case Dashwood against cooper and other in a negative plea videlicet that three  do not such a thing it must be say nec the dawn some error of a judgement in  trespass wherein Cooper and other brotight a action of trespass against  Dashwood for enter into a brewhouse and keep of possession and take away of  fifty shilling the defendant plead that the plaintiff have commit a offence  against the statute of car cap by which it be enact that all offence thereby  prohibit except in modern London shall be hear by two or more of the next  justice of peace and in case of their neglect or refusal by the space of  fourteen day after complaint make then the Subcommissioners of the excise be  to determine the same from who no appeal do lie to the justice of the peace at  their next session which commissioner of excise justice of the peace and  subcommissioners among other thing be enable by the say Act to issue out  warrant under their band c to levy the forfeiture and so justify the entry  under a warrant from the subcommissioners three justice have refuse to hear  and determine this offence to this plea the plaintiff demurrer and have  judgement in the court of king bench and a writ of inquiry of damaores be  execute and seven hundred and fifty pound damage give it be allege that the  defendant can not move to set aside the judgement in that term it be give  because the writ of inquiry be execute the last day of the term and the court  do immediate rise and that he can not move the next term because the judgement  be give the term before the writ of error be bring the attorneygeneral  therefore say that this be a hard case and desire a note modern er p of the  exception to the plea which he will endeavour to maintain which Mr pollexfen  give he and then he desire time to answer they the exception to the plea upon  which the judgement be give be this videlicet the Act give no power to the  subcommissioners to hear and determine the offence and so to issue out warrant  for the forfeiture but where the justice or any two of they refuse and though  it be say by the defendant that three refuse yet it be not say that two do  refuse there be a great difference between the allegation of a thing in the  affirmative and in the restraining for if I affirm that a b c do such a thing  that affirmation go to all of they but negative it will not hold for if I say  a b c do not such a thing there I must add nec the dawn some so if a action be  bring against several man and a nolle attendance be enter as to one and a writ  of inquiry award against the rest which recite that the plaintiff do by bill  implead name those only against who the inquiry be award and leaves out he who  get the nolle attendance this be a variance for it shall have be bring against  they all modern it be true where a judgement be recite it be enough to mention  those only against who it be have but the declaration must be against all so  in a writ of error if one be dead he must be name and so the justice ought all  to be name in this case videlicet that the three next justice do not hear and  determine this offence nec the dawn some hilary term the twentyninth and  thirty of Charles the second in the common plea sir Francis north Knt chief  justice sir Hugh Wyndham Knt sir Robert Atkins Knt sir William Ellis Knt  justice sir William Jones Knt attorney general sir Francis winnington Knt  solicitor general