[69 k] RAWDEN US. STRUT. Upon a plea that a new bond was given and accepted at the day, in full satisfaction of the bond declared on, the plaintiff takes issue, which is found against him ;— whether the plaintiff is entitled to judgment non obstante veredicto, quære. S. C. Verdict another, amount to a the action. TR. 13 Jac. Rot. 1011. Rawden brought an action of debt 1 Brownl. 74. against one Strut, upon an obligation for payment of a that a new bond less sum. And the defendant pleaded a new bond given was given for at the day, in full satisfaction, and so accepted, as in the whether this former case; but the plaintiff' did not demur upon the plea, confession of but took issue that it was not accepted, &c.; and by Ante 68. Apr. verdict it was found against the plaintiff. Yet Hutton for Mo. 867. the plaintiff prayed judgment, because the bond, where- Winch, 76. upon the action was brought, and the action itself, was denied, but as good as confessed, and the plea to discharge it was none in law; and resembled it to the case of 9 H. 6. fol. 37. But it was said on the other side, that 326. 5 Co. 43 by the statute of 32 H. 8. of jeofails, judgment ought to Ant. 56. Post be given for the defendant, according to the verdict. 113. Note, that the case was mistaken by Hutton, for the plaintiff was nonsuit before verdict. (1) (1) See ante p. 52, Foster v. Jackson, n. (4.) From the principles deducible from the authorities there cited, it would seem that the plaintiff in this case was entitled to judgment. The plea confesses the action, and the matter alleged in it is not merely defectively set forth, but defective in itself, and could not be available in any form of pleading it. Vid. 3 Barn. & Ald. 66, Moore v. Plymouth. BOOTHLY VS. BAILY. The church and churchyard are in law the soil and freehold of the parson; but the use of the body of the church, and the repair and maintenance of it, is common to all the parishioners. The disposing of seats, and charges of repair, belong to the ordinary. No one can challenge a peculiar seat without a special reason, as prescribing to re pair and maintain it, 176 AUSTIN VS. JERVOYSE. PARKER VS. LAWRENCE. [69 1] 1 Brownl. 11. Post. 77. 1 Assumpsit. Assumpsit to eleven pounds not saying what sum. Residuum infra. 2 Saund. 120. 4 Co. 53. b. Pop. 130. AUSTIN VS. JERVOYSE. Upon a promise to deliver a horse for eleven pounds, for which sum the plaintiff was to become bound with sufficient surety by writing obligatory, assumpsit does not lie without averring a tender of the obligation sealed, and setting forth the sum, that the court may judge of its sufficiency. (Vide the residue of the case, post. p. 77.) TRIN. 13 Jac. Rot. 2180. John Austin, being within age, Roll. 19, 465. brought an assumpsit by prochein amy, against Jervoyse, and declares, whereas he bought of the defendant a horse give bonds for for a piece of gold of twentytwo shillings paid in hand, and for eleven pounds more to be paid at the death or marriage of the said John, for which he should become bound with sufficient surety by their writing obligatory, the defendant, in consideration thereof, promised to deliver him the horse when he should be required, and says that afterwards he offered to become bound to him, but 8 says not by his writing obligatory, with a sufficient surety, for the payment of the said eleven pounds, (as aforesaid,) 61. b. Mod. R. but yet he hath not delivered him the horse, though he were required. [Judgment for defendant, see S. C. p. 77.] (1) Hutt. 92. Co. 77, 197. Yelv. 49, 58. 4 Co. 125. a. 9 Co. 30. b. 76. b. Co. 45. a. 58. b. 10 Co. 43. a. 1 Cr. 224. 8 Co. 70. [70] 2 Cro. 116. Severance, Fitz. 23. The issue non assumpsit, and the verdict for the plaintiff. But he could not have judgment; for he should have tendered the obligation sealed; he should set down the sum, that the court might judge if it were sufficient for the eleven pounds; the surety should have been named. (1) Doug. 666. Cheq. Chamb. PARKER VS. LAWRENCE. In an action against several joint trespassers, if they sever in pleading and the plaintiff become nonsuit or enter a nolle prosequi against one of them before judgment, or after judgment against all, this is a discharge of the action against all. Secus if judgment be first entered against one. If there be judgment against one of several joint-trespassers, and a nonsuit or nolle prosequi against the others, they should not join in a writ of error on this judg ment. JOHN PARKER brought an action of trespass against Sir John Lawrence, and one Nevil and Wood. Lawrence 2 Ro. 100, 101, pleaded not guilty, whereupon issue. Nevil and Wood H. 11 Jac. B. R. Rot. 1355. [70 a] 233. Jenk. 1 Sid. 76. Post. 180. 2 London. part. 279, &c. Cro. 243, 551. tra. 2 Roll. made a justification; whereunto the plaintiff replied, and thereupon a demurrer joined. Hanging the demurrer, the issue was tried against Lawrence, and damages Cent. 309. given, and judgment against him. And after judgment Mo. 624. Cr. the plaintiff entered a nolle prosequi against Nevil Car. 239, 243. and Wood, whereupon, this being in the King's Bench, Lev. 177. they all brought a writ of error against Parker, in the V. Cooke 2 Exchequer Chamber, and alleged for error, that the nolle 11 Co. 7. a. 1 prosequi discharged all the defendants. And it was agreed 1 Cro. 244. ulby the court, that if the nolle prosequi had been before 100, 101, 134. judgment, it had discharged the whole action; and so had Discontinuance, judgment it, if judgment had been against them all, and then the against one in plaintiff had entered a nolle prosequi against the two, as be- nonsuit against fore; for nonsuit or release, or other discharge of one dis- 3 Cro. 860. 2 charges the rest. (1) But because in the principal case 551. Noy 116. the action was at an end against Lawrence, and no judg- 180. Cr. Jac. ment had against the other two, so as they are divided 443. 138. from Lawrence, and are not subject to the damage found against him, it was adjudged that he was not discharged, and so no error. Note also that it seems that Nevil and Wood should not have joined in this writ of error; for there was no judgment against them, nor they grieved. Note, the writ of error is ad grave damnum, &c. (1) This doctrine, though the authorities upon the subject in the old books are contradictory, has been overruled in more modern times, and it is now settled that a nolle prosequi may be entered against one of the defendants before judgment obtained against the other, notwithstanding former decisions to the contrary. 1 Saund. 207. n. (2.) 1 Wils. 90, Noke v. Ingham. Ib. 306, Dale v. Eyre. And a nolle prosequi is no bar to a future action, except in those cases where from the nature of the action, judgment and execution against one is a satisfaction of all the damages sustained by the plaintiff. 1 Saund. 207. n. (2.) 3 T. R. 511, Cooper v. Tiffin. In all cases of actions founded upon tort, which are in their nature joint and several, whether the defendants join or sever in their pleading, the plaintiff may, before or after verdict, enter a nolle prosequi as to some of them and proceed to judgment against the rest. 6 T. R. 200, Mitchell v. Milbank. 1 Wils. 306, Dale v. Eyre. 2 Salk. 455, Lover v. Salkeld. Ib. 456, Greeves v. Rolls. But a nolle prosequi cannot be entered as to one defendant after final judgment, though it may after interlocutory judgment against the others. In an action brought upon a contract against several defendants who join in their pleas, and a verdict is found against them, the plaintiff cannot enter a nolle prosequi. 1 Saund. 207. n. (2.) But if they sever in their pleas and one of them pleads matter which does not go to the action of the writ, trespass, and the other. Cr.38. 1 Cro.55. Ben. 99. Post. [70 b] but to his personal discharge, the plaintiff may enter a nolle prosequi as to him, and proceed against the others. 1 Tidd's Prac. 632. 1 Chitty 33. 1 Saund. 207. n. (2.) In 1 Chitty 35, it is said that in an action on a joint contract, where it is proved that the contract was in fact made by all the defendants, but in point of law was not obligatory on all, on the ground of infancy, coverture, &c. at the time it was entered into, the plaintiff must be nonsuited, and cannot avoid the objection by entering a nolle prosequi as to the infant or feme covert; and a distinction is there made between matter in discharge, which arises after making the contract, and that which shows it was never valid as to one of the joint contractors. But this distinction is not recognised in New York or in Massachusetts; and accordingly in both States, where one defendant pleads infancy or coverture, the plaintiff is permitted to enter a nolle prosequi as to the party so pleading and to proceed against the other. 5 Johns. 160, Hartness v. Thompson. 20 Johns. 126, Pell v. Pell. 1 Pick. 500, Woodward v. Newhall. PLAT US. PLUMMER. If bail be entered the last day of the term, it is good, though the bill be put in before. Jenk. Cent. 295. Ven. fac. returned by two of four 11. Jac. Rot. 1036. 2 Cro. 383. 2 Roll. 673. LAMBE US. WISEMAN. Coroners must all join in their ministerial acts, but in judicial acts they may divide. A ven. fac. returned by two coroners, when there were four, is error at common law, but cured by stat. of jeofails. LAMBE brought a writ of error against Wiseman upon a judgment given against him in the King's Bench upon an coroners. H. obligation; issue taken upon payment; upon a good surmise the venire fac. was awarded to the coroners, and verdict found and judgment for the plaintiff. The error assigned was, that where the ven. fac. was returned by two coroners only, and the distringas by three coroners, there were, at the time of the award and return of the ven. fac. and distringas, four; and it was agreed that this was at the common law plain error; for coroners as ministers must all join, but as judges they may divide. But by the statute of jeofails it was made good by the words of imperfect and insufficient returning of process by sheriffs or other officers. Yet the court was of opinion, that if one sheriff of London make his return without his fellow, that this would not be holpen, as being no return at all; Co. L. 181. b. Verdict remediless. or a return without the sheriff's name subscribed, because [70 c] Ben. 39. 11 Co. SHERLY US. WOOD. There can be no remitter until the possession and right meet in the same person. If tenant in tail enfeoff his son within age and die, the issue in tail shall be Averments made out of time are idle and not traversable. An exception that crosses the grant, or is repugnant to it, is void. Moor. 872. 422, 423. Mo. 104. Dower. Jac. Rot. 810. and Tr. 10. Jac. Rot. 3803. SIR JOHN SHERLY, knight, and Dorothy his wife, late 2 Cro. 488. wife of Sir Henry Bowyer, brought a writ of dower against 2 Roll. Rep. Barbary Wood, widow, of lands in Hartfield, ex dotatione 33. m. 2 Rolls Bowyer quondam viri sui. The tenant pleaded, that the $70, 872. post same Bowyer, being seized of the manor of Wilborough, Sussex. H. 10 in the same county, did make a feoffment thereof, to the use of himself and the said Dorothy, then his wife, for term of their lives, for the jointure of the said wife, the remainder to one Bowyer, and then died; and that the said Dorothy held her in by survivor, claiming her said estate, and so demanded judgment. The demandant replied, that before the said feoffment made, the said Sir Henry Bowyer, being seized of the said manor, did covenant to stand seized thereof, (by the name of his land in Sussex, except such as he had devised, or should devise by his last will and testament,-and in the end his plea avers that he made no devise thereof,) to the use of himself in tail, the remainder to his said wife for term of life, the remainder to Sir Thomas Hendly in tail, and after- Mo. 872. ward made the feoffment prout, and then died without issue; and that she entered and was seized by force of |