case atwood against burr easter term will roll error on a judgement in  inferior court against bail on a to know facias S c Carth SC lily Ent SC ld  ray error of a judgement on a to know facias against bail in the mayor court  of Maidstone the writ recite that a plaint be levy in debt upon a bind against  I S by the plaintiff on the seventeenth day of July the six year of the king  in curian domini king villae king de Maidstone and that thereupon a summons  issue returnable the thirtyfirst of July and after a nothing thereunto return  a copy returnable the fourteenth of August follow by which the defendant be  take and appear on the return of the to take in hand corpus the defendant  become his bail and enter into a recognizance to pay the condemnation with  cost and charge of suit the to know facias further recite a former to know  facias and command the officer as prius c a to know to make be return and  judgement give against the bail and in Michaelmas term in the thirteenth year  of William the three upon the writ of error many exception be take first that  in this case the inferior court can only award execution of good land and  tenement within their jurisdiction and therefore the to know facias ought to  run so and not general as here holt chief justice answer that the recognizance  be well take that in case judgement be against the defendant to levy the  condemnation of his good and chattel land and tenement that the common course  of the court of king bench be so although in the court of common plea they  bind in a sum certain and that the summons need not be cramp up by word to the  jurisdiction of the court for that shall be understand second after issue join  and a venire facias to try it the defendant in the original relict  verificatione cognovit act and judgement against he in one hundred pound debt  and fifty pound damage without any mention of cost and the prayer of the to  know facias against the bail be to have execution de debt is owed et financial  loss so not accord to his recognizance holt chief justice where the demand be  of a debt certain one need say no more than financial loss to include cost  except it be on take a verdict on a trial where cost be to be mention but upon  confession nothing to say c it be never or at least need never be do three the  to know facias be in the mayor name whereas it ought to be in the king name  and test by the mayor it be a process of the king court holt chief justice  answer that it be the constant practice of all inferior court to make the  process in the name of the mayor modern fourthly the to know facias recite a  plaint levy the seventeenth of July and on the record it appear to have be on  the fourteenth of July holt chief justice answer that upon a writ of error  there can be no advantage take of a variance between the writ of to know  facias and the original record five in a to know facias against a recognizance  it shall be in she part and here it be in hoc part holt chief justice answer  that it be true the right way be not to say in hoc part in process upon a  recognizance but that it have now obtain so long as to make it good either way  and we must not binder it six the command of the writ ought to be to summon  the party if find within the jurisdiction but here it be general holt chief  justice answer this exception as in the answer to the first exception seven  here go a alias to know facias upon which this judgement be and the first to  know facias be not return and so they show on the record modern holt chief  justice as to this exception which be the chief ask the counsel on the other  side how they can proceed upon a to know facias which be not modern er p  return as here the first be not for there ought to be some answer to the writ  as that the party have nothing c that he to know fecit or non be invention for  if there be no return I doubt it will be a discontinuance and that can be cure  by appearance but after verdict a miscontinuance be cure and there be no  return to the first or so much as a recital of it on the second but only as  prius teaching be it will be hard to maintain it and if you do not appear at  the return you can appear at all if the process be not continue down if there  be a original returnable in Trinity term and the defendant do not appear but  come in Hilary term all be wrong if there be not a continuance to Hilary term  down duly enter if to know facias be returnable die Jupiter prox post tres  seven S Michael if the party appear crast S Martini it will be a incurable gap  for none can appear when be bag no day by the writ or on the roll and here be  neither and suppose the first to know facias have be well return and a alias  have issue out returnable in June and the defendant appear in August all will  be bad without a continuance enter until August because without it the  defendant have no day in court but be say perhaps the want of a return of the  to know facias may be cure by the day on the roll where the testae and issue  out of the writ be which perhaps may be a ground for a alias and also a day  for appearance and be say that upon plead the statute of limitation be always  use to plead the return and not the purchase of a writ for it be the return  that give the possession of the cause to the CourtSee roll salk Bac Abr hawk p  c burr that the day of sue out the writ be the commencement of the suit a and  if one be to continue a latitat for several year he must get the first return  upon which return you make your continuances down though you never take out  another but there must be a return of the first writ so if a capias ad to give  satisfaction be take out within a year you may continue it down as long as you  please upon a sheriff non to cause to go breve and not be put to a to know  facias so there be a vast difference between the writ to which the defendant  have a answer and one to which he have none for if it be a writ to which the  party have a plea there must be some sort of a return or that it come tarde  but still there must be some return and for this be quote the case of sir John  vidian v well and can any court bold plea of a writ before it come back to  they and if you come to set it forth by as alias you modern ought to set it  out at large and be say he will support it if he can for the sake of the  suitor who have be at the charge of purchase the franchise and not for the  sake of the steward for they general oppress the people the case be argue  again this term Broderick take exception first that the original declaration  be that the defendant per scribe suum obligatorium c the defendant plead non  be factum and a venire to try the cause be ad recognoscend si scribe  obligatorium pillage be the deed of the defendant which he say be a  contradiction and then there be no day on the roll to the party but the day on  the venire which be none the venire be contradictory the confession of relict  verification be void and the judgement ground thereupon erroneous holt chief  justice answer take it to be so and that it be a plain discontinuance which be  the utmost you can pretend you can take advantage of that in a error upon the  judgement on the to know facias against the bail if bail be to a action in  this court and a to know facias against the bail and judgement against they by  nothing to say in a writ of error of that judgement they can say that there be  no judgement in the original action because that ought to have be plead on the  to know facias for though it be essential necessary to charge the bail there  shall be judgement against the principal yet that must be take advantage of in  plead upon the to know facias and never upon a writ of error second it be  object the want of a return of the first to know facias for a entry be make  that the officer have not return it to which it be answer by counsel that true  it be upon a writ issue out of chancery returnable in the common plea or in  this court no proceed can be until it be return for until then it be not  depend otherwise where the writ modern er p issue out of the same court and be  returnable there see the yearbook Edward pl   a and the ancient practice be  that when a writ issue out of this court a entry be make of it on the roll and  where a man be to lose his inheritance or incur a penalty he may appear on the  day on the roll though the officer have not return the writ modern holt chief  justice the ancient way be to make a record of the original and in the common  plea they go by way of recital dominus king to cause to go breve suum enclosed  space in haec word now a to know facias be sue out here and a entry make of  viscount non to cause to go breve and sue out and return and the party appear  why shall they not proceed upon this second writ and thou the first be not  return yet there be a entry of it on the plearoll and upon that the other  proceed be find and the second refer to it as alias the case be argue again in  Michaelmas term in the first year of queen whether holt chief justice declare  that he have speak to coke prothonotary of the common plea who assure he he  never know a proceed upon a second to know facias the first not return and he  say that though the defendant have a day in court upon the to know facias be  enter on the roll at its issue yet there can be no proceed upon it until it be  return and you shall get a return make no matter whether execute or notIt be  say that this case be stir again in Hilary term the four of queen whether and  that the first writ when award shall be enter on the roll for the defendant  have a day by the roll and therefore the writ be depend before the return of  it and therefore in this case if there have be such a entry it have be good  with this award of as prius c SC ld ray a another exception take be that this  be a judgement on demurrer and they give a final judgement without give a  interlocutory one because to see cur c and it be say that the form of  judgement ought to be strict keep to and therefore concession or adjudge have  be hold bad in a inferior court and this be like the case of a special verdict  where the special fact be leave to the judgement of the court roll Rep cro  James cro Elizabeth b it be not enough that judgement be give for he that  ought to have it but it must also be upon a right ground see Owen c holt chief  justice say that such a fault will be amend now and he say that always upon  demurrer before you proceed to final judgement you say because to see our quod  placitum c therefore to look at closely be and here they give final judgement  when for aught appear they have not determine the matter submit to they and  though it be not essential to give a reason for their judgement yet it be  material to decide the matter put in judgement the court seem incline to  reverse the judgement for these two error it be say SC salk that the judgement  be reverse on this last exception d Raymond for the defendant perceive this  take exception to the writ modern of error that it be quod in act of  assignment performance judgment pillage error come between where it shall be  in act of assignment performance recognitionis pillage and though Powell  justice say that a recognizance be a judgement and want nothing but execution  to make it a complete judgement holt chief justice say yet it be another  species of a judgement which ought to be show and the court be of opinion to  quash the writ of error for this exception but see salk ld ray a modern er p