case the queen against Tutchim in a information ex duty or other proceed  original commence in the court of king bench the venire distringa and other  process though sue out into a different county from that in which the court  sit must be returnable at a day certain but in indictment or other proceed  commence in other court and remove into the king bench by certiorari the  process must be returnable on a common day SC ante SC holt SC saint Tr SC ld  ray a information be exhibit against Tutchim by the attorneygeneral in easter  term last for contrive compose and publish a certain seditious libel entitle  the observator the defendant plead not guilty in Trinity term and a venire  facias be issue out to the sheriff of London the fact be lie there returnable  die Lunae post tres September mich and the distringa be then award on the roll  in the common form with the nisi prius die Sabb post crast animar but the  distringa through mistake be test the twentyfourth of October videlicet the  day after the return of the venire facias and after verdict for the queen  Montague move in arrest of judgement first that the venire and distringa be  make returnable at a day certain whereas the fact arise in another county it  ought to have be at a common day holt chief justice in case of information or  other proceed original commence in this court the process may be at a day  certain though into another county and so it have be late settle here in a  case wherein we take it into consideration a in the case of Welsh v York it be  agree to be settle by the court that the bail be liable to all action for a  less sum than that mention in the declaration but not to any action for a  great sum keb but the practice upon this point seem now to be settle by the  case of Martin v more the sum swear to be the plaintiff recover and the court  resolve that as on the one hand there be no colour to subject the bail to more  than they be bind let the plaintiff demand be ever so great so on the other  hand there be no reason the plaintiff shall suffer by his moderation in take  bail and therefore that the recognizance shall be consider as air agreement to  pay the sum swear to or deliver up the defendant strange by a rule also make  in easter term Geo where the plaintiff declare for a recovery or great sum  than be express in the process on which he declare the bail shall not be  discharge but shall be liable for so much as be swear to and endorse on the  process or for any lesser sum which the plaintiff in such action shall recover  loft but it have be determine that the bail be liable not only to the sum  swear to but to the cost also Jackson v Hassell dougl this practice however be  confine to the court of king bench for in the court of common plea bail to the  sheriff be liable beyond the sum swear to and cost to satisfy the whole debt  due to the full extent of the penalty of the bailbond Mitchel v Gibbons h Bl  Rep for although the statute Geo c direct that in all case where the cause of  action shall amount to tell pound affidavit shall be make and file of such  cause of action and that the sum specify in such affidavit shall be endorse on  the back of the writ or process and for which sum so endorse the sheriff shall  take bail and for no more it be decide that the statute be directory and that  the bind may be take in double the sum swear to Jennings v Goostree fort mall  v Mitchel pract Reg walker v carter black Rep and in both court a defendant  may be hold to special bail in a action on a judgement for tell pound for  damage and cost although the original debt alone be under ten pound Lewis v  pottle term Rep modern er p and rule it so upon the certificate of all the  clerk but if a indictment be remove up hither by certiorari and afterward be  carry down to trial there the process must not be return at a day certain but  at a common day beside there be great reason it shall be so here for the  information be exhibit on a day certain and the defendant appearance to it be  so too and be plead to it at a day certain and then why shall not the process  be so too the plea be die Lunae crast Trin and that be certain for crast Trin  without more be a common day indeed in the common plea except it be where they  proceed to bill or in assize they must go by common day and even in this court  in assize we may go by a day certain and where one be sue here as present in  court all must be by a day certain and so of proceed by bill in any county of  England and since the attorneygeneral by reason of the universal jurisdiction  of this court may file a bill here for a crime commit in any county of England  he may make the process returnable at a day certain and he have his election  of the one or the other the rest of the court be of the same opinion the  difference be between thing original begin here and bring hither by certiorari  modern second that though the distringa be well award on the roll on the day  of the return of the venire which be the day for both party in court yet the  issue a distringa the day after and test the day after be without warrant as  not be accord to the award of the court for by the statute of nisi prius the  process of nisi prius be to be award in present time a part and it ought to  bear testae on the same day or else it be a discontinuance powys sergeant  answer that this be amendable even at commonlaw be a bare misprision of the  clerk the have a good warrant before he to guide himself by videlicet the  award of the distringa on roll by which a day be give duly to the party a day  of nisi prius and for amendment at commonlaw before Edward c which be the  first statute of amendment the authority of   b be urge by he want of entry of  a continuance amend and so of misentry of essoin by a clerk yearbook Edward c  a a discontinuance amend and that must have be by commonlaw for the statute of  Edward c be only for amendment of a letter or a syllable and the judge be so  scrupulous that they doubt whether they can amend a word by it yearbook Edward  pl b in the reign of Henry the six a writ of habeas corpus be amend yearbook  Henry pl bro Abr amendment c and the book say that such amendment may be  especial ita case of the king Fitzherbert Abr amendment a it be true people of  late have conceit that nothing be amendable in criminal proceed because say  they they be except out of the statute as if nothing be amendable at commonlaw  but in many case at commonlaw the king can amend where the subject can not as  if quare hinder at the king suit be face to face instead of looks like it be  amendable though in a original but beside this be a matter within the express  word of the statute of Henry c S this be all in the same term while the record  be whole in the breast of the court and be relative to matter of the same term  and I know nothing but what be amendable in the same term for in   b it be say  that at commonlaw the judge may amend their judgement as well as any other  part of the record in the same term and we be upon a misprision of a officer  of the court who be to make up his record or issue process accord to the Act  of the court which be right and which he bad before he and that in the very  term in which it be commit we be not endeavour to amend the testae of a  original writ which come out of another court but the testae of a judicial  writ accord to the award of the court and no statute of amendment be against  we in this the word of Henry c be very comprehensive and will take in all  criminal matter whatsoever as well as civil if there have be no exception in  it otherwise the exception have be vain therefore what be not foreprised by  the exception be within the general word of the statute and the exception  express only modern indictment and appeal of treason or felony and outlawry of  the same and the statute of Edward c make no distinction between criminal and  civil cause it may be the statute of Henry c do not modern er p extend to any  plead of the crown because it mention party and party which in decency can be  apply to the king hawk p c ch S b and he rely very much on Harris case cro  James c which be a indictment for a nuisance at the session and not guilty  plead and the clerk of assize who ought to have join issue for the king omit  it and the matter be try and find against the defendant this be move in arrest  of judgement and yet after several year the court order it to be amend in the  case of Parker v Curzon cro James d a information for recusancy be file  against husband and wife for the recusancy of the wife and the entry be et  pillage the baron and feme to come et pillage the feme to say quod self non be  ind worthy of blame et de hoc to put down see super native land and this be  likewise amend after verdict by the docket of the officer it be a manifest  misprision of the clerk and yet this be a clear discontinuance for there be no  plea and this amendment be in another term in sir John ashley case cro car e  in a quo warranto the defendant disclaim special that be the disclaimer in the  paperbook be so and the entry on the roll be of a disclaimer general and a  year afterward this be amend as the court say at commonlaw be only misprision  of the clerk in copy the paperbook before he which be rightNow by whether c S  the statute for the amendment of the law and all the statute of Jeofails be  extend to information in the nature of quo warranto a upon a indictment the  venire facias be direct viscount Cantuar and the return be only by one there  be in truth but one sheriff of Canterbury and this be set right side b by make  a entry on the back that there be but one sheriff and this be say to be a  amendment at commonlaw without the help of any statute and likewise that it  may well be by the statute of Henry c which do not extend to information at  all or if to any not to information at commonlaw as this be so he conclude  that this be amendable at commonlaw be in the king case or if not for that yet  that it may be by reason of misprision of the clerk in the same term or if  neither that it be within the purview of Henry c and not foreprised by the  exception the attorney general ad idem this be a case of great concern for if  none of the statute of amendment or Jeofails extend to case of the crown  certain it import much to know what be amendable in crown case by commonlaw  the preamble of Henry c take notice of the inconvenience of have judgement  stay upon such nice exception and he agree that statute can not be think to  extend to crown cause because of the word demandant and tenant in the statute  but from that he infer that the crown cause do not stand in need of it for it  will sound very harsh for the subject cause to be take care of and that the  king case in matter of equal mischief shall pass unregarded the law give great  privilege and prerogative to suit of the king which the subject have not a  demurrer to modern evidence shall not be in the case of the queen without the  consent of her counsel otherwise in the case of a subject the queen after  demurrer join may waive it and come to issue co d before judgement in the  queen case no discontinuance can vitiate Hardres e nor can discontinuance be  allege before judgement for until then even in the case of a subject it may be  amend at the pleasure of the court but not after judgement in another termCro  James f want of form in the king writ shall be amend otherwise in the case of  a subject yearbook Henry pl Fitzherbert Abr amendment pl g a original at  commonlaw be amendable in the king case but not in the case of a subject   h  and this be further manifest by every day experience for the queen shall amend  her information before issue join and this she may do even in information for  perjury which be a most infamous crime and this by common right of the crown  at commonlawSee king v Wilkes burr and king v holland term Rep I and more than  a subject can do in his action such amendment as we press for be always allow  where it can not turn to the prejudice of the modern er p party but be agree  that a amendment which will alter the defence of the party or any way turn to  his prejudice ought not to be but say that this be no such for the party bad a  right day on the roll and appear and take his trial at that dayyearbook Henry  pl a a capias be amendable in the king case because it be no prejudice to the  party but a exigent be not because he will be thereby prejudice videlicet  outlaw but this case stand clear of all exception of prejudice then as to the  exception itself though it may seem by the award on the roll that the writ  ought to bear testae the same day yet there appear no reason to make it  absolute necessary that it shall be so and there be no authority that the law  require it and by the reason of the thing it seem it may be otherwise for the  venire facias be returnable all the twentythird and may be return at any time  on that day and the court may sit all that day and peradventure the clerk have  not time enough after the award to make out a writ until the next day and if  so they ought to testae it accord to the truth the next day it be true there  be reason that it shall be make out and test in a reasonable time after that  the jury may have time to appear and the party timely notice to prepare for  his trial but not that it shall be absolute necessary it shall be test on the  return of the venire facias Fitzherbert n b brook Abr discontinuance b upon a  writ of error bring if the plaintiff do not assign error and sue out a to know  facias against the defendant ad to hear wandering of the same term of which  the record be all be discontinue but it be not say that he must do it at the  return of the writ yearbook Edward pl c all that be necessary at the return of  the writ be that the same day be give to the jury and party but not that the  process against the jury be test on that day vide brook Abr discon de process  pl d a habeas corpus a swearer shall have the same day that the party have  that be it shall be continue to that day but the testae need not be on that  day the jury and party be continue over to a day certain by the award on the  roll modern and I do not know any case that make it necessary that the testae  shall be on the same day with the return of the first writ but that in Yelv  and in cro James and that be in a appeal which be upon another reason for in a  appeal if there be any mean time between the return of one process and the  testae of another as in that case there be seven day all the process be  discontinue but that be upon a special reason that of be in appeal where the  proceed have always be very strict and by the commonlaw all appeal be to be  carry by fresh pursuit and so it be until the statute of Gloucester which give  they a year and a day within which it must be bring and in a appeal he can  imparl and if he do it be a discontinuance and this be the only authority I  can find except in cro Elizabeth where it be take notice of that the process  bear testae on the day after the return of the venire facias and the exception  be take to other matter on the record yet this be not mention as a fault or  amend beside the course of the crown office have go sometime this way and  sometime another way and due weight will be lie upon the course of a court  however if it be amiss it ought to be set right and that by the course of the  commonlaw without the help of any statute for it be the misprision of the  clerk of the court which in strictness be the Act of the court in the same  term and by consequence within the power of the court and beside the crown  without doubt have the benefit of the statute of amendment in many case and  great authority be so the statute Edward c have no exclusive word in it and I  see no reason why it shall not extend to crown cause for there be nothing in  the statute that may lead to such a construction the statute of Henry c I  agree do not extend to it for the reason before mention but that of car c be  very general and extensive without any thing in it to exclude crown cause and  the general word of the statute of Edward c for entry of plead in Latin and  plead in English extend to plead of the crown therefore a acquire and my Lord  hale for who opinion all professor of the law have a great veneration be of  opinion in my Lord Fitzherbert Waller case of a quo warranto that where the  writ issue to sheriff there be but one that mistake be amendable by the  statute of car c it be true it go off modern er p upon another point videlicet  that it appear the jury have throw dice for their verdict but upon several  motion hale abide by his opinion that it be amendable the case of king v read  side a and blackmore case   b throughout be that in all case where the word of  the statute be not between party and party the general word will reach to  crown cause if they be not except and this be not except by the statute of  Henry c the word whereof be as comprehensive and express as can be for we that  statute indeed do not extend to all plead of the crown as to appeal indictment  of treason or felony and process thereupon because they be except by express  word but to all other it do modern in dyer a information be amend in a strong  case than this it be in a information who tam for usury and the party bring in  by subpoena and appear by attorney and plead not guilty and this take for a  exception and yet after debate judgement be give for the plaintiff near stat  de Jeof as the book say much of the common course of this court seem to be  upon this ground and reason that plead of the crown be amendable either by  commonlaw or by the statute as the practice of amend record remove by  certiorari by the roll below but in this case take it for grant that the  distringa ought to bear taste on the return of the venire facias what do we  desire to amend only a letter or a syllable or rather a tittle for the date be  in Latin figure xxiiii and to strike out the last stroke be what we desire a  thing within the express word of Edward c in the case of a subject and the  statute make no difference between that and case of the crown great amendment  than this have be at the commonlaw and Lord coke say that of late day without  doubt there be amendment at commonlaw we put it upon the other side to show  that there be any diversity between crown cause and those of subject except it  be that crown cause be amend where subject cause can not be and if they do not  show any such authority then all the authority for amendment in civil cause be  a strong in criminal cause Lord coke say that at commonlaw a variance in any  part of the record from the original be amendable so the judge may amend their  own judgement as also any part of the record in the same term but a misprision  of the clerk in process be not amendable in another term so it be his opinion  that it can be do at any time in the same term but he may go a little further  and say it may be at any time before judgement for all the old book be so now  the reason of that rule extend to all criminal cause as well as civil if a  fine be set in court on the first day of term it may by commonlaw be mitigate  or discharge at any time during the term in Trinity term in the seven year of  William the three in the case of the king v Walcott a writ of error be bring  to reverse a attainder of treason and a necessary part of the judgement be  omit the reversal be actual pronounce and enter on the roll but the court find  that there be precedent and form of entry to the contrary they order the  judgement to be strike out again the same term and to be put in the paper to  be argue and the process of the court as well as their judgement be in the  breast of the court all the same term a second instance of this practice be  that all misprision of the clerk of assize or justice of peace in certify the  indictment in the caption may be amend the same term it come in if a  indictment be vicious in the caption the court by commonlaw may amend it the  same term it come in side the king v glover the coroner be order to attend and  to amend a inquisition return hither cro car a indictment upon the statute of  Henry c of forcible entry lie the inquisition to have be take modern at S in  person a et b justiciar peace in birth pillage and there be three division in  the county and three several commission for they exception be take that it do  not appear for which of they a and b be justice and this be hold a fatal  exception but it have be rule Stafford case Jones a that if the certificate of  the clerk of assize be faulty by his misprision they will amend it by the roll  below in Samson case roll Abr b error be bring to reverse a indictment of  murder the certificate of the clerk of assize be wrong for want of a  continuance and one of the judge will have it amend at commonlaw for the great  mischief that will otherwise ensue but Jones justice be against it except the  king do special desire it modern er p and per holt chief justice that must be  by special mandate but there two judge be against Jones justice for its be  amend a amendment be make of a indictment accord to a precedent in Edward the  four be time Edward pl palm a before the statute of amendment civil and  criminal matter be amend he quote the yearbook of Edward the three Edward pl b  b where a entry of essoin be amend yearbook Edward pl c a entry of voucher to  warranty have be amend lev d the record of a judgement be in the breast of the  court all the same term see Bac Abr e and all process until judgmentyearbook  Edward pl Abridg by brook amendment f default of process be amendable at any  time before judgement yearbook Henry pl g after issue join there be a  distringa and no award of tale on the roll and there be a tale on the back of  the writ it be amend Fitzherbert Abr amendment brook Abr discontinuance  Fitzherbert Abr amendment the yearbook Edward pl brook Abr amendment h the  record be that such a one gentleman and in the nisi prius roll gentleman be  omit and it be amend and all by the commonlaw in the case of bind v Devys cro  car king on the venire facias S Sutton be return and the distringa be so but  the penal return be d Sutton and that variance be move in arrest of judgement  but upon examination it be find to be only a misprision of the sheriff clerk  and therefore amendable by commonlaw without the aid of the statute of Henry c  in trespassFitz Abr amendment bro Abr amendment l to the damage of one hundred  pound the record of nisi prius be one hundred shilling and there be a verdict  for a hundred pound and this mistake be amend as a misprision of the clerk and  there the judge of nisi prius bad no more warrant to try that issue than be in  our case in brook bro Abr amendment m and FitzherbertFitz Abr amendment n be  amendment all at commonlaw thing of the same nature with this be amend at  commonlaw yearbook Richard pl bro Abr amendment oh and the statute make no  alteration against we but where it be express so bro Abr amendment p there be  not in the yearbooks many instance of criminal proceed and that be a great  argument that these nicety have not creep into the law in criminal matter for  if they have something of they will be find then if there be amendment at  commonlaw why shall there not be some in information there be multitude of  amendment of this nature in civil case the case of Tufton v Ashley cro car Q  be of a amendment at commonlaw even in another term which can be as be there  hold and sure it be in the power of the court to do right to the queen as well  as to the subject and be quote my modern Lord macclesfield case ld raym a a  rule be make to reverse a attainder of high treason about sixteen year before  upon writ of error and no entry thereof or any record make up no continuance  or assignment of error and yet to reverse this attainder leave be give to make  up the record now see Lord mohun case ante b and if this help be give to a  subject why shall not the like be in the queen case see Wilkes case burr c and  there it be say to be a default in the officer of the court and that be in  some respect the default of the court therefore he be order to do that now  which then he ought to have do so here it be to make your officer do what he  ought to have do before the case of the queen v the warden of the fleet Mod d  be much strong than this for there a venire facias upon issue join in chancery  be return hither the four of February and the record itself do not come in  until the seven and the officer mark it to have come in on the very day on  which it come in truth and the court order the matter of fact to be examine in  order that if it shall appear that the record have come in on the four it  shall be set right but it appear not to have come in until the seven they can  not amend it be a discontinuance but upon writ of error modern er p before the  lord that judgement be reverse for this reason for that the clerk may have  enter it as of the four though in truth it come in after but holt chief  justice say that matter be not set right in the king bench to this day for  they look upon it to be against their duty as judge to enter a record against  truth last the attorneygeneral say that the make a writ different from the  roll be only the misprision of the clerk see cro Elizabeth roll Abr that  testae out of term or on a Sunday be the fault of the clerk e Brotherick  contra first take a difference between the suit of the king in a civil  prosecution of his right and a prosecution against a subject for a crime in  the first case he have great favour than the subject in the other the strict  nicety be to be keep to upon this difference he distinguish the case of quo  warranto from the present case as likewise that of the warden of the fleet for  they be to be look on as prosecution for the king civil right he agree that  there be some amendment at the commonlaw but say that if there be amendment in  all the instance put by they there will be little use of the statute of  Jeofails or of amendment he deny that any criminal proceed be amendable by the  statute of Henry c or the car c and no authority of any such amendment be  quote except in dyer dyer f and roll roll Rep g take notice of the case in  dyer and say it be hold not amendable in the twentysecond year of queen  Elizabeth and coke in the middle of blackmore case say that the statute do not  extend to criminal proceed cro car say that the statute of Jeofails do not  extend to plead of the crown a wrong venue be fatal in a quo warranto style in  a suit modern upon the statute of inmate a distringa bear testae out of term  and it be not amend and a venire facias de to make new be award see also keb  the opinion of hale so much rely on of the other side in vent a information  for forgery at commonlaw be deny to be amend in Hardres a information be bring  upon the statute of navigation for import certain spice of the growth of Asia  Africa or America from holland beyond the sea and a exception be take that it  be not say that holland be not in Asia Africa or America and hold fatal though  after verdict he agree that record which come hither by certiorari if variant  from the roll below shall be amend by it the case of the writ direct to two  sheriff when there be but one be amend by have a endorsement make on the back  of the writ that there be but one sheriff in fact and it be a amendment by the  commonlaw accord to a precedent in Henry where a writ be direct crowner keb a  but it be say that there be no necessity it shall be test on the day of the  return of venire facias but that be express against the case in Yelverton  before put this be not like the case of Walcott for that be a alteration of  the judgement of the court which be not complete until the last day of term  nor be it like my Lord macclesfield case ld ray c for doubtless the court may  supply lose record or put thing in the state they have be in before or make  their officer do that which lie ought to have do but this be to alter what he  have do a venire facias returnable at a day different from the award of the  court and trial thereupon be not amendable by Popham chief justice in the case  of Roger v bird cro Elizabeth d a information be bring on a penal statute and  the venire facias on the roll award be in person we ubicunq and that venire  facias make out be in person we without more and judgement stay thereupon roll  Abr Yelv e holt chief justice the case of the warden of the fleet be a civil  action and no criminal prosecution but mere a civil course to entitle the king  to a office forfeit to he Montague have bad time give he to answer argue it  solemnly this point as it be of concern to the crown so it be of high  importance to the subject for it be to make a precedent that will be lead in  the like case again action who tam which in some respect be between subject  and subject have be always modern er p except out of the statute of Jeofails  therefore a strong action of high nature be so the testae of this writ be not  amendable at commonlaw though I agree many amendment be at commonlaw No  authority have be quote that error in the testae of a writ be amendable at  commonlaw Lord coke   c a a say that judge may amend their own judgement in  the same term or any other part of the record but it do not from thence follow  neither do be say that they may amend fault in writ issue modern out of their  record to air officer in pais or return make by he and the reason why they may  amend their own judgement and continuances which be the only instance give  there be because they be their own proper act which as it be there say by my  Lord coke remain in their breast in the same term but the act of another in  pursuance of their award can be say to be their act and a writ make out to all  officer can be say to be in the breast of the court if the entry of the clerk  of the award of the court have be different there may be some colour to amend  the roll but this be not so you will take notice that the writ ought to be  accord to your award and that it be not so be the fault of the officer not of  the court all their authority out of the yearbooks be between party and party  and not like this nor within the statute the word of Edward c be very large  and yet there be not one authority of amendment of crown cause by that statute  and coke   b b hold that the statute do not extend to plead of the crown and  this he say general without say that it be because they be except as he say  upon the statute of Henry c in that case and this statute of Edward c have no  exception and yet by the opinion of that book the word of it do not comprehend  plead of the crown and what call be the reason that the general word of this  statute do not extend to plead of the crown as it have be acquiesce in ever  since but the great indulgence that be give to the subject in criminal matter  it may be object that the crown be not be relieve by the statute be a sign  that it do not want it in the case of Beecher v Shirley cro James see also  Hardres c it be hold that there call be no discontinuance in crown cause until  judgement but those case extend only to what we agree that the act of the  court be in their breast before judgement and so be lev and coke note that the  statute do not extend to plead of the crown will be impertinent if that be so  that they do not need it as to the statute of Henry c which have a exception  of appeal of indictment of treason and felony and outlawry on the same from  whence it be strong urge that it extend to our case because it be not except I  answer first that the word of it be not more comprehensive than those of  Edward c that of Henry c be all misprision of clerk in writ the other be all  misprision in process so they be coextensive and the exception we say be only  ex abundant caution of some scrupulous lawmaker or but mention for instance to  show they mean not it shall extend to plead of the crown many estatestail be  not mention in the particular instance by the statute de gift and so be many  office not within the enumeration of particular in the statute of Edward c  against sell of office so since the proceed of all the time ever since the  make of these have go against the notion of amend of crown cause it will be  hard to begin now modern and this variance of the roll from the testae can be  think the slip of the clerk indeed if the day certain on which the writ ought  to bear testae be enter on the roll their it may be a misprision of the clerk  not to imitate what be set before he but that be not so it be the nescience of  the clerk that he do not know but it will do well to have it test at any  subsequent time and fault through nescience of the clerk be not amendable  amendment here will quite alter the writ and make it quite another writ as  much as the twentyfourth differ from the twentythird and that such amendment  will be like the alteration make by justice Ingram whereof mention be make in  Ro a for which he be fine eight hundred mark but per curian that alteration be  make extrajudicial and clandestine and that make the crime of it and be rely  on gauge case in   entry and in more and child v Harvey modern er p mich will  where on a to know facias upon a record out of chancery issue be join and a  nisi prius be on the very day of the return of the writ but per curian that  can not be set right because the trial be actual have before the return of the  writ and he quote the opinion of Noy in cro car that none of the statute  extend to the king case Parker on the same side as to record remove hither by  certiorari the same term they come in to have they amend the truth be so for  when a record be remove hither by certiorari by intendment of law the very  record be bring hither but if it appear to the court not to be right enter  they will do it because all the term it be in their breast but it be not like  writ issue out and come in the same term for there it be otherwise for as to  record come by certiorari the term be but one day and the court be not  absolute possess of it until that day be out but as to writ the term have  several return and day in it here the fact be that the writ be real make out  at a day after the twentythird and test accord to the truth on that day and to  make it test against this will be to go against the truth and we say that the  writ ought in law to appear to have be make out in present time a part and the  command of the court be not by the entry on the roll but by the writ if indeed  it have be make out at a day after and test of the return of the venue it will  have be intend to have be well and make out at the time it bear testae and he  say the difference in crown cause be between a suit for the king civil right  which be favour and criminal prosecution which be to draw tight law he take  another diversity in point of amendment of writ on which nothing be do and  writ execute as if on a capias nothing be do but non be invention return that  may be amend when if the party be take upon it it will be otherwise and for  this diversity he rely on the opinion of Popham in the case of Roger v bird  cro Elizabeth a a venire facias be right award and make out through mistake  wrong and per Popham if a trial have be upon it it shall modern not be amend  vide Henry Br be pl if a juror be return upon a habeas corpus it be not  amendable and there be another diversity where the thing be real do well as if  the venire facias be of one person and he be real swear but by another name  this be amendable vide Henry side palm Ro ab powys sergeant by way of  replication as to diversity between the king civil right and criminal  prosecution they quote no case where it be take and if the king have that  great favour in the prosecution of his civil right for that it concern the  revenue of the crown in which the public have a interest a strong it ought to  be in prosecution for crime which be for the administration of justice and in  which the subject videlicet the public have the high concerti that they shall  not go unpunished especial where the offender lose no legal advantage nor  receive any real prejudice by it it be admit that all act of the court even  the high and most transcendent be amendable in the same term a strong then  shall the slip of a clerk in pursue the warrant of the court be so too that  likewise be a matter no way prejudicial to the offender if a writ original  when a fault be discover therein shall be send into chancery to have this  mistake of a clerk there amend by that court why shall not this court in like  manner amend the mistake of their clerk in a writ issue out here great  endeavour have be use to exclude this case out of the benefit of the two act  of parliament for that the general notion have be that those statute do not  extend to criminal cause or proceed but sure the opinion of my Lord Vaughan in  his case of collateral warranty be very reasonable that ancient interpretation  ought to be follow but that on the other hand a thousand resolution against  the express word of a Act of parliament ought not to prevail and the word of  the statute of Henry c be very expressive and general all c and the exception  very particular the attorney general sure the diversity between civil and  criminal prosecution of the crown as to the point of legal favour be very  groundless for we all know that by the commonlaw a criminal be not to have a  copy of his indictment or modern er p counsel to plead for he which be now  remedy in case of treason see will c and Ann c S b and before and even now in  all case of felony the defendant have no other opportunity of defend himself  but mere upon the fact guilty or not guilty it be odd to say that if the roll  on the award have be wrong it may be amend as the act of the court and that  the slip of the clerk in pursuance of the award of the court which be right  shall not be amend that be that when there be nothing to amend modern by it  shall be amend and not when there be a good foundation to amend by it be not  true to say that there be no more reason to bring plead of the crown within  the statute of Henry c than within that of Edward c for that Edward c have the  word party in it which may have be the reason why it have not be construe to  extend to crown cause but there be no such word in the statute of Henry c and  coke seem strong of this opinion in blackmore case   a for he say general that  Edward c do not extend to crown cause but when be talk of that of Henry c he  say that statute extend not to crown cause why because they be except but it  be object that we contend against the current opinion in all age and we agree  it be general take so though no direct authority be in the case and there be  not many authority express even upon the statute of Jeofails and such general  receive opinion upon a matter never solemnly adjudge be of no great weight for  it be a common opinion ever since the make of the statute Henry c concern  action by assignee of a reversion that it do not extend to a assignee of a  copyholder and though there be a case in Yelverton Appleton v doyley Yelv  brazier v beal Yelv SC cro James b agreeable to that opinion yet about twelve  year ago when it come through to be consider it be hold Mod bull n p term Rep  c that that statute do extend to copyhold some opinion sudden and pass sub  silence ought not to be of any great consideration I do agree that this be a  case of great consequence but what be the consequence whether a offender shall  go unpunished and sure criminal be not the favourite of the law there be  indeed favour where life be in question but none in case of inferior offence  and it be more for the honour of justice and law that criminal shall be punish  than escape upon such nicety but however all this must stand upon the law and  everybody be to have justice as to cro where it be obiter say that the statute  of Jeofails shall not extend to the crown except it be express name that be  direct against a know and true rule in law upon construction that general word  of a Act of parliament for furtherance of justice or suppress of wrong shall  bind the king and in the case in style which be a suit upon the statute of  inmate and a distringa test on Sunday and the question whether it be amendable  by Elizabeth c or James c and hold not but no mention be make of Henry c and  Yel be a information upon a penal statute and the rule be of a sudden let  judgement stay but that be not to be understand as a final determination and  beside that be except by the subsequent statute and to say that this be no  misprision but forgetfulness which be nescience because all men knowledge be  reminiscent therefore all men ignorance be oblivion we say that all defect  through want of due care or diligence be a misprision and so be   b if a clerk  embezzle the record voluntary or suffer it to be deface by accident or through  want of care it be a misprision and the amendment in siderfin by suggestion on  the roll of a fact otherwise out of their modern notice be much more than we  desire here and a quo warranto be not a civil prosecution for ouster of the  franchise for suppose the defendant disclaim in the franchise yet he must  further answer the usurpation and if it be find against he be shall be fine  holt chief justice the case of king v Sherrington Talbot cro car a do not come  up to this case that be a amendment for the subject and in a civil case and  sure if in a quo warranto a subject make a limit disclaimer and the clerk  enter it a general one this ought to be amend and on the other side if a  original indictment be right and the clerk enter it wrong on the plearoll it  shall be amend cro car b and Harris case cro James c be a very shrew case in  capital matter there never be a complete modern er p issue join but de hoc to  put down see super native land but in other criminal case it be otherwise see  king v Dowlin term Rep d and the case of sir John Curzon cro James e be a  strong case too indeed this be a case of great consequence and it have be the  general receive opinion that the statute of Jeofails or amendment do not  extend to plead of the crown and great regard be to be bad to that and it be  true at the judgement of the case in style no mention be make of the statute  of Henry c and that be rather a argument that it be clear conceive it will not  help they than that it be not think of for there be very learned man then at  the bar and the reason of the late judgement in the case of a action bring by  the assignee of a copyholder be find upon the rule take in   that the general  word of a Act of parliament shall extend to a copyhold estate where it be for  the benefit of the tenant and not to the prejudice of the lord the court have  take time to consider until the last day of this term and the attorneygeneral  now press for their resolution they argue seriatim thus after declare that the  can wish for long time not that they be unsettle in their opinion but to  digest and methodize their reason to great satisfaction gold justice I hold it  amendable at the commonlaw for otherwise what mean all the amendment in  indictment and information quote by Mr attorney for the purpose that of Bulst  and the case there quote by one of the judge two be indict for felony and find  guilty the judge who try they find the indictment be in the singular number  and therefore stay the judgement and afterward upon consideration by the  opinion of the ten judge it be amend and the man bang and I say that must have  be by the commonlaw vide Raymond and I take it that fault which do not alter  the issue or trial may be amend and be rely you sir John curzon caseParker v  Curzon cro James a and Godfrey case side b and the case of Sherrington Talbot  cro car c and indeed if it be not for the case of Bradley v BanksYelv Bulst d  I shall think it well enough and a good continuance for the twentythird all  day the defendant may be in court and the very first minute of the  twentyfourth here be process issue out and the case of Bradley v bank as it be  in cro James cro James e do not at all contradict this opinion modern powys  justice accord first this be a information perfect at commonlaw and not upon  any penal statute it have obtain that the statute of Jeofails extend not to  any crown case because they have a exception of all indictment and information  upon penal statute and it be a common notion that no crown matter shall be  amend by any statute of amendment but it seem very odd to make such a  interpretation upon the statute of Henry c for the purview of that statute be  as express and general as can be and the exception but particular therefore to  extend it to thing of a inferior nature be very wonderful to I in the Lord  bridgewater case my Lord hale think the statute of Henry c be not to be so  restrain but that the exception be a excellent key to open the meaning of it  that be to amend whatever come within the generality of the purview and be not  except by it and he be of opinion that crown cause do want and in many case  ought to have the help of the statute of amendment and Jeofails but the rest  incline against he and my Lord coke say that Henry c extend not to information  in crown cause because they be except and we find upon a perusal of the  statute that they be not except make the reason run quite another way and I  believe such opinion as be against I have be conceive upon the credit of that  say of coke without any further examination and though the king be not name  within the purview yet his be name within the exception show the lawmaker  understand that without the exception it will extend even to all crown cause  however in regard to the opinion against I upon the statute I do not go upon  the statute but bold it amendable at commonlaw and much I think may be say  upon the reason of the thing that it be very well as it be the return be on  the twentythird and so be the award and the writ issue on the twentyfourth so  that there be no interval of time or chasm between the one and modern er p the  other but the minute the one leaves it the other take it up the word of the  award be teaching be quod to draw asunder and that regard futurity and can be  on the twentythird because that will be to distrain they before any default in  they for they have all the twentythird to appear and the next day without  interruption continue the process as to the case S rather to favour it for  there interruption continue the process of Bradley v bank as it be in cro  James t do not contradict this opinion but see a capias and the return of the  notice be only take of the gap between the testae of original in a appeal  which be seven or eight day and though Yelverton say further that the exigent  bear testae the day after the return of the capias which be ill yet croak take  notice only of the great distance of time between the return of the original  and the testae of the capias seem as if he have conceive that the court have  ground their opinion upon that and that this be amendable at commonlaw and  sure there be much bold amendment even in capital matter we be to consider  that this be but the misprision of the clerk in process and that in a offence  of a inferior nature and if there have be great amendment in capital I think  this may be well amend for instance of commonlaw amendment see side keb a  modern in a information for perjury the venire facias be I S without addition  and by consequence must be I S senior and the distringa be I S junior quite  another person and it be amend for that this be the misprision of the clerk  roll Abr cro Elizabeth c so this be a information at commonlaw and there be  amendment at commonlaw and this be a misprision of the clerk the award of the  court be right I hold that it ought to be amend Powell justice contra this be  a case of great consequence the first question be whether this be a fault at  all the second if it be whether it be amendable at commonlaw or by the two  statute of amendment of Edward c or Henry c for the other statute be of  jeofails and not of amendment this be a discontinuance at commonlaw for all  process must be continue from the very time of the award of the court and the  authority of the case of Bradley v bank and the reason of it be so the reason  be because it be a discontinuance and not because it be a appeal in which  there must be fresh pursuit as the judge say but it must be because it be a  discontinuance in all case at commonlaw a strong it will be so in a appeal in  which fresh pursuit be require and the say of the judge be so to be understand  it be true the roll be right continue but the process to the jury be  discontinue in the reign of Edward the fourthyearbook Edward pl d the  defendant at the day be essoined to quinden pasch there must be a idem die to  the other but that can not be give to the jury but they must be continue by  habeas corpora and on the very return of the venire facias and this case be  not right in brook it be true since the statute of Jeofails these thing have  not be keep up to but at commonlaw there must be a chain of process against  the jury as well as in case of other continuances and to say that the twenty  four be a continuance of the twenty three be what I can for my life comprehend  no more than that the twentysixth can be of the twentythird then if it can be  amend by Henry c the word whereof be very general and the exception of few  particular of the high nature and upon full consideration I think it can for I  can imagine that all the judge and sage of the law ever since will rather in  case of this kind rely upon the commonlaw than upon this statute except they  have take it clear that the statute do not reach to it and the reason of that  seem to be from the statute of Edward c the word whereof be general but  mention the word party which be a good reason to exclude the king and of that  opinion be coke in blackmore case videlicet that the statute extend not to  plead of the crown it be true the statute of Edward c extend only to process  out of the roll that be writ that issue out of the record and not to proceed  in the roll itself and for that Henry c be make to enlarge the remedy of  Edward c to process in the plea roll c which statute in my opinion be make in  enlargement of Edward c but not as to the party that shall receive the remedy  but to what matter more that remedy modern shall extend and the word challenge  of party in the statute Edward modern er p c shall explain the statute Henry c  and it be no new thing for one law to be construe in pursuance and imitation  of a former law and thus I hold the exception in Henry c be ex abundant  caution and that without no plea of the crown have be within that statute and  that reason which reach the statute of Jeofails will have I own nothing to do  with this matter the first of they be that of Henry c the word be between  party and party and soon after they will not extend it to proceed between  demandant and vouchee because the vouchee be not a original party the  exception of the subsequent statute do not extend to information at commonlaw  and my Lord hale in my Lord bridgewater case hold that such information be  within the purview but I never know any principal judgement of that kind and I  rather think that the first statute of Jeofails extend only to party and party  shall interpret all the rest to be so too and so it be upon the statute relate  to lease by bishop and ecclesiastical person for they be a chain of law relate  to the same matter this be a fault in the testae of a writ the testae of a  original be so material that it be not amendable and that be cage case and  late in a case in the house of lord between the lord Pembroke and jersey the  same be hold by all the judge but this be the testae of a judicial writ it ha  be doubt in cro Elizabeth whether the testae of a venire facias or distringa  be amendable and a difference take by the court between a testae and return of  those writ for there be no day name in the award of the court for the testae  and there be always a day certain for the return the variance of the testae be  hold the nescience of the clerk and therefore not amendable but  notwithstanding since they have amend the testae as out of term after the  return or on Sunday but this writ here be good in itself though not to this  purpose and yet I think if it be in a civil cause it shall be amend by the  award on the roll especial the clerk have declare to we upon examination that  it be the writ he intend in pursuance of the roll and there be authority to  amend the writ even when it be a good writ but not to the purpose to adapt it  to the matter Yelv so though this be not in itself a naughty writ yet if upon  examination of the clerk it appear through mistake in he not to be ad idem we  will amend it by Henry c in a civil matter but whether this be amendable at  commonlaw there be amendment at commonlaw if it be call a amendment that the  court can alter their judgement in the same term though the record of it be  make up but there though it be enter on the roll et the roll in the same term  be not the record but it remain in the breast of the judge but in another term  the plearoll be the record and my Lord coke say that the mistake of the clerk  in process shall not be amend in another term but I think that must be  understand of process in the roll and not of process issue out of the roll as  the case of Henry the award be with a distringa and a eight tale and the entry  of a distringa general and modern all this be in the same term the court say  this be a mistake of the clerk for we remember that we have award a distringa  with a eight tale and order a amendment but the make out a process out of the  roll be otherwise for it never be otherwise in the breast of the court than  that they award it and the clerk wrong pursue there the award in make out a  writ with a ill testae though in the same term be not amendable nor do I find  any case at commonlaw where the amendment be of mistake of the clerk in issue  of process but their mistake in enter the act of the court or of the court in  enter continuances may be amend the same term or at any time after and so be  the case of chamber v more now in levinz lev a and as to amendment of criminal  matter at commonlaw I can agree with many of they as Harris case cro James b  for one so of the case in palmer palmer c plombs case where they supply ad  come meum in a outlawry for we every day reverse outlawry for that fault and  the case cite by Yelverton in Bulstrode Bulst d be so short put that it do not  appear in what the singular number be put for the plural but if it be in a  material part of the indictment it be hard to amend it and as to the case of  sir John Curson cro James e it may be well for the issue there be well enter  in a docket but ill on the plearoll and no more than a mistake of enter the  plearoll accord to the docket which warrant modern er p a right issue and as  to the case of the king v reed as it be in Keble the court be of different  opinion about it a venire facias be against twentyfour whereof I S be one and  a distringa of I S junior and the cause try by twelve of which I S be not one  and Kelynge say it be amendable another will have it only a explication of the  venire and another hold it amendable by the statute of Jeofails because not  within the exception but I do not find any judgement that it be amend but at  last it be look upon to be no discontinuance and he agree that whatever be  amendable in civil case at commonlaw will be so in criminal matter but that  this will not be amend in civil case at commonlaw and therefore not here holt  chief justice accordant it be not amendable this be a omission in a point  material videlicet in the testae which by law shall have be the twentythird  and not the twentyfourth for the twentythird be the day which the defendant  have in court upon the venire facias and therefore the writ give further day  shall have issue on that day it be object that there be no interval between  the twentyfourth and the twentythird I answer that if one be to appear on the  twentythird and appear and receive no direction on that day from the court  when he shall come again upon the expiration of the twentythird he be out of  court shall you then give he a day behind his back here indeed he have a day  on the roll but the writ against the jury issue at a day after when the party  and they be out of court so it be a writ award behind the party back and  without warrant of the court for the warrant of the court be die Lunae post  tres mich modern and then a precept be award to the sheriff to distrain and  this precept issue on the next day and be this warrant by the roll No sure  therefore be another writ than what the court have award it be no authority to  distrain the jury and then they bad none to try the cause for here be a  material variance between the writ award and that by which the jury be  distrain the one be the twentythird the other on the twentyfourth and the day  of the writ be always the day of its testae in judgement of law and he quote  the case of Owen v BailyComb b in the seventeenth year of Charles the second  one recover damage in trover the defendant afterward sell his good good fide  the plaintiff take out a become facias test on the first day of Trinity term  which be before the sale but take out after and it be hold that the good in  the hand of vendee be bind by it by this amendment we shall make this quite  another writ for a writ issue on the twentyfourth can be the writ award on the  twentythird suppose this be now immediate after the statute of Henry c and  before any statute of jeofail why shall this be amend it be a good writ in  itself and the meaning of that statute be to amend bad writ and not to alter a  good writ so as to adapt it to a particular purpose now to make this a good  trial you will have we alter this writ that be very good in itself and even  contrary to truth make it a writ of the twentythird of October so to alter the  very nature and substance of it now this be a discontinuance of process in a  civil case be help by the statute of Henry c and since it be not material  whether it be amend or not because the fault be cure by that statute there be  no such amendment as this between the time of hell c and Henry c it be true  the testae of writ have be amend but when when it be on Sunday out of term or  after the return which be impossible to be and therefore a plain mistake of  the clerk and upon the same reason be the case in Yelv for there the distringa  bear testae the same day with the venire facias so that the testae be direct  repugnant to the purport of the writ itself which be to distrain the jury  summon on the venire facias when in truth no jury can be summon I always have  take it that if upon the return of one writ another be award that that other  shall bear testae of the return of the first writ and the case of Bradley v  bank be very strong in that point and the common practice of the common plea  be so though it be not so much observe here in writ of inquiry of damage the  one process there be always test on the day of the return of the last whether  it be a capias in outlawry or a distress infinite the one must be test on the  return of the other or else all be discontinue Aye but this be a mistake of  the clerk but we be to judge whether it be not a mistake in point of skill who  can tell every clerk do not know and some pretend that it need not be test on  modern er p the day of the award why then shall we look upon this to be a  fault in point of computation rather than that he think it good and if it be  nescience in the clerk it be not help even by the statute of Henry c though a  civil case before the statute of Jeofails and he hold that a new venire must  go for a new distringa will not do for the first venire facias be execute and  the jury have now try the defendant modern and that appear on record here and  the now venire facias be Self facto discharge only a entry to be make on the  roll because that this only is apparent our that the distringa do not issue  until the twentyfourth therefore to look at closely be quod empty and venire  facias de to make new award note powys justice recant instanter and gold  justice to stick fast