before any suit 
 or process commenced by the king, shall be pre- 
 ferred to the extent of the king, issuing on a bond 
 debt, bearing date before the subject's judgment, 
 and assigned to the king before the subject's exe- 
 cution *-'. 
 
 With respect to persojial pro]yerty, the general 
 rule is, that where the king and a subject stand in 
 equal degree, and the property of the debtor re- 
 mains 
 
 « § 74. g Hard. 23. but see Dyer, 
 
 f 7 Co. 18. b, 67. b. 
 
 I
 
 or EXECUTION. 947 
 
 mains unaltered, the king's prerogative must pre- 
 vail^: Quandojiis domini regis et subditi iJisimul 
 concurrunt^ jus regis prceferri debet ^: and there- 
 fore if an extent at the suit of the crown, be tested 
 before or on the day of delivering the subject's 
 execution to the sheriff, the former shall have the 
 preference "\ So an extent against the king's debt- 
 or, tested after a distress taken for rent, with notice 
 to the tenant, and appraisement made, but before 
 sale, shall prevail against the distress ^ And as the 
 crown is not bound by the acts relating to bank- 
 rupts, not being named in them, therefore an ex- 
 tent served upon the property of the bankrupt, 
 will bind from the teste of the writ, and till actual 
 assignment by the commissioners; but the king is 
 bound by an actual assignment, because the pro- 
 perty is then absolutely transferred to a third per- 
 son™. 
 
 But as by the common law, abridged as it is by 
 the statute of frauds, the property of the debtor's 
 goods is bound by the delivery of the writ to the 
 sheriff, there then remains no property in the 
 debtor, on which the prerogative of the crown 
 can attach": And therefore if goods be taken in 
 execution, on 2ifieri facias against the king's debtor, 
 
 and 
 
 I»4T. R. 411. • 112. 2 Vcz. 288. S. C. 
 
 i 9 Co. 129. b. m W. Jon. 202. Bumb. 202- 
 
 k Id. ibid. 2 Show. Rep. 480. 
 
 ' Biinb. 42, 3. 569. Parker, " 4 T. R. 41 1.
 
 948 
 
 OF EXECUTION. 
 
 and before they are sold, an extent issues at the 
 king's suit, grounded on a bond debt, and tested 
 after the delivery of tht Jieri facias to the sheriff, 
 these goods cannot be taken upon the extent". 
 But process sued out by the crown against a de- 
 fendant to recover penalties, upon which judgment 
 for the crown is afterwards obtained, entitles the 
 king's execution to have priority, within the sta- 
 tute 33 Hen. VIII. c. 39. § 74. before the execu- 
 tion of a subject, issued on a judgment recovered 
 against the same defendant prior to the king's 
 judgment, but subsequent to the commencement 
 of the king's process; the king's writ of execu- 
 tion having been delivered to the sheriff, before the 
 actual sale of the defendant's goods under the 
 plaintiff's execution ^ 
 
 Immediate extents take place among them- 
 selves, according to the teste 'i; And it is a rule, 
 that an extent cannot be ante-dated, but must bear 
 teste on the day it issues, though it be out of term ; 
 for it issues, out of the equity side of the Exchequer, 
 Vv^hich is always open^ An extent in aid is a writ 
 issued at the instance of the king's debtor, for the 
 recovery of his own debt^: but this being of an in- 
 ferior 
 
 o 3 Mod. 236. Comb. 123. 
 Parker, 262. Com. Dig. tit. 
 Debt^ G. 8. Uppom v. Sum- 
 ner, 2 Blac. Rep. 1251. 1296. 
 4. T. R. 402. but see 2 Rol. 
 Rep. 295. Comb. 452. 2 
 ShoAv. 481. Bunb. 8. 1 Bur. 
 
 p 1 East, 338. 
 
 1 Parker, 28 1. and see Gilb. 
 Excheq. 167, &c. 
 
 r 2 Str. 749. Gilb. Rep. 
 222. Bunb. 164. S. C. 
 
 s Append. Chap. XLI. C 
 79.
 
 OF EXECUTION. 949 
 
 ferior nature, is postponed to an immediate ex- 
 tent ^ 
 
 On a statute-merchant, the first process after 
 it was forfeited, and certified into chancery, was 
 a writ of capias si iaicus, directed to the sheriff, 
 commanding him to take the body of the conusor, 
 if a layman, to satisfy the debf". And if the she- 
 riff" returned upon this writ, that the party was 
 dead, or not found in his bailiwick, a writ issued 
 to extend the lands", which might be made re- 
 turnable in either bench; and the sheriff" might 
 thereupon deliver the lands, &:c. to the conusee, 
 upon a reasonable extent, without the delay or 
 charge of a liber-ate^''. If the conusor was a clerk% 
 the sheriff" was directed to levy the debt of his 
 moveable goods and chattels''. 
 
 On a statute -staple, or recognisance in nature of 
 a statute -staple, if the conusor cannot be found 
 within the staple, i^or his goods to the value of 
 the debt, the first process, after the certificate 
 under seal in chancery, is a writ in nature of an 
 extent, to take body, lands and goods, all in one 
 writ; in which respect it is preferable to the sta- 
 tute-merchant, as being a much speedier remedy y. 
 
 This 
 
 t Parker, 281, 2. w p. N. B. 130. A. 1 Vent. 
 
 «i F. N. B. 130. Append. 41. 
 Chap. XLI. §81. xF. N. B. 131. Append. 
 
 '^F. N. B. 130. A. Ap- Chap. XLI. § 83. 
 pend. Chap. XLI. § 82. y 2 Bac. Abr. 334. Ap- 
 
 pend. Chap. XLI. § 84.
 
 950 OF EXECUTION. 
 
 This writ is returnable in chancery ; and the same 
 sort of proceedings are had under it, for extending 
 the lands, &c. as upon an elegit^: But the sherift' 
 after the extent, cannot deliver the lands, &C. to 
 the conusee, but must seize them into the king's 
 hands ; and in order to get possession of them, the 
 conusee must sue out a liberate^ which is a writ is- 
 suing out of chancery, reciting the former writ and 
 return, and commanding the sheriff to deliver to 
 the conusee all the lands, tenements and chattels, 
 by him taken into the king's hands, if the conusee 
 will have them, by the extent and appraisement 
 made thereof, until he shall be satisfied his debt'. 
 Upon this writ, the sheriff cannot turn the tertenant 
 out of possession, as upon an habere facias posses- 
 sionem ; but is only to deliver the legal possession, 
 as upon an elegit^ and in order to obtain the actual 
 possession, the conusee must proceed by eject- 
 ment''. 
 
 By the common law, after a full and perfect exe- 
 cution had by extent, returned and entered of re- 
 cord, the conusee could have no re-extent on the 
 effects of the conusor, (because there was once 
 satisfaction given to the creditor on record,) though 
 the lands had been recovered from him, before he 
 had levied the debt out of them''. But by the sta- 
 tute 
 
 ^- ./fn^f, 939. *> 1 Vent. 41. Ante^ 941. 
 
 ap. N. B. 132. I Lutw. c Co. Lit. 290. a. Bac. Abr. 
 
 429. Append. Chap. XLI. § tit. Execution^ (B. 6). 
 85.
 
 or EXECUTION. 951 
 
 tute 32 Hen. VIII. c. 5. it is provided, that " if 
 after any lands, tenements or hereditaments, be 
 had and deHvered in execution, upon a just and 
 lawful title, wherewithal the said lands, &c. were 
 liable, tied and bound, at such time as they were 
 delivered and taken into execution, shall be re- 
 covered, divested, taken, or evicted out of or from 
 the possession of any such person and persons as 
 have and hold the same in execution, without any 
 fraud, deceit, covin, collusion, or other default of 
 the said tenant or tenants by execution, before 
 such time as the said tenants by execution, their 
 executors or assigns, shall have fully levied their 
 whole debt and damages, for the which the said 
 .lands, &c. were delivered and taken in execution ; 
 then every such recoveror, obligee, and recognizee, 
 shall have a scire facias out of the same court, 
 from whence the former execution did proceed, 
 against such person or persons as the former exe- 
 cution was pursued, their heirs, executors or as- 
 signs, to have execution of other lands, &c. liable 
 to be taken in execution, for the residue of the debt 
 or damages." 
 
 This statute, by a favourable construction, was 
 extended to the executors, administrators and as- 
 signs of the recoveror*^, &c.; and to executions 
 issuing out of any court, where the record is re- 
 moved by writ of error, and affirmed ^• But the 
 statute, we have seen, did not extend to a partial 
 
 e\'iction. 
 
 ^ Co. Lit. 290. a. '> III, ibid.
 
 952 OF ExfictrtioN, 
 
 eviction^. Bj a subsequent statute ^ however, 
 which wais made for supplying some defects in the 
 statute 23 Hen. VIII. c. 6. it is enacted, that " in 
 case it shall, at any time or times, before or after 
 the filing or returning of any liberate or liberates^ 
 sued out on any extent or extents, upon a re- 
 cognisance in the nature of a statute -staple, 
 be made appear to the court of Chancery, that 
 sufficient has not been extended and levied, 
 or sufficiently extended and levied, to sa- 
 tisfy such recognisance ; or that any omission, 
 error or mistake has happened, in making, suing 
 out, executing or returning any of the said 
 writs, or any process thereupon; or it should 
 happen, that any lands, tenements or heredita- 
 ments shall be evicted from any person or per- 
 sons, who shall have extended the same, by 
 virtue of any such writ or process as aforesaid ; 
 that then, and in every such case, the said court 
 of Chancer}' shall and may award one or more 
 re-extent or re-extents, for the satisfying the 
 same as aforesaid, and that writs of liberate or 
 liberates may be sued out thereupon." 
 We have before seen, that in debt against an heir, 
 on the obligation of his ancestor, the judgment for 
 the plaintiff is general^ for the debt and damages, 
 or special^ directing them to be levied of the lands 
 descended^ On a general judgment, the execu- 
 tion 
 
 i Antey9i2. ^^ Jnce, 854. and see 
 
 2 8 Geo. I. c. 25. § 4. 2 Wms. Saund. 7. (4.)
 
 OF EXECUTION. 953 
 
 tion .may be general also, against the defendant, 
 his goods and chattels, or a moiety of his lands, 
 by capias ad satisfaciendum^ fieri facias^ or elegit ': 
 But where the judgment is special, the execution 
 is so likewise, by a writ in nature of an extent, to 
 levy the debt and damages, of all the lands de- 
 scended''. And it seems that on a general judg- 
 ment, although the plaintiff may have execution 
 by elegit of a moiety of all the heir's lands, yet may 
 he also at his election surmise, that the heir hath 
 certain lands by descent, and pray to have execu- 
 tion of the whole of them ' : For if the plaintiff had 
 not this election, he might be a loser by the gene- 
 ral writ of elegit, upon which he could have only 
 a moiety in execution, inasmuch as the heir might 
 not have any other lands except those descended '". 
 
 A capias ad satisfaciendum lay, at common law, 
 in actions of trespass vi et aj-jnis only, but has since 
 been given in other actions, by a variety of sta- 
 tutes " : And, where the defendant is at large, it 
 commands the sheriff, or other officer to whom it 
 
 is 
 
 i 2 Rol. Abr. 71. and see i Append. Chap. XLI. § 87. 
 
 Vin. Abr. til. Heir, (D). Bac. °' 2 Rol. Abr. 72. Bac. Abr. 
 
 Ahr. tit. Heir ix.jinces(or,(ti). tit. Heir he. Ancestor, (H). 3 
 
 2 Wms. Saund. 7. (4.) Wms. Saund. 7. ('4.) 
 
 k Id. ibid. Off. Brev. 83, 4. " Hob. 56. 
 Append. Chap. XLI. § 86. 
 
 Vol. II. 2P
 
 954 OF EXECUTION. 
 
 is directed, to take the defendant, and him safely 
 keep, so that he may have his body in court on the 
 return-day, to satisfy the plaintiff". Where the de- 
 fendant is already in custody, there is no occasion 
 for this writ; but if the plaintiff would proceed 
 against his body, he must charge him in execution, 
 as directed in a former chapter p. 
 
 This writ lies after judgment, in every instance 
 where the defendant was subject to a capias before ''f 
 and it may be taken out against the defendant, 
 sued by a wrong name, if he has omitted to take 
 advantage of the misnomer "" : but it lies not 
 against Peers, or members of the House of Com- 
 mons, except upon a statute- merchant or sta- 
 tute-staple ' ; nor against executors or admini- 
 strators, unless a devastavit be returned ^ An 
 infant seems to be liable to this process " ; and it 
 may be taken out against bail, without any pre- 
 vious Jieri Jacias, or return of nulla bona''. In an 
 action against husband and wife, they may both 
 betaken in execution; and the wife shall not be 
 discharged, unless it appear that there is fraud and 
 
 collusion,. 
 
 " Append. Chap. XLI. § '^ 1 Cromp. 345. 
 iBf &c. t 3 Blac. Com. 414. 
 
 p Chap. XVI. "i 2 Str. 1 2 1 7. and see I Bos. 
 
 q 3 Co. 12. 5c Pul. 480. 
 
 f 2 Str. 1218. ^ 2 ou. 822. 1139. 
 
 II
 
 OF EXECUTION. 955 
 
 icoUusion, between the plaintiff and her husband, 
 to keep her in prison '''. 
 
 In point of form, the capias ad satisfaciendum 
 must pursue the judgment : therefore on a judg- 
 ment against several defendants, it must include 
 them all ''. And if part of the demand has been al- 
 ready levied \ii\ditr2ijie7'i facias, the capias ad satis - 
 Jaciendum is only for the residue ^. This writ must 
 be signed, as well as sealed ^ ; and it must be tested 
 and returnable in term-time, in like manner as the 
 fieri facias *. It was formerly necessary that there 
 should h^ fifteen days at least between the teste and 
 return oit\\G fieri facias and capias ad satisfaciendum, 
 by original: but as that occasioned great delay, it 
 was enacted by the statute 13 Car. II. stat. 2. c. 2. 
 ^ 6. that " in all actions of debt, and other per- 
 *' sonal actions, and also in all actions oi ejectmetit, 
 *' depending by original writ in the courts of King's 
 " Bench and Common Pleas, after any judgment 
 " obtained therein, there need not be fifteen days 
 " between the teste and return of any writ oi fieri 
 *■'■ facias or capias ad satisfaciendum; nor shall 
 ** the want thereof be assigned for error." This 
 statute however does not extend to any writ of 
 oapias ad satisfaciendum^ whereon a writ of exigent 
 
 after 
 
 ^»2Str. 1167. 1237. iWils. v Append. Chap. XLI. § 
 
 149. Say. Rep. 149. jinte, 101, &c. 
 
 174. ^ R. E. 1659. 
 
 « 6 T. R. 526, 7. > Ante, 913, 14,
 
 956 OF EXECUTION. 
 
 after judgment is to be awarded; nor to any capias 
 ad satisfaciendum against the defendant, in order to 
 make his bail Hable. For the purpose of charging 
 the bail, there ought to be eight days between the 
 teste and return by bill^, and fifteen by original'^; 
 but a capias ad satisfaciendum returnable out of 
 term, is not void as against the bail, though it may 
 be set aside by the principal on motion, for irregu- 
 larity ^ : and there may be an intervening term, 
 between the. teste and return of this writ ^ If the 
 capias ad satisfaciendum be informal, it may be 
 amended, in like manner as the feri facias^. 
 
 The common returns to a writ of capias ad satis- 
 faciendum are, that the sheriff has taken the de- 
 fendant, whose body he has ready ^; or that the de- 
 fendant is not found in his bailiwick ^. On the 
 latter return, the plaintiff may sue out an alias 
 capias' into the same, or a testatum^ into a differ- 
 ent county ; or he may have a non omittas capias 
 ad satisfaciendum into either': And as the defendant 
 can only be once taken, it seems there may be se- 
 veral 
 
 b 2 Salk. 602. % Append. Chap. XLI. § 
 
 6 13 Car. II. c. 2. §6. 92. 
 
 ^ 2 Bur. 1188. ^ Id. § 93. 
 
 e 2 Salk. 700. 2 Ld. Raym. i Id. § 95. 
 
 775. S. C. k Id. § 97, &c. 
 
 f 2 Blac. Rep. 836. 2 T. R. 1 Id. § 96. 
 757. 5T.H.577. 6 T. R. 450.
 
 OF EXECUTION. 957 
 
 veral writs running against him, at the same time, 
 in different counties : Or, instead of suing out an 
 alias or testatum^ the plaintiff may, if the action was 
 commenced by original writ, proceed at once to 
 outlaw the defendant, by suing out an exigi facias "", 
 and process of outlawry. 
 
 The defendant being taken upon a capias ad sa- 
 tisfaciendum^ if he do not satisfy the plaintiff, ei- 
 ther remains in custody of the sheriff, who may 
 carry him immediately to the county-gaol", oris 
 removed bv habeas corpus to the king's-bench pri- 
 son. In either case, the execution is considered, 
 quoad him, as a satisfaction of the debt °: There- 
 fore a judgment creditor, who has taken his debtor 
 in execution, cannot afterwards sue out a com- 
 mission of bankrupt against him upon the same 
 debt ''. And if the plaintiff, having the defendant 
 in execution, consent to his discharge, though it 
 be on terms which are not afterwards complied 
 with '*, or upon giving a fresh security, which af- 
 terwards becomes ineffectual "■, the plaintiff cannot 
 resort to the judgment again, or charge the defen- 
 dant's 
 
 ■» Append. Chap. XLI. § a commission of bankrupt 
 
 106. having since been sued out 
 
 n 4 T. R. 555. Ante, 203. against him by the plaintiff. 
 
 o Hob. 59. 1 Bos. & Pul. 302. 
 
 P 8 T. R. 123. But the ^ 4 Bur. 2482. 6 T. R 
 
 court has no power to dis- 526, 7. 7 T. R. 420. 
 
 charge the defendant out of »" i f. R. 556. 
 execution, on the ground of
 
 958 OF EXECUTION. 
 
 dant's person in execution ; even though he were 
 discharged the first time by the plaintiff's consent, 
 upon an express undertaking that he should be li- 
 able to be taken in execution again, if he failed to 
 comply with the terms agreed on *. But a capias 
 ad satisfaciendum is no actual satisfaction, so as to 
 bar the plaintiff from taking out execution against 
 other persons, liable to the same debt or damages '; 
 though if the plaintiff consent to discharge one of 
 several defendants, taken on a joint capias ad sa- 
 tisfaciendum, he cannot afterwards retake him, or 
 take any of the other defendants ". 
 
 It was formerly hoiden, that if a person taken 
 on a capias ad satisfaciendum died in execution, the 
 plaintiff had no further remedy; because he had 
 determined his choice, by this kind of execution, 
 which, affecting a man's liberty, is esteemed the 
 highest and most rigid in the law ^. But now, by 
 the statute 21 Jac. I. c. 24. reciting, that foras- 
 much as daily experience doth manifest, that divers 
 persons of sufficiency in real and personal estate, 
 minding to deceive others of their just debts, for 
 which they stood charged in execution, have obsti- 
 nately and wilfully chosen rather to live and die in 
 prison, than to make any satisfaction according to 
 
 their 
 
 s 2 East, 243, Barnes, 205. " 6 T. R. 525. 
 
 ^ Hob. 59. ^ Hob. 52. 6 T. R. 52'6.
 
 or EXECUTION. 959 
 
 their abilities ; to prevent which deceit, and for 
 the avoiding of such doubts and questions, it is 
 declared, explained and enacted, " that the par- 
 " ty or parties at whose suit, or to whom any per- 
 " son shall stand charged in execution, for any 
 " debt or damages recovered, his or their execu- 
 " tors or administrators, may, after the death of 
 *' the person so charged and dying in execution, 
 " lawfully sue forth and have new execution, against 
 " the lands and tenements, goods and chattels, or 
 " any of them, of the person so deceased, in such 
 *' manner and form, to all intents and purposes, 
 " as he or they or any of them might have had, by 
 " the laws and statutes of this realm, if such per- 
 " son so deceased had never been taken or charged 
 ** in execution." 
 
 " Provided, that this act shall not extend to 
 " give liberty to any person or persons, their exe- 
 " cutors or administrators, at whose suit or suits 
 " any such party shall be and die in execution, to 
 " have or take any new execution, against any 
 '* lands, tenements or hereditaments of such party 
 " so dying in execution, which shall at any time 
 *' after the said judgment or judgments, be by him 
 " sold bondjide^ for the payment of any of his credi- 
 •' tors, and the money which shall be paid for the 
 *' lands so sold, either paid or secured to be paid to 
 •' anyof his creditors, with their privity and consent, 
 
 ''in
 
 960 OF EXECUTION. 
 
 ■^^ in discharge of his or their due debts, or of some 
 ^' part thereof." 
 
 If a party taken on a capias ad satisfaciendum 
 escape or be rescued, though the sheriff is hereby- 
 liable, because he ought to have taken the posse 
 comitatus^ yet the plaintiff may sue out a new 
 execution ; and shall not be compelled to take his 
 remedy against the sheriff, who may be dead or 
 insolvent "' : And if the defendant escape from the 
 king's-bench or fleet prison, the plaintiff, on appli- 
 cation to a judge, may have an escape- warrant, in 
 order to retake him, which shall be in force 
 throughout England ". 
 
 By the common law, a prisoner in execution 
 was to be kept in salvd et arcta ciistodid^ till he sa- 
 tisfied the plaintiff. The rigor of imprisonment 
 however is now considerably abated, by his being 
 allowed, on giving security to the marshal, the be- 
 nefit of the rules of the king's-bench prison, or of 
 living within certain limits '' out of its walls. This 
 benefit may be ha.d by one in custody on an excom- 
 municato capiendo "■; but it is never granted to a pri- 
 soner 
 
 ^^ 2 Bac. Abr. 240. 244. R. 583.R.E. 35 Geo. III. 6 
 
 ,355. T. R. 305. R. T. 36 Geo. III. 
 
 X Stat. 1 Ann. c. 6. 6 T. R. 778. 
 
 y For the limits o{ the. rides ^ 1 Str. 413. and for the 
 
 of the king's-bench prison, nature of this writ, see 7 T. 
 
 see R. E. 30 Geo. III. 3 T. R. 153. 
 
 I
 
 OF EXECUTION. 961 
 
 sbner in execution on a criminal account ^, or for a 
 contempt ^. 
 
 A prisoner also, whether he be detained in cus- 
 tody on mesne process or in execution, may on pe- 
 tition to the court, have day-rides allowed him, or 
 the liberty of going out of the prison or its rules, 
 for transacting his business, in term-time. The pe- 
 tition for this purpose must be signed by the pri- 
 soner, before he goes at large ^ ; and formerly, a 
 day-rule might have been obtained in this court^ 
 every day during the term, as is still the practice in 
 the Common Pleas : But this indulgence having 
 been abused, a rule of court was made, that " no 
 " prisoner in the king's-bench prison, or within 
 " the rules thereof, shall have, or be entitled to 
 " have, day-rules, above three days in each term ; 
 " and every such prisoner, having a day-rule, shall 
 *' return within the walls or rules of the said pri- 
 " son, at or before nine o'clock in the evening of 
 *' the day for which such rule shall be granted '*.'* 
 Still however it was open to a prisoner, on a special 
 case, to obtain from the court more days than were 
 allowed by the rule ; as where his attendance was 
 wanted by a master in chancery : but when that 
 happened, they would restrain this indulgence to 
 such days as the master should certify to be ne- 
 cessary. 
 
 » 1 Str. 196. 2 Str. 845. d R. £. 30 Geo. III. 3 T. 
 
 »»2Str. 817. R. 584. 
 
 c 1 Str. 503. 
 
 Vol. II. 2Q
 
 06^2 OP EXECUTION. 
 
 cessary ''. And now, by a late rule of court ^, " not-. 
 *' withstanding the general rule before mentioned., 
 " if any prisoner in the king's-bench prison shall 
 " state by affidavit any special cause, to the satis- 
 " faction of the court, for having an additional day- 
 " rule or day-rules, beyond those allowed by the 
 " aforesaid rule, such additional rule or rules shall 
 '' be granted accordingly, for any day or days en- 
 " suing such application." 
 
 Besides these indulgences, acts are occasionally 
 passed, for the relief of insolvent debtors ^ : And 
 towards the end of the last reign, some lasting pro- 
 visions were made for their relief against impri- 
 sonment, by the statute 32 Geo. II. c. 28. § 13. 
 which (originating in the House of Lords) is called 
 the Lords'* act. By this statute, " if any person 
 " shall be charged in execution, for any sum of 
 " money not exceeding 100/. (since extended to 
 i200/. by the 26 Geo. III. c. 44. and to 300/. by 
 the 33 Geo. III. c. 5. which is made perpetual by the 
 39 Geo. III. c. 50.) " and shall be minded to deli- 
 *' ver up to his creditors, all his estate and effects, 
 *' in satisfaction of his debts, he may, in order to 
 
 *' entitle 
 
 e Per Lord Kenyon, E. 36 366. 399. 7 T. R. 305. 8 
 
 Geo. III. T. R. 49. 1 Bos. & Pu! 
 
 fR.M. 37 Geo. III. 7 T. 477 : on the insolvent act of 
 
 R. 82. 37 Geo. III. G. 112. see 8 
 
 e For determinations on T. R. 424 : and on the last 
 
 the insolvent act of 34 Geo. III. insolvent act, of 4 1 Geo. Ill 
 
 c. 69. see 6 T. R. 28.76. c. 70. see 2 East, 148. 257.
 
 OF EXECUTION. 963 
 
 " entitle himself to the benefit of the above acts, 
 *' before the end of the first term next after he shall 
 *' be charged in execution, exhibit a petition to any 
 " court of law, from whence the process issued, 
 " upon which he was taken and charged in execu- 
 " tion; or to the court into which he shall be re- 
 " moved by habeas corpus, or charged in custody; 
 " certifying the cause of his imprisonment, and 
 " setting forth a just and true account of all the 
 " real and personal estate, which he, or any per- 
 " sons in trust for him, was or were entitled to, at 
 " the time of his so petitioning, and also at the time 
 ** of his first imprisonment, and of all incumbrances 
 *' and charges (if any) aifecting the same, andlike- 
 " wise a just and true account of all securities, 
 *' deeds, evidences, writings, &c. concerning the 
 *' same, and the names and places of abode of the 
 *' witnesses." 
 
 The humane provisions of the Lords' act v/ere 
 -jendered as beneficial as possible, by the liberality 
 of the judges, who construed it to extend to pri- 
 soners in custody upon an attach?ne?;^, for the non- 
 performance of an award'', or non-payment of 
 costs ', &.C ; which construction has been recogni- 
 sed by the statute 33 Geo. III. c. 5. § 4. whereby, 
 
 after 
 
 1 Bos. 8c Pul 
 
 h 1 T. R. 266. 
 
 T. R. 756. 
 
 i Cowp. 136, 1 T. R. 
 
 336. 
 
 )6, 4T. R. .317. 809. 7 

 
 964 OF EXECUTION. 
 
 q^fter reciting that persons are often committed on 
 attachments, for not paying money awarded, under 
 submissions to arbitration by or made rules of court, 
 and likewise for not paying costs, duly and regu- 
 larly taxed and allowed, after proper demands made 
 for that purpose, and also upon writs of excommu- 
 nicato capiendo, or other process for or grounded 
 on the non-payment of costs or expences, in causes 
 or proceedings in ecclesiastical courts ; it is decla- 
 red and enacted, that *' all such persons are and 
 *' shall be entitled to the benefit of this act, and 
 " subject to the same terms and conditions as are 
 " therein expressed and declared, with respect to 
 " prisoners for debt only." And it is no objection 
 to a prisoner being discharged under the Lords' 
 act, that his creditor is dead"". But the defendant 
 in a qui tarn action is not entitled to the benefit of 
 that act ^ And a prisoner who is taken in execution 
 for more than 300/. and afterwards reduces his debt 
 below that sum, is not entitled to be discharged 
 under the above act, in the next term after he has 
 so reduced hi » debt, unless it be also the next term 
 after he was taken in execution"". 
 
 The act requires, that the petition should be ex- 
 hibited before the end of the first term next after 
 the prisoner is charged in execution. But where a 
 defendant taken on a capias ad satisjaciendiim es- 
 caped, 
 
 ^ 1 Bos. & Pul. 336. Rep. 372. S. C. 
 
 13 Bur. 1322. 1 Blac. «" 1 Bos. & Pul. 423.
 
 OF EXECUTION. 965 
 
 caped, and was retaken and committed to the cus- 
 tody of the marshal in a subsequent term, the court 
 held, that he might apply to be discharged, under 
 the Lords' act, in the term following ". And by the 
 statute 33 Geo. III. c. 5. § 5. "where any debtor 
 " shall have neglected to take the benefit of the 
 *' acts, within the time limited, and shall make it 
 " appear to the court out of which the execution 
 '' issued, that such neglect arose from ignorance 
 " or mistake, such debtor shall then be entitled to 
 *' take the benefit of the acts, as if he had taken the 
 " same, within the time so limited as aforesaid." 
 Upon which statute it has been holden, thatapri- 
 soner is entitled to the benefit of the acts, who has 
 been prevented from applying for it in due time, 
 by the misconduct of his agent °. 
 
 When a prisoner intends to take the benefit of 
 the Lords' act, he must give to or leave for every 
 creditor at whose suit he is in execution, or his exe- 
 cutors or administrators, at his or their usual place 
 of abode, or in case they cannot be met with, to or 
 for his or their attorney or agent last employed in the 
 action, a noticein writing'', signed with his proper 
 name or mark, importing that he intends to petition 
 the court, and setting forth a true copy of the ac- 
 count or schedule •* he intends to deliver in ; which 
 
 notice 
 
 ^ 4.T. R. 367. 107. 
 
 " Id. 231. «!/£/.§ lOS. 
 
 I' Append. Chap. XLI. §
 
 966 or EXECUTION. 
 
 notice must be given Jourteen days at least before 
 the petition is presented ■" : though the judges in 
 one case held, in favour of Hberty, that under cir- 
 cumstances, the day of giving the notice might be 
 reckoned as one % An affidavit is annexed to the 
 notice and schedule, made by some person who 
 saw the defendant sign them ^ : And an affidavit of 
 the due service of the notice and schedule is also 
 to be made, on unstamped paper, and sworn before 
 a judge in town, or commissioner in the country ". 
 After the expiration of the time specified in the 
 notice, the petition "^ is to be exhibited, with a cer- 
 tificate annexed, or copy of causes in which the 
 defendant stands charged, obtained from the gaol- 
 er, or from the clerk of the papers, if the defendant 
 be in custody of the marshal : If he be in any other 
 custody, there must be an affidavit^ of seeing the 
 gaoler sign the certificate '■''. The petition, certifi- 
 cate and affidavit of service of the notice being left 
 with the clerk of the rules, he will draw up a rule 
 for bringing the prisoner into court, and summon- 
 ing the creditors to appear, personally or by attor- 
 ney, at some certain day to be therein specified '' ; a 
 
 cop3^ 
 
 ' 32 Geo. II. c. 28. § 13. » Id. § 1 10. 
 
 s 4 Bur. 2525 ^/rf. §111. 
 
 ^ Append. Cliap. XLI. § «' /j. § 1 12. 
 
 i09. X 32 Geo. II. c. 28. § 13.
 
 OF EXECUTION. 967 
 
 copy of which rule should be served on each cre- 
 ditor, and also on the gaoler, and an affidavit made 
 of such service ^ . But it is ordered, that insolvent 
 debtors petitioning under the Lords' act, and sub- 
 sequent acts for their further relief, shall be brought 
 into court, during term-time, upon Mondays and 
 Thursdays^ and upon no other days ^. 
 
 When the prisoner is charged in execution above 
 twenty miles from Westminster-hall^ or the court 
 out of which the execution issued, the rule re- 
 quires him to be brought to the next assizes, and 
 that the creditors be summoned to appear there ; 
 and a copy of such rule is to be served on every 
 creditor, his executors or administrators, or left at 
 his or their dwelling house, or usual place of abode^ 
 or with his or their attorney, fourteen days at least 
 before the holding of such assizes *. 
 
 On bringing up tlie prisoner, the court or judge 
 of assize are, in a summary way, to examine into 
 the matter of the petition ; and after being swoni to 
 the truth of his schedule, if no opposition be made, 
 he is discharged of course, upon executing an as- 
 signment and conveyance of his estate and effects, 
 for the benefit of his creditors ; which is done by a 
 short indorsement on the back of the petition''. 
 The prisoner may be compelled, under the Lords' 
 
 act, 
 
 y Append. Chap. XLI. § 113. » 32 Geo. II. c. 28. % 15. 
 'H.H. 37 Geo. III. ^ Id.% 13. 
 
 k
 
 968 OF £XECUTIOMr. 
 
 act, to include in his schedule, every thing that he 
 can sell for his own benefit "^ : And the place of a 
 life -guardsman being constantly sold, the court 
 will compel a prisoner who holds such a place to 
 sell it, and insert the value in his schedule, before 
 they permit him to take the benefit of the act **. 
 But the half- pay of an officer is not the subject of 
 sale ; and therefore a prisoner cannot be compelled 
 to include it in his schedule ^ 
 
 If the persons, at whose suit the prisoner is in 
 execution, are not satisfied with the truth of his 
 oath, and cither personally or by attorney desire 
 further time, the court may remand him ; and direct 
 the parties to appear on some other day, to be ap- 
 pointed by the court, within the first week of the 
 next term at farthest \ or sooner if the court shall 
 think fit^: And the creditors may file mterrogato- 
 ries for his examination, before he is admitted to 
 take the benefit of the act ^. In such case it is a 
 rule, that the creditor do file his interrogatories with 
 the clerk of the rules, and that the clerk of the 
 rules do thereupon draw up a rule for the debtor's 
 examination before the master, to whom he shall 
 also deliver the original interrogatories ; and that 
 
 the 
 
 3T. R. 681. f 32 Geo. II. c. 28. § 13. 
 
 ^ Id. ibid. Cadwallader Jones's s 3 Bur. 1393. 
 
 case, M. 14 Geo. III. ^ 33 Geo. III. c. 5. § 5. 
 «3T. R. 68!.
 
 OF EXECUTION. 969 
 
 the debtor having been previously sworn in open 
 court for the purpose, the master shall proceed to* 
 take down in writing the examination of the deb- 
 tor, in answer to the said interrogatories ; and the 
 same being signed by the debtor, shall be afterwards 
 filed by the master, with the clerk of the rules ; 
 and the said interrogatories and examination shall 
 be produced by the clerk of the rules and read, 
 when the debtor shall on a subsequent day be 
 brought up by rule for that purpose \ 
 
 All objections to the insufficiency of the sche- 
 dule, in point ofjorm, must be made the first time 
 the prisoner is brought up ''. And if, at such se- 
 cond day, the creditor shall make default, or shall 
 appear and be unable to discover any estate or ef- 
 fects omitted in the account, the court shall imme- 
 diately order the prisonerto be discharged, upon his 
 executing an assignment and conveyance of his 
 estate and effects ; unless the creditor insist upon 
 his being detained in prison, and sh^ll agree by 
 writing, signed with his name or mark, (or, if he 
 be out of England, under the hand of his attor- 
 ney,) to pay and allow the prisoner weekly, a sum 
 not exceeding 3^. 6^. or if more creditors than one 
 insist on his detention, not exceeding 2s. a- week 
 each^ to be paid on Monday in ever)" week, so 
 
 lone 
 
 i R. E. 36 Geo. III. i 37 Geo, III. c. 85. § 3, 4. 
 
 k 32 Geo. II. c. 28. § 13. 
 
 Vol. II. 2P
 
 970 OF EXECUTION. 
 
 long as the prisoner shall continue in execution ; 
 and in every such case, the prisoner shall be re- 
 manded '". But if failure be made in payment of 
 the said weekly sums, the prisoner, upon applica- 
 tion to the court in term-time, or in vacation to a 
 judge, may, by order of the court or judge, be 
 discharged out of custody, on executing an as- 
 signment and conveyance of his estate and ef- 
 fects". 
 
 The note or security for payment of the prison- 
 er's allowance ", must be signed by the plaintiff, if 
 in England^ or otherwise by his attorney ; it not 
 being sufficient for the attorney to sign the note, if 
 his client can be met with ^ : And if the note be 
 not signed by the plaintiff in open court, it is the 
 practice to require an affidavit with the note, shew- 
 ing that it was duly signed "•. Where there are seve- 
 ral plaintiffs, the note must be signed by all of them '^, 
 or if they are partners, by one on behalf of himself 
 and the others " ; a note signed by one of several 
 lessors of the plaintiff in ejectment '', or by one of 
 
 several 
 
 "^ 32 Geo. II. c. 28. § 13. 114. 
 
 If a plaintiff hold the defend- p Imp. K. B. 646. and see 1 
 
 ant in execution in several ac- Bos. & Pul. 337. 
 
 tions, he need not give more i Edwards v. Carter, M. 36 
 
 than one note for 3s. bd. a Geo. III. 
 
 week. Jones v. Cox, M. 36 •• 7 T. R. 156. 8 T. R. 325. 
 
 Geo. III. s 8 T. R. 25. 
 
 n 32 Geo. II. c. 28. § 13. t 7 T. R. 156. 
 
 ° Append. Chap. XLI. §
 
 OF EXECUTION. 971 
 
 several executors ", without mentioning the others, 
 not being deemed sufficient. The payment is to 
 be made, by the act, every Monday \ and the note 
 must be drawn up accordingly ^'. It was determined 
 in one case '", that such a note ought to be stamp- 
 ed : But the judges, upon a conference, afterwards 
 held a stamp to be unnecessary ''. If the payment 
 be not made in time, the prisoner has a right to his 
 discharge ^ : And where it was not made before 
 ten o'clock at night of the day on which it became 
 due, it was holden that the defendant's right to his 
 discharge was not waived, by the turn-key on the 
 felon's side accepting it after that time''. The 
 mode of obtaining a prisoner's discharge for non- 
 payment of the allowance, is by application to the 
 court in term-time, or to a judge in vacation : And 
 a judge's order for a prisoner's discharge under 
 the Lord's act, made out of term, we have seen " 
 is final. 
 
 It sometimes happens, that persons who are 
 prisoners in execution in gaol for debt or damages, 
 
 will 
 
 .«» 8 T. R. 325. Id. ibid. 
 
 V Blakemore v. Ronea, M. * 7 T. R. 530. 
 
 36 G. III. K. B. 3Bos. &Pul. ^ Id. 670. 1 Bos. & Pul.271. 
 
 184. e. P. And in this latter y Say. Rep. 103. Doug. 67. 
 
 court,it seems that such a note and see 7 T. R. 157. 
 
 ought to contain an express '^ 5 T. R. 36. and see 7 T. 
 
 promise to pay the allowance R. 156. 
 
 on a Monday., although it be » Jntt\ 464. 
 ttated on th*t day of the week.
 
 972 OF £XEC0TION. 
 
 will rather spend their substance in prison, than 
 discover and deliver up the same, towards satis- 
 fying- their creditors their just debts, or so much 
 thereof as such substance will extend to pay : To 
 remedy ^vhich, there are compulsive clauses in the 
 Lord's act *", by which it is enacted, that " if any 
 *' prisoner who shall be committed or charged in 
 " execution, in any prison or gaol, for any debt 
 " or damages not exceeding one hundred pounds. 
 " besides costs," (since extended to 200/. by the 
 26 Geo. III. c. 44. ^ 2.) " shall not within three 
 " months next after every such prisoner shall be 
 " committed or charged in execution, make satis- 
 " faction to his or her creditor or creditors, who 
 '' shall charge any such prisoner in execution, for 
 " such debt, damages and costs; then such cre- 
 " ditor or creditors may require every such priso- 
 " ner (on giving twenty days notice'^ in writing to 
 " him or her, of such creditors design,) to give in 
 " to the court at law, from which the writ or pro- 
 " cess issued, on which any such prisoner shall be 
 " charged in execution, or into the court in the 
 " prison of which any such prisoner shall be remo- 
 " ved by habeas corpus ^ or shall remain or be 
 " charged in execution, within the first seven days 
 '' of the term which shall next ensue the expiration 
 '' of the said twenty days, in respect to any priso 
 
 " ner 
 
 i> 32 Geo. II. c. 28. § 16, 17. - Append. Chap. XLI. § 1 15
 
 OF EXECUTION. 97S 
 
 " ner charged in any prison belonging to the 
 '^ courts in Westminster -hall; and at the second 
 " court which shall be held by any other court of 
 " record, after the expiration of the said twenty 
 " days, in respect to any prisoner charged in any 
 " prison belonging to such other court; and where 
 " any such prisoner shall be charged in execution 
 " in any county gaol, or other gaol or prison, above 
 " the space of twenty miles distant from fVestmin- 
 " ster-hall, or the court or courts out of which the 
 '^ writ or process issued, on which any such priso- 
 " ner is or shall be charged in execution, then to 
 " give in upon oath, at the assizes or great sessions, 
 '* and on the crown- side thereof, which shall be 
 " held for the county or place in the prison of 
 *' which any such prisoner shall be, next after the 
 •' expiration of twenty days from the time of gi- 
 " vingany such notice; a true account in writing, 
 *' to be signed with the proper name or mark of 
 " every such prisoner, of all the real and personal 
 *' estate of such prisoner, and of all incumbrances 
 " affecting the same, to the best of his or her 
 " knowledge and belief, in order that the estate 
 *' and effects of such prisoner may be divested 
 *' out of him or her, and may by the court, judge 
 " or judges, justice or justices aforesaid, be or- 
 *' dered to be assigned and conveyed in manner 
 *' and for the purposes thereinafter declared'*." 
 
 " And 
 
 <i Append Chap. XLI. % U7.
 
 974 OF EXECUTION. 
 
 " And every such creditor or creditors shall also 
 " give twenty days' like notice in writing, of such 
 " his her or their intention to require any such 
 *' prisoner to be brought up as aforesaid, to all 
 " and every other creditor and creditors of every 
 " such prisoner, if any, at whose suit any such 
 *' prisoner shall be detained or charged in custody*, 
 " if such other creditor or creditors can be met 
 '' with; and if not, then to the attornies last em- 
 " ployed in the actions or suits, in which any such 
 " prisoner shall be so detained or charged irt custo- 
 " dy, by any such other creditor or creditors: And 
 " shall likewise give a like notice in writing to the 
 " sheriff or sheriffs, gaoler or keeper of the gaol or 
 " prison, in which any such prisoner shall be de- 
 " tained in custody^, of such his or her intention 
 ^^ to have any such prisoner so brought up, and to 
 " require such sheriff, &c. to bring up every such 
 '■' prisoneraccordingly; and every such notice which 
 " shall be so given to any such sheriff, &c. shall be 
 " so given, twenty days at least before the time 
 " appointed for any such prisoner to be so brought 
 " up; and thereupon every such sheriff, &c. shall 
 " at the costs of such creditor or creditors, cause 
 " every such prisoner to be brought, as by such 
 
 " notice 
 
 c Append. Chap. XLI. § intention to have the prisonep 
 
 116. brought up, should require 
 
 f The notice to the sheriff him to bring up the prisoner 
 
 or gaoler, of the plaintiff's accordingly.
 
 OF EXECUTION. 975 
 
 *' notice in writing shall be required, to such court, 
 " assizes or great sessions as aforesaid, together 
 " with a copy of causes of his or her detainer 
 " there." 
 
 " And that every prisoner who, in pursuance of 
 " this act, shall be brought up to any such court, 
 " assizes or great sessions as aforesaid, shall, on 
 ^* proof being there first made of such notices as 
 " aforesaid having been given, deliver in there tin 
 *' open court, upon oath, within the time therein- 
 " before for that purpose prescribed, a full true and 
 " just account, disclosure and discovery in writing, 
 " of the whole of his or her real and personal estate, 
 ** and of all books, papers, writings and securities, 
 " relating thereto, and of all incumbrances then af- 
 " fecting the same, and the respective times when 
 " made, to the best of his or herknowledge and be- 
 " lief, (other than and except the necessary Avearing 
 " apparel and bedding of such prisoner, and his or 
 " her family, and the necessary tools or instruments 
 " of his or her respective trade or calling, not ex- 
 " ceedingthe value of ten pounds in the whole,) 
 " which account shall be subscribed with the pro- 
 *' per name or mark of the prisoner, who shall so 
 " deliver in the same." 
 
 " And on the delivering in of any such account, 
 " the estate and effects of ever)- such prisoner shall 
 " be by him or her assigned and conveyed, by a 
 
 " short
 
 976 «F EXECUTION. 
 
 '^ short indorsement on the back of every suchac- 
 " count, to such person or persons as the court, 
 *' judge or judges, justice or justices, in which or 
 *' to whom any such account shall be so given in, 
 •' shall order or direct,, in trust, and for the bene- 
 " fit of the creditor or creditors, who shall have 
 " required any such prisoner to be brought up as 
 '' aforesaid, and of such other creditor or creditors 
 -' (if any) of ever)^ such prisoner, at whose suit any 
 " such prisoner shall be charged in custody or exe- 
 " cution, and who shall, by any memorandum or 
 " writing, to be signed by such creditor or credi- 
 " tors, before any such conveyance or assignment 
 '' shall be made, consent to any such prisoner's 
 " being discharged out of gaol or prison, at his 
 ^' her or their suit, and agree to accept a propor- 
 ^ tionable dividend of such prisoner's estate andef- 
 *' fects, with the creditor or creditors who shall 
 " have required any such prisoner to be brought 
 *' up; and if there shall be no other creditor or 
 •' creditors, or there being any such, if he she or 
 '' they shall not agree in writing to discharge such 
 " prisoner, and accept such proportionable dividend 
 *•' as aforesaid, then in trust for the creditor or cre- 
 " ditorsonly, who shall require any suchprisonerto 
 ' be brought up for the purpose aforesaid : And 
 " by such assignment and conveyance as aforesaid, 
 " all the prisoner's estate and effects shall be vested 
 •■' in the creditor or creditors, to whom the same 
 
 " shall
 
 OF EXECUTION. 977 
 
 " shall be assigned and conveyed in trust as afore- 
 *' said; and if any overplus shall remain of any 
 " such prisoner's estate, after payment of the debt, 
 *' or damages and costs, which shall be due to any 
 " creditor or creditors, at whose suit any such 
 " prisoner shall, in pursuance of this act, be dis- 
 *' charged out of gaol or prison, and all reasonable 
 " charges expended in or by means of getting in 
 '' such estate or effects, the same shall be paid to 
 *' such prisoner, his or her executors, administra- 
 " tors or assigns." 
 
 " And upon every such discovery, assignment 
 " and conveyance being made and executed, to 
 *' the satisfaction of the court, judge or judges of 
 " assize, justice or justices of great session, before 
 " whom the same shall be made, every such prisoner 
 *' shall, by such court, &c. be discharged and set 
 " at liberty, in the actions and charges, at the 
 " suit of the creditor or creditors, who shall re- 
 *' quire him or her to be so brought up, and also 
 *' in the actions and charges of every other credi- 
 " tor, who shall sign such consent as aforesaid, for 
 " his or her discharge, with the same benefit of 
 " making use of such discharge, as is therein be- 
 " fore provided for prisoners seeking, and who 
 *' shall obtain their discharge, under the provisions 
 " contained in the former part of this act: And 
 '* no stamp shall be necessary on any such assign- 
 
 VoL. II. 2S ment 
 
 .,
 
 978 OF EXECUTION. 
 
 " ment and conveyance, or any rule or order which 
 *' shall be made for any such discharge." 
 
 " But notwithstanding any discharge obtained 
 *' by virtue of that act, for the person of any 
 " prisoner, the judgment obtained against every 
 *' such prisoner shall continue and remain in force, 
 *' and execution may at any time be taken out 
 " thereon, against the lands, tenements, rents, or 
 '' hereditaments, goods or chattels of any such 
 " prisoner, other than and except the necessar}' 
 '* wearing apparel and bedding for himself and fa- 
 '* mily, and the necessary tools for the use of his 
 *' trade or occupation, not exceeding 10/. in value 
 " in the whole s, as if he had never been before 
 *' arrested, taken in execution, and released out of 
 *' prison^." And it has been adjudged, that the 
 effects acquired by an insolvent, after his discharge 
 under the 34 Geo. III. c. 69. are liable to be taken 
 in execution, for a debt due before '. 
 
 For executing a writ o^ fieri facias or capias ad 
 satisfizciendumy the sheriff" is entitled, by the statute 
 29 £liz. c. 4. to twelve-pence for every QOs. when 
 the sum exceedeth not a hundred pounds, and six- 
 pence for every 20*. above that sum, that he shall 
 levy or take the body in execution for; which is 
 
 called 
 
 s In the compulsive clause, restriction in point of value 
 
 § 17. the exception is gene- '^32 Geo. II. c. 28. §20. 
 
 ral, and extends to all wear- i 6 T. R. 366. 
 ing apparel} &c. without any
 
 OF EXECUTION. 979 
 
 caWedhis poundage*. But by the statute 3 Geo. I, 
 c. 15. ^17. poundage upon a capias ad satisfacien- 
 dum shall not be demanded or taken, for any greater 
 sum than the real debt bona Jide due, and marked 
 on the back of the writ. And by the same statute ^^ 
 the sheriff* is entitled, upon executing a writ ol" 
 elegit^ to have for poundage twelve-pence for every 
 20^. of the yearly value of the lands, whereof pos- 
 session is given, where the whole exceedeth not the 
 yearly value of a hundred pounds, and six -pence 
 only for every 20*. per ami. above that value. 
 
 By the statute 23 Hen. VIII. c. 6. \ 8. there was 
 due to his majesty, a fee of one half-penny in the 
 pound, according to the value or sum entered 
 into and contained in every recognisance in nature 
 of a statute staple, taken in pursuance of the said 
 statute, to be paid on sealing the first process on 
 every such recognisance. But by the 8 Geo. I. c. 
 25. § 3. "the prosecutor of every such recognisance 
 shall, at the time of suing out the first process, or 
 a writ of extent thereon, deliver in to the officer 
 who shall make out such process or extent, a note 
 in writing under his hand, testifying the sum or 
 value of the damages thereby intended to be ex- 
 tended, or levied thereon; which sum or value 
 the said officer shall insert in the said writ, to be 
 only extended or levied thereon, and no more; 
 
 and 
 
 * JWf p.911. k (; ]6.
 
 980 OF EXECUTION. 
 
 and that the said poundage of one half-penny, pay- 
 able on all process as aforesaid, shall be taken and 
 paid only for every pound, according to the said 
 sum or value so inserted, and intended to be 
 extended and levied as aforesaid, and not other- 
 wise : And that no sheriff of any county shall take 
 for the extent and liberate^ 2Ci\&hab€re facias posses- 
 sionem or seisinam on the real estate, and levy on 
 the personal estate, by virtue of such extent, any 
 more than the same fees as are appointed by the 3 
 Geo. I. c. 15. for executing a writ of elegit^ and 
 habere facias possessionem or seisinam; under the 
 like penalties and forfeitures, and to be in like 
 manner recovered, against every sheriff or person 
 therein offending, as are mentioned and appointed 
 in and by the same act." 
 
 If a sheriff levy under 2ijieri facias^ he is entitled 
 to poundage, though the parties compromise, be- 
 fore he sells any of the defendant's goods •; and he 
 is entitled thereto, upon a capias ad satisfaciendum y 
 though the defendant go to prison, without satis- 
 fying the plaintiff". But it seems that he is not en- 
 titled to poundage on executing a writ of attach- 
 ment, for non-payment of money". For the 
 poundage he is entitled to, the sheriff may main- 
 tain an action of debt on the statute °, or he may 
 
 retain 
 
 1 5 T. R. 470. "2 East, 411. 
 
 '"4 Burr. 1981.1mp. -S/^er. ° I Salk. 209. 2,:i3. 2 Ld/ 
 145, Raym. 1212. S.C. 
 
 I
 
 OF EXECUTION. 981 
 
 vetain it out of the sum levied ; and if the sheriff 
 take more than he is entitled to, he is liable to an 
 action for treble damages, at the suit of the party 
 grieved p, and shall forfeit 40/. to the king and the 
 informer *i. 
 
 When the judgment is satisfied, by any of the 
 above species of execution or otherwise, the de- 
 fendant has a right to call on the plaintiff for a 
 warrant ' or authority, directed to some attorney of 
 the court wherein the judgment is recovered, au- 
 thorising such attorney to enter up satisfaction on 
 the judgment-roll; which being obtained, a satis- 
 faction-piece * is made out, on a slip of unstampt 
 parchment, in the form of a bail-piece, and taken, 
 with the warrant of attorney, to the clerk of the 
 judgments, who will make an entry thereof in his 
 book of remembrances, and deliver it over to the 
 clerk of the treasury, who enters the same on the 
 roll ^ 
 
 p 2 T. R. 
 
 148. 
 
 
 
 118. 
 
 
 
 1 29 Eliz. 
 
 c. 4. 
 
 
 
 ^Id. 
 
 § 
 
 119. 
 
 ^ Append 
 
 . Chap. 
 
 XLI. 
 
 § 
 
 ^ Id. 
 
 § 
 
 120, 
 
 CHAT
 
 [ 982 ] 
 
 CHAPTER XLIL 
 
 Of Scire Facias. 
 
 A SCIRE FA CIAS is a judicial writ % founded 
 on some matter of record, as a recognisance* 
 judgment, &c. on which it lies to obtain execu- 
 tion ^, or for other purposes % as to repeal letters- 
 patent ^^ hear errors ^, &c. 
 
 But though a scire facias be a judicial writ, yet 
 because the defendant may plead thereto, it is 
 considered in law as an action ^: And therefore 
 a release of all actions is a good bar to a sci7-e fa- 
 cias 5 : And for the same reason, there must be a 
 
 new 
 
 a Though a scire facias be 
 properly 2i judicial writ, yet be- 
 ing the foundation of an action, 
 it is sometimes considered as 
 in nature of an original. Skin. 
 682. Comb. 455. S. C. and see 
 10 Mod. 258. In Littleton^ § 
 505. it is called a writ of exe- 
 cution; and in one case, it was 
 said to be in nature of a decla- 
 ration. 1 Sid. 406. 
 
 b Lit. § 505. Co. Lit. 290. 
 b. 291. a. F. N. B. 267. and 
 see 3 Lev. 220. 
 
 c Bac. Abr. tit. Scire facias, 
 A. B. 
 
 d Id. C. 3. And for a parti- 
 cular account of the writ of 
 scire facias to repeal letters pa- 
 tent, when it lies, and in what 
 court, the form of the writ, 
 and the proceedings, trial and 
 judgmentthereon, see 2 Wms. 
 Saund. 12. fi. q. and see id. 6 
 {\).adfintm. 7 T. R. 367. 
 
 e Post. Chap. XLIIL 
 
 f Co. Lit. 290. b. 291. a. 2 
 Wils. 251. 2Blac.Rep. 1227. 
 2 T. R. 46. 
 
 g Co. Lit. 290. b. Comb. 
 445. Skin. 682. S. C. 2 Ld. 
 Ravm. 1048. 2 Wils. 251.
 
 OF SCIRE FACIAS. 983 
 
 new warrant, to authorise the appearance of the 
 plaintiff's attorney ''; and there is no occasion for 
 II rule to change the attorney in the former suit'. 
 So where a judgment was entered for securing the 
 payment of an annuity, before the 17 Geo. III. c. 
 26. which requires, that " before any execution 
 " shall be sued out, or action brought on any such 
 " judgment, a memorial of the consideration, &c. 
 "shall be enrolled in chancery;" this court set 
 aside a scire facias^ &c. issued after the act, to re- 
 vive the judgment, for want of such a memorial ^'. 
 Upon a recognisance, a scire facias is an origi- 
 nal proceeding ; but upon a judgment, it is only 
 a continuation of the former suit; and therefore 
 where the defendant's attorney, pending an action, 
 agreed that no writ of error should be brought, 
 and afterwards the defendant died, between the 
 execution and return of the writ of inquiry, and 
 thereupon a ^c?re/acm issued against his executors, 
 to shew cause why the damages assessed upon the 
 writ of inquiry, should not be recovered against 
 them, upon which they brought a writ of error ; 
 the court held, that the executors were bound by 
 the agreement of their testator's attorney, and ac- 
 cordingly 
 
 h Cro. Eliz. 177. 2 Ld. ^ Say. Rep. 218. and sec 
 
 Raym. 1048. 1252, 3. 1 Salk. 7 T. R. 337. 2 Bos. Sc PuK 
 
 89. 2 Salk. 603. S. C. and see 357. 
 
 2 Bos. & Pul. 357. {b). k 1 T. R. 267, 8.
 
 984 OF SCIRE FACIAS. 
 
 cordingly ordered him to nonpros the writ of error ^: 
 For this is not a new action, but a continuation of 
 the old one; it is only a scire facias to revive the 
 former judgment; and as the testator himself, if 
 he had lived, could not have brought a writ of 
 error, so neither can his executors ^ 
 
 A recognisance is an obligation of record, which 
 a man enters into before some court of record or 
 magistrate duly authorised "", with condition to do 
 some particular act : And it is either at common 
 law, or by statute. A recognisance at common law 
 is either to the king, or a subject; and may be 
 acknowledged before any one of the judges out of 
 term, and in any part of England, and may be en- 
 tered on record, as well out of as in term : So 
 the chancellor or keeper may take recognisances 
 and award execution, or hold plea of scire facias 
 and audita querela in chancery to avoid execution, 
 &c. as the case requires, on all recognisances ta- 
 ken in that court ". By the custom of the city of 
 LondoUy the mayor and aldermen, or the mayor 
 singly, may take recognisances ; for the custom is 
 not only reasonable in itself, but as all other cus- 
 toms of the city, has been confirmed by act of par- 
 liament °. And the king, by special commission, 
 may appoint any person to take recognisances 
 from one man to another; and such recognisances, 
 
 duly 
 
 M T. R. 388. " Bac. Abr. tit. Execution, 
 
 <n Bro. Abr. tit. Recogni- (B). 
 sance, 24. ^ Id. ibid.
 
 OF SCIRE FACIAS. 985 
 
 duly certified with the commission into Chancery, 
 are binding: And though the commission be so 
 particular, as to mention only a recognisance to be 
 taken from A. to B. yet the commissioners have a 
 general power to take a recognisance from any 
 other person p. 
 
 But recognisances at common law are not per- 
 fect records, till they are enrolled in some court of 
 record '^; for since the law allowed any one judge 
 out of court, and in any part of the kingdom, to 
 take these recognisances, which are the highest 
 security of the common law, it was very necessary 
 they should be enrolled, to perpetuate the contract, 
 and by that means secure the creditor his just debt, 
 which must have been very precarious and uncer- 
 tain, while the security lay in the hands of a pri- 
 vate person, who might either through carelessness 
 mislay, or by ill practices be prevailed upon to 
 suppress it^ 
 
 Recognisances by statute are either founded on 
 a statute -merchant or statute -staple; or are in na- 
 ture of a statute -staple, by the 23 Hen. VIII. c. 6. 
 A statute -77iei'chajit is a bond of record, acknow- 
 ledged before the mayor of ZiO?ido?i, or chief- war- 
 den of some other city or town, or other discreet 
 men for that purpose chosen and sworn, or before 
 
 one 
 
 p Bac. Abr, tit. Execution, •■ Bac. Abr. tit. Execution.^ 
 (B). F. N. B. 267. (B). F.N. B. 267. 
 
 1 But see 2 Vern. 750. 
 Vol. II. 2 T
 
 986 OF SCIRE FACIAS. 
 
 one of the clerks of the statute-merchant, pursuant 
 to the statute of Acton Burnel, (11 Edw. I. ) en- 
 forced and amended by the statute 13 Edw. I. stat. 
 3. de mercatorihus. This recognisance is to be en- 
 tered by the clerk on a roll, which must be double, 
 one part to remain with the mayor or chief- warden, 
 and the other with the clerk, who shall write with 
 his own hand a bill obligatory, to which a seal of 
 the debtor shall be affixed, together with the seal 
 of the king, for that purpose appointed ^ 
 
 The statute -j^cp/d" is a bond of record, acknow- 
 ledged before the mayor of the staple, in the pre- 
 sence of the constables of the staple, or one of 
 them, pursuant to the statute 27 Edw. III. stat. 2. 
 c. 9. To this end, the statute requires that there 
 shall be a seal ordained, which shall remain in the 
 custody of the mayor of the staple, under the seals 
 of the constables; and that all obligations made 
 on such recognisances, shall be sealed therewith \ 
 This security was only designed for the merchants 
 of the staple, and for debts on the sale of mer- 
 chandises 
 
 s Bac. Abr. tit. Execution, be entered in the office of the 
 
 (B). clerk of recognisances taken 
 
 t/rf. ibid. By the stat. 27 according to the 23 Hen. VIII. 
 Eliz. c. 4. § 7, 8. the whole c. 6. who is to enter the same 
 tenor and contents of all sta- statutes in a book provided for 
 tutes-merchant and statutes- that purpose; otherwise they 
 staple shall, within six months are made void, as against sub- 
 after they are acknowledged, sequent purchasers. 
 
 I
 
 OF SCIRE FACIAS. 987 
 
 ehandises brought thither; yet in process of time, 
 others began to apply it to their own purposes, and 
 the mayor and constable would take recognisances 
 from strangers, surmising that they were made for 
 the payment of money, for merchandises brought 
 -to the staple : To prevent this mischief, the parli* 
 ament in the 23 Hen. VIII. reduced the statute- 
 staple to its former limits, and laid a penalty of 40/. 
 on the mayor and constables, who should extend 
 the benefit of the statute to any but those of the 
 staple. But though the statute 23 Hen. VIII. c. 6. 
 deprived them of this benefit, yet it framed a new 
 sort of security, to be used by all persons, known 
 by the name of a recognisance on the 23 Hen. 
 VIII. or a recognisance in the nature of a statute- 
 staple, so called, because this act limits and ap- 
 points the same process, execution, and advan- 
 tage in every particular, as is provided for the sta- 
 tute-staple ^ 
 
 A recognisance therefore in nature of a statute- 
 staple, as the words of the act declare, is the same 
 with the former, only acknowledged before other 
 persons; for as the statute runs, the chief justices 
 of the King's Bench and Common Pleas, and each 
 of them, or in their absence out of term, the mayor 
 of the staple at Westminster and the recorder of 
 London jointly together, shall have power to take 
 
 recognisances 
 
 « Bac. Abr. tit. Execution^ (B).
 
 988 OF SCIRE FACIAS. 
 
 recognisances for payment of debts, in the form 
 set down in the statute ''. In this, as in the former 
 cases, the king appoints a seal to attest the con- 
 tract, and each of the justices shall have the keep- 
 ing of one such seal, and the mayor and recorder 
 another of the like print and fashion ; and every 
 obligation made and acknowledged before either 
 of the justices, or the mayor and recorder, must be 
 sealed with the seal of the conusor, the king's seal, 
 and the seal of the chief-justice, or seals of the 
 mayor and recorder before whom it is taken, who 
 are likewise obliged to subscribe their names'''. 
 Besides this, a clerk was appointed to make, write 
 and enrol all obligations thus acknowledged, and 
 at the request of the conusee, his executors or ad- 
 mininstrators, to certify such obligations into chan- 
 cery, under his seal "". 
 
 The statute-merchant having the seal of the co- 
 nusor, besides the king's seal, the conusee may 
 waive the execution given by the statute 13 Edw. 
 I. and use it as an obligation, by bringing an ac- 
 tion of debt thereon: So, for the same reason, may 
 the conusee on the 23 Hen. VIII. c. 6. the recog- 
 nisance having the seal of the conusor to it. But 
 
 it 
 
 V Stat. 23 Hen. VIII. c. 6. cognisances, and certifying 
 
 § 2, them into chancery, see the 
 
 w Id. § 3. statutes 23 Hen. VIII. c 6. 
 
 X /(/. § 4, 5; and for the §4,5. 8 Geo. I. c.25. § 1, 2, 
 mode of enrolling these re-
 
 OF SCIRE FACIAS. 989 
 
 it is otherwise of a statute -staple, because the king's 
 seal only is affixed thereto, without that of the par- 
 ty, which is absolutely necessary in all obligations 
 at common law y. 
 
 These several securities bind the land at common 
 law, from the time they are entered into ^ : There- 
 fore if a man be conusee of a statute, and the 
 debtor, before execution sued, alien by fine, and 
 five years pass, yet the conusee may still sue out 
 execution \ But a creditor by statute of J. S. who 
 becomes bankrupt before the statute is sued and 
 executed, shall come in only pro rata, though there 
 were lands bound by the statute ''. And by the sta- 
 tute of frauds and perjuries % "the day of the 
 *' month and year of the enrolment of recogni- 
 " sauces shall be set down in the margent of the 
 " roll, where the said recognisances are enrolled; 
 " and no recognisance shall bind any lands, tene- 
 " ments or hereditaments, in the hands of any pur- 
 *' chaser bondjide, and for valuable consideration, 
 *' but from the time of such enrolment." It is also 
 
 declared 
 
 y Bac. Abr. tit. Execution, z 2 Bac. Abr. 363. 3 Co. 14. 
 (B); and for a fuller account ^ 1 Chan. Cas. 268. 1 Mod. 
 of these securities, the differ- 217. 
 ences between them, and the ^ 1 P. Wms. 92. 
 mode of proceeding thereon, c 29 Car. II. c. 3. § 18. ex- 
 see Bac. Abr. \\\., Exccutmi, tended to JFa/e* and the coun- 
 (B). Com. Dig. tit. Statute- ties/m/af//?^, by the 8 G. I. c 
 Merchant. 25. § 6.
 
 990 OF SCIRE FACIAS. 
 
 declared by the register-acts"^ that " no statute or 
 " recognisance (other than such as shall be entered 
 " into, in the name and upon the proper account 
 " of his majesty,) shall affect or bind any manors, 
 " lands, tenements or hereditaments, in Middlesex 
 " or Yorkshire, but only from the time that a me- 
 " morial of such statute or recognisance shall be 
 '' entered at the register-office, in such manner as 
 " therein is directed." 
 
 With regard to the time of suing out execution 
 on these several securities, a distinction is to be 
 made between recognisances at common law, and 
 statutes- merchant, &c. ; for upon the former, if the 
 conusee did not take out execution, within a year 
 after the day of payment assigned in the recogni- 
 sance, he was obliged to commence the suit again 
 by original; the law presuming the debt might 
 have been paid, if he did not sue execution 
 within a year after the money became payable : 
 But this was altered by the statute Westm, 2. (13 
 Edw. I.) Stat. 1. c. 45. which gives the conusee a 
 scire facias to revive the judgment, and put it in 
 execution, if the conusor cannot stay it, by plead- 
 ing such matters as the law judges sufficient for 
 that purpose, such as a release, &c. But the 
 conusee of a statute -merchant, &:c. may at any time 
 
 sue 
 
 <! Ante, 862
 
 OF SCIRE FACIAS. 991 
 
 sue execution, without the delay or charge of a 
 scire facias ^. 
 
 Another distinction is to be made between re- 
 cognisances at common law, and by statute ; for 
 on the first, if the conusee die before execution 
 sued, his executor shall not sue it, even within 
 the year, without bringing a scire facias against the 
 conusor : The reason is, because the law presumes 
 that the debt might have been paid to the testa- 
 tor, and therefore will not suffer the debtor to be 
 molested, unless it appear that he hath omitted to 
 perform the judgment; and for that purpose a 
 scire facias must be brought by the executor, for 
 the alteration of the person altereth a process at 
 common law : But this tending to delay, the scire 
 facias was taken away on recognisances created by 
 statute-law, by the several acts of parliament 
 which introduced them ; and therefore, upon the 
 death of the conusee of a statute -merchant, &c. his 
 executors may come into Chancery, and upon pro- 
 ducing the testament and the statute, have execu- 
 tion without a scire facias, as the testator himself 
 might have had ^. 
 
 But the recognisance which will here principally 
 claim our attention, is the recognisance entered 
 into by the bail in an action, or upon a writ of 
 
 error, 
 
 « Bac. Abr. tit. ExecuttQii, f Id. ibid. 
 B. tit. Scire facias, C.
 
 992 OF SCIRE FACIAS. 
 
 error, either alone or jointly with the principal. 
 Thtjbrm of the recognisance of bail in an action 
 differs, accordingly as the action is by bill or origi- 
 nal: In actions by bill, the undertaking of the bail 
 is general, that if the defendant be condemned in 
 the action, they will pay the condemnation-money, 
 if the defendant shall not pay the same, or render 
 himself to the prison of the marshal^. By original, 
 their recognisance is taken in a penalty or sum cer- 
 tain, being double the amount of the sum sworn 
 to, upon the like condition^. Therefore, if the 
 defendant be condemned in the action, and do not 
 pay the condemnation-money, or render himself 
 to the prison of the marshal, in due time, (or if 
 there be several defendants, and they do not all 
 render themselves^,) the recognisance is forfeited, 
 and the bail are liable to be sued thereon, unless 
 discharged by some of the means stated in a pre- 
 ceding chapter ' : And a cognovit by the principal, 
 without notice to the bail, does not discharge 
 them''. But if the principal be not condemned, 
 or (which is tantamount) be not condemned in 
 the same action, as where the plaintiff declares 
 against the defendant, for a different cause of action 
 from what is expressed in the process ', or affidavit 
 
 to 
 
 § J7itey 220. k 5 T. R. 277. Jnte, 244. 
 
 H 2 Lev. 192. 1 Vent. 315. ' I Str. 202. 2H.Blac.2rs. 
 i Chap. XI. p. 242, &c.
 
 OF SCIRE FACIAS. 993 
 
 to hold to ball'", or by original, in a different county 
 from that where the action is brought", his bail are 
 discharged: And they are also discharged, where 
 the cause is referred to arbitration, unless it be 
 agreed on the reference, that a verdict shall be ta- 
 ken, and judgment entered for the plaintiff's se- 
 curity ^ 
 
 Before any proceedings can be liad against the 
 bail in the action, upon their recognisance, a capias 
 ad satisfaciendum must be sued out against the 
 principal, and returned non est inventus : For it is 
 clearly settled, that no scire facias or action of debt 
 lies against the bail in the action, until a non est inven- 
 tus be returned, upon a capias ad satisfaciendum 
 against the principal ; for the bail are not bound to 
 render the principal, till they know, by the plain- 
 tiff's suing out this writ, that he means to proceed 
 against the person of the defendant ^ : And if the 
 principal be already in custody of the sheriff, in 
 another action, the sheriff will not be justified in 
 returning non est inventus"^. But so as the co/>i(ars 
 ad satisfaciendum be regularly sued out and return- 
 ed, it may be filed at any time ; the filing being 
 
 mere 
 
 « 6 T. R. 363. 7 T. R. 80. 139. Cro. Car. 48 1 . Sty. Rep. 
 
 n3 Lev. 235. R. E. 2 Geo. 281. 288. 323. Lutw. 1273. I 
 
 II. a. Barnes, 116. Ld. Raym. 156. 10 Mod. 267. 
 
 o Ante, 761, 2. R, E. 5 Geo. II. Rei,-. 3. a. 
 i> Poph. 186. W. Jon. 29. q Per. Cur. M. 42 G. III. 
 
 Vol. 11. 2U
 
 994 OF SCIRE FACIAS. 
 
 "mere matter of form "^ : And if the principal die af- 
 ter the return of the capias ad satisfaciendum^ and 
 before the return be filed, the bail are fixed, and 
 the court will not stay the filing of the return, in 
 favour of the bail ^ 
 
 The capias ad satisfaciendian against the princi- 
 pal, should be directed to the sheriff of the county 
 where the original action was laid : And where the 
 proceedings are by bill, there must be eight days, 
 or if by original fifteen days, between the teste and 
 return of the writ ^ ; the latter being a case except- 
 ed out of the statute 13 Car. II. stat. 2. c. 2. § 7: 
 And in order to charge the bail, it must lie four 
 days exclusive in the sheriif's ofiice"; and be made 
 returnable, like the former proceedings, on a day 
 certain, or general return-day. 
 
 Upon the return of jion est ijiventus to the capias 
 ■ad satisfaciendum^ the recognisance being forfeit- 
 ed, the plaintiff may proceed thereon against the 
 bail in the action, and against the principal also, if 
 he joined in the recognisance, by action of debt or 
 scire facias : And the proceeding in either case 
 may be commenced on the return-day of the capias 
 ad satisfaciendum against the principal ''. In debt, 
 the plaintiff may bring one action against all the 
 
 persons 
 
 «• 1 Lev. 225. 3 Bur. 1360. Reg. 3. a. 
 1 Blac. Rep 393. S. C. "2 Salk. 599. R. E. 5 Geo 
 
 » 6 T. R. 284. II. Reg. 3. a. 
 
 t 2 Salk. 602. 2 Ld. Raym. ^ 8 T. R. 628. and see 2 Ld. 
 
 \ 177. S. C. R. E. 5 Geo. II. Raym. 1567. 2 Str. 866. S. C
 
 OF SCIRE PACIAS. 995 
 
 persons bound in the recognisance, or several ac« 
 tions against each of them : But one scire facias 
 seems in all cases to be sufficient; for the recog- 
 nisance being joint and several, it is holden that 
 the execution may be several, though the scire fa- 
 cias was joint "'. 
 
 In an action oidebt upon a recognisance of bail, 
 the defendant cannot be arrested; for the suffi- 
 ciency of the bail must have been proved or ad- 
 mitted, previous to their being allowed; and if the 
 defendant were arrested in such an action, there 
 would be bail in ijifiiiitum ''. And where a writ is 
 sued out upon a recognisance of bail, it is necessa- 
 ry, by rule of court, that after the words " in a plea 
 *' of trespass ^^"^ there should be inserted the follow- 
 ing clause, " and also to a bill of the said plaintiff, 
 " agaijist the said defendant, in a plea of debt upon 
 '* recognisance, according to the custom of our court 
 *' before us to be exhibited ;'''* otherwise the defen- 
 dant, or his attorney, is not bound to accept a de- 
 claration in debt upon such recognisance ^. 
 
 We have already seen ^, what time the bail are 
 allowed to render their principal, when they are 
 proceeded against in an action of debt upon their 
 recognisance. We have also seen ^, that on staying 
 
 proceedings 
 
 '*' Bac. Abr. tit. Execution, y R. E. 15 Geo. II. Ante, 
 
 G. 1 Lev. 225. 1 Sid. 339, 84. 
 
 S.C. ^Jnte,237. 
 
 ^ Ante, 152, 3. » Ante, 483.
 
 996 OF SCIRE FACIAS. 
 
 proceedings, in an action of debt on recognisance, 
 the bail must pay the costs in that, as well as the 
 debt and costs in the original action, though they 
 apply \\dthin the time allowed them for surrender- 
 ing the principal: And on that account, it is in 
 general more adviseable to proceed against the 
 bail, by action of debt on the recognisance, than 
 by sch'e facias^ wherein no costs are allowed, un- 
 less they appear and plead, or join in demurrer ^. 
 There is also a further reason for proceeding by ac- 
 tion of debt on the recognisance, namely, that in 
 such an action, the plaintiff may recover damages 
 for the detention of the debt, which he cannot do 
 in scire facias^. But as a copy of the process must 
 be served in debt, if the bail be out of the way, or 
 the plaintiff do not mean to give them notice, he 
 must proceed by scire facias on the recognisance. 
 
 A scire facias against the bail in the action, is- 
 sues out of the court in which the action was de- 
 pending ; and begins by stating the recognisance, 
 after which the judgment is set forth, prout patet 
 per recordum : It then states, that the principal has 
 not paid the debt or damages recovered, nor ren- 
 dered himself to the prison of the marshal ^ ; and 
 concludes by requiring the sheriff to make known 
 
 to 
 
 b Stat. 8 & 9 W. III. c. 11. ^ 2 Salk. 439. 3 Salk. 320. 
 §3.3 Bos. 8c Pul. 14. 2 Ld. Raym. 804, S. C, 
 
 cS Bur. 179 L 
 
 II
 
 OF SCIRE F AC I AS. 997 
 
 lo the bail, that they be before the khig at TFest- 
 minster, on a day certain, (by bill, or by origlnalon 
 a general return-day, wheresoever, &c.)to shew if 
 they have or know of any thing to say for them- 
 selves, why the plaintiff ought not to have his ex- 
 ecution against them, for the debt or damages 
 aforesaid, (by bill, or by original for the sum ac- 
 knowledged,) according to the force, form and ef- 
 fect of the recognisance, if it sail seem expedient 
 for him so to do; and further, he ^. On a recogni- 
 sance of bail, the scii'e facias against the principal 
 is in hac parte, or that he do and receive what the 
 court shall consider of him in this behalf; but 
 against the bail it is in ed parte, or that they do 
 and receive what the court shall consider of them 
 in that behalf^. And where a scire facias, was 
 brought against three persons as bail, upon a re- 
 cognisance acknowledged by them and the princi- 
 pal jointly, the writ abated; because this being 
 founded on a record, the plaintiif ought to set forth 
 the cause of the variance from the record, as that 
 one was dead ^ : But if an action be brought upon 
 a joint bond, against three only, where there arc 
 four or five obligors, there the defendant ought to 
 shew that it was made by them and others in full 
 
 life, 
 
 e Append. Chap. XLII. § 599. S. C. but see 1 Ld. 
 2, £cc. Raym. 532. semb. contra. 
 
 f 1 Ld. Raym. 393. 2 Salk. k Aleyn, 2 1 .
 
 998 OF SCIRE FACIAS. 
 
 life, not named in the writ ; for otherwise the court 
 will not intend that the bond was sealed ^ 
 
 By the recognisance of bail in error, which will 
 be more fully treated of in the next chapter, the 
 plaintiff or plaintiffs in the writ of error become 
 bound, with two sufficient sureties, in double the 
 sum adjudged to be recovered by the former judg- 
 ment, to prosecute the writ of error with effect, and 
 also to satisfy and pay, if the judgment be affirm- 
 ed, as well the debt or damages and costs adjudged 
 upon the former judgment, as also all costs and 
 damages to be awarded for the delay of execution '. 
 Therefore if the writ of error be nonprossed or dis- 
 continued, or the judgment affirmed, the defendant 
 in error may proceed against the bail upon their 
 recognisance, by action of debt or scire facias at 
 his election. And as a render in this case will not 
 excuse the bail '', there is no occasion to sue out 
 a capias ad satisfaciendum, in order to proceed 
 against them. 
 
 The scire facias against bail in error should be 
 brought in the same court where the recognisance 
 was taken, unless it was taken in the Common 
 Pleas, and then the scire facias may be brought 
 either in that court, or in the King's-Bench, to 
 which the record is supposed to be removed '. 
 
 This 
 
 'f^AleynjSl. XLII.5 6, 7. 28, 29. 
 
 » Stat. 3 Jac. I.e. 8. 13 Car. ^ r. m. 5 W; & M. (b). 
 
 II. Stat. 2. c. 2. § 9. 16 8c ir > Lil. Ent. 643. 3 Mod. 
 
 Car. II c. 8. § 3. 19 Geo. III. 251. 1 Wils. 98. 
 c, 70. and see Append, Chap.
 
 OF SCIRE FACIAS. 999 
 
 This writ is made out by the clerk of the errors'"; 
 and on a recognisance taken in the King's-Bench, 
 it recites not only the recognisance, but the condi- 
 tion of it, and the affirmance of the judgment", &c. 
 but on a recognisance taken in the Common Pleas, 
 the scire Jacias merely states the recognisance, and 
 the non-payment of the sum acknowledged to be 
 due " ; for in that court, the condition of the recog- 
 nisance in error is not incorporated, as it is in a re- 
 cognisance of bail on a capias ad responde7idu?7i^ but 
 it is subscribed by way of defeasance ; so that the 
 recognisance and condition are two distinct re- 
 cords ^ : And besides, if the condition were stated, 
 it would be necessary to state also the affirmance of 
 the judgment, which might occasion difficulty, if 
 the bail were to appear and plead mil tiel record of 
 the judgment of affirmance, which remains in the 
 King's-Bench. 
 
 A scire facias upon a judgment is either by or 
 against the same or different parties. As between 
 the same parties, it will be proper to treat of a 
 scire facias ^ in the following cases ; first, after a 
 year and a day ; secondly, after a writ of error 
 brought in the King's-Bench, to compel the plain- 
 tiff in error to assign errors; thirdly, where judg- 
 ment 
 
 n^ Barnes, 93. o /gT. § 5. 
 
 " Append. Chap. XLII. ^6 r l^arnes. QS. :s%9^
 
 1000 OF SCIRE I-ACIA3. 
 
 ment is given in covenant or annuity^ or in debt oil 
 bond conditioned for the payment of an annuity, 
 or of money by instalments, or for the performance 
 ofcovcna?its, and damages arise, or money becomes 
 payable, on the same securit)^ after the judgment; 
 and fourthly, when the debt or damages recovered 
 are to be levied out oi future eft'ects, or, in the case 
 of an executor or administrator, de bonis propriis^ 
 And first, of the scire facias after a year and a day. 
 
 At common law, in rt'a/ actions, \vhere land was 
 recovered, the demandant after the year, might have 
 taken out a scire facias to revive the judgment, be- 
 cause the judgment being particular ^z^oac^ the land, 
 with a certain description, the law required that 
 the execution of that judgment should be entered 
 upon the roll, that it might be seen, whether exe- 
 cution was delivered of the same thing of which 
 judgment was given; and therefore if there was no 
 execution appearing on the roll, a scire facias issu- 
 ed, to shew cause why execution should not be 
 awarded '^ : Besides, in real actions, if execution 
 was not sued within the year, a scij'e facias lay for 
 the land, because no other advantage could be ta- 
 ken of the judgment, as an action of debt could not 
 be maintained thereon ^ 
 
 But if the plaintiff, after he had obtained judgment 
 in n personal v.ct'ion, had lain by, and taken no pro- 
 cess of execution within the year, he was put to a 
 
 new 
 
 '1 Bac. Abr. lit. Exenition. H. '" 3 Salk. 321.
 
 OF SCIRE FACIAS. 1001 
 
 new original upon his judgment, and no scire 
 facias was issuable ; because there was not a judg- 
 ment for any pailicular thing in the personal action, 
 with which the execution could be compared: 
 Therefore after a reasonable time, which was a year 
 .and a day, it was presumed to be executed, and the 
 law allowed him no scire facias^ to shew cause why . 
 there should not be execution; but if the party had 
 exceeded his time, he was put to his action on the 
 judgment, and the defendant was obliged to shew 
 how the debt, of which the judgment was evidence, 
 was discharged ^ 
 
 To remedy this, and make the modes of pro- 
 ceeding more uniform in both actions, the statute 
 of Westm. 2. (13 Edw. I.) stat. 1. c. 45. gave a 
 scire facias to the plaintiff in a personal action to 
 revive the judgment, where he had omitted to sue 
 execution within the year after judgment was ob- 
 tained ^ The words of the act are " that those 
 " things which are found enrolled before them that 
 " have the record, or contained in fines, whether 
 " they be contracts, covenants, obligations, ser- 
 " vices or customs, recognisances, or other things 
 *' whatsoever enrolled, to which the King's court 
 *' may lawfully give effect, from henceforth shall 
 " have such force, that hereafter it shall not be 
 
 " necessary 
 
 sBac. Abr. tit. Execution, S. C. 
 H. but see 2 Salk. 600. 7 t Bac Abr. tit. jE,xccution, 
 Mod. 64. 2 Ld. Raym. 806. II. 
 
 Vol. IT. "^ 2X
 
 I0(>2 OF SCIRE FACIAS. 
 
 *^' necessary to implead upon them: But when the 
 " plaintiff comes to the king's court, if the recog- 
 '' nisance or fine levied be recent, that is to say^ 
 " levied within the year, he shall forthwith have 
 " a writ of execution of the same recognisance. 
 " And if perchance the recognisance were made, 
 "or fine levied, of a longer time past, the sheriff 
 " shall be commanded, that he make known to the 
 *' party of whom the complaint is made, that he 
 " be before the justices at a certain day, to shew if 
 " he has any thing to say, why such matters en- 
 " rolled, or contained in the fine, ought not to have 
 "' execution : And if he do not come at the day, or 
 " come and can say nothing why execution ought 
 " not to be made, the sheriff shall be commanded 
 " to cause the thing enrolled, or contained in the 
 •' fine, to be executed." But notwithstanding this 
 statute, the plaintiff may still proceed, if he think 
 proper, by action of debt on the judgment. 
 
 It hath been doubted, whetljer a scire facias lay^ 
 to revive a judgment in ejectment, after a year and 
 a day, either by the common law, or by force of the 
 above statute ; for at common law, this was look- 
 ed upon as a personal action, and it was thought 
 that the statute extended only to such personal ac- 
 tions, in which debt or damages were recovered, 
 and not to provide a remedy in this case, since at 
 the time of making the act, the possession was not 
 
 recovered
 
 OF SCIRE FACIAS. 1003 
 
 specovered in this action : But it seems now to be 
 settled, and is confirmed by daily practice, that a 
 ^?re facias lies on a judgment in ejectment; for 
 the words of the act are, '* whether they be con- 
 *' tracts, &c, or other things whatsoever enrolled," 
 which comprehend all judgments, and give the like 
 remedy on them by scire facias^ as the demandant 
 had on a judgment inarealactionatcommonlaw^ 
 The reason why the plaintiff is put to his scire 
 facias after the year, is because where he lies by 
 so long after judgment, it shall be presumed that 
 he hath released the execution, and therefore 
 the defendant shall not be disturbed, without be-, 
 ing called upon, and having an opportunity in 
 court of pleading the release, or shewing cause, if 
 he can, why the execution should not go ". And 
 it is said, that if the plaintiff delay executing a 
 writ of inquiry, till a year after interlocutory judg- 
 ment, he cannot do it after, without a scire facias ^^ 
 The year must be computed from the day of sign- 
 ing judgment " ; and is to be reckoned by calendar 
 months, and not by terms ^. And if the plaintifi 
 sue a scire facias within a year after the judgment^ 
 
 he 
 
 " Bac. Abr. tit. Executioiij ^ 2 Inst. 470. 
 
 H. The sczVeycczas in this case ^^ 12 Mod. 500, scd quaere^ 
 
 should go against the terte- whethei' a term's notice is not 
 
 nants, as well as tlie defendant, in this case sufficient ? 
 
 1 Salk. 258. and see Carth. 2. ^ Barnes, 197. 
 
 2 Salk. 600. 1 Ld. Raym. 669. y l Str. 301 . and see 6 Mod. 
 
 3 Salk. 319. S.C. Run. Eject. 14, 
 426, &c.
 
 1004 OF SCIRE FACIAS. 
 
 he cannot afterwards have a capias within the year, 
 till h§ hath a new judgment in the scire facias '\ 
 
 But in the case of the king, there need not be 
 any scire facias after the year^, for nullum tempus 
 occurrit regi. And though the general rule be, that 
 the plaintiff cannot in other cases take out execu- 
 tion after the year, without a scire facias, yet this 
 rule must be understood with the following restric- 
 tions. 
 
 Where si feri facias or capias ad satisfaciendum 
 is taken out within the year, and not executed, a 
 new writ of execution may be sued out at any 
 time afterwards, without a scire facias; provided 
 the first writ be returned, and continuances en- 
 tered from the time of issuing it '': which continu- 
 ances may be entered after the issuing of the second 
 writ, unless a rule be made upon motion, for the 
 proceedings to remain in statu quo. And if judg- 
 iiienL be given, and no execution sued out within 
 the year, yet the plaintiff may afterwards enter an 
 award of an elegit on the roll of the judgment, as 
 of the same term with the judgment, and thence 
 Contimit'itdiOwnhyvicecomes non misit breve: And 
 though the court at first inclined to think, that an 
 elegit ought to be actually taken out within the 
 year, yet being informed by the clerks of the 
 
 court, 
 
 z Rol. Abr. 900. 1 Keb. 159. S. C Carth. 283. 
 
 a 2 Salk. 603. Comb. 232. S. C. 3 Salk. 321. 
 
 bCo. Lit. 290. b. 2 Inst. 1 Str. 100. 
 471. 2 Leon. 77 ^Q. 1 Sid. 59. 
 
 i\
 
 OF SCIRE FACIAS. 1005' 
 
 court, that it had been the practice for many years 
 to make such an entry, &c. it was said to'be the 
 law of the court, and they ordered the execution 
 to standi 
 
 If the plaintiff have judgment with a cesset 
 execution or stay of execution for a year, he may 
 after the year, take out execution without a scire 
 facias S because the delay is by consent of parties, 
 and in favour of the defendant ; and the indulgence 
 of the plaintiff ought not to be turned to his preju- 
 dice : But if the plaintiff do not take out execution, 
 within a year after the cesset executio is deter- 
 mined, he must sue out a scire facias ^ 
 
 So if the defendant bring a writ of error ^ and 
 thereby hinder the plaintiff from taking out 
 execution within the year, and the judgment be 
 affirmed, the plaintiff in error nonsuited, or the 
 writ of error abated or discontinued, the de- 
 fendant in error may proceed to execution after 
 the year, without a scire facias^ \ because the 
 writ of error was a supersedeas to, the execution, 
 and the defendant in error must wait till it be 
 determined. It has even been holden, in one 
 case s, that if a writ of error be brought after the 
 
 year 
 
 c Carth. 283. Comb. 232. Eliz. 416. Carth. 237. 6 Mod. 
 
 S. C. 288. 1 6alk. 322. S. C, 3 Salk, 
 
 d 6 Mod. 288. 1 Salk. 322. 321. 
 
 S. C. g 1 Rol. Rep. 104. Cro. Jap-. 
 
 e 2 Cromp. 102. 364. S. C. 
 
 f 2 Inst. 471. 5 Co. 88. Cro.
 
 1006 OF SCIRE PACIAS. 
 
 year is elapsed, and thereupon the former judg- 
 ment is affirmed, such affirmance will revive the 
 former judgment, and enable the party to take out 
 execution, w'lthoutascirejacias: But from this case 
 it seems, that if the plaintiff in error be nonsuited, 
 or the writ of error discontinued, there can be no 
 execution of the former judgment, without a scire 
 facias. 
 
 It was formerly holden, that if the plaintiff were 
 restrained by injunction out of Chancery for 
 a year, he could not take out execution after- 
 wards, without a scire facias^; because the 
 courts of law do not take notice of Chancery in- 
 junctions, as they do of writs of error: besides, 
 it might be no breach of the injunction, to take 
 out execution within the year, and continue it 
 dowii by vicecomes non misit breve, which cannot 
 be done in the case of a writ of error. But in a 
 modern case ', where it appeared that the whole 
 delay had arisen on the part of the defendant, by 
 bills in chancery for injunctions, and by obtain- 
 ing time for payment, &c. the court were unani- 
 mous, that this rule, of reviving a judgment 
 above a year old by scire facias, before execu- 
 tion, which was intended to prevent a surprise 
 upon the defendant, ought not to be taken ad- 
 vantage of by one, who \\ as so far from being 
 
 surprised 
 
 'i 6 Mod. 288. 1 Salk. 322. i 2 Bur. 660. 
 S. C. 1 Str. 301. S. P. 
 
 I
 
 OF SCIRE FACIAS. 1007 
 
 surprised by the delay, that he himself had been 
 trying all manner of methods, whereby he might 
 delay the plaintiff; and therefore they discharged 
 the rule for setting aside the execution, with 
 costs. 
 
 The scire facias upon a judgment must be sued 
 out of the same court where the judgment was 
 given, if the record remains there *"; or if it has 
 been removed, out of the court where the record 
 is. If the judgment be under seven years old, the 
 plaintiff, we have seen ', may sue out a scire faciaSy 
 as a matter of course, without any rule or motion: 
 If it be above seven years, but under ten^ he can- 
 not have a scire facias, without a side-bar rule °\ If 
 it be above ten years old, but under twenty, there 
 must be a motion under counsel's hand, supported 
 by an affidavit that the judgment is unsatisfied " : 
 And if the judgment be of more than twenty years 
 standing, there must be a rule to shew cause, on a 
 similar affidavit °. 
 
 A scire facias upon a judgment, after a year and 
 a day, states the judgment recovered by the plain- 
 tiff, which differs according to the nature of the 
 action, and the court in which it was obtained : 
 And when a scire facias is brought on a judgment 
 
 in 
 
 k Comb. Dig. tit. Pleader, 3 Sty. P. R. 495 . 
 
 L. 3. " Id. ibid. 
 
 i.//ra/f, 439.(o). ° Blakeleyv. Fi?icent,T. 35 
 
 m 2 Salk. 598. Comb. 356. Geo. III. JVa(ers v. Hales, E. 
 
 S. C. and see CI. Inst. 159. 37 Geo. III.
 
 1008 OF SCIRE FACIAS. 
 
 in the King's Bench, the plaintiff must shew where 
 the court of King's Bench was held, because that 
 court is ambulatory : But if it be brought upon a 
 judgment in the Common Pleas, it is otherwise, 
 because that court is confined to a certain place ^ 
 It then states, that although judgment be thereup- 
 on given, yet execution of the debt or damages still 
 remains to be made ; and commands the sheriff, 
 to make known to the defendant, that he be in 
 court at the return-day, to shew why the plaintiff 
 ought not to have execution against him for the 
 debt or damages, according to the form and effect 
 of the recovery, &c ''. This being a judicial writ, 
 must pursue the nature of the judgment: therefore 
 if a joint judgment be obtained against two, the 
 scire facias must be against both"^: And in setting 
 out the judgment, if there be a material variance, 
 it will be fatal, on mil tiel record. 
 
 Where a scire facias is brought in the King's 
 Bench, upon a judgment of an inferior court, it 
 must appear in the writ itself, how the judgment 
 came into the King's-Bench, whether by certio- 
 rari^ or by writ of error, because the execution is 
 different ' ; for if it came in by certiorari^ the scire 
 facias ought to shew the particular limits of 
 the inferior jurisdiction, and pray execution within 
 
 those 
 
 PSSalk. 321. S. C. 
 
 1 Append. Chap. XLII. § ^ 3 Salk. 320. 1 Ld. Raym- 
 
 31, &c. 216. S. C. 
 '•2 Salk. 598. Carth. 105..
 
 OF SCIRE FACIAS. 100^ 
 
 those limits ' : But if the judgment be removed in- 
 to the King's-Bench by writ of error, and affirmed, 
 the party may have execution in any part of Eng- 
 land; for by the affirmance, it is become the judg- 
 ment of the King's-Bench ". 
 
 After the judgment has been once revived hy scire 
 facias^ if the plaintiff do not take out execution 
 within a year ^, or the defendant die before execu- 
 tion '% the plaintiff cannot afterwards take it out, 
 without a new scire facias., or action on the judg— 
 ment; but he may have a new writ without motion, 
 for the judgment was revived before ''. 
 
 Secondly: As the parties in the King's-Bench, 
 have no day in court given to either of them, on 
 the removal of the record by writ of error ^ the de- 
 fendant in error hath no other way of compelling 
 the plaintiff to assign his errors, than by suing out 
 a writ oi scire facias qiiare executionem non, &c. ^; 
 and if upon such writ, the plaiatiff in error do not 
 assign errors, but suffer judgment to pass by de- 
 fault upon scire feci, or two nihils, no errors after- 
 wards 
 
 t But see the statutes 19 Blac. 532. ^/z/e, Chap. XVII. 
 
 Geo. III. c. 70. and 33 Geo. "Append. Chap. XLII. § 
 
 III. c. 68. by which execution 43, &c. 1 Ld. Raym. 216. 3 
 
 may be issued in certain cases, Salk. 320. S. C. and see 3 T. 
 
 out of the courts at IVestmin- R. 657. 
 
 «?er, upon judcrments obtained ^ 2 Cromp. 103. Imp. K. 
 
 in inferior courts, against the B. 382. 
 
 person or effects of the defen- w 2 Salk. 598. 
 
 dant, in like manner as upon ^ Id. ibid. 
 
 juds^ments obtained in the y Godb. S8. 3 Leon. 197 
 <!ourts above : And see 1 H . 
 
 Vol. II. 3Y
 
 lOlG OP SCIRE FACIAS. 
 
 wards assigned shall prevent execution*. This 
 writ, and the proceedings thereon, will be more 
 fully treated of in the next chapter. 
 
 Thirdly y with respect to demands arising after 
 the judgment, it is said to have been adjudged, 
 that in covenants perpetual, as to repair, &c. if they 
 be once broken, and an action of covenant brought, 
 and a recovery had thereon, if they be afterwards 
 broken, the plaintiff shall have a scire facias upon 
 the judgment, and need not bring a new writ of 
 covenant ^ 
 
 Upon a writ of annuity^ the old books differ as 
 to the necessity of a scire facias^ in order to have 
 execution for subsequent arrears. In some books 
 it is said, that if judgment be given in a writ of an- 
 niiity^ the plaintiff shall have execution, within the 
 year after every day of payment, hy Jieri facias or 
 elegit, though it be many years after the judg- 
 ment '' ; but other books seem to hold a different 
 doctrine, and that for arrearages incurred after the 
 judgment, it is necessary to have a scire facias, in 
 order that the defendant may have an opportunity 
 of pleading payment, or other matter in bar of ex- 
 ecution ^ 
 
 2 Carth. 40, 4 1 . « 1 1 Hen. IV. 34. Bro. Abr. 
 
 a Crc. Eliz. 3. but see 3 tit. jinnuity, -pi. 17. tit. Scire 
 
 Leon. 51. facias, pi. 75. Co. Lit. 145. 2 
 
 "> 21 Edvv. III. 22. 2 Inst. Co. 37. 6 Co. 45. Jenk. 51,2. 
 
 471. 1 Rol. Abr. 900. 2 Blac. 1 Rol. Abr. 229. 1 Salk. 258 
 
 Kep. 844. 2 Salk. 600,
 
 OF SCIRE FACIAL. .1011 
 
 ecution. And this latter opinion is in some mea- 
 sure confirmed by the language of the judgment, 
 which is to recover the annuity, and arrearages of 
 the same, as well before the bringing of the action 
 as afterwards, up to the time when judgment is 
 given*^ ; but the amount of the arrearages subse- 
 quent to the judgment not being ascertained, it 
 seems to be necessary to have a scire facias^ to 
 warrant an execution. 
 
 In an action of (/e-f^? on bond, conditioned for the 
 payment of an annuity, after judgment had been 
 once obtained, it does not seem to have been for- 
 merly necessary to have a scire facias, to warrant 
 an execution for subsequent arrears ; but an exe- 
 cution might have been sued out for such arrears, 
 without a scire facias, at any time within a year af- 
 ter they were incurred, or even afterwards, if a 
 writ of execution had been previously taken out, 
 and was properly continued down *". Under such 
 an execution however, the plaintiff was not allowed 
 to levy the whole penalty, but only the arrears; 
 and therefore where he levied the whole penalty, 
 the court made a rule upon him to refund the 
 overplus, beyond what would satisfy the arrears; 
 and that judgment should stand as a security, with 
 liberty to take out execution, as future arrears 
 
 should 
 
 •iCo. Ent. 50. Cro- Car. « 2 Blac. Rep.843. and se« 
 
 436. Ante, 842. 1 H. Blac. 297.
 
 1012 OF SCIRE FACIAS. 
 
 should arise ^. And now, as a bond conditioned for 
 the payment of an annuity is held to be within the 
 statute 8 & 9 W. III. c. 1 1. ^ 8 '^. it seems neces- 
 sary to proceed by scire facias on that statute, for 
 subsequent arrears. 
 
 In an action of debt on bond, conditioned for the 
 payment of money by instalments^ where the pro- 
 ceedings are stayed on payment of one or more 
 of the instalments, judg-ment is entered as a secu- 
 rity for the remainder, with a stay of execution till 
 they become due ; and in such case, there seems 
 to be no necessity for a scire facias, if execution be 
 taken out within a year after each default ^ 
 
 Where judgment is entered in an action of debt 
 on bond, or on any penal sum, for non -performance 
 of covenants or agreements in any indenture, deed 
 or writing contained, we may remember ', that by 
 the statute 8 &. 9 /r. III. c. 11. ^ 8. it remains as 
 a security to answer such damages as shall or 
 may be sustained, for further breach of any covenant 
 or covenants in the same indenture, deed or wri- 
 ting contained; and the statute further directs, that 
 " the plaintiff may have a scire facias upon the said 
 '' judgment against tlie defendant, or against his 
 ^* heir, tertenants, executors or administrators, 
 *' suggesting other breaches of the said covenants 
 
 ''or 
 
 f 2 Blac. Rep. 1111. Rep. 706. 958. Bames, 281. 
 
 %Jnte,5\\. Jnte, 485. 
 
 ^ 2 Str. 814. 957. 2 Blac '^ j^niey 51©.
 
 OF SCIRE FACIAS. 
 
 1013 
 
 or agreements, and to summon him or them re- 
 spectively to shew cause, why execution should 
 not be had or awarded upon the said judgment''; 
 upon which there shall be the like proceeding, 
 as in the action of debt upon the said bond or 
 obligation, for assessing damages upon trial of 
 issues joined upon such breaches, or inquiry 
 thereof upon a writ to be awarded in manner as 
 therein directed; and that upon payment or satis- 
 faction of such future damages, costs and charges, 
 all further proceedings on the said judgment are 
 again to be stayed, and so toties quoties^ and the 
 defendant, his body lands or goods, shall be dis- 
 charged out of execution." 
 Fourthly^ with regard \.o future effects, it is enac- 
 ted by the statute 5 Geo, II. c. 30. § 9. that " in case 
 " any commission oi bankruptcy shall issue against 
 " any person or persons, who shall have been dis- 
 *' charged by virtue of that act, or shall have com- 
 *' pounded with his, her or their creditors, or de- 
 " livered to them his, her or their estate or effects, 
 " and been released by them, or been discharged 
 " by any act for the relief of insolvent debtors, then 
 " and in either of those cases, the body and bodies 
 " only of such person and persons conforming as 
 " therein mentioned, shall be free from arrest and 
 " imprisonment, by virtue of that act; but the 
 
 ^''future 
 
 ^ Append. Chap. XLII. § 46.
 
 1014 0F SCIRE FACIAS. 
 
 '■^future estate and eflfects of every such person and 
 " persons shall remain liable to his, her or their 
 *' creditors, as before the making of that act; 
 " (the tools of trade, necessary household goods 
 " and furniture, and necessary wearing apparel of 
 " such bankrupt, and his wife and children, only 
 *' excepted,) unless the estate of such person or 
 " persons, against whom such commission shall be 
 " awarded, shall produce clear after all charges, 
 " sufficient to pay every creditor under the said 
 " commission, jifteeii shillings in the pound for 
 *' their respective debts." Upon this statute it has 
 been holden, that though a prior commission be 
 superseded by consent, a second bankruptcy does 
 not protect future effects, unless fifteen shillings in 
 the pound are paid under the second commission '. 
 The judgment against a bankrupt, under the 
 above circumstances, is general, if given before he 
 has obtained his certificate under the second com- 
 mission ; or if given afterwards, it may be special, 
 against his future estate and effects, with the ex- 
 ceptions in the statute. On a general judgment, the 
 plaintiff it seems cannot sue out a special execu- 
 tion against the future effects of the bankrupt, such 
 an execution not being warranted by the judg- 
 ment "". But where the defendant, having given a 
 warrant of attorney to confess a judgment, took the 
 
 benefit 
 
 ' Doug. 46. « 1 T. R. 80.
 
 OF SCIRE FACIAS. 1015 
 
 benefit of an insolvent act, and then became bank- 
 rupt and obtained his certificate ; after which the 
 plaintiff entered up a general judgment, and sued 
 out a general execution against his effects; the court 
 of Common Pleas held the proceedings to be regu- 
 lar, and that no scire facias was necessary, to autho- 
 rize either the judgment or execution; no dividend 
 appearing to have been made, nor any goods taken 
 under the execution more than the plaintiff was 
 entitled to ". 
 
 Where a writ of scire facias is necessary, as 
 where the judgment has been given more than a 
 year, and the defendant in the mean- time has been 
 taken in execution, and discharged upon obtain- 
 ing his certificate, the scire facias should state the 
 judgment, and the circumstances which make the 
 defendant's future estate and effects liable to satisfy 
 it, as that he was before a bankrupt, or had com- 
 pounded with his creditors, &.c. ; and in particular, 
 it is necessary to aver, that the bankrupt's estate 
 had not paid fifteen shillings in the pound under 
 the second commission, at the time of suing out the 
 writ: It then states, that the defendant has become 
 seised or possessed of some estate or effects ; and 
 commands the sheriff, that he make known to the 
 defendant, to appear in court at the return-day, to 
 shew why the plaintiff should not have execution 
 •f the debt or damages, to be levied of the estate 
 
 and 
 «3Bos. &Pul. lis.
 
 1016 OF SCIRE FACIAS. 
 
 and effects, whereof the defendant hath become 
 seised or possessed, since the obtaining of his 
 certificate under the last commission, except his 
 tools, &c. 
 
 By the Lords' act, (32 Geo, 11. c. 28. ) 17. 20.) 
 we may remember", that "notwithstanding any 
 " discharge obtained by virtue of that act, for the 
 " person of any prisoner, the judgment obtained 
 " against every such prisoner shall continue and re- 
 " main in force, and execution may at any time be 
 " taken out thereon, against the lands, tenements, 
 " rents or hereditaments, goods or chattels of any 
 " such prisoner, other than and except the neces- 
 " sary wearing apparel and bedding for himself 
 " and family, and the necessary tools for the use of 
 *' his trade or occupation, not exceeding 10/. in 
 " value in the whole, as if he had never been be- 
 " fore arrested, taken in execution, and released 
 " out of prison." And it has been determined, that 
 the effects acquired by an insolvent, after his dis- 
 charare under the 34 Geo. III. c. 69. are liable to 
 be taken in execution, for a debt due before •*. 
 
 On a general judgment, obtained against a de- 
 fendant, before his discharge under an insolvent 
 act, no special execution can be taken out, with- 
 out first suing out a scire facias"^. And where a 
 
 warrant 
 
 o Jnte, 978. 1 1 T. R. 79. 
 
 p 6 T. R. 366. Ante, 978.
 
 OF SCIRE FACIAS. 1017 
 
 warrant of attorney was given, before the passing 
 of an insolvent act, of which the defendant was en- 
 titled to take advantage by pleading in discharge 
 of his person, &c. it was holden, that a general 
 judgment signed by virtue of such warrant of at- 
 torney, after the defendant's discharge, would not 
 warrant a special execution under the act ' . But it 
 seems that in this case, a general execution, pur- 
 suing the judgment, would be regular; and that a 
 scire facias is unnecessary ^ 
 
 In the case of an executor or administrator^ the 
 judgment against him is either upon the plaintiff's 
 confession of the plea of plene administravit, or plene 
 administravit prceter^ for the debt or damages and 
 costs, to be levied as to the whole or in part, of the 
 goods of the testator or intestate, which shall after- 
 wards come to the hands of the defendant to be 
 administered; which is called a judgment of assets 
 quando acciderint : or it is after a verdict, demur- 
 rer, or issue of nul tiel record^ or by confession of 
 the defendant, or nihil dicit, for the debt or da- 
 mages and costs, to be levied of the goods of the 
 testator or intestate, in the hands of the defendant, 
 if he hath so much thereof in his hands to be ad- 
 ministered, and if not, then the costs to be levied 
 of his own proper goods ^ 
 
 In 
 
 «• 1 T. R. 79. B. 3 Bos. & Pul. 185. C. P. 
 
 *Per Cur. H. 41 G. III. K. ' 4 T. R. 648. 7 T. R. 359. 
 Vol. II. 2Z
 
 1018 OF SCIRE FACIAS. 
 
 In the first case, the judgment appears to be 
 founded on the opinion of the court in Mary Ship- 
 ley'* s case ", where it was held, that upon a plea of 
 plene adininistravit^ the plaintiff may have judgment 
 for his debt presently, for thereby the defendant 
 confesses the debt; but he cannot have execution, 
 until the defendant have goods of the deceased, 
 when he may either sue out a scire facias ^, or bring 
 an action ol debt upon the judgment, suggesting a 
 devastavit: And though this opinion was question- 
 ed, in the case oi Dorchester \. IVehh '", yet in a sub- 
 sequent case "^ it was established, and has ever since 
 been adhered to. So in debt against an heir, if he 
 plead nothing by descent, the plaintiff may have 
 judgment presently, and a scire facias Vvdien assets 
 descend ''. But by taking judgment of assets quando 
 acciderint^ the plaintiff admits that the defendant 
 has fully administered to that time ; and therefore 
 on a scire facias y or action of debt on the judgment, 
 suggesting a devastavit, the court will not allow the 
 plaintiff to give any evidence of effects come to 
 the defendant's hands before the judgment ^ And 
 for the same reason, the scire facias on a judgment 
 
 of 
 
 "8 Co. 134. 2 Keb. 606. 621. 631. 666. 
 
 ''Append.Chap.XLII.§48. 671. S. C. Hob. 199. S. P. 
 
 w Cro. Car. 372. and see 7 T. R. 29. 
 
 X Mlson V. J^'oell and others, v 8 Co. 1 34. 
 
 2 Saund. 226. 1 Sid. 448. ^ Bui. JV7. P77. 169. 
 1 Lev. 286. 1 Vent. 94, 5.
 
 OF SCIRE FACIAS. 1019 
 
 of assets quando acciderint^ must only pray execu- 
 tion of such assets as have come to the defendant's 
 hands since the former judgment; and if it pray 
 execution of assets generally, it cannot be support- 
 ed *. Where, upon a suggestion of assets, a scire 
 Jaciaswas taken out, and assets were found for part, 
 judgment was given to recover so much immedi- 
 ately, and the residue of assets infuturo ^. 
 
 In proceeding upon a judgment against an exe- 
 cutor or administrator, after verdict, &c. it is 
 usual for the plaintiff to sue out a fieri facias de 
 bonis testatoris, si, ^c. et si non, de bonis propriis., 
 according to the judgment •=; upon which the 
 sheriff, if he cannot execute the writ according 
 to its tenor, either returns nulla bona generally, or 
 nulla bona and a devastavit by the defendant *. On 
 the latter return, the plaintiff, we have seen ^, may 
 have execution immediately against the defendant, 
 by capias ad satisfaciendurn, ov fieri facias de bonis 
 propriis: But on the former, the ancient course was 
 to issue a special writ, for the sheriff to inquire 
 whether the defendant had wasted any of the goods 
 of the deceased ^: And if a devastavit were found, 
 and returned by the sheriff, a scire facias issued for 
 the defendant to shew cause, why the plaintiff 
 
 should 
 
 > 6 T. R. 1. c Cro. Eliz. 887. 
 
 ^ Ferryman 8c Westwood, ^ Thes. Bvcv. 116, 17. 
 
 cited in Vent. 95. ?c 1 Sid. « Anic^ 93". 
 
 448. 'Cro. Eliz. 859. 887.
 
 1020 OF SCIRE FACIA-S. 
 
 should not have execution de bonis propriis; to 
 which scire facias the defendant might appear, and 
 plead plene administravit ^. But now, for the sake 
 of expedition, the inquiry and scire facias are made 
 out in one WTit, which is called a scire fieri-mc\[iiry\ 
 reciting the judgment, fieri facias, and return of 
 nulla bona, and after suggesting a devastavit, com- 
 manding the sheriff to cause the debt or damages 
 and costs to be made of the goods of the testator 
 or intestate, if, &c. ; and if not, then if it shall 
 appear by inquisition'', that the defendant hath 
 wasted the goods of the deceased, to give notice 
 to the defendant, to appear in court at the return 
 of the writ, to shew cause why the plaintiff ought 
 not to have execution de bonis propriis ': And there 
 must be the same notice of executing such writ, as 
 of a common writ of inquiry \ This method how- 
 ever, though preferable to the old one, is seldom 
 pursued at this day ; as the plaintiff is not allowed 
 any costs, unless the defendant appear and plead, 
 or there be a joinder in demurrer: And therefore 
 it is more usual, on the return of nulla bona to the 
 fieri facias, to bring an action of debt on the judg- 
 ment, suggesting a devastavit. 
 
 The 
 
 B Cro. Eliz. 859. 887. Lil. XLII. § 47. 
 
 Ent. 667. J Gilb. Cas. 95. I Str. 235. 
 
 h Append. Chap. XLII.§ 69. 623. 2 Ld. Raym. 1382. 8 
 
 i Thes. Brev. 236, &c. Lil. Mod. 366. S. C. Cas. Pr. C 
 
 Ent. 666. Append. Chap. P. 1.
 
 OF SCIRE FACIAS. 1021 
 
 The scire facias^ upon a change of parties, is 
 governed by the rule laid down in the case of Pen- 
 oyer v. Brace "", that where a new person is to be 
 benefited or charged by the execution of a judg- 
 ment, there ought to be a scire facias to make him 
 party to the judgment; but w^here the execution 
 is not beneficial or chargeable to a person, who 
 was not party to the judgment, a scire facias is un- 
 necessary. On this rule depend the cases of mar- 
 riage, bankruptcy, and death: and first, o^ marriage. 
 
 If Si feme-sole obtain judgment, or there be judg- 
 ment against her, and she afterwards marry before 
 execution, there must be a scire facias for or against 
 husband and wife, in order to execute the judg- 
 ment. And in a modern case ^ it was holden, that 
 the husband cannot have execution for the costs, 
 on a plea of coverture found for his wife, sued as 
 2i feme -sole, without a scire facias ; it being a max- 
 im, that a person not a party to the record, cannot 
 be benefited or charged with the process, without 
 a scire facias. In a scire facias by baron and feme, 
 upon a judgment recovered by the feme clum sola, 
 the plaintiffs should state their marriage "' ; but 
 they need not allege it with a venue, this being 
 only matter of surmise, to which no venue is ne- 
 cessary ". 
 
 If 
 
 k 1 Ld. Raym. 245. I Salk. " 2 Str. 775. 2 Ld. Raym. 
 
 319, 20. S. C. and see 2 Inst. 1504. 1 Barnard. K. B. 16. 
 
 471. 2 Ld. Raym. 768. S. C. and see 2 H. Blac. 14" 
 
 » Doug. 637. 7 T. R. 343. 
 
 "^ Append. Chap. XLII. % 50.
 
 1022 OF SCIRE FACIAS. 
 
 If husband and wife obtain judgment, for the 
 proper debt of the wife, and afterwards the wife 
 die before execution, the husband alone may have 
 a scire Jacias, without taking out administration " ; 
 for by the judgment, the nature of the debt is al- 
 tered, and it is become a debt to the husband. So 
 if execution be awarded to the husband and wife, 
 on a judgment obtained by the wife clum sola, for 
 her own proper debt, the husband alone may have 
 a scire Jacias after his wife's death °; for though the 
 award of execution does not alter the nature of the 
 debt, yet it alters the property, and vests it in the 
 husband jointly with his wife. And, in like manner, 
 if judgment be obtained against stjeme-sole, and 
 she marry, and then the plaintiff sue out a scire Ja- 
 cias against husband and wife p, and have judgment 
 quod haheat executionem against both, and after- 
 wards the wife die, the plaintiff may sue out a scire 
 facias^ and have execution against the husband ''. 
 But if husband and wife obtain judgment, for a 
 debt due to the wife as executrix, and then the 
 wife die before execution, the husband cannot 
 have 2l scire Jacias upon the judgment '^; for though 
 he was privy to the judgment, he shall not have 
 
 the 
 
 n Cro. Eliz. 844. 1 Sid. § 51. 
 
 337. 1 Mod. 179. q 3 Mod. 186. Carth. 30. 
 
 o 1 Salk. 116. Carth. 415. Comb. 103. S. C. 
 
 Comb. 455. Skin. 682. S. C. ^ Cro. Car. 207. 227. W, 
 
 p Append. Chap. XLTI. Jon. 248. S. C.
 
 OF SCIRE FACIAS. 1023 
 
 the thing recovered, but it belongs to the succeed- 
 ing executor or administrator. 
 
 Secondly, of bankruptcy. If the plaintiff become 
 bankrupt, after interlocutory and before final judg- 
 ment', or after final judgment and pending a writ 
 of error ', his assignees may proceed to final judg- 
 ment or affirmance, in the bankrupt's name. And 
 where the plaintiff became bankrupt after j udgment, 
 and a writ of error allowed, it was determined that 
 his assignees could not sue out a scire facias in their 
 own names, to compel an assignment of errors, 
 but must go on with the writ of error in the bank- 
 rupt's name, till judgment". It was formerly 
 holden, that if the plaintiff became bankrupt, after 
 final judgment or affirmance, and before execution, 
 the assignees must have sued out a scire facias^. 
 And a scire facias by the assignees of a bankrupt, 
 stating that he became bankrupt, within the true 
 intent and meaning of the statutes, &c. and that 
 his effects were afterwards in due manner assigned 
 to the plaintiffs, was deemed sufficiently certain; 
 without alleging the particular requisites neces- 
 sary to support a commission, or that the party 
 
 was 
 
 » 2 Wils. 372. 2 T. R. 45. where a scire facian 
 
 M T. R. 463. 2 T. R. 45. issued, upon a bankruptcy hap- 
 
 i^ 1 T. R. 463. pening between interlocutory 
 
 V 1 Mod. 93. 1 Vent. 173. and final judgment. 
 S.C.and see 2 Wils. 372, 78.
 
 1024 OF SCIRE FACIAS. 
 
 was declared a bankrupt, or his effects assigned by 
 deed, and without making a profert in curia of the 
 deed of assignment '^ But where the plaintiff be- 
 came bankrupt, after he had revived the judgment 
 by scire facias^ the court ordered the special mat- 
 ter to be entered, to entitle his assignee to the bene- 
 fit of the judgment on the scire facias^ without bring- 
 ing a new scire facias ". And in a late case '', where 
 the plaintiff became bankrupt between interlocu- 
 tory and final judgment, and sued out execution 
 in his own name, the court refused to set aside the 
 proceedings. 
 
 Thirdly, oi death; which may be considered ei- 
 ther as it happens before, or after final judgment. 
 At common law, the death of a sole plaintiff or 
 defendant, at any time before final judgment, 
 would have abated the suit. But now, by the sta- 
 tute 17 Car. II. c. 8. for the avoiding of unneces- 
 sary suits and delays, it is enacted, that " in all 
 " actions personal, real or mixed, the death of ei- 
 *' ther party, between the verdict and the judgment ^ 
 " shall not be alleged for error; so as such judg- 
 " ment be entered within two terms after the ver- 
 *' diet." Upon this statute, the judgment is en- 
 tered for or against the party, as though he were 
 alive ^; and it should be entered, or at least signed^, 
 
 within 
 
 ^v 2 T. R. 45. and see Append, y 3 T. R. 437. 
 Chap. XLII. § 52. ^ 1 Salk. 42. 
 
 s 5 Mod. 88. a 1 Sid. 385. Barnes, 261
 
 or SCIRE FACIAS. 1025 
 
 within two terms after the verdict. But there must 
 be a scire facias to revive it, before execution ^ : 
 And such scire facias^ pursuing the form of the 
 judgment, should be general % as on a judgment 
 recovered by or against the party himself. 
 
 By a subsequent statute '^, it is enacted, that " in. 
 *' all actions to be commenced in any court of re- 
 *' cord, if the plaintiff or defendant happen to die, 
 *' after interlocutory, and before final judgment, the 
 " action shall not abate by reason thereof, if such 
 " action might have been originally prosecuted or 
 *' maintained by or against the executors *or ad- 
 *' ministrators of the party dying; but the plaintiff, 
 " or if he be dead after such interlocutory judg- 
 " ment, his executors or administrators, shall and 
 ** may have a scire facias against the defendant, if 
 *' living after such interlocutory judgment, or if 
 " he died after, then against his executors or ad- 
 *' ministrators, to shew cause why damages in such 
 " action should not be assessed and recovered by 
 " him or them ^. And if such defendant, his exe- 
 *' cutors or administrators, shall appear at the re- 
 *' turn of such writ, and not shew or allege any 
 *' matter sufficient to arrest the final judgment, or 
 " being returned warned, or upon two writs of 
 " scire facias, it be returned that the defendant, his 
 
 executors 
 
 Chap. XLir. 
 
 «> 1 Wils. 302. 
 
 §6. 
 
 ^2 Ld. Riiym. 1280. 
 
 e Append. 
 
 <*Stat.8 8c 9 VV.III.c. 
 
 11. § 53, &c. 
 
 Vol. II. 
 
 %A
 
 1026 OF SCIRE FACIAS. 
 
 " executors or administrators, had nothing where- 
 " by to be summoned, or could not be found in the 
 " county, shall make default, that thereupon a writ 
 *^ of inquiry of damages shall be awarded; which 
 " being executed and returned, judgment final 
 " shall be given for the said plaintiff, his executors 
 " or administrators, prosecuting such writ or writs 
 " of scire facias^ against such defendant, his exe- 
 *' cutors or administrators, respectively ^" This 
 statute has been held not to extend to cases where 
 the party dies before interlocutory judgment; 
 though it be after the expiration of the rule to 
 plead ^. 
 
 Where either party dies after interlocutory judg- 
 ment, and before the execution of the writ of in- 
 quiry, the scire facias upon this statute ought to 
 be for the defendant, or his executors or adminis- 
 trators, to shew cause why the damages should not 
 be assessed, and recovered against them \ and to 
 hear the judgment of the court thereupon '. But 
 where the death happens after the writ of inquiry 
 is executed, and before final judgment, the scire 
 facias must be to shew cause, why the damages as- 
 sessed by the jury should not be adjudged to the 
 plaintiff, or his executors or administrators ^ 
 
 The 
 
 t'Append.Chap. XLII. § 76. i 6 Mod. 144. 
 
 g 1 Wils. 315. k 1 wils. 243. and see 1 T. 
 
 h Lil. Ent. 647. R. 388.
 
 OF SCIRE FACIAS. 1027 
 
 The judgment upon this statute is not entered 
 for or against the party himself, as upon the 17 
 Cai'. II. but for or against his executors or admi- 
 nistrators ^ And where the defendant dies, after in- 
 terlocutory and before final judgment, two writs of 
 icire facias must be sued out by the plaintiff, be- 
 fore he can have execution ; one before the final 
 judgment is signed, in order to make the execu- 
 tors or administrators parties to the record; the 
 other after final judgment is signed, in order to 
 give them an opportunity of pleading no assets, or 
 any other matter in their defence : for it would be 
 unreasonable that the executors or administrators 
 should be in a worse situation, where their testator 
 or intestate died before the final judgment was 
 signed, than they would have been in, if he had 
 died afterwards *". 
 
 Where there were two or more plaintiffs or de- 
 fendants in a personal action, the death of one or 
 more of them pending the suit, would formerly in 
 some cases have abated it ". But now, by the sta- 
 tute 8 & 9 /r. III. c. 11. ^ 7. 'Mf there be two or 
 *' more plaintiffs or defendants, and one or 
 *' more of them die, if the cause of action shall 
 •*' survive to the surviving plaintiff or plaintiffs, or 
 *' against the surviving defendant or defendants, 
 
 «' the 
 
 » Salk. 42. n Cro. Jac. 19. Carter, 19.X 
 
 '« Say. Rep. 266. 3 Mod. 249.
 
 1028 OF SCIBE FACIAS. 
 
 " the writ or action shall not be thereby abated j 
 " but such death being suggested upon the record, 
 " the action shall proceed, at the suit of the sur- 
 " viving plaintiff or plaintiffs, against the surviving 
 " defendant or defendants." In such case, if the 
 death happen before issue joined, it should be sug- 
 gested in making up the issue ; but otherwise it 
 need not be suggested, till the plea-roll is made 
 up°. And where one of two plaintiffs died before 
 interlocutory judgment, and the suit notwithstand- 
 ing went on to execution in the name of both ; on 
 a motion to set aside the proceedings for this irre- 
 gularity, the court permitted the surviving plain- 
 tiff to suggest the death of the other on the roll, 
 and to amend the capias ad satisfacieiidum^ without 
 paying costs ''. But as no new person is introduced, 
 there is no occasion for a scire facias in these cases, 
 to revive the judgment. 
 
 Where there were two or more defendants, and 
 one of them died after judgment^ arid before exe- 
 cution, it was formerly holden'', that the plaintiff 
 was put to his scire facias^ against the personal re- 
 presentatives of the deceased. But it was afterwards 
 determined, that in such case a scire facias would 
 lie against the survivor alone, reciting the death ' ; 
 
 and 
 
 1 Bur. 36S. § 57. T. Rayin. 26. 1 Lev. 30, 
 V5 T. R. 577. 1 Keb. 92. 123. S. C. Carth-. 
 
 1 Yelv. 208. 106. S. C. cited. 
 I" Append. Chap. XLIh
 
 OF SCIRE FACIAS. 1029' 
 
 and he could not plead, that the heir of the deceas- 
 ed had asbcts by descent, and pray judgment if he 
 ought to be charged alone : for at common law, the 
 charge upon the judgment, being personal, survi- 
 ved ; and the statute of TFestm. 2. which gives an 
 elegit^ does not take away the common-law reme- 
 dy ; and therefore the plaintiff may take out his ex- 
 ecution, which way he pleases : But if he should, 
 after the allowance of this writ, and revival of the 
 judgment, take out an elegit to charge the land, 
 the party may have remedy by suggestion, or else 
 by audita querela ^ And it is now settled, that 
 where there are two or more plaintiffs or defen- 
 dants in a personal action, and one or more of them 
 die after judgment, execution may be had for or 
 against the survivors, without a scire facias ^ : But 
 the execution in such case should be taken out in 
 the joint names of all the plaintiffs or defendants" ; 
 otherwise it will not be warranted by the judgment. 
 Where there is only one plaintiff or defendant, 
 who dies after final judgment^ and before execu- 
 tion, a scire facias may be had by or against his 
 
 personal 
 
 p 3 Bac. Abr. 698. 4 Bac. Comb. 441. 5 Mod. 338. 
 
 Abr. 419. Show. 402. S. C. 3 Salk. 319. 
 
 t Moor, 367. Noy, 150. Car- 7 Mod. 68. S. P. 
 
 ter, 112. 193. 1 Ld. Raym. " 1 Ld. Raym. 244. 1 Salk. 
 
 244. 1 Salk. 319, Carth. 404. 319. S. G.
 
 1030 OF SCIRE FACIAS. 
 
 personal representatives ; and upon the death of the 
 party against whom the judgment is given, the 
 other party may proceed by scire facias against his 
 heir and tertenants. 
 
 The personal representatives are the executor or 
 administrator of the deceased ; or if there be more 
 than one, the executors or administrators, and the 
 survivors of them : And the executor of an execu- 
 tor is considered as the representative of the first 
 testator. If any of the executors or administrators 
 are feme coverts, their husbands must be made 
 parties to the scire facias: And though an execu- 
 tor or administrator become bankrupt, yet he may 
 still proceed by scire facias; as the bankruptcy 
 does not affect him in his representative character. 
 But the administrator of an executor, claiming by 
 the act of the ordinary, does not represent the ori- 
 ginal testator ^ ; nor does the executor or admi- 
 nistrator of an administrator represent the first in- 
 testate. Therefore, when an executor dies intestate, 
 or after the death of an administrator, it is neces- 
 sary to take out administration de bonis non, or of 
 such goods as are left unadministered ^^. 
 
 At common law, an administrator de bonis non^ 
 claiming by title paramount, could not have had a 
 scire facias, or otherwise proceeded on a judgment 
 
 recovered 
 
 ^' I Bos. 8c Pul. S 10. "■ Id. ibid. 
 
 II
 
 OF SCIRE FACIAS. 1031 
 
 recovered by an executor or administrator ; but it 
 was otherwise in the case of a judgment recovered 
 against an executor or administrator ". And now, 
 by the statute 17 Car. II. c. 8. \ 2. " Where any 
 " judgment after a verdict shall be had, by or in the 
 " name of any executor or administrator, in such 
 " case an administrator de bonis non may sue forth 
 *' a scire facias, and take execution upon such 
 " judgment." On this statute it has been holden, 
 that an administrator de bo?iis non may not only 
 commence an execution, on a judgment obtained 
 by an executor or administrator, but may perfect 
 an execution already begun y. But still, if an exe- 
 cutor bring a scire facias on a judgment or recog- 
 nisance, and get judgment quod habeat executio- 
 nem, and die intestate, the administrator c/d- bonis non 
 must bring a scire facias upon the original judg- 
 ment, and cannot proceed upon the judgment in 
 the scire facias i. 
 
 The scire facias on a judgment by the personal 
 representatives states, in addition to the judgment, 
 the death of the testator or intestate, as the court 
 have been informed by the person suing it out, who 
 is described as his executor or administrator '' : If 
 the writ be brought against personal representa- 
 tives, 
 
 ^ 1 Rol. Abr. 890. W. Jon. ^ 2 Ld. Raym. 1049. 
 2U. Cro. Car. 167. S. C. ^ Append. Chap. XLII. § 
 
 ' 1 Salk. 323. 58. 60.
 
 1032 OF SCIRE FACIAS. 
 
 lives, it states that the testator died, having made 
 the defendant his executor, or in the case of an ad- 
 ministrator, the death of the intestate, and the grant 
 of administration; and is for the defendant to shew 
 why the plaintiff should not have execution of the 
 debt or damages, to be levied of the goods and 
 chattels which were of the testator or intestate at 
 the time of his death, in the defendant's hands to be 
 administered, he *". In a scire facias on a judgment 
 recovered by an executor, the death of the testa- 
 tor need not be expressly averred ^ 
 
 Upon the return of nihil to a writ of scire facias 
 against the personal representatives the plaintiff 
 may have a scire facias against the heir of the de- 
 fendant, either alone or jointly with the t er te- 
 nants ^ or tenants of the lands whereof the defendant 
 w^as seised at the time of the judgment, or at any 
 time afterwards'^: But where judgment is had 
 against one who dies before execution, a scire facias 
 will not lie against his heir or tertenants, until a 
 nihil be returned against his executors or admi- 
 nistrators ^ ; and as the heir in this case is charged 
 as tertenant ^, the plaintiff can only have execution 
 of a moiety of his land ^, even where he pleads a 
 a false plea ^. 
 
 In 
 
 i* Append. Chap. XLII. § e Carth.107. 2 Wms.Saund.^ 
 
 59.61. 72. o./z. 
 
 c 1 Str. 631. 2 Ld. Raym. f 3 Co. 12. Cro. Car. 295. 
 
 1395. S.C. 312. 
 
 d 2 Wms. Saund. 7. (4 ) g 2 Wms. Saund 7 (4.) 
 and see id. 8. (9.) for the de- ^ Id. ibid. Cro. Car. 296. 
 
 ^\n\iiovi oi ter-tenants. Carth. 93.
 
 OF SCIRE f ACIAS. 1033 
 
 In a scire facias against the heir r.nd tertenants, 
 the heir cannot object that the scire facias ought 
 first to have issued against him'. But it seems to 
 be the better opinion, that the tertenants alone are 
 not to be chariged until the heir be summoned, or 
 it be returned that there is no heir, or that the 
 heir hath not any lands to be charged''; for the 
 heir may have a release to plead, or other matter 
 in bar of excution: and his land is rather to be 
 charged than the land of the tertenants, for the 
 heir shall not have contribution against the terte- 
 nants, as they shall against him; also if the heir be 
 within age, the parol shall demur, and the terte- 
 nants shall have advantage of it '. 
 
 Where there are several defendants, and one of 
 them dies before execution, since the charge upon 
 the judgment survives as to the personalty, though 
 not as to the realty ", the plaintiff may have a scii'e 
 facias^ framed upon the special matter, viz. against 
 the survivor, to shew why the plaintiff should not 
 have execution against him, of his goods and 
 chattels, and of a moiety of his lands, and against 
 the heir and tertenants of the deceased, to shew 
 why the plaintiff should not have execution of a 
 moiety of the deceased's lands, without mention- 
 ing any goods ". 
 
 The 
 
 i Cro. Eliz. 896. 2 Wms. Saund. 7. (4). 
 
 3aund. 72. /z. " Ante, 1028, 9. 
 
 k 2 Wms. Saund. 8. (8). « Carth. 105. 2 Wms. 
 
 • Bac. Abr. tit. Scire facias, Saund. 72. p. 
 C. 5. Cro. Car. 295. 2 Wms. 
 
 Vol. it. 3 B
 
 1034 
 
 OF SCIRE FACIAS. 
 
 The scire facias against the tertenants is either 
 general^ against all the tertenants, without naming 
 them ; or special, setting forth their names °. But 
 if a plaintiff undertake to name them, he must name 
 them all ; and if he do not, those who are named 
 may plead in abatement p. 
 
 There is also another writ oi scire facias^ which 
 lies against tertenants, upon a writ of error to re- 
 ^erse a fine or recover} i. This writ is said by lord 
 Holt to be discretionary, and not strict! furls ; but 
 yet to have been the constant and usual course of 
 the court, and therefore not to be departed from. To 
 this writ the tertenants can only plead a release of 
 errors, to defend their own possession, or for the 
 sake of purchasers ; but they cannot plead in abate- 
 ment of the writ, because they are not parties to 
 the suif. And there is no necessity in such case, 
 for a scire facias against the heir^ 
 
 Having hitherto treated of the WTits of scire 
 facias, on recognisances and judgments, in what 
 
 cases 
 
 o 2 Salk. 600. 1 Ld. Raym. 
 669. S. C. and see 2 Wms. 
 Saund. 7. (4). Append. Chap. 
 XLII. § 62, &c. 
 
 P Comb. 282. 2 Wms. 
 Saund. 7. (4). 
 
 qCarth. 111. Skin. 273. S 
 C. 1 Bur. 360. 
 
 "• Carth. 111. Skin. 273. S. 
 C. 1 Bur. 359, 60. and see 2 
 Wms. Saund. 72.//. 
 
 « 1 Bur. 412.
 
 OF SCIRE FACIAS. 1035 
 
 cases they lie, and by and against whom they may 
 be brought, with the forms of them, distinctly ; I 
 shall now consider them together, and shew the 
 proceedings thereon from the time of their being 
 issued, till they are finally determined. 
 
 A scire facias on a recognisance of bail in the 
 action, being an original proceeding, must be 
 brought in Middlesex, where the record is; for 
 recognisances in this court are not obligatory by 
 the caption, as in the Common Pleas, but by 
 being entered of record \ But in case of a recog- 
 nisance entered into by bail on a writ of error, it 
 is said, that if it be entered as taken at a judge's 
 chambers in Serjeants- Inn, the scire Jacias maybe 
 sued out m. London"^. A scire facias to revive a 
 judgment by or against the parties, or their per- 
 sonal representatives, not being an original pro- 
 ceeding, but a continuation of the former suit, 
 must be brought in the county where the venue 
 was laid in the original action, the defendants 
 being supposed to reside in that county'': But 
 upon a return of jiihil to the writ against the per- 
 sonal 
 
 12 Salk. 564. 600. 659. P. but see 1 East, 603. 
 
 6 Mod. 42. 132. 7 Mod. 120, " 8 Mod. 290. R. E. 5 Geo. 
 
 21. R. E. 5 Geo. II. Reg. 3. II. Reg. 3. a. Lil. Ent. 620. 
 
 a. 1 Bur. 409. K.B. Hob. 195. v Hob. 4. Yelv. 218. Cro. 
 
 Brownl. 69. Moor, 883. S. C. Jac. 331. S. C. R. l\. 5 Ge^. 
 
 Sty. Rep. 9. Aleyn, 12. S. C. IT. Reg. 3. a. 
 2 Lutw. 1287. Barnes, 97. C.
 
 1036 OP SCIRE FACIAS. 
 
 sonal representatives, the plaintiff upon a testatum, 
 may have a scire facias against the heir and terte- 
 nants in a different county '''. 
 
 The scire facias upon a recognisance against 
 bail in the action, where the proceedings are by 
 bill, ought to be tested on the return-day, or by 
 original, on the quarto die post of the return of 
 the capias ad satisfaciendum against the principal ''. 
 Upon a judgment, it may be tested at any time 
 after the judgment, or first day of the term to 
 which it relates : And it may be antedated, even 
 in term-time, unless where it issues by rule of 
 court ''. By hill, the scire facias is made returnable 
 before the king at Westminster, on a day certain '^ ; 
 and where there is but one writ, there need be 
 only four days exclusive between the teste and re- 
 turn of it '. But every scire facias by original, 
 ought to have fifteen days inclusive between the 
 teste and return''; and should be made returnable 
 on a general-return day, wheresoever, &c. ^ A 
 scire facias in general is not amendable; and there- 
 fore 
 
 w Cro. Car. 313. Carth. 105. Raym. 1417. 
 
 and see 7 T. R. 28. a 4 t. R. 663. and see R. E. 
 
 y^ 6 Mod. 86. 8 Mod. 227. 5 Geo. II. Reg. 3. a. 
 
 2 Str. 866. 2 Ld. Raym. 1567. b R. T. 8 W. III. a. E. 5 
 
 S. C. R. E. 5 Geo. II. Reg. Geo. II. Reg. 3. a. 
 
 3. a. c 2 Lil. P.-R. 499. 3 Salk. 
 
 y 2 Salk. 599. 320. 1 Str. 146. R. E. 5 Geo. 
 
 ^ 2 Lil. P. R. 499, Sec. R. II. Reg. 3. a. 
 E. 5 Geo. li. Reg. 3. a. 2 Ld.
 
 Qf SCIRE FACIAS. 1037 
 
 fore if it be defective in the teste or return, or vary 
 from the record, &:c. the plaintiff must move to 
 quash if*. 
 
 The scire facias being sued out, is delivered to 
 the sheriff; and if the bail or defendants live in the 
 county into which the writ issues, the plaintiff may 
 cause them to be summoned thereon ; for which 
 purpose the sheriff will make out his warrant, a 
 copy of which should be delivered to them, or they 
 should have some notice of the proceeding-, the 
 sufficiency of which, if disputed, must be deter- 
 mined by the courts The bail may be summoned 
 at any time before the rising of the court on the 
 return-day ^ : And where the sheriff returns scire 
 feci, the court will not enter into the validity of the 
 summons upon motion, but leave the party to his 
 action against the sheriff, for a false return ^. 
 
 On the return -day of the scire facias, or quarto 
 die post of the return by original, the sheriff may be 
 
 called 
 
 d 1 Salk. 52. 1 Ld. Raym. of it by pleading nw//zV/ record. 
 182. 548. 2 Ld. Raym. 1057. Seethe cases on this subject, 
 1 Str. 401. 2 Str. 892. 1165. collected in 2 Ld. Raym. 1057. 
 But there are cases in the and 2 Bos. & Pul. 275. 
 books, where a writ of scire e 2 Blac. Rep. 837. 
 facias has been amended by f 1 East, 86. and see 1 Str. 
 the court; not only where it 644. R. E. 5 Geo. IL reg. 3. 
 was bad on the face of it, by the (a), but see 2 T. R. 757. cow- 
 mistake of the clerk, but also tra. 
 
 for a variance, where the de- k 2 Str. 813. .I Bur. 1360. 
 
 fendant had not taken ad vantage I Blue. Rep. 393. S. C^
 
 1038 OF SCIRE FACIAi. 
 
 called upon for the return of it ; and except on a 
 scire facias against the heir and tertenants, he 
 either returns scire feci ^ or nihil; that he has given 
 notice to the bail or defendants ^, or that they have 
 nothing by which he can make known to them ' ; 
 or that he has given notice to one, and the other 
 hath nothing ^^ Sec. On a scire facias against the 
 heir and tertenants, the sheriff's return is either 
 that there are none ^, or that he has warned them to 
 appear : In the latter case, if the writ be general, 
 the sheriff should return that he has warned certain 
 persons, being the tenants of all the lands in his 
 bailiwick, describing them; or the tenants of certain 
 lands, and that there are no others " ; a return that 
 he has warned the tenants of all the lands gene- 
 rally ", or certain persons, tenants of lands in his 
 bailiwick °, being insufficient. 
 
 Where the sheriff returns nihil^ the plaintiff must 
 sue out a second or alias writ oi scire facias p, com- 
 manding the sheriff, as before he was commanded, 
 Sec. ; and if upon this second writ, the sheriff also 
 return nihil, and the bail or defendants do not ap- 
 pear, 
 
 »» Append. Chap. XLII. § pend. Chap. XLII. § 71. 
 
 65. " Carth. 105. 
 
 i Id. § 66. 2 Salk. 598. 2 Wms. 
 
 k Id. § 67. Saund. 8. (7). 
 
 1 Id. § 70. p 2 Inst. 272. Cro. Jac. 59. 
 
 n^Co. Ent. 622, 3. Off. 8 Mod. 227. Say. Rep. 121. 
 
 Brev. 278. 282. 286. Hearne, Append. Chap. XLII. § 8. 72. 
 o26. Dalt. Sher. 559. Ap-
 
 OF SCIRE FACIAS. 1039 
 
 pear, there shall be judgment against them '^; two 
 nihils being deemed equivalent to a scire feci. It 
 was formerly usual to sue out both writs of scire 
 facias together, making the teste of the second as 
 if the first had been actually returned '^: But now, 
 there is a rule of court, that no writ of alias scir^ 
 facias shall issue, until the first writ be returnable '. 
 Where there are two writs of scire facias^ the 
 second should be tested on the return-day, or by 
 original^ on the quarto die post of the return of the 
 first, except in error \ or the return-day happen 
 on a Sunday ". The alias should be made return- 
 able, like the first writ, on a day- certain'', or 
 general return- day, according to the nature of the 
 proceedings. And by bill^ it is sufficient if there 
 be fifteen days inclusive between the teste of the 
 first, and return of the second writ, without re- 
 gard to the number of days between the teste and 
 return of each "^ : But by original, there should be 
 fifteen days inclusive between the teste and return 
 
 of 
 
 <i Dyer, 168. 198. 172.201. " Dyer, 168. a. 
 
 Yelv. 1 12. Sty. Rep. 281. 288. ^ o Lji, p. r. 499, 8cc. 
 
 323. -^ T. Jon. 228. 2 Salk. 599. 
 
 «■ 2 Salk. 599. 8 Mod. 227. Carth. 468. 7 Mod. 40. 8 
 
 sR. T. 8 W. III. 12 Mod. Mod. 227. 2 Str. 765. 1139. 
 
 87. 7 Mod. 40. 96. R. T. 8 W. III. a. R. E. 5 
 
 t R. T. 8 W. III. a. and Geo. II. Reg. 3. a. 
 see 4 T. R. 377.
 
 1040 OF SCIRE FACIAS. 
 
 of the alias, as well as of the first writ oi scire fa- 
 cias"^. Every writ of scire facias, of which notice 
 is given to the defendants, must be left in the 
 sheriff's office, four days exclusive before the re- 
 turn y : And where there are two writs, the first 
 should be left in the office sometime ^, (generally 
 one day,) and the alias four days exclusive (which 
 must be the last four days %) before the return ; 
 and the sheriff should indorse on every such writ, 
 the day of the month it is left in his office \ But so 
 as the second writ o{ scire facias be filed in proper 
 time in the sheriff's office, that is sufficient to war- 
 rant proceedings against the bail, though it be not 
 entered in the scire facias book kept by the sheriff, 
 which is merely a private book for his own conve- 
 nience. 3 East, 570. 
 
 On the return of the second scire facias, or of 
 the first, \{ scire feci be returned, a rule must be 
 given with the clerk of the rules, for the bail or 
 defendants to appear '^j which expires in four days 
 exclusive ; within which time, they either appear 
 or make default : In the latter case, the plaintiff is 
 entitled to judgment '^, which he may sign on the 
 expiration of the rule : And if a man have judg- 
 ment for damages against two, and sue out a scire 
 facias against both, if one be returned summoned, 
 and make default, and the other have nothing, 
 the plaintiff" may have execution against him who 
 
 made 
 
 -^ R. E. 5 Geo. II. Reg. 3. a. ^ 4 T. R. 583. 
 
 y Williams v. Mason, M. 4 b R. £. 5 Geo. II. Reg. 3. 
 
 G. II. 1 East, 89. (a). R. E. ^ Id. a. Append. Chap. 
 
 5 Geo. II. Reg. 3. 3 Bur. XLII. § 73. 
 
 1723. 4 Bar. 2439. ^^ Com. Dig. tit. Pleader, S 
 
 " Id. ibid. L. 8, 9.
 
 OF SCIRE FACIAS. 1041 
 
 made default, for the whole ". So if it be re- 
 turned that one of them is dead, he shall have ex- 
 ecution for the whole against the other ^ Judgment 
 being signed, the proceedings in scire facias should 
 be forthwith entered on a roll, and execution 
 awarded : The ent7'y of the proceedings is either 
 against bail ^, or in other cases ^ ; And where two 
 writs issue, returnable in different terms, the first 
 must be entered of the term wherein it is returna- 
 able ; and an award of the second is sufficient, with- 
 out setting it forth at large '. 
 
 If the bail or defendants appear to the scire fa- 
 cias^ which is signified by delivering a note in wri- 
 ting to the plaintiff's attorney '', a declaration must 
 be delivered, on treble-penny stamped paper, a 
 rule given to plead, and a plea demanded, as in 
 other cases ^ 
 
 The declaration in scire facias begins by stating 
 that the king sent to the sheriff, his writ close in 
 these words, (setting forth the writ verbatim): It 
 then states the plaintiff's appearance at the return 
 of the writ, and the sheriff's return thereto ; and if 
 he return wi/zi/, it contains a recital of the mandatory 
 
 part 
 
 » Bac. Abr. tit. Execution^ » R. E. 5 Geo. II. Reg. 
 
 G. 3. a. 
 
 (Id. ibid. k Append. Chap. XUI. § 
 
 K Append. Chap. XLII. § 13. 77. 
 
 9, &c. »R. E. r; Geo. II. Rcj. 
 
 •»/rf. §74, &c. 3. a. 
 
 Vol. II. 3C
 
 1042 OF SCIRE FACIAS. 
 
 part of the second writ of scire facias^ and goes on 
 to state the plaintijQf's appearance, in like manner, 
 at the return of that writ, and the sheriif 's return 
 thereto : Then follows the appearance of the bail or 
 defendants; and the declaration against ^ai/ con- 
 cludes, by praying execution of the debt or dama- 
 ges recovered by bill, or of the sum acknowledged 
 by original, according to the force, form and effect 
 of the recognisance *"; or upon a judgment after a 
 year and a day, it concludes by praying execution 
 of the debt or damages generally " ; or against exe- 
 cutors or administrators, of the debt or damages, 
 to be levied of the goods and chattels of the origi- 
 nal defendant, in their hands to be administered °; 
 or against the heir and tertenants, to be levied of 
 the lands and tenements, whereof they are returned 
 tenants, or which have descended and come to the 
 heir, by hereditary descent from the defendant, ac- 
 cording to the force, form and effect of the recove- 
 ry p. A declaration in scire facias, returnable the 
 last return of a term, may be entitled of the same 
 term generally ''. And it is usual for executors and 
 administrators, in declaring on a scire facias, to 
 make a profert in curia of the letters testamentary, 
 or of administration ; but it may be inserted either 
 in the middle, or at the end of the writ *■. 
 
 To 
 
 '"Append. Chap. XLII, § p/rf. §82. 
 14, 15. <! 3 VVils. 154. 
 
 •i Id. § 78, &c. ^ Carth. 69, 1 Show. 60. 8 
 
 °/c/. §81. Mod. 134. 7 Mod. 15.
 
 OF SCIRE FACIAS. 1043 
 
 To a scire facias on a recognisance or judgment, 
 the defendant may plead in abatement or in bar, as 
 in other actions ^ On a general writ of scire facias 
 against the heir and tertenants, if some of the terte- 
 nants only are summoned, they may plead that 
 there are other tertenants not named, in the sa7ne 
 county, and pray judgment if they ought to an- 
 swer guousque the others be summoned, but ought 
 not to pray quod breve cassetur; for the court ought 
 never to abate the writ, but where the plaintiff can 
 have a better writ^ : But upon a special writ, if all 
 the tertenants are not named in it, those who are 
 may plead in abatement ; for there, the party may 
 have a better writ, by naming them all " : And it 
 seems to be a good plea, that there are other ter- 
 tenants not named, in another county ^. When a 
 tertenant is summoned, and doth not plead that 
 there are other tertenants, not summoned or named 
 in the writ, he shall never afterwards have a scire 
 facias or audita querela^ to compel the others to 
 contribute "'. To a scire facias against a tertenant, 
 upon a judgment in debt or other personal action, 
 the defendant cannot plead non-tenure generally, 
 because it is contrary to the sheriff's return ; but 
 
 he 
 
 s 2 Inst. 470. 10 Mod. 112. v 2 Vent. 104. Bac. Abr.tit. 
 
 t2 Salk. 601. 6 Mod. 199, Scire facias^ C. 5. 2 Wms. 
 
 226. 2 Ld. Raym. 1253. 3 Saund. 8. (10). 
 
 Salk. 321. S. C. 2 Wms. "^ Moor, 524. 2 Wms. 
 
 Saund. 8. (10). Saund. 8. (10). 
 
 u Id. ibid.
 
 1044 OF SCIRE FACIAS. 
 
 he may plead a special non-tenure in such case, as 
 that he has onl}- a term for years '''. 
 
 On a scire facias against bail in the action, they 
 may plead mil tiel record of the recognisance '', or 
 of the recovery against the principal; payment by, 
 or a release to the principal or bail ^ ; or that the 
 principal rendered himself, or was rendered by 
 hi'^ bail, before the return of the capias ad satisfa- 
 ciendum ^. They may also plead, in discharge of 
 their liability, that there was no capias ad satisfa- 
 ciendum sued out and returned against the princi- 
 pal^: and if there be a void writ, it is as none ^ 
 But if the writ be merely irregular, as if it was 
 sued out after a } ear, without a scire facias ^, or 
 made returnable on a day out of term '^, the bail 
 cannot take advantage of the irregularity by plead- 
 ing. If the principal die, before the return of the 
 capias ad satisfaciendum, this will operate in excuse 
 of performance, and the bail may plead it in their 
 discharge ''. So they may plead that a writ of er- 
 ror 
 
 ^v 2 Salk. 601. 3 Salk. 321. b 3 Keb. 671. 6 Mod. 304. 
 
 6 Mod. 199. 225. 2 I,d. = 2 Ld. Raym. 1096. 6Mod. 
 
 Raym. 1253. S. C. and see 304. Holt, 90. S. C. 
 
 B 10. Abr. tit. Scire facias, E. ^2 Bur. 1 1 87, 8. 
 
 Con". Dig. lit. Pleader, 3 L. ^ i Roj. Abr. 336 Cro. Jac. 
 
 11. 165. W. Jon. 139. Sty. Rep. 
 
 ^ T/ies. Brev. 265. 324. 12 Mod. 601. 10 Mod. 
 
 y Sty. Rep. 324. 1 Ld. 267. R. E. 5 Geo. II. Res?. 3. 
 
 Raym. 157. Stat. 4 Ann. c. a. But they cannot plead the 
 
 16. § 12. bankrufitcy and certificate of 
 
 2 1 Ld. Raym. 156, 7. their principal. 1 Bos. 8c Pul 
 
 a Sty. Rep. 281. 288. 324. 450. (b). 2 Bos. & Pul. 45 
 
 II
 
 OF SCIRE FACIAS. 1045 
 
 ror was sued out and allo^\ ed, after the issuing and 
 before the return of the capias ad satisfaciendum 
 against the principal, so as to avoid proceedings 
 against them in scire facias upon the recognisance 
 of bail, prosecuted after a return by the sheriff of 
 non est inventus^ made pending such writ of error ^. 
 But it is not a good plea, that the principal 
 died before the issuing s^ or after the return ^ of 
 the capias ad satisfaciendum ; for though a plea 
 that the principal died before the writ issued, be 
 conclusive if found for the defendant, yet it is not 
 so, if found for the plaintiff; inasmuch as the prin- 
 cipal might still have died after the issuing, and 
 before the return of the w^-it : and where the prin- 
 cipal dies after the return of the capias ad satisfa- 
 ciendum^ this will not discharge the bail; for upon 
 the return of non est inventus, their recognisance 
 is in strictness forfeited; and though a render after- 
 wards, and before the return of the scire facias, is 
 allowed, yet that is merely ex gratia, and not ex 
 debito Justiti^, and therefore cannot be pleaded '. 
 Where the principal died after a capias ad satisfaci- 
 endum returned, and before it was filed, the court 
 on motion would have formerly stayed the filing of 
 it, in favour of the bail ^: But in a late case it was 
 
 hoi den, 
 
 f 2 East, 439. Say. Rep. 121.2 Wils. 67. 
 
 B 10 Mod. 267. 303. » .//«/e, 238, 9. 
 
 t* 12 Mod. 112.236. 8 Mod. ^ 1 Lil. P. H. 183. and sec 
 
 31. I Str. 511. S. C. 2 Ld. R. E. 5 Geo. II. Reg. 3. a. 2 
 
 Raym. 1452. 2 Str. 717. S.C. Cromp. 88. 1 Rich. Pr.445.
 
 1046 OF SCIRE FACIAS. 
 
 holden, that if the principal die after the return of 
 the capias ad satisfaciendum^ and before the return 
 is filed, the bail are fixed ; and the court will not 
 stay the filing of the return ^ To a plea of the 
 death of the principal, before the return of the 
 capias ad satisfaciendum^ the plaintiff in his replica- 
 tion must set forth the writ, and that the principal 
 was alive at the return of it '^ ; and such replication 
 must conclude with an averment ". 
 
 If a scire facias be brought on a judgment, the 
 defendant may plead nul tiel record of the recovery", 
 payment '', or a release "^j or that the debt or da- 
 mages were levied on a feri facias % the defen- 
 dant's lands_extended for them upon an elegit % or 
 his person taken in execution on a capias ad satis- 
 faciendu?n\ But it is a rule, that the defendant 
 cannot plead any matter to the scire facias on a 
 judgment, which he might have pleaded in the 
 original action ". If the scire facias be brought 
 against an executor or administrator, he may plead 
 ple?ie administravit ; but then, the judgment being 
 
 entitled 
 
 1 6 T. R. 284. Ante^ 994. Cro. Car. S28. Clift, 675. 
 
 m Carth. 4. ^ Dyer, 299. b. 1 Lev. 92. 
 
 n 2 Wils. 65. Doug. 58. 2 t Off, Brev. 300. 1 Salk. 271. 
 
 T. R. 576. Ante^ 957. but see 1 Lutw. 
 
 o Off. Brev. 279. Mod. Int. 641, 3. 
 
 368. >! Cro. Eliz. 283. 588. 1 Sid. 
 
 p Stat. 4 Ann. c. 16. § 12. 182. 1 Salk. 2, 2 Str. 1043. 
 
 q 3 Lev. 272. Cas. temfi. Hardw. 233. S, C 
 
 »-4 Leon. 194. Sav. 123. Cowp. 727.
 
 OF SCIRE FACIAS. 1047 
 
 entitled to a preference, he must shew in what 
 manner he has administered "". And where, in an 
 action against an executor, the plaintiff dies after 
 interlocutory and before final judgment, the defen- 
 dant cannot plead to the scire facias for assessing 
 damages, a judgment upon bond against his testa- 
 tor, and no assets ultra; for the statute never in- 
 tended that the executor should be in a better situ- 
 ation, as to the assessing of damages upon the in- 
 quiry, than his testator, who could have pleaded 
 nothing but a release, or other matter in bar, aris- 
 ing puis darrein continuance ^''. All pleas and de- 
 murrers, upon writs of scire facias^ ought to be 
 delivered ; and all issues " thereon made up by the 
 attorn ies ^. 
 
 Where the party has a release, or other matter 
 which he might have pleaded to the scire facias in 
 his discharge, and for want of pleading it, execu- 
 tion is awarded upon a scire feci returned, he is 
 estopped for ever, and cannot by any means take 
 
 advantage 
 
 "■' 1 Ld. Raym. 3, 4. " For the form of the issue 
 
 ^v 1 Salk. 315. 6 Mod. 142, in scire facias against bail, see 
 
 S. C. but yziicre whether the Append. Chap. XLII. § 16. 
 
 interlocutory judgment in this and for the entry of issue, and 
 
 case was not obtained against award of execution, 8cc. after 
 
 the testator, and he dying, the verdict, see id. § 17. 
 scire facias issued against his y R. T. 12 W. III. ?l. Jnfe. 
 
 executor f 666.
 
 1048 OF SCIRE FACIAS. 
 
 # 
 
 advantage of that matter"^. But where execution 
 is awarded on two jiihils returned, he may relieve 
 himself by audita querela, though not by writ of 
 error =* : And where the case is clear, and the ap- 
 plication recent, the court will interpose in a sum- 
 mary way, and relieve the party upon motion '', 
 without putting him to an audita querela. But 
 they will never do it, where the fact is disputed •=; 
 or there has been a long acquiescence, and several 
 steps have been taken subsequent to the award of 
 execution'^. 
 
 No damages are recoverable in scire facias, for 
 delay of execution ^ ; and the parties were conse- 
 sequently not entitled to costs, until the statute 8 & 
 9 W. III. c. 11. \ 3. by which it is enacted, that 
 " in all suits upon any writ or writs oi scire facias, 
 *' the plaintiff obtaining an award of execution af- 
 *' ter plea pleaded, or demurrer joined therein, 
 *' shall recover his costs of suit ; and if the plain- 
 '* tiff shall become nonsuit, or suffer a disconti- 
 " nuance, or a verdict shall pass against him, the 
 " defendant shall recover his costs, and have exe- 
 " cution for the same hy capias ad satisfaciendum^^ 
 '■'• fieri facias'^ or elegit;''"' with a proviso, that the 
 
 statute 
 
 z F. N. B. 104. 1 Salk. 93. <= 2 Str. 1 198. 
 
 264. 1 Wils. 98. d Id. 1075. 
 
 ^ Sty. Rep. 281. 288. 323. e 3 Bur. 1791. 
 
 1 Salk. 262. 4 Mod. 314. S. f Append. Chap. XLII,. § 
 C. 1 Str. 197. 25, 8cc. 
 
 ''2Ld.Raym. 1295. Barnes, % Id.% 18, &c. 
 277.
 
 OF SCIRE FACIAS. 1049 
 
 statute shall not extend |o executors or administra- 
 tors ''. This statute does not apply to a scire facias 
 to repeal a patent, prosecuted in the name of the 
 king '. And it has been adjudged, that no costs are 
 payable by the plaintiff, on moving to quash his own 
 writ befofe plea ^', or after a plea in abatement '. 
 
 The execution in scire facias is governed by the 
 award of it : And though in the case of bail, the 
 recognisance be to levy of the lands and chattels, 
 yet execution of the body by capias ad satisfacien- 
 dum is good '", even as against bail in error ", by the 
 course of the court. And a capias ad satisfacien- 
 dum may be taken out against bail, without any 
 fieri facias^ or return oi nulla bona". If the princi- 
 pal be in execution, the plaintiff, it is said, cannot 
 take the bail '' : But if execution be taken against 
 the bail, and they pay part, yet the plaintiff may af- 
 terwards take execution against the principal for the 
 residue, the bail being previously set at liberty "J; 
 and this is said to be the constant practice of the 
 court. Also, if two be bail, although one be in ex- 
 ecution, 
 
 ^ 1 Str. 188. 3 East, 202. 25, &c. 
 
 i 7 T. R. 367. " 2 SU'. 822. Append.Chap. 
 
 k Cas. Pr. C. P. 74. 109. Pr. XLII. § 28. 
 
 Reg. 78. 378. Barnes, 431. o 2 Str. 1139. 
 
 but see 1 Str. 638. p Cro. Jac. 320. 
 
 1 1 Str. 638. >i 1 Sid. 107. and see Cro. 
 
 m 1 Rol. Abr. 897. 1 Lev. Jac. 549. 
 226. Append. Chap. XLil. § 
 
 Vol. 11. 3 D
 
 1050 ©F SCIRE FACIAS. 
 
 ecution, yet the plaintiff may take the otlier '". And 
 the recognisance being joint and several, the exe- 
 cution may be several, though the scire facias was 
 joint '. 
 
 r Cro. Jac. 320. S. C. Bac. Abr. tit. Execu- 
 
 s 1 Lev. 225. 1 Sid. 339. ftow, G. 
 
 CHAP- 
 
 I
 
 I 
 
 I 1051 ] 
 
 CHAPTER XLIII. 
 
 0/*Error. 
 
 \ WRIT of error is an original wnty issuing out 
 of Chancery, and lies where a party is ag- 
 grieved by any error in the foundation, proceed- 
 ing, judgment, or execution of a suit, in a court 
 of record * ; and is in nature of a commission to the 
 judges of the same or a superior court, by which 
 they are authorised to examine the record, upon 
 which judgment was given, and on such examina- 
 tion to affirm or reverse the same, according to 
 law ^. This writ is grantable ex clebito Justitice, in 
 all cases, except in treason and felony *". And it is 
 said, that wherever a new jurisdiction is erected by 
 act of parliament, and the court or judge that ex- 
 ercise this jurisdiction, act as a court or judge of re- 
 cord, according to the course of the common law, 
 a writ of error lies on their j'ldgments ; but where 
 they act in a summary way, or in a new course 
 different from the common law, there a writ of er- 
 ror lies not, but a certiorari^. To amend errors in 
 
 a court 
 
 » Co. Lit. 288. b. « 2 Salk. 504. 
 
 >> 2 Bac. Abr. 187. 1 Str. «» I Salk. 144. 263. and see 
 
 607. 2 Ld. Raym. 1403. S. C 3 Salk. 148. 
 Cas. tem/i. Hardw. 346.
 
 1052 OF EHROR. 
 
 a court not of record, a writ oi false -judgment is, 
 the proper remedy ^. 
 
 The writ of error is usually brought by the par- 
 ty or parties against whom the judgment was 
 given; or it may be brought by a plaintiif to re- 
 verse his own judgment, if erroneous, in order to 
 enable him to briiig another action ^. But the de- 
 fendant is not allowed to bring it, contrary to his 
 own agreement, or that of his attorney^: And 
 where executors, against whom a scire facias had 
 been sued out, to recover damages assessed on an 
 interlocutory judgment against their testator, 
 brought a writ of error, after the testator's attorney 
 had agreed for him that no writ of error should be 
 brought, the court on motion ordered the attorney 
 to nonpros the writ of error; for the scire facias 
 was merely a continuation of the proceedings in 
 the original action ; and as the testator himself, if 
 he had lived, could not have brought a writ of er- 
 ror, in consequence of the agreement, so neither 
 could his executors \ 
 
 If an action be brought against 2i feme-covert^ as 
 2i feme-sole^ and she plead to issue as a feme-solcy 
 and judgment be given against her, upon which she 
 is taken in execution, she and her husband may 
 
 join 
 
 e Co Lit. 288. b. Finch, L. s 2 T. R. 183. 
 484. 3 Blac. Com. 406. »» 1 T. R. 388. ^;zre,983, 4 
 
 f 3 Bur. 1772.
 
 OF ERROR. 1053 
 
 join in bringing a writ of error ; for otherwise the 
 husband might be prejudiced by losing the society 
 of his wife, and her care in his domestic concerns, 
 and he hath no other means to help himself' : So 
 if an action be brought against a feme-covert and 
 others, they may ail join with the husband in 
 bringing a writ of error ''. 
 
 It is a general rule, that no person can bring a 
 writ of error to reverse a judgment, who was not 
 party or privy to the record, or prejudiced by the 
 judgment, and therefore to receive advantage by 
 the reversal of it ^ Hence it has been determined, 
 that if there be judgment, against the principal^ 
 and also against the bail^ the principal cannot have 
 error on the judgment against the bail'", nor the 
 bail on the judgment against the principal ", nor 
 can they join in a writ of error ° ; for these ai*e dis- 
 tinct judgments, and affect different persons. 
 
 On a judgment against ^e-uera/ parties, the writ of 
 error must be brought in all their names •", provided 
 they are all living, and aggrieved by the judgment; 
 
 for 
 
 i 1 Rol.Abr. 748. Sty. Rep. 408. 481. 561. 1 Ld. Raym. 
 
 Q54. 280. 328, Carth. 447. S. C. 
 
 k 1 Rol. Abr. 748. o Pahn. 567. Cro. Car. 300. 
 
 • 2 Bac. Abr. 195. 408. 574, 5. 
 
 "> Id. 199. 1 Rol. Abr. 748, p 6 Co. 25. Cro. Eliz. 648, 
 
 9. Cro. Car. 408. and see Lil. 9. S. C. Yelv. 4. Cro. Eliz. 
 
 Em. 378. and the cases there 892. S. C. Carth. 7, 8. 3 
 
 cited. Mod. 134. S. C. 1 Ld. Raym. 
 
 " 2 Leon. 101. Cro. Car. 71. 151. 5 Mod. 1669.
 
 1054 
 
 OF ERROR. 
 
 for otherwise this inconvenience would ensue, that 
 every defendant might bring a writ of error by him- 
 self, and by that means delay the plaintiff from his 
 execution for a long time, and from having any be- 
 nefit of his judgment, though it might be affirmed 
 once or oftener "^ : And if the writ of error, in such 
 case, be brought by one or more of the defendants 
 only, it may be quashed ^ But where judgment is 
 given against several parties, and one or more of 
 them die, the writ of error may be brought by the 
 survivors *^. And in trespass against three, if there 
 be judgment by default against two of them, and 
 the third plead to issue, and it be found for him, 
 the two only may bring a writ of error ; for the par- 
 ty in whose favour the judgment was given, can- 
 not say that it was to his prej udice '. So if a writ 
 of error l:!e brought in the names of several par- 
 ties, and any one or more of them refuse to appear 
 and assign errors, they must be su?n?noned and 
 severed; after which the Avrit of error may be pro- 
 ceeded 
 
 Carth. 36". Comb. 354. Holt, 
 54. S. C. 1 Ld. Raym. 244. 
 Carth. 404. Comb. 441. 1 
 Salk. 319. 5 Mod. 338. S. C. 
 1 Ld. Raym. 328. 2 Ld. 
 Raym. 870. 1 Salk. 313. S.C. 
 6 Mod. 40. I Str. 234. 2 Ld. 
 Raym. 1403. 1 Str. 606. 8 
 Mod. 305. 316. S. C. 2 Ld. 
 Raym. 1532. Cas. temfi. 
 
 Hardw. 135, 6. 1 Wils. 88. 3 
 Bur. 1792. 2 T. R. 737. 
 
 n Carth. 8. and see 3 Bur. 
 1789. 
 
 rPalm. 151. 1 Str. 234. 
 
 s 1 Lev. 210. Hob. 70. I- 
 Str. 683. 2 Str. 892. 1110. 
 Cowp. 425. 2 Blac. Rep. 
 1067. but see Sty. Rep. 190. 
 .T Salk. \\&.semb. contra.
 
 OF ERROR. 1055 
 
 ceeded in by the rest alone ' : And where a writ of 
 error was brought in the names of two executors, 
 and one would not join in assigning errors, the 
 court gave the other time to assign them, till there 
 could be summons and severance ". 
 
 On a writ of error brought against two execu- 
 tors, one only appeared, and sued out a scire facias 
 quare execiitionem non^ upon which the judgment 
 was affirmed for both executors ; and upon a se- 
 cond writ of error, the court held, that a scire fa- 
 cias quare execiitionem non is only to bring in the 
 plaintiff in error to assign his errors ; and as he 
 came in upon it, and assigned his errors, he waived 
 any objection, and admitted the one executor to 
 be sufficient to call upon him to assign them ; and 
 the court are not to presume that the other execu- 
 tor is alive : And though a writ of error by one 
 alone, upon a judgment against two, be not good, 
 yet that is upon account of the inconvenience that 
 would arise, from a perpetual delay of execution, 
 if every defendant might bring a writ of error by 
 himself; but that reason docs not hold in this case, 
 where the executors are defendants in error, and 
 not plaintiffs ''. 
 
 A writ 
 
 t Yelv. 4. Cro. Eliz. 892. Hardw. 135, 6. 
 
 S. C. Cro. Jac. 1 17. Carth. 7, " 2 Str. 783. 
 
 8. 3 Mod. 134. S. C. 6 Mod. ^' 3 Buv. 1789. 
 40. 1 Str. 234, Cas. temp.
 
 1056 or £RROK. 
 
 A writ of error lies for some error or defect in 
 substance, tha.t is not aided, amendable, or cured 
 at common law, or by some of the statutes of 
 amendments or jeofails ' . And it lies to the same 
 court in which the judgment was given, or to 
 which the record is removed by writ of error, or 
 to a superior court. If a judgment in the King's- 
 Bench be erroneous, in matter of^ac^ only, and not 
 in point of law, it may be reversed in the same 
 court, by writ of error coram nobis, or qme coram 
 nobis resident "", so called from its being founded 
 on the record and process, which are stated in the 
 writ to remain in the court of the lord the king, 
 before the king himself- ; as where the defendant, 
 being under age, appeared by attorney, or the 
 plaintiff or defendant was a married woman, at the 
 time of commencing the suit, or died before ver- 
 dict, or interlocutory judgment : for error in fact 
 is not the error of the judges, and reversing it is 
 not reversing their own judgment''. So upon a 
 judgment in the King's-Bench, if there be error in 
 the process, or through the default of the clerks, it 
 may be reversed in the same court, by writ of er- 
 ror 
 
 ■>*■ ^n(e, 826, Sec. ror is called a writ of error co- 
 
 ^ Append. Chap. XLIII. § ram vobis, or qux coram vobis 
 
 2, 3. resident. 
 
 y In the Common-Pleas, '^ 1 Rol. Abr. 747. Cro. 
 
 the record and process being Eliz. 105, 6. 1 Sid. 208. S 
 
 stated to remain before ti.e Salk. 145, 6, 7. 
 
 king's justices, the writ of er-
 
 OF ERROR. 1057 
 
 ror coram nobis ^ : But if an erroneous judgment be 
 given in the King's-Bench, and the error lie in the 
 judgment itself, and not in the process, a writ of 
 error does not lie in the same court upon such 
 judgment ^ 
 
 If a writ of error returnable in the King's-Bench 
 abate, after removal of the record, by death or 
 otherwise *^, or be quashed for any other fault than 
 variance '^, error coram nobis lies in the same court 
 to which the record is removed: But formerly, if 
 there had been a variance between the record and 
 the writ of error, the record not being removed, 
 there must have been a new writ '. And error co- 
 ram nobis lies not in the King's-Bench, after an af- 
 firmance m that court*, or in the Exchequer-cham- 
 ber ^. Neither does it lie, for error in fact, in the 
 Exchequer- chamber \ or House of Lords; for the 
 record is not removed thither, but only a tran- 
 script : and it is said to be beneath the dignity of 
 the House of Lords, that being the supreme judi- 
 cature, to examine matters of fact \ 
 
 For 
 
 a 1 Rol. Abr. 746. F. N. B. 8 Mod. 305. 316. S. C. 
 
 21,Poph. 181. e Godb. 375. but see the 
 
 b 1 Rol. Abr. 746. stat. 5 Geo. I. c. 13. 
 
 c/rf. 753. Yelv. 6. Cro. f 2 Str. 949. 975. I Salk. 
 
 Eliz. 891. S. C. Godb. 375. 357 . Semb. contra. 
 
 Latch, 198. S. C. Cro. Car. s I Str. 6yO, 
 
 575. h I Uoi. Abr. 755. Com. 
 
 d 1 Ld. Raym. 151. Carth. Rep. 597. 
 
 367. 5 Mod. 16. 69. S. C. 1 • 3 Salk. 145, 6. 
 Str. 606. 2 Ld. Raym. 1403. 
 Vol. IL 3 E
 
 1058 OF ERROR. 
 
 For the error or mistake of the judges, in point 
 of law, a writ of error lies to the King's-Bench, 
 from the Common- Pleas at JVestminster^y and from 
 all inferior courts of record in England \ except in 
 London"", and some other places; and after judg- 
 ment given thereon, a second writ of error may be 
 brought, returnable in the House of Lords: but 
 error lies not from an inferior court, to the Com- 
 mon-Pleas ". 
 
 In London, a writ of error lies from the sheriff's 
 courts, to the court of hustings of common pleas ; 
 and from the court of hustings, whether of com- 
 mon pleas or pleas of land, and also from the law 
 side of the mayor's court, to a court of appeal held 
 before commissioners appointed under the great 
 seal, and from thence immediately to the House of 
 Lords °. It also seems, that the appeal against de- 
 crees made on the equity side of the mayor's court, 
 is immediately to the House of Lords ^ 
 
 On a judgment given in the Cinque-ports, no writ 
 of error lies in the King's-Bench or Common- 
 Pleas ; but by custom, such judgment is exami- 
 nable by bill, in nature of a writ of error, before 
 
 the 
 
 t 4 Inst. 22. o Emerson, on the City 
 
 ^Append.Chap.XLIII. §7. Courts, 27. 76. 97. 2 Bac. 
 
 ^"2 Bur. 777. Abr. 215. 
 
 n Finch, L. 480. Cro. Eliz. p Emerson, on the City 
 
 26. 3 Blac. Com. 411. Courts, 86.
 
 OF ERROR. 1059 
 
 the lord-keeper or warden of the Cinque-ports^ at 
 his court of Shepxvay '^. So if a judgment be given 
 in the court of Stannaries, in the duchy of Cornwall, 
 for any matters touching the stannaries'^, no writ of 
 error lies upon this, in the King's-Bench or Com- 
 mon-Pleas; but an appeal to the wai'den of the 
 Stannaries, and from him to the Prince of JFales, 
 and when there is no prince, to the king in coun- 
 cil*. 
 
 A writ of error lies at common law in the King's- 
 Bench, upon a judgment in a county palatine ; for 
 though these are superior courts, and have jura 
 regalia, yet their jurisdiction is derived from the 
 crown \ And by the 34 & 35 Hen. VIII. c. 26. 
 ^ 113. and 1 JV. &: M. c. 27. errors in judgments, 
 in pleas real mixed and personal, before the justices 
 in their great-sessions in Wales, shall be redressed 
 by writ of error, in the King's-Bench in England. 
 
 At common law, no writ of error lay on a judg- 
 ment from the King's-Bench, except in parliament; 
 by which means the subject was often disappointed 
 of his writ of error, either by the not sitting of 
 parliament, or by their being employed in pub- 
 lic business, when they did sit ". To remedy this, 
 it was enacted, by the statute 27 Eliz. c. 8. that 
 
 ^' where 
 
 14 Inst. 224. t Jd. ibid. 4 Inst. 214. 218. 
 
 ^ 3 Bulst. 183. 223. 
 
 s 1 Rol. Abr. 745. « 2 Bac. Abr. 212.
 
 1060 OF ERROR. 
 
 " where any judgment shall be given in the King's- 
 " Bench, in any action of debt, detinue, cove- 
 *' nant, account, action upon the case, ejectment, 
 ** or trespass,^r^? commenced there^ otherthan such 
 " only where the Queen shall be party, the plain- 
 " tiff or defendant, against whom such judgment 
 " shall be given, may at his election ^ sue out of the 
 " court of Chancery, a special writ of error, di- 
 " rected to the chief-justice of the King's-Bench, 
 *' commanding him to cause the record, and all 
 " things concerning the judgment, to be brought 
 " before the justices of the Common-bench, and 
 " barons of the Exchequer, into the Exchequer- 
 " chamber, there to be examined by the said 
 "justices and barons; which said justices, and 
 " such barons as are of the degree of the coif, or 
 " six of them, shall have full power and authority 
 " to examine all such errors as shall be assigned in 
 " or upon any such judgment, and thereupon to 
 " reverse or affirm the same, as the law shall re- 
 " quire, other than for errors concerning the ju- 
 " risdiction of the court of King's-Bench, or for 
 " want of form in any writ, return, plaint, bill, 
 " declaration, or other pleading, process, verdict, 
 " or proceeding whatsoever; and after the said 
 *' judgment shall be affirmed or reversed, the said 
 " record, and all things concerning the same, shall 
 
 "be 
 
 ' 3 Salk. 147.
 
 OF ERROR. 1061 
 
 " be brought back into the King's-Bench, that 
 *' further proceeding may be had thereupon, as 
 " well for execution as otherwise : But such re- 
 " versal or affirmation shall not be so final, but 
 *' that the party grieved shall and may sue in the 
 " high court of Parliament, for the further and 
 " due examination of the said judgment, as was 
 *' then usual upon erroneous judgments in the 
 ** court of King's-Bench." 
 
 This statute is confined to the particular actions 
 enumerated therein; and does not extend to ac- 
 tions of replevin '% rescous'', scandalum magnatumyy 
 ravishment of ward ^, or sct7'e facias against bail % 
 &c. : In these actions therefore, error will not lie 
 in the Exchequer-chamber, but must be brought 
 in parliament. In scire facias on a judgment, 
 against the party or his executors, it seems that 
 error lies in the Exchequer-chamber, tam in red- 
 ditionc judicii^ quam in adjudicatione execufionis^ ; 
 but not upon an award of execution only*". Er- 
 rors in fact J being examinable in the King's-Bench, 
 
 cannot 
 
 w 2 Rol. Rep. 434. Cro. Car. 280. 300. W. Jon. 
 
 » Moor, 626. Cro.Jac. 171. 325. 1 Ld. Raym. 98. but see 
 
 y Cro. Car. 142. W. Jon. Cro. Eliz. 750. contra. 
 
 194. Ley, 82. S. C. 1 Sid. •> Cro. Car. 286. 464. Ld. 
 
 143. 1 Vent. 49. 2 Ld. Raym. Raym. 98. 
 
 954. c 2 Str. 1102. Andr. 287. 
 
 ^ 2 Rol. Rep. 134. S. C. 
 
 * Yelv. 157. Cro. Jac 171,
 
 1062 OF ERROR. 
 
 cannot legally be assigned in the Ex chequer- cham- 
 ber "^ : yet if a release of errors be pleaded in that 
 court, they may try it, and award a venire^ under 
 the seal of the court of Exchequer ^ 
 
 We have already seen, that a writ of error does 
 not lie in the Exchequer-chamber, upon a judg- 
 ment of the King's-Bench, in an action commenced 
 there by origmal writ ; because it is not first com- 
 menced in the King's-Bench, but is founded upon 
 the original writ issuing out of Chancery ^. And 
 for a similar reason, a writ of error lies not in the 
 ExcJiequer-chamber, upon a judgment affirmed 
 on error in the King's-Bench, but must be brought 
 in the House of Lords s. So where a judgment of 
 the King's-Bench was affirmed in the Exchequer- 
 chamber, upon which the plaintiff" sued out a scire 
 facias in the King's-Bench, and had an award of 
 execution, and afterwards the defendant brought a 
 writ of error in the Exchequer-chamber, tarn in 
 redclitio?ie Judicii, quam in adjudicatione executiojiisy 
 the court held that this writ of error did not lie, 
 and was no supersedeas of execution^. Upon that 
 part of the statute, which excepts actions where 
 the Queen shall be party, it has been questioned, 
 whether a writ of error lies in the Exchequer-cham- 
 ber, 
 
 ^ 2 Lev. 38. 1 Vent. 207. %2 Bulst. 152. and see 1 
 
 3 Mod. 194. Com. Rep. 597. Rol. Rep. 264. 
 
 c 2 Str. 82 1 . hi Salk. 263. 1 Ld. Raym 
 
 f Jnte. 94. 97. 5 Mod. 228. S. C
 
 OF ERROR. 1065 
 
 her, upon a judgment in an action of debt qui tarn, 
 upon the statute of usury '. 
 
 From proceedings on the law side of the Exche- 
 quer in England^ a writ of error lies into the court 
 of Exchequer-chamber, before the lord- chancellor, 
 lord-treasurer, and the judges ofthe court of King's- 
 Bench and Common-Pleas; and from thence it 
 lies to the House of Peers J : But against decrees 
 on the equity side of the Exchequer, the appeal is 
 to the House of Peers in the first instance. 
 
 Before the union with Scotland., a writ of erroi- 
 lay not in this country, upon any judgment in Scot- 
 land, because it was a distinct kingdom, and go- 
 verned by distinct laws ^ ; but it is since given by 
 statute \ from the court of Exchequer in Scotland^ 
 returnable in parliament. A writ of error formerly 
 lay from the King's-Bench in Ireland, to the King's- 
 Bcnch in England, and from thence to the House 
 of Lords; but now, by the statute 23 Geo, HI. 
 c. 28. \ 2. " no writ of error or appeal shall be re- 
 " ceived or adjudged, or any other proceedings 
 " had, by or in any of his majesty's courts in this 
 " kingdom, in any action or suit at law or in 
 " equity, instituted in any of his majesty's courts 
 
 "in 
 
 i Doug. 350. I. 3. 
 
 J 3 Blac. Com. 411. and ^ Show. P. C. 33. 
 see 2 Bac. Abr. tit. Ermr^ i 6 Ann. c. 26. § 12.
 
 1064 OP ERROR- 
 
 " in the kingdom of Ireland; and all such writs, 
 " appeals, or proceedings shall be, and they are 
 " thereby declared null and void, to all intents and 
 *' purposes." Since the union with Ireland how- 
 ever, a writ of error lies from the superior courts in 
 that country, to the House of Lords. 
 
 No writ of error can be brought but on a judg- 
 ment, or an award in nature of a judgment ; for the 
 words of the writ are, si judicium I'edditum sit, Sec." 
 And hence it was formerly holden, that a writ of er- 
 ror could not be brought before judgment given; 
 and if tested before, it was no supersedeas'''. But 
 it seems to be now agreed, that a writ of error, 
 bearing teste before judgment, is good, so as the 
 judgment be given before the return of it ; and this 
 is the usual course for preventing execution °: Still 
 however, if the writ of error be returnable before 
 judgment, it may be quashed''. 
 
 After judgment, twenty years ar& allowed for 
 bringing a writ of error : And by the statute 10 & 
 W W. III. c. 14. " no judgment in any real or 
 " personal action, shall be reversed or avoided, 
 " for any error or defect therein, unless the writ 
 *' of error be brought, and prosecuted with effect, 
 *' within twenty years after such judgment signed, 
 
 " or 
 
 ">Co.Lit.288.b. 308. S. C. 1 Str. 632. 1 T. 
 
 " 2 Bac. Abr. 199. 1 Rol. R. 279. 
 Abr. 749. Moor, 461. P 2 Ld. Raym. 1179. 1531. 
 
 "March, 140. 1 Vent. 96. 2 Str. 834. 891. 
 255. 1 Mod. 112. 3 Keb.
 
 OF ERROR. 1065 
 
 •'• or entered of record." This statute has the usual 
 exceptions, in favour of m^Sints^Jeme-coverts, per- 
 sons no7i compos mentis^ imprisoned, or beyond the 
 seas. And the court on motion would not quash a 
 writ of error, though brought twenty-nine years af- 
 ter the judgment; for this would be to deprive the 
 party of the benefit of replying the exceptions in 
 the statute ''. 
 
 A writ of error, like a scire facias^ is considered 
 as a new action ; and therefore upon bringing it, the 
 defendant in the original action may change his at- 
 torney, without obtaining a judge's order for that 
 purpose \ To obtain a writ of error, application 
 must be made by the attorney to the cursitor of 
 the county where the venue was laid in the origi- 
 nal action ; who will make out the writ, in ordinary 
 cases, as a matter of course, upon a precipe ^ or 
 note of instructions, containing the names of the 
 parties, the nature of the judgment, the court 
 wherein it was given, and the time when the writ 
 is intended to be returnable. In parliament, there 
 must be a warrant for the writ of error from the 
 crown, which is procured by the cursitor '; and 
 where it is against the king, the jiat of the attor- 
 ney-general must be obtained, upon a petition, set- 
 ting forth the errors intended to be assigned, ac- 
 companied 
 
 qSStr. 837. 1.4.8. 
 
 ^ZT. R.337. t Imp. K. B. 705. 
 
 ' Append. Chap. XLIII. % 
 
 Vol. II, 3F
 
 1066 of ERROR. 
 
 companied with a certificate from counsel, that 
 they are real errors. This practice was anciently 
 used% as a mark of decency and respect; and 
 though it appears to have been laid aside in the last 
 century ^, yet it has since been revived. 
 
 The writ of error runs in the king's name; and, 
 except in a county palatine, should be directed to 
 the chief-justice, or other officer who has the cus- 
 tody of the record; as, in the Common-Pleas, to our 
 right trusty and well-beloved Richard Pepper Lord 
 Alvanley^ our chief-justice of the Bench '" ; in the 
 King's-Bench, to our right trusty and well-beloved 
 Edward Lord Ellenboroughy our chief-justice as- 
 signed to hold pleas in our court before us "; or, if 
 it be a writ of error coram ?iobis, to our justices as- 
 signed to hold pleas before us ^' : and the writ of er- 
 ror in parliament, is directed to the chief-justice of 
 the King's-Bench, upon a judgment of that court ^. 
 In the county palatine of Lancaster, the writ of er- 
 ror is directed to the Chancellor or his deputy, 
 commanding him that he give in charge to the jus- 
 tices at Lancaster, that they send to him in his 
 chancery, the record, &c. and the writ which came 
 to them thereupon, and that he transmit the record^. 
 
 To 
 
 " Sav. 131. 213. 
 
 ^ 1 Salk. 264. y Lil. Ent. 220. 231, 2. 
 
 >^ L. P. E. 67, 8. 78, 9. ^ Jd. 254. 
 
 Lil. Ent. 222. 268. ^ 2 Cromp. 344. 
 ^L. P. E. 167. Lil. Ent.
 
 OF ERROR. 1067 
 
 To reverse a fine, levied in the Common-Pleas, the 
 writ of error is directed to the Chirographer, for 
 the transcript of the note of the fine, and writs of 
 covenant ^', or to the custos brevium, for the tran- 
 script of the foot of the fine " : And in inferior 
 courts, the writ of error should be directed to the 
 judges before whom the judgment was given \ 
 
 In point of Jorm, the body of the writ of error, 
 when returnable in the King's-Bench, on a judg- 
 ment of the Comrnon-Pleas, runs thus: " Because 
 in the record and process, and also in the giving of 
 judgment, in a plaint which was in our court, be- 
 fore you and your companions, our justices of the 
 bench, by our writ, between A. B. and C. D. late 
 of, &c- of a plea of, &c. (describing the nature of 
 the action,) manifest error hath intervened, to the 
 great damage of the said C. D. as from his com- 
 plaint we are informed; we being willing that the 
 error, if any there be, should in due manner be cor- 
 rected, and full and speedy justice done to the par- 
 ties aforesaid in this behalf, do command you, that 
 if judgment be thereupon given, then you do dis- 
 tinctly and openly send to us, under your seal, the 
 record and process aforesaid, with all things touch- 
 ing/the same, and this writ, so that we may have 
 them on, &c. (ageneral return-day) wheresoever we 
 
 shall 
 
 «» Lil. Ent. 280. <» Godb. 44. 
 
 c Id. 282.
 
 1068 OF ERROR. 
 
 shall then be in England, that the record and pro- 
 cess aforesaid being inspected, we may cause to be 
 further done thereupon, for correcting that error, 
 what of right, and according to the law and cus- 
 tom of England, ought to be done *^." This writ 
 consists of two parts, first, a certiorari to remove 
 the record; and secondly, a cojnmission to examine 
 it^: But in a writ of error coram nobis, the certio- 
 rari part being unnecessary is omitted, and the writ 
 contains only a commission to examine errors ^. 
 
 Where the writ of error is returnable in the Ex- 
 chequer-chamber, it begins by reciting the statute 
 27 Eliz. c. 8. and brings the case within that sta- 
 tute, by stating that the error in no wise concerns 
 the king, or the jurisdiction of the court of King's- 
 Bench, or any want of form in any writ. Sec. ^. In 
 the House of Lords, the writ of error differs in 
 point of form, accordingly as it is brought on a 
 judgment originally given in the court of King's- 
 Bench \ or on a judgment affirmed there \ or in 
 the Exchequer-chamber \ And where the error is 
 supposed to be as well in giving the judgment, as 
 in awarding execution thereon, the writ of error is 
 
 said 
 
 e Append. Chap. XLIIL § ^ Id.^ 9. 
 5, &c. i Jd. § 10. 
 
 f 1 Str. 607. J /rf. § II. 
 
 g Append. Chap. XLIII. § ^ Id.\\2. 
 2,3.
 
 OF ERROR. 106y 
 
 buid to be ta7n quam, or in the words of the writ, 
 tarn 171 redditione judicii, quam in adjudicatione ex- 
 ecutionis^. 
 
 The teste of the writ of error is the day of suing 
 it out; and in the King's-Bench, it is returnable 
 2ibicunque, &:c. on the first or last general return of 
 the term "* : In the Exchequer-chamber, it is re- 
 turnable before the justices of the Common-bench, 
 and barons of the Exchequer, of the degree of the 
 coif, in the Exchequer- chamber, on a particular 
 return-day": In the House of Lords, when the 
 parliament is sitting, the writ of error is made re- 
 turnable before the king in his present parliament, 
 immediate^ or without delay; because that court, 
 during the session of it, is supposed to sit continu- 
 ally, and has no vacation, and it is for the honour of 
 that high tribunal to be immediately attended, 
 that tney may do the speedier justice °: After a 
 prorogation, the writ of error is returnable before 
 the king in his parliament, at the next session •'; or 
 after a dissolution, at the ntyit parliament ^ specify- 
 ing the day when it is to be holden '^. And it is ne- 
 cessary, in all cases, that there should be fifteen 
 days between the teste and return of a writ of error. 
 
 The 
 
 ' 2 Str. 1055. Cas. temfi. " Lil. Ent. 248. 254. 
 Hardw. 345. S. C. p Id. 292. 
 
 '" L. P.E. 33. q 1 Vent. 31. 266. \ Mod. 
 
 *", « Id. 167. Lil. Ent. 213. 106.
 
 1070 OF ERROR. 
 
 The writ of error being made out, is sealed m 
 Chancery, either on a general seal-day, or, which is 
 somewhat more expensive, at a private seal ; and af 
 ter being obtained from the cursitor, it should be 
 taken to the clerk of the errors of the court, in which 
 the judgment was given "■, who will alloiv the same, 
 on being paid his fees, and make out a certificate 
 or note of the allowance ^ ; a copy of which should 
 be served on the attorney for the defendant in er- 
 ror: this is usually done at the time of taxing costs, 
 and at the same time, the original certificate should 
 be shewn him. The writ of error coram nobis is al- 
 lowed by the master^in open court ' ; and the rule 
 of allowance " being drawn up by the clerk of the 
 rules, a copy of it is served on the attorney for the 
 defendant in error. 
 
 A writ of error, sued out before final judgment, 
 continues in force during the whole term in which 
 it is returnable ^ : and if final judgment be signed 
 at any time during that term, it is -a supersedeas or 
 stay of execution, from the time of signing it '"y 
 provided bail, when requisite, be put in thereon, 
 within four clear days after final judgment is sign- 
 ed. 
 
 "" R. E. 36 Car. II. and see in vacation by the secondary. 
 
 R. T. 20 Car. I. K. B. ^ Append. Chap. XLIII. § 
 
 * Append. Chap. XLIII.§ U. 
 
 13. ^ Barnes, 196, 7,8. 
 
 t L. P. E. 77. but see 2 ^^ I Str. 632. and see 2 Bos. 
 
 Cromp. 394. where it is said, 8c Pul. 137. 
 that this writ mav be allowed
 
 OF ERROR. 1071 
 
 ed "". And the court have gone so far, that if a writ 
 of error be sued out, and the plaintiff do not sign 
 final judgment, till a subsequent term after the re- 
 turn of the writ, in order to avoid the effect of it, 
 and then take out execution, the court will set it 
 aside ^ . 
 
 After final judgment, and before execution exe- 
 cuted, a writ of error is generally speaking a super- 
 sedeas of execution, from the time of its allow- 
 ance ^, provided bail be put in and perfected in due 
 time*; and the allowance is notice of itself*: Or 
 if the defendant, before the allowance, have notice 
 of the writ of error being sued out, and delivered to 
 the clerk of the errors, it is from the time of that 
 notice a supersedeas ". And a writ of error is so ab- 
 solutely a supersedeas, that after it is allowed, the 
 plaintiff cannot take out a capias ad satisjaciendum 
 against the principal, and get it returned non est 
 inventus, in order to proceed against the bail*^; nor, 
 
 if 
 
 X 2Str. 781. IT. R. 279. 4 ^ i Salk. 321. 1 T. R. 28o'. 
 
 T. R. 121. but in order to bring theattor- 
 
 y IT. R. 280. ney into contempt, for pro- 
 
 2 Vend 31. 1 Salk. 321. ceeding after the allowance, 
 
 Willes, 271. Barnes, 205. S. he must have had actual no- 
 
 C. 1 Bur. 340. 1 gos. & Pul. tice. Id. ibid. I Bur. 340. 
 
 478. 2 Bos. & Pul. 370. 2 M Salk. 321. 6 Mod. 130. 
 
 East, 439. 2 Ld. Raym. 1260. S. C. IT. 
 
 a 2 Str. 781. 1 T. R. 279. R. 280. Say. Rep. 51. 
 
 Ante, 470, I. and see R. E. d 2 Str. 867. Fitzgib. 175. 1 
 
 36 Car. II. K. B. M. 28 Car. Barnard. K. B. 334. S. C. 2 
 
 II. C. P. Ld. Raym. 1567. S. C
 
 1072 OF ERROR. 
 
 if the capias ad satisfaciendum be sued out before, 
 can the plaintiff call for a return of it, after the al- 
 lowance of a writ of error % even though it has pre- 
 viously lain four days in the office *^: But in such 
 case, the capias ad satisfaciendum may be returned, 
 so as to fix the bail, after the writ of error is deter- 
 mined 2. If the defendant bring a writ of error, and 
 the plaintiff, as he may, bring an action on the judg- 
 ment, and recover, he cannot sue out execution on 
 the second judgment, till the writ of error be de- 
 termined^ But where it is apparent to the court, 
 that a writ of error is brought against good faith ', 
 or for the mere purpose of delay '', or it is returna- 
 ble of a term previous to the signing of final judg- 
 ment ', or bail when requisite is not put in and per- 
 fected in due time "", it is not a supersedeas. 
 
 An execution being an entire thing, cannot be 
 superseded after it is once begun : Therefore if a 
 writ of execution be executed, before a writ of 
 error allowed or notice, it may be returned after- 
 wards ; and the utmost length of time the law al- 
 lows for executing a writ, is the day whereon it 
 is returnable, and it is not executable any longer 
 
 that 
 
 ^2 Str. 1186. 1 Wils. 16. semb. contra. 
 S. C. 1 East, 662. i 2 T. R. 183. 
 
 fST. R. 390. k4 T. R. 436. 5T. R.ri^k 
 
 g 1 Wils. 269. But see ./^nre, 471. 
 Barnes, 83, contra. ' Barnes, 197, 8. 
 
 f^ 3 T. R. 643. 4 Bur. 2454, '^^ 2 T. R. 44. 
 S. P. but see Barnes, 202, ?•.
 
 OF ERROR. 1073 
 
 that day than the court sits : So long as it is execu- 
 table, but not executed, the allowance of a writ of 
 error is a supersedeas, but not afterwards ". Judg- 
 ment in a cause was signed on the 30th of April, 
 and the plaintiff on that day sued out a writ ofjieri 
 facias; afterwards a writ of error was allowed, and 
 served on the agent in town on the 3d oiMay, and 
 on the plaintiff 's attorney in the country and un- 
 der-sheriff on the 5th oi May; the sheriff entered 
 on the same day, but after notice of the allowance 
 of the writ of error: No bail in error was put in; 
 and the court upon that ground held, that the writ 
 of error became an absolute nullity, and was no*w- 
 persedeas or stay of execution : But they said, that 
 if the writ of error had been followed up immedi- 
 ately, by the plaintiff in error regularly putting in 
 bail, it would have operated as a supersedeas. The 
 party therefore taking out execution, after the al- 
 lowance of a writ of error, and before bail put in, 
 does it at his peril ; for if the writ of error be re- 
 gularly followed up by bail, the execution will be 
 set aside **. 
 
 I shall next proceed to inquire, in what cases bail 
 is requisite on a writ of error, and when, where, 
 
 and 
 
 "1 Salk. 321. and see Barnes, 205, S. C. 
 
 1 Vent. 255. Willes, 271. ° 2 T. R. 45. 
 
 Vol. II. 3G
 
 1074 OF ERROR. 
 
 and how it should be put in, excepted to, and jus- 
 tified. No bail in error was required at common 
 law; so that the defendant, by bringing a writ of 
 error, might have delayed the plaintiff of his exe- 
 cution, without giving any security, either for the 
 prosecution of such writ, or for the payment of the 
 debt or damages recovered by the former judg- 
 ment, in case it should be affirmed, or the writ of 
 error should be discontinued, or the plaintiff in er- 
 ror nonsuited therein. The inconvenience of this 
 was very early felt ; and in order to guard against 
 it, the court of King's-Bench, so long ago as in the 
 reign of Henry the seventh p, would not allow a 
 writ of error in parliament, until some error was 
 shewn to them in the record, lest it should be 
 brought on purpose to delay execution: And, with 
 a like view, it was ordered by the justices of the 
 Common-Pleas, in the reign of Queen Elizabeth^ 
 that the clerk of the treasury for the time being 
 should not make a supersedeas upon any writ of er- 
 ror, to reverse or affirm any judgment given in that 
 court, upon any verdict, demurrer in law or con- 
 fession, until some manifest or pregnant error 
 therein should be notified by the party that sued 
 the writ of error, or some of his counsel, unto the 
 
 justices 
 
 ? 1 Hen. VII. 19. 1 Vent. 266.
 
 OF ERROR. 1075 
 
 justices of the bench, or to one of them at the 
 
 least \ 
 
 And still further to avoid unnecessary delays of 
 
 executions, it is enacted by the statute 3 Jac. I. c. 
 
 8. (made perpetual by the 3 Car. I. c. 4. ^ 4.) 
 that no execution shall be stayed or delayed, 
 upon or by any writ of error, or supersedeas 
 thereupon to be sued, for the reversing of any 
 judgment in any action or bill of debt, upon any 
 sing le- bond ^or debt, or upon any obligation with 
 condition for the payment of money only^ or upon 
 any action or bill of debt for rent^ or upon any 
 contract^ sued in any of the courts of record at 
 Westminster^ or in the counties palatine of Ches- 
 ter^ Lancaster or Durham, or the courts of great 
 sessions in Wales; nor (by the 19 Geo. III. c. 
 70. ) for the reversingof any judgment given in any 
 inferior court of record, where the damages'" are 
 under ten pounds; unless the person or persons, 
 in whose name or names such writ of error shall 
 be brought, with two sufficient sureties, such as 
 
 *' the 
 
 1 R. E. 23 Eliz. and see R. often prevails, of bringing 
 
 M. 6 & 7 Eliz. If this rule writs oF error for the mere 
 
 were still acted under, and purpose of delay. 
 
 some such rule were made in •■ Qu. as to the damages here 
 
 the King's-Bench, or if the de- referred to ; whether they ai'c 
 
 fendant upon suing out a writ the damages laid in the declara- 
 
 of error, were obliged to bring tion, or the damages recover- 
 
 the debt and costs into court, ed ; and if the latter, whether 
 
 it might have a tendency to they are with or withont 
 
 prevent the practice, that too oosts .'
 
 1076 OF ERROR. 
 
 *' the court wherein the judgment is given shall al- 
 *' low of, shall first be bound unto the party for 
 *' whom the judgment is given, by recognisance 
 " to be acknowledged in the same court, in double 
 " the sum adjudged to be recovered by the former 
 " judgment, to prosecute the said writ of error 
 " with effect, and also to satisfy and pay, if the said 
 *' judgment be affirmed, or the writ of error non- 
 " prossed, all and singular the debts damages and 
 '' costs adjudged upon the former judgment, and 
 " all costs and damages, to be awarded for the de- 
 " laying of execution." 
 
 This statute is confined to the particular actions 
 enumerated therein ; and does not extend to ac- 
 tions on the case upon bills of exchange % &c. but 
 it extends, in the actions specified, to all manner of 
 judgments, by default, upon demurrer, or nul tiel 
 record^ as well as after verdict. In actions of debt 
 on bond, conditioned for the payment oi money 
 only^ the statute has been construed to extend, not 
 only to cases where the sum was originally certain, 
 and payable absolutely by the condition, without 
 referring to any other instrument; but also to 
 cases, where the sum was originally uncertain, but 
 afterwards reduced to a certainty ; as debt on bond 
 conditioned for the payment of so much money as 
 
 J. S. 
 
 8 2 Keb. 234.
 
 OF ERROR. 1077 
 
 J. S. should declare to be due on an account*^; or on a 
 bottomree bond, by which the money was payable 
 upon a contingency, which has happened"; or where 
 the bond was conditioned for the payment of a sum 
 of money mentioned in certain indentures ''j &c. 
 
 But the statute does not extend to actions of debt 
 on bond, conditioned for the performance of cove- 
 nants "^, or of an awards &c. even though one of 
 the covenants be for the payment of money, and 
 the action be brought for the non-performance of 
 that covenant ^. But in an action of debt on bond 
 conditioned for the performance of covenants, if 
 the defendant let judgment go by default, without 
 craving oyer of the condition, and after bring a 
 writ of error, it is said that in the King's-Bench, 
 he must put in bail thereon ; because it does not 
 appear to the court upon the record, that the con- 
 dition was for performance of covenants ^. In debt 
 on a general bond of indemnity, bail is not requir- 
 ed, on bringing a writ of error after judgment by 
 default : But where a man having entered into a 
 
 bond, 
 
 t 1 Lev. 117. 1 Keb. 613. Barnes, 78. 98. 
 
 S. C. ^1 Bulst. 54. 
 
 " 1 Str. 476, and see 6Mod. "Carth. 28. 1 Show. 14. S. 
 
 38.butsee 1 Show. 14. Comb. C. 2 Keb. 131. S.P. 
 
 lOS. S. C. 7 T- R. 450. y 2 Cromp. 363. but see 
 
 V 2 Str. 959. 2 Barnard. K. Barnes, 72. C.P. semb. contra. 
 B.389. Kelynge, 181. S. C.
 
 1078 ©F ERROR. 
 
 bond, as surety for another, to pay a sum of money 
 to a third person, took a counter-bond for payment 
 of the money, by way of indemnity, the court held 
 this to be a case within the statute, and conse- 
 quently that bail in error was necessary ''. 
 
 The condition of a bond was, to pay for so much 
 beer as the obligee should deliver to J. S. not ex- 
 ceeding 100/. ; and after judgment upon demurrer, 
 the court held that no bail was requisite ^. But in a 
 subsequent case ^^ where a bond was given by a 
 third person, as collateral security for a debtor's 
 paying his creditors fifteen shillings in the pound, 
 upon the liquidated amount of his debts, the court 
 held this to be a bond with condition for the pay- 
 ment of money only ; and that its being payable by 
 instalments made no difference. In the former case, 
 the court seem to have considered the statute as 
 introductive of a new law, in restraint of the reme- 
 dy by writ of error, and therefore that it should be 
 construed strictly, and not extended by equity to 
 cases out of the letter of it: But in the latter case, 
 they appear to have holden, that the statute was of 
 a remedial nature, and ought to receive a liberal con- 
 struction, for the benefit of the party, whose exe- 
 cution would otherwise be stayed by the writ of 
 
 error, 
 
 ^ Com. Rep. 321, 2. 10 S. C. 
 Mod. 281. co7itra. ^ 2 Bur. 746. 
 
 ■^2 Str. 1190. 1 Wils. 19,
 
 OF ERROR. 1079. 
 
 error, and particularly as writs of error are fre- 
 quently brought for the mere purpose of delay. 
 
 In actions upon contracts, the statute is confined 
 to cases, where there was originally a specific con- 
 tract for a sum certain; and it does not extend to 
 actions of debt on a promissory note % or on the 
 common counts for work and labour, and goods 
 sold and delivered '^, &c. or upon an account-sta- 
 ted ^ ; nor to an action of debt upon an award, when 
 fhe arbitrators have directed several controversies 
 to be settled by the payment of one sum "". Neither, 
 for a similar reason, is bail in error required in an 
 action of debt on judgment^; nor, as it should 
 seem, in an action of debt upon a recognisance of 
 bail ^. And it seems, that if there be one count in 
 the declaration, on which judgment is entered, on 
 a cause of action for which debt would not lie at the 
 time of the statute of James, no bail in error is re- 
 quired ^ But if judgment be affirmed, on a writ of 
 error, in the King's-Bench '\ or Exchequer-cham- 
 ber \ new bail must be given, on bringing a writ 
 of error in parliament; for the first recognisance 
 
 does 
 
 c 2 East, 359. 506. S. C 
 
 d 1 Bos. & Pul. 249. g 3 Bur. 1566. Barnes, 194. 
 
 e Yelv. 227. 2 Bulst. 53. S. but see 2 Blac. Rep. 1227. 
 
 C. 1 Lev. 117. 1 Show. 15. ^ 2 East, 359. 
 
 S. C. cited. 3 Salk. 147. 7 T. i 1 Salk. 97. 2 I.d. Raym. 
 
 R. 449. 2 East, 359, 840. 7 Mod. 120. S. C. 
 
 f 3 Bur. 1548. 1 Blac. Rep. k 1 Str. 527.
 
 1080 OF ERROR. 
 
 does not include the costs to be assessed in the 
 House of Lords, and therefore a new recognisance 
 must be given, within the intent of the statute; 
 and it is not the business of the court where the 
 judgment is affirmed, to examine whether bail was 
 put in upon the first writ, for the want of that does 
 not hinder the prosecution of the writ of error, 
 but only makes it no supersedeas ^ 
 
 The before-mentioned statute was extended to 
 other actions, by the 13 Car. II. stat. 2. c. 2. § 9. by 
 which it is enacted, " that no execution shall be 
 *' stayed, in any of the courts mentioned in the sta- 
 " tute 3 Jac. I. , by any writ or writs of error, or^w- 
 " persedeas thereupon, after verdict and judgment, 
 " in any action of debt grounded upon the statute 
 " 2 & 3 Edxv. VI. c. 3. for not setting forth tythes, 
 *' nor in any action upon the case, upon any pro- 
 '* mise for payment of money, actions sur trover, 
 ** actions of covenant, detinue, and trespass, unless 
 " such recognisance, and in such manner, as by the 
 ** former act is directed, shall be first acknow- 
 *' ledged in the court where the judgment is given." 
 
 And by the 16 & 17 Car. II. c. 8. ^ 3. (made 
 perpetual by the 22 & 23 Car. II. c. 4.) " no exe- 
 " cution shall be stayed, in any of the lastmen- 
 " tioned courts, by writ of error or supersedeas 
 " thereupon, after verdict and judgment, in any ac- 
 " tion personal whatsoever, unless a recognisance, 
 
 « with 
 
 1 1 Salk. 97.
 
 OF ERROR. 1081 
 
 '* with condition according to the statute 3 Jac. I. 
 *' shall be first acknowledged, in the court where 
 *' such judgment shall be given. And further, that 
 ** in writs of error to be brought upon any judg- 
 " ment after verdict, in any writ of f/oif /?r, or in any 
 " action of ejectione jirma, no execution shall be 
 " stayed, unless the plaintiff or plaintiffs in such 
 " writ of error shall be bound unto the plaintiff in 
 " such writ of dower ^ or action of ejectione Jirm^^ 
 *' in such reasonable sum as the court to which 
 " such writ of error shall be directed shall think fit, 
 " with condition, that if the judgment shall be af- 
 " firmed, or the writ of error discontinued, in de- 
 " fault of the plaintiff or plaintiffs therein, or the 
 " said plaintiff or plaintiffs be nonsuited in such 
 *' writs of error, that then the said plaintiff or plain- 
 " tiffs shall pay such costs, damages, and sum and 
 '* sums of money, as shall be awarded upon or af- 
 " ter such judgment affirmed, discontinuance, or 
 "*' nonsuit." 
 
 And to the end that the same sum and sums and 
 damages may be ascertained, it is further enacted, 
 that " the court wherein such execution ought to 
 "^e granted, upon such affirmation, discontinu- 
 " ance or nonsuit, shall issue a writ to inquire as 
 " well of the mesne-profits, as of the damages by 
 " any waste committed, after the first judgment in 
 " doweTj or in ejectione Jirma; and upon the return 
 ^' thereof, judgment shall be given and execution 
 
 ** awarded, 
 
 Vol. II. 3H
 
 1082 OF ERROR. 
 
 *' awarded, for such mesne-profits and damages, 
 " and also for coats of suit '"." 
 
 The two last-mentioned statutes are confined to 
 judgments after verdict; and do not extend, like 
 the former, to judgments by default, upon demur- 
 rer or mil tiel record: Therefore upon these latter 
 judgments, a writ of error is a sup(frsedeas\\\Ci\fd\x\. 
 bail, in such actions as are not enumerated in 3 Jac. 
 I. But it has been determined, that a scire facias 
 against bail is a personal action, within the 16 & 
 17 Car. II. c. 8 " . In this latter statute there is a 
 proviso^ " that it shall not extend to any writ of er- 
 '' ror, to be brought by any executor or admini- 
 " strator; nor unto any action popular, or other ac- 
 " tion brought upon any penal law or statute, ex- 
 "' cept actions of debt for not setting forth tythes; 
 " nor to any indictment, presentment, inquisition, 
 ^' information, or appeal." It has however been de- 
 termined, that if judgment be given against an ex- 
 ecutor or administrator de bonis propriisy he shall 
 put in bail, in cases where it would be required of 
 other persons ° : and though an executor or admi- 
 nistrator be not compellable to give bail in error, 
 yet if he do, the court may take it, and the rep^g'- 
 nisance will be binding p. 
 
 The 
 
 ^ §4. and see 2 H. Blac. 2 Keb. 295. 371. S.C- 
 
 286, 7. p 2 Str. 745. 2 Ld. Raym. 
 
 n 2 Blac. Rep. 1227. 1459. S. C. 
 5 1 Lev. 245. 1 Sid. 368, 
 
 i
 
 OF EfiROR. 1083 
 
 The statutes requiring bail in error do not ex- 
 tend to tlie writ of error coram nobis '^ ; which is or 
 is not a supersedeas of execution, according to cir- 
 cumstances. Where a writ of error abates by the 
 act of God, as by the death of the parties "■, or 
 chief-justice % or by the act of law, a second writ 
 of error is a supersedeas of itself, without motion 
 or leave of the court. And it is said, that if a writ 
 of error be brought in the same court, after abate- 
 ment or discontinuance of a writ of error coram 710- 
 6is, no bail is requisite, because none was required 
 ©n the former writ of error \ But this must be un- 
 derstood, where the writ of error coram nobis is 
 brought after an abatement by the act of God, or 
 of the law; for where a writ of error is quashed in 
 the King's-Bench for insufticiency, a writ of error 
 eoram nobis is noX. a supersedeas of itself". In such 
 case however, the court on motion will order, that 
 upon the plaintiff in error putting in and justifying 
 bail within four days, further proceedings shall be 
 stayed on the judgment in the original action, un- 
 til the writ of error be determined " ; which is also 
 the course, upon a wHt of error coram nobis for er- 
 ror in fact. And a like order was made, where a 
 second writ of error was quashed for insufficiency; 
 
 for 
 
 1 2 Cromp. 394. *2Cromp. 396. 
 
 «• Latch, 57, 8. 1 Vent. 353. " Garth. 368,9. 1 Ld. Raym. 
 
 s 1 Keb. 658. 686. but see 151. S. C. 2 Ld. Raym. 1404. 
 
 Barnes, 201. Prac. Reg. 195. 1 Str. 607. S. C. and see a 
 
 S. C. Str. 949.
 
 1084 OF ERROR. 
 
 for such second writ being void, was as if there 
 had been none before''. Where a writ of error 
 abates by the act or defaidt of the party, a second 
 writ of error is no supersedeas "'" ; as where the 
 plaintiff in error marries ", or the writ of error is 
 nonprossed ^. In these cases, the court on motion 
 will give the defendant in error leave to take out 
 execution, notwithstanding a second writ of error : 
 And it seems, that on a writ of error coram nobis y 
 execution taken out without leave of the court is 
 irregular ^. 
 
 Where bail is required upon a writ of error, it 
 should be put in within ybwr days after the delivery 
 of the writ to the clerk of the errors, if it be sued 
 out after final judgment ^ ; or if it be sued out be- 
 fore, the bail should be put in within four days af- 
 ter final judgment is signed ^ ; otherwise the party 
 succeeding in the original action may take out ex- 
 ecution, notwithstanding the writ of error '^ : And in 
 
 the 
 
 " Carth. 370. Bench had four days to put in 
 
 ^v Latch, 57, 8. I Vent. 353. bail, after the allowance of the 
 
 X 2 Str. 880. 1015. writ of error. And see R. T. 
 
 y 1 Cromp. 350. 26 8c 27 Geo. II. for the time 
 
 z Say. Rep. 166. Barnes, 201. and manner of putting in and 
 
 2 Blac. Rep. 1067. Ante, 909. perfecting bail in error, in the 
 
 a R. E. 36 Car. II. K. B. Exchequer of Pleas. 
 
 R. T. & M. 28 Car. II. 1 Bos. ^2^tv. 781. 1 T. R. 279. 4 
 
 £c Pul. 478. C. P. By a for- T. R. 121. 1 Bos. & Pul. 478. 
 
 mer rule of E. 16 Car. II. the t 2 T. R. 44. 
 
 plaintiff in error in the King's- 
 
 ii
 
 OF ERROR. 1085 
 
 the Common-Pleas, there is no occasion for a cer- 
 tificate from the clerk of the errors, that no bail is 
 put in '^. The bail is put in with the clerk of the er- 
 rors, who attends to take their acknowledgment, 
 in the court wherein the judgment was given, or 
 before a judge of that court; and it seems that they 
 cannot be put in before a commissioner in the 
 country ^. The same persons who were bail in the 
 original action, may become bail in error, if they 
 are able to justify ^. 
 
 In personal actions, it is a rule, founded upon 
 the statute 3 Jac. L, that the recognisance should 
 be acknowledged in double the sum adjudged to 
 be recovered by the former judgment : But upon 
 error in debt on bond, though the bail are to be 
 bound in double the penalty recovered, yet by the 
 course of the court of King's-Bench, it is sufficient 
 if they justify in double what is really due ^. In 
 ejectment, the bail must justify in double the 
 amount of the yearly rent, or value of the mesne- 
 profits, and costs ''. And the party bringing the 
 
 writ 
 
 '^ Barnes, 212. double the sum secured by the 
 
 e Id. 78. condition, it is sufficient ; 
 
 f 8 T. R. 639. though a further sum be due 
 
 g 2 Str. 821. 1 Wils. 213. for interest, and costs and no- 
 
 and see R. E. 33 Geo. II. in minal damages have been re- 
 
 Scac, and 2 Bos. Ec Pul. 443. covered. 
 
 C. P. where it was holden, ^ Cas. tem/i. Hardw. 374 4. 
 
 that if the bail arc bound in Bur. 2502. Barnes, lO"^.
 
 1Q86 OJF ERROR. 
 
 writ of error must join in the recognisance ', except 
 in ejectment, where it is sujfilicient if the recogni- 
 sance be entered into by two sureties \ 
 
 The condition of the recognisance in the Com- 
 mon-Pleas, on a writ returnable in the King's. 
 Bench, is, according to the direction of the statute, 
 that the plaintiff shall prosecute his writ of error 
 with effect; and, if judgment be affirmed, shall sa- 
 tisfy and pay the debt, damages and costs recovered, 
 together with such costs and damages as shall be 
 awarded by reason of the delay of execution, or 
 else that they (the bail) shall do it for him ^ On a 
 writ of error returnable in the Exchequer-cham- 
 ber, the form of the recognisance is somewhat dif- 
 ferent ; the bail engaging to pay the sum recover- 
 ed by the judgment, and such further costs of suit, 
 sum and sums of money, as shall be awarded for 
 delay of execution '". And as the engagement of 
 the bail is absolute, it has been determined, that 
 they cannot surrender the plaintiff in error " : nor 
 are they entitled to relief, where he becomes bank- 
 rupt 
 
 i But see 2 Bos. & Pul. 443, k Carth. 12 1. Barnes, 75. 78. 
 where a recognisance entered * So on error coram nobis. 
 
 into by the bail in error, with- Append. Chap. XLIII. § 18. 
 out the principal, was holden "^ Id. § 19. 2 T. R. 59. 
 good, on a judgment in c/^(5/ in " R. M. 5 W. & M. (b.) 
 
 the common pleas. K. B.
 
 OF ERROR. 1087 
 
 rupt, whilst the writ of error is pending" : So if the 
 bail become bankrupt, pending the writ of error, 
 and before affirmance, they are not discharged from- 
 their recognisance ; for till then the debt is contin- 
 gent, and not proveablc under the commission ''. 
 
 When bail is put in, notice thereof should be 
 given without delay to the defendant in error, or 
 his attorney '^ ; and if the defendant in error do not 
 except to the bail for insufficiency, within twenty 
 days next after such notice, the recognisance shall 
 be allowed ^ If the bail be not approved of, the 
 defendant in error may, at any time within the 
 twenty days, obtain a rule from the clerk of the er- 
 rors, for better bail ^ ; a copy of which should be 
 served on the attorney for the plaintift" in error : 
 And if the bail do not justify, or other bail be not 
 put in and justified, within four days after notice 
 of the rule, in ?cnw-timc^ the party succeeding in 
 the original action may take out execution " : But 
 
 the 
 
 1 T. R. 624. and see 1 § 16. 
 
 Bos. & Pul. 440. where it ATas ' In the King's-Bench, if a 
 
 holden, that the bail in error rule for better bail be served in 
 
 are not discharged, by taking vacatmt, there is no occasion 
 
 their principal in execution. to justify until the next term, 
 
 p 2 Str. 1043. Cas. (eni/i. though the practice is other- 
 
 Hardw. 262. S. C. ^ wise in the Common-Pleas. 
 
 1 Append. Chap. XLIII. § Barnes, 211. and see R. T. 
 15. 26 & 27 Geo. II. in Scac. 
 
 r R. M. 5 W. & M. K. B. " R. M. 5 W. & M. (b). K. 
 s Append. Chap. XLIII. B. R. M. 6 Geo. 2. § 6. C. P
 
 1088 OP ERROR. 
 
 the writ of error still remains, and may be proceed- 
 ed in; the supersedeas to the execution only being 
 taken away''. The mode of adding and justifying 
 bail in error, is the same as in the original action"^ : 
 And if a person excepted to as bail in error do not 
 justify, his name may be struck out of the recog- 
 nisance ''. 
 
 Bail in error, when necessary, being complete, 
 the next step to be taken by the plaintiff in error, 
 except on a writ of error coram nobisy is to certify 
 the record ; in order to which a transcript should 
 be made, and sent with the writ of error and return, 
 into the court above. When no bail is required, 
 this is the first step that is taken, after the service 
 of the allowance of the writ of error. And the 
 plaintiff in error should regularly cause the tran- 
 script to be made, (for the defendant cannot tran- 
 scribe the record ^,) by the time the writ of error 
 is returnable. If the record be not certified by 
 that time, the defendant in error may give the plain- 
 tiff a rule to certify it '^ ; which is an eight-day 
 rule, obtained from the clerk of the errors in the 
 
 Common- 
 
 ■' 1 Salk. 97. 2 Ld. Raym, ^ Sajr. Rep. 58. 1 Wils. 337. 
 
 440. 7 Mod. 120.S. C. S. C. 
 
 w For the form of notice of y 1 Wils. 35. 
 
 justification, see Append. zCas.?cm^.Hardw.352.Ap- 
 
 Chap. XUn. § 17. pend. Chap. XLIII. § 20, 21.
 
 OF ERROR. 1089 
 
 Common -Pleas, on a writ of error from that court 
 returnable in the King's-Bench, or from the clerk 
 of the errors in the King's-Bench, on a writ of error 
 returnable in the Exchequer-chamber or House 
 of Lords ; and when obtained, a copy of it should 
 be forthwith made, and served on the attorney for 
 the plaintiff in error *. 
 
 In the King's-Bench, on a writ of error to the 
 Exchequer-chamber, if the writ be returnable the 
 first return of the term, this rule may be had on 
 the essoign-day ^. In the House of Lords, tliere is 
 an order, that upon writs of error, all persons shall 
 bring in their writs, within fourteen days after the 
 first day of the session in which such writs shall be 
 returnable, otherwise they shall not be received, 
 unless upon judgments given during the session, 
 upon which the writs shall be brought in within 
 fourteen days after judgment given *^. And till the 
 expiration of the time limited for bringing in the 
 w^rit of error, the defendant in error cannot have 
 execution '^. 
 
 On a writ of error brought on a judgment in the 
 Common- Pleas, or any inferior court, in an ad- 
 verse suit, the record itself is supposed to be re- 
 moved, that it may remain as a precedent and evi- 
 dence 
 
 aL. P. E. 33. c Com. Rep. 420, 21. 
 
 «> Id. ibid. J Id. ibid. Bunb. 64, 69, 
 
 Vol. IL 3 I
 
 1090 OF ERROR. 
 
 dence of the law in similar cases ^. But in the case 
 of a fine, the transcript only is removed from the 
 Common- Pleas; for a fine is but a more solemn 
 acknowledgment or contract of the parties, and is 
 therefore no memorial of the law, and need only be 
 affirmed or vacated: If it be affirmed, the con- 
 tract stands as it was ; if vacated, the justices of the 
 King's-Bench may send for the fine itself, and re- 
 verse it; or they may send a writ to the treasurer 
 and chamberlain, to take it off" the file ^. Besides, 
 should the record itself be removed, and the fine 
 affirmed, it could not be engrossed, for want of a 
 Chirographer, in the King's-Bench ^. This distinc- 
 tion however is not attended to in practice : for on 
 all writs of error returnable in the King's-Bench ^^ 
 as well as in the Exchequer-chamber', or House 
 of Lords '', it is usual to send only a transcript of 
 the record, and not the record itself. 
 
 In an inferior court, on a writ of error returnable 
 in the King's-Bench, the plaintiff" in error, upon 
 service of the rule to certify the record, should be- 
 speak 
 
 e 2 Bac. Abr. 202. F. N. B. Harris. Prac. C. P. 434. 2 
 
 20. 1 Hen. Vn. 20. 2 Salk. Salk. 565. 
 
 565. ' 2 Str. 837. * 
 
 f 1 Salk. 337,8. 341. k i Hen. VII. 19, 20. Dyer, 
 
 K 2 Bac. Abr. 203. 375. Cro. Jac. 341, 2. 3 Bulst^ 
 
 h R. M. 28 Car. IJ. C. P. 163, 4. S. C. T. Raym. 5.
 
 OF ERROR. 1091 
 
 ipeak the transcript of the proper officer below, and 
 carry the same into the office of signer of the writs 
 of the King's-Bench, (a part of whose business is 
 to receive and deliver out writs of error and certi- 
 orari, &c.) and there file it, before the second seal; 
 otherwise the defendant in error may apply, and 
 get a certificate from the office, that the writ of 
 error is not returned, and the transcript brought 
 in; and may thereupon apply to the cursitor, for 
 a writ de execiitione Jiidicii, directed to the judges 
 of the court below, commanding them that they 
 proceed to execution on the judgment, notwith- 
 standing the writ of error K 
 
 In the King's-Bench and Common-Pleas, the 
 transcript is made by the clerk of the errors, who 
 acts as clerk to the chief-justice; and in order to 
 enable him to make it, the defendant in error 
 should leave with him the record, or copy of the 
 proceedings; upon which he sends for the tran 
 script-money, or a part of it, to the plaintiff in er- 
 ror; and if paid, he proceeds to make the tran- 
 script, which is examined with the record by the 
 attorney for the defendant in error'". In the King's- 
 Bench, on a writ of error to the Ex chequer- cham- 
 ber, if the writ be returnable on the first return- 
 day of the term, the clerk of the errors takes the 
 
 wholf 
 
 i2Cromp. 345. 3Salk. 146 ^ L. P. F.. 34, 5.
 
 109ii or ERROR. 
 
 whole of that term to make the transcript ; if on 
 the last return-day, he takes all the vacation fol- 
 lowing ". 
 
 The transcript being made, examined and paid 
 for, is delivered over, with the writ of error and 
 return", by the clerk of the errors of the Common- 
 Picas, to the signer of the writs in the King's- 
 Bench; or by the clerk of the errors of the King's- 
 Bench, to the clerk of the errors in the Exchequer- 
 chamber, or his deputy P. If a writ of error be 
 brought in parliament, on a judgment in the 
 King's-Bench, the chief-justice goes in person, at- 
 tended by the clerk of the errors, to the House 
 of Lords, with the record itself, and a transcript, 
 which is examined and left there; and then the re- 
 cord is brought back again into the King's-Bench, 
 and if the judgment be affirmed, that court may 
 proceed on the record to grant execution : for if 
 the record itself should be removed, and judgement 
 affirmed, and the parliament dissolved, tliere could 
 
 not 
 
 ^ L. P. E. 35. the proceedings, for want of 
 
 o Append. Chap. XLIII. § his signature. And though 
 
 22, 3. In the Common-Pleas, the writ of error requires the 
 
 it is usual for the chief-justice record to be sent sub sigillo, 
 
 to sign the return ; 1 Sid. yet this is never practised, m 
 
 268. Barnes, 201. but this 2 Str. 1063, 4. Cas. temfi,. 
 
 does not seem to be absolutely Hardw. 344. S. C. 
 necessary: At least, the court p L. P. E. 35. 
 of King's-Bench will not stay
 
 OF ERROR. 1093 
 
 not be any proceedings thereupon to have execu- 
 tion "J. 
 
 On a writ of error from the Common- Pleas, the 
 chief-justice only certifies the body of the record, 
 which is all that remains in his custody; for origi- 
 nal and judicial writs remain with the custos bre- 
 viiim^ and other officers, and are never certified, but 
 where error is assigned for want of them ^ If the 
 record be not certified in due time, the defendant 
 in error may sign a nonpros ^; but no costs are al- 
 lowed thereon^: And in the Common-Pleas, he 
 cannot take out execution, without a certificate in 
 writing from the clerk of the errors, that the plain- 
 tiff in error has made default, in transcribing the 
 record into the King's-Bench ". 
 
 All the proceedings which have been hitherto 
 mentioned, are in the court below, where the judg- 
 ment was given ; but from henceforth they are in 
 the court above, to which they are removed. 
 
 When the transcript of the record is returned 
 and filed, but not before', the plaintiff in error 
 may move to amend the writ of error, or the de- 
 fendant in error to quash it ; or it may abate, ox be 
 
 discontinued. 
 
 a2Bac.Ahr. 203. t T. R. 17. L.P. E. 31. 
 
 «• Cro. Eliz. 84. « R. T. & M. 28 Car. 11. C. 
 
 •Append. Chap. XLIII. § P. 
 
 78, &c. V Ld. Raym. 329.
 
 1094 OF ERROR. 
 
 discontinued. Of these things therefore I shall treat 
 in their order; and afterwards, of the mode of 
 compelling the plaintiff in error to proceed and 
 assign errors. 
 
 Great certainty was formerly required, in mak- 
 ing the writ of error agree with the record ; for as 
 the writ was the sole authority by which the judges 
 were empowered to act, they could proceed only 
 on that record which the writ or commission au- 
 thorised them to examine ; nor could any defects 
 therein be amended, before the 5 Geo. I. c. 13. be- 
 cause by the former statutes of amendment, the 
 judges were only enabled to amend in affirmance 
 of the judgment "'. But now, by the above statute, 
 " all Avrits of error, wherein there shall be any 
 *' variance from the original record, or other de- 
 " feet, may and shall be amended, and made 
 *' agreeable to such record, by the respective courts 
 " where such writs of error shall be made return- 
 " able," &c. Upon this statute, it is become 
 the practice to amend the writ of error, as a matter 
 of course, without costs''; and it has been amended, 
 by striking out the name of one of the plaintiffs in 
 error ^ : But where a writ of error was returnable 
 before the giving of the judgment on which it was 
 
 brought, 
 
 w 2 Bac. Abr. 200. Carth. y 1 Str. 683. 2 Str. 892. 
 
 368. Fitzgib. 201. 1 Barnard. K. B 
 
 ^2 Str. 863. 902. 2 Ld. 405. 421. S. C. Cowp. 425. ^ 
 
 Raym.1587. S. C. Blac. Rep. 1067. 
 
 I 
 I
 
 OF ERROR. 1095 
 
 brought, the court on consideration held this to be 
 such a fault, as was not amendable by the statute ^. 
 The general ground of quashing a writ of error 
 is some fault or defect therein, that is not amenda- 
 ble by the above statute ^; and the application to 
 quash it ought to be made, either to the court of 
 Chancery, from whence it issues, or to the court 
 wherein it is returnable ''. Where there are several 
 parties, who are aggrieved by a judgment, and the 
 writ of error is brought by some or one of them 
 only, the court will quash it ^. But where one of 
 several parties to a judgment, who is not aggrieved 
 thereby, joins in bringing a writ of error, we have 
 just seen, it may be amended*^, by striking out his 
 name, and stand good for the other parties. And 
 it may be quashed as to one judgment, upon 
 which it does not lie, and stand good for another, 
 upon which it is properly brought^. Costs are 
 payable in all cases, on quashing a writ of error, 
 even though none were recoverable in the original 
 action * ; it being declared by statute ^, " that upon 
 " the quashing any writ of error, for variance 
 
 " from 
 
 ^ 2 Str. 807. 2 Ld. Raym. 89. 404. 7 Mod. 3. 5 Mod. 
 
 1531. S. C. 2 Str. 891. S. P. 397. Carth. 447. Lil. Ent. 
 
 a Append. Chap. XLIII. § 225. 290. S. C. 
 
 24. f 1 Str. 262. 8 T. R.302. 
 
 ^ Doug. 350. s 4 Ann. c. 16. § 25. and 
 
 ^ Antcy 1054. see 2 Str. 83 1. Cas. temji. 
 
 d ./fn/e, 1094. Hard W. 137. 
 
 « 1 Ld Ravm. 328. 1 Salk
 
 1096 OF ERROR. 
 
 *' from the original record, or other defect, the 
 " defendant in error shall recover against the plain- 
 " tiff his costs, as he should have had if the judg- 
 *' ment had been affirmed, and to be recovered in 
 "the same manner:" which costs include those 
 of quashing the writ of error \ But where the 
 defendant in error enters continuances on the ori- 
 ginal judgment, to defeat the writ of error, the 
 plaintiff is not liable to costs on quashing it '. 
 
 A writ of error may abate by the act of God, the 
 act of law, or the act of the party. If the plaintiff 
 in error die, before errors assigned, the writ abates; 
 and the defendant in error may thereupon sue out 
 a scire facias quare executionem ?io?i, to revive the 
 judgment, against the executors or administrators 
 of the plaintiff in error ^ But if the plaintifl' in 
 error die, after errors assigned, it does not abate 
 the writ h In such case, the defendant having joined 
 in error, may proceed to get the judgment affirm- 
 ed, if not erroneous; but must then revive it, 
 against the executors or administrators of the plain- 
 tiff in error''. And a writ of error does in no case 
 abate, by the death of the defendant in error, whe- 
 ther it happen before or after errors assigned: If it 
 happen before, and the plaintiff' will not assign 
 errors, the executors or administrators of the de- 
 fendant 
 
 « 2Ld. Raym. 1403. 1 Str. Barnes, 270. 
 606. 8 Mod. 316. S. C. '^ 2 Cromp.401, 2. 
 
 ' I Str. 139. 2 Str. 834,
 
 OF ERROR. 1097 
 
 fendant in error may have a scire facias quare exe- 
 ctitionem 7ion, in order to compel him '; or if it hap- 
 pen after, they must proceed as if the defendant in 
 error were living, till judgment be affirmed, and 
 then revive by sch-e facias^ but cannot take out ex- 
 ecution pending the writ of error*": And in order 
 to compel the executors or administrators to join in 
 error, the plaintiff may sue out a scire facias ad an- 
 ^ienclum errores ", either generally or naming 
 them °. If there be several plaintiffs in error, the 
 death of one of them abates the writ '' ; but if there 
 be several defendants in error, and one of them die, 
 it is otherwise, for they are not named in the writ^i : 
 In the latter case, the death being suggested on 
 the roll "", the writ of error proceeds against the 
 survivors. By the death of the chief-justice, before 
 he has made or signed his return, the writ of error 
 becomes ineffectual ^ ; and the defendant in error, 
 by leave of the court, may take out execution ^ : 
 but if the return be signed in his life-time, it may 
 
 be 
 
 1 Yelv. 112, 13. 1 Vent. 34. i' Yelv. 208,9. 1 Salk. 261. 
 
 1 Salk. 264. Barnes, 432. L. Carth. 236. S. C. iLd.Raym. 
 P. E. 114. 244. 1 Salk. 319. S. C. 
 
 m L. P. E. 1 14. q Godb. 66. 68. 1 Ld. Raym. 
 
 " Yelv. 1 12, 13. 1 Sid. 419. 439. 1 Salk. 264. S. C. 
 
 2 Vent. 34. 1 Salk. 264. 1 Ld. >• Lil. Ent. 2! 7. 
 Raym. 439. S. C. Id. 71. ^ i Keb. 658. 686. 
 
 1295. S. P. t Barnes, 201. Prac. Reg. 
 
 ° 2 Bulst. 230,31. C. P. 195. S. C. 
 
 Vol. II. 3 K
 
 1098 OF ERROH. 
 
 be made afterwards " ; and though it be neither 
 made nor signed, 3^ et if the defendant in error take 
 out execution, without leave of the court, it is irre- 
 gular "". 
 
 It was formerly holden, that a writ of error in 
 the House of Lords abated by the dissolution of par- 
 liament '"', or even by the prorogation of it " ; but 
 afterwards the loi'ds declared, that a writ of error 
 should not determine by the prorogation of parlia- 
 ment y ; and at length it was ordered, that upon a 
 dissolution, all appeals and writs of error should 
 continue, and be proceeded on in statu quo^ as they 
 stood at the dissolution of the last parliament '^. If 
 a writ of error be brought in the Exchequer-cham- 
 ber, and that being discontinued, another be 
 brought in parliament, this second writ is a super- 
 sedeas of execution ; but if a writ of error be brought 
 in parliament, and abate, and the plaintiff bring a 
 second, this is no supersedeas., because it is in the 
 same court ^ 
 
 Bankruptcy is no abatement of a writ of ^rror : 
 therefore, where the defendant in error becomes 
 
 bankrupt, 
 
 1 1 Sid. 268. y 1 Lev. 165. 2 Lev. 93. 1 
 
 ^Barnes, 201. Prac. Reg. Mod. 106. S. C. 1 Vent. 266. 
 
 C. P. 195. S. C. S. p. 
 
 ^^ Cro. Jac. 342. 2 Bulst. ^ T. Raym. 383. Com. Dig. 
 
 163. S. C. T. Raym. 5. tit. Parliament^ P. 2. but see 1 
 
 X 1 Vent. 31.1 Sid. 413. S. Vent. 266. 2 Cromp. 391. 
 
 C. 1 Vent. 266. a 1 Vent. 100. 1 Mod. 285.
 
 OF ERROR. 1099 
 
 bankrupt, his assignees cannot sue out a scire fa- 
 cias in their own names, to compel an assignment 
 of errors, but should proceed in the bankrupt's 
 name till judgment ^ But the writ of error abates, 
 by the marriage oi -d. feme plaintiff in errors And 
 where to a scire facias qiiare executionetn noUy the 
 , plaintiff in error pleaded in abatement, that the de- 
 fendant in error was married since the judgment, 
 and before the issuing of the scire facias, the de- 
 fendant moved to quash her own writ, which was 
 granted without costs ^. 
 
 If the writ of error be not quashed or abated, the 
 plaintiff in error may, after the record is certified, 
 forthwith proceed to assign his errors. And it was 
 formerly holden, that after the record was certified, 
 the plaintiff in error must have assigned his errors, 
 and sued out a scire facias ad audiendum errores, 
 to bring in the defendant in error, the same term, 
 or the term next after the record was certified, 
 otherwise the whole matter was discontinued^ : But 
 it has been since determined, that if the plaintiff in 
 error lie still, after a writ of error brought, and do 
 not assign errors, this is no discontinuance of the 
 writ of error ^ ; though it is otherwise, if he make 
 default after errors assigned. 
 
 If 
 
 b I T. R. 463. e F. N. B. 20. 
 
 c 2 Str. 880. 1015, f 3 Salk. 145 
 
 "» 1 Str. 638
 
 1100 OF ERROR. 
 
 If the plaintiff in error will not proceed, after the 
 record is certified, the defendant, in order to com- 
 pel him, should sue out a writ oi scire facias quare 
 execiitionem non in the King's-Bench, except on a 
 writ of error coram ?wbisj or by the plaintiff to re- 
 verse his own judgment ; and in the Exchequer- 
 chamber, he should give a rule for the plaintiff to 
 allege diminution, or that the record is not duly 
 certified or transcribed. 
 
 In the King's-Bench, we may remember s, as the 
 parties have no day in court given to either of 
 them, on the removal of the record by writ of er- 
 ror, the defendant in error hath no other way of 
 compelling the plaintiff to assign his errors, than by 
 suing out a writ of scire facias quare executionem 
 nan, &c. ^ ; and if, upon such writ, the plaintiff in 
 error do not assign errors, but suffer judgment to 
 pass by default upon scire feci, or two nihils, no er- 
 rors afterwards assigned shall prevent execution '. 
 
 The scire facias quare executionem non is a judi- 
 cial writ, issuing out of the court of King's-Bench, 
 where the record is supposed to be ; and the intent 
 of it is, to bring in the plaintiff in error to assign 
 his errors : Therefore, Avhere a scire facias was 
 prayed by one of several defendants in error, the 
 
 fault 
 
 g Ante, 1009, 10. i Carth. 40, 4 1 , 
 
 h Godb. 68. 2 Leon. 107.
 
 OF ERROR. 1101 
 
 fault was holden to be cured by the plaintiff's 
 coming in upon it, and assigning his errors ^. This 
 writ may issue immediately after the record is cer- 
 tified, though before the rule for certifying it is ex- 
 pired'; and should be directed to the sheriff of the 
 county in which the action was laid. In point of 
 form, it pursues the judgment of the Common- 
 Pleas, the record and proceedings whereof are 
 stated to have been brought, for certain causes of 
 error, into the King's-Bench '" : And it should be 
 made returnable on a general return-day, or day 
 certain, according to the nature of the proceedings ; 
 if by original-writ, on a general return-day, ubicun- 
 que^, &c. but if by bill, or attachment of privilege, 
 on a day certain, at JFestminster °. If the transcript 
 be brought in by the essoign-day of the term, the 
 scire facias may bear teste on the last day of the 
 preceding term; or if brought in within the term, 
 on the first day of that term ^. And if there be only 
 one writ, there should be fifteen days between the 
 teste and TtXxxTUy by original; or if there be two 
 writs, between the teste of the first, and return of 
 the second ''. The alias in such case cannot issue, 
 
 before 
 
 k 3 Bur. 1791, 2. o 1 Str. 694. 2 Ld. Raym. 
 
 12 T. R. 17. 1417. S. C. 
 
 ■n Append. Chap. XLII. § p 2 Cromp. 345, 6, Imp. 
 
 41,2. K.B. 683. L. P. E. 38. 
 
 >» 2 Leon. 107. and see 6 12 Cromp. 346. 
 Mod. 86. 3 Salk. 320,
 
 1102 OF ERROR. 
 
 before the return of the former writ ; and ought to 
 be tested, by original^ on the quarto die post of the 
 return of that writ, or by bill, on the very return- 
 day "". A scire facias in error need not lie four days 
 in the office, as a scire facias against bail must% 
 
 On the return-day of the scire facias, if scire feci 
 be returned, or of the alias writ, if there be two ni- 
 hils, the defendant in error must give a rule to ap- 
 pear ^ with the clerk of the rules, which expires in 
 four days exclusive ". Within that time, the plain- 
 tiff in error might formerly have appeared, and 
 pleaded to the scire facias, in this as in other cases " ; 
 and there was an old rule, that if the party pleaded 
 to the scire facias, and it went against him, execu- 
 tion might be sued out, but that the writ of error 
 should go on notwithstanding '". Afterwards, the 
 court, in consideration of the delay arising from 
 this practice, established it as a standing rule for 
 the future, that if upon the return of the scire fa- 
 cias, the plaintiff assigned his errors, then all far- 
 ther proceedings should be stayed upon it ; but 
 where he chose to stand out upon pleadings to the 
 
 scire 
 
 «■ 2 Salk. 699. Imp. K. B. « 2 Cromp. 347. 
 
 683. V Yelv. 6, 7. Garth. 40, 41: 
 
 » 3 Bur. 1723. 4 Bur. 2439. 3 Salk. 145. 1 Str. 638. 
 
 t Append. Chap. XLIII. § ^v i Str. 391. 
 25.
 
 OF ERROR. 1103 
 
 scire faciasy execution should go, if it were adjudg- 
 ed against him ". From this time, the court appear 
 to have discountenanced pleadings upon the scire 
 JaciaSy and in some instances to have set them 
 aside ''. At present, the scire facias is considered 
 merely as a means of compelling an assignment of 
 errors ^ ; and it seems to be the practice nov/, to 
 admit of no plea thereto, by the plaintiff in error •^. 
 If errors are assigned, before the expiration of the 
 ^ rule to appear to the scire facias^ all farther pro- 
 ' ceedings upon it are stayed of course ; but if the 
 plaintiff do not assign his errors, and give a copy of 
 them to the defendant's attorney in error, before 
 the time allowed by the rule on the scire facias is 
 expired, the attorney for the defendant in error 
 may enter judgment on the scire facias , and take 
 out execution thereon : but the writ of error still 
 remains in force; and the defendant in error can 
 have no costs, unless he give a rule for the plain- 
 tiff to assign errors ^. 
 
 Diminution is either of the body of the record, 
 or of its out-branc\es, as of the original writ, war- 
 rant of attorney, Sec. If the judges of the Com- 
 mon-Pleas, or other judges, upon a writ of error, 
 
 do 
 
 " 1 Str. 391, ^ Jnte, 1101. 
 
 y Id. 679. 2 Ld. Raym. » 2 Cromp. 348. 
 
 1414. S. C. and see 3 Bur. »> 2 Bac Abr. 216. and scp 
 1792. 1 T, R. 463. 2 Crom. 347
 
 1104 
 
 OF ERROR. 
 
 do not certify all the record, the party that sues the 
 writ of error may allege diminution of the record, 
 and pray a writ to the justices, who certified the 
 record before, to certify the whole of it ". But it is^a 
 rule, that a man cannot allege diminution, contrary 
 to the record which is certified ; as if, on a writ of 
 error, it be certified that the judgment was, that 
 the defendant should be in misericorclid, the de- 
 fendant in error cannot allege for diminution, that 
 the record is quod capiatur, because this is contra- 
 ry to the record certified ^, And, except in Wales 
 and the couniies-palathie^, diminution cannot be 
 alleged, upon a writ of error brought on a judg- 
 ment in any inferior court ^ 
 
 The 7-ule to allege diminution is an eight-daj rule, 
 given by the clerk of the errors in the Exchequer- 
 chamber s ; and if the writ of error be returnable the 
 
 first 
 
 c 2 Bac. Abr. 204. F. N. 
 B. 25. a. and see Cro. Eliz. 
 155. 281. iNels. Abr. 658. 
 
 •^ 1 Rol. Abr. 764. Godb. 
 267. And in a late case, where 
 a writ of error was brought in 
 parliament, on a judgment of 
 the court of Exchequer in Ire- 
 land, affirmed in the Ex- 
 chequer-chamber there, the 
 House of Lords held that di- 
 minution could not be alleged 
 in the body of the record, con- 
 trary to the traiiscrifit ; and re- 
 
 fused to issue a certiorari for 
 verifying it. Rowe v. Power ^ 
 ex dem. Boyse and another, in 
 Error. Dom. Proc. die Mart. 
 8 Mar. 1803. but see 1 Bulst.. 
 181. 2 Lil. Abr. 422. 1 Salk. 
 49. Lil. Ent. 226. 245. 556. 
 559, 565. 
 
 e 1 Sid. 147. 364. 1 Salk. 
 266. in marg'. Id. 270. Lil. Ent. 
 226. 245. 
 
 f 1 Sid. 40. 1 Salk. 266. 
 
 s Append. Chap. XLIH. § 
 26.
 
 OF ERROR. 1105 
 
 first day of term, the plaintiff in error is to transcribe 
 the same term, allege diminution the term follow- 
 ing, assign errors the next term, and argue them 
 the fourth term : but if the defendant in error, in- 
 stead of serving the rule to transcribe at the return 
 of the writ, neglect it for a term or two, the plain- 
 tiff must transcribe in that term in which the rule 
 is served, allege diminution the same term, assign 
 errors the term following, and argue them the third 
 term ^. A copy of the rule to allege diminution 
 being made, and served on the attorney for the 
 plaintiff in error, it is incumbent on him to allege 
 diminution, within the eight days allowed by the 
 rule ; and if he neglect to do so, the clerk of the 
 errors, on being applied to, with an affidavit of 
 the service of a copy of the rule, will sign a nonpros ', 
 and tax the defendant in error his costs ; but unless 
 an affidavit be made, he usually sends to the at- 
 torney for the plaintiff in error, and if diminution 
 be not alleged by the next morning, he will then 
 sign the nonpros of course, and tax the costs ^. 
 
 When the plaintiff in error has alleged dimi- 
 nution, the next step to be taken by the defendant 
 in error, is to give a rule for the plaintiff to assign 
 errors; which is thtjirst proceeding on a writ of 
 error coram nobis, and may be given immediately 
 after the allowance and notice of the writ of error ' : 
 
 It 
 
 hL. P.E. 92. kimp. K.B. 675. 
 
 ■' Append. Chap. XLIII; § ' 2 Cromp. 394. Imp. K. B. 
 78, &c. 734. L.P. E. 78. 
 
 Vol. II. 3 L
 
 1106 
 
 OF ERROR. 
 
 It is also the first proceeding after the transcript 
 is brought in, on a writ of error by the plaintiff to 
 reverse his own judgment *". In the King's-Bench, 
 this is aybwr-day rule, given by the master", on 
 the expiration of the rule to appear to the scire fa- 
 cias°\ and after being entered with the clerk of the 
 rules, a copy of it should be made, and served on 
 the attorney for the plaintiff in error. 
 
 In the Ex chequer- chamber, if the plaintiff in er- 
 ror allege diminution, the rule to assign errors is 
 given the next term, with the clerk of the errors, 
 in like manner as the rule to allege diminution, 
 and expires in eight days after service p. On a writ 
 of error returnable in parliament, when the tran- 
 script is brought in, a peer moves the house, with- 
 out any previous proceeding, for a day to be given 
 the plaintiff in error to assign his errors, which is 
 ordered accordingly ^ ; and ought to be done within 
 
 eight 
 
 ^ 3 Bur. 1771. 
 
 n Append. Chap. XLIII. § 
 27. 
 
 o 6 T. R. 367. and see 2 
 Str. 917. In the case of Sam- 
 bridge V. Housleij, in Error, 
 2 T. R. 17. it was holden, that 
 the rule to assign errors might 
 be given, at the same time as 
 the rule to appear to the scire 
 facias i but according to this 
 determination, the rule to as- 
 sign errors, which expires in 
 
 four days inclusive, would have 
 expired before the rule to ap- 
 pear tj) the scire facias, which, 
 we have seen, does not expire 
 till four days exclusive : ante, 
 1 102. and therefore the prac- 
 tice was altered as above. 
 
 p Append. Chap. XLIII. § 
 28. 
 
 q For the form of the order, 
 see Append. Chap. XLIII. § 
 29. 
 
 i
 
 OF ERROR. 1107 
 
 eight days after the bringing in of the writ of error, 
 with the record ^ Within the time limited by the 
 rule or order to assign errors, if they are not as- 
 signed, the defendant in error may sign a non/>ro5 *, 
 and is entitled to costs. 
 
 An assignmejit of errors is in nature of a declara- 
 tion '^; and is either,of errors mfact, or errors in law. 
 The former consist of matters of fact, not appearing 
 on the face of the record, which, if true, prove the 
 judgment to have been erroneous ; as that the de- 
 fendant in the original action, being under age, 
 appeared by attorney ''; that a y^-^Tze- plaintiff or de- 
 fendant was under coverture, at the time of com- 
 mencing the action ""; or that a sole-plaintiff or 
 defendant died before verdict, or interlocutory 
 judgment ^^ : But the defendant in ejectment is not 
 allowed to assign for error, the death of the nominal 
 plaintiff''. An assignment of errors in fact should 
 conclude with a verification ^ ; and in assigning the 
 
 death 
 
 r Ordo Do7n. Proc. die Fen. ^ j^^ § 32, 3. 
 
 23 Dec. 1661. w Jd. § 34, &c. 
 
 s Append. Chap. XLIII. § "2 Str. 899. but see 1 Sid. 
 
 78, Sec. 93. T. Raym. 59. S. C. where 
 
 ^ 2 Bac. Abr. 216. it was assigned for error. 
 
 " Append. Chap. XLIII. § r I Bur. 410. Carth. 367. 
 
 "0, 3' . but see Yelv. 58, contra.
 
 1108 OF ERROR. 
 
 death of the defendant in error, the assignment 
 ought not to conclude in the common way, but by 
 praying a scire facias ad audiendum errores against 
 the executor or administrator of the defendant in 
 error; and if the sheriff return that he is alive, then 
 he may come in and plead in nullo est erratum; or 
 his attorney may appear for him, and say that he 
 is alive '^ : but if the sheriff return, that he has 
 warned the executor or administrator, tliat will be 
 a sufficient ground for the court to proceed and 
 examine the errors ^ 
 
 Krrors in law are common or special. The com- 
 mon errors are, that the declaration is insufficient 
 in law to maintain the action; and that the judg- 
 ment was given for the plaintiff, instead of the 
 defendant '', or vice versa : Special errors are the 
 want of an original writ "^ bill, or warrant of at- 
 torney ^ ; or other matter, appearing on the face 
 of the record, which shews the judgment to have 
 been erroneous. The plaintiff may assign several 
 errors in law, but only one error in fact ^ ; and he 
 cannot assign error in fact and error in law toge- 
 ther, for these are distinct things, and require dif- 
 ferent trials ^ It is also settled, that nothing can 
 
 be 
 
 2 1 Sid. 93. T. Raym. 59. = Id. § 39. 
 S. C. <i Id. § 44. 59. 
 
 a Carth. 339. e p. N. B. 20. 
 
 fe Append. Chap. XLIII. § f 2 Bac. Abr. 217. 2 Ld. 
 
 58. 57, 8. 65, 6. Raym. 883. 1 Str. 439.
 
 OF ERROR. 1109 
 
 be assigned for error, which contradicts the record ^, 
 or was for the advantage of the party assigning it^; 
 or that is aided by appearance, or not being taken 
 advantage of in due time '. Where there are seve- 
 ral plaintiffs in en'or, they must join in assigning 
 errors ^, unless some of them have been summoned 
 and severed : And where the assignment has been 
 merely calculated for delay, the court have in some 
 instances set it aside \ The assignment of errors is 
 engrossed on treble-penny stamped paper, and need 
 not be signed by counsel : In the King's-Bench, it 
 is delivered to the defendant's attorney; in the Ex- 
 chequer-chamber, and House of Lords, it is Jiled 
 with the clerk of the errors, or clerk in parliament. 
 If the plaintiff assign for error the want of an ori- 
 ginal writ, bill, or warrant of attorney, &c. or 
 that it is bad in point of law, he should regularly 
 take oat a certiorari, to verify his errors : for it is a 
 rule, that judgment cannot be reversed, for want 
 of an original writ, bill, or warrant of attorney, 
 nor for any supposed error or defect therein, with- 
 out a certiorari "". The error in such case, unless 
 
 confessed, 
 
 8 2 Bac. Abr. 218. 1 Str. B. 676. 
 684. 2 Ld. Raym. 1414. S. C. > 1 Str. 141. 545. 2 Str. 
 
 1 Wils. 85. S. P. 899. Lil. Ent. 228. inmarg. 
 
 h 2 Bac. Abr. 220. iStr. 382. "^ 9 Edw. IV. 34. b. 1 RoL 
 
 i 2 Bac. Abr. 221. 2 H. Abr. 764. 2 Ld. Raym. 1398 
 
 Blac. 267. 299. 1441. Cas. temfi. Hardw. 118. 
 
 J' 2 Bac. Abr. 217. Imp. K. 19,
 
 1110 OF ERROR. 
 
 confessed, is not considered to be completely as- 
 signed, until it appear, by the return to the certi- 
 orari^ that it is well-founded" : And it is said, that 
 the plaintiff in error cannot till then bring in the 
 defendant, to plead to the errors ". Also, by the 
 course of the King's-Bench, if diminution be al- 
 leged, errors cannot be entered, till the certiorari 
 be returned, and the rules to plead are expired p. 
 
 A certiorari is a judicial wrif, issuing out of the 
 court where the writ of error is depending, on a 
 proper precipe "■, and directed to the judge or of- 
 ficer who has the custody of the writ, or other mat- 
 ter to be certified; as to the custos brevium^ for cer- 
 tifying an original writ% or to the chief-justice, for 
 certifying a bill ^ or warrant of attorney **, &c. 
 This writ is tested in the name of the chief-justice 
 of the King's-Bench, when it issues out of that 
 court; orwhen itissuesout of the Exchequer-cham- 
 ber, in the name of the chief-justice of the court of 
 
 Common- 
 
 ■^ Com. Rep. 115. infant to sue by firochein amiy 
 
 " 2 Ld. Raym. 1047. an imparlance or other con- 
 
 p 1 Keb. 211. tinuance, or a writ of inquiry, 
 
 1 Barnes, 12. the certiorari is directed to the 
 
 r Append. Cliap. XLIII. § chief-justice of K. B. ; but for 
 
 40. 45. certifying warrants of attor- 
 
 s 7rf. § 41. ney, or a writ of inquiry, in 
 
 £ /rf. § 60. 62 . C. P. it is directed to the custos 
 
 •Oi Id. § 46. 62, For certi- brevimn. Lil. Ent. 535, &c. 
 
 lying bail in the original 2 Ld. Raym. 1476. 1 Wils 
 
 action, the admission of an 85.
 
 OF ERROR. 1111 
 
 Common- Pleas "; and ought not to bear teste, be- 
 fore the assignment of errors ". The writ of certi- 
 orari being signed and sealed, should be delivered 
 to the judge or officer to whom it is directed; and 
 is made returnable immediate ^ or without delay ". 
 It has been doubted, whether the court have power 
 to amend this writ ''. 
 
 When a certiorari is prayed, the defendant in er- 
 ror may either come in gratis, and confess the want 
 of an original, &c. by pleading i?i nulla est erratum"^, 
 or a release *, which renders it unnecessary for the 
 plaintiff in error to sue out a certiorari; or, if there 
 be an original, &c. he may go to the master of the 
 office, in the King's-Bench, and get a rule for the 
 plaintiff in error to return his certiorari ^ This is 
 a ybwr-day rule, given by the master, on the back 
 of the draft of the scire facias quare executionem non; 
 and after being entered with the clerk of the rules, 
 a copy of it is served on the plaintiff's attorney. 
 In the House of Lords, it is a rule, that if the 
 
 plaintiff 
 
 "'iStr. 819. 2 Ld. Raym. 2 Ld. Raym. 1005. 6 Mod. 
 
 1554. S.C. 113. 206. S. C. 2Ld. Raym. 
 
 wLil. Ent. 555, &c. Imp. 1047. 3 Salk. 214.6 Mod. 235. 
 
 K.B. 680. Holt, 563. S. C. 
 
 X Lil. Ent. 555, &c. ''Com. Rep. 115. 1 Salk. 
 
 ^Barnes, 12. 267. 2 Ld. Raym. 1156. S. 
 
 ^ 1 Salk. 267.2 Ld. Raym. C. Append. Chap. XLIII. § 
 
 1156. S. C. 2 Str. 907. S. P. 42. 
 
 ^ 1 Salk. 268. 3 Salk. 399.
 
 1112 Ot ERROR. 
 
 plaintiff in error allege diminution, and pray a 
 certiorari^ the clerk shall enter an award thereof 
 accordingly ; and the plaintiff may, before in nullo 
 est erratum pleaded, sue forth the writ of certiorari 
 in ordinary course, without special petition, or 
 motion to the house, for the same; and if he do not 
 prosecute such writ, and procure it to be returned, 
 within ten days next after his plea of diminution 
 put in, then, unless he shall shew good cause to the 
 House, for enlarging the time for the return of 
 such writ, he shall lose the benefit of the same, 
 and the defendant in error may proceed, as if no 
 such writ of certiorari were awarded ''. This is the 
 common course of proceeding : but if the House 
 be soon about to rise, they will, upon petition, of 
 which there must be two days previous notice, or- 
 der the plaintiff in error to return the writ of cer- 
 tiorari by a short day. 
 
 Within the time allowed to the plaintiff in error, 
 for the return of the certiorari^ he either gets it re- 
 turned, or not : If it be not returned, the assign- 
 ment of the want of an original, &c. is of no effect; 
 and the defendant in error having entered on record 
 a non misit breve'^, may, notwithstanding such as- 
 signment, plead in nullo est erratum^ and proceed to 
 uflirm the judgments If a return be made to the 
 
 writ 
 
 - Ordo Dom. Froc. die Fen. 54. 
 13 Dec. 1661. e I Salk. 267. 2 Ld. Rayiri 
 
 d Append. Chap. XLIII. § 1156. S. C 2 Cromp. 374.
 
 OF ERROR. 1113 
 
 writ of certiorarij it is either that there is, or is 
 not an original writ, bill, or warrant of attorney, 
 &c ^ And as diminution cannot be alleged, so it is 
 a rule, that a matter cannot be returned to the ceV' 
 tiorariy contrary to the record ^. The return being 
 made, is filed in the treasury of the court, where 
 the defendant's attorney should search for it. 
 
 We have already seen ^, that the want of an ori- 
 ginal writ or bill is aided after verdict, by the sta- 
 tute 18 Eliz. c. 14. but not after judgment by de- 
 fault or confession, or upon demurrer or nul tiel 
 record. Therefore, if the want of an original after 
 verdict be assigned for error, the defendant in er- 
 ror may confess it, by pleading in niillo est erratum: 
 But if a writ of error be brought after a judgment 
 by default, &c. it is usual for the defendant in error, 
 if there be no original already sued out, to present a 
 petition ' to the Master of the Rolls, praying that 
 the cursitor of the county where the venue is laid, 
 may be directed to issue an original, with a proper 
 return ''. This petition must be presented, before 
 the defendant in error takes out a rule for tiie plain- 
 tiff to return the certiorari: And an order' being 
 obtained thereon, a copy of the petition and order 
 should be forthwith served on the adverse attorney; 
 
 and 
 
 f Append. Chap. XLIII. § i Append. Chap. V. § 15. 
 43. 47. 63. k Jntet 103, 4. and see 6 T- 
 
 k2 Ld. Raym. 1123, 4. R. 544. 
 
 H Ante^ 102. » Append. Chap. V. § 17- 
 
 Vol. IL 3M
 
 1114 OF ERROR. 
 
 and if he do not in two or three days make his elec- 
 tion, either to accept the costs in error, or prose- 
 cute his writ, the costs in error must be tendered 
 him; and if he accept thereof, the defendant in 
 error may immediately sign a nonpros, and after 
 entering a remittitur, take out execution on the 
 judgment "" ; but if he refuse to accept the costs, 
 choosing rather to prosecute his writ of error, the 
 petition and order should be delivered to the cur- 
 sitor, who will make out the original writ, which 
 must be returned by the sheriff, and then filed with 
 the ciistos brevium ", The same course is observed, 
 after an amendment of the proceedings in the ori- 
 ginal action, pending a writ of error; upon which 
 the plaintiff in error may make his election, either 
 to accept the costs, or prosecute his writ °. 
 
 The plaintiff in error can have but one writ of 
 certiorari ^: Therefore, where he took out a certi- 
 orari of a wrong term, which did not verify his 
 error, and afterwards moved for a second certiora- 
 ri, it was denied him ; the court saying, it may be 
 granted to affirm, but not to reverse a judgment "J. 
 But if it be certified, on the plaintiff's writ, that 
 there is no original % or warrant of attorney % or 
 
 one 
 
 •^L. P. E. 30, 819. S. P. 
 
 "/rf. 31,32. «• Cro. Car. 9 1 . 
 
 o Ante, 664. ^ Cro. Jac. 277. 1 Salk. 266. 
 
 PCro. Jac. 597. 6Mod. 174. S. C. 
 
 q 2 Str. 765. and see id. 
 
 11
 
 OF ERROR. 1115 
 
 one that is bad, or warrants not the declaration % 
 the defendant in error may, at any time before i?i 
 nullo est erratum pleaded, make a suggestion that 
 there is an original or warrant of attorney, or a 
 good one of a different term, or even of the same 
 term with the placita ", and pray a certiorari for 
 certifying it; and if a good original be returned, 
 the court will not inquire when it was filed; or if a 
 bad original was before certified, they will disre- 
 gard it, and apply the record to that which is good 
 and will support the judgment. But it is a rule ^^ 
 that no certiorari upon a writ of error, shall be su- 
 ed out or made by any attorney, after a certiorari 
 in the same cause hath been already sued out and 
 returned, without motion in court by counsel. 
 
 In the King's-Bench, as the parties have no day 
 in court after the record is removed, the plaintiff 
 in error may, after he has assigned his errors, have 
 a scire facias ad audiendum error es ^'' against the de- 
 fendant, who thereupon may appear and plead in 
 nullo est erratum^ or a release '', &c. But in prac- 
 tice it is usual for the defendant in error, by con- 
 sent, to take notice voluntarily of the assignment 
 of errors ; which consent is testified by his pleading 
 
 in 
 
 t 1 Rol. Abr. 765. Cro. Jac. w Append. Chap. XLIII. § 
 
 130. 597. Cro. Car. 410. 48, &c. 
 
 "Com. Rep. 118. 1 Salk. '^ 2 Bac. Abr. 207. F.N. 
 
 267. 2 Ld. Raym. 1476. B. 44. 
 
 •' R. E. 11 Car. I.
 
 1116 of i.kkok. 
 
 in nullo est erratum, and then there is ho occasion 
 for a scire facias ad aiidiendum errores ^. Where a 
 scire facias is sued out, and the defendant does not 
 appear and join in error, the plaintiff may move to 
 reverse the judgment, upon producing the record 
 of the scire facias, with the sheriff's return oi scire 
 feci, and an entry of the defendant's default, with- 
 out taking out a rule to join in error ', and even 
 without moving for a concilium, or putting the 
 cause in the paper *. 
 
 The Exchequer-chamber not having the record 
 before them, but only a transcript, do not award 
 a scire facias ad audiendutn errores, but notice is 
 given to the parties concerned ^ : And in the House 
 of Lords, the plaintiff must get a peer to move the 
 house, that on assigning errors, the defendant may 
 appear and make his defence. In error to reverse 
 a common-recovery, there ought to be 2i scire facias 
 against the tertenants, ad audiendum processum et 
 fecordum'^ ; but to this they can only plead a re- 
 lease of errors'^. 
 
 To an assignment of errors, the defendant may 
 plead or demur. Pleas in error are common or 
 special. The common plea, of joinder, as it is more 
 
 frequently 
 
 yCarth. 41. c 1 Leon. ^90. 1 Lev. 72. 
 
 «^ 1 Str. 144. Carth. 111. Append. Chap 
 
 »3 9tr. 1210. XLIII. § 52. 
 ^ 1 Vent. 34. d 1 Bur. 360. Jnte, 1034.
 
 OF ERROR. 1117 
 
 frequently called, is in nullo est erratum ^, or that 
 there is no error in the record or proceedings : 
 which is in the nature of a demurrer, and at once 
 refers the matter of law arising thereon, to the 
 judgment of the court. 
 
 If the plaintiff in error assign an error in fact, 
 and the defendant in error would put in issue the 
 truth of it, he ought to traverse or deny the fact, 
 and so join issue thereupon, and not say in nullo est 
 erratum; for by so doing, he would acknowledge 
 the fact alleged to be true ' : But when an error in 
 fact is assigned, if the defendant would acknow- 
 ledge the fact to be as alleged, and yet insist that 
 by law it is not error, he ought to rejoin in nullo est 
 erratum ^. Hence it appears, that if an error in fact 
 be well assigned, in nullo est erratum is a confes- 
 sion of it; for the defendant ought to have joined 
 issue thereon, so as to have it tried by the country: 
 But if an error in fact be assigned that is not as- 
 signable, or be ill assigned, in nullo est erratum is 
 no confession of it, but shall be taken only for a 
 demurrer ^. 
 
 If error be alleged in the body of the record, in 
 nullo est erratum is a good rejoinder; for this shall 
 put the matter in the judgment of the court, the re- 
 cord 
 
 e Append. Chap. XLIII. § f 1 Rol. Abr. 763. 
 53, 4. 64. 67. s 2 Bac. Abr. 218
 
 1118 OF ERROR. 
 
 cord being agreed to be as stated^. So if error be 
 alleged in a matter of record, which is not of the 
 body of the record, but in a collateral thing, as that 
 there is no record of resummons, in nullo est erra- 
 tum is a good rejoinder; for if the plaintiff in error 
 do not allege diminution, and thereupon procure a 
 certificate from the inferior court, that there is not 
 any resummons, before the rejoinder entered, the 
 assignment is of no effect, but void, inasmuch as 
 this is to be tried by the record itself, and no di- 
 minution can be alleged after rejoinder entered; 
 and though the defendant confess the error, yet the 
 court ought not to reverse the judgment, till they 
 are satisfied it is erroneous by the record itself '. 
 If the plaintiff in error assign error in fact and er- 
 ror in law, which we have seen cannot be assigned 
 together, and the defendant in error plead in nullo 
 est erratum^ this is a confession of the error in fact, 
 and the judgment must be reversed ^ ; for he 
 should have demurred for the duplicity, upon 
 which the judgment would have been affirmed '. 
 
 By pleading in nullo est erratum^ the defendant in 
 error admits the record to be perfect, the effect of 
 
 his 
 
 5i 1 Rol. Abr. 763. 338, 9. Comb. 321. S. C. 
 
 i Id. 764. 9Edw. IV. 32. b. i 2 Ld. Raym. 883. 1 Str 
 ^2Bac. Abr. 218. Carth. 439.
 
 OF ERROR. 1119 
 
 his plea being, that the record in its present state 
 is without error"; and therefore, after in ?iulio est 
 erratum pleaded, neither party can allege diminu- 
 tion, or pray a certiorari'\ But though the parties 
 are bound by their own admission, and that equal- 
 ly so as to every part of the record, yet no admis- 
 sion of the parties can or ought to restrain the court 
 from looking into the record before them °. Hence 
 it is a general rule, that at any time pending a writ of 
 error, whether before ^ or after errors assigned, or 
 even after in nullo est erratum pleaded "^j the court 
 ex officio may award a certiorari; and they may do 
 this to supply a defect in the body of the record "", 
 as well as in its out-branches. 
 
 When the plaintiff assigns for error the want of 
 an original or warrant of attorney, and the defend- 
 ant comes in gratis^ and confesses the matter as- 
 signed for error, by pleading in nullo est erratum % 
 or a release S without putting the plaintiff to the 
 necessity of suing out a certiorari^ to verify his 
 errors, the court, for their own information, may 
 award this writ, in order if possible to support the 
 judgment. And so if error be assigned in the ori- 
 ginal 
 
 " 1 Salk. 270. Cas. tcmli. Hardw. 118, 19. 
 " Id. 269. 2 Cromp. 378. r i Salk. 270. 
 
 o Id. 270. s 2 Str. 907. 
 
 p 1 Str. 440. t 1 Salk. 268. 2 \A. Raym. 
 
 4 I Rol. Abr. 764, 5. I Salk. 1005. S. C. 
 269. 2Ld.Raym. 1005. S.C-
 
 1120 OF ERROR. 
 
 ginal writ, and upon a certiorari granted, an erro- 
 neous original be returned, upon which in nullo est 
 erratum is pleaded, and after the court grant a se- 
 cond certiorari for another original, and upon this 
 a good original is certified, the court will intend 
 this to be the original on which the judgment was 
 given, in favour of judgments, which ought to be 
 intended good, till the contrary is manifest ". But 
 though the court ex ojicio will award a certiorari 
 to affirm a judgment, yet they will never award 
 one to reverse it, or make error \ 
 
 Special pleas to an assignment of errors contain 
 matters in confession and avoidance, as a release 
 of errors ^, or the statute of limitations ", &c. to 
 which the plaintiff in error may reply or demur, 
 and proceed to trial or argument. A release of 
 errors contained in a warrant of attorney to con- 
 fess a judgment is good, though given before 
 judgment, provided it be dated in the term of 
 which the judgment is entered up'': But where 
 there are several plaintiffs in error, the release of 
 
 one 
 
 >i 1 Rol. Abr. 765. j1n(e, granted a certiorari to reverse 
 
 102, 3. the judgment, as well as to 
 
 V 1 Salk. 269. 2 Str. 765. affirm it. 
 
 319. 907. Cas. temfi. Hardw. w 2 Bac. Abr. 225. Append. 
 
 118, 19. but see 2 Bac. Abr. Chap. XLIII. § 55, 6. 
 
 205. and the cases there cited, * Stat. 10 & 1 1 W. III. c. 
 
 by which it appears, that for- 14. 
 
 merly the court would have y2 Str. 1215.
 
 OF ERROR. 1121 
 
 one of them shall not bar the others ^ In pleading 
 a release, the defendant must lay a venue; but 
 though it be ill pleaded, yet if there are no errors, 
 the court will affirm the judgment ^ Where error 
 is brought on a judgment that the j&aro/ shall de- 
 mur, the non-age cannot be pleaded again, for that 
 would be exceptio ejusdem ret, cujus petitur disso- 
 lutio ^. 
 
 The plea or joinder in error, &.c. is engrossed 
 on treble-penny stamped paper; and if common, 
 need not be signed by counsel. In the King's- 
 Bench, it is delivered to the plaintiff's attorney "=: 
 In the Exchequer-chamber, or House of Lords, 
 it is filed with the clerk of the errors, or clerk in 
 parliament. 
 
 Issue being joined in error, the proceedings are 
 entered of record : And on a writ of error coram 
 nobis, they must be entered on the same roll as the 
 original judgment, or former writ of error '^ On 
 a writ of error from the Common- Pleas, the entry 
 is made by the attorney for the plaintiff in error', 
 
 on 
 
 2 Cro. Eliz. 648, 9. Cro. 1433. S.C. 
 
 Jac. 116, 17. 3 Mod. 135. <^ j^nCe, 62!i. 
 
 • 1 Salk. 268. 3 Salk. 399. d Cro. Eliz. 155. 281. I 
 
 2 Ld. Rayra. 1005. 6 Mod. Ld. Raym. 151. Carth. 369. 
 
 113. 206. S. C. 
 
 ^ 2 Str. 861. 2 Ld. Raym. « ^ntCf 666. 
 
 Vol. II. .3N
 
 1122 OF ERROR. 
 
 on difFerent rolls, intitled of the term the transcript 
 is brought in; and begins with the writ of error 
 and return, after which the proceedings in the 
 Common- Pleas are entered, to the end of the final 
 judgment; then follows the assignment of errors, 
 and if it be of errors in fact, the plea and replica- 
 tion, &c. are next entered, with an award of the 
 ve?iire facias *^, or if it be of errors in law, there is 
 an entry of the joinder, with a continuance by curia 
 advisari vult ^. 
 
 On an issue mjact^ a record ofnisiprius^ is made 
 up, and the parties proceed to trial, as in common 
 cases; and after verdict, the party for whom it is 
 found, must move to put the cause in the paper for 
 argument'; and then, on producing the postea, the 
 court will give judgment, according to the finding : 
 In this case, the defendant, as well as the plaintiff", 
 may carry down the cause to trial, without a rule 
 for trying it hy proviso. 
 
 On an issue in law^ either party may move for a 
 concilium ^ in the King's Bench, draw up and serve 
 the rule, enter the cause with the clerk of the pa- 
 pers, and proceed to argument, as on demurrer. 
 Previous to the day of argument, copies of the 
 books, or proceedings in error, should be delivered 
 
 (as 
 
 f Append. Chap. XLIII. § ' 1 Str. 627. 
 68. k Append. Chap. XLIII. § 
 
 g Id. § 69, &c. 75. 
 
 h Id. 77.
 
 OF ERROR. 1125 
 
 (as on demurrer,) by the plaintiff or his attorney, 
 on unstamped paper, to the chief-justice and ^e/w'or 
 judge, and by the defendant or his attorney, to the 
 other judges ^; in which should be inserted the 
 names of the counsel who signed the pleadings "" : 
 and the exceptions intended to be insisted upon in 
 argument should be marked in the margin ". If ei- 
 ther party neglect to deliver the books, they ought 
 to be delivered by the other; and in that case, the 
 party neglecting cannot be heard, but judgment 
 will of course be given against him °. 
 
 In the Exchequer-chamber, there are no more 
 than two return-days in every term; one is called 
 the general affirmance -^2.y^ being appointed by the 
 judges of the Common-Pleas, and barons of the 
 Exchequer, to be held a few days after the begin- 
 ning of every term, for the general affirmance or re- 
 versal of judgments, the other is called the adjourn- 
 ment-dajj which is usually held a day or two before 
 the end of every term. On the first of these days, 
 judgments are affirmed or reversed, or writs of error 
 nonprossed; the intent of the latter is to finish such 
 matters as were left undone at the former; on 
 which last-mentioned day also, as well as on the 
 first, judgments may be affirmed or reversed, or 
 
 writs 
 
 » R. M. 17 Car. I. and see " R. E. 2 Jac. II. revived 
 
 3 R. E. 2 Jac. II. (a). R. T. by R. H. 38 G. III. 
 
 40 G. III. 1 East, 131. ^ntcy ° R. M. 17 Car. I. Imp. K. 
 
 687. B. 686. 
 
 ■nR-E. 18 Car. IL
 
 1124 OF ERROR. 
 
 writs of error nonprossed, on paying an additional 
 fee to the clerk of the errors, and setting down the 
 cause two days before the adjournment-day p. 
 
 The proceedings in this court are entered by the 
 clerk of the errors, who sets down the cause, at the 
 instance of either party, without a motion for a 
 concilium : In making the entry, after setting forth 
 the writ of error and return, and the proceedings 
 in the court of King's-Bench, a day is given to the 
 plaintiff to assign errors; after which, the assign- 
 ment of errors, and other subsequent proceedings, 
 are entered on the return-days they are put in, with 
 a separate placita for each day''. It is a rule, in 
 the Exchequer-chamber, that no copy of error 
 and record thereupon be delivered to the justices 
 or barons, before the attorney for the plaintiff in 
 error shall have given ten days notice, to the clerk 
 cf the errors in the Exchequer-chamber, that the 
 error assigned in the record is to be argued, before 
 the said justices and barons, for both parties; and 
 that the attorney for the plaintiff shall deliver four 
 copies to the justices of the Common- Pleas, and 
 the attorne)- for the defendant shall deliver four 
 other copies to the barons of the Exchequer, four 
 days before the hearing of the cause "": To enable 
 the parties to deliver these copies, a transcript of 
 
 the 
 
 pL. P. E. 181,2. rR. E. 33 Car. II. Imp. 
 
 1 Id. 175, 8cc. Append. K. B. 677. 
 Chap. XLIII.§76, &c.
 
 OP ERROR. 1125 
 
 the proceedings is made for them, 6y the clerk of 
 the errors. 
 
 In the House of Lords, when the defendant hath 
 joined in error, the cause is set down, on the mo- 
 tion of a peer, to be heard in turn ; after which, if 
 the house is likely to be soon up, either party may 
 on petition % of which two days previous notice 
 should be given to the other, have the cause ap- 
 pointed for a short day. And when a day is ap- 
 pointed for hearing the cause, the same cannot be 
 altered, but upon petition ; and no petition can in 
 such case be received, unless two days notice 
 thereof be given to the adverse party, of which no- 
 tice oath is to be made at the bar of the house ^ 
 Previous to the argument, the cases for both par- 
 ties must be drawn up, and signed by counsel"; 
 and it is usual to deliver 250 printed copies of it 
 on each side, at the Parliament-office, some of 
 which are given to the lords, and others to the 
 judges. 
 
 On the day appointed for argument, the counsel 
 for the parties are heard, being previously in- 
 structed, and furnished with copies of the paper- 
 books, or printed cases ; and if there be no argu- 
 ment, one of them moves for judgment of affirmance 
 or reversal. If the errors be argued, one counsel 
 
 onlv 
 
 * Append. Chap. XLIII. § 22 Dec 1703. 
 90. ^Ordo Dom . Proc. die Mart. 
 
 » Ordo Dom. Proc. die Merc. 19 jlfi. 1 698.
 
 1126 OF ERROR. 
 
 only is heard on each side, in the King's-Bench ; 
 the counsel for the plaintiff in error begins, the 
 counsel for the defendant is then heard, and the 
 plaintiff's counsel replies'": In the House of Lords, 
 no more than two counsel can be heard on eacli 
 side ^\ 
 
 The judgment in error, unless the court are 
 equally divided in opinion, is to affirm^ or to recal 
 or reverse the former judgment; that the plaintiff 
 be barred of his writ of error ; or that there be a 
 venire facias de novo. The common judgment for 
 the defendant in error, whether the errors assigned 
 be in fact or in law, is that the former judgment be 
 a^rmed"^ : So on a demurrer to an assignment of 
 errors, in fact and in law, for duplicity, the judg- 
 ment is guod affirmetur ^. For error in Jact, the 
 judgment is recalled, revocatur ^; and for error in 
 law, it is reversed ''. On a plea of release of errors '', 
 or the statute of limitations '^j found for the de- 
 fendant, the judgment is, that the plaintiff be 
 barred of his writ of error. It has already been 
 
 shewn, 
 
 V Jnte, 462. ^ Append. Chap. XLIII. § 
 
 w 2 Cromp. 389. 84, 5. 
 
 :i Append. Chap. XLIII. § ^ 1 Show. 50. 1 Str. 127. 
 
 83. 86. 91. 683. but see Ast. Ent. 339. 
 
 y Yelv. 58. 2 Ld. Raym. 1 Str. 382. aemb. contra. 
 
 883. 1 Str. 439. c 2 Str. 1055. Cas. tem/L 
 
 2 2 Bac. Abr. 230. Hardw. 345. S. C
 
 OF ERROR. 
 
 1127 
 
 shewn, in what cases a venire facias is grantable de 
 
 novo 
 
 When the court of King's-Bench are equally 
 divided in opinion, upon a writ of error, it seems 
 there can be no rule for affirming or reversing the 
 judgment, without consent ; and therefore, in the 
 case of Thornby v. Fleetwood ^^ the court being 
 divided in opinion, a rule was made, w^ith the 
 assent and at the instance of the lessor of the plain- 
 tiff, to expedite the determination of the cause, in 
 the House of Lords ; whereby it was ordered, that 
 the judgment should be affirmed *'. But in the 
 Exchequer-chamber, it is the practice, upon a 
 division, to affirm the judgment, as w^as done in 
 
 the 
 
 ^ Ante^ 831, 2. 
 
 «= 1 Str. 379. 
 
 fLil. Ent. 524. By the 
 statute 14 Edw. III. it is pro- 
 vided, " that whereas causes 
 " have been delayed for dif- 
 " ficulty and division in opi- 
 ".nions; therefore to remedy 
 " the delays occasioned there- 
 " by, there shall in every par- 
 " liament be chosen a pre- 
 " late, two earls, and two 
 " barons, who by good ad- 
 " vice of others are to give 
 " judgment, or if they can- 
 " not determine it, that then 
 " the record shall be brought 
 " into parliament, who shall 
 
 " make a final accord ; and 
 " the judges before whom the 
 " cause is depending shall 
 " proceed to give judgment, 
 " pursuant to their direc- 
 " tions." But there appear to 
 be no footsteps for centuries, 
 of any such appointment of a 
 prelate, two earls, and two ba- 
 rons; and the court of King's- 
 Bench, in the above case, 
 thought it would be improper, 
 on a writ of error from the 
 Common-Pleas, to adjourn the 
 cause for difficulty into the 
 Exchequer-chamber,or House 
 of Lords. ' ^tr. .18^.
 
 1128 OF ERROR. 
 
 the case of Deighton v. Greenville ^ : And so is the 
 practice in the House of Lords ; which depends on 
 their mode of putting the question to reverse the 
 judgment, a majority being required to reverse iV\ 
 
 A judgment, when entire, cannot regularly be 
 reversed in part, and affirmed for the residue '. 
 Therefore, where A. brought an action on the case 
 against B. for words spoken of him, and for caus- 
 ing him to be indicted, &c. and the jury found a 
 verdict for the plaintiff as to both, with entire da- 
 mages, yet it being afterwards holden that the 
 words were not actionable, the judgment was re- 
 versed in toto^ : But if part of the words laid be not 
 actionable, and several damages are given, it 
 seems that judgment shall be reversed in part 
 only '. 
 
 Where there are several dependent judgments, 
 and the principal one is reversed, the other cannot 
 be supported : As if a man recover in debt upon a 
 judgment, if the first judgment be reversed, the 
 second falls to the ground "". But the reversal of 
 the last judgment will not affect the first : As if a 
 judgment be given against executors ^ in an action of 
 
 debt. 
 
 g 1 Sho\V. 36. Cruise on 825. 
 
 Fines, 222. k 2 Bac. Abr. 228. 
 
 ii 1 Str. 383. i 1 Str. 188. 
 
 i 2 Bac. Abr. 227. 1 Ld. "^2 Bac. Abr. 229. 
 Raym. 255, 6. 2 Ld. Raym
 
 OF ERROR. 1129 
 
 debty and after a scire facias, judgment is given 
 against them, to have execution of their proper 
 goods, and a writ of error is brought upon both 
 judgments; in this case, if the first judgment be 
 good, and the last erroneous, the last judgment 
 only shall be reversed, and the first shall stand ". 
 
 So if there be several distinct and independent 
 judgments, the reversal of the one shall not affect 
 the other : As in an action of account, if judgment 
 be given quod computet, and after auditors are as- 
 signed, and upon the account judgment is given 
 against the defendant also, with damages and costs, 
 and after a writ of error is brought upon both judg- 
 ments, and thereupon the last judgment only is 
 found to be erroneous; in this case, the last judg- 
 ment only shall be»reversed, and not the first judg- 
 ment, but that shall stand in force ; for these are 
 two distinct and perfect judgments, the first judg- 
 ment being ideo consideratum est quod computet, et 
 defendens in misericordid °. So if the judgment con- 
 sist of several distinct and independent parts, it 
 may be reversed as to one part only ; as for costs 
 alone p, or damages in scire facias 'i, or for damages 
 and costs in a qui tarn action ^ 
 
 If 
 
 " 2 Bac. Abr. 229. and see p Lil. Ent.233. 1 Str. 188. 
 
 2 Str. 1055. Cas. i^m/j.Hardw. i 2 Str. 808. 2 Ld. Raym. 
 
 345. S.C. 1532. S.C. 
 
 " 2 Bac. Abr. 228, 9. «• 4 Bur. 2018. 
 
 Vol. II. 3 O
 
 1130 OF ERROR. 
 
 If judgment be given against the defendant, and 
 he bring a writ of error, upon which the judgment 
 is reversed, the judgment shall only be quod judi- 
 cium reversetur; for the writ of error is brought 
 only to be eased and discharged from that judg- 
 ment. But if judgment be given against the plain- 
 tiff, and he bring a writ of error, the judgment 
 shall not only be reversed, if erroneous, but the 
 court shall also give such judgment as the court 
 below should have given ; for the writ of error is to 
 revive the first cause of action, and to recover what 
 he ought to have recovered by the first suit, where- 
 in an erroneous judgment was given % If judgment 
 be given for the plaintiff on one count in a declara- 
 tion, and a distinct judgment for the defendant on 
 another, and the defendant bring a writ of error to 
 reverse the judgment on the first count, the court 
 of error cannot examine the legality of the judg- 
 ment on the second count, no error being assigned 
 on that part of the record \ 
 
 Where a judgment against the plaintiff is re- 
 versed, on a writ of error brought in the King's- 
 Bench, that court, having the record before them, 
 may in all cases give such a judgment as the court 
 below should have given, and if necessary, may 
 award a writ of inquiry to assess the damages. 
 
 And 
 
 «2 Bac. Abr. 230. 1 S. C. 4 Bur. 2156. 
 Salk. 262. 401. 4 Mod. 7e. » 6 T. R, 200. 
 
 I
 
 OF ERROR. 1131 
 
 And so where a judgment is given against the 
 plaintiff in the King's-Bench, on a special verdict, 
 by which the damages are assessed, the Exchequer- 
 chamber or House of Lords may, in case of rever- 
 sal, give a new and complete judgment, for the 
 plaintiff to recover those damages ". But where the 
 damages are not assessed, as when judgment is 
 given on demurrer^ the Exchequer-chamber or 
 House of Lords, not having the record before them,' 
 but only a transcript, cannot give a new and com- 
 plete judgment, but only an interlocutory judg- 
 ment quod recuperet; and the transcript being re- 
 mitted, the court of King's-bench will award a 
 writ of inquiry, and give final -j udgment \ 
 
 When the judgment is affirmed, or writ of error 
 nonprossed, the defendant in error is entitled to 
 costs and damages^ by the 3 Hen. VIL c. 10. & 19 
 Hen. VII. c. 20. By the former of these statutes, 
 reciting that writs of error were often brought for 
 delay, it is enacted, " that if any defendant or te- 
 " nant, against whom judgment is given, or any 
 *' other that shall be bound by the said judgment, 
 *' sue, before execution had^'', any writ of error to 
 " reverse any such judgment, in delay of execu- 
 
 " tion, 
 
 •1 1 Salk. 403. 1 Ld. Raym. ' S. C. 
 9, 10. Carth. 319. Skin. 514. w Cro. Jac. 6-36. Gill?. C. P. 
 
 S. C. 275. 
 
 V Cro. Jac. 207. Yelv. 75.
 
 1132 OF ERROR. 
 
 " tion^'that then, if the same judgment be affirm - 
 " ed, or the writ of error be discontinued in de- 
 *' fault of the party, or the plaintiff in error be non- 
 *' suited therein, the person or persons, against 
 " whom the writ of error is sued, shall recover his 
 *' costs and damages, for his delay and wrongful 
 *' vexation in the same, by discretion of th&Jus- 
 *' tice " before whom the writ of error is sued." 
 The latter of the above statutes recites the former, 
 and that it had not been put in force, and enacts, 
 *' that it shall be thenceforth duly put in execu- 
 " tion." Upon these statutes it has been holden, 
 that costs and damages are recoverable in error, 
 for the delay of execution, although none were re- 
 coverable in the original action^ : And where anex- 
 ecuto?' brought error on a judgment, after a devas^ 
 tavit^ the court held that he ought to pay costs on 
 affirmance ^ 
 
 On a writ of error returnable in the King's - 
 Bench, that court, on motion, will order the mas- 
 ter to compute interest on the sum recovered, 
 by way of damages, from the day of signing final 
 judgment below, down to the time of affirmance, 
 
 and 
 
 X The woY A justice y in the 659. 5 Co. 101. S. C. Cro. 
 
 singular number, is here made Car. 145. 1 Str. 262. 2 Str. 
 
 use of, instead of the courts 1084. but see Cro. Car. 425. 
 
 there being no court of error, 1 Lev. 146. 1 Vent, 38. 166. 
 
 consisting of only one judge. 4 Mod. 245. Carth. 261. S. C. 
 
 Doug. 561. n. 5. semb, contra. 
 
 y Dyer, 77. Cro. Eliz. 617. ^2 SU'. 977. 
 
 I
 
 OF ERROR. 1133 
 
 and that the same be added to the costs taxed for 
 the plaintiff in the original action ^ In the Ex- 
 chequer-chamber, though the court, it seems, are 
 bound to allow double costs to the defendant in 
 error, on the affirmance of a judgment after ver- 
 dict, of the King's-Bench, yet it is entirely a mat- 
 ter in their discretion, whether or not interest shall 
 be allowed on such affirmance '' : And accordingly, 
 the course is said to be for the officer to settle the 
 costs, unless any particular direction be given by 
 the court; and in taxing them, he allows double 
 the money out of pocket or thereabouts, but adds 
 no interest as a matter of course ^ In an action on. 
 an attorney's bill, if judgment for the plaintiff be 
 affirmed in the Exchequer-chamber, that court will 
 not allow interest '^ : and in debt on recognisance, 
 against bail in error in the Exchequer-chamber, 
 the bail are not liable to pay interest, between the 
 time of the original judgment and affirmance; 
 though they are liable for interest after affirmance ^ 
 In the court holden before the Lord Chancellor 
 and treasurer and judges, (under the 31 Ecliv. III.) 
 for examining erroneous judgments in the Ex- 
 chequer, the practice is to give interest, from the 
 
 day 
 
 a Append. Chap. XLIII. § ^ 2 H. Blac. 284. 
 
 87. Doug. 752. n. 3. and see ^ 2 Bur. 1096. 
 
 2 Str. 931. 2 Bur. 1096, 7. '^2 Bo9. & Pul. 219. 
 
 1 Blac. Rep. 267, 8. S. C. 2 « 4 Bur. 2127, 2 T. R. «8. 
 T. R. 79.
 
 1134 OF ERROR. 
 
 day of signing judgment, to the day of affirming it 
 there ; computed according to the current, not ac- 
 cording to the strictly legal rate of interest ^ In 
 the House of Lords, they give sometimes very 
 large, sometimes very small costs, in their discre- 
 tion, according to the nature of the case, and the 
 reasonableness or unreasonableness of litigating the 
 judgment of the court below: And in order to mi- 
 tigate costs, the plaintiff will sometimes withdraw 
 his errors. 
 
 By the 13 Car. II. st. 2. c. 2. k 10. if the judg- 
 ment be affirmed after verdict^ the plaintiff shall 
 pay to the defendant in error his double costs : And, 
 by the 8 & 9 TF. III. c. 11. ^ 2. " if at any time 
 " after judgment given for the defendant, in any 
 " action, plaint or suit, in any court of record, the 
 " plaintiff or demandant shall sue any writ or writs 
 ^^ of error, to annul the said judgment, and the said 
 " judgment shall be afterwards affirmed, the writ of 
 *' error discontinued, or the plaintiff be nonsuit 
 *' therein, the defendant in error shall have judg- 
 " ment to recover his costs, against the plaintiff or 
 " demandant, and have execution for the same, 
 ^' by capias ad satisfaciendum , fieri facias, or 
 *' elegit^.^^ But none of the before-mentioned 
 
 statutes 
 
 f 2 Bur. 1096. W. III. c. 27. § 3. 2 H. BISc. 
 
 E Id. ibid. 287. 
 
 ^ And see the statute 8 & 9
 
 OF ERROR. 1135 
 
 statutes give costs in error, upon the reversal of a 
 judgment'; and therefore when a judgment is re- 
 versed, each party must pay his own costs. A 
 judgment for the plaintiff was reversed on a writ 
 of error in fact, brought by the defendant; and 
 the court held, that the plaintiff was entitled to the 
 costs of the original action, though not to the costs 
 in error ^. 
 
 After affirmance, or nonpros for not assigning 
 errors, the defendant in error having taxed his 
 costs, for which purpose he must wait four days 
 exclusive after affirmance in the Exchequer- 
 chamber, may take out execution for the sum re- 
 covered in the original action, as well as the da- 
 mages and costs in error, or for these alone, by 
 fieri facias ^, against the goods and chattels of the 
 plaintiff in error ; by elegit , against his goods and 
 a moiety of his lands ; or by capias ad satisfacien- 
 dum "\ against his person. 
 
 But where the judgment is affirmed in the Ex- 
 chequer-chamber ", or House of Lords °, to which 
 a transcript of the record only is removed by the 
 writ of error, it is necessary that the transcript 
 
 should. 
 
 i 1 Str. 617. §93, &c. 
 
 ^ Per Cur. H. 41 G. III. '" Id. § 99. 
 K. B. «Palm. 186, 7. 
 
 ' Append. Chap. XLIII. =. Cowp. 84".
 
 1136 OF ERROR. 
 
 should be remitted to the court of King's-Bench, 
 before the execution is issued, or at least before 
 it is returnable p. And where a writ of error de- 
 termines in the Ex chequer- chamber, by abate- 
 ment or discontinuance, the judgment is not again 
 in this court, till there be a remittitur entered; for 
 without a remittitur^ it cannot appear to this court, 
 but that the writ of error is still pending in the 
 Exchequer-chamber 1; and therefore in such case, 
 it is usual for the party succeeding in the original 
 action to move the court, on an affidavit of the fact, 
 for leave to enter a rejiiittitur, and take out execu- 
 tion ^ So if the plaintiff recover a judgment against 
 two defendants in this court, and one of them bring 
 a writ of error in the Exchequer-chamber, the 
 plaintiff cannot charge the other defendant in exe- 
 cution, till the record be remitted; notwithstanding 
 the writ of error might have been quashed imme- 
 diately, because not brought by both the de- 
 fendants. 
 
 The writ of execution being founded on the 
 record, must issue out of the court of King's- 
 Bench, where the record is ^; and that as well 
 where the judgment is affirmed on a writ of 
 error coram nobis, or from the Common-Pleas or 
 
 an 
 
 p Append. Chap. XLIII. § r 1 Salk. 265. 1 Crorap. 
 
 88.92. 369, 70. 
 
 q 1 Salk. 261. 319. 1 Ld. ^Jnte,9\2. 
 Raym. 244. S. C. 
 
 II
 
 OF ERROR. 1137 
 
 an inferior court, returnable in the King's-Bench % 
 as where it is affirmed in the Exchequer-chamber", 
 or house of Lords ^'. This writ should be directed 
 to the sheriff of the county where the venue was 
 laid in th6 original action ; or if it issue into ano- 
 ther county, should be made a testatum : and it 
 must be returnable according to the nature of the 
 former proceedings ; if by bill, on a day certain at 
 Westminster, or if by original, on 2i general return- 
 day, ubicunque, &c. 
 
 If judgment be reversed, the party shall be re- 
 stored to all that he has lost, by occasion of the 
 judgment''; and a writ oi restitution shall be award- 
 ed ". Where the plaintiff has execution, and the 
 money is levied and paid, and the judgment is af- 
 terwards reversed, there, because it appears on the 
 record that the money is paid, the party, we have 
 seen ^, shall have restitution, without a scire facias; 
 for there is a certainty of what was lost : otherwise 
 where it was levied, but not paid; for there must 
 then h^?i scire facias, suggesting the matter of fact, 
 viz. the sum levied ^, &:c. 
 
 If 
 
 t Cowp. 843. § 102, 3. 
 
 " Palm. 186, 7. y Ante, 936, 7. 
 
 V Cowp. 843. 2 2 Salk. 588. Append, 
 
 w Cro. Jac. 698. Chap.XLIII. § 100, 101. Lil. 
 
 ^Append. Chap. XLIII. Ent. 641. 650 
 
 Vol. II. 3 P
 
 Xl58 OF ERROR. 
 
 If a man recover damages, and have execution 
 hyjieri facias, and upon \h& fieri facias the sheriff 
 sell to a stranger a term for years, and after the judg- 
 ment is reversed, the party shall be restored only 
 to the money for which the term was sold, and 
 not to the term itself; because the sheriff has sold 
 it, by command of the writ oi fieri facias ^. But if 
 a man recover damages in a writ oi covenant against 
 B, and have an elegit of his chattels and a moiety 
 of his lands, and the sheriff upon this writ deliver 
 a lease for years, of the value of 50/. to him that 
 recovered, per rationabile pretium et extejitum, ha- 
 bendum as his own term, in full satisfaction of 50/. 
 part of the sum recovered, and after B. reverse 
 the judgment, he shall be restored to the same term, 
 and not to the value ; for though the sheriff might 
 have sold the term upon this writ, yet here is no 
 sale to a stranger, but a delivery of the term to the 
 party that recovered, by way of extent, without 
 any sale, and therefore the owner shall be restored ^. 
 And for the same reason, if personal goods W'ere 
 delivered to the pstrty , per rationabile pretiu?n et ex- 
 tentum, upon the reversal of the judgment, the 
 owner shall be restored to the goods themselves ^ 
 
 Before 
 
 » 2 Bac. Abr. 231. •= 1 Rol. Abr. 778. 2 Bac. 
 
 fc Id. 232. Cro. Jac, 246. Abr. 232.
 
 OF FALSE-JUDGMENT. 1139 
 
 Before we conclude, it may be proper to say 
 7i few words of tht writ of Jaise-Judgment, on ac- 
 count of the affinity it bears to a writ of error. 
 
 The writ of false -judgment is an original-writ^ 
 issuing out of Chancery ; and lies where an erro- 
 neous judgment is given, in a court not of record, 
 in which the suitors are judges ^. This writ may be 
 sued by any one against whom judgment is given, 
 his heir, executor or administrator ; or by any one 
 who has sustained damage, though the other de- 
 fendants do not join, as they ought to do in er- 
 ror ^: And if the writ be brought upon a judgment 
 in the sheriff's court, it is in nature of a rccordari^y 
 or if upon a judgment in another court, not of re- 
 cord, it is in nature of an accedas ad curiam ^. 
 
 If there be no suitors, by whom the plaint may 
 be certified, there shall not be a writ of false-judg- 
 ment ; as in a copyhold court, in which, upon an 
 erroneous proceeding, the copyholder must sue to 
 the lord by petition ''. And by the statute 34 Geo. 
 III. c. 58. " no execution shall be stayed or de- 
 " layed, upon or by any writ of false- judgment, 
 '' or supersedeas thereon, for the reversing of any 
 
 " j"dg- 
 
 JF. N. B. 18. § 104. 
 
 « Moor, 854. gF. N. B. 18. 
 
 ' Append. Chap. XLIII. ^ Id. ibid.
 
 1140 OF FALSE-JUDGMENT. 
 
 *' judgment in any inferior court, within the 
 *' county-palatine oi Lancaster, where the debt or 
 '' damages are under ten pounds, unless the per- 
 '• son or persons in whose name or names such writ 
 " of false-judgment shall be brought, with two 
 " sufficient sureties, such as the court wherein the 
 " judgment is given shall allow of, shall first be 
 " bound unto the party for whom such judgment 
 " is given, by recognisance to be acknowledged 
 '■'■ in the same court, in double the sum adjudged 
 "to be recovered by the former judgment, to 
 " prosecute the said writ of false -judgment with 
 "eft'ect; and also to satisfy and pay, (if the said 
 " judgment be affirmed, or the writ of false-judg- 
 " ment be not proceeded in,) all and singular the 
 " debt, damages and costs adjudged, and all costs 
 ^' and damages to be awarded for the delaying of 
 " execution'." 
 
 A writ of false -judgment is made out by the cur- 
 sitor; and ought to be served in court, or if the 
 lord refuse to hold his court, a distringas tenere cu- 
 riam goes against him \ And, except where bail is 
 required, it is a supersedeas of execution, from the 
 time of service ^ The sheriff is not bound to pay 
 
 attention 
 
 iThis provision seems to 1009. (^). 1075,6. 
 have been taken from the sta- ^ 6 Hen. VII. 16. a. 
 tute 19 Geo. III. c. 70. Ante, i Id. 15. b.
 
 OF FALSE-JUDGMENT. 1141 
 
 attention to this writ, without being paid for the 
 return of it ". 
 
 Upon the return of the writ ", when the whole 
 proceedings are certified, and not before, the plain- 
 tiff shall assign hiserrors°: And if the defendant have 
 day given by the roll, the plaintiff may assign errors^, 
 without 3. scire Jacias against him 'J. To compel a 
 joinder in error, the plaintiff may have a scii-e facias 
 adaudiendum errores ■"; or he may serve a rule, as on 
 a writ of error ^: And upon two scire facias* s ad au- 
 diendum errores awarded, and nih'ils returned, or 
 scire feci and default made, the judgment shall be 
 reversed ^ 
 
 When the parties are once in court, the subse- 
 quent proceedings in false -judgment are the same 
 as in error ": And if a writ of false-judgment abate, 
 or the plaintiff therein be nonsuited, the defendant 
 shall have a scire facias quare executionem non ". On 
 a writ of false -judgment, no costs are in general re- 
 coverable; and it is therefore but seldom advisable 
 to have recourse to this remedv. 
 
 '^ Barnes, 199. p F. N. B. IS. 
 
 " Append. Chap. XLIII. i 2 Cromp. 406. 
 
 § 105,6. rp. N. B. 18. 
 
 ° Foi' the forms of an as- ^ 2 Cromp. 406. 
 
 signment of false-judgment * Id. ibid. 
 
 and joinder, see Append. " Id. ibid. 
 
 Chap. XLIII. § 107,8. V F. N. B. 18.
 
 INDEX. 
 
 TO THE 
 
 PRINCIPAL MATTERS. 
 
 A, 
 
 .BATEMENT, 124. 324. 
 of part of a writ. 583. 
 
 writs of error. 1096, &c. 
 pleas in; see tit. Pleas and Pleading. 
 time for pleading. 418. 
 amendments after. 657. 
 judgment for want of plea in due time. 419. SOT', 588. 
 affidavit of truth of plea. 507. 588. 
 of cassetur billa^ vdbreve. 365. 626. 633. 
 on mil tiel record. 692. 
 entering proceedings, after judgment of resfiondeas ouster. 
 
 669. 
 costs in. See tit. Costs. 
 
 when the suit abates by death of parties, and when not. 840, 
 
 8cc. 849. 1024, &c. 
 ABIDING by Pleas. See tit. Pleas and Pleading. 
 ACCEDAS AD CURIAM, 
 
 what, and when it lies. 352, 354, 5. 1139. 
 form of. 354, 5. 
 see on issuing. 97 {v). 
 what the sheriff must do under it. 355. 
 cannot be had without shewing cause. Id. 
 effect of. 356. 
 receipt and allowance. Id. 
 VoT.. II. 1 Q ACCEDAS
 
 INDEX. 
 
 ACCEDAS AD CURIAM, 
 return of; 
 
 when and how made. Id. 356, 7. 
 what is good. 357. 
 effect of filing. Id. 
 declaration; 
 denovo. 359. 
 rule for. Id. 
 demand of. Id. 
 non-firos for want of. Id. 
 appearance; 
 rule for. Id. 
 
 process to compel. Id. 360, 
 subsequent proceedings. 360. 
 ACCORD and SATISFACTION, 
 
 when Dleaded, or given in evidence. 592. 596. 598, 9 
 ACCOUNT, 
 
 action of; 1,2. 
 
 limitation of. 15, 16. 
 process in; 105. 122. 
 of outlawry. 126. 
 declaration in. 376. 
 judgment in. 1 129. 
 costs in. See tit. Costs. 
 stated, plea of. 592. 
 
 bail in error, in debt on. 1079. 
 AC-ETIAM, 82, &c. 
 
 unnecessary, for less than forty pounds. 82. 
 must specify the sum, when more. 84. 
 necessary, in process against bail. 84. 995. 
 against several defendants. 80. 
 ACKNOWLEDGMENT, of debt. 20. 23, 4. 1143. 
 ACQUITTAL, costs on. 900, 1. 907. 
 ACTIONS, 
 criminal. 1. 
 civil: Jd. 
 
 real. Id. See tit. Real Actioiia 
 personal ; 
 
 upon contracts: 1. 
 account. 1, 2. 
 assumpsit; 2, 3,4. 
 express. 2. 
 implied: 3. 
 common. Id. 
 covenant. 4. 
 debt. Id. 
 
 ACTIONS, m
 
 INDEX; 
 
 ACTIONS, 
 
 personal ; 
 
 upon contracts : 
 annuity. 4. 
 
 scire facias. Id. See tit. Scire Faciaa 
 for wrongs: 5. 
 case, Id. 
 
 for torts to persons; Id. 
 
 individually. Id. 
 relatively: 6. 
 
 crim. con. Id. 615. 
 personal property. 6. 
 real property; 7. 
 corporeal. Id. 
 incorporeal. Id. 
 detinue. Id. 
 replevin. Id. 
 trespass vi et armis. Id. 
 by whom brought; 
 
 upon contracts. Id. 
 for wrongs. 8. 
 election of. 9. 
 joinder in ; 
 
 of causes. 10. 
 
 persons. 11.1 143. 
 limitation of. 13, &c. 1143, 
 notice of. 72, &c. 
 means of commencing; 
 in K. B. 61. 
 C. P. Id. (a). 
 Exchequer. 62. (a). 
 mixed. 1. 
 
 penal, ^tetxi. Penal mictions. 
 trifling. 118, 19. 465, Sec. 
 for costs. 275, 6. 905. 
 upon awards. 515. 755, 6, 7. 
 
 bail-bonds. 248. 511. 
 against sheriffs, Sec. 
 
 for an'escapc, and false return. 207, 8. 255, 6. 790. 
 monies levied; 933. 
 taking excessive poundage. 981. 
 relatingto the customs and excise, by whom brought. 468. 
 concerning lotteries. Id. 
 consolidating. See tit. Consolidating .Actions, 
 scire facias and error considered as actions. 982, 3. 1065. 
 
 1082. 
 -VDDING Pleas. See tit. Pleas and Pleading. 
 
 ADDI.
 
 INDEX. 
 
 ADDITIONS, statute of, 
 
 wuen it may be pleaded. 582, 
 ADJOURNMENT, 
 ofessoin. 105. 415. 
 
 execution of inquiry. 522. 
 day, in the Exchequer-chamber. 1123. 
 ADMINISTRATORS, See tit. Executors and Administratbrti . 
 de bonis ?ion; 
 
 scire facias by or against. 1030, 1. 
 ADMIRALTY-COURT, suits in. 17. 
 ADVOWSON, 
 
 in gross, not extendible on elegit. 940. 
 AFFIDAVITS, 
 
 of cause of action ; 
 
 in what cases requisite. 144, 5. 
 by whom made. 154. 
 before whom. 155, 6. 
 
 must contain the plaintiff's addition, &c. 154. 1146. 
 aliter of the defendant's. 155. 
 
 jurat of, when made by two or more deponents. Jd. 
 when made. 81. 
 where. 156. 
 how entitled. 155, 6. 
 common. 150. 1 146. 
 special. 151. 
 
 jiiust be direct and positive. 156. 
 certain and explicit. 158. 
 single. 164. 
 l)y an executor or administrator. 157. 
 assignee of bankrupt. Id. 
 bond. Id. 158. 
 for stipulated damages, &c. 159. * 
 
 in trover. 150. 
 on the lottery -act. Id. 161. 
 by the bank-acts ; 
 
 when made by the plaintiff. 1 16, 2. 1 146. 
 an agent. 163. 
 a partner. 164. 
 
 co-assignee of debt. Id. 
 an administrator. /(/. 
 assignee of bankrupt. Id. 1146, 
 need not now be very particular. 1 146, 7. 
 want of, or defect in; 165. 
 
 how cured. Id. 
 court will not go out of it. Id. 
 need not be made before an outlawry. 134. 
 being under 405. 465. 
 arising in a particular county, &c. 466, 7. 
 
 AFFIDA-
 
 INDEX. 
 
 AFFIDAVITS, 
 
 of execution of articles of clerkship. 37. 40. 
 service under same. 44. 
 payment of duty. Id. 45. 
 service of declaration in ejectment. 443, 4. 
 merits, to set aside regular judgments. 249. 440. 507, 8. 
 the truth of pleas in abatement. 587, 8. 
 the due execution of award, &c. 761. 
 service of copy of rule, 8cc. Id. 
 demand and refusal of costs. 699. 
 increased costs. 904, 5. 
 award oijieri facias. 930 (c). 
 notice, 8cc. on the lords' act. 966, 7. 
 signature of note, on same. 970. 
 on motions ; 
 
 when and how made. 449, 50. 
 title of. 250. {x). 450, 1. 
 before whom sworn. 451. 
 jurat of; 
 
 when made by illiterate persons. Id. 
 
 two or more deponents. Id. 45^. 
 supplementary. 444. 450. 
 office-copies of. 454. 
 on shewing cause; 45 5. 
 how intilled. 450, 1, 
 delivering over. 45 5. 
 filing. /J. 115 6. 
 for admitting a plaintiff to sue \n forma /lau/ieris. On. 
 an attachment against tlie sheriff; 
 
 for not returning the writ. 254. 
 
 bringing in the body. 260. 
 • setting aside proceedings, against the sheriff. 263. 
 
 staying proceedings, pending error. 471. 
 leave to enter up judgment, on an old warrant of atlor- 
 \ ney. 438, 9. 498, 9. 
 
 inspects books, Sec. 542. 
 compounding penal actions. 501. 
 changing venue. 553. 
 pleading double, not necessary. 611. 
 judgment as in case of a nonsuit: 706. 
 
 what if false. 707. 
 putting off trial. 708, 9. 
 
 making submission to arbitration a rule of court. 760. 
 attachment, for not perforniing award. Id. 761. 
 .setting aside aM'avd. 7.*^^. 
 
 AFFIDA-
 
 INDEX. 
 
 AFFIDAVITS, 
 
 for trials at bar. 768. 
 new trials: 821. 
 
 by jurymen, not received. 817. 
 additional day-rules. 962. 
 
 leave to issue a scire facias^ upon an old judgment. 439 
 
 (o). 1007. 
 rule to answer matters of. 59. 
 AFFIRMANCE-DAY, in the Exchequer-chamber. 1123. 
 AFFIRMATION, see tit. Quaker. 
 AGENT; 
 
 affidavit of debt by. 163. 
 
 service of clerkship to. 41, 2. 
 
 acting for unqualified persons. .'54, 5. 
 
 employment of, and how considered. 55. 1144. 
 
 notices to. 1144. 1 157. 
 
 delivering copy of bill to, against principal. 275 (o). 
 
 bills of, taxable. 281. 
 
 not necessary to be signed. Id. 
 AGREEMENT, 
 
 delivering copy of. 432. 
 to stay proceedings. 696, 7. 
 
 execution. 505. 1005. 
 not to bring a writ of error. 983, 4. 1052. 
 AID-PRAYER, 
 
 plea of, must be verified by affidavit. 587 (w). 
 AIEL and EESAIEL, damages on writs of. 799. 
 ALIAS, writs of. See tit. Ca. sa. Fieri facias, Jury-/irocesSf 
 
 Process, and Scire Jacias. 
 ALIEN BILL, discharge of bail on. 243. 
 enemy, plea of. 579. 
 
 not pleadable with non assuvi/isit. 609 (;;). 
 ALLOCATUR. 437, 8. 905. 
 
 ALLOWANCE, to prisoners on the lords' act. 969, 70. 
 of writs of certiorari and habeas cor/ius, 337. 
 fwne and rccordari, 8cc. 356. 
 writ of error. 1070. 
 AMBASSADORS. 167, 8. 
 AMENDMENTS, 439. 442. 
 
 at common law; 651, 2. 658, 9. 685. ^ 
 
 whilst proceedings are in paper. 652. 658, &c. ''i 
 
 in penal actions. 659, 60. I'V 
 
 of declarations; 391. 652, 3,4. i^ 
 
 in the title. 329. 368, 9. -.; 
 
 venue. 545. 652. («). / 
 
 before plea. 654. 
 
 AMEND-
 
 INDEX. 
 
 AMENDMENTS, 
 
 at common law ; 
 of declarations: 
 after plea; 654. 
 
 in abatement. 652. 
 of nut del record. LI. 
 second term. 653. 
 verdict. 652, 3. 
 against a prisoner. 652. (y). 
 in penal actions. 659, 60. 
 by adding a eount. 653. 
 
 alleging new right of action. /(/. 
 costs, 8cc. 654. 
 time to plead after. 426. 654. 
 rule to plead. 431, 2. 654. 
 of notice to declaration in ejectment. 444, 5. 
 rules of court. 461. 
 
 particulars of demand, or set-oft". 536, 7. 
 pleas, replications. Sec. 4 39. 442. 654, 5. 
 replication to sham plea, without costs. 657 {t). 
 by withdrawing replication, and replying de novo. 65S- 
 after demurrer or joinder. 656. 
 argument. Id. 657. 
 opinion of court given. 656 (.9). 
 by withdrawing demurrer, and. pleading or replying de 
 
 novo. 657, 8, 
 by statute; 651. 
 
 when proceedings are entered on record. 660. 685. 
 statutes of, what: 660, 1. 
 do not extend to criminal case s,^or penal actions. 661. 
 
 839, 40. 
 require something to amend by. 661. 
 after nonsuit, for defect in bill of particulars. 537 (c). 
 error; 662. 
 
 when, where, and how made. Id. 663, 4. 
 of proceedings in inferior courts. 664. 
 costs on. Id. 
 «f original writ. 104. 661. 
 
 mesne process; 83. 91. 125. 402. 660. 
 when not allowed: 402 (z). 
 
 in inferior courts. 66 1 . 
 bill; Id. 
 
 against an attorney. 274. 295. 
 mcmoraudun:. Id. 
 declaration and pleadings. Vide suf>ra, 
 writ of inquiry. 513, 14. 
 
 AMEND-
 
 INDEX. 
 
 AMENDMENTS, 
 
 of nisi firius roll .661. 
 jury-process. 836, Sec. 
 postea. 661, 2. 802. 811, 12. 
 special verdict. 661,2.807. 
 
 case. 810. 
 judgment. 662. 858. 862, 3. 
 execution. 486. 662. 956. 1028. 
 docket, or list o^ committiturs. 322. 
 scire facias. 1036, 7. 
 writs of error. 1093, &c. 
 certiorai'i. 1111. 
 not actually made, on the 16 8c 17 Car. II. c 8. 840. 
 AMERCEMENT, 
 
 of sheriff, for not bringing in the body. 256. 
 
 disused, and why- Jd. 
 firofalso clamore. 796. 890. 
 AMOVE AS M.A^NUS. 143. 
 ANCESTOR and HEIR. See tit. Heir. 
 ANCIENT-DEMESNE. 357. 573. 
 ANNUITY, 
 action of; 4. 
 
 not within the statute of limitations. 16. 
 process in. 105. 
 declaration in. 376. 
 judgment in. 842. 101 1. 
 
 saVf-yaaas for subsequent arrears, 1000. 1010, II 
 motion to set aside ; 445. 983. 
 by whom made. 446, 7. 
 after what time. 448. 
 
 when the court will order the deeds, Sec. to be cancelled. 
 
 447. 491. 
 in what cases they will not interfere. 447, 8, 9. 
 objections must be stated in the rule nisi. 449. 
 bond, staying proceedings on. 485, 6. 
 pleadings in action on. 638, 9. 
 
 within the Stat. 8 Sc 9 W. III. c. 11. § 8. 511. 1012. 
 motion for leave to take out execution. 1011. 
 scire facias, when necessary for subsequent arrears. Id- 
 APPEAL. 268. 
 APPEARANCE, 
 
 in person. 35. 62, 3. 
 by attorney. Id. 105. 139, 40. 213, 14. 
 prochein amy. 69.' 
 guardian. 70. 
 
 APPEAR
 
 INDEX, 
 
 APPEARANCE, 
 
 of the defendant; 
 what. 210. 
 
 different from bail. Id. 
 voluntary or compulsive. Id. 
 by original; 100. 105, 6. 
 
 with whom, and when entered. 210, 11 
 upon the cafiias, &c. 213. 
 common or special. 211. 1 1 50. 
 to reverse an outlawry. 139, 40. 
 on a removal hy fione or rccordari, &c. 359. 
 in scire facias. See tit. Scire Facias. 
 APPEARANCE-DAY. 101. 
 APPOINTMENT, by the Master, 
 
 to tax costs, on a rule to bring money into court. 569- 
 discontinue. 629. 
 nominate a special jury. 72. 
 attendance on. 57. 286. 
 ARBITRATION, 
 what. 743 (c). 
 submission to; 
 
 where a cause is depending: 743. 
 
 by rule of court' Id. 744, 5. 757. 759, 60- 
 order o{ nisi firius. 743. 
 where no cause is depending: 743, 4. 
 by agreement of parties; Id. 
 in writing. 744. 
 by parol. Id. 746. 
 what submissions are within the stat. 9 Sc 10 W. TIL 
 intent of that act. 745. c. 15.746,7. 
 
 Upon inclosure acts. 744. 
 in what manner, and by whom made. 747. 
 how far a stay of proceedings. 748. 
 effect of agreement to refer. Id. 
 when and how determined, or revoked. Id. 749. 
 consequences of revoking. 749. 
 swearing witnesses, appointment, 8cc. Id. 750. 
 chusing umpire. 730. 
 
 enlarging time for making award : 442. 750, 1. 
 motion and rule for, when and how made. 442. 751 
 privilege from arrest, during attendance on. 175 (a), 
 award ; 751. 
 
 by whom made, on a reference to several. 750. 
 general requisites of : 75 1. 
 certainty. Id. 
 Vol. II. 3 R ARBI-
 
 INDEX. 
 
 ARBITRATION, 
 
 award; 
 
 when final. 751, 2. 
 
 good in part, and bad in part. 751. 
 
 enforcing; 
 
 by action: 755, 6, 
 
 where the award is not made within the limited 
 
 time. 756, 
 venue cannot be changed in. 545 (a), 
 by attachment: 757. 
 
 in what cases granted. 757, 8. 
 for costs of reference. 757. 
 after a foreign attachment in London. 759 
 against peers, Sec. 757. 
 bankrupts. 758. 
 ' feme-coverts. Id. 
 
 executors and administrators. 758, 9. 
 on copy of award. 757. 
 
 making submission a rule of court: 445. 75 1 . 75&» 
 
 60. 
 affidavit for. 760. 
 demand of money, &c. Id. 
 
 by whom and how made. Id. 
 service of copy of rule, and award. Sec. Id. 1 159. 
 motion and rule for, when and how made. 438, 
 
 760, 1. 
 affidavit in support of. 76 1 . 
 quaker's affirmation. Id. 
 ''vhat may be shewn for cause against attachment, 
 
 and why: 764, 5 = 
 illegality of award. Id. 
 by signing judgment, and taking out execution. 755. 
 
 762.910. 1159. 1162. 
 setting aside; 76 S. 
 by what means. Id. 
 grounds of: Id. 
 
 for an improper stamp. 7^3, 
 on an inclosure act. Id. 
 motion for, and when and by whom made: 442. 452, 
 
 762, &c. 1159, 
 affidavit on. 762. 
 costs of reference; 752, Sec. 
 
 where the submission is silent respecting them. 752. 
 they are to abide the event of award. Id. 753. 
 in the discretion of ar^jitrator. 753, 4. 
 taxing. 754, 5, 
 
 ARBI-
 
 INDEX 
 
 .ARBITRATION, 
 
 award; 
 
 pleadings on. 592.638. 
 
 bail in error, in debt on bond for performance of. 1077 
 ARGUMENT, of demurrers. See tit. Demurrers. 
 
 writs of error. 1125, 6 , 
 ARRAY, challenging. See tit. Jur-y. 
 ARREST, 
 
 at common law. 122. 
 
 by statute. Id. 
 
 previous to, and on the statute 12 Geo. I. c. 29. 144 
 
 cases provided for by the above statute. 146. 
 changes it has undergone. Jd. 
 in Wales. 150. 
 
 counties palat'me. Id. 
 when allowed of course. Id, 
 in trover. Id. 151. 
 
 when not allowed, without special order. 151, 
 in debs on statute. 152. 
 
 judgment. 153, 186, Sec. 1148. 
 recognisance of bail. 152. 995, 
 bail or replevin bond. 153. 
 upon an award. 187. 
 for what sum ; 
 
 in debt on bond, for payment of money. 153. 
 
 performance of covenants, &g. Id. 
 
 154. 
 where there have been mutual dealings.- 154. 
 for more than the sum due, consequences of. 1 156. 1161 
 affidavit in support of. See tit. Affidavits. 
 privileges from; 
 
 of the Royal Family. 167. 
 
 servants of the King's household. Id. 
 ambassadors, and their domestic servants. Id. 168,9 
 peers and peeresses, and their servants. 169, 70. 
 members of the House of Commons. 170, 1. 
 
 convocation, and their servants. 171 
 corpoi'ations aggregate. Id. 
 hundredors. Id. 
 
 attornies and officers of the court. Id. 
 executors and administrators. 172. 
 married women. 173. 
 
 parties to the suit, and their witnesses. 174. 188,' 
 seamen. 175, 6. 
 soldiers. 177, 8, ARREST,
 
 INDEX, 
 
 ARREST, 
 
 privileges from; 
 
 of bankrupts. 179, 8cc. 
 
 insolvent debtors, and fugitives. 182, 3. 
 how taken advantage of. 183. 
 of insane persons. 183, 4. 
 not allowed twice, for the same cause. 184. 186.1147.. 
 
 exceptions to this rule. Id. 185. 
 abroad. Id. 184, 5. 
 after a nc)72/2ro*. 185. 
 
 discontinuance. Id. 186. 
 siifiersedtas. 186. 
 in what places: 188, 
 
 of clergymen. Id. ^ 
 
 of the king's debtor, &c. 189. ; 
 
 at what time. 189, &c. -g 
 
 how made. 93. ■■{, 
 
 by whom. 19), 2. 
 when. 193. 
 where: 192. ' 
 
 within a liberty. Id. 
 by what authority. 191, 2, 3. 
 consequences of. 194. 
 upon the cjcigi facias. 130. 
 
 cu/iias utlagatum. 131, 2. 
 proceedings on, under stat. 43 G. IIL c. 46. § 2. 1 148, 9, 
 
 50. 
 ARREST of JUDGMENT, 
 
 ground and mode of taking advantage of. 824, 5. 
 motion in, when and how made. 840. 
 
 not allowed, after judgment on demurrer. 825. 
 
 nor for any thing that is aided or amendable. 826. 
 in an action for words. 831 (t^). 
 costs on. See tit. Costs. 
 limitation of actions after. 15, 16. 
 yVRTICLES of Clerkship. See tit. Attornies. 
 ASPORTAVIT, costs on. 881, 2. 
 ASSAULT and BATTERY, 
 actions for; 7. 
 limitation of. 15. 
 declaration in. 393. 
 costs in. vSee tit. Costs. 
 ASSETS infuturo. See tit. Executors and Administrators. 
 ASSIGNEE of debt. 
 
 affidavit of debt by. 157, 8. 
 ASSIGNMENT of errors. See tit. -Error. 
 
 ASSIZE,
 
 INDEX 
 
 ASSIZE, damages in. 799. 
 ASSUMPSIT, 
 
 actions of; 2, 3, 4. 9, 10. 96. 
 upon promises, express. 2. 
 implied: 3, 4. 
 
 common assumfiaits. 3. 
 limitation of. 15. 18, &c. 
 arrest in. I5l. 
 declaration in. 378, &c. 
 
 staying proceedings in, on paymentof debt and costs. 482. 
 assessing damages in, without a writ of inquiry. 514, 15, 
 
 16. 
 particulars of demand in. 534, 5. 
 bringing money into court in. 562, 3. 
 pleas in. 591, 2, 3. 
 judgment in. 842. 
 damages in ; 
 
 how ascertained. 842 (n). 
 when some defendants are acquitted. 803. 
 costs in. See tit. Costs. 
 execution in. 911. 
 
 contribution after recovery in. 805 (v). 
 ASSURANCE. See tit. Po^Ci/ of Insurance. 
 ATTACHIVIENT, 
 
 of privilege. 24, 5. 28. 61, 62 (a). 264. 271. 
 of goods; 
 
 in trespass. 78. 
 by original. 106. 
 of the person; 
 against peers, 8cc. 
 when it lies. 738. 
 when not. 170, 1. 757. 
 against gaolers, Sccon the lords' act. 207. 
 sheriffs, &c. 
 
 for not returning the writ. 254. 261, 2. 437. 
 bringing in the body; 260, I, &;c. 437. 
 orij^in of. 256. 
 non-payment of money. 138. 
 to whom directed. 261. 
 
 may be moved for the last day of term. 262. 452. 
 proceedings thereon. 262, 3. 
 against attornies; 
 
 for not performing undertakings. 58. 199. 200. 213. 
 
 437. 
 delivering up deeds. 57, 8. 
 
 ATTACH-
 
 INDEX. 
 
 ATTACHMENT, 
 
 of the person; 
 against atttornies; 
 for practising in another's name, without his consent 
 
 55. 
 general misbehaviour. 59. 437. 
 proceedings thereon. 59, 
 against the parties to the suit; 
 
 on a subfixna, in the Exchequer; 62 (c)^ 
 
 with a clause of proclamation. Id. 
 for non-payment of costs : 
 
 when it lies. 438. 457. 905, 6. 
 when not. 488. 569. 629. 
 absolute in the first instance. 438. 906. 
 may be moved for the last day of term. 452. 906. 
 for non-payment of composition-money, in a penal ac- 
 tion. 502. 
 not peforming an award. See tit. Arbitration. 
 against other persons; 
 
 for speaking contemptuous words of the court, or its 
 
 process. 149. 437, 
 a rescue: 209. 437. 
 
 how returnable. 209. 261, 2. 
 ' disobedience to a subjixna^ or other process. 86. S37J 
 
 356. 437.738, 9. 
 motions and affidavits for, how entitled. 450. 
 when it may be executed on a Sunday. 191. 438. 
 for contempt, not bailable. 59. 196. 
 out of Chancery, bail on: 196 (d). 
 on mesne process. Id. 
 after a decree. Id. 
 prisoner in custody on, how charged. 306, 
 ATTAINDER, 
 
 of treason or felony, plea of. 579. 
 ATTAINT, 
 
 writ of; 815. 
 
 when it lies. 516, 17. 
 ATTORNIES, 
 what. 34. 
 
 admission of: 35. 46. 
 previous qualifications; 
 articlesof clerkship. 36. 
 affidavit of execution. 37, S . 
 stamp-duty on. 39. 
 restrictions. 40, Iv 
 
 ATTORv
 
 INDEX. 
 
 ATTORNIES, 
 admission of: 
 previous qualifications; 
 service ; 
 
 in general. 41, 2. 
 to an agent. 42. 
 in case of death, Sec. Id. 43. 
 notice of application to be admitted. 4S, 4. 
 affidavit of service. 44. 
 
 payment of duty. Id. 45. 
 examination. 35. 46. 
 oath or affirmation. 45. 
 inrolment. 46. 
 
 entry of name and place of abode. 47. 
 certificate of admission and inrolment. 49. 51, 2. 
 may be admitted of different courts. 52. 
 
 practise in the names of other attornies. Id. 53. 
 not to suffer unqualified persons to vise their names. 53, 4, 5. 
 and agents, their relation considered. 55. 
 privileges of; 
 
 to sue by attachment of privilege. 28. 864, 5. 
 
 be sued by bill. Id. 
 not to be arrested: 171, 2,265. 
 
 remedy thereon. Id. 
 not to pay for copies of the pleadings. 678, 9. 
 
 issue-money. 679. 
 •with regard to the venue. 264. 550. 
 trials at bar. 265.768. 
 offices. 265, 6. 
 when not allowed. 266. 
 as against each other. Id. 267. 
 waiver of. 267, 8. 
 mode of proceeding by attachment of privilege; 61, 62 (a). 
 
 what. 271. 
 
 how sued out. Id. 272. 
 arrest thereon. 272. 
 time for d»claring. 273. 
 pleading. Id. 
 by bill; 25. 61, 2 (a). 
 
 what. 273. 
 its commencement. 376. 
 conclusion. 273. 401. 
 
 ATTOR'
 
 INDEX. 
 
 ATTORNIES, 
 
 mode of proceeding by bill ; 
 
 when and how filed: 273, 4. 
 
 in vacation. Id. 
 amendment of. 274. 
 copy of; 
 
 when delivered. 275. 
 to whom. Id. 
 
 sticking up in the office. Id. 
 time for pleading. 274, 5. 
 by cafiias of privilege, in the Exche-r 
 quer. 62 (a). 
 plea of privilege by. 46, 7. 172 (A). 579. 
 disabihties and restrictions of: 
 
 cannot be bail, or lessee in ejectment, &c. 230. 269. 
 a justice of the peace. 269. 
 commissioner of the land-tax. Id. 
 incapable of prosecuting actions, when in prison. Id. 
 
 270. 
 appearance by; 35. 62, 3, 4. 
 
 without warrant. 64. 470. 
 withdrawing themselves. 64. 
 cannot be changed, without leave. Id. 983. 1094. 
 dying. 65. 
 
 warrant of. See tit. Warrant of Attorney. 
 affidavit sworn before. 451. 
 
 when necessary to be present, on executing warrant of 
 
 attorney. 492, &c. 
 undertaking to appear ; 
 
 in bailable actions. 199,200. 
 on common process. 213. 
 to reverse an outlawry. 1 34. 
 duties of; 55. 
 
 to appear in court. 57. 
 
 attend on motions, &c. Id. 
 compellable to deliver up deeds, &c. on payment of costs. 
 
 57, 8 
 consequences of misconduct of; 
 
 action for damages. 56. 861. 
 payment of costs. 58. 
 attachment. 58, 9. 437. 
 striking off the roll. 60. 
 may be struck off the roll, at their own instance. Id. 
 re-admitted. Id. 
 
 ATTOR- 
 
 i
 
 INDEX. 
 
 ATTORNIES, 
 
 costs of; 
 
 action for. 275. 
 delivering bill of: 276. 
 how far conclusive. 285. 
 in what cases it may be taxed. 291, 2. 
 at what time. 283, 4. 
 mode of taxing it. 285, 6. 
 costs of taxation. 286. 
 evidence of. Id. 
 lien for the balance. 287, 8. 
 payable by attorney, for neglect. 58. 
 interest on bill of, not allowed in error. 11 33. 
 clerks of; 35, &c. 
 
 using name of regular attorney, without his consent. 5^i. 
 not allowed to be bail; 230. 
 
 except for rendering. 231 (y). 
 affidavits sworn before. 451. 
 ATTORNMENT. 618. 827. 
 AVERMENT; See tit. Declaration. 
 
 writ of. 107. 
 AUDITA-QUERELA; 
 
 remedy by. 984. 1029. 1043. 1048 
 pleas in. 622. 
 
 issues and demurrers. 666. 
 AUTER-ACTION Pendent, plea of. 583. 
 AWARD; See tit. Arbitration. 
 
 pleaded, after the last continuance. 775 
 
 B. 
 
 BAIL, 
 
 to the sheriff; 194. 
 
 on an attachment out of chancery: 196 (tT). 
 on mesne process. Id. 
 after a decree. Id. 
 cannot be taken, on an attachment for contempt. 59, 
 
 196.. 
 indictment for misdemeanor. 
 195, 6. 
 how far liable. 250. 
 execution against. Id. 
 when and how discharged; 
 by death. 251. 
 Vol. II. S S BAH.,
 
 INDEX. 
 
 BAIL, 
 
 to the sheriff; 
 
 when and how discharged; 
 by bankruptcy. Id. 
 render. 236. 251,2. 
 to the action; 194. 
 
 common or special. Id. 
 history of. 211. 
 governed by the arrest. 212. 
 
 necessary to be filed, for supporting the proceedings. 
 
 211. 291, 
 common; 151. 165. 186, 211. 291. 324, 5, 6. 
 when and how filed, by the defendant. 212. 
 by the defendant's attorney. 213. 
 by the plaintiff, according to the statute: 214. 
 will not entitle a third person to declare by the 
 
 bye. 36G. 
 under Stat. 43 G. III. c. 46. § 2. 1150. 
 nunc pro tunc. 214. 
 filing it, formerly. 215. 
 penalty for not filing it. 212 (/?). 
 motion for discharging defendant on. 440, 
 special; 149, 50. 216. 328. 
 by whom put in. 216, 17. 
 when; 217. 
 
 before or after return of writ. Id. 
 in what court, on^a removal before declaration. 300 (r^. 
 before whom. 217. 
 how, on a misnomer. 582 (z). 
 recognisance of. See tit. Recognisance. 
 before a commissioner. 220. 
 absolute or de bene esse. 221. 
 
 origin of. de bene esse. Id. (y). 
 notice of; 222. 
 
 unnecessary in the common pleas. 223 (Aj 
 after the bail-bond is forfeited. 249. 
 exception to; 223, 4. 
 
 when necessary, to fix tlie sheriff. 257, 8 
 notice of exception. 224. 257. 
 time allowed to add and justify. 224, 5. 
 further time. 231, 2. 
 adding. 224, 5. 257, 8. 
 novice of justification; 225, 6. 
 
 affidavit of service of. 228. 
 justifying; 226, &c. 440. 
 at what hour. 22*3. 
 
 BAIL,
 
 INDEX, 
 
 BAIL, 
 
 special ; 
 justifying; 
 
 in person, or by affidavit. 226. 
 where the same persons are bail in several actions. 
 
 227 (w). 
 need not justify, to render. 235, 6. 
 grounds of opposing. 228, &c. 
 assuming feigned names. 228. 
 personating others. 229. 
 rule of allowance. 232. 
 where the defendant is a prisoner: 233. 
 
 in vacation. 233. 
 upon a certiorari or habeas corfius: 342. 
 
 when and how put in, excepted to, and justified. 
 
 343, Sec. 
 upon an attachment of privilege. 272. 
 exigi facias. 130, 1. 
 capias utlagatuvi. 132, 3. 
 reversing an outlawry. 140, 1. 
 how far liable ; 
 
 upon a cefii corfius. 220. 225. 233, See. 
 habeas corfms. 345, 6. 
 may take their principal at anytime. 180. 190, 1. 
 privileged from arrest, eundo, 8cc. 174. 
 when and how discharged; 
 
 by declaring for a different cause of action, or in a dif- 
 ferent county. 242, 3. 992, 3. 
 by render: 225. 
 
 at what time it may be made; 235, £cc. 995. 1045. 
 before judgment: 235. 
 
 without justifying. Id. 236. 
 
 as between plaintiff and sheriff. Id. 
 
 sheriff's bail. 236. 
 after judgment. 236, 8cc. 
 in what cases it may be pleaded. 238. 1044. 
 notice of; 240, 1. 
 
 affidavit of service. Id. 
 when not given in time. 241. 
 entry in the marshal's book: 242. 
 
 oiexonrretur on the bail-piece. 241, 3, 4. 
 by death or bankruptcy of the defendant, &c. 243. 
 
 1044, 5. 
 reference to arbitration. 993. 
 on removing a cause from an inferior court. 336. 
 
 BAIL,
 
 INDEX. 
 
 BAIL, 
 
 special ; 
 -'proceedings against; 
 
 by action of debt. 471. 995, 6. 
 
 scire facias. Jcl. and see tit. Scire Facias. 
 staying, pending error. 471, &:c. 474, 5. 
 execution against, in scire facias. 1049, 50. 
 error by. 1053. 
 
 certiorari for, how directed. 11 10 (u). 
 in error ; 
 
 in what cases required : 
 at common law. 1074. 
 by statute; 
 
 after judgment by default, &c. 1075, Sec- 
 verdict: 1080. 
 
 in dower and ejectment. 1081. 
 against executors and administrators. IG82. 
 on a writ of error coram nobis. 1083. 
 Avhen, where, and how put in. 1084, 5. 
 recognisance of. See tit. Recognisance. 
 cannot render, nor are discharged by bankruptcy. 
 
 1086,7, 
 nor by taking principal in execution. 1087 (o). 
 notice of. 1087. 
 
 exception to, and rule for better bail. Id. 
 adding and justifying: Id. 
 
 notice of. 1088 (w), 
 consequence of not puting in and perfecting. 1087,-^, 
 proceedings against ; 
 
 by action of debt. 998. 
 
 scire facias. Id. and see tit. Scire facias.. 
 not liable for interest, on affirmance. 1 133. 
 BAIL-BOND, 
 form of. 197. 
 
 on a misnomer in process. 582 (i). 
 
 v/hen good, though the condition vary from the ^vrit. 19.8. 
 void, consequence of. 253. 
 assignment of; 
 
 in what cases taken, and in what not. 245. 251. 
 at what time it may be taken. 247. 
 by whom made. 248. 
 action on, must be brought in the same court. Id, 
 
 not within the stat. 8 & 9 JV. III. c. 1 1. § 8. 5 U. 
 setting aside proceedings on, for irregularity. 248 9 . 
 motion for delivering it up to be cancelled. 440. 
 staying proceedings on terms. 249. 440, 1. 483. 
 
 BAIL-
 
 INDEX. 
 
 BAIL-BOND, 
 
 staying proceedings on terms; 
 motion for. 441 («). 
 
 rule or summons, how entitled. 249, 50 (xy. 
 upon a capias utlagatum. 133. 
 pleadings in actions on, 196, 7, 8. 596. 
 BAILIFFS, 33, 4. 
 in fee. 191. 
 special. Id. 192. 253. 
 of a liberty: 33. 192. 204. 
 
 punishable for misbehaviour. 33, 4. 
 proceedings against, for a false return. 257. 
 
 to compel bringing in the body . Jrf. 
 BAILMENT. 4. 
 BAIL-PIECE, 
 
 common. 213. 215. 326. 
 special: 219, 20, 21. 
 
 when transmitted. 221. 
 
 filed, upon an acceptance of the bail. 223. 
 for want of an exception. 224. 
 after justification. 232. 
 on a habeas cor/ius. 343, 4. 
 exoneretur on. 240, 1, &c. 
 BALLOTING-ACT. 722, &c. 781, 2. 
 BANK-ACTS, 
 
 affidavit required by. 161, 8cc. 
 BANK-NOTES, cannot be taken in execution. 917. 
 
 books of, inspecting, 539, 
 BANKRUPT, 
 
 actions by assignees of. 8. 12, 13. 376. 
 affidavit of debt by assignee of. 157. 164. 
 privilege from arrest of; 
 
 in coming to surrender. Sec. 179, 80. 
 before or after certificate. 180, 1, 2. 
 future effects of, how far liable. 1013, 14. 
 jincertificated, cannot be bail. 229. 
 
 not required to give security for costs. 477 (/). 
 bail of, how discharged, 240. 243. 1044. 
 time enlarged for rendering. 237 (m). 
 set-off in actions by or against assignees of. 605, 6. 
 liable to costs, for false pleading. 182. 
 not liable to attachment, for not performing award. 758. 
 in what cases the assignees may proceed to judgment and 
 execution in bankrupt's name. 849. 1023, 4. 
 
 BANK-
 
 INDEX. 
 
 BANKRUPT, 
 
 judgments against, how affected by bankruptcy. 852, o. 
 
 executions against. 922 3. 1014, 15. 
 
 scire facias by, as executor or administrator. 1030. 
 
 for assignees of, when necessary. 1023, 4. 
 BANKRUPTCY, 
 commission of; 
 
 privilege of witnesses, &c. from arrest on. 175 (a). 
 against a defendant in execution; 
 efTect of. 957. 
 plea of, in deftndant; 
 
 need not be signed or filed, in K. B. 621, 2. 
 must be signed in C. P. 622. (/i). 
 in one of several defendants. 632. 
 
 plaintiff, after the last continuance. 775. 
 may be pleaded in trover. 598, 
 of principal, cannot be pleaded by bail. 1044 (e). 
 before affirmance, no discharge of bail in error. 1086, 7. 
 in what cases an abatement of a writ of error. 1098, 9. 
 BAR. Pleas in. See tit. Pleas and Pleading. 
 trials at. See tit. Trials. 
 substantially bad, not cured by verdict. 828. 
 BARC;N : nd FEME, 
 
 actions by or against; 9. 
 
 limitation of. 16. 
 affidavit of debt by feme-eovert. 154. 158. 
 arrest of, upon mesne process. 173. 
 
 process of execution. 174. 
 service of process on. 149. 
 
 Avarrant of attorney by or to a feme-covert. 492. 496, 7. ' 
 set off in actions by or against. 605. 
 whether liable to attachment, for not performing an award. 
 
 758. 
 when the wife's goods may be taken, on an execution 
 
 against the husband. 923, 4, 
 scire facias hy or against. 1021, &c. 1030. 
 exTor by. 1052,3. 1056. 1107. 
 
 marriage of feme, in what cases an abatement of a writ of 
 
 error. 1099. 
 BENEFICED CLERK. See tit. Clergymen. 
 BER WICK-upon-Tweed ; 
 
 dirc;ction of process into. 86. 
 changing venue. 552. 
 award o{ venire facias. 674. 
 trial. 771, 2. 
 
 BILL,
 
 INDEX. 
 
 BILL, 
 
 jurisdiction of court by. 28. 
 
 against attornies. Sec. 25. 61, 2. 11. 264, 5. 2/3. 
 
 members of the house of commons. 25. 61, 2, 11. 
 
 110. 113, 14. 
 unprivileged persons. 1 1 1 {b). 
 prisoners, in the actual or supposed custody of the 
 marshal. 28,9. 61. 290. 
 in the Fleet. 62 (a). 
 when actually filed, and when not. 291, 2. 
 how far considered as the commencement of the 
 
 suit. 292. 
 against prisoners, in the actual custody of the marshal. 25. 
 
 61. 77.303. 
 amendments of, or by. 294, 5.390, 1. 661. 
 want of, aided by verdict. 832. 1113. 
 
 error, after judgment by default, &c. Id. 
 how assigned. 1 108. 
 certiorari for ; 1109, 10. 
 
 proceedings thereon. 1111. 
 BILL of Costs. See tit. Costs and Jttornies. 
 J\liddlesex . See tit. Process. 
 Particulars. See tit. Particulars. 
 BILLS of Exceptions, 
 
 what, and how they arise. 785, &c. 
 
 grounds of. 786, 7. 
 
 in what cases allowable, and in what not. Id, 788. 791. 
 
 must be tendered at trial. 788. 
 
 forms of. 788,9, 90. 
 
 sealing. 790. 
 
 proceedings on: 
 
 writ of error. 790, 1, 
 
 to confess or deny seal. 79 I 
 judgment. Id. 
 BILLS of Exchange and Promissory Notes; 
 affidavitof debt on. 157. 
 staying proceedings on. 482. 
 
 assessing damages on, without a writ of inquiry. 514, &c. 
 evidence of, on execution of inquiry. 523. 
 delivering copies of. 532. 
 venue cannot be changed, in actions on. 547. 
 cannot be se*^ off. if indorsed after bankruptcy. 606. 
 notice ot indorsement of. 38'J. 
 
 demand and refusal by acceptor, must be laid ir. action 
 
 against indorser. 827. 
 notice to produce in trover. 736. 
 
 BLACK-
 
 INDEX. 
 
 BLACK-ACT. 116, 17. 119. 
 BLANK-WRITS; 
 
 not to be sealed. 33 (t). 
 BO ARD of Greencloth. 188. 
 BONA NOTABILIA. 546, 7. 
 BOND; 
 
 staying proceedings in actions on. 483. 
 
 assessing damages in actions on. 508, 8cc. 511. 
 BOOKS. See tit. Insfiecting Books, &c. 
 BOTTOMREE-BOND, action on; 
 
 assessing damages in, without a writ of inquiry. 516. 
 
 bail in error in. 1077. 
 BREACHES; 
 
 negative or affirmative. 389. 
 
 how assigned. Id. 390. 637 (i}. 
 BRIBERY. 468. 
 BRIEF. 774. 
 BRINGING Money into Court. See tit. Money. 
 
 CANAL-ACT, distress for money due on, not within the stat. 
 
 11 Geo. II. c. 19. § 22. 891. 
 CAPIAS AD RESPONDENDUM, 
 
 when it lies. 122. 172. 
 
 against whom it does not lie. 110. 122. 
 
 special, in K. B. 122,3. 
 
 quare clausumf regit, in C P. 61, 2. 
 
 of privilege, in the Exchequer. 6? 
 
 alias ^ 
 
 ^^^""'* I catiias. 123,4. 
 
 testatum 1 
 
 non otnittas -' 
 
 teste and return of. 86 (a) 124. 
 
 amendment of. 125. 
 
 bailable. 150. 
 
 not bailable. 146. 
 
 common or serviceable. /<:/. (oJ). 
 
 CAPIAS AD SATISFACIENDUM. 9iiJ. 
 
 generally; 953, 4. 
 
 when it lies. 954. 1004. 
 
 against whom. 954. 1049. 
 
 form of. 955. 
 
 CAPIAr>
 
 INDEX. 
 
 CAPIAS AD SATISFACIENDUM; 
 
 generally; 
 
 for the residue. 955. 
 signing and sealing. Id. 
 teste and return: Id. 956. 
 
 by original. Id. 
 amendment. 956. 1028. 
 returns to. 956. 993. 
 alias & testatum. 956, 7 . 
 non omittas. Id. 
 process of outlawry. 127. 957. 
 how far considered as a satisfaction; ^7, 8. 1046. 
 generally. 957. 
 as against third persons. 958. 
 after defendant's death. Id. 959. 
 
 escape or I'escue. 960. 
 discharge on lords* act. 978. 
 to charge bail; 993. 
 direction. 994. 
 teste and return. Id. 
 
 must lie four days in the sheriff's office. Id. 
 cannot be sued out, or returned, pending error. 1071, 2.- 
 want of, in what cases pleadable. 1044. 
 against peers of the realm. 115. 
 si laicus. 949. 
 
 for charging defendant in execution, in a county gaol. 322. 
 prisoners on. See tit. Prisoners. 
 CAPIAS utlagatum; 
 general. 131, 2. 
 special. 135. 
 CAPIATUR, 
 
 want or wrong addition of, aided. 865. 
 CARRIERS, actions against; 7. 
 
 declarations in. 399. 
 pleas in. 580, 1. 
 CASE, 
 
 actions upon; 5, See. 10. 374. 
 limitation of 15. 
 process in. 122. 
 
 declaration in. 377. 390. 392, 5cc. 
 pleas in. 598. 
 judgment in. 842. 
 costs in. See tit. Costs. 
 execution in. 911. 
 special. See tit. Sfiecial Case. 
 Vol. it. 3 T CASES,
 
 INDEX. 
 
 CASES, in the House of Lords. 1 125. 
 CASSETUR billa vd breve^ entry of; 633. 841. 
 
 declaring- after. 365. 
 CERTAINTY, 
 
 in pleading. 405. 618. 776. 
 
 awards. 751. 
 CERTIFICATES, 
 
 of attornies. See tit. Attomies. 
 
 for costs; 
 
 on the 43 Eliz. c. 6. 615. 871. 
 
 7 Jac. I. c. 5. 904. 
 
 22 & 23 Car. II. c. 9. 879, &c. 884. 
 
 8 & 9 W. III. c. 11. § 1. 900, 1. 
 
 § 4. 884. 887. 
 4 Sc 5 Ann. c. 16. § 5.617. 
 CERTIFYING Record. See tit. Error. 
 CERTIORARI, 
 
 what, and when it lies. 329. 335. 1051. 
 before judgment. 330. 
 after judgment. Id. 331, 2. 
 out of what court it issues. 333. 692. 
 to what court. 334. 
 direction. Id. 
 form of. Id. 
 teste and return. 335. 
 quashing and superseding. Id. 
 effect of. 337. 
 receipt and allowance: Id. 
 
 in what stage of the cause. Id. 338, 9. 
 in causes under five pounds. 339. 
 ten pounds. 340. 
 return of; 
 
 when and how made. 341. 
 to what officer. 1091. 
 effect of fihng. 348. 
 bail on; 342. 
 
 when and how put in, excepted to and justified. 343, 
 
 &c. 
 firocede7ido; 
 
 what, and when it lies. 346, &c. 
 camiot be granted after return filed. 348. 
 nor after cause remanded. Id. 349. 
 declaration on; 349. 
 
 de novo. Id. 350. CER- 
 
 il
 
 INDEX. 
 
 CERTIORARI, 
 
 and mittimus; 333. 691. 
 what. 691. 
 
 when the record must be certified, or only the tenor. 
 
 691,2. 
 form o^ scire facias, after removal by. 331. 1008, 9. 
 in error; 1068. 
 firacijie for. 1110. 
 
 by the plaintiff', to verify his eiTors. 1 104 (d). 1 109, &c. 
 
 1114. 
 by the defendant, to disprove them. 102, 3. 662, 3. 1 1 14, 
 
 &c. 1120. 
 by the court, for their own information. 1119, 20. 
 CESSET Executio. 804. 1005. 
 
 Processus. 706, 7. 
 CESTUI que trust. 605. 923. 939, 40. 
 CHALLENGE of Jurors; See tit. Jurij. 
 
 over-ruling, ground for bill of exceptions. 786, 7. 
 CHESTER. See tit. County iialatine. 
 CHRISTIAN-NAMES. 402. 
 CHURCHWARDENS. 76. 
 CINQUE-PORTS. 86. 573. 1058,9. 
 CIRCUITS; 99. 
 
 officers of. 34. 
 CLERGYMEN, 
 
 arrest of. 188, 9. 
 proceedings against. 93 1, 2. 
 CLERK of the Declarations; 
 
 his duty, 8cc. 274 {n). 
 of the peace; 
 
 cannot act as an attorney. 269. 
 COGNOVIT ACTIONEM, what. 503. 
 need not be stamped. Id. (c). 
 before or after plea: Id. 
 
 relictd verijicatione. Id. 
 objects of. Id. 
 
 when and how made: Id. 504. 
 upon terms. 504, 5. 
 withdrawing plea. 504. 
 of the whole, or part of cause of action. Id. 
 
 proceedings on each. Id. 
 waiver of irregularity. 214, 15. 508. 
 by principal, does not discharge bail. 244. 922. 
 costs on, after argument of special case, and new trial or- 
 dered. 810, 11. 
 COLOUR,
 
 INDEX. 
 
 COLOUR, in pleading; 
 implied. 599, 600. 
 express. 600, 1. 
 
 want of, aided by statute of jeofails. 834. 
 COMMISSION of bankrupt. See tit. BaJikruJitcy . 
 
 of rebellion, in the Exchequer. 62 (a). 
 COMMISSIONERS, for taking affidavits. 155, 6. 
 
 recognisancesof bail. 217, &c. 
 of the stamp-office. 440. 533. 
 
 lottery. 539. 
 under inclosure-acts, 8cc. 741, 2.763. 
 COMMITMENT; 239, 40. 320, Sec. 
 
 entry of. 320, 1. 845. 
 COMMITTITUR-PIECE; 320. 
 
 filing and entering. Id. 321. 
 COMMON, right of, how stated. 396, 7; 
 COMMON-PLEAS, 
 
 means of commencing actions in. 6 1 (a), 
 error from. 1058. 
 
 to, lies not from inferior courts. Id. 
 COMPERUIT ad diem; 258. 
 
 plea of, maybe delivered. 621, 2. 
 
 need not be signed. Id. 
 issue on, by whom made up. 666. 
 COMPOUNDING penal Actions; 500. 
 in what cases allowed. 501. 
 in what not. Id. 
 
 motion for, when and how made. 441. 501. 
 proceedings thereon. 501, 2. 
 COMPULSIVE Clauses, in the Lord' act. 972, Sec. 
 CONCILIUM. See tit. Demurrers unA Error. 
 CONCLUSION to Declaration. See tit. Declaration. 
 CONDITIONS, precedent. 381, 2, &c. 
 
 subsequent. 382. 
 CONFESSION, judgments by. See tit. Judgments. 
 and avoidance. See tit. Pleas und Pleading. 
 without avoidance. 828. 
 CONSIDERATION, 
 
 express or implied. 379. 
 executed or executory. Id. 
 when good. 380. 
 CONSOLIDATING Actions, 
 motion for. 441. 
 in general. 556. 
 on policies of insurance. Sec tit. Policy of Insurance. 
 
 CON- 
 
 I
 
 INDEX.^ 
 
 CONSTABLES and HEADBOROUGHS, 
 
 actions against; 74. 
 limitation of. 22. 
 venue in. 374. 
 demand of copy of warrant from. 74. 
 costs in actions against. See tit. Costs. 
 attornies not liable to be chosen. 265. 
 CONTEMPTUOUS Words. See tit. Attachment. 
 CONTINGENT Damages. See tit. Damages, 
 CONTINUANCE, 
 
 of process; 626, 7. 
 
 before declaration. 627. 
 after declaration, and before issue. Id. 
 issue, and before verdict. Id. 844. 
 verdict or demurrer. 627. 
 judgment by default. Id. 
 in error. 1 122. 
 entry of; 91. 1004. 
 
 may be made at any time. 627. but see 1096, 
 certiorari for, how directed. 1110 (ii). 
 want of, when aided or cured. 628. 
 may be added, after judgment in a penal action. Id. 
 of notice of inquiry. See tit. Inquinj. 
 
 trial. See tit. Trials. 
 pleading after last. See tit. Pleas and Pleading. 
 CONTRACTS, 
 
 in writing; 378. 
 
 by deed, under seal. Id. 
 
 agreement without seal. Id. 
 by parol. Id. 
 express or implied. Id. 
 present or future. Id. 
 actions upon ; 1 . 
 
 by and against whom brought. 7, 8. 
 limitation of. 15. 
 how stated in the declaration. 378, 9. 
 special, admitted by bringing money into court. 568. 
 CONTRIBUTION, 
 
 action for. 805 (v). 
 CONVICTION, new trial after. 820. 
 CONVOCATION, Members of. 171. 
 CONUSANCE, 
 what. 574. 
 
 in what cases it may be claimed. Id. 575, 6. 
 at what time. 418. 576, 7. CONUSANCE,
 
 INDEX. 
 
 CONUSANCE, 
 
 how claimed. 577. 
 proceedings after. 350. 
 COPY of Process. See tit. Process. 
 
 declaration. See tit. Declaration. 
 deeds, 8cc. on oyer. 526, 7. 
 written instruments: 531, 2. 
 
 in what cases formerly demandable. Id. 
 at present: 532. 
 
 when the defendant is in nature 
 of a trustee. 533. 
 record of acquittal. 539. v, 
 
 causes. 324. ^ 
 
 COPYHOLD Lands, not extendible on elegit. 940. 
 
 tenant, rule for his inspecting court-rolls. 440 
 
 (y). 540. 
 CORONER. 720. 
 CORPORATION, 
 
 must be sued by original. 25. 61 (a), tl. 94, 96. 
 process against. 116. 
 must appear by attorney. 63. 105. 
 not entitled to essoin. 105. 
 members of, not subject to arrest. 171. 
 inspecting books of. 541. 
 COSINAGE, damages on writ of. 799. 
 COSTS, 
 
 as between party and fiarty; 
 
 de increinentOy origin of. 864, 5. 
 in abatement. 589. 633. 897, 8. 1049. 
 bar, 
 
 interlocutory; 864. 
 
 on setting aside proceedings on bail-bond. 250. 
 \iv\X.s oi distringas. 108. 113. 
 reversing outlawry. 142, 3. 
 motions: 457, &c. 
 
 when a rule is made absolute. Id. 
 discharged. 458. 
 setting aside proceedings, for irregularity. 435. 
 staying proceedings. Id. 465. 996. 
 
 of declaration, when allowed on. 481 (a), 
 bringing money into court. 558. 565, 6, &c. 
 
 570. 
 COSTS,
 
 INDEX. 
 
 COSTS, 
 
 interlocutory ; 
 
 on amendments: 654. 
 
 of writs of error. 1094. 
 after error. 664. 1114. 
 a reference to arbitration. See tit. Arbitration, 
 remanct. 699 (/). 755. 
 withdrawing juror. 570. 785. 
 examining witnesses on interrogatories. 741. 
 quashing writs of error. 1095, 6. 
 suing out original writ, after error. 1114. 
 of writ, &c. deposit to answer. 200. 
 
 trials at bar, when plaintiff is poor. 768, 9. 
 special jury. 727, 8. 
 witnesses. 737. 
 new trials: 822, 3, 4. 
 
 after special case. 810, 11. 
 repleader. 830, 
 for not proceeding to trial, or inquiry. 441. 522, 3. 
 
 699.700. 
 hy firoviso. 702. 
 payable by attomies, for improper conduct. 58. 
 final, 864. 
 
 for plaintiff; 
 
 at common law. Id. 
 
 by statute of Gloucester. Id. 865. 
 
 where double or treble damages are given, or a ccv- 
 
 txiXvpenaUy, by a subsequent statute. 865, 6. 
 
 where single damages are given by a subsequent 
 
 statute. 866, 7. 
 restrained, by 43 Eliz. c. 6. 870, 1. 
 
 court of conscience-acts. 753. 871, 
 
 &c. 874. 
 21 Jac. I. c. 16. in actions for words, 
 
 878. 
 23 Sc 23 Car. II. c. 9. in trespass. 
 
 879, &c. 
 43 Geo. III. c. 46. § 4. in debt on 
 judgment. 888,9. 
 extended by 4 8c 5 W. 8c M. c. 23. 886, 7. 
 
 8 8c 9 W. III. c. 11. 887, 8. 
 in inferior courts. 276. 885, 6. 
 for defendants; 
 
 at common law. 864. 889. 
 by statute of Marlcbcrere. 890. 
 
 COSTS,
 
 INDEX. 
 
 COSTS, 
 final; 
 
 for defendant; 
 
 on a nonsuit or verdict: 891, 2. 895, 6. 
 
 when proveable under a commission. 181, 2. 
 judgment as in case of a non-suit. 703. 708. 894. 
 discontinuance. 628. 896. 904. 
 nolle prosequi. 630. 896. 
 non-pros; 359. 415. 893. 896, 
 in error. 1093. 1105. 1107. 
 demurrer. 669. 614, &c. 870. 888. 897, 8. 
 where plaintiff does not recover the sum sworn to, 
 
 &c. 442. 898. 
 in arrest of judgment. 899, 
 where there are several defendants. Id. 
 inactions real: 865. 
 
 writ of right: 708. 
 of ward. 899. 
 penal: 866, 898. 902. 
 on game-laws. 903. 
 of account. 891. 
 
 assault, 880. 883, 4.900, 1. 
 
 and battery, 865, 879, 80. 883. 
 false imprisonment. 880. 900. 
 assumpsit. 865, 871, 880, 896. 
 upon the case; 865, 891, 901. 
 
 for words, 878, 
 of covenant. 865. 880, 891. 
 for criminal-conversation, 6 (g*). 615. 
 of debt; 865, 871, 874, 5. 880. 891. 
 on judgment. 440, 879, 
 for not setting out tithes. 866. 868, 
 detinue, 891, 
 for distresses. Id. 903. 
 of dower unde nihil habet. 865. 
 
 ejectment. Id. 895. 899, 900. 90.5, 
 error. 890. 
 
 false-judgment. 1140,41. 
 prohibition. 865. 868, 9,70. 
 quare impedit. 867. 
 replevin; 
 
 for plaintiff. 865. 
 defendant. 890, 
 of double pleading. 615, 16, 17, 
 against several defendants, 899, 90Q. 
 
 COSTS,
 
 INDEX. 
 
 COSTS, 
 
 final; 
 
 in scire facias. 865. 868. 1018. 1020. 1048, 9. 1103. 
 trespass, 
 
 for plaintiff; 865. 879, &c. 900. 
 how restrained. 879, &c. 
 against inferior tradesmen, he. 886, 7. 
 when wilful and malicious. 884. 887, 
 for defendant; 
 
 on the 5 R.II. 891. 
 of double pleading. 612, &c. 
 against several defendants. 899, &c. 907. 
 trover. 865. 880. 893. 901. 
 waste. 865. 867, 8. 
 actions by paupers. 68, 9. 
 
 against bail. 234, 5. 249, Sec. 483. 241. 
 bankrupts. 182. 
 seamen and soldiers. 178, 9. 
 justices, constables, and officers of 
 the Excise axid Customs. 903. 
 by and against infants. 72. 477. 
 baron and feme. 1021. 
 executors and administrators. See tit. 
 Executors and Adininistrators. 
 on a habeas corfius. 352. 
 
 feigned issue. 901, 2. 
 of several counts. 888. 
 
 pleas of justification. 889. 
 issues, on an inclosure act. Id. 
 double pleading. 612, Sec. 
 double or treble, what. 902, 3. 
 
 when recoverable, by the plaintiff. 903. 
 
 defendant. Id. 
 how recovered. 903, 4. 
 suggestions for. 272. 442. 466. 876, 7, 8. 905, 4. 
 certificates. See tit. Certificates. 
 rule to be present at taxing : 905. 
 
 after a special verdict. 808. 
 taxation of, on judgment by default ; 
 final. 513. 
 interlocutory. 525. 
 ' demurrer. 687. 
 
 verdict, &c. 808. 843. 904, 5. 
 affidavit of increased costs. 904, 5. 
 Vol. II. 3 U COSTS.
 
 INDEX. 
 
 C6STS, 
 
 final; 
 judgments reversed for. 1129. 
 means of recovering ; 
 
 under a commission of bankrupt. 181, 2. 
 by action or execution. 905. 
 
 , arrest not allowed for. 200. 
 attachment: 437, 8. 905, 6. 
 
 rule for, absolute in first instance. 438. 906. 
 may be moved for the la^ day of term. 452 
 
 906.. 
 requiring security for. 476, &c. 
 
 payment of, in former action. 479, 80. 
 setting off, against costs. 996, &c. 
 as between attorney zx\(\. client . See tit. Attomies, 
 COVENANT, 
 
 action of; 4. 10. 95, 6. 373, 4. 
 
 not within the statute of limitations. 16. 
 
 arrest in. 150, 1. 
 
 process in. 105. 
 
 declaration in. 376." 
 
 staying proceedings, on payment of what is due. 48?. 
 
 assessing damages, without a writ of inquiry. 515. 
 
 particulars of demand in. 535. 
 
 bringing money into feourt. 562. 565. 
 
 pleas in; 593. 
 
 when to be delivered. 622. 
 issues, by whom made up. 666. 
 
 damages, when some of defendants are acquitted. 803. 
 judgment in. 842. 
 costs in. See tit. Costs. 
 execution in. 911. 
 
 scire facias in, for damages arising after judgment. 1000. 
 
 1010. 
 COVENANTS, 
 
 dependent or independent. 382, 3. 
 to be performed at the same time. 383. 
 assessing damages, in debt on bond for performance of 
 
 508,9, &c. 1012. 
 COVERTURE, 591. 
 
 plea of, in abatement. 580. 
 
 debt on bond, 595. 599. 
 when pleadable after the last continuance. 775. 777. 
 when assignable for error. 1056,1107. 
 costs on plea of. 102 1 . 
 
 COUNSEL.
 
 INDEX. 
 
 COUNSEL, how heard on motions. 461, 2. 
 
 attending by, on inquiry. 522. 
 COUNTER-AFFIDAVIT; 
 
 when received, on an arrest. 165, 6. 
 COUNTERMAND, of notice of trial. See tit. Trials. 
 
 inquiry. See tit. Inquiry. 
 COUNTS, See tit. Declaration. 
 
 pleas in abatement of. See tit. Pleaa and Pleading. 
 or matter superfluous, striking out. 441. 558, &c. 
 bad or inconsistent, how cured aftei? a general verdict. 802. 
 several, costs of. 888. 
 COUNTY-COURT. 37. 50. 465, 6. 
 COUNTY-PALATINE, 
 process into; 85. 
 direction of. Id. 
 service of. 14.8. 
 arrest on; 
 
 for what sum. 150. 
 by what authority. 191. 
 bail-bond on. Id. 
 sheriffs of, amenable to the court for contempts. 254, 5. 
 changing venue. 551, 2. 
 pleading to the jurisdiction. 573, 4. 
 mittimus to. 551. 672,3. 
 trial at bar. 769. 
 judgments. 856 (y). 
 costs. 870. 879. 
 execution. 332, 3. 
 error from: 1059. 
 
 direction of writ in Lancashire. 1066. 
 bail in. 1075. 
 
 alleging diminution in. 1 104. 
 false-judgment in -i.a77ca«/«re. 1140. 
 COURT of CONSCIENCE-ACTS, 
 
 attornies not in general subject to. 265, 
 mode of taking advantage of. 466. 
 costs on. See tit. Costs. 
 COURT-ROLLS; See tit. Inspecting Books, Sec. 
 
 motion to inspect and take copies of. 440. 442. 
 CRIMINAL-CASES, not within the statutes of amend- 
 ments. 661. 
 CRIMINAL-CONVERSATION, * 
 
 action for; 6. 
 
 declaiation in. 393. 
 costs in. See tit. Costs. 
 
 CROWN,
 
 INDEX.. 
 
 CROWN, See tit. King. 
 CUSTOM, what. 395. 
 CUSTOMS and BYE-LAWS ; 
 
 when and how discussed, on a removal by habeas corfms, 
 
 &c 347 S* 
 CUSTOM-HOUSE books, inspecting. 539. 
 CUSTOMS and EXCISE, 
 
 actions relating to, by whom brought; 468. 
 against officers of ; 
 limitation of. 22. 
 notice of. 73, 4. 
 where laid. 374. 
 bringing money into court. 564. 
 costs in. See tit. Costs. 
 CUSTOSBREVIUM. 31. 1093. 1110. 1114. 
 
 D. 
 
 DAMAGES, 
 
 what. 798, 
 
 how laid, in an action upon contract. 352. 
 trespass. 391, 2. 
 case: 399. 
 general. Id. 
 special. 400 . 
 assessing, on 8 8c 9 W. III. c. II. § 6. 1025, Etc. 1047. 
 
 § 8. 508, 9, &c. 1012. 
 notes and bills, &c. without an inquiry. 514, 15, 
 
 16. 
 demurrer to evidence. 517, 18. 795. 
 excessive, or too small. 524. 819. 
 general, arrest not allowed for. 151. 
 cannot be brought into court. 563. 
 
 set off. 604. 
 -award of jury-process for assessing. 670, 1. 
 on verdict for plaintiff. 798. 
 
 defendant in replevin. Id. 
 nonsuit in replevin. Id. 
 in actions real. 799, 
 
 personal: 798. 
 
 assessing by the master. 514, Sec 
 how ascertained in general. 842 (n). 
 mixed: 799. 
 
 ejectment, &c,/rf, DAMAGEg,
 
 INDEX. 
 
 DAMAGES, 
 
 in actions mixed; 
 
 dower. 799. 
 waste. 800, 
 guars itnfiedit, 8cc. Id. 
 in scire facias i See tit. Scire Facias. 
 
 error. See tit. Error. 
 single. 800. 
 
 double or treble. Id. 865, G, 
 nominal. 800. 
 
 in debt on bond, for performance of covenants. Id. 801. 
 
 1012. 
 when recoverable beyond the penalty. 801. 
 fixed or arbitrary. Id. 
 in tire: Id. 
 
 how rectified, on bad or inconsistent counts. 802. 
 several: 804, 5. 
 
 in a penal action, on a bad count. 802. 
 where there is judgment by default, or a demurrer to part., 
 and an issue on other part. 670, 1. 802, 3. 
 contingent. 631. 671. 798. 804. 
 
 where some defendants let judgment go by default or 
 demur, and others plead to issue: 802, Sec. 
 when the latter are acquitted. 803, 4. 
 where defendants sever, or join in pleading. 804, 5. 
 omission of finding, when supplied by an inquiry. 806. 
 remittitur of part. 805, 6. 
 increased, in action for a mayhem. 806. 
 verdict security for, on anew trial. 819. 
 judgment reversed for. 1129. 
 DARREIN-PRESENTMENT, damages on writ of. 800. 
 DAY, oiretorna brcvium. 100. 
 
 rules. 961,2. 
 DEATH, 
 
 waiTant of attorney countermanded by. 495. 
 when judgment may be entered after. Id. 496. 846. 857. 
 plea of, in abatement, 579. 
 
 in what cases an abatement of the suit. 846, &c. 1024, 8cc. 
 execution after, o^Jieri facias. 915, 16. 
 of plaintiff, in general no cause for prisoner's discharge. 
 
 288, 9, 323. 
 when otherwise. Id. 
 
 no objection to defendant's discharge on the lords' 
 
 act. 964. 
 <rf prisoner in execution, remedy after. 958, 9. 
 
 DEATH.
 
 INl)EX. 
 
 DEATH, 
 
 scire facias after. 991. 1009. 1024, &c, 
 of testator, when it need not be averred in scire facias. 1032. 
 principal, before returaof ca. sa. in what cases pleadable. 
 
 1044, 5. 
 parties, when assignable for error. 1056. 1 lor. 
 how assigned. 1 107^ 8. 
 when it abates a writ of error. 1096, &c. 
 DEBT, 
 
 action of; 4. 9. 10. 95, 6. 573, 4. 
 
 limitation of. 15, 16. 
 original writ in. 93. 
 process in.. 122. 105. 
 arrest in. 122. 150. 152, 3. 187. 
 outlawry in. 126. 
 declaration in. 376. 
 particulars of demand in. 534, 5. 
 pleas in. 593, &c. 
 on judgment: 
 
 limitation in actions of. 21. 
 staying proceedings in, pending error. 471. 
 assessing damages in. 515. 
 no waiver of the lien created by it. 850 (w). 
 suggesting rfer^as^awV. 1017, 18. 
 bail in error in. 1079. 
 reversal of judgment in. 1 128, 9. 
 costs in. 440. S79. 
 on recognisance; 237, 8. 994, 5, 6. 
 
 in nature of a statute-staple. 988. 
 when it may be commenced. 994. 
 staying proceedings in, pending error. 474, 5. 
 
 after render. 483. 
 bail in error in. 1 109, 10. 
 under 40s. staying proceedings in action for. 465, 6. 
 calling for particulars of. 534. 
 
 and costs, staying proceedings on payment of. 481, Sec 
 for rent, Sec. staying proceedings in. 482. 
 bringing money into court in. 562, 3. 
 error in. 1075, &c. 
 on bond; 
 
 limitation in actions of. 19, &c. 
 
 staying proceedings in. 483, 8cc. 
 
 changing venue in. 546. 548. 
 
 assessing damages in. 508, 9, &c. 1012, Sec. 
 
 DEBT, 
 
 I
 
 INDEX. 
 
 DEBT, 
 
 on a promissory note, Sec; 
 bail in error in. 1079. 
 judgment in. 842. 
 costs in. See tit. Coats. 
 DECEIT, action for; 7. 393. 
 
 breach in. 389. 
 DECLARATION, 
 what. 361.366, 7. 
 upon a certiorari or habeas corfius. 349, 50. 
 
 recordari facias loquelam^ &c. 359, 
 against prisoners, in the actual custody of the marshal. 3il3, 
 
 4. sheriff, 8cc. 309. 
 when and how to be delivered. 311, 12, 13^ 
 upon an attachment of privilege. 273. 
 ftfter an outlawry. 140(6). 
 
 against peers and membersof the House of Commons. 115, 
 when to declare in general. 361. 
 in chief: Id. 
 by bill; /rf. 
 
 time for declaring. Id. 
 further time. 362. 
 
 motion for plaintiff to declare peremptorily. /rf. 363. 
 by original; 440. 
 
 time for declaring, nonsuit, &c. 363, &c. 
 by the bye: 361. 365, 6. 
 by bill; /cf. 
 
 at the suit of the same plaintiff. Id. 402. 
 
 a third person. 366. 
 by original. Id. 
 parts of; 
 
 title. Id. 367, &c. 
 venue. See tit. Venue. 
 ■commencement; 
 
 by bill. 376. 
 original. Id. 
 in actions upon contracts: 378. 
 the contract. Id. 
 consideration. 379. 
 inducement. 381. 
 averments; 
 
 what, and when necessary. 381, 2. 
 how made. 386. 
 
 of performance of conditions precedent. 381, 
 
 &c. 
 excuse far their non-performance. 386. 
 
 DECLARATION,
 
 INDEX. 
 
 DECLARATION, 
 
 parts of; 
 
 in actions upon contract: 
 averment; 
 
 of facts necessary to ascertain plaintiff's de- 
 mand. 387. 
 request. Id. 
 notice. 388. 
 breach. 389. 
 damages. 390. 
 in actions for wrongs: , 
 the injury complained of; 
 immediate. 390, 1. 
 consequential. 392. 
 inducement, in actions for malfeazance: 393. 
 affecting persons. Id. 
 
 real property. Id. 394. 
 personal property. 397, 8. 
 in actions for nonfeazance. 398. 
 misfeazance. 399. 
 damages, in trespass. 391. 
 case, 399, 400. 
 conclusion: 400. 
 pledges. 401. 
 qualities of; 
 
 correspondence with process: 401, 2. 
 
 in the names and description of the parties. 402, 3 
 cause of action. 404. 
 precision and brevity. 404, 5. 
 defects in; 
 
 how taken advantage of. 405. 
 cured. Id. 406. 
 copy of, by whom made. 406. 
 delivered, or filed: Id. 407. 
 absolutely. 409. 
 be bene esse. Id. 410. 
 
 Q. on process returnable the last return. 410. 
 paying for. 406. 408, 9. 
 filed, only good from the time of notice. 408. 
 amendment of. 391. 652. 
 
 in scire facias. See tit. Scire Facias. •. 
 
 DEEDS, &c. 
 
 must be delivered up by an attorney, on satisfaction of his 
 
 lien. r7, 8, 
 DEEDS,
 
 INDEX. 
 
 BEEDS, See. 
 
 notice to produce. 736. 
 cannot be taken in execution. 917. 
 DEFAULT, See tit. Judgments by Default. 
 at Msi JPrius; 717. 
 
 repleader not allowed after. 830. 
 DEFEAZANCE, 
 
 on warrant of attorney. 491. ' 
 
 DEFENCE, 
 
 when and how made. 584. 
 DEMAND, 
 
 of copy of warrant; 74, &c. 
 
 evidence of service of. 76. 
 declaration; 363, &c. 
 
 on removal by fione or recordari, S^c. 359. 
 plea; 317. 432, 3. 
 
 in scire facias. 1041. 
 replication, Sec. 646. 
 money on award; 760. 
 
 by whom and how made. Id. 
 costs. 25 K 906. 
 DEMURRERS, 
 what. 647. 
 history of. 648, &c. 
 
 to the whole, or part of declaration. 647. 
 pleas, replications, Sec. 627. 419. 647. 
 general; 647. 
 
 what may be taken advantage of under. 650. 
 cannot be waived. 623. 66 1. 
 making up issue on. 666. 
 special; 648 
 
 for auplicity. 647, 8. 
 
 misnomer. 4U3. 
 strikin}^ out. and giving general demurrer. 623. 651. 
 rule to abide by. 623, 4. 65 1. 
 in scire faceaf. See tit. Scire J^acfas. ^ 
 
 error. 200, 8cc. and see til. Error. 
 must be signed by counsel. 650. 
 when considered as issuable pleas. 428, 9, 30. 
 amendments after. 656. 
 demurrer-book; 666. 
 
 how it concludes. 675. 
 by whom made up. 6(')6. 
 when returned: 676, 7. 
 
 after paper-book. 678. 
 entering of record. 682, 3. 
 Vol. II. 3 X DEMUR-
 
 INDEX. 
 
 DEMURRERS, 
 
 proceeding to argument on; 679, 80. 6'84. 
 
 where there are several issues, in law and in fart: 684, 
 
 5. 
 assessing contingent damages on. 798. 804. 
 concilium; 438. 442. 684. 
 
 motion and rule for. 685, 6. 
 rule for, need not be served. 686. 
 considered as a step in the cause. Id. 
 proceedings on. See tit. Motions. 
 entering cause for argument: 686. 
 
 notice need not be given of it. Id. 
 delivering demurrer-books. 686, 7. 
 argument in C. P. 459 (Ji). 
 motion for judgment. 438. 442. 
 judgment on, for plaintiff; 
 in abatement. 687. 
 bar: Id. 
 
 interlocutory. 508. 687. 
 final. Id. 
 motion in arrest of, not allowed after. 625. 
 costs on. See tit. Costs. 
 to evidence, what. 791. 
 how they arise. 785, 6. 
 after bringing money into court. 567 {u). 
 do not apply to the pleadings. 792. 
 not allowed in the king's case. Id. 
 where the opposite party must, or may join in demur- 
 rer. 792, o 
 upon evidence in writing. 792. 
 parol evidence; Id. 793. 
 
 of a circumstantial nature: 793, 4. 
 construction of. Id. 
 under the control of court or judg^: 794. 
 
 subject to appeal. Id. 
 how taken and returned. Id. 
 assessing damages on. 517, 18. 795. 
 refusal of, a good ground fbr bill of exceptions. 786, 7. 
 
 794. 
 DEPARTURE, in pleading. See tit. Pleas and Pleading. 
 DEPOSIT, 
 
 of money in sheriff's hands, under stat. 43 G. III. c. 46. 
 
 § 2. 200, &c. 
 paying it into court. 200, Sec. 
 
 to plaintiff. 200. 439. 
 repaying it to defendant. 200. 440. 
 
 DEPO- 
 
 fl
 
 INDEX. 
 
 DEPOSITIONS, of witnesses on interrogatories, 740, Sfc.. 
 DETINUE, 
 
 action of; 7. 10. 95, 6. 
 
 limitation of. 15. 
 original writ in. 93. 
 process in: 105. 122. 
 
 of outlawry. 126. 
 declaration in. 376. 
 pleas in. 591. 596, 7. 
 inquiry of damages in. 5I&. 
 judgment in. 843. 
 costs in. See tit. Costs. 
 execution in. 911. 
 DEVASTAVIT. 929. 933. 1018, See. 
 
 DEVISEE, judgmentagainst,on the Stat. 3 W.^M.c. 14.856, 
 DIES DATUS. 363. 627. 
 
 DILATORY PLEAS. See tit. Pleas and Pleading. 
 DIMINUTION. See tit. Error. 
 DISCHARGE, 
 
 matters in, when pleaded or given in evidence. 592, 3. 
 
 596, 7. 
 DISCONTINUANCE, 
 
 of process. See tit. Continuance. 
 
 plaint in county, no objection to removal by recordari^ 
 
 &c. 358. 
 pleading; 238. 324. 617, 18. 626, 7. 
 
 rule for, when and in what cases allowed: 628, 9. 
 service of, when not a discontinuance. 629. 
 without or upon payment of costs 628. 
 proceedings thereon. 629. 
 
 attachment lies not, for the non-payiinent of Qosts. Id. 
 arrest after. 185. 
 
 aided by the statute of jeofails. 835. 
 cured by appearance of party. Id. 
 judgment on. 841. 
 costs on. See tit. Coats. 
 of writ of error. 1099. 
 DISSEISINS, double or treble damages on. 799 (i/). 
 DISTRESS. 917. 927. 947. 
 DISTRINGAS, 
 
 by original; See tit. Proceta. 
 costs on. See tit. Costa. 
 in the exchequer on venire. 62 (a), 
 taking partnership effects under. 108. 
 
 DIS-
 
 INDEX. 
 
 DISTRINGAS, 
 
 to compel appearance, on removal by ^lone or recordari, 
 
 &c. 359, 60. 
 for bi'inging in the jury. See tit. Jury -Process, 
 against the ba.liff of a hberty. 257. 261 (g). 
 iate sheriff: 260, 1. 
 
 to compel him to sell goods, taken on a Ji./u. 
 
 935. 
 tenere curia7n- 1 140. 
 DISTURBANCE, action for; 7. 
 
 declaration in. 396, 7. 
 DOCKETING ISSUES. 681. 
 
 i'.ivli:,meni:b. See tit. Judgments. 
 DOUBLE-PLEAS; See tit. Pl^as and Pleading. 
 costs of See tit. Co.^tfi. 
 or treble damages. See tit. Damages. 
 costs. See tit. Costs. 
 DOWER, 
 
 pleas in. 610. 
 damages in. 799. 
 costs in. See tit. Costs. 
 bail in error in. 1081, 2. 
 DUPLICITY, in pleading. 618. 647, 8. 1 1 18. 
 DURESS, 
 
 when pleaded, or given in evidence. 591. 595, 6. 
 DURHAM. See tit. County -Jxalatine. 
 
 E. 
 
 EJECTMENT, 376. 
 
 what shall be deemed good service. 443. 
 motion for judgment in, against casual ejector. 442.' 
 dispensing with personal service. Id. 443. 
 admitting landlord defendant. 443. 
 leave to take out execution, after he has failed. 
 
 Id. 909, 10. 
 staying proceedings in; 
 
 pending error. 472, 3. 
 
 till security be given for costs. 476, 7. 479. 
 
 payment of costs of former action. 479, 480, 
 for non-payment of rent. 486, 7. 
 by a mortgagee. 487, 8. 
 particulars in. 535. 
 pleas in, to the jurisdiction. 573. 
 
 EJECT-
 
 INDEX. 
 
 EJECTMENT, 
 
 trials at bar in. 768, 9. 
 new trials in. 816. 
 damagesin. 799. 
 costs in . See tit. Costa. 
 necessary, after elegit. 941. 
 note on lords' act. 970. 
 scirefacias in. 1002, 3. 
 bail in error in; 1081, 2. 
 
 in what sum they must justify. 1085. 
 death of nominal plaintiff in, not assignable for error. 1 107. 
 ELECTION, of Action. 9. 
 ELEGIT, 
 
 what. 911. 937, &c. 
 
 when it lies. 938. 
 
 against whom. Id. 95$. 
 
 after a year. 938, 9. 1004, 5. * 
 
 in different counties. 939. 
 
 upon several judgments. 852. 
 
 proceedings under; 
 
 against the goods. 939. 
 
 lands. Id. 940. 950. 
 terms for years. 940. 
 notice of executing. Id. 
 inquisition and return. Id. 
 delivering of a moiety. 941. 950. 
 ejectment; 941. 
 
 evidence in. Id. 
 further process on; Id. 942. 
 
 after an eviction. Id. 951. 
 interest allowed on, in equity. 942, 3. 
 creditor by, when entitled to priority against the crown. 
 
 944. 946. 
 extent under, when pleadable. 1046. 
 ELISORS. 85. 262.7^:0. 
 ELY, Isle of, 
 
 ctrtiorari to. 334. 
 
 process into, how directed. 913 (n). 
 ENLARGED-RULES. 456. 
 ENTERING ISCUE. See tit. Jsme. 
 
 Cause. See tit. Trials. 
 ENTRY, of writ, &c. to avoid the statute of limitations. 91,2, 
 name and place of abode of attornies. 47, 8. 
 recognisance. 233, 
 proceedings in «czre^c/a*. 1041. 
 error. 1121, 2. 1124. 
 
 EQUITY
 
 INDEX. 
 
 EQUITY of REDEMPTION; 487, g. 
 not affected by an execution. 919. 
 ERASURE, 
 
 evidence on non eat factum. 595. 
 ERROR, writ of, 
 what. 1051. 
 by whom broug-ht: 1052. 
 
 a plaintiff to reverse his own judgment. Id. 1 100. 
 on judgments against yc'/ne-TOT'fn's. 1052, 3. 
 
 principal and bail. 1053. 
 several defendants: /rf. 1054. 
 summons and severance. 1054, 
 5. 1 109. 
 when it lies; 
 
 generally: 1056. 
 
 for error in fact. Id. 1057. 1 107. 
 law. 1058. 1108, 9. 
 for denying oyer, when demandable. 530. 
 
 granting or denying a repleader, improperly. 829. 
 to reverse an outlawry. 139. 
 on a bill of exceptions. 790, 1. 
 when not; 
 generally: 
 
 where the defect is aided by verdict. 826, &c. 1056. 
 amendable. 651, &c. 840. 105 6. 
 cured by the statutes of jeofails. 
 832, Sec. 1056. 
 fbr defects in mesne-process. 124. 
 granting oyer improperly. 530. 
 after a special case. 809. 
 , judgment in .scire facias. 1048. 
 
 the death of nominal plaintiff in ejectment. 1 107. 
 for any thing which contradicts the record, Sec. 1 108,9. 
 error in fact and in law together. 1 108. H 18. 
 upon what judgment. 1064. 
 in the same court; 
 
 coram nobis: 
 when it lies; 1056, 7. 
 for error in fact. 1056. 
 
 process. Id. 1057, 
 after an abatement, &c. 1057. 
 direction of. 1056. 
 form of. 1067, 8. 
 allowance of. 1070. 
 
 how far a sujiersedeas of execution. 1083, 4. 
 
 ERROR,
 
 INDEX. 
 
 ERROR, writ of, 
 
 in the same court; 
 coram nobis: 
 
 unnecessary to transcribe on. 1088. 
 
 sue out a scire facias. HOC. 
 rule to assign errors. 1105. 
 issue on, how entered. 1121. 
 tecovA oinisi fii-ius. 1122. 
 •execution on. 909. 1135, &c. 
 cost on reversal. 1 135. 
 in a superior court; 
 
 to the King's-Bencb; 1058. 
 from the Common pleas. Id. 
 inferior courts: Id. 
 except in London. Id. 
 
 the cmywe-ports. Id. 1059. 
 stannai'ies. 1059. 
 counties-palatine. Id. 
 Wales. Id. 
 from the King's Bench ; 
 
 to the Exchequer-chamber. 1059, &c. 
 House of Lords. 1061, 2. 
 from the law-side of the Exchequer; 
 
 in England. 1063. 
 Scotland. Id. 
 from Ireland. Id. 1064. 
 when brought; 
 
 before judgment. 1064. 
 after judgment: /<:/. J 065. 
 
 statute of limitations. Id. 
 how sued out. 1065. 
 direction. 1066. 
 form of 1067, &c. 
 teste and return. 1069. 
 sealing. 1070. 
 allowance and service. Id. 
 how far a su/iersedeas ; 
 in genera!: 
 
 when sued out before final judgment. 1070, 71. 
 after final judgment. 1071, 2. 
 execution begun. 1072, 3. 
 vhei*e bail is required. 1073. 
 on error corain riobis. 1C83, 4. 
 proceedings against prisoners, how affected by. 318, 19. 
 
 327, 8. 
 motion for leave to take out execution pending. 439. 
 •striving proceedings pending. 470, &c. 
 BO objection to setting oft' debt on judement. 604. 
 
 ERROR,
 
 INDEX. 
 
 ERROR, writ of, ^ J 
 
 an answer to a motion for new trial. 821. ^ 
 
 repleader cannot be awarded after. 830. 
 amendments after: 662, Sec. 
 
 costs on. 664. 1114. 
 by principal, may be pleaded by bail. 1044, 5. 
 bail on. See tit. Bail. 
 certifying or transcribing the record: 1088. 
 
 rule ior, i n the King's-Bench and Common-Pleas./cf. 1089. 
 practice in the House of Lords. 1089. 
 when the record is certified, or only a transcript. Id. 1090. 
 mode of certifying or transcribing; 
 in an inferior court. 1090, 91. 
 
 the Kmg's-Bench and Common-Pleas. 1091, 2. 
 
 House of Lords. 1092,3. 
 non-firo^ for not transcribing. 1093. 
 amendment of; 
 
 at comrnon-Iaw. 1093, 4. 
 by the 5 Geo. I. c. 13. 1094. 
 costs on. Id. 
 quashing; 
 
 ground of. 1095. 
 motion for, in what court. Id. 
 when it may be quashed in part, &c. Id. 
 costs on. Id. 1096. 
 abatement of; 
 
 by tl:e death of the parties. 1096. 
 
 chief-justice. 1097, 8. 
 the prorogation or dissolution of parliament. 1098. 
 bankruptcy. Id. 1099. 
 marriage, Sec. 1099. 
 discontinuance of. Id. 
 
 scire facias quare executionem non, in K. B. 1009. 
 
 1100. 1141. 
 what, and when it lies. 1 100. 
 out of what court, and when it issues. Id. 
 direction. 1101. 
 form of. Id. 
 
 teste and return. Id. 1102. 
 
 need not lie four days in the sheriff's office. 1 102, 
 rule to appear to. Id. 
 
 whether the plaintiff" in error may plead thereto. Id. 
 
 1103. 
 consequence of not assigning errors. 1 103. 
 alleging diminution, 
 
 in the exchequer-chamber; 
 
 what,and when necessary. 662, 3. 1100. 1103,4. 
 at what time it must be alleged. 1118, 19. 
 not allowed against the record. 1 104. 1113. 
 
 in inferior courts. 1 104. 
 rule for, when and how e:iven. Id. 1105. 
 
 II
 
 INDEX. 
 
 ERROR, writ of, 
 
 alleging diminution, 
 
 in the exchequer-chamber; 
 
 non-firoa for not alleging diminution. 1 10-". 
 in the House of Lords. 1 104 {d). 1112. 
 rule to assign errors; 
 
 when and how given. 1 105. 
 on error coram nobis, &c. Id. 
 in the King's-Bench. 1 106. 
 
 Exch-quer-chamber. Id. 
 House of Lords. Id. 
 assignment of errors; 
 in fact. 1 107, 8. 
 law; 1108. 
 common. Id. 
 special. Id. 
 in fact and in law, not assignable together. Id. 
 by several defendants. 1 109. 
 set aside, when calculated for delay. Id. 
 delivering or filing. Id. 
 certiorari for an original, Sec. 
 
 what, and when necessary. Id. 1 1 10. 
 direction. 1110. 
 teste and return. Id. 1111. 
 amendment. 1111. 
 course of proceeding thereon; Id. 
 in the King's-Bench. Id. 
 
 House of Lords. Id. 1112, 
 petition for original: 1113. 
 
 practice thereon. Id. 1114. 
 return thereto. 1112, 13. 
 
 in what cases the parties may have a second certiorari 
 
 11 14, 15. 
 when the court w ill award it, for their own information. 
 
 1119, 20. 
 
 scire Jacias ad audicndian errores. in K. B. 1115, 16. 1141. 
 
 /irocessiim et recordum. 1034. 
 
 1116. 
 
 compelling plea or joinder, in the Exchequer-chamber. 
 
 1116. 
 House of Lords. Id. 
 plea; 
 
 common: Id. 1117. 
 
 in nuUo est erratum. 1117, Sec. 
 special: 11 20. 
 
 release of eri-oi's. Id. 1121. 
 delivering or filing, 622. \Vl\. 
 VoT.. TT ■\ Y ERROK'
 
 INDEX. 
 
 ERROR, writ of, 
 
 demurrers. 622. 1116. 1120. 
 issues; 
 
 making up and entering: 666. 1121,2, 
 in the King's-Bench : 1121, 2. 
 
 on error coram nobis. 1121. 
 in the Exchequer-chamber. 1124. 
 trial of issues in fact. 1122. 
 arguing errors in law; 
 
 in the King's-Bench. 1122, 3. 
 
 Exchequer-chamber. 1123, 4. 
 House of Lords. 1125. 
 motion for judgment. 438. 442. 1125. 
 judgment of affirmance or reversal. See. 1116. 1122. 1126 
 when the court are divided in opinion. 1127. 
 in part, or for the whole. 1 128. 
 
 what judgment shall be given, on the reversal of the 
 
 first. 1130 
 damages: 1131,2. 
 
 interest. 1132, &c. 
 costs. 890. 1131, 2, 5. 
 execution; 1008, 9. 1114. 1135, &c. 
 outofvvhatcourt. 912. 1136, 7. 
 remittitur of the proceedings. 1 135, 6. 
 direction. 1 137. 
 return. Id. 
 restitution after; Id. 
 
 to what the party shall be restored. Id. \ 1 38 
 ESCAPE, 
 
 on mesne-process; 
 
 action for: 207, 8. 255, 6, 7. 
 how defeated. 208. 
 venue in, cannot be changed. 548. 
 on execution; 
 
 from the tipstaff, on a render. 239. 
 declaration for. 594. 
 new execution after. 960. 
 warrant on. Id. 
 
 retaking aftei-, must be pleaded. 599, 
 ESCROW. 595. 
 ESSOIN; 100. 105,6.415, 16. 
 
 not allowed in personal actions. 105. 
 at nid /irius. 716, 17. 
 ESTOPPEL, 
 
 what, and how pleaded. 419. 582 (z). 585. 591. 621. 626. 
 
 637. 
 EVICTION. 
 
 i
 
 INDEX. 
 
 EVICTION. 941,2.951,2. 
 EVIDENCE, 
 
 written or unwritten: 734, 
 public or private. Id. 
 circumstantial. 793, 4. 
 must be the best the case admits of. 734, 5. 
 governed by the pleadings. 734. 
 what is to be proved ; 
 
 on general issue. Id. 
 special issue. Id. 
 manner of proving it. Id. 
 
 of payment, or release, in debt on bond. 19, 8cc. 
 of interest by indorsement. 21. 2. 
 service of copy of demand of warrant. 76. 
 bill of costs. 286. 
 rules of court. 437. 
 
 plaintiff 's demand necessary, notwithstanding admission 
 in defendant's bill of particulars. 537. 
 notice to produce deeds. Sec. 736. 
 private papers. Id. (n). 
 books. 737. 
 
 commencement of action, or suit pending. 249. 
 prison-books, for what purpose allowed. 322. 
 on execution of inquiry: 523. 
 
 after judgment on demurrer. 512. 687 (q). 
 plaintiff not bound to disclose it, before trial. 534. 
 not allowed to be given out of particulars. 537. 
 when it must arise in a particular county. 554, 5. 796, 7. 
 demurrer to. See tit. Detnurrers to Evidence, 
 admitting or rejecting improperly, a good ground for bill 
 
 of exceptions; 786, 7. 
 or new trial. 818. 
 on both sides, a ground for refusing new trial. /(/. 
 judge's report of, on motion for new trial. 82 1, 2. 
 in ejectment, founded on elegit. 941. 
 in debt on judgment, suggesting a devastavit. 1018. 
 EXCEPTION-DAY. 100. 
 
 EXCEPTIONS, bills of. See lit. Bills of Excefitiom. 
 EXCHEQUER, court of; 
 
 means of commencing actions in. 62 (a). 
 error from; 106.5. 
 
 in Ireland. 1 104 {d). 
 interest on affirmance in. 113" 
 
 EXCHF.'
 
 INDEX. 
 
 EXCHEQUER-CHAMBER, 
 
 ■writ of error to; 1059. 1063. 
 in Ireland. 1 104 ((/). 
 
 lies not for error in fact. 1057. 1061, 2. 
 return-clays in. 1 123. 
 EXCISE unci CUSTOMS. See tit. Customs and Excise.' 
 EXCOMMUNICATION, 
 plea of; 579. 585. 
 
 after the last continuance. 775. 
 juds^ment on. 589. 
 EXCOMMUNICATO CAPIENDO. 960. 
 EXCUSE, 
 
 matter of, must be pleaded in trespass. 597. 
 of performance, when pleaded or given in evidence. 592, 
 
 &c. 596. 
 EXECUTION, 
 
 for the plaintiff. 911. 
 
 defendant. Id. 
 when sued out; 
 in general. 909. 
 
 after writ of error. 1070, Sec. 1083. 
 false-judgment. 1141. 
 injunction. 1006, 7. 
 
 agreement to stay execution. 504, 5, 909. 1005. 
 
 1084. 
 with or without leave of court. 762. 909, 10. 
 scire Jaciai ; 
 
 after a year. 1000, Sec. 
 
 change of parties. 1021, Sec. 
 against different defendants, for the same debt. 910. 
 heir, when charged as tertenant. 1032. 
 executors and administrators. 1017, £cc^ 
 bankrupts. 1013, kc. 
 insolvent debtors. 1016, 17. 
 hundredors. 118, &c. 
 by or against survivors. 1028, 9. 
 for what sum ; 
 
 in debt, for a penalty. 910, 11. 
 on annuity-bond. lOU. 
 after award. 910. 
 different kinds of. 91 1, 12, 
 out of what court. 332,3.912. 
 in what order. 912. 
 expences of, levying. 911. 
 hy Jieri facias. See tit. Fieri Facias, 
 elegit. See ill. Flegit. 
 
 EXECU-
 
 INDEX. 
 
 EXECUTION, 
 
 by extent. See tit. Extent. 
 
 capias ad satisfaciendum. See tit. Capias ad Satisju- 
 
 ciendum. 
 prisoners in. See tit. Prisoners. 
 poundage on. See tit. Poundage, 
 m scire facias. See tit. Scire Facias. 
 in error. See tit. Error. 
 EXECUTORS and ADMINISTRATORS, 
 
 how far they represent the testator or intestate. 1030.. 
 actions. by or against; 8. 18, 19. 26. 376. 
 Hmitation of. 23. 26, 7. 
 joinder in. II, 12. 
 affidavit of debt by. 157. 164. 
 arrest in actions against. 83. 172, 3. 
 not entitled to the privilege of attornies. 268, 
 declaring upon general process. 403. 
 
 special process. Id. 
 giving warrants of attorney. 491, 2. 498.. 
 pleas by or against, in abatement. 580. 
 bar. 590. 593. 
 fiuis darreifi conti7mance. 775. 
 in scire facias. 1046, 7. 
 bringing money into court in actions by. 564. 
 set-off in actions by or against. 605. 
 judgments against; 
 
 as in case of a nonsuit. 703. 
 upon a verdict, 8cc. 1017. 1019, 20. 
 in assumpsit^ 8cc. 842. 
 debt. Id. 
 of assets z«/«mro. 633. 1017, 18, 19. 
 nunc pro tunc. 847. 
 when entitled to costs; 
 in replevin. 890. 
 
 where one of several pleas is found for them. 894, 5 
 when not; 
 
 where one is acquitted. 901. 
 when liable to costs; 
 
 on a judgment o^ nonpros. 415. 893. 
 « discontinuance. 628. 893. 
 
 for not proceeding to trial, according to notice. 893. 
 on interlocutory motions. Id. 
 nonsuit or verdict: Id. 
 
 as for a contempt. 892. (a:), 
 forpleading falselv. 894, 5. 
 
 EXECU
 
 INDEX. 
 
 EXECUTORS and ADMINISTRATORS, 
 when not liable to costs; 
 
 on taxing testator's bill of costs. 283. 
 
 judgment as in case of a nonsuit. 703 (j/).708. 894. 
 nonsuit or verdict. 893, 4. 
 judgment of assets infutuvo. 894, 5. 
 in prohibition. 870. 
 scire facias. 1048,9. 
 proceedings by or against, on the stat. 8 8c 9 JPT. III. c. 
 
 II. § 6. 848, 9. 
 in what cases personally liable on award. 758, 9. 
 not affected by judgments, unless docketed. 857, 8. 
 
 within the court of conscience acts. 876. 
 executions against; 
 
 in general. 911. 1019. 
 
 for their own debts. 924. 
 
 offuture assets. 1018, 19. 
 
 returns to. 929. 933. 
 
 after return of 7ndla bona. 933. 1019, 20, 
 
 devastavit. 929. 9Z3. 958. 954. 1019, 
 
 20. 
 signing note on lords' act. 970, 71. 
 scire facias by or against. 1025, Sec. 
 error by; 1055. 
 
 bail in, not required. 1082. 
 proceedings in. 1096, 7. 
 Avhen liable to costs on affirmance. 1 132. 
 EXIGI FACIAS, writ of; 127,8. 955, 6. 
 
 de novo. 123. 
 EXONERETUR. See tit. BailsindBazl-fdece. 
 EXTENT, 
 
 for the debt of the cro^vn: 943. 
 of record. 944. 
 4iot of record: Id. 
 
 immediate. 943. 948. 
 in aid. 944. 948, 9. 
 with respect to lands. 944, £cc. 
 
 personal property. 916. 928. 946j 
 
 &c. 
 on a statute-merchant: 943. 
 
 capias si laiciis. 949. 
 writ to extend the lands, &c. Id. 
 against a clerk. Id. 
 statute-staple. 943, 
 
 EXTENT,
 
 INDEX. 
 
 EXTENT, 
 
 on a recognisance in nature of a statute-staple: 943. 
 
 process against the body, lands and goods. 949, 50. 
 liberate. 949. 952. 980. 
 against an heir, on the obligation of his ancestor. See tit. 
 
 Heir. 
 EXTORTION. 205. 981. 
 EXTRA-COSTS. 904. 
 
 Viamy costs on new-assignment of. 885. 
 
 F. 
 
 FALSE-IMPRISONMENT, 
 action of; 7. 582.(£). 
 limitation of. 15. 
 costs in. See tit. Costs. 
 FALSE-JUDGMENT, writ of; 
 
 what, and when it lies. 1052. 1 139. 
 by whom sued out. 1 139. 
 form of. Id. 
 
 when it does not lie. Id. 
 bail on. Id. 1140. 
 suing out, service and return. 1 140. 
 from what time it is a supersedeas. Id. 
 assignment of false-judgment. 1 141. 
 scire facias ad audiendum error es. Id. 
 joinder. Id. 
 
 subsequent proceedings Id. 
 costs. Id. 
 
 execution. 912. 1141. 
 FALSE-RETURN, 
 
 action for; 25 5, &c. 930. 
 
 cannot be stayed, on payment of the money levied. 488. 
 changing venue in. 548. 
 FAVOUR, Challenges to. See tit. Jtiry. 
 FEES, 
 
 payable to the king, on writs of recordari^pone, 8cc. 97 (y). 
 by prisoners. 296 {a). 302. 
 to the marshal, at the assizes. 773 (t'). 
 action for. 275, kc. 905. 980. 
 non-payment of, noexcusc for disobcying/jfldfas cor/iusy &c. 
 
 FEIGNED ISSUE; 665. 
 costs on. Sec tit. Costr. 
 
 FEME-
 
 INDEX. 
 
 FEME-COVERT. See tit. Baron and Feme, 
 FERRIES, 
 
 disturbance of. 396 {g). 
 FIAT, 
 
 for admission oi prochein amy, or guardian. 71, 
 original writ. 104. 
 FIERI FACIAS, 
 what. 911. 913. 
 form of. 913. 
 teste and return; 913, 14. 955. 
 
 by original. 955. 
 signing and sealing. 914. 
 amendment. Id. 
 relation of; 
 
 at common law. Id. 
 by the statute of frauds: /(i. 915. 
 as between the parties. 915. 
 after the death of either. Id. 916 
 against purchasers. 914, 15. 
 
 the king. 9 1 6. 
 betw^een different plaintiffs. /<:/. 
 how long executable. 1072, 3. 
 what may be taken under it; 
 in general. 917. 
 terms for years: Id. 
 
 how to be assigned. 918. 
 goods fraudulently sold. 919, &c. 
 in actions against partners. 921. 1 165. 
 what cannot be taken under it; 
 bank-notes, &cc. 917. 
 goods distrained, Sec. Id. 
 fairly sold. 920. 
 of third persons. 921. 
 inquisition of property on. 922. 
 after act of bankruptcy. Id. 923. 
 against future effects of bankrupt. 1014, 15. 
 insolvent. 1016, 17. 
 of goods of wife or testator, in action against husband or 
 
 executors. 923, 4. 
 sheriff's power and duty on. 924, 5. 
 landlord's lien for rent: 925, Sec. 
 
 how enforced. 927. 
 rule to return. 928. 
 
 enlarging time for returning. Id. 921. 
 different returns to. 928, 9.. 
 
 FIERI
 
 INDEX. 
 
 FIERI FACIAS, 
 
 proceeding's on return oi nulla dona; 
 alias and filuricf:: 929. 
 
 need not recite the former writ. 934. 
 teste and return. 931. 
 action for falfe-return.930. 
 
 testatum., and when necessary to have a previous^eK 
 
 facias. 929, &c. 
 non omittas. 929, 30. 
 against a beneficed clerk. 931, Stc. 
 proceedings on return of ^en feci as to part; 
 feri facias for the residue: 934. 
 
 must recite the former writ and return. Id. 
 proceedings on return ol fieri fci generally; 
 
 action against the sheriff, for money levied: 933. 
 not within the statute of limitations. 934. 
 proceedings where goods remain unsold; 
 by venditioni ex/ionas. 934, 5. 
 
 distringas against the late sheriff. 935. 
 motion to set aside. Id. 
 
 difference between erroneous and irregidar judgments and 
 
 executions. .?36. 
 restitution on reversing or setting aside judgments. 936, 7. 
 
 1138. 
 levy under, when pleadable. 937. 1046. 
 FIERI FECI, 
 
 return of; 929. 
 
 proceedings on. 933. 
 FINE, 
 
 scire facias OX) error to reverse. 1034. 
 direction of writ of error. 1066, 7. 
 transcript only removed from C. P. 1090. 
 FINES, on orii.',in'al writs; 97. 
 
 deposit to answer. 200. 
 FIXTURES, when liiibie to be taken in execution. 917. 
 FOREIGN-ATTACHMENT; 264. 
 pica of 592. 
 
 when a good answer to proceedings on awai'd. 7.')9. 
 FOREIGNERS; 230 477, &c. 
 
 limitation of actions liy. 18,19. 
 F'OREIGN- Judgment. 515. 
 
 Money. See tit. Money. 
 Plea. 587. 
 FRANCHISE; 191 (/;). 
 
 disturbance of. 396 (g). 
 FRAUD, 
 
 in obtaining warrant of attorney. 491 
 Vol.. 11. 3 Z ' FRAUD.
 
 INDEX. 
 
 FRAUD, 
 
 in contract, cannot be gone into on executing^ inquiry. 525 
 
 may be given in evidence, on non est factum 595. 
 
 in sale of goods, will not defeat execution. 919, 20. 
 FREf:HOLD'-TENANT, 
 
 when allowed to inspect books, &c. 540, 41. 
 FREEHOLDERS-BOOK. 725. 
 FRESH-PURSUIT, 
 
 recaption on, must be pleaded. 599. 
 FUGITIV'ES. 182, 3. 306 (m). 633. 
 FURTHER PARTICULARS. See tit. Particulars. 
 
 GAMING, 
 
 statute of, when pleaded or given in evidence. 591. 596- 
 house, action for keeping. 468. 
 GAOL. 200, &c. 
 GAOLERS, their duty. 204. 
 
 punishment of. 205, &c, 
 GENERAL-DAMAGES, 
 cannot be set off. 604. 
 
 brought into court. 563. 
 GENERAL-ISSUE'. See tit. Pleas and Pleading. 
 
 pleading, when allowable. 619. 
 GLEBh-LAND, not extendible on ele^t. 940. 
 GOOD JURY See tit. Jury. 
 GRANT, title by, how pleaded. 395. 
 GUARDIAN. See tit. Jipfiearance and Infant. 
 GUILD ABLE. 191 (n). 
 
 H. 
 
 HABEAS CORPUS, 
 
 in civil cases. 296. 
 
 cum causa. 297. 299. 309. 
 
 to remove a defendant. 296, 7. 309. 
 
 discharge bail. 239.244. 298. 
 ad resfiondendum. 300. 
 
 saihfaciendum. 301. 322. 
 
 testijicandum. See tit. Witnesses. 
 how the defendant may be removed thereby, into thr 
 custody of the marshal. 301, &c. 
 how long he must remain there. 302, 3. 
 
 HABEAS
 
 INDEX. 
 
 HABEAS CORPUS, 
 
 for the removal of causes from inferior courts; 
 what, and when it lies, and when not. 335, 6, 
 out of what court it issues. 336. 
 direction. Id. 
 form of Id. 
 how returnable. Id. 
 ground of removal by . Id. 
 effect of 337. 
 receipt and allowance: Id. 
 
 in what stage of the cause. Id. 338, 9. 
 in causes under^x'p pounds. 339. 
 ten pounds. 340. 
 return of, when and how made. 341. 
 
 what is good, and what not. Id. 
 effect of filing. 348. 
 bail on ; 
 
 in the court below. 342, 3. 
 above : Id. 
 
 when and how put in, except- 
 ed to, and justified. 343, 6tc. 
 how far liable. 345, 6. 
 firocedendo; 
 
 what, and when it lies, and when not. 346, 
 
 &c. 
 may be granted after the return is filed. 348. 
 declaration on; 
 de novo. 350. 
 
 in what time delivered. 351. 
 venue in. Id. 
 non-firofi. Id. 
 
 time for pleading. Id. 352. 
 
 replication of, to plea of statute of limitations. 352. 
 costs. Id. 
 HABERE FACIAS POSSESSIONEM; 950. 
 
 or seinnamy poundage on. 980. 
 HALF-PAY, of an officer, not saleable. 968. 
 HEADBOROUGHS. See tit. Comtables and Headborougha. 
 HEIR, 
 
 when and how liable, in case of alienation. 853, 4. 
 judgment against- on the obligation of his ancestor; 853. 
 general. 854, 5. 
 special; Id. 
 
 of assets infnturo. 1018. 
 on an issue oi ricns fier discenl, 854, 5. 
 docketing. 857, 8. 
 
 HEIR,
 
 INDEX. 
 
 HEIR, 
 
 execution at^ainst; 
 
 on a general judc^Tfient. 952, 3. 
 special judgment. 953. 
 where he is charged as tertenant. 1032^. 
 scire facian against; 1018. 
 
 when not necessary. 1034. 
 HEIR and TEKTENANTS,' 
 el' git against. 938. 
 scircfacian against; 1032, &c. 
 
 into what county. 1035, 6. 
 returns to. 1038. 
 declaration on. 1042. 
 pleas by. 1043, 4, 
 HIGH-BAR-Monev. 463. 
 HIGHWAY ACTS; 
 
 bringing money into court under. 564 {/). 
 HOUSE of COMiMONS. See tit. Members of the House of 
 
 Commons. 
 LORDS, 
 
 writ of error to: 1058, Sec. 1062,3. 
 
 lies not for error in fact. 1057. 
 HUE and CRY, statutes of. 116. 
 HUNDREDORS, 
 
 mode of proceeding against; 61 (a). 77. 94. 109. 171. 
 on the statutes of hue and cry. 116. 
 riot-act. 119. 
 black-act. Id. 
 for seizing wheat, &c. 1 17 (/). 
 destroying mills, &c. 117. 
 
 I, J. 
 
 IDIOTS, 
 
 appearance by. 63. 
 JEOFAH.S, 514. 525. 664. 
 
 statutes of, and decisions thereon; 832, Stc. 
 applicable to the original writ. 832, 3. 
 
 warrant of attorney. 833. 
 declaration and pleadings. 406. 834, 5 . 
 issue and similiter. 835. 
 jury-process. 836. 
 extended to judgments by default. Sec. 838, 9. 
 not appHcable to criminal cases, or oenal actions. 839. 
 IMMATERIAL ISSUES. See tit. Issues. ' 
 
 IMPARLANCE,
 
 INDEX, 
 
 IMPARLANCE, 
 
 what. 417. 
 general. Id. 
 special; Id. 
 
 not allowed without leave of the court. 418. 
 general-special. 417. 
 
 what may be pleaded or done after it. 418, 19. 528. 576. 
 
 585, 6. 
 plea after, how taken advantage of. 419. 586. 
 in what cases formerly allowed. 419, 20, 21. 
 
 at this day. 424, 5. 
 when not allowed: 105, 6. 424, 5. 
 
 on a habeas corjius. 35 1, 2. 
 
 pone or recordari^ Sec. 360. 
 entry of, by bill. 668. 
 
 not necessary by original. 672. 
 between plea and replication. Id. 
 certiorari for, how directed. 1110 (w). 
 IMPRISONiMENT. See tit. False-Lnfirisonment . 
 INCLOSURE-ACT, 
 
 costs in action on. 889. 
 references on. 744. 
 mode of enforcing award on. 763. 
 INDEBITATUS ASSUMPSIT. 3. 
 INDEMNITY-ACTS. 39. 
 INDIA-COMPANY, Books of, inspecting. 539. 
 INDICTMENTS, trials on. 701. 
 INDORSEMENT, 
 
 on bond, when evidence. 21, 2. 
 of promissory note, need not be averred. 389. 
 notice to plead on declaration. 407, 8. 
 INDUCEMENT, to declarations on contracts. 381. 
 
 for wrongs. 393, Sec. 
 certainty of 405. 
 INFANCY, 
 
 pleas of, in abatement. 579, 80. 
 
 bar. 591. 596. 599. 610. 
 mode of replying to. 637 (/). 
 INFANTS, 
 
 limitation of actions by. 16. 
 must sue by lirocluin amy. 69, 70. 
 cannot inform on penal statutes. 70. 
 not privileged from arrest. 183, 4. 
 must defend by guardian. 70. 
 
 mode of appointing //rc/c/irz« amy., or guardian: Id. 71. 
 annexing copy of rule to declaration or plea. 71. 
 
 INFANTS
 
 INDEX. 
 
 INFANTS, 
 
 at what age they may be outlawed. 126. 
 appearing by attorney, error: 1056. 1107. 
 
 in what cases aided. 833. 
 warrants of attorney by, voidable. 491, 2. 
 costs in actions by or against. See tit. Costs. 
 executions against. 954. 
 
 certiorari for admission of firochein amy, how directed. 
 
 11 10 (w). 
 INFERIOR COURTS; See tit. Jccedas ad Curiam, CWtio- 
 rari. Habeas Corfius, Pone, and Rec or dan facias loquelam, 
 what shall be deemed a commencement of suit in. 25, 6. 
 proceedings in, when amendable. 664. 
 process in, not amendable. 661. 
 new trials in. 8 16. 
 judgments in; 
 
 costs on. See tit. Costs. 
 execution on, after removal. 332, 3. 1009 (0- 
 form of scire Jacias on. 1008, 9. 
 error from; 1058, 9. 
 bail on. 1075, &c. 
 INFERIOR TRADESMEN, 
 
 costs in actions against. See tit. Costs. 
 INFORMAL ISSUES. See tit. Issues. 
 INFORMATION, 
 
 affidavits for, or on shewing cause against, when entitled. 
 
 450, 1, 
 rule for, when granted towards the end of term. 453. 
 INJUNCTION. 318, 19. 327, 8.625. 1006. 
 IN NULLO EST ERRATUM, 
 
 plea or joinder of. 1 108. 1 1 1 1, 8cc. 1115, &c. 
 INQUIRY, Writ of; 
 what. 513, 14. 
 
 on the Stat. 8 8c 9 JV. III. c. ll.§ 8. 508,9.512. 
 to whom directed. 513. 
 form of. Id. 
 amended. Id. 514. 
 return of. 514. 
 
 when dispensed with, in actions on notes or bills. 439. 514, 
 
 Sec. 
 in what cases allowed, for supplying an omission of the 
 
 jury at the trial; 
 in guare iinfiedit. 517. 
 on a demurrer to evidence. 517. 18. 795. 
 in actions against overseers. 518. 
 in what cases not allowed; 
 in dctinw. 516. 
 
 re/devi77. 5 1 7. INQUIRY,
 
 INDEX. 
 
 INQUIRY, Writ of; 
 
 to inquire of the value of lands descended, on the stat. 
 
 3 IV & iM.c. 14. § 6. 855, 6. 
 when executed before chief-justice, or judge of assize. 
 
 439. 518, 19. 
 motion for good jury. Id. 
 noticeof executing; 55. 519, 20. 
 after notice of trial. 520. 
 on asctrp-^eri-'mqii\ry. 1020. 
 before chief-justice, or judge of assize. 512. 520. 
 short notice. 520. 
 term's notice. Id. 1003 (w). 
 continuance. 522. 
 countermand. Id. 
 time and place of executing. 520, &c. 
 when left at sheriff's office. 522. 
 notice of attending by counsel. Id. 
 execution of, may be adjourned. Id. 
 evidence on; 523, 
 
 after judgment on demurrer. 512. 687 (y), 
 costs for not proceeding to. 441. 522, 3. 
 return of. 523, 4. 
 inquisition on; 
 
 rule for judgment. 523. 
 
 motion to set aside, by the defendant. 442. 
 
 plaintiff: 439. 524. 
 grounds of. Id. 
 when made. Id. 
 stamping. Id. 
 taxing costs. Id. 
 certiorari for, how directed. 1110 (u). 
 Avant of, aided. 525. 
 new writ and inquisition ordered. Id. 
 costs on, in trespass. 883. 
 
 actions for words. 878, 9. 
 INQUISITION, 
 
 upon outlawry. 5. 135, 6. 
 
 writ of inquiry. See tit. Inquiry, 
 ^ert Jacias, to determine property. 922. 
 elegit, and return. 940. 
 INSANITY, 
 
 persons affected by, not within the statute of limitations. 16. 
 no ground for discharging defendant. 183, 4. 
 
 bail. 184. 
 may be given in evidence, on fion ett factum, 595. 
 
 INSIMUL
 
 . INDEX. 
 
 INSIMUL COMPUT ASSENT. 3.756. 
 IN30L V ENT-D KBTO RS, 
 acts relating to; 962, &c. 
 
 attornies excepted out of. 269. 
 when and how discharged, under the lords' act. See tit. 
 
 Prisoners . 
 compellable to deliver up their effects. 971, Sec. 
 actions by assignees of. 8. 
 
 proceeding to judgment, Sec. in their names. 849. 
 not liable to be arrested. 182, 3. 
 
 not entitled to judgment as in case of a nonsuit. 706, 7. 
 future effects of, how far liable. 978. 1016, 17. 
 judgments agiiinst. 633. 1016, 17. 
 
 by assignees of. 907. 
 executions against. 1016, 17. 
 scire facias against. Id. 
 INSPECTING BOOKS, &c. 440. 442. 
 of a public nature: 538. 
 
 books of the sessions, &c. 539. 
 
 and court-rolls of manor. 540, L 
 of a corporation. 541. 
 of a private nature. 534. 540. 736 {ji). 
 rule for, when made: 542. 
 on information. Id. 
 
 mandamus. Id. 
 inaction. Id. 
 INSTALMENTS, 
 
 staying proceedings on payment of. 485, 6. 
 scire facias in debt on bond for payment of. 1000. 1012, 13. 
 INSTANTER, meaning of. 508 (;,/). 
 INSURANCE. See tit. Policy of Insurance. 
 INTEREST, 
 
 payment of, in debt on bond. 19, Sec. 
 recoverible on bond, though not expressly reserved. 484, 5. 
 when allowed beyond the penalty of a judgment. 942, 3. 
 bail in error for. 1085 (,§•). 
 allowance of, in error. 1 132, Sec. 
 INTERLOCUTORY JUDGMENT. See Wi. Judgments. 
 INTERROGATORIES; See tit. Witnesses. 
 on attachment. 59. 209. 
 under lords' act. 968, 9. 
 costs on. 741. 
 JOINDER, 
 
 of action; 10. 
 
 upon contract. Id. 
 for wrongs. Id. 11. 
 
 JOINDER, 
 
 i
 
 INDEX. 
 
 JOINDER, 
 
 in action, of different persons. 11, 12, 13. 
 in demurrer, must have a Serjeant's hand, in C. P. 650 (i). 
 error. 1116, 17. 1121. 
 JOINT-TENANTS. 2. 580. 
 JOURNIES-ACCOUNTS. 26, 7. 
 IRELAND, affidavits made in. 156. 161. 
 arrest in. on judgments. 187. 
 
 proceedings in, on stat. 43 Geo. III. c. 46. § 2. 200, 
 privilege of peers of, from arrest. 170. 
 plaintiff residing in, must give security for costs. 478. 
 error from: 1063, 4. 
 
 alleging diminution in. 1 104 (d). 
 IRREGULARITY, 
 
 in general, what. 434. 
 
 when and how taken advantage of 90, 1. 434, 5. 
 waived. 91. 165,435. 190. 403. 
 in process. 90, 1. 147. 
 
 proceedings on bail-bond. 248. 
 
 against the sheriff. 263. 
 setting aside judgments for. 440. 507, 8. 
 new trials for. 816. 
 
 difference between irregularity, and complete defect in 
 
 proceedings. 435. 
 ISSUABLE TERMS. 99. 
 
 Plea, what: 428. 
 
 judgment signed for want of. 429, 30. 477. 
 ISSUE-MONEY, what. 678, 9. 
 payment of abolished. 679. 
 ISSUE-ROLL; 681. 
 
 from whom obtained. Id. 
 contents of. Id. 
 numbering. Id. 
 docketing and filing. Id. 
 
 entry of proceedings on, to judgment. 843, 4, 5. 
 ISSUES, 
 
 upon a distringas., &c. 107, 8. 112. 136. 261. 438. 
 pleadings, what. 665. 
 in law. Id. 
 fact: Id. 
 
 triable by the record. Id. 
 country: Id. 
 feigned. Id, 
 several in one cause. Id. 
 Vol. II. 4 A ISSUES,
 
 INDEX. 
 
 iSSUES, 
 
 upon pleadings; 
 
 by whom and how made up. 666. 
 contents of. 667. 
 form of, by bill; Id, 
 title. Id. 
 
 memorandum. Id. 668. 
 entry of imparlance. Id. 
 pleadings: 669. 
 after judgment of res/2owrff as ozw^fr. 
 
 Id. 
 by original; 672. 
 title. Id. 
 
 declaration and pleadings. Id. 
 how concluded; 
 
 on an issue in fact, triable by the coun- 
 try. 669, 70, &c 
 award of iienire facias: 
 by bill. 669, 70. 
 
 original. 672, 3. 
 on several issues in fact. 670. 
 against several defendants, who plead 
 separately. Id. 
 where some of them plead, and 
 others let judgment go by de- 
 fault. Id. 802, 3. 
 on several issues, in fact and in law. 
 
 671 
 where the sheriff is interested. 672 
 in a county -palatine. Id. 673. 
 Wales. 674. 
 
 Berivick upon Tweed, Sec. Id. 
 where an impartial trial cannot be 
 had. 673. 
 entry of suggestions. Id. 674,, 5. 
 on an issue in fact, triable by the re- 
 cord. 675. 
 law. Id. 
 general; 666. 676. 
 
 delivery of : 676. 
 against several defendants. Id. 
 after striking out special pleadings. 67S 
 special; 666. 
 
 paper-book: Id. 
 
 by whom and when made up. Id. 667, 
 delivery of. 676. 
 rule (o return. Id. 
 
 ISSUES,.
 
 INDEX. 
 
 ISSUES, 
 
 upon pleadings; 
 special ; 
 
 paper-book : 
 
 time for returning. 676, 7. 
 returning, and paying for the entries. 678, 9. 
 striking out special pleadings, and giving general 
 
 issue. 678 
 similiter, and demuiring. Id. 
 proceedings thereon. Id. 
 consequence of accepting, or returning. 679. 
 entering: 679, 80. 
 
 rule for, when and how given. 680. 
 when and how done. 680, &;c. 714, 
 by defendant. 682, 3. 
 when formerly ti'ied. 704 (e). 
 immaterial, what. 829. 
 
 not cured by verdict. Id. 
 informal, what. Id. 
 
 aided by 32 Hen. VIII. c 30. Id. 
 misjoining, aided by the above statute. 835, 
 in scire facias. See tit. Scire facias. 
 error. See tit. Error. 
 JUDGES. 29. 
 JUDGES-ORDER, 
 
 for particulars, how far a stay of proceedings. 534, 5. 
 motion to set aside. 442, 
 
 make it a rule of court. Id. 
 when final. 464. 
 how appealed from. Id. 
 
 enforced. Id. 
 report. See tit. Aew Trials. 
 JUDGMENT-ROLL. 843, Sec. 
 JUDGMENTS, 
 what. 841. 
 
 arrest of. See tit. Arrest ofJudgmetit. 
 when and how signed. 512, 13. 813(d). 841. 843. 
 entering, in what cases necessary. 843. 
 
 in what manner, and by whom done. Id. 844, 5. 
 after the death of parlies; 
 
 at common law: 846. 857. 
 
 nunc pro tunc. 438. 473, 4. 846, 7. 858. 
 by statute: 
 where either party dies, between verdict and 
 judgment. 847, 8. 1024, 5. 
 JUDG.
 
 INDEX. 
 
 JUDGMENTS, 
 
 entering, in what cases necessary ; 
 by statute: 
 
 where either party dies, after interlocutory and be- 
 fore final judgment. 848. 1026, 7. 
 after death of on^^ of several parties. 849. 
 plaintiff's bankruptcy. Id. 
 insolvency. Id. 
 relation and effect of, at common law. 849, &c. 
 upon the statute of frauds. 856. 
 as to freehold lands. 850. 
 
 leasehold property. Id. 
 against defendant and his heirs, &c. 850. 853, &c. 
 in case of bankruptcy. 852, 3. 
 
 against an heir, on the obligation of his ancestor. 8 5 3, Sec > 
 restrained, as against purchasers. 856. 862. 
 mortgagees. 862. 
 docketing what, and by whom, when, and how done. 257, 
 
 8, 8cc. 
 want of, when relieved against in equity. 860, 1. 
 bringing in rolls of: 845. 
 
 consequence of neglect. 861, 2. 
 registering. 862, 
 amendment of Id. 863. 
 in abatement, 
 
 for plaintiff ; 
 
 on issue in fact. 588. 
 
 law. Id. 589. 
 defendant; 589. 
 
 of cassetur billa, vel breve. 633. 
 in bar, 
 
 for plaintiff; 
 form of : 
 
 in assznnfisit, &c. 842; 
 covenant. Id. 
 debt. Id. 
 annuity. Id. 
 detinue. 843. 
 replevin. 842. 
 trespass. Id. 
 by confession. See tit. Cognovit Actionem. 
 default, what: 505. 
 nil dicit; 
 
 for want of plea to declaration. 421, 2. 
 432.505, 6. 590. 
 to new-assignment. 506. 
 in scire facias. 1040. 
 
 JUDG-
 
 INDEX. 
 
 JUDGMENTS, 
 
 in bur, for plaintiff ; 
 by 7iil (licit: 
 
 for want of plea adapted to nature of action. 506. 
 
 in abatement, in due tinit. 419. 
 
 586. 588. 
 
 affidavit of truth of plea in abatement. 
 
 507. 588. 
 issuable plea, after judge's order. 507. 
 paying money into court, on plea of 
 
 tender. Id. 
 right delivery of plea. Id. 
 giving oyer. 531. 
 rejoinder. 506. 646. 
 joinder in demurrer. 506. 778, 9. 
 returning paper-book. 506. 676, 7. 
 how signed, between essoign and first day in full 
 
 term. 215, 16. 
 waiving. 507. 
 setting aside, 
 for irregularity; 
 
 motion for, when and how made. 440. 507. 
 upon affidavit of merits. 507, 8. 
 by non sum informatus. 505. 841. 
 interlocutory; 
 
 where the action founds in damages: 508. 
 on demurrer. Id. 
 
 nul tiel record. Id, 
 in debt. Id. 
 on 8 & 9 IV. III. c. 11. § 8. Id. 509. 
 
 intent and construction of that act. 510, 11. 
 to what cases it does not extend. 511. 
 proceedings thereon. 5 12. • 
 how signed. Id. 
 
 Q. If scire facias necessary thereon, after a year 
 
 and a day. 1003. 
 final; 508. 
 
 when and how signed. 513. 813 (d). 841. 843. 
 no rule for judgment necessary. Id. 
 admission of cause of action. 523. 
 within the statutes of jeofails. 838, 9. 
 on warrunt of attorney; 438. 500. 
 
 how .signed. 500. JUDG-
 
 INDEX.. 
 
 JUDGMENTS, 
 
 in bar, for plaintiff; 
 
 after award in plaintiff's favour. 761, 2. 
 non obstante veredicto; 617. 814. 
 in what cases given. 828. 
 motion for, when made. 840. 
 how it differs from a repleader. 830, 1. 
 against bankrupts. 1014, 15. 
 
 insolvent-debtors. 1016, 17. 
 for defendant; 
 
 form of, in replevin. 843. 
 
 other actions. Id. 
 of non-firos. See tit. A'on-Pros. 
 discontinuance. 841. 
 7ioUe firosecjui . 629, 8cc. 841. 
 cassetur di/la^ vel breve. 841 . 
 retraxit. Id. 
 
 nonsuit, motion to set aside. 439. 
 as in case of nonsuit: 841. 
 
 origin and foundation of. 702, 5. 
 
 in what cases given, and in what not. 703, 4. t 
 
 after bringing money into court. 567 (?f). ; 
 
 record entered for trial, and withdrawn. 705. 
 at what time it may be moved for; 
 in a town-cause. 704, 5. 
 country-cause. 705. 
 the same term issue is entered. 704 {g). 
 motion for, affidavit and notice. 441, 2, 449 (j/). 
 
 706. 
 snaking absolute, or discharging. 706, 7. 
 
 proceedings thereon. Id. 
 causes against: Id. 740. 
 
 • absence of material witness, &c. 706. 
 insolvency: Id. 
 
 cesset processus. Id. 707. 
 peremptory undertaking: Id. 
 proceedings thereon. 707, 8. 
 costs on. See tit. Costs. 
 9:1. demurrer; 438. 442. 
 in abatement. 687. 
 bar: Id. 
 
 interlocutory. 508. 687. 
 final. 687. 
 to, or counterplea of, oyer. 550. 
 to evidence. 794. JUDG-
 
 INDEX. 
 
 JUDGMENTS, 
 
 on nul tiel record; 
 
 quod p erf tcit recordum. 690. 
 
 defecit de recordo. Id. 
 in abatement. 692. 
 interlocutory or final. Id. 
 on special verdict, motion for. 438. 442. 
 
 bill of exceptions. 791. 
 of repleader. 829. 
 
 in ejectment, motion for, against casual ejector. 442. 
 in actions against executors and administrators. See tit. 
 Executors and Administrator.^, 
 bankrupts. 1014, 15. 
 
 insolvent-debtors and fugitives. 633. 1016, 17. 
 heirs and devisees. See tit. Heir^ and Devinee. 
 in scire facias. See tit. Scire Facias. 
 
 error. See tit. Error. 
 outstanding, replication to plea of. 637 (?). 
 actions on, for less than 5/. 874. 
 
 costs in. See tit. Costs. 
 setting off costs on. 906, 7. 
 
 may be set off, though error be pending thereon. 604. 
 erroneous and irregular, in what cases a justification. 936. 
 I'eversed as to costs, 8cc. 1 129. 
 JURAT, of Affidavits. 155. 417. 
 JURATA. 712. 824. 
 JURISDICTION, 
 
 of K. B. in personal actions. 28, 9. 
 in trespass. Id. 
 by original writ. Id. 
 
 attachment of privilege. Id. 
 bill. Id. 
 pleas to. See tit. Picas and Pleading. 
 different kinds of, and when claimed or pleaded. 5 74, ;. 
 of court of requests for London.^ &c. 872. 
 •FURY, Trials by. See tit. Trials. 
 (|Uulifications of ; 715.784. 
 
 in London and Middlesex. 715 (?«'. 
 process; 
 
 ■venire facias., what. 714, 15. 
 
 history of clause of nisi firius. 715, 16. 
 when issued. 717. 
 after distringas. 718, 19. 
 distringas, what. 717. 
 alias and plurics. 718. 
 when necessary to be resealed. 722. 
 
 .TURY:
 
 INDEX. 
 
 JURY, 
 
 process; 
 
 to whom directed: 
 sheriff. 672. 720. 
 coroner. Id. 
 elisors. Id. 
 
 where an impartial trial cannot be had. 673. 
 in JVales. 674. 
 
 Berwick upon Tweed. Id. 
 county -palatine. 672,3.720, 1. 
 mittimus. 673. 720, 1. 
 form of : 721. 
 
 tarn ad trianduin, quam ad inqvirendum. Id. 802j 3. 
 hy fir oviso. 721. 
 teste and return. 721, 2. 
 suing out and sealing. 722, 
 
 for special jury. 729. 
 on trial at bar. 771. 
 
 new trial. 824. 
 in what cases aided, by statute of jeofails. 836, &c. 
 common; 722. 
 
 how nominated, summoned, and returned. Id. &c. 
 good jury. 439. 519. 725. 
 special; 722. 
 
 what, and how nominated. 725. 
 origin and history of ; 
 
 on trials at bar. Id. 726. 771. 
 in other cases. 726, 7. 
 statutes respecting. 727, 8. 
 costs of. Id. 
 motion and rule for: 439. 442. 729. 
 
 in term-time. 703 
 nominating and reducing. 729. 
 summoning, in London. Id. 
 notice to, on trials at bar. 771. 
 once appointed, cannot be changed. 7 IS. 
 views by; 
 
 in what cases allowed. 730. 
 statutes respecting: Id. 731. 
 
 construction of. 731, 2. 
 motion for, and when of course or not. 439, 442. 733, 
 rule for, and proceedings thereon. 733, 4. 
 challenges of; 779. 
 to the array. Id. 
 
 polls. Id. .TURY,
 
 INDEX. 
 
 JURY, 
 
 challenges of ; 
 to the polls: 
 
 firofiter honoris resfiectum. 780. 
 defectum. Id. 
 affectum. Id. 
 principal. Id. 
 to favour: /</. 
 triers. Id. 781. 
 delictum. 781. 
 voire-dire. Id. 
 swearing; 782. 
 
 after view. 783. 
 talesman; Id. 
 
 at common law. Id. 
 by statute. Id. 784. 
 withdrawing juror; 785. 
 costs on. 570. 785. 
 withdrawing from the bar; 795. 
 
 what they may take with them. 791, 2. 795. 
 misbehaviour of, ground for new trial. 817. 838 (a). 
 objections to, or mode of returning them. 524. 
 JUSTICES, 
 
 of assize. 766. 
 in eyre. Id. 
 Qi the peace, 
 
 actions against; 72, 3, &c. 
 limitation of. 22. 
 notices of. 72, 3. 
 venue in. 374. 
 may plead the general issue. 597. 
 bring money into court. 564. 
 costs in actions against. See tit. Costa. 
 JUSTICES. 50. 
 JUSTIFICATION, 
 
 matter of, must be pleaded in trespass. 597. 
 
 K. 
 
 KING, 
 
 and his family, privileged from arrest. 167. 
 may protect his debtor, &c. 189. 
 is not bound by the statute 4 jinn. c. 16» 610. 
 has a right to demand trial at bar; 767. 
 
 though out of the common course. 770. 
 Vol.. II 4 B KING,
 
 INDEX. 
 
 KING, 
 
 execution for debt of; See tit. Extent. 
 priority of. 916. 944, &c. 
 may be sued out without a scire facias . 1004= 
 KING'S-BENCH, 
 
 jurisdiction of, in personal actions. 28, 9. 
 error in, on a judgment of the same court. 1057. 
 to, from other courts. 1058, 9. 
 from, to the Exchequer-chamber. 1059, &c. 
 House of Lords. Id. 
 
 LACERAVIT. 883. 
 
 LANCASTER. See tit. County-Palathie. 
 
 LANDLORD, 
 
 his claim for rent, under an execution: 925, &;c. 
 how enforced. 927. 
 remedy by distress, in case of bankruptcy. Jcl. 
 LATITAT; See tit. Process. 
 what. 77. 
 
 may be issued in the first instance. Id. 
 lies not against peers, 8cc. Id. 77. 
 
 how far considered as a commencement of suit. 24. 292, 
 
 3,4, 
 may be served in Middlesex. 148, 9. 
 LEASES, 
 
 in what cases seizable under an execution. 917. 
 how assigned by the sheriff. 918. 
 of expelling the lessee. Id. 
 LEVARI FACIAS. 136, 7. 
 LIBELS, 
 
 changing venue in actions for. 547, 8. 
 LIBERATE, 
 writ of ; 
 
 what. 949, 50. 
 proceedings on. 950. 
 on a re-extent. 952. 
 poundage on. 980. 
 LIBERUM-TENEMENTUM, 
 
 may be given in evidence on the general-issue. 597 
 
 pleaded with not guilty. 610, 11. 
 plea of; 641, 2. 
 
 need not be signed or filed. 622. 
 issue on, by whom naade up. 666. 
 LICENCE, 
 
 must be pleaded in trespass. 597. 
 
 costs on plea of. 884. LIEN,
 
 INDEX. 
 
 LIEN, 
 
 for balance of attorney's bill. 57, 8. 287, 8cc. 
 LIFE-GUARDSMAN, place of, saleable under the lords' act. 
 
 968 
 LIMITATION of Actions, 
 penal. 13. 
 in general. 15. 
 on the lords' act. 17, 18. 
 in debt on bond. 19, ficc. 
 actions for wrongs. 22. 
 quo warranto. 611. 
 after reversal of judgment by error. 15, 16. 
 outlawry. 16. 
 arrest of judgment. 15, 16. 
 exceptions in favour of infants, &c. 16. 
 
 persons beyond sea. Id. 17, IS. 
 actions and cases not within the statute. 16, 8tc. 
 statute of; 
 
 when pleaded, or given in evidence. 593, 4. 598. 
 how pleaded. 19. 
 
 cannot be pleaded after a regular judgment. 508. 
 what will take a case out of it. 23, See. 1 143. 
 debt barred by, cannot be set off. 604. 
 in error: 1064. 5. 
 plea of 1120. 
 LONDON, 
 
 customs and bye-laws in, when and how tried. 347, 8. 
 trial at bar in, 769. 
 courtof requests for. 871, &c. 
 error fi-om courts of. 1058. 
 LORDS. See tit. House oi Lords, and Peers. 
 LORDS'-ACT; 200. 962. 
 construction of 963, 4. 
 proceedings under. 964, 8cc. 
 note for allowance on; 970, 1. 
 
 by several plaintiffs. /(/. 
 judges order under, final. 464. 971. 
 compulsive clauses in. 972, &c. and see tit. Prisoners 
 LOTTERY-ACT, 
 process on. 84. 
 
 affidavit to hold bail on. 160, 1. 
 
 actions, &c. for penalties on, by whom brought. 468, 9. 
 LUNACY. See tit. Insanity. 
 LUNATICS, 
 
 appearance of. 63 (<"}. 
 
 MAT,.
 
 INDEX. 
 
 M. 
 
 MAL-FEAZANCE. 5. 392, 3. 
 MANDAMUS; 703. 838, 9. 
 
 to inspect books, &c 542 (e). 
 
 examine witnesses in India. 741, 2. 
 enforce award of commissioners, under an inclosure-act. 
 
 763. 
 MANDATE, to the sheriff. 19 J. 
 
 by the sheriff. 192. 256. 929. 
 MANDAVI BALLIVO. 256. 929. 
 MARINES, arrest of. 176. 
 MARKET-OVERT. 600. 1. 
 MARRIAGE; See tit. Baron and Feme. 
 
 when a revocation of warrant of attorney. 496, 7. 
 MARSHAL'S Acknowledgment. 320. 
 
 Book. 242. 307. 320. 
 MASTER'S Report, motion for. 442. 452. 560. 
 
 Rules. See tit. Rules. 
 MAYHEM, damages for. 806. 
 MELIUS INQUIRENDUM. 136. 
 MEMBERS of CONVOCATION, 
 
 privilege of, from arrest. 171. 
 MEMBERS of the HOUSE of COMMONS, 
 
 how sued; 25.28. 61. 62 (a). 77. 93. 96. 110, 11. 
 
 jointly with others. 11 1, 12. 
 process against, by original: 112. 
 
 how it differs from process against other persons. 1 1 1 {g). 
 bill against: 113, 14. 
 
 its commencement. 376. 
 conclusion. 114.401, 
 how filed. 114. 
 process thereon: Id. 115. 
 form of. 114. 
 teste and return. 115. 
 appear.ince. 114. 
 decliLration. 115. 
 cannot cast an essoin. 105. 
 be arrested. 170, 1. 
 
 attached for nonpayment of money. 171. 
 
 nonperformance of award. 757. 
 taken in execution. 115. 954.. 
 bail of, discharged. 243. 1044. 
 MEMORANDUM, what. 667. 
 
 reason for, and different kinds of. Id. 668. 
 
 MEMO-
 
 INDEX. 
 
 MEMORANDUM, 
 
 general, to what time it relates. 294. 
 
 how controlled or rectified. Id. 295. 
 special, against prisoners. 307, 8. 
 
 attornies. 274. 295. 
 not used in actions by original. 672. 
 MEMORIAL of Annuity, 
 
 pleadings respecting. 638, 9. 
 MESNE-PROCESS, execution of. 144, &c. 191, &c. 
 
 Profits, costs in action for. 882. 
 MIL ITIA, Attornies how far exempted from serving in. 265,6, 
 MILLS, demolishing. 1 17. 
 MISBLHAVIOUR, 
 
 of partv or jury, ground for new trial. 817. 
 MISCONTINUANCE, 514. 
 
 aided by statute of jeofails. 835. 
 MISCONVEYING of Process, 
 
 aided by statute of jeofails. 835. 
 MISDIRECTION. See tit. M-w Trials. 
 MISERICORDIA, 
 
 want or wrong addition of, aided. 863. 
 MISFEAZANCE, 
 what. 5. 393. 
 action for; 10. 
 
 declaration in. 399. 
 MISJOINDER. 630. 
 MISNOMER, 
 
 consequences of; 
 
 on bailable process. 249. 582 (i). 
 process not bailable: 402, 3. 
 
 distringas. 108. 
 jury-process. 837 (2). 
 pleas in abatement of: 582. 
 
 mode of beginning and concluding. 584, 5. 
 how cured; 
 
 by amending the writ. 402. 
 
 declaration, 652. 
 declaring in right name. 402, 3. 
 not material after judgment. 403. 954. 
 MISPLEADING, 
 
 aided by statute of jeofails. 834, 5. 
 MITTIMUS; See tit. Certiorari and Mittimus. 
 to a county-palatine. 551. 672, 3, 720, L 
 
 MONEY,
 
 INDEX. 
 
 MONEY, 
 
 bringing into court ; 
 origin of. 561. 
 in what cases allowed; 
 in assumfisit. 562, &c. 
 covenant. 562. 555. 
 debt for rent. 562, 3. 
 on bond. 484. 
 on policy of assurance. 563. 
 in actions by executors or administrators. 564. 
 against justices of the peace. Id. 
 
 officers of the excise or customs. Id. 
 in what cases not allowed; 
 
 in actions for general damages. 563. 
 upon several counts or breaches: 564, 5. 
 
 costs on taking it Out. 565. 
 under the stat. 43 Geo. III. c. 46. § 2. 200. 
 
 proceedings thereon. Id. 200. 
 motion for, when and how made. 441. 565. 
 paying it in; 566. 
 
 on a side-bar rule in C. P. 565 (yj. 
 plea of tender. Id. 
 rule for, when and how drawn up. Id. 
 on payment of costs. Id. 567. 
 service of copy of 567. 
 how far an acknowledgment of the right of action. 567, 8. 
 an admission of a legal demand only. 568. 
 generally, an admission of the contract. Id. 
 taking it out of court; 
 
 a waiver of irregularity in bringing it in. 563. 
 with costs, in discharge of the action: 568, 9. 
 
 proceedings thereon. 569. 
 Q. if a bar to a new action, after nonsuit. 570 {/). 
 proceeding in the action, for a greater sum; 569, 70. 
 consequences of Id. 
 costs. 570. 
 Q. Whether the plaintiff can be nonsuited after. 567 (u). 
 foreign, value of, how ascertained. 515, 16. 
 depositing in sheriff's hands. See tit. Deposit. 
 in sheriff's hands, may be taken in execution. 917. 
 MORT-D'ANCESTOR, assize of, damages in. 799. 
 MORTGAGEE, 
 
 of estate in Ireland., allowed to be bail. 230. 
 ejectment by, staying proceedings in. 487, 8. 
 how far affected by judgments. 851. 857, 8. 860. 
 
 MOTIONS,
 
 INDEX. 
 
 MOTIONS, 
 
 what. 436. 
 
 on the crown-side : 437. 
 
 for an attachment. Id. 438. 
 on the civil side: 438. 
 
 where an action is depending; 
 
 on behalf of the plaintiff. 200. 438, &c. 
 
 defendant. 200. 440, &?. 
 in ejectment. 442, &c. 
 where no action is depending; 
 
 to set aside an annuity. 445, &c. 
 notice of. 449, 50. 706. 
 
 affidavit in support of. 450, &c. and see tit. jiffidavits. 
 attendance of attornies on. 57. 
 
 what may or may not be made on the last day of term. 
 
 452,3.742.765. 
 for rules : See tit. Rules. 
 
 course observed in hearing. 461, 2. 
 what counsel are heard on. 462. 
 for a concilium; 438. 442. 
 
 argument of causes on: 459. 
 
 when and how brought on. Id. 1125, 6. 
 what counsel are heard on. 462. 
 moving for. Id. 463. 
 when appointed for particular days. 459. 
 
 to come on peremptorily. 59, 60. 460. 
 costs on. See tit. Costs. 
 MUTINY-ACTS. 177. 
 MUTUAL-Accounts; 
 
 will take a case out of the statute of limitations. 24. 
 Debts; See tit. Set-off. 
 
 arrest for balance of. 154, 
 Promises; 3, 4. 384. 
 actions on. 3, 4. 
 
 N. 
 
 NEGLIGENCE, 
 
 actions for. 6. 393. 
 NE-RECIPIATUR. 698. 772. 
 NEW-ASSIGNMENT; See tit. Pleas and Pleading. 
 
 plea of not guilty to, need not be signed or filed: 622. 
 issue on, bv whom made up. 666. 
 
 NEW.
 
 INDEX. 
 
 NEW-ASSIGNMENT; 
 
 costs on plea of not guilty to. 885. 
 
 judgment by default on. 889. 
 NEW-TRIALS, 
 
 origin and necessity of. 814, 15. 
 in what cases granted; 816. 
 in ejectment. Id. 
 after trial at bar. 771. 816, 
 nonsuit: 816. 
 
 for defect in bill of particulars. 537 (c). 
 concurring verdicts. Id, 
 contrary verdicts. Id. 
 in inferior court. Id. 
 
 after special case, defectively stated. 810. 
 grounds of moving for; 
 
 want of due notice. 816, 17. 
 
 proper jury 817. 838 (a), 
 misbehaviour of prevailing party. 817, 
 
 jury. Id. 
 absence of parties or witnesses. Id. 
 discovery of material evidence after trial. Id. 818 (e)- 
 misdirection of judge. 818. 
 rejecting witnesses. Id. 60. 
 error or mistake of jury. 818. 
 in a penal, hard, or trifling action. Id. 819. 
 
 after a point reserved. 818. 
 ■where the defence is unconscionable. Id. 
 for excessive damages. 819. 
 smallness of damages. Id. 
 cannot be had for one of several defendants. Id. 
 
 part of cause of action. 819, 20. 
 in criminal cases. 820, 
 motion for, when and how made. Id. 
 
 not allowed, after moving in arrest of judgment- 
 
 821. 
 affidavit in support of. Id. 
 judge's report on. Id. 822. 
 rule for, and proceedings thereon to new trial. 824, 
 costs on. See tit. Costn. 
 NIENT DEDIRE. 549. 673, 4, 5. 
 NIL DEBET, 591. 
 
 a nullity in assiimjiait. 506. 
 what may be given in evidence on. 593, 4. 
 NIL DIGIT, judgment by. See tit. Judgtnerils. 
 NIL H ABUIT in Tenementis, plea of, 594. 
 
 NISI-
 
 JNDEX. 
 
 NISI-PRTUS, 
 
 clause of, in jurj' -process. See tit. Jury-fitoceit. 
 order of. See tit. Arbitration. 
 record or roll of, what. 711. 
 contents of; 669. 711. 
 Placita.7\\. 
 Jurat a. /rf. 712. 
 Sciendum. Id. 
 by whom and how made up. 713. 
 sealinpf and passing. 682. 713. 
 in London and Middlesex. 713. 
 at the assizes. Id. 
 resealing. 713, 14. 
 
 must be passed again, but need not in general be 
 re-ingrossed, for new trial. 824. 
 amendment of. 66 1 . 
 in error. 11 22. 
 trials at. See tit. Trials. 
 NOLLE-PROSEQUI, 626. 
 what. 629, 30. 
 
 on plea of coverture, &c. 630. 
 of the whole, or part of cause of action. Id. 
 where there is a demurrer to part, and an issue to other 
 
 part. 631,2. 
 in actions against several defendants. 630, &c. 805. 
 costs on. See tit. Coats. 
 NON ASSUMPSIT, 591. 
 
 with what pleas it cannot be pleaded. 609 (J). 
 what mav be given in evidence on. 591, 2. 
 NON COMPOS MENTIS. See tit. Insanity. 
 NON DAMNII ICATUS, plea of. 596. 
 NON DEMISIT, plea of. 595. 
 NON DETINET; 591. 
 
 what may l)e given in evidence on. 593. 596, 7. 
 NON EST FACTUM; 591. 
 
 suggestion of breaches after. 511. 
 what may be given in evidence on; 
 in covenant. 593. 
 
 debt on bond, or other specialty. 595, 6. 
 special, may be delivered. 621, 2. 
 
 need not be signed. Id. 
 issue on, by whom made up. 666. 
 NON-FEAZANCE, 
 what. 5. 393. 
 Vol. II. 4 C NON-
 
 INDEX. 
 
 NON-FEAZANCE, 
 
 action for; 10. 
 
 declaration in. 398, 9. 
 not within the stat. 7 Jac. I. c. 5.903 {y). 
 NON INFREGIT CONVENTIONEM, 
 
 when a bad plea. 593. 
 NON OBSTANTE VEREDICTO. See tit. Judgments. 
 NON OMITTAS. See tit. Ca. Sa. Fieri Facias, and Process. 
 NON-PROS, 
 judgment of; 
 
 for not adjourning essoin. 105. 415, 16. 
 
 on removal by certiorari or habeas corfms. 351. 
 
 recordari facias loquelam. 359. 
 for not declaring; 412, &c. 
 by original. 363. 
 
 bill. 412, 13. 
 in a joint action. 414. 
 regular or irregular. 415. 
 replying, &c. 646. 
 entering issue. 680. 701. 
 certifying the record. 1093. 
 alleging diminution. 1105. 
 assigning errors. 1 107. 
 proceeding after original sued out. 1114. 
 form of. 843. 
 costs on. See tit. Costs. 
 motion to set aside. 439. 
 arrest after. 185. 
 NONSUIT, 
 
 origin and history of. 796. 
 for what causes. Jd. 
 
 defect of evidence, in a particular county. Id. 797. 
 after bringing money into court. 567 (u). 
 Q. if a bar to a new action. 570 (/). 
 advantage of. 797. 
 
 can only be at the instance of defendant. Id. 
 in an action against several defendants. Id. 798. 
 damages on, in replevin. 798. 
 iiile for judgment, not necessary on. 813, 14. 
 new trial after. 816. 
 judgment on ; See tit. Judgments. 
 
 as in case of. See same title, 
 staying proceedings on judgment, pending error. 471, 2. 
 NON SUM INFORMATUS, 
 
 judgment by. See tit. Judgmeiits. 
 NON-TENURE, plea of. 1043, 4. 
 
 NOT-
 
 INDEX. 
 
 NOT-GUILTY, 
 
 a good plea in debt on statute. 506. 
 in as.<iumpsit. Id. (n). 
 plea of, in trespass or case. 591. 
 what may be given in evidence on. 597, 8, 9- 
 NOTICE, 
 
 of action ; 72. 
 
 must state process intended to be sued out. 73. 
 to agents, when given. 55. 
 
 on process to appear ; ( 
 
 when necessary. 146,7. 
 its direction. 147. 
 
 form. Id. 
 irregularity in. Id. 
 of declaration. 407, 8. 
 
 not necessary in bailable actions, in C. P. 407 {d). 
 to plead ; Id. 
 
 after four terms. 425, 6. 
 of set-off. See tit. Set-off. 
 trial; See tit. Trials. 
 
 want of, ground for new trial. 816. 
 of inquiry. See tit. Inquiry. 
 of striking out rejoinder, &;c. 678 (c). 
 
 render. 240, 41. 
 need not be given of executing elegit. 940. 
 to produce deeds or writings, S:c. 736. 
 
 how it differs from a subpoena with a duces tecum. 
 
 736 (o). 
 of motion. 449, 50. 706. 708. 
 
 of judgments, what and when material. 851. 860, 1. 
 by attorney, not to pay money to his client. 287, 8. 
 of petitioning, Sec. on the lords' act. 965. 972. 974 (/), 
 of the allowance of writ of error. 1071 (b). 
 how served. 47, 8. 
 
 when necessary to be shewn in pleading. 388, 9. 
 NOVEL DISSEISIN, assize of, damages in. 799. 
 NULLA BONA, return of; 928. 
 proceedings thereon. 929, 30. 
 NUL-TIEL-RECORD, 
 
 plea of; 529. 591. 1008. 1044. 1046. 
 
 how concluded. See tit. Pleas and Pleadiiig. 
 
 what may be given in evidence on. 596. 
 
 must be delivered. 621, 2. 
 
 need not be signed. Id. 
 
 amendments allowed after plea of. 652. 
 
 NUL-
 
 INDEX; 
 
 NUL-TIEL-RECORD, 
 
 replication of, to a plea of privilege. 46, 7. 172 (A), 
 
 judgmentorrecognisance. 637 (z), 
 must have a Serjeant's hand, in C. P, 
 
 645 (r). 
 issue of; 665. 
 
 by whom made up. 666. 
 how triable. 689, 90. 
 proceedings on ; 
 
 where the record is of the same court: 689. 
 notice or rule to produce record. 690. 
 continuance of. Id. 
 where the record is of a different court. 691, 2. 
 certiorari and mittimus. Id. 
 judgment on: See tit. Judgments. 
 
 not within the statute 6 h 9 JV. III. c. 1 1. § 8. 513. 
 difference on, between a discontinuance and reversal of 
 
 judgment. 690, 1, 
 NUNC PRO TUNC. See tit. Judgments. 
 NUSANCE, action for; 7. 
 
 declaration in. 396. 
 
 O. 
 
 OATHS, of Attornies. 45. 
 OFFICERS of the Court: 
 judges. 29. 
 on the crown-side; 
 clerk of the crown, or coroner. 30, 
 secondary and clerk in court. Id. 
 clerk of the rules. Id. 
 examiner. Id. 
 calendar-keeper. Id. 
 clerk of the grand juries. Id. 
 on the plea-side ; 
 
 prothonotary, or chief-clerk. Id. 
 master or secondary, and assistant. Id. 
 clerk of the rules. Id. 
 papers. Id. 
 declarations. Id. 
 
 common-bails, /losteas and estreats. Id. 
 judgments. Id. 
 
 dockets, commitments, and satisfactions. Id. 
 signerof the writs. Id. 
 
 OFFICERS
 
 INDEX. 
 
 OFFICERS of the Court; 
 on ihe plea-side: 
 
 sealer of the writs; 32, S. 
 
 duty of. 33 (t). 
 custos brevium. 31. 
 filacers; Id. 
 
 duty of, in signing writs. Id. (k). 
 exigenter. Id. 
 clerk of the outlawries. Id. 
 
 inner and upper treasury. Id. 
 outer treasury. Id. 
 errors. Id. 
 bag-bearer. Id. 
 clerks of nisi firius. Id. 
 chief-usher and crier. 32, 3. 
 deputy-ushers and criers. 33. 
 judges'-clerks. 31. 
 of the King's-Bench prison; 
 marshal. 32. 
 deputy-marshal. Id. 
 chaplain. Id. 
 clerk of the papers. Id. 
 
 day -rules. Id. 
 turnkeys. Id. 
 tipstaffs. Id. 
 sheriffs. 33. 
 at nisi firius ; 
 
 clerk of nisi /irius. 34. 
 associate and marshal. Id. 
 crier and train-bearer. Id. 
 of the circuits; 
 clerk of assize. Id, 
 associate. Id. 
 clerk of arraigns. Id. 
 
 indictments. Id. 
 judge's marshal. Id. 
 crier, clerk, steward, and tipstaff. Id. 
 lien of, for their costs. 287 (m). 
 of the army, half-pay of, not assignable. 968. 
 OFFICERS, attornies exempt from. 265. 
 disturbance of. 396 {g). 
 when saleable under the lords' act. 968. 
 ORDER of A7«z Prius; See tit. Arbitration. 
 motion to make it a rule of court. 442. 
 
 ORI-
 
 INDEX. 
 
 ORIGINAL- WRIT, 25. 61. 
 
 jurisdiction of court by. 28. 
 what; 93. 
 
 special. 61 (a), 
 common. Id. 
 when it lies. 93. 
 
 in what cases necessary. Id. 9i. 97. 126, 7. 
 benefit of proceeding by. 94. 1062. 
 for commencing or removing actions. 95. 
 de cursu or magistralia. Id. 
 fircecipe,, or •«" tefecerit securum. Id. 9S. 
 by whom issued. 96. 
 when and how sued out. Id. 97. 
 form of. 96. 
 direction. 97. 
 
 teste and return. Id. 101, 2. 
 amendment of. 104. 661. 
 declaration by; see tit. Declaration. 
 venue in. 375. 
 
 need not repeat the original. 377. 
 oyer of, cannot be demanded. Id. (ft). 529, 30. 
 issues by: See tit. Issues. 
 
 award of venire /ados. 672. 
 want of, aided by verdict. 102. 832. 1 1 13. 
 
 error, after judgment by default, &c. 102. 1108. 
 
 1113. 
 how assigned. 1108. 
 confession of. 1118, 19. 
 suing out, after error brought. 1113, 14. 
 certiorari for: 1 109, 8cc. 1 1 14, 15. 
 
 proceedings thereon. 1111, 12. 1119,20. 
 OVERSEERS, 
 
 attornies not liable to be chosen. 265. 
 inquiry of damages in actions against. 518. 
 OUTLAWRY, in civil actions, what; 125, 6. 
 in a separate or joint action. 125. 326, 7. 362. 
 forfeiture upon. 125, 6. 
 women waived. 126. 
 upon mesne-process. Id. 
 
 final-process. Id. 127. 
 \\v\\. of exigi facias. 127, 8. 
 
 «//occmr exigent. 128. 
 proclamation: Id. 129. 
 
 teste and return of. 1 29 . 
 sheriff's return to. 130. 
 foreign proclamation. 129, 30. 
 
 OUT-
 
 INDEX. 
 
 OUTLAWRY, 
 
 proceedings on the exigent : 130, 
 arrest. Jd. 
 
 voluntary appearance. Id. 
 bail. Id. 131. 
 judgment of outlawry, or waiver. 131. 
 charging defendant in execution on. 322. 
 cafiias utlagatum., general or special ; 1 3 1 . 
 form of the general writ: Id. 132, 
 proceedings thereon. 132j 
 bail. Id. 133. 
 bail-bond. 134. 
 form of the special writ: 135. 
 . proceedings thereon. Id. 
 inquisition. 136. 
 retuiTi. Id. 
 
 transcript into the Exchequer. Id. 
 venditioni exponas. Id. 
 scire facias. Id. 
 levari facias. Id. 137. 
 bill of discoveiy, &c. 137. 
 how to obtain satisfaction from the outlaw's property. 1 37,8, 
 of reversing it, by writ of error or motion. 139. 440. 
 appearance. 139, 40. 
 bail. 140, &c. 
 costs. See tit. Costs. 
 restitution. 143. 
 
 limitation of actions after reversal. 16. 
 declaration after. 140(A). 
 pleaof; 579. 589. 
 
 after the last continuance. 775. 777. 
 after judgment. 957. 
 
 in a civil suit, considered as an exe ution within the 8 jinn. 
 
 c. 14. 927. 
 landlord's remedy, after a distress made and outlawry re- 
 versed. Id. 
 OYER, 
 
 of deeds, Sec. in what cases demandable; 
 by defendant. 526, 7. 
 plaintiff. Id. 
 by and of whom demanded. 527. 
 cannot be dispensed with by the court. Id. 
 when necessary to bu demanded during the same 
 
 term. 523. 
 what must be delivered under it. 527. 
 
 OYER,
 
 INDEX. 
 
 OYER, 
 
 of records. 688, 9. 
 
 original writs. 529, 30. 377 (^). 
 mesne-process. 124. 
 demand of, at what time to be made. 418. 530, 
 insistintj upon. 530, 
 contesting. Id. 
 no settled time for plaintiff to give it. Id. 
 party of whom demanded must carry deed, &c. to his ad- 
 versary. 527. 
 in what time it must be given by defendant. 531. 
 judgment for not giving it. Id. 
 
 setting forth the whole deed, &c. 506. 
 what use may be made of it in pleading. 531. 
 time to plead or reply after. 426. 530, 1. 
 
 P. 
 
 PAPER-Days; 459. 
 
 argument of causes on. Id. . 
 PAPER-Book; See tit. Issues. 
 
 when delivered to the judges. 460. 686, 7. 
 in error. 1 122, 3. 
 PARISH-BOOKS, inspecting. 539, 40. 
 
 officers, costs in actions against. See tit. Costs. 
 PARLIAMENT, 
 
 abatement of writ of error in, by prorogation or dissolu- 
 tion of. 1098. 
 PAROL-DEMURRER. 579,80, 1033. 1121. , 
 PARTICULARS, 
 
 ofplaintiff's demand; 534. 
 
 in what cases demandabler Id. 
 in assum/is?r, or debt for goods sold, 8cc. Id. 
 of objections to abstract. 535. 
 debt on bond, for performance of covenants, &c. 
 
 535 
 where there is a general form of declanng. Id. 
 in ejectment. Id. 
 in what cases not demandable: 
 
 in special assuj7i/isits,Sx.c. Id, 536. 
 actions for wrongs. Id. 
 summons for; 534. 
 
 when taken out. Id. 
 order on: Id. 
 
 how far a stay of proceedings. 535. 
 how given, 536, 7 
 
 PARTI-
 
 INDEX. 
 
 PARTICULARS, 
 
 of defendant's set-Off; 536. 
 
 summons and order for. Id. 
 consequence of not delivering. Id. 
 summons and order for further particulars. Id. 
 
 to amend particulars. Id. 537, 
 effect of, at the trial. 537, 8. 
 
 Q. if a ground for striking out inapplicable counts. 559. 
 PARTNERS, 
 
 affidavit of debt by. 1 64. 
 distraining effects of. 108. 
 actions by or against; 8, 9. 
 pleas in. 580, 1. 
 
 set-off in, when allowed. 604, 5. 
 executions against. 921. 
 signing note on lords* act. 970. 
 PATENT, 
 
 venue in action for infringing. 548. 
 scire facias for repealing; 982. 
 costs in. 1049. 
 PAUPERS, 
 what. 67. 
 
 when and how admitted to sue in forma, fiaufieris. Id. 68. 
 effect of such admission. 68. 
 not liable to costs. Id. 69. 
 may receive them. 69. 
 how answerable for delay. Id. 
 not allowed to defend in forma fiaufieris. 67. 
 
 entitled to issue-money. 678. 
 may have trials at bar. 768, 9. 
 PAYMENT, 
 
 when presumed in debt on lx)nd. 20, 1. 
 to the attorney or agent, when payment to the principal. 55. 
 of money into court. See tit. Money. 
 when pleaded or given in evidence. 592. 596. 1044. 1046. 
 without acquittance, how pleaded at common law. 828. 
 PEERS, 
 
 how proceeded against; 25. 61. 62 (a). 77. 93,4. 96. 1 10, 
 
 &c. 
 jointly with others. 111,12, 
 process against, by original: 1 12. 
 
 how it differs from process against other persons. 1 1 1 (§■). 
 cannot cast an essoin. 105. 
 privileged from arrest. 169, 70. 
 Scotch and Irish peers. Id. 
 
 PEERS, 
 Vol. II. 4 D
 
 INDEX- 
 PEERS, 
 
 cannot be attached for non-payment of money'. 170. 
 
 non-perfovmance of award. 757. 
 taken in execution. 115. 954. 
 liable to attachment, for contempt of process. 170. 738. 
 bail of, discharged. 243. 1044. 
 PENAL-ACTIONS, 
 limitation of 13, &c. 
 where laid. 374. 
 arrest in. 152. 
 
 may be commenced by latitat. 293. 
 compounding. See tit. Comfioiuiding Penal Actions. 
 staying proceedings in, on payment of the penalty. 48 1 . 
 on the Stat. 2 1 Jac. I. c. 4. 466, 7. 
 other statutes. 466, See. 
 
 till security be given for costs. 477 
 double pleas not allowed in. 610. 
 amendments in, at common law: 659, 60, 1. 
 
 by adding continuances. 628. 
 not within the statutes of amendments. 661. 
 16 & 17 Car. II. c. 8. 1082. 
 lords' act. 964. 
 issue-money in. 678, 9. 
 judgment in: 863. 
 
 as in case of a nonsuit. 703. 706, 7. 
 trial of, when it cannot be put off. 710. 
 notice to produce deeds, Sec. on vvbom served. 736. 
 damages in, not recoverable by common informer. 40 1 . 798. 
 
 judgment reversed for. 1129. 
 costs in. See tit. Coats. 
 within the 32 Hen. VIII. c. 30, 839. 
 Q, if error lies in the Exchequer-chamber, in a penal action. 
 
 1062, 3, 
 PENALTY, 
 
 arrest not allowed for. 153. 159. 
 •when considered as the debt at law . 486. 
 staying proceedings on payment of. 482, 3. 
 pleas in debt for. 594. 
 cannot be set off. 604. 
 PEREMPTORY-Days. 460. 
 Paper. 461. 
 
 Undertaking. See tit. Judgments as in case of a MjusuU . 
 PERFORMANCE, 
 
 when pleaded, or given in evidence. 590. 592, 3. 
 renlication to plea of. 637 (?). 
 
 PER
 
 INDEX. 
 
 PER MINAS, 
 
 must be pleaded, in debt on bond. 595, 6. 
 PERSON, 
 
 pleas in abatement to. See tit. Pleas and Pleading 
 PETITION, 
 
 against gaolers. See. on the lords' act. 205, 6. 
 
 for day-rules. 961. 
 
 on the lords' act. 966. 
 
 for an original writ. 103. 1113, 14. 
 
 a writ of error. 1065. 
 to the House of Lords ; 
 
 to return certiorari by a short day. 1112. 
 
 have the cause appointed, for a short day. 1 125. 
 PETTY OFFICERS, 
 
 in navy, what. 176 (c). 
 PEWS. See tit- Seats in Churches. 
 PLACITA. 711. 1115. 1124. 
 PLEAS and PLEADING, 
 time for pleading; 
 
 upon an attachment of privilege. 273. 
 
 a bill against attornies, &c. 275. 420. 
 
 prisoners in the custody of the 
 
 marshal. 308, 9. 420, 
 sheriff, &c. 315, &c. 
 certioran or habeas corfms. 351,2.419, 20, 425. 
 Jione or recordari, Sec. 360. 
 upon a bill oi Middlesex, &c. or original writ; 
 formerly. 419. 
 at this day ; 
 
 when the plaintiff declares absolutely. 42 1 . 
 
 de bene esse. 422, 3. 
 after an imparlance. 424. 
 four terms. 425. 
 changing the venue. 426. 
 demanding oyer. Id. 530, 1. 
 amending the declaration. 42 6. 654. 
 judgment o( resfiondeac ouster. 589. 
 to the jurisdiction. 585, 6. 
 in abatement. Id. 
 
 cannot be pleaded before bail perfected. 423. 587. 
 after 10 o'clock at night. 622. 
 obtaining further time to plead : 426, 7. 
 motion for. Id. 441. 
 a month what. 427, «. 
 
 PLEAS
 
 INDEX. 
 
 PLEAS and PLEADING, 
 
 general order of pleadingf^. 572. 
 pleas to the jurisdiction: 573. 
 in local actions. Id. 
 ejectment. Id. 
 transitory actions. Id. 574. 
 when to be pleaded. 418. 585, 6, 7. 
 mode of concluding. 585. 
 
 must be pleaded in /ier^o/z, and with only Aa//" de- 
 fence. 584. 
 in abatement; 
 
 to the person of plaintiflF. 579. 
 
 defendant. 418. 537, 8. 580, &c. 
 count. 581. 
 writ; Id. 
 
 form of. Id. 582. 
 action of. 583. 
 in scire facias. 1034. 1043. 
 general requisites of. 583. 
 may be pleaded by attorney. 584. 
 beginning and concluding. 583, 4, 5. 
 cannot be pleaded after a. full defence. 584. 
 when to be pleaded: 418. 585, 6, 7. 
 
 before bail perfected. 587. 
 must be verified by affidavit. 587, 8. 
 
 signed and filed. 588. 
 replying or demurring to. Id. 
 judgments on. See tit. Judgments. 
 writ may be abated in part, and stand good for 
 
 the remainder. 583. 
 time to plead, after judgment of resfiondeat 
 
 ouster. 589. 
 in what cases a second plea in abatement is al- 
 lowed. Id. 
 in bar, what; 590. 
 
 grounds of defence on: 
 
 in actions upon contracts. Id. 
 for wrongs. Id. 
 in denial; 
 
 of the whole cause of action. 591. 
 a part of it. Id. 595. 
 in confession and avoidance; 
 by matter precedent. 591. 
 subsequent. Id. 
 by way of estoppel. Id. 
 what is aided or waived by. 101. 268. 
 
 PLEAS
 
 INDEX. 
 
 PLEAS and PLEADING, 
 pleas in bar; 
 
 general -issue, what. 591. 
 
 when proper to be pleaded. Id. 
 what may be given in evidence under it; 
 in assumfisit. Id. 592. 
 covenant. 593. 
 debt on simple contract. Id. 594. 
 
 bond, or other specialty. 595. 
 record. 596. 
 detinue. Id. 
 trespass to persons. 597. 
 
 personal property. Id. 
 real property. Id. 
 against justices, &c. Id. 
 case. 598. 
 pleas amounting to. 599. 
 of colour; 
 
 implied. Id. 600. 
 express. 600, 1. 
 engrossing, entering and delivering. 62 1 . 
 need not be signed. Id. 
 waiving. 623. 
 
 withdrawing, to plead it de novo., with a notice of 
 
 set-off, &c. 441. 623. 
 special pleas, when necessary; 
 in assumfisit. 592, 3. 
 covenant. 593. 
 
 debt on simple contract. 593, 4. 
 for rent. 594, 5. 
 gui-tam. 594. 
 for a penalty. Id. 
 
 on bond, or other specialty. 595, 6. 
 record. 596. 
 detinue. Id. 597. 
 trespass. 597. 
 trover. 598. 
 
 action for words. Id. 599. 
 escape. 599. 
 must in general be signed and filed. 622, 
 what pleas need not, but may be delivered. 621, J. 
 origin and reason of signing pleas by counsel. 622 (r). 
 striking out, and giving general issue. 623. 
 rule to abide by. 439. 623, 4. 
 
 PLEAS
 
 INDEX. 
 
 PLEAS and PLEADING, 
 pleas in bar; 
 
 single or double: 
 
 at common law. 608. 
 by 4 Ann. c. 16. Id. 609. 
 determinations upon this statute. 609, 10. 
 motion for, and rule to plead several matters. 441. 
 
 611, 12. 
 all double pleas must be filed. 622. 
 Q: if they must appear to be pleaded by leave of 
 
 the court. 612 (b). 
 costs of double pleading. 612, &c. 
 in general, their qualities and conditions. 404, &c. 
 
 617, &c. 
 general pleading, in what cases allowed. 619. 
 conclusions of. 620. 
 what are issuable. 428, 9. 
 searching for. 505, 6. 
 adding. 441. 624. 
 amending. See tit. Afnendments. 
 setting aside. 563, 4. 419. 586. 588. 
 replications; 
 in denial; 626. 
 
 of the whole plea. 633. 
 a part of it; Id. 
 
 with a traverse: 634. 
 
 what it is, and when necessary. 685. 
 rules respecting it. Id. 636. 
 in confession and avoidance; 637. 
 by matter precedent. Id. 
 subsequent. Id. 
 by way of estoppel. 626. 637. 
 qualities of. 637. 
 
 may contain several distinct answers to the plea. Id. (i). 
 must be consistent with declaration. Id. 
 departure, what. 638. 
 
 instances of: Id. 639. 
 
 as to time and place. 639, 40. 
 how taken advantage of. 640. 
 by way of new-assignment; 
 
 general nature of. Id. 
 as to time. Id. 
 
 place. 641, &c. 
 
 other circunistances. 643. 
 
 PLEAS
 
 INDEX. 
 
 PLEAS ahd PLEADING, 
 replications; 
 
 by way of new-assignment; 
 
 must be certain. 643. 
 pleas to. Id. 644. 
 mode of concluding. 645. 
 conclusions of. 644, 5. 
 when delivered or filed. 645. 
 signed. 622 (/?). 645. 
 rejoinders, sur-rejoindei's, rebutters, sur-rebutters, &c. 646. 
 amendment of pleas, replications, &c. 654, 5, &c. 778. 
 plea or replication bad in part, is bad in toto. 647. 
 of nui tiel record, how concluded. 688. 
 replication to. Id. 
 replication of nul tiel record., how concluded. Id. 
 
 rejoinder to. 689. 
 pleas fiuis darrein continuance; 
 what. 774. 1047. 
 
 when and in what cases pleadable. 774, 5. 
 in abatement; 775, 6. 1047. 
 peremptory. 776. 
 conclusion of. 777. 
 after bringing money into court. 568 (m). 
 in bar; 775. 
 
 form of, at the assizes. 776. 
 conclusion of. 777. 
 waiver of former bar. 776. 
 must be certain. Id. 
 how restrained. 778. 
 proceedings on. Id. 
 other pleas pleadable at nisi firius. 777. 
 pleadings cannot be objected to, on demurrer to evidence. 
 
 792. 
 what defects in pleadings are aided after verdict, at com- 
 mon law. 826, &c. 
 what defects are amendable. See tit. jimcndments. 
 
 cured, as matter of form, by statutes of 
 jeofails. 834, 5. 
 repleader; 814. 
 
 when granted. 829. 
 rules respecting. Id. 830. 
 issues on, by whom made up. 666. 
 how it differs from u judgment n&;i obstante veredicto. 
 
 830, 1 . 
 PLEAS
 
 INDEX. 
 
 PLEAS and PLEADING, 
 
 pleadings in scire facias. See tit. Scire Facias. 
 error. See tit. Error. 
 PLEA-ROLL. 627. 661, 2. 
 PLEDGES, 
 
 by original. 106. 
 
 bill. 401. 
 want of, aided. 833. 
 PLENE ADMINISTRAVIT, 
 plea of; 
 
 when it maybe pleaded in «areytrczas. 1020. 1046. 
 need not be signed or filed. 622. 
 issue on, by whom made up. 666. 
 evidence on. 294. 369. 858. 
 costs on acquittal of one defendant. 90 1 . 
 confession of, and judgment of assets guandoy See. 633. 
 scire facias on. 1017, 18. 
 PLURIES, Writs of. See tit. Co. Sa. Fieri Facias, and Procets. 
 POLLS, challenging. See tit. Jury. 
 POLICY of INSURANCE, 
 delivering copy of. 532, 3. 
 actions on; 
 
 changing venue in. 547. 
 bringing money into court. 563. 
 consolidation-rule, what. 557. 
 history of. Id. 
 
 terms imposed on defendant. Id. 
 motion for leave to take out execution, after verdict 
 
 forplaintiff. 488, 9. 909. 
 in what cases the verdict is conclusive, and in what 
 
 not. 558, 
 costs in. Id. 570, I. 
 
 evidence of interest, on execution of inquiry. 523. 
 PONE, or Si tefecerit securum., 96. 
 to remove a replevin cause; 
 
 what, and when it lies. 352, 3. 
 
 direction. 353, 4. 
 
 form of. Id. 
 
 fee on issuing. 97 (t^). 
 
 cause for, when shewn. 355. 
 
 what. Id. 
 effect of. 356, 
 
 PONE,
 
 INDEX. 
 
 PONE, or Si tefecerit securum., 
 to remove a replevin cause ; 
 
 receipt and allowance. Id. 
 
 return ; < 
 
 when and how made. Id. 357. 
 what is good. 357. 
 effect of filing. Id. 
 when the plaint is removed under it. 358. 
 declaration on ; 
 de novo. 359. 
 rule for. Id. 436. 
 demand of. 359. 
 non-pros. Id. 
 appearance ; 
 
 rule for. Id. 436. 
 process to compel. 359, 60, 
 time for pleading. 360. 
 subsequent proceedings. Id. 
 per vadios, to compel appearance. Id. 
 POPISH RECUSANCY. 579. 589. 
 POSSESSION, sufficient against a wrong-doer. 396 
 POTSEA, 
 
 what. 811. 
 
 when and by whom entered. Id. 
 
 stayed in officer's hands. 809. 
 form of; 
 
 on a verdict for plaintiff. 81 1 (z). 
 
 nonsuit, or verdict for defendant. /(/. 
 where a juror is withdrawn. 785 (n). 
 new one ordered. 811. 
 amendment of. 661,2. 802.811, 12. 
 stamping. 841. 
 marking. Id. 
 
 must be brought in, before motion in arrest of judgment, 
 
 &c. 840. 
 rule for bringing it in. Id. 
 POST-OFFICE Books, inspecting. 539. 
 POST TERMINUM. 845,6. 
 POUNDAGE; 978, &c. 
 
 levying, on stat. 43 G. III. c. 46. § 5. 9 1 1 . 
 remedy for: 980, 1. 
 
 against the sheriff, when excessive. Id. 
 POWER of ATTORNEY, 
 
 to demand money on award. 760. 
 PRAECIPE. See tit. Pr9ces8. 
 
 Vol. II. 4 E PRJIMUNIRE
 
 INDEX. 
 
 PR^MUNIRE. 679. 
 PRESCRIPTION. 395. 
 PRESUMPTION, 
 
 of payment or release, in debt on bond. 20, 21. 
 PRISONERS, 
 
 jurisdiction over. 28. 
 commencing actions against ; 
 
 in custody of the marshal. 61. 
 the Fleet. 62 (a). 303 (/). 
 Exchequer. 62 (a). 
 proceedings against; 
 
 on a removal to or from the Fleet, or prison of an infe- 
 rior court: 
 before declaration. 299, 300. 
 after declaration. 301.322,3. 
 in custody of the marshal; 
 
 fees payable by. 296 (a), 302. 
 
 on a civil or criminal account. 296. 
 
 how committed or removed to; 
 
 on the return of ccfd corfms^ £cc. Id. 
 a render in discharge of bail. Id. 
 return to a habeas corfius. See tit. HabeasCorJius , 
 proceedings against, previous to the plea; 
 
 by the same plaintiff, for the same cause of action, 
 by bill: 61. 291,2. 303. 303. 
 
 in vacation. 303. 
 original writ. Id. 
 time for declaring, on a removal, commitment-, 
 or render in discharge of bail. 304. 
 further time. 326, 7. 362. 
 by the same plaintiff, for a different cause of action, 
 a third person: Id. 306. 305 
 
 in term. 307. 
 
 vacation. Id. 308. 
 rule as to detainer. 306 (s). 308. 
 time for pleading. 308, 9. 420. 
 custody of the sheriff, &c. 
 •when and how bailed. 194, &c. 
 treatment of. 200, &c. 
 proceedings against, previous to the plea; 
 by the same, or a different plaintiff. 311. 
 time for declaring. 311, 12, 13. 
 further time. 326,7. 362. 
 mode of declaring: 313, 14. 
 
 affidavit of delivery, Sec. 314, 15. 
 
 PRISONERS,
 
 INDEX. 
 
 PRISONERS, 
 
 in custody of the sheriff, &c, 
 
 proceedings against, previous to the plea ; 
 times for appearing, and pleading. 315, 16. 
 demand of pica. Sec. 317. 
 notice of filing plea, when necessary. Id. 
 in custody of the marshal, or sheriflT, fee. 
 
 may put in and justify bail in vacation. 233. 
 
 cannot commence or prosecute aclions,\vhenattornies.. 
 
 269, ro." 
 
 oh a criminal account, cannot be charged with a civil 
 action, without leave. 306, 7. 
 proceedings against, subsequent to the plea; 
 notice of trial to turnkey good. 319. 693. 
 times for proceeding to trial or final judgment, and 
 
 execution. 318, 19. 
 mode of proceeding to trial and final judgment. 3 1 9, 
 charging in execution ; Id. 20. 
 
 in the King's-Bench prison. 320. 
 in a county-gaol. 322. 
 in the Fleet. Id. 323. 
 
 prison of an inferior court. Id. 
 
 new charge unncessary, on plaintiff's 
 
 death. 323. 
 
 when and how discharged, for not proceeding in due 
 
 time. Sec. 323, 4. 440. 
 causes to prevent their discharge. 326, 7, 8. 
 consequences of being superseded, or supersedeable. 
 
 328. 
 warrants of attorney by. 492, &c. 
 removal of, by habeas corjius ad testijicandum. 739. 
 in execution ; 
 
 treatment of. 203. 957. 960, &c. 
 removal of by habias cor/nis, 957. 
 when entitled to rules of prison. 960. 
 
 day-rules. 961, 2. 
 how relieved by insolvent-acts. 962. 
 when entitled to benefit of lords'-act. 962, Sec. 
 when and how discharged under it; 
 
 notice, petition, copy of causes, and afiidavit. 
 
 965, 6cc. 
 rule of court, in town. 966, 7. 
 ^ country. 967. 
 
 whi n brought into court. 966, 7. 
 examination : y67. 
 
 interrog^atories. 968, 9. 
 
 PRISONERS,
 
 JNDEX. 
 
 PRISONERS, 
 
 in custody of the marshal, or sheriff, 8cc. 
 in execution ; 
 
 when and how discharged under lords' act ; 
 objections to schedule. 969. 
 discharge. 967. 970, 
 assignment of effects. Id. 
 remanding. 968. 
 allowance. 969, &c. 
 when and how compelled to deliver up their 
 
 effects. 971, &c. 
 PRIVILEGE, 625. 696. 
 
 of parliament. 77. 110, &c. 170, 1. 
 from arrest; 
 
 personal. 167, &c. 
 local. 188. 264. 
 temporary. 189. 
 of attornies, &c. 171, 2. 264, &c. 
 writ of. 265. 
 
 when allowed against privilege. 266, 7. 
 waiver of. 267, 8. 
 how pleaded. 47. 172 Qi). 579. 
 in what time. 418. 
 
 
 PRIVITY, of Contract. 372, 3. 
 
 Estate. 373. 
 PROCEDENDO ; 190, 91. 466. See also tit. Habeas Cor/ius, 
 what, and when it lies, and when not. 346, &c. 
 
 on a removal by certiorari or habeas corfius. Id. 
 
 after return filed. 348. 
 on a removal by re. fa. lo. &c. 353. 356. 
 PROCEEDINGS, setting aside and staying. See tit. Setting 
 
 aside.) and Staying Proceedings. 
 PROCESS, 
 
 attachment, in trespass. 78. 
 bill of Middlesex. 24. 78. 86, 7. 
 
 ^^*. X bill of Middlesex. 78, 9. 
 plurics 3 
 
 latilat. 24. 79. 81. 
 
 "^l'^^ \ cahias. 78, 9. 81. 
 plunes 3 
 
 non omittas. 79, 80, 1. 192. 257. 
 
 should correspond with the previous process. 80, 
 
 in Jt'ales and the C'g,nnti' s-Palatine. 85. 
 
 in what manner issued. 80. 
 
 by whom signed. Id. 
 
 ■when sealed. 81. 
 
 PROCESS,
 
 INDEX. 
 
 PROCESS, 
 
 prxcipe^ &c. 81. 
 
 common; Id. 
 
 need not be in a plea of trespass. 3S. 
 
 notice to appear to. 146, 7. 
 
 special; 81. 
 
 ac-etiain: 82. 84. 
 
 on the lottery-act. 84. 
 
 against bail. Id. 
 
 against several defendants. 80. 
 
 direction. 84, 5, 6. 
 
 teste. Id. 
 
 return. 86, 7. 
 
 indorsementof the date. 88,9. 
 
 sum sworn to. 145. 
 
 attorney's name. 89, 90. 271, 2l 
 
 irregularity in. 90, 1. 147. 
 
 motion to quash. 440. 
 
 amendment of. 83. 91.660. 
 
 by original; 
 
 summons. 105. 108. 376. 
 
 attachment: 106. 108. 376. 
 
 how executed. 106. 
 
 testatum pone or attachment. 107. 
 
 distringas: Id. 
 
 issues. Id. 108. 
 
 how far affected by stat. 12 Geo. I. c. 29. Id. 109. 
 
 against corporations. 109.1)6. 
 
 hundredors. 116, See. 
 
 peers, and members of the House of Commons. 
 
 112. 
 
 capias. 122. 
 
 alias "^ 
 
 pluries [ ^ . ,c,« ^ 
 
 . , , > cajnas. 123, 4. 
 
 testatum C ' 
 
 non omittas J 
 
 teste and return of. 113. 124, 
 
 amendment of. 104. 125. 
 
 bailable. 150. 
 
 not bailable. 146. 
 
 common or serviceable: Id. (d). 
 
 notice to appear to. 146, 7. 
 
 service of copy of; Id. 148. 
 
 ■* in what cases. 146. 148. 
 
 of what process. 146, 7, 8. 
 
 PROCESS,
 
 1 INDEX. 
 
 PROCESS, 
 
 service of copy of; 
 by whom. 148. 
 
 when. Id. v 
 
 where Id. 149. 
 how. 149. 
 
 ag;ainst husband and wife. Id. 
 upon the bill against members of the House of Com- 
 in what cases void. 183. mons. 113, &cc. 
 
 when entered on a roll. 1 10. 
 contempt of. See tit. Attachment. 
 for bringing in the jury. See tit. Jury-Preceii. 
 of execution. See tit. Execution. 
 error in, assignable in the same court. 1056, i. 
 PROCHEIN-AMY; See tit. Infant. 
 
 liable for costs to the plaintiff's attorney. 72 (a), 
 PROCLAMATION, Writ of; 128, &c. 
 
 foreign. 129, 30. 
 PROFF.RT m Curia. 395. 1024. 1042. 
 PROHIBITION, 
 
 when grantable the last day of term. 453. 
 issues in, may be made up by defendant. 682. 
 trial by proviso in. 700. 
 costs in. See tit. Costs. 
 PROMISES, 
 express. 2. 
 implied. 3, 4. 
 PROMISSORY-NOTES. See tit. Bills of Exchange s^nA Pro- 
 missory JVotes. 
 PROTECTION, 
 writ of. 189. 
 of the king's debtor; Id. 
 plea of. 579. 
 PROVISO, Trial by. See tit. Trials. 
 
 PUIS DARREIN CONTINUANCE. See tit. Pleas and 
 
 Pleading. 
 PURCHASERS, 
 
 how affected by judgments. 851. 856, &c. 
 PUTTING off TRIALS. See tit. Trials. 
 
 Q 
 
 QUAKER, 
 
 affirmation by, to be admitted an attorney. 45. 
 to hold to bail. 154. 
 
 not sufficient to ground attachment. 761. 
 
 QUAN-
 
 INDEX. 
 
 QUANTUM MERUIT, or VALEBANT. 3. 
 QUARE IMPEDIT, 
 
 inquiry of damages in. 517. 
 
 by the king, double plea not allowed in. 610. 
 
 issues in, may be made up by defendant. 682. 
 
 trial by proviso in. 700. 
 
 damages in. SOO. 
 
 costs in. See tit. Costs. 
 QUARTO DIE POST. 101. 
 QUASHING Writs oi certiorari^ when allowed or not. 335. 
 
 error. See lit. Error. 
 QUI-TAM ACTIONS. See tit. Penal actions. 
 QUO-MINUS CAPIAS. 62 (a). 
 QUO WARRANTO. 611. 838, 9. 
 
 R. 
 
 RAVISHMENT of Ward. 1061. 
 REAL ACTIONS; 1. 
 damages in. 799. 
 costs of. See tit. Costa, 
 scire facias in. 1000. 
 REBUTTERS. See tit. Fleas and Pleading. 
 RECAPTION. 190. 311. 
 RECOGNISANCE, 
 what. 984. 
 at common law: Id. 
 
 to the kingor'a subject. Id. 
 before whom acknowledged: Id. 
 
 in London. Id, 
 must be inroUed. 985. 
 of bail, 
 • in the action; 
 
 by bill. 219, 20.992. 
 original: 220. 992. 
 
 to reverse an outlawry, 142. 
 entry of; 233. 
 
 by whom, when, and how made. Id. 
 proceedings on: See tit. ^a//and ScireFacias. 
 staying. 474, 5. 
 ■*i> error; 991, 2. 998. 1075,6. 
 in what sum. J 08 5. 
 
 Avhen the party must join in it. Id. 1086. 
 when not. 1086 (/). 
 form of, 
 
 in the Common-Pleas. 1086. 
 King's-Bench. Id. 
 
 RECOG-
 
 INDEX. 
 
 RECOGNISANCE, 
 
 of bail in error; 
 
 proceedings on. See tit. Bail and Scire Facias, 
 by statute; 
 
 on a statute-merchant. 985, 6. 
 
 staple. 945. 986. 
 in nature of a statute-staple. 987, 8. 
 from what time it binds the landj 
 at common law. 989. 
 by the statute of frauds. Id. 
 registering, in Middlesex and Yorkshire. 862. 990. 
 RECOGNISANCE-ROLL. 233. 
 RECORD; See tit. A'ul del Record. 
 
 of J^'isi Prius. See tit. .^isi Prius. 
 when removed or not, on a certiorari or habeas cor* 
 
 tiu8. 341. 349. 691,2. 
 RECORDARI FACIAS LOQUELAM, 
 what, and when it lies. 352. 354. 1139. 
 direction. 354. 
 form of. Id. 
 fee on issuing 97 (x»). 
 cause for, when sI1e^vn. 355. 
 
 what. Id. 
 effect of. 356. 
 receipt and allowance. Id. 
 return; 
 
 when and how made. Id. 357 . 
 what is good. 357. 
 effect of filing. Id. 
 when the plaint is removed under it. 358; 
 declaration on; 
 
 de iiovo. 359. • 
 
 rule for. Id. 436. 
 demand of. 359. 
 nou-firos. Id. 
 appearance; 
 
 rule for. Id. 436. 
 process to compel. 359, 60. 
 time for pleading. 360. 
 subsequent proceedings. Id. 
 RECOVERY, 
 
 for the same cause, when pleaded or given in evidenfce;. 
 
 592. 594. 596. 598. 
 scire facias on error to I'e verse. 1034. 1 116. 
 RE-DISSEISIN, damages on writ of. 799. 
 RE-EXTENT. 950, l, 2. 
 
 REFERENCE;
 
 INDEX. 
 
 REFERENCE; See tit. Arbitration. 
 
 how far a stay of proceedings. 470. 748. 
 effect of agreement to refer. 748. 
 to the master. 485. 514, 15. 
 REGISTERING JUDGMENTS. See tit. Judgments, 
 REJOINDERS. See tit. Pleas and Pleading. 
 RELEASE, 
 
 when presumed in debt on bond. 2 1 . 
 when pleaded or given in evidence: 592, 3. 596, &c. 
 
 1044. 1046,7. 
 after the last continuance. 775, 6. 1047. 
 of actions, a bar to a scire facias. 982. 
 
 errors, plea of. 1034. 1062. 1111. 1115, 16. 1119,20, 1. 
 RELICTA VERIFICATIONE. See tit. Cognovit Actionejn. 
 REMANETS; 699. 735. 773. 
 
 costs on. See tit. Costs. 
 REMITTITUR of Damages. 805. 
 
 Record, when necessary. 11 35, 6. 
 RENDER. See tit. Bail. 
 RENT, 
 
 staying proceedings on payment of. 482. 486, 7. 
 payable under an execution. 925, 8tc. 
 RENT-CHARGE, extendible on elegit. 939. 
 
 SECK, not extendible. 940. 
 REPLEADER. See tit. Pleas and Pleading. 
 REPLEVIN, 376. 
 action of; 7. 
 
 limitation of. 15. 
 
 an action within the 24 G. II. c. 44. § 6. 75, 6. 
 
 not within the statute 27 Eliz. c. 8. 1061. 
 
 staying proceedings in. 488, 9. 
 
 set-off not allowed in. 603, 4. 
 
 avowant in, cannot discontinue. 629. 
 
 move for judgment as in case of a 
 nonsuit. 703. 
 issues in, may be made up by defendant. 682. 
 trial by proviso in. 700, 
 finding of jury in. 798 (/2). 
 judgment in. 842, 3. 
 damages in. 516, 17.798. 
 costs in : See tit. Costs. 
 
 of double pleading. 615, 16, 17. 
 execution in. 911. 
 REPLICATIONS. See tit. Pleas and Pleading. 
 
 Vol. II. 4 r REPORT.
 
 INDEX. 
 
 REPOK T. See tit. Master's Rejiort. 
 
 REQUEST, when necessary to be specially alleged. o87. 
 
 RESCOUS, not within the statute 27 Eliz. c. 8. 1061. 
 
 RESCUE, 
 
 when the sheriff may return it. 208. 255. 
 when not. 208. 
 
 plaintiff's remedy thereon. Id. 209.239.437. 960. 
 fine, Sec. 209. 
 RESIDENCE, of Plaintiff, calling for. 476, 7. 
 RESPONDEAT OUSTER; See tit. Abatement. 
 
 judgment of, in what cases. 588, 9. 
 RESTrrUTION, on Outlawry. 133, 4. 143. 
 
 reversing or setting aside judgment. 936, 
 
 7. 1137, 8. 
 RESUMMONS. 1118. 
 RETRAXIT. 841. 
 RETURN-DAYS of Writs; 
 general. 99. 
 by original. 100. 
 bill. 86, 7. 
 RETURNS to Writs; 
 
 mesne. 91, 2. 255, 6. 200. 
 final. See tit. Execution. 
 o{ certiorari or habeas corfius. 341. 
 recordari facias loquelam., &c. 356, 7 .■ 
 scirejacias. See tit. Scire Facias, 
 error. 1090, 91. 1097,8. 
 certiorari. 1112, 13. 
 REVERSION, extendible on elegit. 939. 
 REVOCATION, of power of Arbitrators. 748, 9. 
 RIENS e?i arrere, plea of. 595. 
 
 per discent. 854, 5. 
 RIGHT, Writ of, no damages in. 799. 
 RIOT-ACT; 116. 119. 
 
 execution on. 120, 1. 
 ROLL of Attornies; 46, 7. 
 
 strikhig off attornies from. 60. 
 ROLLS. See tit. Issue-roll and Judgment -roll. 
 ROMAN-CATHOLIC Attornies, 
 
 oath by. 45. 
 RULES and ORDERS, 
 general; 
 
 ol Elizabeth^ 6 & 7. M. 1564. C. P. Error. 1074, 5. 
 ^ 9. E. 1567. C. P. Attornies. 35. 
 
 15. M. 1573. C. P. Attornies. Id. 
 
 RULES
 
 INDEX. 
 
 RULES and ORDERS, 
 
 general; 
 
 oi Elizabeth, 23. E. 1581. C. P. Error. 1074, 5 
 24. T. 1582. C. P. Attornics. 35. 
 James I. 2. T. 1604. § 1. Filing Pleas. 622. 
 
 § 2. Marking Postea. 841. 
 3. H. 1605. Motions., Ruks. 461. 
 
 5. H. 1607. Bringing mo7ieyinto court. 561. 
 
 566. 
 
 6. E. 1608. Return of Latitat^ Sec. 91. 
 
 7. M. 1609. Mtice of Bail. 222. 
 
 13. E. 1615. Record of A'^isiPrius., Marshal's 
 
 fees. 773. 
 17. E. 1619. Docketing Judgments. 859. 
 
 19. H. 1621, Wales, Judicial Writs. 929. 
 Charles I. 11. E. 1635. Certiorari, Error. 1115. 
 
 14. H. 1638. Habeas Corfius, Prisoners. oO'Z.- 
 17. M. 1641.Z)(?77Zurrfr-5oo.('s,&:c.686.1 123. 
 
 20. T. J 644. Clerk of the Errors. 1070. 
 
 21. T. 1645. Sheriff of Chester, Return of 
 
 Writs. 85. 
 
 M, J\,"otice of Bail. 222. 
 
 H. — — — Sheriffs and their Deputies. 33., 
 23. E. 1647. Under-sheriffs. Id, 
 H Filing Bail-iiiece. 223. 
 
 1649. H. § 2. Entering Issue. 714. 
 
 1650. H. § 3. Filing Bail-fiiece. 232. 
 
 1651. E. Summomng Juries. 724. 
 
 M. Bail, Habeas Coriius, JVotice of Trial. 343, 
 
 702. 
 1654. M. § 1. Attornics, Bail, Sheriff's Deputies. 33. 
 
 36. 54. 57. 230.260. 
 § 2. Sheriffs, Bailiffs, Warrant to arrest . 33. 
 
 192. 
 § 4, Attotnties. 36. 
 § 5. Venue. 426. 545. 549. 552. 
 § 6. Bail, Undertaking to afijiear. 199. 
 § 7, 8. Bail, Habeas Corfms, Procedendo. 
 222. 299, 300, 301. 322. 336. 342, 3, 
 
 4, 5, 6. 
 
 § 9. Bail, Habeas-Corfius, Venue, Attornics. 
 
 152. 211.272.342. 351. 
 
 § 10. Afificarance, Attornics, Undertaking to 
 
 afifiear. 58. 64.213, 
 
 § 1 l,//a(!»ea5-CWw«,Pmo«fr*.297.304.309. 
 
 RULES
 
 INDEX. 
 
 RULES and ORDERS, 
 general ; 
 
 of 1654. M. § 12. Declaration by Original. 377. 
 
 § 13. Prisoners, Amendment. 303. 654. 
 
 § 14. Bolls. 844. 
 
 § 14, 15. C. P. Declaration, A'onfiros. 364. 
 
 § 15. Declaration, Imparlance. Id. 420. 
 
 § 17. Demurrers, jimendment. 648. 651 
 
 § 18. Kotice of Trial, Costs. 698, 9. 
 
 § 20. Special Verdicts. 807. 
 
 §21. Venire de fiovo. 831. 
 
 I 22. Habeas Corpus, Costs. 352. 
 
 1656. E. Attornies. 57. 
 
 T. § 1. Sealing and signing Writs. 33. 81. 
 § 2. Clerk oj' the Treasury. 31. 
 
 1657. E. § 1. Docketing Judgments. 859. 
 
 § 2. Cojnmon Bail. 215. 
 § 3. Entering Issue. 714. 
 H. Entry of Pleadings, &c. 681. 845. 
 
 1658. E. Special Causes. 459. 
 
 1659. E. Sealing and Signing Writs, 33. 914. 
 CAar/es II. 13. T. 1661. Special Bail. 223. 
 
 M. Sealing Writs. 33. 
 
 14. E. 1662. Attornies. 57. 
 
 T. § 1. Common Bail, Ejectment. 
 
 211 
 Attornies. 57. 
 C. P. Prisoners. 303. 
 Attornies. 57, 
 , Trial at Bar. 771. 
 § 1 . Sealingandsigning Writs.35 
 § 2. Warrant of attorney. 492 
 § 3. Clerks, Secondary. 844. 
 § 4. Sheriff^ s Deputies and 
 Warrant. 33. 192. 
 T. — — § 2. Sealing Record of JVisi 
 
 Prius. 713. 
 
 M. § \. Additionsin Affidavits. \55. 
 
 ^'2. Ac-etiam, Arrest. 83. 172. 
 184. 
 § 3. Clerk of Declarations. 274,5. 
 15 & 16 H. § 1. Clerks, Secondary. 844. 
 
 § 2. Issues, Trial, Eritering 
 Causes. 704. 713. 772. 
 16. E. 1664. § 1. Prisoners. 325. 
 § 2. .Error. 1084. 
 
 RULES
 
 INDEX. 
 
 RULES and ORDERS, 
 
 general; 
 
 of Charles II. 
 
 James II. 
 
 25 
 28 
 
 29 
 
 31 
 
 iVUUamiS Mary. 1. H 
 
 16. T. 1664. Filing Pleas. 622. 
 
 M. Bailf Habeas-Corfms . 
 
 222. 224. 345. 
 
 18. E. 1666. Signing Pleas, 8cc. 622. 
 
 669. 686. 1123. 
 
 19. E. 1667. Clerk of Declarations. 
 
 274>,5. 
 
 20. T. 1668. Clerks, Secondary. 844. 
 20 & 21. H. Issues^ Trial. 704. 713. 
 22. T. 1670. Sfiecial Bail. 234. 
 
 H. 1672. Sealing Writs. 32. 
 T. & M. C. P. 1676. Error. 
 1071.1084. 1090. 1093. 
 M. Esca/ie., Prisoners. 299. 
 
 E. 1677. Bail, Habeas-Corfius. 
 343. 
 H. 1678. Filazers, Signing Writs . 
 
 31. 
 E. 1679. Filazers, Signing Writs. 
 
 Id. 
 
 T. ■- ■ Sealing Record of Alisi- 
 
 Prius.712. 
 
 1680. Sealing Writs. 33. 
 
 1681. Co/lies of Error, &c. 
 1124. 
 
 Common-Bail, Ejectment. 
 
 211. 
 
 1684. Error. 1070, 1. 1084. 
 
 1685. Record of Msi-Prius, 
 
 Rolls. 713, 14. 
 
 — Demzirrer-Books, &c. 
 
 460. 685, 6,7. 1123. 
 
 H. 1686. Bail, Habeas-Corfius . 
 
 342. 
 H. 1687. Pau/ier. 67, 8. 
 1688. Warrants of Attorney, 
 Issue-Roll. 66. 681. 
 1689. Common-Bail, Judg- 
 ment on Warrant of Attorney, &c. 
 
 211. 
 2. M. 1690. Filing Pleas. 622. 
 4. T. 1692. § 1. Ajlifiearance, Pro- 
 cess. 210. 
 
 § 2. Common-Bail. 211. 
 
 RULES 
 
 32. E. 
 
 33. E. 
 
 M. 
 
 36. E. 
 l.T. 
 
 2. E. 
 
 3 8c 4. 
 4. E.
 
 INDEX.. 
 
 RULES and ORDERS, 
 
 general; 
 
 of William iJf Mary. 
 
 miliam III. 
 
 Anne. 
 
 Ai. T. 1692. § 3. Sealing Writs. 33. 
 
 5. E. 1693. § 1. Bringing in Rolls. 
 
 845. 
 
 . ■ § 3. Prisoners. 309. 312, 
 13, 14, 15, 16, 17. 324. 
 
 M. Bailin Error. 1087. 
 
 H. Habeas-Corfius, Prison- 
 ers. 303. 
 
 6. H. 1694. Fines. 275. 
 8.T. 1696. § 1. Alias Scire Facias, 
 
 1039. 
 — — § 2. Sfiecial-Juries. 726. 
 729. 771. 
 » § 3. Bail by Commission- 
 
 ers, Habeas-Corfins . 
 220, 1. 224. 227. 
 344. 
 1697. Bringing in Rolls. 845. 
 Prisoners, Common Bail. 
 326. 
 Bringing in Rolls. Id. 
 Bringing in Rolls. Id. 
 1698. Bail, Habeas-Corfms. 
 343. 
 11. E. 1699. § 1. Enteri?7g Demurrer. 
 
 682, 3. 
 . § 2. Sfiecial Bail, Con- 
 
 dnuance-Day. 217. 232. 
 1700. § 2. Declaration, Issue- 
 Money. 406, 7, 8. 678. 
 1702. § I. Bail, Render. 237. 
 
 § 2 . Aotice of Render, 
 
 Prisoners. 241. 304. 
 , T. 1704. Bail, Render. 239. 
 M. ■ Attornies. 36. 
 
 , M. 1 705. Abifzce 0/ Trm/. 697. 
 E. \706. Im/iarlancc: 418. 
 
 M. § 1. Entering Issue, 
 
 Record of Msi-Prius, 
 Bringing in Rolls. 
 682.713, 14.844,5. 
 » § 2. Warrants of At- 
 
 torney. 65, 6. 406. 
 RULES 
 
 12. T. 
 
 I.E.
 
 INDEX. 
 
 RULES and ORDERS, 
 
 general; 
 
 oiAmie. 5. M. 1706. § 3. Time for pleading . 420. 
 
 6. T. 1707. Prisoners^ Rcca/Uion. 311 (^j). 
 8.M. 1709. § 1. Sfiecial-JSail. 217. 
 
 § 2. Exception to Bail. 224, 
 
 9. H. 1710. C. P. Declaration. 365. 
 George I. 2. T. 1716. Prisoners. 304. 312. 318. 324. 
 
 7. E. 1 72 1 . Sealing Record ofMsi-Prius. 713. 
 
 8. H. jVotice of Inquiry. 520. 694. 
 
 E. 1722. C. P. Prisoners. 311. 
 
 ll.T. 1724. Declaration. 406 (z). 
 
 M dttornies. 57. 
 
 QeorgeW. l.M. 1727. § 2. C. P. Demand of Declara- 
 tion. 365. 
 T. ■■■■ Declaration^ Rule to filead^ De- 
 mand of Plea. 406. 408. 431, 2. 
 
 2. T. 1728. Declaration. 406, 7, 8. 
 
 H. § 1. Time for pleading. 420. 
 
 §1,2. Ac-etiam. 83. 
 
 § 3. Signing Judgment. 431. 
 
 11..1729. Exception to BailbyOi'iginal. 224. 
 
 3. M. Prisoners. 296. 
 
 4. Dec. 17. 1730. Prisoners. Id. 
 
 E. 1731. Warrants of Attorney. 492, 3. 
 5.E. 1732. § 1, 2. .SazV. 224, 5. 235. 
 
 § 3. Scirc-Facias. 1039, 40. 
 
 5 8c 6. T. § 1. Time for pleading . 421. 
 
 § 2. /??//^ to return Writ., and 
 
 bring in Body. 253, 4. 258. 
 
 6. M. §2. C. P. Exception to Bail. 
 
 245. 
 § 6. C. P. Bail in Error. 1087. 
 
 8. H. 1734. § 1. C.V. Prisoners. 303. 
 
 §2.C. P. Arrest, Priso7iers. 
 186, 7. 
 
 9. M. 1735. Filing Affidavits. 454. 
 
 10. M. 1736. § 1. Bail-piece, Declaration by 
 the bye. 215. 365. 
 
 § 2, Declaration dc bene esse, 
 
 Time for pleading. 410, 11. 423. 
 
 § 3. Copy of Declaration. 408. 
 
 10 8c 1 l.T. 1737. Entering Causes. 773. 
 11&I2.T. 1738. Rolls. 68\. 
 !3. E. 1740.§ 1, C. P. Affidavits, Commis- 
 sioners. 15 5. 
 RULES
 
 INDEX. 
 
 RULES and ORDERS, 
 
 general; 
 
 oi George II. 14. M. 1740, § 1. Attornies, Bail. 230. 
 
 § 2. Sheriff's Officer, Bail. Id. 
 
 H. Entry and Trial of Causes. 
 
 773,4. 
 
 15. E. 1742. § 1. Jc-etiam. 84. 404. 995. 
 
 ■ § 2 . Affidavits f Cornmissioners . 
 
 155. 
 
 ■ ■ § 3. DeclaratioJiy Prisoners. 
 
 29. 290. 308. 
 
 17. M. 1743. Entry and Trial of Causes. 
 
 773, 4. 
 20,11. \7 16. Attachment of Privilege. 
 
 271,2. 
 3d Afir. 1747. Sealing Blank-Writs. 33. 
 26 & 27. T. 1753. in Scac. Bail in Error. 
 1084. 1087 (0. 
 30. M. 1756. § 1. Enlarged Rules. 460. 
 
 § 2. Entering and arguing 
 
 Special-Causes. 459, 60. 
 
 32. & 33. T. 1759. High-Bar-Money . 463. 
 
 33. E. 1760. in Scac. Bait in Error. 1085. 
 George III. 6. H. 1766. Enlarged-Rules. 460. 
 
 T. Rule to return Writ y and bring 
 
 in Body. 253. 258. 
 
 8, H. 1768. Abode of Attomies, Service of 
 
 Mtices, &c. 47, 8. 
 
 E. Bailf Render, Commit7nent . 
 
 240. 
 15. H. 1775. Enlarged-Rules. 460. 
 17. M. 1776. Enlarged-Rules. Id. 
 
 T. 1777. Attachment. 149. 437. 
 19. T. 1779. Oyer of Original- Writ. 529, 30. 
 
 22. H. 1782. C. P. Bail, Venue. 375. 
 
 T. Declaration, Time for plead- 
 ing. 410, 11. 423. 
 
 23. M. Original-Writ, Costs. 95. 
 
 H. 1783. Writ of Inquiry. 532, 
 
 26. H. 1786. Prisone?-s. 304. 313, 14. 318, 
 
 19.324.328. 
 28. E. 1788. Justifying Bail. 228. 
 30.E. 1790.§ 1. Short Mtice of Trial. 
 
 429. 697. 
 
 = ~ § 2. Rules of KiTig's-BeJich 
 
 Prison. 960. 
 RULES
 
 INDEX. 
 
 RULES and ORDERS, 
 
 general; 
 
 of George III. 30. E. 1790. § 3. Day-rules. 961. 
 
 § 4. Bail-pieces. 213. 
 
 T. — — § 1. Writs .fCustoS' Br evium. 
 
 255. 
 
 — — § 2. The/ 6z/ Sfiecial-Jury . 
 
 729. 774. 
 
 ."Jl, M ^2. Bringing Money into 
 
 Court. 569, 
 
 E. 1 79 1 . Affidavits of illiterate Per-- 
 
 sons. 451. 
 
 T. ■ ' ■■ § 1 . Sheriffs Rule to bring in 
 
 Body. 260, K 
 
 § 2. Jttornies, 41, 2. 44. 
 
 32. M. Sheriffs Returning WritSy 
 
 Attachment. 255. 
 H. 1792. § 1. Attendance on Master. 
 
 57.286. 
 § 2. EnteringCauses. 77 3(v). 
 
 33. E. 1793. § \ .Resealing Distringas and 
 
 Record of Msi-Prius.7 \4, 
 722. 824. 
 ■ § 2. Compounding Penal- 
 
 Actions. 502. 
 § 1. Bail. 235. 
 § 2. Attornies. 44. 
 Interrogatories on Attach- 
 ment, 59. 
 
 Seal-Office. 32. 
 
 H. 1794. Perem/itories. 59: 
 — — — Enteritig Causes. 77 o. 
 
 35. H. 1795. Issue-Money. 679. 
 
 E. i?w/(?e o/King's-B'tich Pri- 
 son. 960. 
 
 T. § 1. Midsummer-Day. 87. 
 
 — — § 2. Attendance on Judge's 
 Su?nmons. 427. 
 § 3. Justifying Bull. 228. 
 
 36. M. § 1. Filing Affidavits. 455. 
 
 § 2. Justifying Biil. 232. 
 
 § 3. Issue-Money. 679. 
 
 — § 4. /?«/e to set aside Award . 
 
 452. 
 H. 1796. § 1. Affidavits on Motions. 
 
 450. 
 RULES 
 Vol. IL 4 G
 
 
 
 INDEX. 
 
 RULES and ORDERS 
 
 
 
 
 general; 
 
 
 
 
 
 of George III 
 
 36 
 
 .H. 
 
 1796. 
 
 § 2. Enlarged-Rules. 460. 
 
 
 
 E. 
 
 
 Insolvent-Debtors. 969. 
 
 
 
 T. 
 
 
 Rules of King's-Bench Pri" 
 son. 960, 
 
 
 37. 
 
 M. 
 
 
 Affidavits by several Defio- 
 nents. 451, 2, 
 Costs on Motions. 458. 
 Day-Rules. 962. 
 
 
 
 H. 
 
 1797. 
 
 Insolvent-Debtors. 967. 
 
 
 38. 
 
 M. 
 
 
 Intitling Affidavits. 155, 6. 
 Special-Cases. A&O (o). 809. 
 
 
 
 H. 
 
 1798 
 
 . Demurrer-Books. 460. 686. 
 1123. 
 
 
 40. 
 
 T. 
 
 1799. 
 
 Pc/ier-5oo/ts.460. 687.1 123. 
 
 41. M, 1800.iSerwceo//?«/es,&c.49.454. 
 E. 1801. Prisoners, Committitur. 321, 
 
 ■ Peremfitories. 461. 
 
 42. M. ■ Warrant of Attorney, Defea- 
 
 zance. 491. 500, 
 H. 1802. C. P. Days for Arguments. ^ 
 
 459. 
 
 T. Annuity. 449 (y). 
 
 particular; 
 
 on the crown side: 
 
 to answer the matters of an affidavit. 59. 
 for an attachment. 437, 8. 452. 
 what may or may not be moved for on the last day 
 
 of term. 452, 3- 
 on the plea-side: 
 
 given by the master; 
 to declare. 364, 5. 
 reply. 625, 6. 
 rejoin, surrejoin, See. 646. 
 enter the issue. 680. 682. 701. 
 produce the record. 690. 
 for a trial by proviso. 701, 2. 
 given by the filazer; 
 
 to appear to 21. pone or recordari, &c. 359. 
 
 declare, on a removal by /w/ze or reco7-dari, held. 
 given by the clerk of the papers; 
 
 to return the paper-book. 676. 
 
 RULES
 
 INDEX. 
 
 RULES and ORDERS, 
 particular ; 
 
 on the plea-side : 
 given by the clerk of the errors ; 
 
 for better bail. 1087. 
 to certify the record. 1088, 9. 
 allege diminution. 1104, 5. 
 assign errors. 1 105, 6. 
 given by the clerk of the rules; 
 as a matter of course: 
 
 to plead. 430, 1. 436. 646. 654, 1041. 
 for judgment; 
 when necessary to be given: 
 on inquiry. 523. 
 nul-tiel-record. 692. 
 posteas. 436. 813. 
 scire facias. 4:36, 1040. 1102. 
 when not necessary: 
 
 on final judgment by default. 5 13. 
 demurrer. 687. 
 side-bar rules: 
 
 for the sheriffto return the writ.252,3,4. 436. 928. 
 bring in the body. 257, 8, 9. 436. 
 time, or further time to declare. 361, 2. 436. 
 to discontinue. 628. 
 
 be present at taxing costs. 436. 
 pay money into court, in C. P. 565 (J). 
 for a scire facias to revive a judgment, under ten 
 but above seven years old. 436, 7. 439 (o). 
 
 1007. 
 cannot be had the last day of term. 452, 3. 
 obtained on the motion, or signature of counsel; 
 where an action is depending: 
 
 on behalf of the plaintiff. 438, 8cc. 
 
 defendant. 440, $cc. 1048. 
 in ejectment. 442, &c. 
 where no action is depending: 
 
 to set aside annuity. 445, &c. 
 absolute in the first instance: 436, &c. 
 
 requiring only counsel's signature. 437 (g), 
 
 &c. 
 by consent. Id. 
 to shew cause: 436, &c. 
 drawing up. 453. 457. 
 service of. 47, 8, 453, 4. 
 how far a stay of proceedings. 248, 9. 449. 
 
 454. 
 RULES
 
 INDEX. 
 
 RULES and ORDERS, 
 
 particular; 
 
 on the plea-side: 
 
 obtained on the motion, or signature of counsel; 
 shewing cause against. 454. 
 making absolute. 455. 
 standing over. Id. 
 enlarging. 456. 460, 1. 
 reviving. 455, 6. 
 amending. 461. 
 / opening. Id. 
 
 not to be moved for contrary to a former 
 
 rule. Id. 
 when appointed for particular days. 459. 
 brought on peremptorily. 59, 60. 460, 1 . 
 costs of. 457, 8. 
 not records. 437. 
 evidence of. Id. 
 RULES of the King^'s-Bench-Prison; 960. 
 limits of. Id. 
 ■when grantable. Id. 
 when not. Id. 961. 
 
 S. 
 
 SATISFACTION; See tit. Accord and Satisfactioti. 
 by levy on fieri facias. 937. 
 
 taking the body on ca. sa. 957, 8. 
 entry of. 845. 981. 
 SCANDALUM MAGNATUM. 547. 1061. 
 SCIENDUM. 712. 
 SCIRE FACIAS, 
 what. 982. 
 
 its general nature. Id. 983. 
 to recover an outlaw's debts. 136. 
 
 obtain execution. 982, Sec. 
 for other purposes. 143.936,7.982.1034. 1116.1137 
 not within the stat. 27 FMz. c. 8. 1061, 2. 
 
 statutes of limitation. 17. 
 on a recognisance; 983. 
 at common-law: 984. 
 
 against bail in the action; 471. 991. 
 when it lies. 991, 2. 
 
 a personal action within the stat. 16 £c 17 Car. II, 
 
 c. 8. 1082. 
 out of what court it issues. 996. 
 ^vhen it may be commenced. 994. 
 
 SCIRE- 
 
 I
 
 INDEX. 
 
 SCIRE-FACIAS, 
 
 on a recognisance; 
 at common law: 
 
 form of. 996, 7. 
 
 not within the stat. 27 Eliz. c. 8. 1061, 2. 
 need not be entered in sheriff's book, if filed in 
 
 time. 1040, 
 against bail in error; 998. 
 
 out of what court it issues. Id. 
 by whom made out. 999. 
 form of. Id. 
 by statute: 
 
 after a year. 990, 
 
 death of conusee. 991. 
 eviction. 941, 2. 951, 
 on a judgment; 983. 
 
 by and against the same parties: 
 after a year and a day. 999. 
 history of, and when necessary ; 
 in real actions. 1000. 
 personal actions. 1001. 
 ejectment. 1002. 
 after interlocutory judgment. 1003. 
 former scire facias. 1009. 
 error. Append. Chap. XLII. § 43, &c. 
 year, how computed. 1003. 
 when not necessary; 
 
 in the case of the king. 1004. 
 upon outlawry after judgment. 131. 
 after execution taken out within the year. 1004. 
 defendant is charged in execution. 323. 
 stay of execution by agreement. 504, 5. 909. 
 
 1005. 
 error. 1005, 6. 
 injunction. 1006. 
 out of what court it issues. 1007. 
 rule or motion for. 436, 7. 439 (o). 1007. 
 form of: 1007, 8. 
 
 upon the judgment of an inferior court. 351, 2. 
 in error; See tit. Error. 1008, 9. 
 
 cjiiarc executioncm non. 1009, 10. 1097. 1100, Sec. 
 ad audieJidum errores. 1097. 1108. 1115, 16. 1141. 
 firocessum et recordum. 1034. 1116. 
 after non/iros on writ of false-judgment. 912. 
 for demands arising after judgment; 
 in covenant. 1010. 
 annuity. Id. 
 
 SCIRE-
 
 INDEX. 
 
 SCIRE-FACIAS, 
 
 on a judgment; 
 
 by and against the same parties: 
 for demands arising after judgment; 
 in debt on bond, for payment of an annuity. 1011, 12. 
 
 money by instalments. 
 1012. 
 performance of covenants. Id. 
 to have execution of future effects; 1000. 
 of bankrupts. 1013, &c. 
 insolvent-debtors. 1016, 17. 
 against executors or administrators ; 
 
 on a judgment of assets guando accidermt. 1017, 
 
 18, 19. 
 de bonis fir ofiriis: 1000. 1017, 19, 20. 
 scire fieri inquiry. 933. 1020. 
 upon a change of parties: 1021. 
 by marriage. Jd. 
 
 banki-uptcy. 849. 1023. 
 death: 1024. 
 
 of a sole plaintiff or defendant; 
 
 between verdict and judgment. 847. 1024. 
 after interlocutory, and before final judgment. 
 
 848. 1025, &c. 
 of one of several plaintiffs or defendants; 
 pending the suit. 1027. 
 after judgment. 1028, 9. 
 of one plaintiff or defendant; 
 after final judgment, 
 
 by or against personal representatives: 
 
 1029, Sec. 
 form of. 1031, 2. 
 by an administrator de bonis non. 1030, 3 1 . 
 against heirs and tertenants; 1032, 3. 
 on the death of one of several defend- 
 ants. 1033. 
 form of 1034. 
 against tenenants; Id. 
 in error, to reverse a fine or recovery. 
 
 Id. 
 generally: Id. 1035. 
 
 where brought. 1035, 6. 
 teste and return. 1036. 
 not amendable. Id. 1037. 
 summons. 1037. 
 sheriff's return; 
 scire-fieci, 1038. 
 
 SCIRE-
 
 INDEX. 
 
 SCIRE-FACIAS, 
 
 generally: 
 
 sheriff's return; 
 
 nihil habet. 1038. 
 
 scire feci to one, and nihil habet to another. Id. 
 against heirs and tertenants. Id. 
 alias; Id. 
 
 teste and return, 1039. 
 rule to appear. 436. 1040. 
 judgment by default. 1040. 
 entry of proceedings. 1041. 
 appearance. Id. 
 declaration; Id. 1042. 
 on a recognisance. Id. 
 judgment. Id. 
 staying proceedings in, pending error; 
 against principal. 470. 
 bail. 474. 
 pleas; 
 in abatement. 1034. 1043. 
 bar; 
 
 by bail. 1044, 5. 
 on a judgment. 1046. 
 must be delivered. 622. 
 demurrers: Id. 1047. 
 
 must be delivered. 622, 
 issues: 1047. 
 
 by whom made up. 666. 
 relief on, by audita querela., See. 1047, 8. 
 after scire-feci. Id. 
 two nihils. Id. 
 damages and costs: 798. 1076. See tit. Contn. 
 
 judgment reversed for. 1 129, 
 execution. 1040, 41. 
 SCIRE-FACIAS Book, what. 1040. 
 SCIRE-FIERI-Inquiry. 933. 1020. 
 SCOTLAND, 
 
 within the statute of limitations. 18. 
 
 affidavits sworn in. 156. 
 
 privilege of peers of, from arrest. 169, 70. 
 
 sequestration in, no bar to an arrest. 1 8 1 (u). 
 
 plaintiff residing in, must give security for costs. 47iB. 
 
 error from. 1063. 
 
 seal-offk:e, 
 
 when open. 32. 
 holidays at. 33. 
 
 SEAMEN.
 
 INDEX. 
 
 SEAMEN, 
 
 limitalion of actions for wages of. 17. 
 arrest of. 175, 6, Sec. 
 SEARCHING for Pleas. 505, 6. 
 SEATS in Churches 
 
 actions for disturbance of: 397. 
 evidence in. Id. 
 SECONDARY; 30. 
 
 when the clerks anciently accounted with him. 844 (j/), 
 SECURITY for Costs. 476, 7, &c. 
 
 Prisoner's allowance. 970, 1. 
 SEQUESTRATION, Process of. 931, 2, 3. 
 in Scotland., no bar to an arrest. 181 (m). 
 SERVICE, 
 
 under articles of clerkship. See tit. Attomies. 
 of process. See tit. Proceas. 
 notices, Sec. 47, 8, 9. 
 rules. 48, 9. 453, 4. 
 declaration in ejectment. 442, 3, &c. 
 allowance of writ of error. 1070. 
 SESSIONS; 37. 
 
 books of. See tit. Inspecting Books, &c. 
 attorney's bill taxable, for business done at. 282. 
 SETT OFF, 
 
 at common-law. 601. 
 
 by statutes. 602, 3. 
 
 in what actions allowed. 603. 
 
 in what not. 603, 4. 
 
 cannot be of a penalty. 604. 
 
 general damages. Id. 
 
 debt barred by the statute of limitations. Id. 
 debts must be mutual, and due in same right: Id. 
 cases of partners. Id. 605. 
 
 husband and wife. 605. 
 executors and administrators. Id. 
 ti'ustees. Id. 
 
 assignees of bankrupts. Id. 606. 
 when it must, or may be pleaded. 593, 4. 606. 
 mode of replying to plea of. 637 (/). 
 notice of, when and how given. 441. 606, 7. 623. 
 form of. 607. 
 proceedings on. Id 608. 
 particulars of. 536. 
 of costs, when allowed. See tit. Costs. 
 SETTING aside Awards. See tit. Arbitration. 
 Executions. 935, 6. 
 
 SETTING
 
 INDEX.' 
 
 SETTING aside inquisitions. 524. 
 
 Judgments by default. See tit. Judgmerits. 
 
 Pleas. 419. 
 
 Proceedings, 
 
 for irregularity. 434. 440. 
 costs on. See tit. Costs. 
 difference bet\veen setting aside, and staying 
 proceedings. 435. 
 SEVERAL-Plaintiffs, 
 
 signingnote on lords' -act. 970. 
 Defendants, process against. 80, 
 declaring against. 424, 5. 
 making up issues against. 670. 
 notice of trial to. 695, 6. 
 costs in actions against. See tit. Costs. 
 Counts or pleas, costs of. See tit. Costs. 
 Issues, how made up. 666. 669, &c. 
 SHAM-PLEAS, discountenanced. 657 (t). 
 SHERIFF, 
 
 an officer of the court. 33. 
 duty of. Id. 
 
 punishable for misbehaviour. Id. 54. 
 attornies not liable to serve the office of. 265. 
 his officers. 191, 2. 
 warrant. 192. 
 
 authority under the writ. 191. 
 not bound to take notice of the defendant's privilege. 171,2. 
 
 175. 183. 189 (6), 
 entering a liberty without a wo72-07«iV^a,9. 192, 3. 
 his duty upon an arrest; 194. 
 
 by a special bailiff'. 253. 
 under the stat. 43 G. III. c. 46. § 2. 
 200, 1, &c. 
 his treatment ofprisoners, arrested on mesne-process: 200. 
 when to carry them to the county-gaol. 203. 
 penalty on, for misbehaviour. 207. 
 his duty upon a special ca/iias utUigatuvi. 135. 
 in what cases liable for an escape. 207, 8. 
 when he may return a rescue. 208. 
 of ruling him to return the writ: 252, &c. 
 
 in what cases the rule cannot be had. 253. 
 at what time it may be taken oiu. /(/. 254. 
 of the service of the rule. 254. 
 when to make his return. 100. 254, 5. 
 liable to an attachment for not makinc it. 254. 
 Vor.. 11. 4 11 SUKIUl'l.
 
 INDEX. 
 
 SHERIFF, 
 
 of county'palatine, amenable to the court for contempts. 
 
 254, 5. 
 his return, and in what cases he is liable to an action thereon . 
 
 255, 6. 
 to process by original. 107. 
 
 of ruling him to bring in the body: 257, 8. 
 
 at what time the rule may be taken out. 258, 9. 
 liable to an attachment for not complying with it: 259, 
 
 60, &c. 
 origin of this practice. 256. 
 how far liable thereon. 202. 262. 
 in what cases relievable, and in what not. 263, 
 upon a render. 235, 6. 
 death. 263. 
 
 putting in bail, 8cc. Id. 
 his power and duty under an execution. 924, 5. 
 
 property in goods taken in execution. 925. 
 may maintain trespass or trover for them. Id. 
 time enlarged for making his return to xs.Jieri-facias. 928. 
 his return to process of execution. 928, 9. 956. 993. 
 not bound to execute writ of false-judgment, without being 
 
 paid his fees. 1140, 1 . 
 actions against. 6. 399. 207. 
 SHERIFF'S-OFFICERS, &c. 191, 2. 200. 204. 
 cannot be bail. 230. 
 action against, on the 32 Geo. II. c. 28. § 12. 469, 70. 
 
 for money levied by distress, after reversal 
 of outlawry. 927. 
 SHIP'S-ARTICLES, delivering copy of. 533, 4. 
 SHORT-NOTICE of Trial. See tit. Trials. 
 
 Inquiry, See tit. Inquiry. 
 SI TE FECERIT SECURUM. See tit. Pone. 
 SIDE-BAR Rules. See tit. Rules and Orders. 
 SIGNING PLEAS. See tit. Pleas and Pleading. 
 SIMILITER. 
 
 striking out, and demurring, 678, 
 want of, amendable. 835, 6. 
 SINGLE DAMAGES. See tit. Damages. 
 SOLDIERS, Arrest of. 177. 
 
 place of life-guardsman saleable under the lords* act. 968. 
 SOLVIT AD DIEM, 
 
 plea of, must be dehvered. 507. 621, 2. 
 
 need not be signed. 621, 2. 
 evidence on. 20, 1. 
 
 SOLVIT
 
 INDEX. 
 
 SOLVIT POST DIEM, 
 
 when it must be pleaded. 20. 
 SON ASSAULT DEMESNE, 
 must be pleaded. 597. 
 plea of, need not be signed or filed. 621, 2. 
 new-assignment on. 640, 1. 
 issue on, by whom made up. 666. 
 SOUTH-SEA-HOUSE, Books of, inspecting. 539. 
 SPECIAL CASE, 
 
 what, and how drawn. 808, 9. 
 arguing, and amending. 460. 809, 10. 
 costs on. 810, 11. 
 SPECIAL CAUSES, 
 
 when set down for argument. 459. 809, 10 
 in what order argued. 459, 60. 
 Jury: See tit. Jury. 
 
 costs of. See tit. Costs. 
 Pleas. See tit. Pleas and Pleading. 
 Verdict. See tit. Verdict. 
 STAMP-DUTY, 
 
 on articles of clerkship. 39. 43. 46. 49. 
 rule to produce deed to be stamped. 440. 533. 
 in what cases the court will set aside an award, for 
 an improper stamp. 763. 
 STANNARIES, Error from Court of, in Cormvall. 1059. 
 STATUTE of LIMITATIONS. See tit. Limitatirm of Ac- 
 tions. 
 STATUTES, 
 
 of Merton., (20 Hen. III.) c. 1 . Damages, Dower. 799, 800.. 
 Marltberge,{52 //era. III.) c. 6. Costs. 890. 
 
 c. 13. Essoin. 716, 17. 
 c. 16. Da?nages. 709. 
 c. 23. Ca/iias. 122. 
 Westminster, l.{3 Ed':v.l.)c. 24. Damages. 799. 
 Gloucester, (6 Jidiu. I.) c. I . Damages and Co9t»i 
 
 799. 864, Sec. 
 c. 5. Damages. 800. 866, 7. 
 .4cton-Burncl,{\ 1 Rdrj. I.) De Mercatoribus. 986. 
 Westminstcr,\\.{\3Edw.\.)^\.2it. 1. c. 5. § 3. Damages. 
 
 800. 867. 
 c. 10. Alipearance. 35. 63. 
 c. 11. Capias. 122. 
 c. 18. Elegit. 938. 1029. 
 c. 24. Original-Writ . 9'). 
 c. 25. Damages. 799. 
 c. 26. Damages. Id. 
 
 STATUTES,
 
 INDEX. 
 
 STATUTES, 
 
 of Westminster, II. (13 Edw. I.) stat. I.e. 27. Esaoin.7\7 . 
 c. 30. JVisi-Prms. 715. 766. 806. 
 c. 31. Billof ExcejUions. 787. 
 c. 39. Non omittas. 257 . 
 c. 45. Scire Facias. 798. 990. 
 1001. 
 Winton, (13 Edw. I.) stat. 2. c. 1,2. Hue and Cry. 116, 
 Edward 1. 13. stat. 3. c. 1. De Mercatoribiis . 986. 
 Edward III. 4. c. 7. Ires/iass by Executors. 819. 
 
 14. stat. 1. c. 6. Amendment. 660. 1127. 
 25. stat. 4. c. 3. Forestalling. 466. 
 c. 17. Capias. 122. 
 c. 19. A7?75's Debtors. 299. 
 
 27. stat. 2. c. 9. Statute-Staple. 986. 
 
 28. c. 11. i/we a72f/ C/-i/. 116. 
 
 31. c. \2. Error, Exchequer. 1133. 
 Il./Mn/.716. 
 9. Damages. 799. 
 8. Forcible-Entry. 891. 
 2. Ve7iue. 543. 
 8. Damages. 799, 
 
 11. Damage's. 800. 865. 902. 
 
 8. Damages. 799. 
 c. 18. Attomics, Fenue. 35. 544. 
 
 1. c. 4. Attornies, Undersheriffs . 269. 
 c. 5. Additions. 582. 
 
 2. stat. I.e. 2. Certiorari, Bail. 331 (^). 
 9. stat. I.e. 4. Atnendment. 660. 
 
 c. 3. Amendment. Id. 
 
 1. Me7nbers of Convocation. 171. 
 
 9. Damages. 800. 
 
 12. Amendment. 66. 104. 660. 
 15. Amendment. 642. 
 
 9. 5az7, Sheriffs. 33. 132. 194. 199 
 Attornies. o5. 
 Henry Yll. 2. c. 10. Costs, Error. 890. 1131. 
 11. c. 12. Co.s?s, Paupers. 68, 9. 
 19. c. 9. Ca/iffls. 122. 
 
 c. 20. C'osCc', ..fin-or, 891. 1131. 
 //f«?'2/VIII.6. c. 4. Writ oj" Proclamation. 128. 
 7. c. 3. Limitation of Actions. 14. 
 c. 4. Cosrs. 190. 
 21. c. 13. § 26. .Yo?i-Rcsidence. 467. 
 
 STATUTES- 
 
 42. c. 
 Richard II. 1. c. 
 
 5. c. 
 
 6. e. 
 Henry IV. I.e. 
 
 2. e. 
 4. e. 
 
 Henry V. 
 
 Henry VI. 
 
 4. 
 
 8. c. 
 
 c. 
 
 c. 
 
 e. 
 
 23. c. 
 
 33. c.
 
 INDEX. 
 
 STATUTES, 
 
 of Henry VIII. 
 
 Edward W. 
 
 PhUifi Sc Marij. 
 Elizabeth. 
 
 21. c. 19. § 3. Coats. 896, 7. 
 
 23. c. 6. Recognisances. 952. 979. 985. 
 
 987, 8. 
 c. 15. § 1, 2. Costs. 413.891,2. 895, 
 
 6. 
 
 24. c. 8. Costs. 898. 
 
 32. c. 5. Execution. 942. 951. 
 
 c. 21. TmutyTcrm, Dies-Juridicus. 
 
 87. 98. 
 c. 30. Jeofails. 661. 829. 833, 4, 5. 
 
 839. 
 
 33. c. 39. King's Debt. 944. 948. 
 
 34 8c 35. c. 26. § 113. Wales, Error. 
 
 1059. 
 35. c. 6. § 6,7, 8. Tales. 771. 783. 
 
 2 8c 3. c. 13. Costs, Error. 866. 868. 
 
 1080. 
 
 3 Sc 4. c. 3. § 4. Damages. 799. 
 1 8c 2. c. 12. Costs. 866. 
 
 4 8c 5.C. 7. Talcs. 771. 783. 
 5. c. 4. § 31. Costs. 866. 
 
 c. 9. § 12. Witnesses. 7 oS. 
 c. 25. Ta/^-s. 771. 
 8.C. 2. Declaration. 362. 
 c. 12. § 1, 2. Costs. 896. 
 
 13. c. 29. C'o«?«rt72Ce. 578. 
 
 14. c. 9. Tales. 771. 
 
 18. c. 5. Comfiounding Pe7ial-Jctw?is, 
 Infants, Coats. 70. 500. 898. 
 c. 14. Original- Writ, Jeofails. 102. 
 832.834. 837, 8. 
 27. c. 4. § 7, 8. Statutes-Merchant and 
 Stajile. 986. 
 c. 5. Deinurrer. 648. 
 c. 8. £rror. 1089, 90. 1068. 
 10. Costs. 500. 898. 
 13. Hue and Cry. 116. 118. 
 29. c. 4. Poundage. 978,9. 
 31. c. 3. § 1. IFrit of Proclamation. 
 
 128. 
 
 § 3. Bail on Outlanvry. 140. 
 
 142. 
 
 c. 5. § 5. Limitation of Actions. 13. 
 
 4 3. c. 2. ^ 19. Damages, Costs. 518. 
 
 615. 903. 
 STATUTES;
 
 INDEX. 
 
 STATUTES, 
 
 of Elizabeth. 
 
 James I. 
 
 Charles I. 
 
 Charles II. 
 
 43. c. 5. Habeas-Corfius. 338. 
 C. 6. Costs. 592. 870. 
 3. c. 7. § 1. Costs. 276. 
 
 § 2. Attornies. 35. 54. 
 c. 8. Bail in Error. 998. 1075. 
 1080, 1, 2. 1085. 
 c. 15. § 4. Co5/s. 871, 2. 874,5. 
 4.C. 3. Costs. 895. 
 7.C. 5. Cos/s. 903,4. 
 21. c. 4. Penal- Actions. 46 7. 
 
 c. 12. § 5. ^enwe. 374. 
 ■31. c. 13. Jeofails. 833. 836, 7, 8. 
 
 c. 16. ^ J. Limitation of Actions. 15. 
 
 § 6. Cos/«. 878. 
 c. 19. § 9. Bankrupts. 853. 
 c. 23. Habeas-Corfius. 338,9, 40. 
 c. 24. Execution, 958. 
 c. 26. § 2. Personating Bail. 228, 9. 
 3. c. 4. § 4: . Bail in Error . 1075. 
 
 16, c. 6. Michaelmas-Term. 98. 
 13. Stat. 2. c. 2. § 2. Ac-etiam. 81. 
 
 § 3. JVon-firos, Costa. 
 412. 897. 
 § 4. Outlawry. 132. 
 § 5. Prisoners. 303. 
 § 6, 7. Teste and Return 
 of Writs. 93. 722. 
 956.994. 
 § 9. 5a?7 in Error. 998. 
 1080. 
 § 10. Cos;*. 1134. 
 16 & 17. c. 8. § 1, 2. Jeofails. 833. 
 835. 839, 40. 863. 
 § 3. Bailin Error. 998, 
 1081, 2. 
 
 17. c. 7. Replevin, Costs. 517. 798 (/i). 
 
 843. 891. 911. 
 c. 8. § 1. Judgments. 847, 8. 1024. 
 
 1027. 
 § 2. Administrator de bonis non. 
 1031. 
 22 & 23. c. 4. Bail in Error. 1080. 
 
 c. 9. Judge's Cerf if cate. Costs. 
 
 753. 879, &c. 
 
 STATUTES,
 
 INDEX. 
 
 STATUTES, 
 
 of Charles II. 29. c. 3. § 10. Judgments, Cestui que 
 
 trust. 850. 939, 40. 
 
 § 14, 15. Judgments. 856, 7. 
 
 § 16.^"xec«;/on. 850. 914, 15. 
 
 § \ 8. Recognisances. 989. 
 
 c. 5. Affidavits, Commissioners. 155. 
 
 455. 
 c. 7. § 6. Sunday. 189, 90. 
 William 1. c. 27. JFa/c*, ^rro?-. 1059. 
 
 & 2£c 3. Sess. I.e. ^5. Damages, Costs. 800. 
 
 Mary. 3. c. 14. Heir and Ancestor. 853, &c. 
 
 4 Sc 5. c. 4. § 1, 2, 4. ^azV. 217, 18, 
 
 19. 229. 
 c. 18. § 3, 4, 5. Outlawry. 132. 
 140, 1. 
 c. 20. § 2, 3. Docketing Judg- 
 ments. 857, 8, 9. 
 c. 21. Prisoners. 297 . 309. 
 c. 23. § 10. Costs. 886. 
 C. 24.§ \5.Jury. 715. 
 § 18. 7a/fs. 784. 
 5 8c 6. c. 21. §4. Date of Process. 88. 
 William III. 7 & 8. c. 24. Oa/As, 45. 
 
 C. 32. §1. Jury-Process. 718, 
 19,20.832. 
 § 3. 7a/f*, 771. 784. 
 8 & 9, c, 11. § 1. Costs on Acquittal, 
 
 § 2. Co5?« 
 
 § 
 
 Costs 
 
 Scire-Facias, 
 800. 867, 
 
 900, 1. 
 
 on Demurrer. 
 
 897. 1134. 
 
 in Waste, 
 
 &c. 
 996. 
 1048. 
 §4. Cos^s /or JF/z/m/ 
 Tresfiass. 884. 887. 
 § 6. Scire-Facias, Judg- 
 ments. 347. 848. 
 1025, 6. 
 §7. Abatement. 849. 
 1027, 8. 
 ^8. Damages, Suggest io?i 
 of Breaches, Scire- 
 facias. 508, 9, 
 &c. 637 (i). 800, 
 1. 1012. 
 STATUTES.
 
 INDEX. 
 
 STATUTES, 
 
 of rVilliam III. 8 & 9. c. 27. § 3. Error. 1 134. 
 
 § 6. Escape, Fresh-fiursuit . 
 599. 
 § 13. Prisoners. 303. 
 9 & 10. c. 15. § 1, 2. Arbitration. 744, 5. 
 
 763, 4. 
 c. 25. § 42. Da^e of Process. 88. 
 10 & ll.c. 14. Limitation, Error. 1064. 
 11&12.C.9. § 1. Co57s. 870. 879. 
 
 §2.y/rrfs; m Wales, and 
 Co iintieS'Palatine . 150. 
 12 & 13. c. 2. Jiiiiges. 29. 
 
 c. 3. Peers and Members of the 
 House of Commons . 25. 
 110, 11. 
 13.C. 6. § 3. Oaths. 45. 
 Anne. I.e. 6. EscaJie-lVarrant. 960. 
 
 4. c. 16. § 1. Demurrer. 649, 50. 
 §2. Jeofails. 838. 863. 
 §3. Warrant of Attorney . 65. 
 §4, 5, 7. Double-Pleas, Costs. 
 608, 9. 615, 16. 
 §6. Venire-Facias, 715. 
 §8. r?>w. 730, 1, 2. 
 § 1 1. Dilatory Pleas. 587. 
 § 12. Payment. 1046. 
 § 13. Bringing Money into Court. 
 ,484. 511. 
 § 17, 19. Limitation of Actions. 
 
 17. 
 § 20. Bcdl-Bond. 245, 6. 
 . v ^ §25. Cos^s. 1095. 
 
 § 27. Account. 2. 
 • 5. c. 18. §4, 6. Registering Judgments, 
 
 £cc. 862. 990. 
 
 6. c. 26. § 12. Scotland, Error. 1063. 
 
 c. 35. § 19. Registeriiig Judgments, Sec. 
 
 862. 990. 
 
 7. c. \2. Ambassadors. 167, 8, 9. 
 
 c. 20. § 18. Registering Judgments, 8cc. 
 
 862.990. 
 
 8. c. 9. §32, o7.Sfa7n/i-Duty. 39. 
 c. 14. § 1. Execution. 925, 6. 
 
 9.C. \A:. Gaming. 14. 535. 559. 581. 
 
 C.20. Mandamus, Quo Warranto. 838, 9, 
 12. Stat. 2. c. 16. Costs. 866. 
 
 STATUTES,
 
 INDEX. 
 
 STATUTES, 
 
 of George I. 1. stat. 2 c. 5. Riot-Jet. 116. 119, 
 
 3. c. 15. § 16, 17. Poundage. 979, 80. 
 5. c. 13. Jeofails. 833. 1094. 
 
 8. c. 25. §1,2. Recognisances. 988. 
 
 § 3. Poundage. 979. 
 § 4. Recognisances. 952. 
 B. c. 25. § 6. Judgments. 857. 
 
 9. c. 22. Black-Jet. 116, 17. 119. 284. 
 
 12. c. 13. § 9,\O.Jttornei/, Prisoner. 269,70. 
 
 c. 29. § 1,2. Process, Jrrest, Bail. 144, 
 
 5, 147,3. 150.211, 12. 214. 342. 
 
 § 3. Habea.^ Corjius, 340. 
 
 § 4. Jttornies. 60. 
 
 Oeor^c II. 1. c. 14. § \5.Jrreat of Seamen. 176,7, 8,9. 
 
 2. c. 22. § 13. Set-off. 602. 
 
 c. 23. § 5, 6, 10, 13, 15, 18, 20, 22, 23, 
 24. Jttornies. 36, 7. 40. 45, 6. 52, 3, 
 
 4. 272. 
 § 23. Cos/«. 276, 7. 283, 4. 
 C. 24. Briberxj. 468. 
 
 c. 36. § 8. Shiji's articles, Seamen' avjagea. 
 
 534. 
 
 3. c. 25. § 8, 11, 18, 19. Jur!/. 715. 722. 
 
 724. 781, 3. 
 § 14. Viezv. 731. 
 § 15. Special -Jury. 727. 
 
 4. c. 26. Jeofails. 839. 
 
 c. 28. § 4. Ejectment for Kon-payment of 
 Rent. 486, 7, 
 
 5. c. 18. § 2. Jttornies, Justices. 269. 
 
 c. 27. § 1, 2, 3, 4. Process, Jrrest, Bail. 
 
 144. 213, 14. 
 
 c. 30. § 5, 7, 9, 13, 23. Bankrupts. 179, 
 
 80, 1. 1013. 511. 
 
 6. c. 27. § 2. Jttornies. 52. 
 
 7. c. 8. Stock-Jobbing. 707. 
 
 c. 20. § 1. Ejectment by Mortgagee. 
 
 487, 8, 
 
 8. c; 6. § 1, \8 . Registering Judgments,&cc. 
 
 862. 990. 
 c. 16. § 4. Hundredors. 1 17, 18. 
 c. 24. § 4, 5. Sett-off. 602, 3. 606. 
 11. c. 19. § l4.Jctionfor Use and Occupa- 
 tion. 607. 
 
 STATUTES, 
 Vol. I|. 4 I
 
 INDEX. 
 
 3TATUTES,- 
 
 ci George II. il.c. 19. § 21, 22. Cos^s. 891. 903. 
 c. 22. § Hundredors. 117. 
 12. c. 13. § 3, 4, 5, 7, 8. jittomies. 36, 7, 
 
 45. 90. 280. 
 c. 28. § 1. Gaming-House. 468. 
 14. c. 10. Costs. 872. 875. 
 
 c. 17. § 1, 2, 3. Judgment as in Case of 
 JVbnsuit. 449. 
 § 4, 5. Notice oj" Trial and Coun- 
 termand. 519. 695. 697, 8. 
 
 18. c. 34. § 1. Gaming-House. 468. 
 
 19. c. 37. § 6. Policies of Jssurancc. 532. 
 
 § 7. Bringing Money into Cour: 
 
 563 
 
 20. c 24. § 6. Prize-Money. 470. 
 
 c. 37. § 2. Rule toretum Writs. 253, 4 
 ■22. c 24. Hundredors. 1 17. 
 
 c. 46. § 2. to § 15. Attomies., Sessions ^ 
 Clerk of the Peace. 36, 
 7, 8, 9. 41, 2, 3, 4. 
 52. 54. 269 
 § 34. Execution against Hundre- 
 dors. 119, 20. 
 c. 47. Costs. 874. 
 
 23. c. 27. Court of Conscience^ Costs. 466. 
 
 874. 
 c. 30. Costs. 874. 
 c. 33. Costs. Id. 
 
 24. c. 18. § 1, 2. Jury. 715. 728. 
 
 c. 42. Attomies, Costs. 265. 874. 
 c. 44. § 1. Xotice of Action. 72, 3. 
 
 § 4. Bringing Money into Court. 
 
 564,5 
 
 § 6. Demand of Copy of Warrant 
 
 74. 
 c. 48. Michaelmas-Term. 98. 
 
 25. c. 36. Disorderly Houses. 501. 535. 
 27. c. 17. Marshal. 32. 
 
 29. c. 4. § 14. Arrest of Soldiers. 179. 
 
 30. c. 3. § 87. Attorney^ Commissioner of 
 
 Land-Tax. 269. 
 c. 8. § 20. Arre.'it of Soldiers. 179. 
 c. 19. § 75. Attorniesy Costs. 36. 276- 
 32. c. 6. Costs. 874. 
 
 STATUTES,
 
 INDEX. 
 
 STATUTES, 
 
 of George II. 32. c. 28. § 1, 2, 4, 1 1, 12. Sheriff' s-Ofiicen:. 
 
 200, 1, 2. 201., 5, 6, 7. 469. 
 
 § 13, 14, 15, 16, 17. Execution, 
 
 Prisoners. 962, &c. 972, Sec. 
 
 1016. 
 
 c. 58. Quo Warranto., Pleading double. 
 
 611. 
 George III. I. c. 23. Judges. 29. 
 
 2, c. 19. § 5. Costs. 903. 
 9. c. 29. Demolishing Mills, &cc. 1 17. 
 10. c. 50. Distringas, Issues. 108. 261. 
 13. c. 51. § 1, 2. Wales. 85. 272.551. 
 
 c. 63. § 44. East-Indies, Mandamus. 
 
 741, 2. 
 c. 78. § 79. Highway -Jet, Bringing mo- 
 ney into Court. 564 (y). 
 c. 84. § 81. Turn}iike-Act^,Bringing mo- 
 ney into Court. Id. 
 
 16. c. 34. hisuring Lottery-Tickets. 469. 
 
 17. c 26. .Annuities. 445. 983. 
 
 19. c. 68. § 24. Attornies, Court of Con- 
 science. 265. 
 c. 70. Inferior-Courts, Arrest, Bail, Ha- 
 bcas-Cor/ius, Execution, Error. 
 144. 332. 340, 1, 2,3. 998. 
 1009. 1075. 1140. 
 
 23. c. 28. § 2. Ireland, Error. 1063. 
 
 c. 70. § 30, 33, 34. Excise-Officers, A'o- 
 
 tice of Action, Venue, Bringing 
 
 Money into Court. Costs. 73, 
 
 4. 374. 564. 903. 
 
 24. Sess. 2. c. 47. § 35. Custom-House Offi- 
 
 cers, Venue, Bringing Money 
 
 into Court, Costs. 73. 374. 
 
 564. 903. 
 
 25. c. 80. § 1, 5, 7, 8, 9. Certifcatcs of 
 
 Attornies. 49. 51. 
 § 13, Sec. Memorandum of War- 
 rant. 6-6, 7. 216. 
 
 26. c. 44. Execution, Prisoners. 962. 972. 
 C. 77. § 13. Customs arid Excise. 468. 
 
 28. c. 37. § 23. Customs and Excise, Limi- 
 tation of Actions. 22. 
 'M. c. 32. § 22. Romari Catholics. 45. 
 32. c. 33. § 22. Arrest of Seamen. 176. 179. 
 
 STATUTES,
 
 INDEX. 
 
 STATUTES, 
 
 oi George III. 33. c. 5. § 4, 5. Execution^ Pri&oiiers. 962, 
 
 4, 5. 968. 972. 
 c. 68. Execution. 1009. 
 34. c. 14. § 1. to § 8. Stawp-Duty. 39, 40. 43, 
 
 4, 5.52. 
 c. 58. Execution. 1139,40. 
 c. 69. Insolvent-Debtors. 486. 962. 978. 
 
 1016. 
 
 36. c. 9. Ihmdredors. 117. 
 C.104. § 38. Lotteries. 468, 9, 
 
 37. c. 33. § 63. Arrest of Soldiers. 177, 8. 
 c. 45. § 9. Bank-Jet. 161. 
 
 c. 85. § 3,4. Prisoners^ Allowance. 969. 
 c. 90. § 26, &c. Attornies-Certificates, 
 
 iP'c. 51.50. 
 c. 91. § 8. Bank-Act. 161. 
 c. 93. Attornies' Certifcates, Indemnity. 
 
 52. 
 c. 112. Insolvent -Act. 962. 
 
 38. c. 1. § 8. Bank-Act. 161. 
 
 c. 52. § I. County-Palatine, Trial. 673, 4. 
 
 39. c. 50. Lords'-Act. 962. 
 
 39 Sc 40. c. 67. art. 4. Peers, Privilege from 
 
 Arrest. 170, 
 c. 72. Attornies' Certificates, Indemnity. 52. 
 c. 104. § \0. Attornies, Court of Requests. 
 
 265. 873. 
 •21. c. 24. Demolishing Mills, 8cc. 117. 
 
 c. 70. Insolvent Act. 962 (^). 
 43. c. 18. Bank-act. 164. 
 
 c. 46. § 1. Arrest, Costs. 187. 
 
 § 2. Arrest., Bail, CostSj Deftosit^ 
 Motions, Sheriff. 200, Sec. 
 § 3. Arrest, Costs, Execution, Mo- 
 tions. 440.442. 
 § 4. Costs, Motions. 442. 879. 
 § 5. Execution, Poundage. 911. 
 § 6. Bail, Supersedeas 233. 
 STATUTES-Merchant. 985, 6. 
 
 Staple: 945. 986,7. 
 
 recognisances in nature of. 987, 8. 
 from what time they bind the land ; 
 at common-law. 989. 
 by the statute of frauds. Id. 
 Tjegistering in Middlesex and Yorkshire. 862.9J)fr. 
 
 STAYING
 
 INDEX. 
 
 STAYING PROCEEDINGS, 
 
 motion and rule for, when and how made 440, 1. 454. 
 
 OQ the last day of term. 452. 
 in actions on bail-bonds. 138, 9. 440, 1. 452. 
 attornies' bills, in C. P. 286 (c). 
 where the debt sued for is under 40s. 440, 1. 465. 
 in penal-actions. 466, 7. 
 
 actions brought contrary to good faith. 470. 
 without proper authority. Id. 
 pending writ of error. 470, &:c. 
 till security be given for costs. 476, 7, 8cc. 
 
 payment of costs of former action. 479, 80. 
 on payment of debt and costs: 480, 1. 
 in assumpsit, on bill of exchange. 482. 
 penal-actions. Id. 483. 
 debt on bond; 484, &c. 
 
 for performance of covenants. 482. 
 payment of money. Id. 484. 
 
 an annuity, or money by 
 instalments. 485. 
 recognisance. 483. 996. 
 ejectment, for non-payment of rent. 486, 7. 
 
 by mortgagee. 487, 8. 
 actions for general damages. 488, 9. 
 of replevin. Id. 
 trover. 489, 90. 
 difference between setting aside, and staying proceedings. 
 
 435. 
 STIPULATED DAMAGES, Arrest for. 159. 
 STOCK-JOBBING-ACT, 
 
 cannot be pleaded with non assumpsit. 609 (;). 
 STRIKING out COUNTS. See tit. Sufierfmus Counts. 
 
 Special-pleadings, and giving general-issue. 
 See tit. Issues and Trials . 
 Similiter, and demurring. See same titles. 
 SUBMISSION to Arbitration. See tit. .Arbitration. 
 SUBPOENA; See tit. IVitnesscs. 
 in the exchequer. 62 (a), 
 on a writ of inquiry. 522. 
 
 attachment for disobeying: 722, 3. 437. 738,9. 
 should be moved for as soon as possible. 738, 9. 
 SUGGESTIONS, for costs. See tit. Costs. 
 
 on the Stat. 13 Geo. III. c. 51. § 1,2. 272. 551. 
 of breaches, on the stat. 8 Sc 9 JV. III. c. II. § 8. 508, v, 
 
 &C. 1012. 
 when necessary. 511.- 
 practice on. 512. 
 
 SUGGES-
 
 INDEX. 
 
 SUGGESTIONS, 
 
 for awarding -y^MzV*? out of common course. 549. 552. 673, 
 of deaths, &c. 675. 849. 1028. 4, 5. 
 
 SUMMONS, 
 
 on scire facias. 1037. 
 SUMMONS and ORDER, 
 practice by. 463, 4. 
 for time to plead, &c. 426, 7. 
 further time. 430. 
 taxing bill of costs. 285, 6, 
 service of. 47, 8. 
 attendance on. 57. 
 how far a stay of proceedings. 427. 
 SUMMONS and SEVERANCE. 1054,5. 1109. 
 SUNDAY, 
 
 how it affects the beginning or ending of terms. 98, 9. 
 return -clays on. 100. 
 
 executing process on. 189, &C. 193. 438. 190. 
 when accounted a day inlegal proceedings. 431.520.625,6. 
 ■when not. 433. 813. 
 inquiry cannot be executed on. 521. 
 SUPERFLUOUS COUNTS, 
 
 or matter, striking out. 441. 558, 9, 60. 
 SUPERSEDEAS, 
 
 when granted to a certiorari. 335. 
 arrest after. 1 86, 7. 
 upon outlawry. 130. 132. 139. 143. 
 to the sheriff, 5cc. 323. Sec 
 
 on justifying bail in vacation, '^oo. 
 cannot be pleaded to an action on judgment. 328. 
 of execution. See tit. £rror. 
 SURPLUSAGE. 405. 619. 827, 8. 
 SUR-REBUTTERS. See tit. Pleas and Pleading. 
 SUR-REJOINDERS. See same title. 
 SURRENDER, 
 
 in discharge of bail. See tit. Bail and Prisoners. 
 SURVIVORSHIP, 
 
 scire facias when necessary on. 1027, &c. 
 SWEARING JURY. See tit. Jury. 
 
 T. 
 
 ■« 
 
 TALES. See tit. Jury. 
 TAXATION; See tit. Cosfs. 
 costs of. 280. 286. 
 
 TENANTS
 
 INDEX. 
 
 TENANTS in Common. 2. 580. 
 TENDER, 
 
 in bank-notes, negativing in affidavit to hold to bail. 161. 
 
 164. 
 when it may be made. 293, 4. 569. 
 must be pleaded in assumpsit. 593. 
 
 debt on simple contract. 594. 
 bond. 596. 
 in what time it must be pleaded. 418, 19. 
 cannot be pleaded with non-assumfisit, or non est/ac'wn, to 
 
 the whole declaration. 609. 
 mode of concluding plea of. 62 1 . 
 paying money into court on: 566. 
 
 judgment may be signed forwantof. 507. 566. 
 taking money out of court on. 566. . 
 
 TENOR of Record, certifying. 689. 69 1, 2, 
 TERM, 
 
 what may be moved on the last day of. 452, 3. 
 TERMS and RETURNS; 97, &c. 
 
 issuable. 99. 
 TERMS for YEARS; See tit. Leases. 
 
 may be extended or sold on elegit. 940, 
 TERMS-NOTICE. See tit. Triala and Imjuinf. 
 fERTENANTS, 
 what. 1032 (rf). 
 scire facias against; 1034. 
 in ejectment. 1003 («), 
 error, to reverse a fine or recovery. 1034. 
 TESTATUM WRITS. See Ca. sa. Fieri facias, and Pracess. 
 rESTE and RETURN, 
 
 of bill of Middlesex or latitat, Sec 84, &c. 
 original writ. 97. 100, 1, 2. 275, 6. 
 process by origmal: 100. 124. 
 
 against peers, &c. 113. 
 bill against peers, Sec. 115. 
 writ o£ exigi facias. 128. 
 
 proclamation. /J. 129. 
 jury -process. 721, 2. 
 fieri facias. 913, 14. 
 alias and filnries, &c. 931. 
 extent for the king's debt. 946, Sec 
 caf lias ad satisfaciendum: 955, 6. 
 
 to charge bail. 994. 
 scire facias. 1036. 1039, 40. 1101, 2. 
 writ of error. 1064. 106*^ 
 '■^rtiorari. 1 1 10, 1 !. 
 
 TIME
 
 INDEX. 
 
 TIP«1E for Pieading. See tit. Pleas and Pleading. 
 TITLE, 
 
 of affidavits. 155, 6. 450, 1. 
 declaration; 366, &c. 
 
 in scire facias. 1042. 
 issue. 667. 672. 
 when necessary to be specially shewn in pleading. ^3, 4. 
 
 398,9 
 how set forth. 394, 5. 
 
 may be given in evidence under the general issue in tres- 
 pass. 597. 
 defectively set forth, aided by verdict. 826. 7. 
 aliter of a defective title. Id. 
 TOLL, disturbance of. 396 {g). 
 TORTS. 5, 6, 7. 151. 805 (v). and see tit. Wrongs. 
 TRANSCRIPT, 1088, &c. 
 
 in what cases amendable. 663, 4. 
 money. 1091. 
 
 diminution contrary to, not allowed. 1 104 (rf). 
 TRAVERSE. See tit. Pleas and Pleading. 
 TREBLE COSTS. See tit. Costs. 
 TRESPASS, 
 
 action of; 7. 10, 11. 151. 374. 
 limitation of. 15. 
 
 declaration in, to personal property. 397, 8. 
 staying proceedings in. 489. 
 will not lie against sheriff, for selling goods after bank- 
 ruptcy. 923. 
 maintainable by sheriff, for goods taken in execution. 925. 
 declaration in. 376. 390, 1. 414. 
 pleas in; 597, 
 
 when to be delivered. 622. 
 issues in, on son assault, by whom made up. 666. 
 verdict in, on several counts. 803. 
 judgment in. 842. 
 
 daniages in, when some defendants are acquitted. 803, 4. 
 costs in; See tit. Costs. 
 
 on double pleading. 6 1 3 ,Scc. 
 execution in. 911. 
 TRIALS, by the Record. See tit. J\''ul-tiei-record, 
 country, 
 
 at bar; 766. 
 history of. Id. 
 
 injwhat cases granted, and in what not. 
 Id. 767, 8cc. 
 in London. 769, 
 
 TRIALS,
 
 INDEX. 
 
 TRIALS, by the country, 
 at bar; 
 in a county-palatine. 769. 
 motion for, when made. 439. 442. 769. 
 notice of. 770. 
 entering cause. Id. 
 jury, special: 771. 
 
 of what county. Id. (Ji). 
 notice to. Id. 
 process: Id. 
 tales. Id. 
 new trial after. Id. 816. 
 costs of. See tit. Costa. 
 at nisi firius; 7&6. 772. 
 
 in what county: 673, 4. 772. 
 
 where an impartial trial cannot be had. 439. 
 442. 548, 9. 673. 772. 
 where the \enue is laid in the county of a 
 city or town-corporate. 673, 4, 
 notice of; 693. 
 where given, 55. 
 to whom. Id. 693. 
 in what manner: 694. 
 
 where there are several defendants, &c. 
 time allowed for; Id. 
 
 in London and Middlesex. 695, 6. 
 
 country causes. 695. 
 where defendant changes his residence. 
 
 694. 
 on an old issue: 696. 
 
 terms-notice. Id. 
 on paper-book, when it shall serve for the 
 general-issue. 693, 4. 
 notice of inquiry. Id. 
 short-notice. 428, 9. 697. 
 countermand. 55. 697, 8. 
 continuance. 698. 
 new notice, when necessary. 699. 
 costs for not proceeding to. 441. 699. 
 by firoviso; 
 
 when it may be had: 
 in civil cases. 700. 
 criminal cases, /d. 70 1 . 
 inilefor. 701, 2. 
 
 TRIALS, 
 Vol, II. 4 K .
 
 ^ INDEX. 
 
 TRIALS, by the country, 
 
 at nisi firius; 
 
 by proviso; 
 
 notice of. 702. 
 jury -process. 72 1 . 
 in error. 1 122. 
 putting off, for the absence of witness; 708, 9, 
 motion for, when made. 441. 708, 9. 
 affidavit. 708, 9. 
 other causes of. 710. 740. 
 when it cannot be put off. 710. 
 entering cause for ; 
 
 in London and Middlesex. 772, 3. 
 at the assizes. Id. 
 order of. Id. 
 
 effect of saving point at. 818. 
 remanets. 773, 4. 
 special-jury causes: 774. 
 
 cannot be tried in term. 730. 
 of issues of fact in error. 1 122. 
 TRIERS. 780, 1. 
 TROVER, 
 
 action of; 6. 10. 398. 
 limitation of. 15. 
 declaration in. 398. 
 arrest in. 150, 1. 160. 
 staying proceedings in. 489, 90. 
 pleas in. 598. 
 evidence in. 736. 
 costs in. See tit. Costs. 
 
 maintainable by sheriff, for goods taken in execution. 925. 
 against sheriff, for selling goods after notice 
 of act of bankruptcy. 923. 
 TRUSTEES, 
 
 set-off in actions by or against. 605. 
 
 not personally liable on submission to arbitration. 759 (i). 
 judgments and executions affecting, or not. 850. 923. 
 TURNPIKE-ACTS, 
 
 bringing money into court under. 564 (/). 
 
 VARIANCE,
 
 INDEX. 
 
 V. 
 
 VARIANCE, 
 
 of writ from plaint, no objection to removal of cause by 
 
 fione or recordari, 8cc. 358. 
 declaration from process, when material and when not. 
 
 242 (/O. 375, &c. 403, 4. 
 writ of error from the record: 1057. 
 
 in what cases amendable. 1094, 5. 
 plea in abatement of. 404. 581, 2. 
 VENDITIONI EXPONAS. 130. 934. 
 VENIRE FACIAS; See tit. Jury-firocess. 
 
 ad resfiondendum^ in the exchequer. 62 (a). 
 triandum; 
 
 award of. See tit. Issue, 
 denovo: 718. 791. 794. 802, 807. 814. 
 
 in what cases grantable. 829, 30, 1, 2, 
 tarn ad (riandum, guarn ad inquirendum . 670. 802, 3. 
 VENUE, 
 
 local or transitory. 369. 
 
 with regard to matters arising abroad. 370. 372. 
 
 in an action upon a lease for rent, &c. 372, 3. 
 
 in what actions it must be laid in a particular county. 575, 4 . 
 
 in actions by or against attornies, &c. 264. 550. 
 
 original. 375. 
 in the margin, will help but not hurt. Id. 
 when necessary to be alleged in pleading. 372 (r). 581. 
 
 1021. 1121. 
 defect of, when aided. 834, 5. 
 on the removal of a cause by habeas cor/ius. 35 1. 
 in scire facias. 1035. 
 history of changing. 543. 
 in what cases it may be changed; 
 by plaintiff. 545. 652 (uj. 
 defendant: 
 
 generally. 545. 
 
 on a special ground. 548, 9. 548. 
 where an impartial trial cannot be had. Id. 
 by consent. 549. 551. 
 into a county-palatine. 551, 2. 
 in what cases it cannot be changed; 
 
 where the cause of action arises out of the realm. 546. 
 
 in two counties. Id. 
 in debt on bond, or other specialty. Id. 547. 
 award. 546 (a). 
 
 VENUE,
 
 INDEX. 
 
 VENUE, 
 
 in what cases it cannot be changed; 
 
 in action on promissory note or bill of exchange. 547. 
 for scajidalum magnatum. Id. 
 libel. Id. but see 548. 
 escape or false-return. 548. 
 infringing a patent. Id. 
 against a carrier or lighterman. Id. 
 where an innpartial trial cannot be had. 549. 
 by reason of the plaintiff's privilege. 550, 
 into a northern county, &c. 549, 50. 
 
 Wales or Berwick upon Tweed. 551, 2. 
 the next English, or an adjoining county. Id, 
 motion for changing; 441. 552. 
 when made. 552, 3. 
 affidavit in support of. 553. 
 bringing back; 
 
 grounds of. 553, 4. 
 
 undertaking to give material evidence. 554, 5. 
 ' motion for, when made. 438. 555, 6. 
 
 when laid in the county of a city or town-corporate. 673,4- 
 VERDICTS, 
 general. 798. 
 special; 806, &c. 
 origin of. 806, 
 how drawn. 807. 
 
 moving for judgment, and arguing. 808. 
 motion to set aside. 439. 442. 
 void, and set aside, on what grounds. 837, 8. 
 amendment of, 661, 2. 807. 
 in trespass, on several counts. 803. 
 contrary or concurring, new trials after. 816, 
 to stand as a security, on a new ti'ial for excessive dama* 
 
 ges. 819, 
 what defects are aided by, at common law, 405, 6, 826, Sec. 
 will aid a title defectively set out, but not a defective title- 
 
 826,7, 
 death of parties after, when aided. 847, 8, 
 VIEW; See tit. Jury. 
 
 full costs after. 883. 
 VOIRE-DIRE. 78 L 
 
 UMPIRE.
 
 INDEX. 
 U. 
 
 UMPIRE. 750. 
 UNDER-SHERIFF, 
 
 his duty. 200, &c. 
 cannot act as an attorney. 269. 
 punishable for misbehaviour. 33, 4. 
 UNDERTAKING, 
 to appear. 213 (u). 
 
 pay money, on compounding ^.qui-tam action. 502. 
 debt of third person, delivering copy of. 532, 3. 
 give material evidence. 554, 5. 
 
 proceed to trial peremptorily. See tit. Judgment as in 
 
 Case of JVonsuit. 
 pay costs on taxation. 285. 
 UNDERWRITERS. See tit. Policy of Insurance. 
 UNICA TAXATIO. 670, 1. 
 UNIVERSITIES. 575, &c. 
 USURY, 
 
 will avoid warrant of attorney. 491. 
 
 statute of, when pleaded or given in evidence. 591. 596. 
 
 W. 
 
 WAIVER of Irregularity. See tit. Irregularity. 
 
 Women. 126. 131. 
 WAIVING or Withdrawing general-issue. See tit. Demurrers, 
 
 and Pleas and Pleading. 
 Judgments by default. See tit. Judgments. 
 WALES, 
 
 process into. 85. 
 arrest in. 150. 
 venue. 272.441 {t). 
 changing venue to. 551. 
 pleading to the jurisdiction. 573. 
 award of jury-process. 674. 
 trial. 771,2. 
 judgments. 856 (t/). 
 costs. 870. 879. 
 execution. 332, 3. 929. 
 error from: 1059. 
 bail in. 1075. 
 alleging diminution in. 1 104. 
 
 WARRANT,
 
 INDEX. 
 
 WARRANT, to arrest. 88. 90. 192. 
 of Attorney, to prosecute or defend; 
 in writing or by parol. 64. 
 how long it continues in force. Id. 
 of filing and entering it. 65. 
 memorandum or minute of. 66, 7. 81. 216. 
 need not be paid for, on delivering declaj'ation. 406 {b). 
 new one required in scire facias. 982, 3. 
 entry of, on issue-roll. 681. 
 want of, aided after verdict. 833. 1119. 
 certiorari for; 1110. 1114, 15. 
 how directed. 1110 (u). 
 proceedings thereon. 1111, 12. 
 to claim Conusance. 577. 
 confess Judgment; 
 what. 490, 1. 
 
 defeazance must be written on. 491. 
 in what cases court will order it to be delivered up. 49 1 , 
 
 2. 
 given by an infant. Id. 
 
 executor. Id. 498. 
 feme-covert. 492. 
 prisoner: Id. 
 
 in what cases an attorney's presence is 
 necessary. Id. 493, 8cc. 
 not revocable by the party. 495. 
 countermanded by death. Id. 
 when revoked by marriage. 496, 7. 
 must be strictly pursued. 497. 
 
 left with the clerk of the dockets, on signing 
 
 judgment. 500. 
 
 ' judgment on, when and how entered. 438, 9. 497, 8. 
 
 not within the statute 8 & 9 W. III. c. 1 1. § 8. 51 1. 
 
 against an insolvent-debtor. 1016, 17. 
 
 motion for, when necessary, and how made. 438, 9. 
 
 498, 9. 
 at what tirae the defendant should appear to have 
 
 been alive. 499. 
 to acknowledge satisfaction. 981. 
 for writ of error in parliament. 1065. 
 WASTE, Damages in. 800. 
 
 Costs in. See tit. Costs. 
 WAY, right of, how stated in pleading. 396 {§). 
 action for not repairing. 398, 9. 
 
 WITH-
 
 INDEX. 
 
 WITHDRAWING JUROR; See tit. Jury. 
 
 costs on, after paying money into court. 
 
 570, 
 Pleas; See tit. Pleas and Pleading. 
 on confessing action. 504. 
 WITNESSES, 
 
 privilege of, from arrest. 174, 5. 
 
 not privileged, when attending commissioners of bankrupt. 
 
 175. 
 on execution of inquiry. 135. 
 
 absence of, good cause against judgment as in case of non- 
 suit. 706. 
 expences of. 737. 
 how sworn on arbitration. 749. 
 must not be interested in event of suit. 735. 
 objections to creditor competency of. Id. 818. 
 mode of procuring their attendance; 
 by subfiocna ad testificandum: 735. 
 on trial. 735, 8cc. 
 inquiry. 522. 
 what, and how many may be put in one writ. 735- 
 resealing and serving. Id. 
 with a duces tecum. Id. 736. 
 
 difference between, and notice to produce 
 
 deeds, &c. 736 (o). 
 
 what must be produced on. Id. («). 
 
 service of sub/ioena ticket, and payment of expences. 
 
 hy habeas corfius ad testificandum: 739. 737. 
 
 when it lies, or not. Id. 
 
 mode of obtaining and executing the writ. Id. 
 proceedings against, for not attending; 738. 
 by attachment : Id, 
 
 against attorney or peer. Id. 
 affidavit for. /(/. 
 by special action on the case. Id. 
 action on 5 KHz. c. 9. § 12. Id. 
 •when and how examined on interrogatories; 440. 442. 
 
 740. 
 before judge in town. 740, 1. 
 
 commissioners in the country, or abroad. Id. 
 rule or order for examining them ; 
 when and how obtained. 740. 
 can only be by consent. Id. 
 proceedings thereon. /(/. 741. 
 
 WORDS,
 
 INDEX, ! 
 
 WORDS, 
 
 action for; 5. i 
 
 limitation of. 15. [ 
 
 declaration in. 392, 3. 400. | 
 
 pleas in. 598, 9. i 
 
 verdict and judgment in. 1 18. 
 arrest of judgment in. 831 (x*). 
 costs in. See tit. Costs. 
 WRIT, 
 
 return and entry of, to avoid statute of limitations. 91, 2. I 
 
 not to be sealed in blank. 33 (;). | 
 
 motion to quash. 440. 
 
 pleas in abatement to. See tit. Pleus and Pleading. 
 of inquiry. See tit. Inquiry. 
 for sealing bill of exceptions. 790. 
 to confess or deny seal. 79 1 . 
 
 de executionejiidicii. 1091- , 
 
 WRONGS, I 
 
 actions for; 5. j 
 
 by and against whom brought. 8, 9. 
 
 limitation of. 15. 
 
 immediate or consequential. 390, 1, 2. 
 how stated in declaration. See tit. Declaration. 
 
 Y. 
 
 YEAR, for scire-faciaSf how computed. 1003. 
 
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