B. Indict. 41. dictments. And in an appeal of death it is certainly necessary(a) (a) 2 Inst. $18, to set forth not only the year in which the stroke was given, but 319 also that in which the death happened, that it may appear that the death happened within the year and day after the stroke. But it seems clear from all the precedents, that it is sufficient to shew in what year of the king's reign the fact was done, and the death happened, without shewing the year of the Lord. Also it hath been adjudged, (b) that it is sufficient to allege the fact in such a (b) 1 Lev. 140. year of such a king, without saying it was in such a year of his See 1 Sid. 140. reign, because it is clearly implied. As to the fourth particular, viz. With what certainty the count in appeal ought to set forth the place where the deed was done. C. Eliz. 137. 738,739. Sect. 91. There can be no doubt but that every count in an appeal of death must shew(c) the place where the death happened, (c) Hetley, 35. as well as that where the hurt was given, and this with the same precise (d) certainty and freedom from repugnancy (e) as is re- (d) Dyer, 68. quired in relation to the time of the death and hurt, for which I (e) Noy, 45. shall refer the reader to the 89th and 90th sections of this chap-196. Dyer, 50. ter, wherein what is said in relation to the time of the hurt and death is equally applicable to the place. Also it seems that a mistake of the place is not(ƒ) material upon evidence upon not (f) Sum. 264, guilty pleaded, any more than a mistake of the time, provided the fact be proved at some other place in the same county. Sect. 92. But it seems to be not only necessary in an appeal of death to allege some place both of the death and hurt, and in every count in every other appeal to allege some place where the fact was committed, but also that such allegation be in proper place. For the better understanding whereof I shall premise, that if the truth will bear it, it is safest(g) to lay it in a town, as the statute of Gloucester above-mentioned directs. But if it were done out of a town, it seems that you may lay it in any other place from whence a visne may come. 265. Salkeld, 288. 2 (g) F. Cor. 80. 3 Mod. 158. 4 In relation to which matter, the law being in great measure superseded in civil actions by the statute for the amendment of 4 Anne, c. 16. the law, and chiefly in use in criminal clauses, it may not be improper in this place more fully to consider it. And for that purpose I shall lay it down as a good general rule, that a visne may come from any place, which is of so small compass, that all who live in or near it may reasonably be presumed to have some knowledge of the persons living in it, and therefore are esteemed the most proper judges of the facts done within its limits, as being most likely to be proved by witnesses, and charged upon persons with whose integrity and reputation they are best acquainted. And upon this ground it hath been adjudged, that a visne may come not only from a town, but from (h) a ward, (i) parish, ham- (h) Yel. 159. let, (k) burgh, manor, (7) castle, (m) or even from a forest, (n) or 1 Sid. 178. Co. Lit. 125. Salkeld, 60. (k) Co. Lit. 125. 614. 618. Coke Littleton, 125. C. Jac. 405. 200. 1 Sid. 326. 2 R. Abr. 621. B. App. 19. C. Eliz. 866. 1 Sid. 226. other C. Jac. 222. (i) 6 Coke, 14. (1) 2 R. Abr. 612, 613, Co. Lit. 125. (n) C. Eliz. B. App. 127. (a) 6 H. 7. 3. Co. Lit. 125. 2 Inst. $19. 1 Sid. 326. Co. Lit. 125. 2 R. Abr. 54. 1 Sid. 88. Con. 1 Sid. 326. Carthew, 333. Skin. 554. (c) C. Eliz. 732. 1 Sid. 326. (d) B. Plead. 61. other place, known (a) out of a town. Also it seems clear, (b) that whensoever a place is generally alleged in pleading, the law will intend it to be a vill, unless it be mentioned with some (b) B. Plead. 61, addition which shews the contrary; or (c) be alleged within a city or vill; in which case it would be absurd to take it for a vill of itself. Yet(d) if in truth there be no such town, nor hamlet, nor place known out of a town; or(e) if a fact alleged in a forest were done in some vill in the forest not mentioned in the record, the defendant may plead it in abatement. Also if a fact done in a vill, within a parish which contains divers vills, be in the count in an appeal alleged generally in the parish; (e) or a fact done in a city which contains divers parishes, be in the count in an appeal alleged generally in the city, it seems (ƒ) that 2 R. Abr. 621. the defendant may plead such matter in abatement; for otherwise he could take no advantage of the insufficiency of the allegation, because the place named, as it stands on the record, must, till the contrary be shewn, be intended to contain no more than one town or parish, on which supposition a visne well come de vicineto(g) civitatis, which does not exclude the city, but takes in the city and its neighbourhood within its jurisdiction, whether such city be within a county, (h) or be a county of itself; excepting only the city of London, (i) from whence it seems that no Salkeld, 59, 60. visne can come, not only by reason of the largeness of its extent, but also because it hath been the constant usage of pleading to shew the ward and parish in which a fact alleged (k) in London was done. 6 H. 7. 3. 7 H. 4. 27. See 2 R. Abr. (e) C. Eliz. 200. 2 R. Ab. 621. (f) See the cases cited under letter d. 7 H. 4. 27. Co. Lit. 125. 4 Coke, 14. 2 Inst. 319. (g) 2 R. Abr. 622, 623. 8 H. 5. 10. C. Jac. 307, 308. 2 Hale, 262. Con. S. P. C. 155. Hob. 266. may (h) See the authorities cited unČ. Jac. 150. Qu. C. Eliz. 732. Sect. 93. It hath been alleged that no visne(1) can come from the weald of Sussex, not only by reason of the largeness of its extent, but also because it shall be taken for a wood without inhabitants; and therefore it would seem inconsistent to award the (m) 1 Sid. 327. return of a jury from it. And yet it hath been holden(m) that a visne may come from a park; also it seems to be the general opinion that a visne may come from a forest, as hath been more fully shewn in the precedent section; from whence it may plausibly be argued, that it may come as well from such a weald, supposing it to be a wood. Also it seems(n) to be questionable whether a visne may not come from a walk in a forest, being alleged as a place in which a fact was done; but it seems clear that no visne can come from it, if it be alleged only as a liberty, for that no visne can come from a thing incorporeal, (o) but only from a place. Also it hath been holden that no visne(p) can come from the site of a manor, perhaps for this reason, because it doth not properly signify a place, but rather the limits and situation of a place. (n) 2 Lev. 307. Con. 1 Sid. 326. 1 Sid. $27. (0) 1 Sid. 326. (p) 2 R. Abr. 618. Summary, 188. As to the FOURTH PARTICULAR, viz. Whether one and the same count in appeal ought to be against those who do not appear as well as against those who do appear, and against the accessaries as well as the principals. . Sect. 94. It is said by Sir Matthew Hale, that in an appeal against A. B. and C. if A. only appear, yet the plaintiff ought to count (a) S. P. C. 65. (b) B. App. 28. 9 H. 4. 1. See 47 Assize. count against them all, by the better opinion. And the like seems also to be holden by Sir William Staundford (a) and Brook; (b) yet the point adjudged in the principal case,(c) which seems to be the chief foundation of these opinions, seems to be no more than 4 Coke, 47. this, that where an appellant hath had judgment and execution in Dyer, 120. one appeal, he shall not afterwards have another against persons not named in the first. And all the precedents that I can find, either in Coke(d) or in Rastal, (e) of counts in appeals, wherein (d) Co. Ent. 50. some of the defendants have not appeared, do indeed mention the (e) Rast. 46, 47. persons absent, as well as those present, and shew in what manner 50, 51. 53, 54. they were guilty; yet are all of them express that the appellant instanter appellat those that appear only; and that he would in like manner appeal those that are absent, if they were present; by which it seems clearly to be implied, that when they shall appear there shall be another declaration against them, and that the present declaration is esteemed only as a declaration against those that do appear. Neither do I find any difference in the precedents above-mentioned, as to the form of such counts in relation to this matter, where the persons not appearing are accessaries, from that wherein they are principals. But whether the omitting of a person in one appeal be always a good bar to the charging of him in another, shall be considered in the following part of the chapter, wherein I shall treat of the nature of pleas in bar to appeals. As to the THIRD PARTICULAR, viz. How the appellant may be nonsuited. Con. F. Nons. Bulst. 19. Latch. 173. Sect. 95. It is generally holden in some books,(f) that, by the (f) B. Nons. common law, if a plaintiff, in any action whatsoever, be demanded 44. Co. Lit. 139. at any day of continuance before judgment, and do not appear, 1 Roll. A. 131, either in proper person,(g) or by attorney or guardian, as the law 132. requires, he shall be nonsuited, whatsoever(h) excuse he may have 3 Edw. 4. 11. for his absence. But it is enacted by 2 Hen. 4. c. 7. that if the 15. 34. verdict pass against the plaintiff, the same plaintiff shall not be Qu. B. Nons. 6 nonsuited. And since the statute it hath been adjudged, (2) that 206.44 if a defendant in an appeal of murder be found guilty of man- (g) Vide sup. slaughter only, the appellant cannot be nonsuited; but it doth s. 74. not appear whether this resolution be grounded on the said sta- (h) Noy, 88. tute, or on the common law; for it seems difficult to maintain Vide sup. 30. that such a verdict which finds the substance of the fact, shall be (i) Moor, 407. said to pass against the appellant, in which case only the nonsuit C. Eliz. 465. is taken away by the statute. And therefore perhaps a nousuit in this case may not be suffered by the common law, which seems not to have permitted a nonsuit after a full verdict, except in such cases only whereupon some doubt remained with the court, as may be reasonably argued from the authorities above cited under letter.(h) But it seems that an appellant may be nonsuited after a special verdict,(k) or after a demurrer(7) and argument thereupon. As to the FOURTH PARTICULAR, viz. For what faults the writ may be abated. (k) 2 Jones, 1. (1) Co. Lit. 139. Jones, 1. 2 See 20 H. 6. 44. and the authorities cited under Sect. 96. I shall premise, that in order to take advantage of a letter (ƒ). defect VOL. II. S (a) 2 Bulst. 19. 3. Bulst. 343. (1) Bigby v. ton v. Charlton, (c) Finch, 226. 2 Danv. Abr. 252. Sup. s. 42. (d) Vide sup. s. 77. (e) 4 Co. 39. (f) Sup. s. 77. (g) Sup. s. 18. 77. (h) F. Brief, 219.231. (i) Yel. 120. (k) Sup. s. 75. (Sup. s. 76, &c. (m) Sup. s. 86, &c. Cro. El. 196. (n) Sup. s. 35. 47.71. B. Appeal, 38. S. P. C. 82. defect in the writ itself, the appellee (a) ought to demand oyer (1) of it, which he must do in open(b) court.(2) And for the better understanding for what faults such writ shall be abated, I shall consider the following particulars. 1. Where it may be abated by the court ex officio. 2. Where upon the exception or plea of the party, but not without such exception or plea. S. What defects of this kind may be amended, which without such amendment might abate the writ. As to the first particular, viz. Where the writ in appeal may be abated by the court ex officio. It seems that the writ may be abated by the court ex officio,(c) for the following faults, whether the party take notice of them or not. Sect. 97. FIRST, (d) Where a writ or declaration wants those words of art which are appropriated by law for the description of the offence; as where an appeal of burglary(e) has the word “burgaliter" instead of" burgulariter" or " burglariter;" or an appeal of rape wants the word " rapuit ;"(ƒ) or any appeal wants the word "felonicè."(g) Sect. 98. SECONDLY, Where the declaration varies from the writ; as (h) by laying the offence in the reign of a present king, where the writ supposed it to have been in the reign of a former king: or by giving the defendant a name different from that in the writ; as where the writ() calls him A. B. of C., Alderman, and the declaration A. B. of C., Esquire: or where the declaration is otherwise defective(k) in not pursuing the writ, or in not setting forth both the substance (7) and the circumstances (m) of the fact with that certainty which the law requires: or in(n) laying the offence in a different county from that in which the writ was brought. Sect. 99. THIRDLY, Where (0) the declaration doth not con(0) Sup. s. 60. clude contra formam statuti in such cases where by law it ought. Sect. 100. FOURTHLY, Where the sense is defective for want (p) F. Cor. 121. of a material word in the writ; as(p) if the conclusion be “ibi hoc breve, &c." without the word "habeas;" or where there is a false Concord in the writ, as hos(q) or hanc breve; or the singular(r) number instead of the plural; or (as some(s) seem to hold generally) any other false Latin, or even the use of a word which is not Latin, though(t) by the change or addition of a letter it might be made so. But it seems that such faults in the declaration are not fatal if the writ or bill on the file be right, as shall be shewn more at large in the following part of this chapter. (9) 9 H. 7. 16. 10 Ed. 3. 1. Sum. 189. S. P. C. 82. 5 Coke, 121. (t) 2 H. 4. 8. Sect. 101. FIFTHLY, Generally where the writ or declaration (2) The writ in an appeal is an original issuing out of chancery returnable into the King's Bench only; before the return thereof, the Court of Chancery only can set it aside, where it appears to have issued erronicè or improvidè, by some error are extrinsic to the writ itself; but for any error or de-. fect on the face of it, it may be quashed after it is returned into the King's Bench. Bac. Abr. 126; and see Eq. Cas. Abr. 416. are any otherwise defective in not observing the legal form; as(a) (a) F. Brief, where in a writ of appeal sued by a husband and wife, the con- 152. clusion is in the name of the wife only: or where the writ omits(b) either the name of baptism or the surname of the appel- (b) Finch, 255. lant or appellee, being under the degree of nobility, which alone 21st. 663. can give so high (c) a name of dignity as to supply the want of a (c) Finch, 253. surname. 27 H. 6. 3. 8 Ed. 4. 24. Inst. 666. As to the second particular, viz. Where the writ may be abated 25 Ed. 3. 39. upon the plea or exception of the party, but not without such plea or exception, I shall endeavour to shew, 1. Where it may be so abated for the want of fifteen days between the teste and the return of the writ. 2. Where for a misnomer or wrong addition. 3. Where for a defect in the addition of the appellant or appellee. 4. Where for the multiplicity of action. 5. Where for making of J. S. a defendant, where there is no such person. 6. Whether the defendant may have more than one of such pleas or exceptions. As to the FIRST POINT, viz. Where a writ of appeal may be abated upon the exception or plea of the party for the want of fifteen days between its teste and return. C. Jac. 424. Sect. 102. If the party, before he hath pleaded in chief, do especially shew to the court such a defect in the writ, the latter authorities(d) seem to incline that it ought to be abated, because (d) Salkeld, 63. the writ is the foundation of the whole proceeding, and the law 2 Inst. 667. seems to be in nothing more curious than in strictly keeping up 1 Ventris, 7. its legal forms. Yet it hath been resolved, (e) that such a defect 1 Sid. 406. is salved by the party's coming in and pleading in chief without Con. 12 Ed. 4. taking advantage of it: also it hath been adjudged, that where the B. Error, 169. original is right, all defects in the mesne process are salved by the (e) Salkeld, 63. party's appearance, as shall be shewn more at large in the chapter concerning process. As to the SECOND POINT, viz. Where a writ of appeal may be abated, upon the exception or plea of the party, for a misnomer or wrong addition. 11. 51.54. Sect. 103. It seems to be agreed,(ƒ) that if there be a mistake (ƒ) Finch, 363, in the writ or declaration as to the name of baptism, (g) or sur- 364. (g) 9 H. 5. 1. name (h) of the appellant (i) or appellee; or (k) as to the town, (h) Sum. 243. parish or county, estate, degree or mystery, whereof they are said Rast. Ent. 49. be; as where (1) one who is neither by birth, office, creation, or ( 9 H.5. 1. reputation, an esquire or gentleman, is named with either of those (4) B. App. 44. additions; or where a gentleman by birth, who follows the trade Rastal, 108. of husbandry, is named(m) with the addition of the trade of hus- 11 H. 6. 11. bandry, and not of gentleman; or where a peer, who has more 10 Ed. 4. 12. than one name of dignity, is not named(n) by the most noble; or 2 Inst.667,668. where 2 Inst. 668. 6 Coke, 67. (m) 14 H. 6. 15. 2 Inst. 668, 669. (n) 2 Inst. 669. 35 H. 6. 55. |