coke a sir John HEYDONS case Trin James in assault and battery if there be  several defendant who plead several and one make default and a writ of enquiry  be award on the roll but not issue the jury who try the first issue shall  assess damage against all resolve when in trespass against several defendant  they plead not guilty or several plead and the jury find for the plaintiff in  all the juror can assess several damage against the defendant but in trespass  against two if the jury find one guilty at one time and the other at another  time several damage may be tax though if the plaintiff himself confess that  they commit the trespass a   a   b a b salk Br return de brief Br office  officer ill Fitzherbert return de viscount f Acc Jones v bean I show Mod if  one sheriff make his return without his fellow this be as no return at all be  not aid by the statute which aid insufficient return lamb v wiseman hob  Brockhams case Litt Rep in a writ direct to two sheriff habeas instead of to  have be not error Gargrave v Markham cro James and a action on the case lie  against both the sheriff of London for the escape of a prisoner from one of  the two compter though the plaint be levy before one of the sheriff only ride  v Edwin and fleet Carth sc  show and Vid rich v player skin but such action do  not abate by the death of one of the sheriff Benion v Watson and Elwicke cro  Elizabeth it seem that when two person be sheriff and one be challenge the  other may execute the writ but be do it in the name of both king v Warrington  salk SC cart Mod Mod comb g Vid Com dig grant g vin ab Prerog b coke report b  er p several the writ shall abate in trespass against two where one come and  appear c against who the plaintiff declare simul cum who plead and be find  guilty and damage assess by the jury and afterward the other plead and be find  guilty the defendant who last plead shall be charge with the damage tax by the  former jury and in such case may have attaint the discontinuance if any be  remedy by stat h after the writ of enquiry of damage award there be no  continuance take in c b between the plaintiff and defendant if the defendant  plea omit to answer the whole declaration the discontinuance be aid by verdict  in trespass against several where the defendant appear at different time and  several venires be award which be try at the same assize and several jury give  several verdict with different damage the plaintiff illay have election u have  judgement de melioribus financial loss and it shall bind all but fiat nisi  only execution when in trespass the defendant plead several plead all triable  by one and the same jury and both issue be find for the plaintiff the jury can  sever the damage SC semb S C brown nom Heydon v style SC affirmed on error cro  James roll Rep Hugh ab vin ab dam X sir John Heydon knight bring a action of  trespass of battery and wound which win truth be in a cruel and barbarous  manner at Fakenham in Norfolk against Froxmere coket Thomas Cocket and Jeffere  Cobbe Froxmere Cocket appear against who the plaintiff declare with simul cum  etcetera and Froxmere Cocket plead not guilty and thereupon a venire facias  issue c and afterward t Cocket appear against who the plaintiff also declare  with simum cum c who plead also not guilty upon which another venire facias  issue and both these issue come to trial at the assize at Thetford in Norfolk  year James king before the chief justice of the common plea and in truth the  issue against Croxmere be first try and the jury assess two hundred pound  damage and at the same assize the issue against Thomas Cocket be try and de  bene esses damage be assess to fifty pound and the cause which move the jury  to extenuate the damage against the other be that although they be party and  of one quarrel yet Froxmere Cocket be the most malicious and cruel and his  hand give the say barbarous and grievous wound Jeffere Cobbe appear and  confess the action and a writ of enquiry of damage award upon the roll but  none issue and a great question be move and depend for diverse term how and  against who and for what damage judgement shall be enter and at the last upon  coke b consideration have of the precedent and of our book it be resolve per  totan curian as follow when in trespass against diverse defendant they plead  not guilty or several plead and the jury find for the plaintiff in all a the  juror can assess several damage against the defendant because all be one  trespass and make joint by the plaintiff by his writ and declaration and  although one of they be more malicious and de facto do more and great wrong  than the other yet all come to do a unlawful act and of one party the act of  one be the act of all of the same party be present a and b therefore in such  case if the hand of one only give a mortal a jenk cent   a post fol a hob Br  buist cro James cro car roll Rep cro Elizabeth a in Samson v Cranfield and  Upton I buist in trespass for assault and battery against two the court hold  that the jury do well in assess several damage and distinguish the case from a  trespass in cut down and carry away tree and say that the latter be a joint  act but that the battery of one can be the battery of the other but this case  be deny to be law in Darie pl and the law as state by coke have be full  establish Vid hill v goodchild burr and the case cite there brown v Allen and  Oliver Esp N P C b   b Inst Plowd a h Br Coron roll Rep coke report a er p  wound whereupon death ensue it be murder in all who be present and of the same  party although the other do not intend to give a wound so mortal as appear in  Mackallies case in the nine part of my report fol b but c in trespass against  two if the jury find one guilty at one time and the other at another time  there several damage may be tax d but if the plaintiff himself confess that  they commit the trespass several there the writ shall abate and so there be a  difference between find by verdict and confession of the party vide h b in  maintenance h b e also there be a difference betwixt a express confession and  not gainsay h a e b Henry bV mordant h Edward b Edward a Edward a Edward it be  resolve that a in trespass against two where one come and appear c against who  the plaintiff declare simul cum c who plead and be find guilty by the inquest  to damage and afterward the other come and plead and be find guilty the  defendant who plead last shall be charge with the damage tax by the former  inquest for the trespass which the plaintiff have make joint by his writ and  declaration and do at one time can be sever by the jury if the jury find the  trespass to be do by all at one and the same time as the plaintiff have  suppose against which it be object that it may be mischievous to the defendant  who last plead for excessive damage by consent between the plaintiff and the  first defendant may be find with which the second defendant shall be charge  and he shall have no remedy to relieve himself by attaint b inasmuch as he be  a mere stranger to the issue upon the trial whereof the damage be assess but  it be resolve a that in such case he shall have attaint for although he be a  stranger to the issue yet because by the law he be privy in charge he shall  have attaint coke a and therewith agree Edward b adjudge in the point and f n  b e accord and in Edward b in trespass of battery there be a maxim take that  in every case where the inquest be take by the issue of the party by the same  inquest shall the damage be tax for all vide Pasclive Henry rot in common banc  exoneratio a swearer de financial loss assidend in transgression super  veredido his eastern quod prius sitting beside one Juerunt per alian  juratversus elsewhere in Le simul cum but in mich Henry a in a action of  trespass against many who have plead in bar the last term and one of they make  default which be record there it be resolve by the whole court that for save  of a discontinuance a writ of enquiry of damage shall be award but none shall  issue because he shall be contributory c to the damage tax by the inquest on  the issue of the party if they shall find for the plaintiff and if they shall  find against the plaintiff then the writ of enquiry of damage shall issue  forth and the reason that no writ shall issue forth at first to inquire of the  damage until c be because if a writ shall issue and damage be find it be but a  inquest of office and not on the issue of the party and yet the enquiry if it  shall be lawful ought to serve for all the damage for the enquiry of they  shall not be twice and the other who have plead to the inquest if the issue be  find against they will be Chargeable with those damage which be find by  inquest of office and if they be excessive they shall c I brown   a cro car  jenk cent roll Rep d Cr Elizabeth hob Styl Leon Leon post a hob   b h a e Br  confession a Leon h a cro James f n b f Brownl   a h inquest roll Rep b writ  of attaint abolish Geo cap S a   a cro James f n b e h a e b e b h b Br  attaint roll Rep hob cro car   a side Br attaint roll Rep c the plaintiff may  levy the whole damage on one of the defendant and such defendant can recover  any contribution from the other Merryweather v Nixon TR aliter in assumpsit  coke report b er p have no remedy and yet no default in they for they can have  attaint because it be but a inquest of office but in case when in trespass  against two they plead not guilty several and several venire facias be award  the inquest which first pass shall assess damage for all and the second  inquest shall not assess damage but he shall be contributory to the damage  assess by the first notwithstanding he be not party to it and yet if the  damage be excessive he shall have attaint and so no damage or mischief will  accrue to he in such case vide Edward a and there in the say book of Henry a  Winslade the prothonota ry say it have be a common course here that so soon  lantost as one have make default to award a writ of enquiry of damage against  he to which Prisot chief justice answer it be not a good use and accord to the  say in Winslade in Henry a b a writ of enquiry of damage be award in such case  but against law t as before appear and further in arrest of judgement it be  move and allege that there be a discontinuance against a I Cobbe and the  discontinuance coke b be not aid by the statute of Henry nor any other statute  for the judgement be give upon confession and not upon verdict c also Jeffere  Cobbe be not party to the issue or the inquest which assess the damage b vide  mich I and Phil and mark issue join betwixt the demandant and the vouchee be  out of the statute Henry c and yet he be party to the issue but it be resolve  that the say Act extend to the case at bar because Jeffere Cobbe be party to  the original and one of the defendant in the action for the word of the  statute Henry S be if any issue be try by oath of twelve or more indifferent  man for the plaintiff or demandant or for the party of the tenant or defendant  c so that the vouchee be out of these word but Jeffere Cobbe in this case be  one of the defendant and so within the word of the Act and a verdict in this  case be give c to which he be so privy that he may have attaint also d it be  affirm by all the prothonotories and so resolve that after the writ of enquiry  of damage award there be no continuance take after in the common plea betwixt  the plaintiff and the defendant against who the writ of enquiry c be award but  it be say the course be otherwise in the king bench and so it be adjudge  between e tooli plaintiff and Prieston defendant mich and Elizabeth in the  common plea and afterward affirm in a writ of error in the court of king bench  but there be diverse precedent in this court that in such case continuances  have be take which be a sure way et a abundant caution non mocet and afterward  in the case at bar judgement be give for sir John Heydon the plaintiff for the  two hundred pound assess c against all the defendant upon which judgement a  writ of error be bring and all he say point be move and debate again at the  bar and at the bench in the king bench and upon good consideration the  judgement before give be unanimous affirm by the whole court note reader in  mich and Elizabeth in the king bench Richard Gomersal   a h a roll roll h a  roll Rep Br attaint Q cro James   a hob f n b e h a e b e b h b roll Rep Br  default a roll Rep h c c all the statute of Jeofails extend to judgement enter  by confession nil to say or non sum shape in any court of record stat and Ann  c Vid Tidds practice that Edward b and   b   b Benl n bendl bendl in kelw b  bendl in ash pl hob c   a cro James hob h a e b e b h b f n b f e d jenk cent  roll Rep cro Elizabeth Bulst side roll Yelv Nov e b pl dyer pl e Leon cro  Elizabeth roll Rep a raym coke report a er p bring a action of account against  I Gomersal of diverse receipt and parcel to all which except one the defendant  plead to issue and to one parcel plead nothing and the issue be find for the  plaintiff and it be move in arrest of judgement that the plea be discontinue  because he do not answer to parcel as it be agree in e b and h a c and it be  object that that discontinuance be not remedy by the statute of Henry because  no answer be give to one payeel and of parcel the plaintiff can not have  judgement accord to his declaration for of the parcel to which no answer be  make no judgement can be give coke a but it be resolve and so affirm in the  king bench that the statute of h c do extend to it for it be thereby enact  that after verdict find judgement shall be give any discontinuance c  notwithstanding and accord judgement be give of so much as be find by the  verdict vide Herlakendens case in the four part of my report fol a d in the  case at bar forasmuch as in judgement of law the several jury give a verdict  all at one and the same time the plaintiff may have election to have judgement  de melioribus financial loss by any of the inquest and it shall bind all  butfiat nisi only execulio vide mich Elizabeth rot hill Elizabeth rot lib  intrat sect but in the case at bar in truth the great damage be first assess  vide h a by hody e it be resolve that where in trespass the defendant plead  several plead all triable by one and the same jury and both the issue be find  for the plaintiff the jury can sever the damage and if they do the whole  verdict be vicious as appear hill Elizabeth rot in common banc inter Austen  plaintiff and Williard and two other defendant in battery one plead not guilty  and the other plead of his own assault all triable by one inquest and both the  issue find for the plaintiff and several damage give against they male per  totan curian and in this case a record be cite by which it appear that Edward  mile bring trespass which begin in the king bench James king rot against  Richard Prat Thomas Richardson and Nicholas Babbs for break and enter his  close and a house at Nedeham market and for take and carry away a cupboard of  the value of forty shilling with diverse deed evidence and muniment in the say  cupboard contain a copper of the value of forty shilling a lead of the value  of ten pound and forty yard of wainscot of the value of to the damage of the  say Edward of two hundred pound Nicholas Babbs plead not guilty general Thomas  Richardson to all the trespass except the break and enter the close and house  Hardr hob roll Rep cro James lev Lucas post d Vid note a Herlakendens case   a  jenk cent dyer b roll Rep cro James cro car hob Yelv e if joint defendant  suffer judgement by default and the plaintiff execute separate writ of inquiry  against they whereupon several damage be give it be irregular and if final  judgement be enter for these damage such judgement will be erroneous but  before final judgement the court will permit the plaintiff in order to cure  the error to set aside his own proceed upon payment of cost and to issue a new  writ of inquiry Mitchell v Hillbank TR and where in a action against several  the jury have assess several damage the plaintiff may cure it by enter a nolle  attendance against all except one and take judgement against he Rodney v  stride Mod SC Carth comb show and when there be several plead and several  issue and verdict for the plaintiff upon both with several damage the  plaintiff may pray judgement against both for the great damage without a  remittitur of the less John and another v dodsworth in error cro James or he  may enter a remittitur as to the lesser damage Sabin v long I will jenk cent  Brownl   a I buist cro Elizabeth cro James cro car roll Rep before fol b hob  cro James buist hughes Abr coke report b er p plead not guilty Richard Prat to  all the trespass except the break and enter the close and house and take and  carry away the say cupboard and lead plead not guilty as to the break the  close and house Richardson say and as to the break the close and house and  take and carry away coke b the say cupboard and lead Prat say action non and  plead in bar a statute staple of one hundred and fifty pound acknowledge by  mile to Thomas Prat and that the say house and close and the say copper and  lead inter alian be extend by force of the say statute and by liberate deliver  to the say Thomas Prat who die possess and intestate and the administration of  the good and chattel of the say Thomas Prat be commit to the say Richard Prat  wherefore the say Richard Prat in his own right and Richardson as his servant  enter into the say close and house and take the say copper and lead as the  good and chattel of the say Richard Prat by reason of the say administration  mile reply that there be no such record of the say extent and liberate remain  in the chancery Prat and Richardson rejoin that there be such a record of the  extent and liberate remain in chancery all these plead be enter in mich a  James king and day be then give to have the record at Westminster die Mercury  proxime post crastin purification beatoe Marioe sub his danger and also a  venire facias be then award for trial of the say issue retorriable ad prfat  diem at which day Prat and Richardson fail of the record whereupon it be award  that mile shall recover damage and upon that it be then award venire facias  tam ad triand exitus predict how ad inquirend de financial loss returnable die  Mercuriiproxime post ptinden pasch and then it be enter in such manner postea  continual ind process interpartesprd dep7cedict_placito per jurat posit ind  inter to go in resped in person lord ring at Westminster usque they March  proxpost odab consecrated mich lunc neighbor sequen nisijustic domini king ad  assisas in compredicto capiend assign prius die Harlis die Julii at bury saint  edmundi in come predicto per form to cause to stand c Fenerint pro defectJurat  c at which assize all the issue be try for mile and several damage assess as  well for the trespass put in issue triableper native land as for the trespass  try by the record the which verdict afterward at the day in bank per totan  curian be quash because the jury have assess the say damage severally El  because a swearer prdiel male see to bear about in verdicto his reddendo a  venire facias de to make new be award and upon the second trial bad all the  issue be find for the plaintiff and entire damage assess for the whole  trespass and cost of suit in the whole amount to one hundred and fifteen pound  twelve penny and it be move in arrest of judgement that there be not any  continuance a boundary Paschte year James king usque term Trinit then follow  nec ab eoden boundary usque they Marlprarilne post to have consecrated  michaelis tuncpiox ne following coke a and although there be a full  discontinuance in that case and although the issue of nul tiel record be not  within the statute of h which speak of the verdict of twelve or more  indifferent man yet for the reason before rehearse judgement be give for the  plaintiff and afterward a writ of error be bring upon that judgement and the  only error assign be the say discontinuance but for other error not assign as  it be open speak in the argument in the case at bar the judgement give in the  say case of mile be reserve en quo discord law perduce wretched people