case smith against bow a appeal of murder lie post noon daughter of the Sun  Decimus horan the same a day be sufficient S c ante S c holt S c ld ray S c  ray Ent the appellee bow have demurrer to the appeal Mr Pengelly take  exception to it first that the murder be lie to be do post noon daughter of  the Sun Decimus horan the same a day and if the murder be modern report in the  night by the statute of Gloucester cap it must be plead in node the same a day  and though in July it be not dark at ten yet it must be so plead holt chief  justice in murder this be sufficient but in a indictment for burglary it will  have be have for there it must be say in node c because it be not burglary  unless it be in the night second exception it do not say the assault be way et  arms only go for sale way et arms et insultum fecit and cite Wilson v law a  Mod S c salk S c salk S c comb S c Carth S c salk S c skin S c holt S c ld ray  a three exception there be no place set forth where the stroke be give for it  be say die et loco prd insult fecit now before it be mention where the pledge  live and afterward where go for sale way et arms now prd may refer to the  place aforementioned videlicet where the pledge live so that there be no venue  lie to the assault four exception in the appeal it be murdum for murdrum and  Georius for georgius but upon examination of the bill that be file it be right  then the appellant counsel move that the roll may be amend by the bill which  the appellees counsel oppose and say that none of the statute for amendment  extend to appeal and cite Tuchins case b Mod b and the case of holy v Pitt c  Mod salk c modern report er p as to the above exception holt chief justice say  that the way et arms shall extend to all and not only to the go for sale d see  coke entry d and this be not like the case of battery or trespass for there  there be a fine due to the queen as to the three exception that prd be good  for the place mention where the pledge live be not part of the appeal as to  the four exception that he think there need no amendment but if there do it  may be amend suppose in a action of trespass there be a omission of way et  arms in the declaration and the original be right the declaration may be amend  by it but as to the mistake of Georius for georgius it be in the fresh suit  which since the statute of Gloucester need not be set forth for if a appeal be  prosecute within a year and a day it be sufficient modern report but he say  there be a mistake in award the venire for it be by to be remiss processus but  be think the right way be per sheriff non to cause to go breve as to the  amendment Powell justice say that by the commonlaw the roll may be amend by  the bill and cite Henry c and brook title Amendment where a appeal be amend  but the original in appeal be not amendable   powys and gold justice be of the  same opinion but upon the objection start by holt chief justice the matter be  put off to the next day when Mr Pengelly for the appellee argue that in this  case there be a discontinuance of the issue for it be enter quoad triand exit  prd to be remiss processus c whereas the venire shall have be continue by a  sheriff non to cause to go breve Mr Whitacre contra say it be hold well in the  case of Armstrong v Lisle a Kely Tremain Skinner Carth comb salk Mod holt a to  which Mr Raymond answer that in that case there be judgement for the defendant  before demurrer so that a to be remiss exit be sufficient Mr Eyre say that  this be a discontinuance for here be a die act of giving to the demurrer and a  to be remiss processus to the issue until the demurrer be determine and the  precedent be otherwise and cite raze   Ent raze and the case of Egerton v  Morton Bulstrode lutwych contra say that a appeal differ from a civil action  for here one may demurrer to the whole and likewise take issue to the whole  but not in a civil action and all the precedent cite be of civil action but in  the case of a appeal where there be two plead to the whole it be better with a  to be remiss processus to the venire because there will be no need of a venire  if the demurrer be adjudge for the defendant but it be good either way and in    Ent Bulstrode it be adjudge in point Mr Eyre solicitor general reply that in  those case there be judgement for the defendant to which holt chief justice  answer that though there be judgement for the defendant in those case yet the  entry of a to be remiss processus be not the cause of it for if there be a  discontinuance the modern report court can have give no judgement at all if a  quare hinder be bring against three two plead in abatement and the other in  bar and judgement be give for the plaintiff as to the two then it must be  enter but there must be a to be remiss execution and if judgement be give for  the three defendant and a verdict for the plaintiff then the to be remiss  execution will be continue as to the other two the court give their opinion as  follow holt chief justice say that upon consideration they be of opinion that  this be the most proper way for it be in vain to proceed to issue until the  demurrer be determine for if the bill abate there be a end as to the amend the  appeal by the original bill it be amendable at commonlaw but if not yet it be  by Edward c and cite blackmoor case a   a for appeal be not except out of that  statute modern report er p it be doubt whether a plea may be amend after  judgement upon error and that be upon the word process which be think do not  extend to any plea after judgement upon error to amend which the statute Henry  c be make which it do by add the word record and the statute Henry c make that  perpetual in none of which statute appeal be except the statute Henry enlarge  the power of the judge but in this appeal be except he cite the case of sir h  Tufton v sir John Ashley b cro car b a amendment in a quo warranto and  conclude that it shall be amend for the aforesaid statute extend to appeal  where by the record itself it appear to be a mistake of the clerk Powell  justice say there be very few thing that be amendable at commonlaw a  misprision of a clerk be not if there be nothing to amend it by but this be  amend one part of the roll by the other videlicet the recital by the bill in  this case the bill be verbatim the same as the count but in most case it be  otherwise as to the statute I see no reason why a appeal which be a civil  process be not within they where it be not except but I ground my opinion upon  the commonlaw modern report as to the discontinuance I think one way be as  good as the other without the order of the court it will be a discontinuance  but we have power to stay the issue until after the demurrer and this appear  to be so by the entry videlicet to be remiss processus quousq eaden means in  lege to some place fixed by law modus to set bounds and that this way be usual  as well as the other the precedent cite show powys and gold justice idem pro  eaden ration and the court order that the roll shall be amend