Sect. 77. II. Where the writ describes an indictment for steal- (q) 2 Assize, 3. S. P. C. 70. ing (q) two horses, and that certified is for stealing one horse only. B. Variance, 62. Lamb. b. 4. c. 7. f. 518. B. Cor. 69. Crompton, 132. 1 Bulst. 155. Sect. 78. III. (r) Where the writ describes an order concerning (r) 1 Salk. 145. Farresly, 97. foreign salt, and that certified is concerning salt in general. Sect. 79. IV. (s) Where the writ describes an order concerning (s) 2 Salk. 452. C. Eliz. 882. the town of Needham-Market, or concerning the manor of Ansly, (t) and an order concerning the town of Needham, or the manor () 12 Assize, 2. of Anesley, is returned, without shewing in the return that they B. Variance, 66. are both the same town. 151. Sect. 80. V. Where the writ mentions only (u) orders against (u) 1 Salk. 146. A. B. and C. or indictments wherein A. B. and C. are indicted, Reg. v. Hotand those certified are against A. only, or against A. and B. only. spurt, Hil. Yet (x) it is taken for granted in many books, neither do I find 12 Ann. Con. it any where denied, that certiorari for the removal of all indict- 1 R. Abr. 395. (x) 6 Ed. 4. 5. ments against A. may remove one wherein the said A. is indicted, Lucas, 205. together with twenty others, so far as it concerns him; because B. Record. 57. in judgment of law it is a several indictment as to every one of the persons indicted. But I do not find it (y) agreed, whether, in such a case, the indictment shall be removed so far as it concerns the other twenty? Lamb. b. 4. c. 7. f. 517. 4. 5. B. Record, 57. Lamb. b. 4. c. 7. f. 517. Crompton, 132. Dalton, c. 134. Denied, March, 112. 1 Keble, 231. 10 Modern, 205. Lord Raymond, 609. 1203. Abr. 754. (d) C. Jac. 633. Sect. 81. VI. Where there is a (2) material variance between (3) Vide 1 R. the writ and the records certified, in the names or additions of (a) Salk. 264. the parties; as where the writ gives the defendant the surname (b) Ad. Mich. of (a) Giggure, and the record certified that of Giggeer; or where 3 Geo. 1. the writ commands the removal of all convictions against (b) (c) 26 Assiz. 31. Henry, coachman, quocunque nomine censeatur, and those certified (e) C. Jac. 477. are against Henry Munton, coachman; or where the writ calls 2 R. Abr. 329. the defendant John (c) of Stiles, and the record is John Stiles; between a proor where the one calls him (d) knight and baronet, and the other tection and the baronet only; or the one (e) Garret Malines, and the other Ger- writ adjudged rard Malnes; or the one J. S. (f) nuper de B. and the other J. S. nuper de C.; or the one J. S. of B. sadler, (g) and the other writ of error, J. S. of B. salter. Such a variance fatal. (f) Adj. in a Ainsworth and 5 Geo. 1. Par. Case, 1. To a certiorari on a writ of error diminution may be certified, 8 Mod. 31. Siderfin, 193. (q) Dyer, 173. 1 R. Abr. 753. 43. Yet if the variance be only in the spelling, and the words have (h) C. Eliz. 172. the very same sound either way as (h) Bird and Burd, (i) Shel- Con. 25 Edw. 3. bury and Shelbery, it seems that it will not be material; because (i) Vide C. Eliz. it appears not by any record of the court but that the name in 172. the certiorari may be the true name, and the record certified de- 1 R. Abr. 797. scribing one by a name of the same sound, shall be intended to mean the same person. 2 R. Abr. 329. Also, if a certiorari name the party without any addition, and the record certified name him with an addition; yet it seems that it may be probably argued, that the record may be well removed by such writ, in the same manner as it may be by a writ of (k) (k) 1 Sid. 193. error which has the like variance. But if a writ of error describe 9 H. 6. 1. a person with an addition which is omitted in the record certified, Dyer, 25. Hil. 3 Geo. 1. 9 H. 6. 1. it hath been (7) lately adjudged, contrary to the opinion of Sir Shute v. Car, Edward Coke's (m) Third Report to the contrary (which seems to be rather contradicted than supported by the (n) authorities cited to maintain it), that it cannot remove the record; and the reason seems to be the same in respect of a certiorari. (1) B. Variance, 6. Vide Dyer, 25. 2 R. Abr. 328. 329. (m) 3 Co. 2. 1 R. Abr. 752. (n) 9 H. 6. 1. 7 Assize, 5. 26 Assize, 31. (0) 12 H. 7. 25. 2 R. 3. 9. 3 Assize, 3. 2 Keble, 142. As to the ELEVENTH POINT, viz. What is to be done by the court above, where the record mentioned in a certiorari is not removed by it. Sect. 82. It is (0) said, that such court cannot in such case proceed upon the record; because in judgment of law it still remains Vide 1 Sid. 193. in the court below, but will either (p) quash the writ, and (9) award a new one, or suffer the court below to proceed in the cause, and take such (r) order in relation to the defendant's appearance, either in the one court or the other, to answer the farther prosecution of the cause against him, as shall in discretion appear to be most proper. (p) 1 Keble, 102. 1 Salkeld, 147. (9) Stra. 1227. 3 Assize, 3. (r) 12 H. 7. 25. 3 Assize, 3. 2 R. 3. 9. 20. B. Indict. 50. B. Cor. 69. 2 Keble, 142. Lamb. b. 4. c. 7. f. 518. Sup. c. 25. sect. 11. 2 Hale, c. 198. Carthew, 223. 2 Bar. K. B. 413. (s) S. P. C. 70. Summary, 211. (t) S. P. C. 70. 1 Salkeld, 61, 62. 6 Mod. 246. B. Appeal, 15. 140. F. Cor. 105. 48 Assize, 3. And now I shall consider what process is to be awarded after the removal of a record by certiorari into a superior court. Sect. 83. As to which I take it to be agreed, that, after such removal, if the defendant do not appear in the court of king's bench, the same (s) kind of process lies against him as if the cause had been originally commenced there. ap Also I take it to be (t) agreed, that seeing by such removal the cause is wholly put without day, there is no way to non-suit the plaintiff, before he hath appeared in the court of king's bench, but by taking out a scire facias to warn him to prosecute his peal in that court. Whereupon if the sheriff return a scire feci, he shall be nonsuit; and if the sheriff return a nihil, a scire facias sicut alias shall be awarded; whereupon if the sheriff return a second nihil, I do not find it (u) agreed what ought farther to be done (r). B. Appeal, 15. 140. F. Corone, 105. (r) We should suppose a nonsuit. Bac. Ab. 359, notes. (y) F. Judg. 12. Finch, 431. Co. Lit. 325. As to the SEVENTH GENERAL POINT, viz. Where the process on an appeal, indictment, or information, shall be said to be discontinued, or miscontinued, or put without day. Sect. 84. Having premised, that it seems to be agreed, that every suit, whether civil or criminal, and also every process in B. Amend. 17. such suit against jurors ought to be properly continued from day to day, from its commencement to its conclusion, without any the least gap or chasm; and that the suffering any such gap or chasm, is properly (y) called a discontinuance; and the continuing of the F. Pro. 124. 127. 1 H. 7. 2. 22 Edw. 3. 2. 22 Ed. 4. 3. 12 H. 4. 3. (1) If the writ name more defendants than are in the record, it is variance, Strange, 116. But it need not describe whether the offence be laid contra formam statuti, Strange, 845. Vide also 2 Hale, 214. suit A certiorari to remove a conviction on indictment must give the defendant a day in court, Lord Raymond, 971. Strange, 116. 845. suit by (y) improper process, as by a capias instead of a distringas, or by giving the parties an (z) illegal day, is properly called a miscontinuance; Finch, 431. Coke Lit. 325. F. Amend. 12. B. Dis. de Pro. 11. 23. 50. 57. 61. 12 H. 4. 18. (z) B. Dis. de Pro. 23. 21 H. 7. 16. I shall for the more distinct understanding of the learning of this kind, endeavour more particularly to shew, 1. In what particular instances process is generally said to be discontinued: 2. Where to be miscontinued: 3. Where to be put without day. PROCESS is generally said to be discontinued in the following instances: (y) 21 H. 7. 16. H. 4. 3. 8 H. 6. 29. 10 H. 7. 21. Keilway, 36. Con. 40 E. 3. 16. 142, 143. Yelv. 204, 205. Sect. 85. FIRST, Where the second is not tested on the very (b) 1 Bulst. 141. same (b) day on which the first is returnable; as where a venire facias is returnable on the twenty-third of January, and the distringas is tested on the twenty-fourth or any other subsequent day. 282,283. (c) 8 Ed. 4. 13. 467. (d) 8 Ed. 4. 13. Sect. 86. SECONDLY, Where there is a term intervening between the teste and return of a (c) capias; for the law will not suffer any such capias, lest thereby the defendant should be imprisoned an F. Con. 3. unreasonable time; but an original may be continued by any (d) other process, except a capias, though it have a term or more intervening between its teste and return. (e) Neither is it any objection to an exigent, that it is not made returnable on the next term after its teste, because it must allow time enough for five county courts to be holden between its teste and its return. Dalison, 108. Dyer, 175. Qu. B. Dis. de Pro. 23. 21 H. 7.16. (e) Dalis. 108. 1 R. Abr. 484. 236. Sect. 87. THIRDLY, (f) Where, after issue or demurrer, the (f) C. Jac. court give the parties a day to a distant term, without making Yelverton, 169. any continuance to that immediately following. 9, 10. Con. 1 Bulstrode, 144. 21 H. 7.16. 1 R. Abr. 484. 3 Bulstrode, 233. Sect. 88. FOURTHLY, Where the term to which the suit is continued is adjourned, and the suit is (g) not adjourned accordingly. (g) 1 Dan. Abr. 243. 4 Edw. 4. 40. F. Dis. 27. B. Amend. 22. Sect. 89. FIFTHLY, Where any of the parties are described in (h) F. Dis. 1. any continuance of the suit, whether on the Roll, (h) or by (i) 4 process, by a name or addition variant from those in the original, 40 E. 3. 18. &c. though (k) only in one letter. (i) F. Amend. 13. 17. 21. 27. B. Discon. de Pro. 46. Amend. 50. 38 Ed. 3. 22. 8 H. 5. 2. 7 H. 6. 27. 9 H. 6. 39. (k) Qu. 4 H. 6. 6. B. Dis. de Pro. Sect. 90. SIXTHLY, Where after issue joined, the process is (7) not continued from time to time against the jurors, returnable 1 Ed. 4. 20. on the same days to which the suit is continued on the roll against 53. the parties. Continu. 82. Sect. 91. SEVENTHLY, Where (m) a joint venire is first awarded (m) Qu. 22 H. 6. 3. 4. for F. Dis. 11. Vide 7 H. 6. 27. (n) F. Dis. 14. 35. 2 H. 5.3. for the trial of all the defendants together, and afterwards several venires for the trial of each of them. Sect. 92. EIGHTHLY, Where (n) a venire omits part of the issue or issues to be tried. Vide B. Dis. de Pro. 63. Qu. C. Eliz. 622. (0) F. Dis. 10. 35. 1 Roll. 22. Sect. 93. NINTHLY, (0) Where a venire omits any of the parties. 3 Bulstrode, 311. Winch. 73. B. Amend. 50. 39 E. 3. 21. (p) F. Reple. 4. 9 Ed. 4. 13. B. Dis. 47. 191. 198. 215. Sect. 94. TENTHLY, Where a juror is named in the habeas corpora by a name (p) different from that in the panel returned on the venire; or where a juror returned on such a panel is wholly omitted on the habeas corpora. But in these cases, if the juror so misnamed, or (g) omitted, be not sworn at the trial of the cause, it is (r) questionable, Whether there be any discontinuance at all? (q) F. Amend. 57. 37 H. 6. 12. B. Amend. 51. (r) 1 Siderfin, 66. 1 Keble, 182. 6 Modern, 285. F. Dis. 4. seem to make it no discontinuance. But 19 H. 6. 39. 27 H. 6. 5. F. Enquest, 18. 5 Coke, 6. 37. F. Dis. 37. 38. B. Amend. 10. 37. 92. Vide Cro. Eliz. 586. 34 H. 6. 20. (s) F. Err. 16. (t) Vide sup. c. 5. sect. 5, 6, 7, 8, 9, 10, 11, 12. Rastal, 77. (u) Vide B. Dis. de Pro. 52. 15 Ed. 4. 5. Sup. sect. 66. Sect. 95. ELEVENTHLY, Where a venire or distringas are issued without any (s) award on the roll to warrant them. Sect. 96. It (t) seems, that before the making of the statutes of 11 Hen. 6. c. 6. and 1 Edw. 6. c. 7. all pleas and processes before justices of assize, gaol-delivery, oyer and terminer, or peace, or other the king's commissioners, were discontinued by the making a new commission or association, or by altering the names of the justices or commissioners; but this mischief is fully remedied by those statutes. Sect. 97. If an (u) indictment be removed by certiorari, after issue joined, and process awarded for the trial; quære, If it shall be discontinued, if not remanded before the return of such process? As to the SECOND POINT, viz. Where process is generally said to be miscontinued. Sect. 98. It seems, that wherever an error in process doth not amount to a discontinuance, it is generally called a miscontinuance. And this seems agreeable to the proper notion of the (1) Finch, 431. word; for as a cause may then properly be said to be discon Sup. sect. 89. 21 H. 7. 16. 39 Ed. 3. 20. (y) 21 H. 7. 16. B. Dis. de Pro. 11. 47. 50. 57. Amend. 17. C. Jac. 283,284. 2 Bulst. 142, 143. (z) Trin. 11 Annæ. 10 Modern, 86. tinued, when there is either nothing at all done to continue it, or And As to the THIRD POINT, viz. Where process shall be said to be put without day. Sect. Moor, 748. Sect. 99. It seems (a) agreed, that by the common law all (a) 7 Coke, 30, proceedings upon any indictment, information, or popular action, $1. whereon no judgment had been given, were wholly determined Cro. Jac. 14. by the demise of the king, and that nothing remained but the in- 2 Hale, 189. dictment or information, original writ, or bill, which were put 209. without day till re-continued by re-attachment to bring in the defendants to plead de novo. But this is fully (b) provided for (b) Sup. c. 1. s. by 4 and 5 Will. 3. c. 18. and 1 Ann. c. 8. by which it is enacted, 12, 13. "That such process, &c. shall continue in the same force after "the king's demise, as it would have had if he had lived." Sect. 100. As for appeals, (c) I do not find it any where said, (c) 7 Coke, 30. that the pleas, and other proceedings therein, being put without day by the demise of the king, might not be revived by a special re-attachment, in the same manner as in any other action: however, it is certain at this day, that by force of 1 Edward 6. c. 7. and 1 Ann. c. 8. " neither the writ nor bill, nor any plea, nor proceedings therein, shall be any way discontinued or put with"out day by such demise." 66 25 Assize, 5. Sect. 101. It seems to be holden by (d) some, that all causes, (d) Dyer, 226. whether civil or criminal, are discontinued, and by (e) others, who Keilway, 2. C. Eliz. 12. seem to speak more accurately, that they are put without day, by B. Dis. de Pro. the justices, before whom they were depending, not coming on 29. the day to which they are continued, whether such absence were Vide 1 Coke, 38. occasioned by (ƒ) death, or any other cause. But it seems to be (e) Co. Lit. 135. agreed by all, that a cause so discontinued, or put without day, Finch, 432, 433. cannot be revived without a re-summons or re-attachment; which Rastal, 77. if they are (g) special, may revive the whole proceedings; but if general, the original record only. Nor do I find that any statute hath remedied this mischief, except in the case of assizes, and juris utrum, which are provided for by 1 Edw. 6. c. 7. (1) B. Dis. de Pro. 2. (f) B. Reattachment, 18. 4 H. 7.7. F. N. B. 111. 287.188. As to the EIGHTH GENERAL POINT, viz. How far errors in process are fatal. F. Dis. 19. Reattach. 1. 24 Ed. S. 23. Sect. 102. It seems to be generally taken (h) as an undoubted (h) 1 Bulst. 143. Yelver. 204. principle, C. Jac. 283. 8 H. 6. 29. 21 H. 6. 16. 12 H. 4. 17. 34 H. 6. 20. 18 H. & 15. Coke Lit. 325. B. Dis. de Pro. 4. 11. 47. Amend. 17. F. Pro. 127. Dis. 40. Amend. 27. 38 Ed. 3. 22. 19 H. 6. 39. Vide B. Err. 3. Replead. 2. and Disc. 1, where the contrary opinion is said to have been holden: but this seems not to be warranted by the case at large in the Year Book. (1) But now when the judges are prevented from reaching the assize town on the commission day, by unavoidable accident or press of business at a former town, by st. 3 Geo. 4. c. 10. it is enacted, "That whenever it shall so happen that such com"missions (i.e. commissions whereby the judges go the circuits,) shall not be opened and read in "the presence of one of the quorum commission"ers, (one of the judges, or a serjeant) at any " place specified for holding the assizes, on the "very day appointed for such purpose, it shall "and may be lawful to open and read the same, "in the presence of one of the quorum commission"ers, therein named, on the following day, or if "such following day shall be a Sunday, or any "other day of public rest, then on the succeeding "day; and such opening and reading thereof |