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[52 a] must sue out such writ; and if the writ he shall sue, materially vary from these outlines, the court may, ex officio, abate it, or it may be abated by plea, but it is no ground of demurrer; and when the plaintiff cannot obtain the remedy he is entitled to by any writ conforming, in its outlines, to those prescribed by statute, it has been the ancient and common practice of the court to grant him a writ, by which he may obtain his remedy. 3 Mass. 193, Čook v. Gibbs. It is obvious that the forms, contained in the several statutes for regulating civil processes, were not intended to be followed verbatim et literatim. 11 Mass. 276, Wood v. Ross. See also 14 Mass. 157, Dunning v. Owen. 1 Pick. 389, Badlam v. Tucker.

Co. Ent. 618.

Mo.857. mesme

case. Roll.

1. Abr. f. 903.

2 Brownl. 311.

FOSTER VS. JACKSON.

If a verdict begin with special matter and proceed to a general conclusion not sup-
ported in law by the special matter found; or begin with a general verdict and
afterwards adduce special matter contrary thereto; in each of these cases the
general conclusion or verdict is overruled by the special matter found. *
If the jury find a matter not in issue, the verdict, as to such matter, is void.

If the words of the issue be not in the verdict or it be otherwise informal, yet if it
find the substance of the matter in issue, it is good.

A plea that the sheriff took the debtor in execution by virtue of a cap. ad satisfaciend. is supported by shewing a taking under an alias capias.

In a special verdict, certainty to a common intent is sufficient.

The court must, ex officio, give judgment upon the whole record; and therefore if the defendant plead a matter which amounts to a confession of the action and the issue be found for him, yet the plaintiff shall have judgment.

A party may take out a capias, an elegit or a fi. fac. and he may take either of
them after the others, if they take no effect, though the election be entered of
record; for an elegit is not a mere election of the writ of elegit, but of the
land.

So the plaintiff may have an elegit into several counties, one after another.
If upon a fi. fac. the debt be satisfied in part, the plaintiff may have a capias or
an elegit for the residue. And if upon an elegit there be no execution but upon
goods, and that not sufficient, the plaintiff may have a capias for the residue.
If a capias be executed, it is a satisfaction of the whole debt; and if the party taken
in execution die, it is still a satisfaction in law; and if he escape of his own
wrong, the plaintiff's only remedy is debt or case against the sheriff for the

escape.

Execution by capias was not awardable, at common law, except in trespass vi et

armis.

RICHARD FOSTER brought a sci. fac. against Anne Jackson widow, and Miles Jackson, executors of the last 8 Co. 86. b. 87. will and testament of Thomas Jackson, containing, That whereas the plaintiff in Mich. Term. 6 Jac. had recovered against the said Thomas, in the Common Pleas, as well a certain debt of 2300 pounds, as 16 pounds for damages,

a. Trin. 10

Jac. Rot. 38.
14. Sci. fac.
Crompton.
London.

* See 8 Taunton 183, Bennett v. Costar.

[52 b]

This was ad

open and large

olls, Warber

executors, &c.

chargeable.

why he should not have execution against them of the same judgment. The defendants plead that the plaintiff ought not to have execution against them of the goods judged against and chattels of the dead; for they say that the said Foster the plaintiff. Trin. plaintiff, after judgment, in the life of the testator, scilicet 13. Jac. upon the 13th day of Feb. in the said sixth year, did prosecute agreement at the Bench, by quoddam bre. ipsius domini regis capias ad satisfaciend- Hobart, Nichum against the said Thomas upon the said judgment, to ton; Winch to the then sheriffs of London directed, returnable xv. Pasch. the contrary. by force of which writ the same sheriffs, before the return A large case judged that a thereof, that is to say, the 11 die Martii, took the said man dying in Thomas, and had him in prison, and kept him for the debt party, his heirs, execution, the and damages aforesaid; and the said Thomas so being are no further in execution after and before the return of the said writ, and of execudied in execution, and that the sheriff returned the writ tion generally at large. so, and demanded judgment. And the plaintiff saith that the same sheriffs of London did not take the said Thomas Jackson, and him in prison, and under custody in execution for the debt and damages aforesaid had and detained by virtue of the said writ of capias ad satisfac. prout, &c. whereupon issue was taken: and the jury find that the sheriffs, virtute brevis de cap. ad satisfac. infra specificat., non ceperunt, &c. sed dicunt quod ceperunt &c. virtute cujusdam brevis capias ad satisfaciend. in recordo prædicto minime specificat. in quadam exemplificatione inde consect., et jurator. osten. cujus tenor. &c. specificat, and so set down the writ of alias capias at large of the same teste, the same return and all things, only it had not any averment that the persons and judgment and all things

are the same, and conclude si super tota materia, the Executions and court shall think that the sheriff took him by force of the their natures at capias within mentioned, then they find for the defend

ants; if otherwise, then for the plaintiff.

The case depends upon two points.

large.

First, whether the verdict be found for the plaintiff or First Point. the defendant.

The second, whether the death of Thomas Jackson in Second Point. execution be an absolute discharge of the debt, against

him, his heirs, executors and administrators, so as no new

[52 c]

1.

2

3.

[53]

To the first

question upon the first point.

Apr. 222. 4 Co.

42. b. Plo. 112.

b. 111. a. 1

Cro. 75, 76. 1
Inst. 227. a. 12
Co. 15. Hut.

131, 174. Co.

L. 227. a. 1

action or execution can be had against them, or any of them.

Touching the first point there ariseth three questions. First, whether the former part of the verdict be peremptory, which finds that the sheriff took not Jackson by virtue of the writ of capias mentioned in the plea, or whether the rest that follows, that he took him by virtue of an alias capias not mentioned in the record, and sets forth that specially with conclusion, if upon the whole matter, &c. and leave it to the court to correct the first part.

Next, whether the alias capias being understood of the same cause, persons, &c. will maintain the defendant's plea.

Lastly, whether this alias capias shall be understood of the same judgment mentioned in the defendant's plea, because the verdict hath no averment expressed, nor by the word præd. &c.

And to the first question upon the first point.

If the verdict had proceeded no further than to the general negative, that the sheriffs did not take him by virtue of that writ, it had been clear against the defend

ant.

But wheresoever a jury doth begin with a special matb. Regula 114. ter, and after makes a general conclusion upon it, contrary to that which the law and the court do judge upon the special matter found by them, or on the other side, when 121. Cr. Car. they begin with a direct verdict, and yet after deduce a special matter which is contrary to their direct verdict, or in law proves the truth contrary to their general verdict. premised, and closed them up with submitting the whole to the judgment of the court, as in this case it is; in both these cases the special matter makes the verdict and overrules the general. As for example,

Cro. 212. 2 Cr. 55. 3 Cr. 481.

Hard. 347. 2
Ro. 701. 2.

2 Cr. 212.

20 Eliz. Dyer 362, in debt against executors the defendant pleaded pleniement administer, whereupon issue was taken; the jury find that the testator had made a lease for years of the house and implements of household, rendering rent, and died, and that the executors had received the

rent, and concluded issint assets; yet the court judged upon a special matter it was no assets, because the rent ran with the reversion, and so belonged not to the executor.

So Pasch. 22. Eliz. Dyer 370. One brought a writ de plegiis acquietandis, and the jury found that the plaintiff was bound for the defendant, as his surety, in an obligation with him jointly and severally, and that being impleaded he prayed a plea, &c., and yet judgment was given against the plaintiff; for as this case is, they were both principal, and neither pledge nor fidejussor to the other. And this action lies not but where one is named expressly as surety in the bond, which was not so in this bond.

[53 a]

L. 282. a. 3

100. Yel. 148.

3Cr. 882. 84. 1

Ro. 787.

And Pasch. 2 and 3 Ph. and Mar. Dyer 115. b. Debt 1 Cr. 453. Co. upon an obligation for performance of covenants, where- Cr. 209. 2 Ro. of one was that he should do no waste, and issue taken 706. 2 Lev. whether he felled ten oaks, it was found that he had not felled twenty oaks, but he had felled ten, and it was adjudged for the plaintiff; yet, if upon the first point it had rested there, it had been found for the defendant. 2 Cro. 453.

Note, that ten did not prove the issue of twenty, lit- Post 72. & 3. erally, but it proved the breach clear within the issue. Quare, if it had been oaks for ashes, or the like; for either had been waste; and the very issue in contemplation of law is waste or no waste, and the rest is of a certainty of form; so in Townesend's case, Plo. 111.

the first point.

As the second branch of the first point, whether the The second alias capias can be taken within the issue. First, lay this question upon for a ground, that if the jury find anything that is merely out of the issue, that such a verdict, for so much, is utter- 11 Co. 13. a. ly void and of no force, (1) though it conclude in gen

(1) If a jury, in their verdict, find facts which are not properly submitted to them, or which they have no authority to find, and also find the regular issue, such extrajudicial finding will be rejected as surplusage, and judgment will be rendered on that part of the verdict in which the regular issue is found. 6 Mass. 304, Bacon v. Callender. Thus if a jury, in Massachusetts, express in their verdict that the plaintiff shall have full costs, in a case where by law he is not entitled to them, that part of their verdict which relates to costs will be merely void and may be rejected as surplusage. 11 Mass. 358, Lincoln v. Hapgood. So if a jury in New

Verdict out of

the issue void.

Owen 91. 1

Inst. 227. a. ac

cord. 47. E. 3. 19. a.

[53 b] eral, for or against the plaintiff or the defendant; whereof

the reason is plain, which is, that the jurors are tryers of matter of fact put in issue between the parties, and their oath, which contains their commission is, that they shall truly try the issue between party and party. And so is the ven. fac. ad triand. exitum, non ad triandum jus, as in a writ of right, so that whatsoever they do try besides the issue is per non juratos, as a cause judged by the court that hath no jurisdiction of the cause, coram non judice, and utterly void, for a verdict must not be to the action, that might have been pleaded, but to the issue, which is pleaded, and in their charge. And if that other point had been pleaded it might have had another answer and evidence. And therefore the entry of the verdict in the record is, quid ad veritatem de infra content. jurati dicunt super sacramentum suum, &c. And so upon the matPalm. 535, 145. ter, if that extravagant part of the verdict be false, it is

11 Co. 13. a.

3 Inst. 167. Yel. 72.

Plo. 96. a.

[54]

no perjury, neither doth any attaint lie upon it, for there is no party grieved nor anything to be restored, neither can it be used as in evidence in any other trial, because there is no redress if it be false.

And I hold it plain, you cannot justify to call him perjured upon such a point being false. And so it is concerning a point of discourse by judges out of the point of the judgment, it may be a judicious and studied opinion, and of some authority, but it is no part of the judgment, for no writ of error lies upon it, and therefore it ought not to preoccupate or prejudicate a judgment. 1 Cr. 174. Co. And therefore 39 E. 3. 38. a writ of annuity was brought upon a prescription, the defendant traversed the prescription, whereupon issue was taken and found for the prescription; but further, the jury found that there was nothing of annuity behind; yet judgment was given for the plaintiff.

L. 227. a. 3
Cr. 546.

47 E. 3. 19. a.

York find, in an action for an escape, that the prisoner returned voluntarily before suit brought, but that the defendant had not filed, with his plea, an affidavit that the escape was without his knowledge or consent, (see Sess. 36. c. 67. s. 23.) the finding as to the want of an affidavit, must be rejected as surplusage, this being a matter beyond the issue to be tried, and belonging exclusively to the court. 16 Johns. 307, Richmond v. Tallmadge. See post 112, Tasker v. Salter.

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