[281 b] party to take a release from the demandant, as well as the very tenant; but he is no party to the original writ. It is true that originally he is not, but by substitution of the party allowed by law; and he may plead in abatement, though he may also extort the warranty of the tenant, having not taken pleas in abatement; so dilatories the party must rather take, than put the third party to his warranty, which was intended always ult. refugium. But who requires this strictness? It is not said party to the original,' and the statute says 'plaintiff or demandant,' generally, not saying against the party tenant or defendant.' And then, why may not, by good reason, the two clauses for the tenant or defendant be enlarged to answer the reciprocal intent of the one number, rather than to restrain the former by the latter? especially since it is clearly true, the issue found for the vouchee, is found in effect for the tenant, and the demandant thereby clearly debarred. Plo. 38. 1 Cr. 282. Jones, 304. 580. But the other clause found for the demandant, clearly is within both words and meaning; for it is for the demandant, and he hath judgment upon it against the tenant, and the tenant over against the vouchee. And that is our case, that the verdict here found is for the demandant, for two parts indeed, and for the other part also; arguing this point as I do, though for the third part itself it be a bar, yet it makes but form, as to the abating of the whole writ for the rest. And though the statute is want of an original writ, 2 Cr. 109, 186, not want of an original, generally; yet in a case between Wells and Woodhouse, where Wells brought a trover in the king's bench against Woodhouse, and after verdict assigned for error the want of a bill, it was resolved in the exchequer chamber, that the want of a bill in the king's bench was no error; for a bill was in lieu of an Ant. 130, 134, original, and therefore was within the remedy of 18 Eliz. 264. [282] And so it hath been oft adjudged in the common pleas, that the want of a bill for or against an attorney is holpen by the same statute. But this case of ours is not subject to that doubt of 1 and 2 P. and M., though the issues were between the demandant and vouchees. For it is [282 a] not within 32 H. 8. but within 18 Eliz., being a fault supposed in the writ; and that statute being in general words, if any verdict shall be given in any action, &c.,' without mention between what parties, as 32 did; so now the only question is, whether this fault in the writ (supposing it a fault,) be within the remedy of 18 Elizab. c. 13. whereof the words are, if any verdict of twelve men or more shall be hereafter given in any action, suit, bill, plaint, or demand, in any court of record, the judgment shall not be stayed or reversed by reason of any default, or lack of form touching false Latin, or variance from the register, or other defaults in form in any writ original or judicial.' Whereupon, first, it is to be observed, that the faults remedied by the law must be faults in form, as form stands in opposition against the matter in law, and very right; which words are expressed in the statute 27 Eliz. of demurrers, which are of the same nature, and are tacitly excluded also out of all this. And therefore the point of variance from the register must not be in matter of law and very right; nay, though you have very right, you must not vary from the kind of writ that is proper to your right. But if you keep the kind or species, you may vary in form. Therefore if you take a formedon in descender, where your right is by remainder or reverter, or è converso, it is Dy. 125. a. not holpen. Nay, if you take reverter for remainder, though both arise from an entail made and ended, and thereupon the land falling either to the donee or his assignee, I hold it uncurable; (yet in grants these may serve one for another, as 18 E. 3. 28. Plow. 170. redibunt to a stranger ;) for these kind of variances are not variances from the register, but variances from your case and title; for the nature of a recovery is like as in a remitter to restore you to land according to your title. 233. So if an action of debt be brought against an executor 22 E. 4. 22. Ant. in the debet et detinet, the verdict helps not; for it differs in nature and judgment; the one charging the proper goods of the defendant, the other not. [282 b] Ant. 272. 3 Cr. 326. 5 Co. 31. b. 2 Cr. 546. Hutt. 79. 2 Cr. 545, 685. And yet, in a stronger case, Lancastel as executor recovered against Sidley, who, being in execution in the king's bench, escaped, and then his executor brought a new action of debt, in the king's bench, in the debet et detinet, against Sir George Reynolds, the marshal, and had judgment after verdict, which was reversed before us in the exchequer chamber; and yet the words of the judgment were of the part of the plaintiff all one, but the effect divers; for the debet et detinet is for his own use, and the detinet for the testator's. But there are forms curable; as in a formedon in descender, the demandant in his writ must make mention of every heir, to whom any right is descended after discontinuance, though they were never seized; Buckmer's case, Co. 1. 8. f. 88. or else it may be pleaded in abatement; and so is Fitz. Nat. Br. 220. D. and 18 E. 2. formedon 59. for conveying the line of the donor in formedon in reverter; yet I hold both these omissions cured by the verdict, provided that they make themselves heirs to the last that was seized by force of the tail, or to the first donee, for that is material. See Fitzh. Nat. Br. 218. D. and 219. E. If the donor grant his reversion in fee, the grantee shall have a formedon in reverter; but if he grant his reversion in tail, it shall be in remainder; yet I hold, that a verdict will help, although it be made reverter upon the entail; because it is true, that he hath reversion in tail, and hath rent incident unto it. Scolastica's case. Assize was summoneas quod sint coram præfat. justiciariis. The writ was abated; but if it were at this day, after verdict, it would be good. And though in Bracebridge's case, 14 Eliz. Plow. 424, he were of opinion, that where an ejectione firma was brought of land, upon a special verdict, the court judged one half undivided for the plaintiff, and the other half against him, Plow. was of opinion, that the writ ought to have abated; yet all common experience at this day is against it, after verdict. And this I hold for a rule, that where the statute of 18 Eliz. doth cure a fault in form, after verdict, it works that effect, as well where that fault in form appears by the confession of the party, as otherwise; for the statute is general, without difference. So I hold it at the most to be but a fault in form, varying from the register, when the writ demands the whole, and the right is but an undivided part. [283] The words He hath forsworn himself before the council of the marches, and I will sue him there for perjury,' are actionable. sworn himself council of the Wales. mesme ca. 13. Hardres, ADAMS brought an action upon the case against Flem- He hath forming, for speaking of these words, viz., He hath forsworn before the himself before the council of the marches, meaning his marches of majesty's council in the marches of Wales, in the suit I Hutt. 34. had against him there, and I will sue him for perjury Brownl. 1 R. there;' and, after a verdict for the plaintiff, upon not guilty 11. Ro.. pleaded, it was moved by master sergeant Chibborne, in arrest of judgment, for the insufficiency of the words, cause this court cannot take notice of the council, &c. And yet judgment was given with the plaintiff, for ten pounds damages and costs. be Ab. 40. 2 Ro. R. 40. 2 Cro. 190, 204, 436. Mo. 404. 1 Cro. 378. Judgment. 3 Cro. 135, 185, HANNOR US. MASE. In sci. fac. on judgment, if the defendant has a release, but neglect to plead it, he cannot afterwards have audita querela. Audita quer. 1 Cr. 4. N. B. 290. b. 8 Co. HANNOR brought an audita querela against Mase, upon 1 Rol. 306. a judgment for debt and costs, and shows that he had a 104. 1 Co. L. release after the judgment. The defendant pleaded, that 152. a. Yel. 6. after the judgment, and after the release supposed to be Godb. 155. made, he sued forth a scir. fac. upon the same judgment, and that upon this writ he had judgment to have execution by the default. And it was moved by Serjeant Harris, and a case was cited by him, 12 Hen. 7., in Justice Coke's Reports, fol. 11, that if the demandant, after judg- In what case an audita querela ment, have a release made unto him by the plaintiff, and shall not be after the plaintiff sues a scir. fac. upon the same judgment, and the defendant, being garnished, makes default, and had. [283 a] execution is awarded, he shall never have an audita queOtherwise it is if a nihil be returned upon the 3 Cro. 4, 25. 2 Cr. 507. rela. scir. fac. (1) (1) See 1 Wils. 98, Cooke v. Berry, acc. See also Bac. Abr. tit. Audita querela A. Audita querela will not lie for what might have been pleaded before. Cro. Eliz. 25, Fisher v. Banks. Where a defendant has matter which he might have pleaded to the sci. fac., and has lost the benefit of that, by an award of execution on a scire feci returned, he is estopped forever, and can never have an opportunity or means to let himself in to take advantage of that matter. But where it is an award on two nihils returned, he may relieve himself by audita querela; and the court will relieve him on motion, without audita querela, unless the ground of his discharge be a release, or some such matter of fact, which may be proper to be tried. 1 Salk. 93, Anon. 1 Salk. 264, Wicket v. Creamer. Obligation. Judgment de bonis testatoris. Hutt. 35. mesme ca. Ant. 188. Brownl. 1 R. 21. Mo. 70. 1 Ro. 931. 2 Cro. 672, 932. CASTILION US. SMITH'S EXECUTOR. In debt against an executor for breach of the condition of the testator's bond, by the executor in his own time, the judgment must be de bonis testatoris. CASTILION brought an action of debt against the executor of Smith, upon an obligation made by the testator, with condition for performance of covenants in an indenture, in which there was a breach assigned for plowing of marsh lands, by the executor himself, after the death of the testator. And it was moved by Serjeant Henden, after judgment, to have execution of the executor's own proper goods, for that the breach of the bond was by the act of the executor himself. And the court was against him, and judgment was entered de bonis testatoris. 1 Saund. 112. Ant. 188. Dy. 324. b. 2 Cr. 191, 646, 647, 648, 672. (1) (1) So in an action of covenant against an executor, though the breach be after the death of the testator, and through the executor's own fault, judgment ought to be de bonis testatoris. 1 Saund. 112. See 6 Johns. 112, Whitaker v. Whitaker. See also 2 Burr. 1190, Enys v. Donnisthorne's Executor. 2 Johns. Ca. 17, Van Rensselaer v. Platner, acc. Trespass. Canis venati cus. 1 Roll. 5. Cr. Jac. 463. Br.Property 44. EDWARDS VS. ENGLETON. Trespass vi et armis lies for taking and leading away the plaintiff's hound. EDWARDS brought an action of trespass against Engleton, for that with force and arms he took and led away |