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[51 a]

Ro. 1. R. 286.

1 Cr. 133, 511.

Cr. Jac. 432,

288. Ow. 108.

(1) The doctrine of this case is uniformly recognized in the cases in which similar questions have arisen, and the general rule deducible from them is perfectly well settled. When the contingency upon which a contract is to be performed, or the matter alleged in pleading, is to be considered as lying more properly in the knowledge of the party pleading than of the other, there ought to be an averment that the other party had notice thereof; but where the matter does not lie more properly in the knowledge of the party pleading than of the other, notice need not be averred. 1 Chitty 319. Com. Dig. tit. Pleader C. 73. C. 75. 2 Saund. 62 a. n. (4.) 10 Mass. 138, Lent & al. v. Padelford. The omission of an averment of notice, when necessary, will be fatal on demurrer or judgment by default, but may be aided, in some cases, after verdict. 1 Chitty 322. 17 Mass. 235, Colt v. Root. See also, as to this matter, L Day 183, Spencer v. Overton, and note (c). 1 Chitty 402, and the cases there cited by the American editor, note (1), and 1 Saund, 228. n. (1.)

Curia Wardorum. Wife not

in 32 H. 8. 9 Co. 126. b.

MERIFIELD'S CASE.

Of advancement to the wife of the husband's lands within the Stat. 32. H. 8.

EDWARD SEE sold the manor of Buckland in Kent, beadvanced with- ing holden in chief to Thomas Merifield and Dorothy his wife, and to the heirs of the said Thomas to the same use, then Thomas and Dorothy levied a fine of the said manor to A. and B. to the use of them during their lives, the remainder to the use of Thomas in tail, the remainder to the use of a stranger in tail; Thomas died. It was resolved by Hobart and Tanfield, that Dorothy was not to sue livery of any part of the land, for it was no advancement to her from her husband of his lands within the statue.

Co. B. Devon.
Brownlow.
Hill. 11 Jac.

Rot. 30. A brief varying from the regis

ter, but equivalent.

5 Co. 88.

FREAK VS. BINDFORD.

A writ of formedon in remainder, varying from the register in some particular expressions, but containing words equivalent, is good.

JOHN FREAK and Mabel his wife brought a formedon in remainder against Edward Bindford of three messuages &c. in Alfrington, which Roger Linsey did give to Elizabeth Coxton and the heirs of her body, the remainder to John Pising and his heirs; et quæ post mortem prædictorum Eliz. et Johan. Pising præfat. Johanni Freak et Mabel fil. et hæred. Robert Pising gen. fratris et hæred. Hugonis Pising gen. fil et hæredis præd. Johan. Pising

The

[51 b]

remanere debet per formam donationis præd. eo quod præd. Eliz. obiit sine hæred. de corpore suo exeunte, &c. tenant pleaded in abatement of the writ, that the de- 8 Co. 88. a. mandant should, by the form of the register, have supposed Co. L. 15. a. that the messuages &c. post mortem præd. Eliz. et Johan. Pising præfat. Johanni Freak et Mabel ut consanguin. et hæred. prædict. Joh. Pising remanere debet per formam donationis præd., which conclusion he hath not made. And it was said that the writs of formedon in remainder to the register, fo. 263, 244 and 246 were all so concluded. And of that opinion was Justice Warberton, but myself and Winch and Nichols held the writ good enough, in as much as it appears to the court, by the pedigree as it is set down, that she is and needs must be cousin and heir unto John Pising, so as it is but palma pro pugno, the same thing more largely spoken, and the form of the register may bear such an alteration; and therefore 5 E. 3. 35. and 7 E. 3. 47, 48. cited in the register.

Formedon in remainder upon an estate tail limited to P. and K., the remainder to F. in fee, et quæ post mortem P. and K. to T. son and heir of F. ought to remain; and the writ was adjudged good without laying expressly the death of F., though it were urged that the form of the register was so, because the laying of T. to be heir of F, doth import as much,

[52]

And 11 H. 6. 20. in formedon in descender the demand- & Co. 88. b. ant made himself heir unto every one that had been inheritable to the entail, though by the register he should make himself heir only unto them that were seized by 8 Co. 88. b. force of the entail, but yet the writ was holden good; for now we must needs be heir to all, that was seized, but he must not fail to make himself heir to all that were seized, And 2 H. 6. 11. an action of waste was brought, and the writ was vastum in domibus et hominibus, and allowed good, though it wanted the word exilium, which is the word of the register, and proper. (1)

(1) So by statutes in Massachusetts, in several cases the outlines of the forms of writs are prescribed. Where the legal remedy sought by the plaintiff may be obtained by a writ conforming to these outlines, he

[52 a] must sue out such writ; and if the writ he shall sue, materially vary from these outlines, the court may, ex officio, abate it, or it may be abated by plea, but it is no ground of demurrer; and when the plaintiff cannot obtain the remedy he is entitled to by any writ conforming, in its outlines, to those prescribed by statute, it has been the ancient and common practice of the court to grant him a writ, by which he may obtain his remedy. 3 Mass. 193, Čook v. Gibbs. It is obvious that the forms, contained in the several statutes for regulating civil processes, were not intended to be followed verbatim et literatim. 11 Mass. 276, Wood v. Ross. See also 14 Mass. 157, Dunning v. Owen. 1 Pick. 389, Badlam v. Tucker.

Co. Ent. 618.

Mo.857. mesme

case. Roll.

1. Abr. f. 903.

2 Brownl. 311.

FOSTER VS. JACKSON.

If a verdict begin with special matter and proceed to a general conclusion not sup-
ported in law by the special matter found; or begin with a general verdict and
afterwards adduce special matter contrary thereto; in each of these cases the
general conclusion or verdict is overruled by the special matter found. *
If the jury find a matter not in issue, the verdict, as to such matter, is void.

If the words of the issue be not in the verdict or it be otherwise informal, yet if it
find the substance of the matter in issue, it is good.

A plea that the sheriff took the debtor in execution by virtue of a cap. ad satisfaciend. is supported by shewing a taking under an alias capias.

In a special verdict, certainty to a common intent is sufficient.

The court must, ex officio, give judgment upon the whole record; and therefore if the defendant plead a matter which amounts to a confession of the action and the issue be found for him, yet the plaintiff shall have judgment.

A party may take out a capias, an elegit or a fi. fac. and he may take either of
them after the others, if they take no effect, though the election be entered of
record; for an elegit is not a mere election of the writ of elegit, but of the
land.

So the plaintiff may have an elegit into several counties, one after another.
If upon a fi. fac. the debt be satisfied in part, the plaintiff may have a capias or
an elegit for the residue. And if upon an elegit there be no execution but upon
goods, and that not sufficient, the plaintiff may have a capias for the residue.
If a capias be executed, it is a satisfaction of the whole debt; and if the party taken
in execution die, it is still a satisfaction in law; and if he escape of his own
wrong, the plaintiff's only remedy is debt or case against the sheriff for the

escape.

Execution by capias was not awardable, at common law, except in trespass vi et

armis.

RICHARD FOSTER brought a sci. fac. against Anne Jackson widow, and Miles Jackson, executors of the last 3 Co. 86. b. 87, will and testament of Thomas Jackson, containing, That whereas the plaintiff in Mich. Term. 6 Jac. had recovered against the said Thomas, in the Common Pleas, as well a certain debt of 2300 pounds, as 16 pounds for damages,

a. Trin. 10

Jac. Rot. 38.
14. Sci. fac.
Crompton.
London.

* See 8 Taunton 183, Bennett v. Costar.

[52 b]

This was ad

plaintiff. Trin.

open and large

the Bench, by

the contrary.

are no further

And of execu

tion generally at large.

why he should not have execution against them of the same judgment. The defendants plead that the plaintiff ought not to have execution against them of the goods judged against and chattels of the dead; for they say that the said Foster the plaintiff, after judgment, in the life of the testator, scilicet 13. Jac. upon the 13th day of Feb. in the said sixth year, did prosecute agreement at quoddam bre. ipsius domini regis capias ad satisfaciend- Hobart, Nicholls, Warberum against the said Thomas upon the said judgment, to ton; Winch to the then sheriffs of London directed, returnable xv. Pasch. by force of which writ the same sheriffs, before the return A large case judged that a thereof, that is to say, the 11 die Martii, took the said man dying in execution, the Thomas, and had him in prison, and kept him for the debt party, his heirs, and damages aforesaid; and the said Thomas so being executors, &e. in execution after and before the return of the said writ, chargeable. died in execution, and that the sheriff returned the writ so, and demanded judgment. And the plaintiff saith that the same sheriffs of London did not take the said Thomas Jackson, and him in prison, and under custody in execution for the debt and damages aforesaid had and detained by virtue of the said writ of capias ad satisfac. prout, &c. whereupon issue was taken: and the jury find that the sheriffs, virtute brevis de cap. ad satisfac. infra specificat., non ceperunt, &c. sed dicunt quod ceperunt &c. virtute cujusdam brevis capias ad satisfaciend. in recordo prædicto minime specificat. in quadam exemplificatione inde consect., et jurator. osten. cujus tenor. &c. specificat, and so set down the writ of alias capias at large of the same teste, the same return and all things, only it had not any averment that the persons and judgment and all things are the same, and conclude si super tota materia, the court shall think that the sheriff took him by force of the capias within mentioned, then they find for the defendants; if otherwise, then for the plaintiff.

The case depends upon two points.

Executions and

their natures at large.

First, whether the verdict be found for the plaintiff or First Point. the defendant.

The second, whether the death of Thomas Jackson in Second Point. execution be an absolute discharge of the debt, against

him, his heirs, executors and administrators, so as no new

[52 c]

1.

2

3.

[53]

To the first

question upon the first point.

42. b. Plo. 112.

b. Regula 114.

b. 111. a. 1
Cro. 75, 76. 1
Inst. 227. a. 12
Co. 15. Hut.

121. Cr. Car.

131, 174. Co.

action or execution can be had against them, or any of

them.

Touching the first point there ariseth three questions. First, whether the former part of the verdict be peremptory, which finds that the sheriff took not Jackson by virtue of the writ of capias mentioned in the plea, or whether the rest that follows, that he took him by virtue of an alias capias not mentioned in the record, and sets forth that specially with conclusion, if upon the whole matter, &c. and leave it to the court to correct the first part.

Next, whether the alias capias being understood of the same cause, persons, &c. will maintain the defendant's plea.

Lastly, whether this alias capias shall be understood of the same judgment mentioned in the defendant's plea, because the verdict hath no averment expressed, nor by the word præd. &c.

And to the first question upon the first point.

If the verdict had proceeded no further than to the general negative, that the sheriff's did not take him by virtue of that writ, it had been clear against the defend

ant.

Apr. 222. 4 Co. * But wheresoever a jury doth begin with a special matter, and after makes a general conclusion upon it, contrary to that which the law and the court do judge upon the special matter found by them, or on the other side, when they begin with a direct verdict, and yet after deduce a special matter which is contrary to their direct verdict, or in law proves the truth contrary to their general verdict premised, and closed them up with submitting the whole. to the judgment of the court, as in this case it is; in both these cases the special matter makes the verdict and overrules the general. As for example,

L. 227. a. 1

Cro. 212. 2 Cr. 55. 3 Cr. 481.

Hard. 347. 2
Ro. 701. 2.

2 Cr. 212.

20 Eliz. Dyer 362, in debt against executors the defendant pleaded pleniement administer, whereupon issue was taken; the jury find that the testator had made a lease for years of the house and implements of household, rendering rent, and died, and that the executors had received the

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