C. Jac. 610. 7 H. 6. 39. seems con. Sect. 125. It hath been adjudged, (a) that if an appellee, named (a) 35 H. 6. 12. with an insufficient addition, or without any, appear and plead to B. Error, 69. the appeal, he cannot afterwards take advantage of the defect of 2 Roll. 225. the addition, because by his appearance and plea he admits him- 1 R. Abr. 780. self to be the person intended. And some have holden, (b) that 2 Inst. 670. the party by his bare appearance salves the want of an addition, or a bad one but this seems contrary to almost all the authori- (b) 1 Sid. 247. ties above cited in relation to this matter, which seem to admit that i Keble, 885. the party, before other matter pleaded, may take advantage either of the want of an addition or of a bad one. And accordingly it was lately (c) adjudged in an appeal of death between Reeve and (c) Pasch. 3 Trundal, that the want of an addition of the appellee was a good Geo. 1. plea in abatement, and the writ of appeal was abated by such plea. s. C. Comy. As to the FOURTH POINT above-mentioned, viz. Where a writ of appeal may be abated upon the exception or plea of the party for the multiplicity of action. 1 Stra. 402. Rep. 257. B. Brief, 192. Sect. 126. It seems (d) clear, that after an appellant hath ap- (a) S. P. C. 82. peared on a writ of appeal, or even on a bill of appeal removed Summary, 189. into the court of king's bench from before the sheriff and coroners by certiorari, if he commence a new appeal for the same F. Brief, 548. matter, the appellee may plead in abatement that such prior ap- 774. peal is still depending, &c. But it seems (e) clear, that it is no (e) 10 H. 4. 4. plea in abatement of a writ of appeal, that the appellant hath S. P. C. 82. brought a bill of appeal for the same matter before the sheriff 465. and coroners, because such bill is not of so high a nature as a See 4 Ed. 3. 9. writ of appeal, but it is said to be only in nature of a plaint till F. Cor. 269. it be removed into the king's bench, which seems (f) to depend (f) Sup. c. 9. on the statute of Magna Charta, 17, since which statute the s. 39, 40, 41. sheriff and coroner cannot proceed to trial upon a bill of appeal, as perhaps they might have done by the common law. But after such bill of appeal before the sheriff and coroners is removed into the king's bench, if the plaintiff bring a writ of appeal for the same matter, it is holden (g) by Staundford, and seems to be (g) S. P. C. 82. admitted in the Year Book of 4 Hen. 6. pl. 14, 15. and both by Fitzherbert (h) and Brook (i) in their Abridgments of the said (h) F. Cor. 4. Year Book, that the appellee may plead in abatement that such (i) B. App. 44. bill of appeal is depending, because after it is removed into the king's bench, it is of as high a nature as a writ of appeal. Yet Sir Matthew Hale (k) seems to be of opinion, that such bill so (k) Sum. 189. removed is not pleadable in abatement till the plaintiff hath appeared thereon; perhaps for this reason, that before the plaintiff hath appeared, it doth not appear of record, that he hath prosecuted the suit in the king's court, because the certiorari might have been taken out by a stranger. Upon which ground it seems to have been resolved, (1) that it is no good plea in abate- (1) 7 H. 7. 6. ment of an appeal, that the plaintiff hath purchased another F. Brief, 192. writ of appeal returnable at such a day, &c. and that such B. App. 87. S. P. Č. 82. writ was delivered of record to the sheriff, because it might be, 2 Hale, 149. for what appears upon the record, that the first appeal was so far prosecuted by a stranger; but in the same case it is admitted that such prior appeal depending will abate the second, where it appears on record that the same plaintiff hath appeared and sued it, as in praying of process, &c. As (a) Dyer, 348. S. P. C. 82. F. Cor. 15. 43. 64. 26 H. 6. 6. 21 H. 7. 34. 7. H. 4. 27. (b) B. App. 111. 21 E. 4. 71.72. CSPC See the books above cited. (d) 21 H.7. 31. 5 Ed. 4. 3. 7 H. 4. 27. S. P. C. 82. (e) Finch, 363, 364. 385. 4 H. 6. 15, 16. 364. 385. As to the FIFTH POINT, viz. Where a writ of appeal may be abated for the making of J. S. the defendant, where there is no such person. 66 66 Sect. 127. It seems clear, that if there be divers defendants in an appeal, and one of them who does not appear be misnamed either as to the surname, or name of baptism, or be described by a wrong addition, or were dead before the writ purchased, any of the defendants who do appear may plead, "that whereas "the appeal is sued out against A. B. of C. in the county of D. yeoman, there was not at the time of the purchase of the writ, nor hath been since, any such person as A. B. in rerum naturâ, "as by the writ is supposed; (a)" whereon if issue be joined, if the appellant cannot prove that there now is, or was at the time when the writ was purchased, such a person of such name and addition as by the writ are supposed, it seems that the verdict ought to go against him, whereupon the writ shall be abated as to all the defendants. But it is not (b) advisable in such a case to plead that there was not at the time of the purchase of the writ, &c. any such person as A. B. of C. in the county of D. yeoman, because it implies a negative pregnant. Also if a defendant, misnamed or described by a wrong addition, do appear, it seems to be agreed (c) that no other defendant besides himself can plead the misnomer or wrong addition. But I do not find it to be agreed, (d) that such a plea by one defendant shall abate the writ as to any other besides himself; but if such matter, when pleaded by another on the non-appearance of the defendant, will abate the writ as to all, it seems difficult to give a reason why it should not have the like effect when pleaded by the party himself. As to the SIXTH POINT, viz. Whether the appellee may have more than one such plea or exception. Sect. 128. There seems to be no doubt but that if a defendant in an appeal, or even in an indictment of felony, think it proper B. Appeal, 44 to make use of never so many pleas or exceptions of this kind, (f)S. P. C. 82. requiring all of them the same kind of trial, he may take advan(g) Finch, 364. Qu. 4 H.6.16. tage of them all, (e) unless (f) they be repugnant to one another. B. App. 44. Also it seems to be the better opinion, (g) that he shall have the (h) Finch, 363, like advantage, where such pleas or exceptions do not all of them require the same kind of trial, but some of them are triable by matter of record, and others by the country. And if such pleas or exceptions be all of them triable by the country, it seems to have (h) been generally agreed, that the defendant must at the same time plead also with them all his matters in bar, if he have any such, and also plead over to the felony (unless where he hath admitted the fact by the matter pleaded in bar): but if the plea in abatement be triable by matter of record, it is holden in some (i) B. App. 48. books, (i) that the defendant is not bound to plead over to the felony, till such plea in abatement be found against him. But(k) the greater number of precedents, and constant practice of late seem (k) C. Eliz. 695. to be otherwise. However it seems clear, (1) that whatsoever Trundal, Pasc. 3 Geo. 1. Dyer, 88. Rastal, 49. 3 Mod. 266, Qu. 6 H. 7. 7. 66. 1 H. 6. 1. 10 H. 4. 4. 4 H. 6. 15. 1 H. 6. Rastal, 47. (1) Finch, 363, 364. 385. 27 Assize, 3. 1 H. 6. 1. 2 Hale, 239. matters Pop. 115. matters are pleaded in abatement of an appeal, or indictment of felony, and found against the defendant, yet he may afterwards plead over to the felony. (4) And in these respects such an appeal and indictment differ from appeals (a) of mayhem and all () C. Eliz. 495. civil actions whatsoever, except only assizes of mort d'ancestor (b), novel disseisin (c), nusance (d), and juris utrum ; (e) for it seems to be a settled rule, that in appeals of mayhem and all other civil actions, those above-mentioned only excepted, if a plea in abate- 418. ment, triable by the country, (f) be found against the defendant, 40 Ed. 3. 29. he shall not (g) be suffered afterwards to plead any new matter, (c) 1 Ed. 3. 11. but final judgment shall be given against him. Also it seems to Dyer, 310. be agreed (h) that in all other actions, except those abovemen- 4 H. 6. 16. tioned, if a defendant, together with a plea in abatement, plead also a plea in bar, or the general issue, he waves the plea in abatement; and the plea in bar or general issue only shall tried. 385. (e) 40 Ed. 3. 29. Finch, 363. 385. (f) Vide C. Eliz. 203. Dyer, 228. 252. 1 Lev. 163. 1 Inst. 33. Yelv. 112. Aleyn, 65, 66. (h) C. Eliz. 495. Moor, 457. Pop. 115. Vide Thel, b. 15. c. 5. be 39 Assize, 13. S. P. C. 82. 1 Jones, 413. 364. 385. (d) Finch, 363. Yelv. 36. (g) 1 Sid. Owen, 59. Noy, 36. And now I am in the third place to consider, What faults of this kind are amendable, which without such amendment would abate the writ. 6 Modern, 269. 1 Bulst. 142. 144. Sect. 129. It is to be observed, that appeals are expressly ex- (i) Vid. Salk. cepted out of 8 Hen. 6. c. 12. which is the principal statute of 51. amendments: Also it seems (i) to be generally taken for granted, 1 Bulst. 142. that no criminal prosecution whatsoever is within any other sta- 144. tute of amendments, or any of the statutes of jeofails; from ()9 H.7.16. whence it follows that no defect is amendable in an appeal, but 144 such only as is amendable by the common law. And therefore 4 H. 6. 16. B. Amend. 62. it seems to be the better opinion, that no false (k) Latin in a writ or bill of appeal, nor omission of a word, () nor even of a 13 Assize, 10. (1) F. Cor. 121. letter, (m) nor other defect or variance (n) from the proper legal (m) F. Amend. form, can be amended, because no such fault is amendable by 68. (n) F. Vari. 59. the common law, without the consent (o) of the parties, except Coke, 156. only in actions wherein the king (p) is a party. It seems indeed 4 H. 6. 16. to be generally holden in some books, (q) that such faults in a (0) F. Amend. 63. writ are amendable where the cursitor varies from his instruc(p) 8 Coke, 156. tions, in the names or (r) additions of the parties, or other like 4 H. 6. 16. matters which he must take from his instructions. But what is 40 Assize, 26. said in such books in relation to this matter seems to be intended of (2) Moor, 866. such writs only as are within the purview of the statutes of amend- C. Eliz. 644. ments, and therefore cannot be applied to appeals; yet it seems Qu. Hob. 128. that a misprision in the count is amendable by the common law, 49. 150. 152. (r) 2 Ven. 64. as well in an appeal as in any other action, before it is entered 1 Sidney, 412. on the record; and so it seems that the Year (s) Book of 7 Hen. Hobart, 118. 4. pl. 27. is to be intended, in which a mistake in the declaration C. Car. 74. in laying the fact in an improper visne, was suffered to be amend- Littleton's Rep. ed. Also it seems that after the count is entered on the record, 50. a variance in it from the writ, if a mere misprision, may be (5) F. Cor. 80. (4) It seems from Carthew, 56. that if the appellee plead in abatement, and doth not plead over to the felony, that the appellant ought to move the Court for judgment against the defendant. amended 1 Roll. 138. Hutton, 56, 57. But in that particular case, the plea being accepted by the plaintiff, it was held good without pleading over. (a) Mich. 7 Annæ, 2 Ld. Ray. 1288. (b) S. 22, 23, 24, 25, 26. (c) See B. 1. c. 10. s. 3. (d) S. P. C. 98. Summary, 190. (e) Sup. s. 36. (g) Rastal, 50. (h) Rastal, 50. (i) Rastal, 49. amended by it, as it seemed to be agreed in an appeal of death between Smith and Bowden, (a) wherein the word "murdrum" in the count on the record was adjudged to be amendable by the murdrum in the bill on the file. As to the FIFTH GENERAL POINT, viz. What may be pleaded in bar of an appeal. Having already in the former part (b) of this chapter endeavoured to shew what may be pleaded in bar of an appeal of mayhem, and intending in the latter part of the book to consider the learning relating to pleas in bar of criminal prosecutions in general, I shall in this place only examine the nature of pleas in bar of appeals of felony in particular. And for that purpose having premised that, by the better opinion (c) at this day, no special plea in justification of the killing shall be admitted in an appeal of death, but that in every such case the general issue is to be pleaded; I shall consider, 1. What pleas will be good bars of an appeal of felony, by shewing that the plaintiff had never any right to bring it. 2. Whether a retraxit or nonsuit in a former appeal of this kind will be a good bar of another. 3. Whether a discontinuance. 4. Whether an abatement of a former appeal. 5. Where the bringing of an appeal of this kind against one person shall be a bar of any subsequent appeal against any other person not named in the first appeal. 6. Where a release will be a good bar of an appeal of this kind. 7. Where the appellant may be barred as to one appellee, and continue his suit against the rest. 8. Whether any, and which of these pleas, are consistent with the general issue. As to the first particular, viz. What pleas will be good bars of such an appeal by shewing that the plaintiff had never any right to bring it. Sect. 130. It seems to be a good general (d) rule, that any plea of this kind is good which shews that the plaintiff wants any of those requisites which the law makes necessary to entitle him to the appeal. And therefore in an appeal of death by a woman it is a good plea, that (e) she was never lawfully married to the deceased; or (f) that she hath not continued a widow since his death, but hath taken another husband. Also in an appeal of death by one as heir, it is a good plea, that A. B. at the time (g) of the writ was and still is heir of the deceased; or (h) that one of the defendants was the wife of the deceased, and made a defendant by covin to exclude her from her appeal; or that the plaintiff is a bastard (i) and not legitimate. And where one brings an appeal as brother and heir, it is a good plea plea that he is not (a) brother and heir, as by his writ and decla- (a) Rastal, 49. deceased, it is a good plea that he is not cousin (c) and heir, viz. (c) Rastal, 49. 62. or felony; however (i) it seems that such attainder is no perpe- (i) Supra, s. 32. tual bar, but only during the time it continues in force. As to the second particular, viz. Where a retraxit or nonsuit in a former appeal of this kind will be good bars of another appeal. C. Eliz. 605. F. Cor. 184. Sect. 131. I take it to be clear, (k) that a retraxit of any such (k) 1 Inst. 138. appeal is a bar of all subsequent appeals of the same kind; for 139. Summary, 190. it seems to be a general settled rule, that a retraxit of any action 8 Coke, 58. 62. whatsoever is a bar of all others of the like or inferior nature. (1)S. P. C. 148. Also it seems to be certain, that a nonsuit on a bill (7) of appeal, (m) 10 H. 4. 4. whether commenced in the court of king's bench, or before jus- 22 Assize, 97. (n)S.P.C.148. tices (m) of gaol delivery, or before the sheriff (n) or coroners, or (o) Sum. 190. a nonsuit after (0) declaration on a writ of appeal, is a bar of all S. P. C. 148. other appeals of the same kind; because no such bill or decla- (p) Salkeld, 64. ration shall be received, unless (p) the appellant have first ap- Vidé F. N. B. peared in proper person; and it seems to be agreed by all the 26. books, that a nonsuit after such an appearance is peremptory. 97. (9) 22 Assize, Also it is holden generally in some books, (q) that a nonsuit after 47 Ed. 3. 16. an appearance is a peremptory bar to the appellant, without B. App. 28.71. adding that he must also have declared. From whence, and also 1 Inst. 139. from the general reason of the thing, it may be reasonably ar- Vide 4 H. 6. 16. gued, that if it any way appear on record that the appellant, who Supra, s. 26. was nonsuited in a former appeal, did actually appear and pro- 47 Assize, 7. secute such appeal, as by paying (r) of process on it, &c. he (r) Vide 7 H. shall be barred in any other appeal of the same kind. But it 7.6. ($) S. P. C. 184. seems (s) that the bare taking out of a writ of appeal, and causing H.7.6. it to be delivered of record to the sheriff, and a nonsuit upon 1 Sid. 32. it, is no bar of a second appeal, because it doth not appear of (27 Assize, 7. record but that it might be done by a stranger. And notwith- Vide 4 H. 6. 16. standing some books (t) seem to hold generally, that any nonsuit 1 Sid. 32. in appeal is peremptory, yet it seems to be in a great measure (u) See the settled (u) at this day, that such nonsuit ought to be after an ap- the other points pearance in proper person of record. As to the third particular, viz. Whether a discontinuance of a former appeal of this kind will be a good bar of another appeal. 9 H. 4. 2, 3. C. Eliz. 605. books cited to of this section, Sect. 1 |