atwood vers burr Intr pasch W b r rot a judicial writ must be return before a  alias can be sue out thereon SC Mod send vide post the judgement upon a  demurrer must express in term whether the thing demurrer to be or be not good  SC Mod salk a writ of error to remove the record c of the award of the  execution of a judgement on a to know facias against bail will not remove a  award of execution on a recognizance SC Mod r send for ante send vide g c S  wherever a writ of error be quash the plaintiff be of course entitle to sue  out another and so so often how often error upon a judgement give in the court  of Maidstone in ken in a to know facias against the bail upon their  recognizance there enter into in a cause between atwood and draw several error  be urge by the counsel for the plaintiff in error the great part of which be  overrule by the court but when they see the court incline to affirm the  judgement they quash the writ of error for some variance and then the  plaintiff in error sue out a new writ of error and so he do for several time  together so that he sue eight writ of error and now the counsel for the  plaintiff in error have receive a rebuke from the court for these proceed Lord  Raymond er p insist upon a new error observe in the record first by the chief  justice holt which be that the first to know facias be not return but the  entry be that the sergeant at mace to who the precept in nature of a to know  facias be direct non to cause to go c and then a alias be award c and so  continuances be make and at last the defendant appear at a to know to make  return and after imparlance demurrer to the say to know facias because it be  minus sufficient ad prediction the plaintiff atwood performance svan versus  prediction the defendant habendum manutenendum c et petit quod the plaintiff  ab execution svan versus the dawn praecluda the plaintiff join in demurrer and  say that it be sufficient to have his execution c and pray it and then the  court give judgement quod the plaintiff to have performance and the first  error urge by the counsel be that the first to know facias not be return it  can not be continue and so all the proceed afterward be void for the writ not  be return be total lose against which it be argue by Mr Raymond that there be  a difference between a original issue out of chancery returnable in the king  bench or common plea and writ issue out of Lord Raymond the say court or other  inferior court and returnable there for in the first case if the writ be not  return it be lose and the court in which it be returnable can proceed because  the cause be not depend before they but contra where the writ be returnable in  the same court from whence it issue for there the party have a day by the roll  and may appear upon the day by the roll Henry b and he cite several precedent  in this court to prove that heretofore writ of to know facias be always enter  upon the roll hill Henry b r rot c and he cite roll Rep sir t Middleton v  Twinio to prove that though the first to know facias be enter with a sheriff  non to cause to go breve yet the plaintiff may proceed and sue out another for  there the case be thus judgement be enter against Twinio in a action of debt  in c b upon which error be bring and the plaintiff in error find bail who  enter into recognizance that he shall prosecute the writ of error with effect  sir t Middleton sue a to know facias against the bail to show cause why he  shall not have execution against they and assign a breach in not prosecute the  writ of error with effect because Twinio do not take out a writ of to know  facias ad to hear wandering when it be grant by the court returnable octabis  the number three the bail plead quod teaching to be viscount to warn the  plaintiff in the original action returnable octabis the number three and that  afterward Twinio appear et sheriff non to cause to go breve and the plaintiff  do not come and that afterward Twinio sue a to know facias as alias returnable  at a day certain and there the second to know facias be admit to be well sue  and yet the first writ be not return and there the party may plead to the to  know facias ad to hear wandering as well as in this case videlicet a release c  and therefore he urge that the say case be much to the purpose and gold  justice at the first argument seem to be of the same opinion but afterward in  this term the whole court hold that since the first to know facias be not  return a alias to know facias can not be sue and therefore they incline to  reverse the judgement and they look upon the case in roll report as not  tantamount to the case in question another error upon which Mr Broderick for  the plaintiff in error insist be that the judgement be erroneous because it  have not determine the matter refer to they by the party which be whether the  writ of to know facias be sufficient or not but have without determine that  award execution and for this owe Walter case cro Elizabeth cro James roll Abr  be cite but to this Mr Raymond answer that the court have in effect determine  the matter refer to they by the demurrer of the party for they have adjudge  that the plaintiff ought to have execution which be a determination by  consequence that the writ of to know facias Lord Raymond be good for if it be  not good the plaintiff can not have execution but as to this point holt chief  justice seem to be of opinion that the judgement be erroneous but he give no  positive opinion to this point but for the other error he be ready to reverse  the judgement then Mr Raymond take exception to the writ of error and move to  quash it because the writ of error be to remove record et process act of  assignment performance judgment super prediction teaching de to know facias  and the record remove be of a adjudication of execution super a reviewing and  for this variance the writ of error be quash notwithstanding that there be  several precedent produce to show that the cursitors use Lord Raymond er p to  make writ of error upon judgement in to know facias against bail in that  manner for per curian there be a plain difference between a award of execution  in a to know facias upon a judgement and in a to know facias upon a  recognizance then the defendant burr sue another writ of error upon which a  motion be make in chancery to supersede it because erronice to flow out upon  suggestion that the cursitors will certify that no man can have more than  three writ of error by the course of the court upon which a day be give to the  plaintiff in error to show cause c and the cursitors be order to attend and  upon hear counsel of both side the Lord keeper wright declare that a writ of  error be a writ of right and that he can not hinder the party from string it  and therefore the order be discharge post