case Marham against peascod Trinity term James roll in c b in a writ of error  if a different original be return the defendant may allege diminution and  return the true original cro car salk show possession of steal good and  commitment by a magistrate be such probable cause as will justify a indictment  for the theft in conspiracy the crime of which the plaintiff be lawful acquit  must be allege but this be not necessary in a action on the case error of a  judgement in the king bench in a action upon the case where the plaintiff  declare whereas he be bone et bonestus c that the defendant falsely et  wickedly procure he at such a session of the peace before such justice of the  peace to be indict of felony for the steal a piece of timber from the  plaintiff et she occasion take hold et at Norwich to be imprison until in  person I b et a S justitiariis peace et ad to hear c legitime acquietatus to  be ad damnum c the defendant plead that he be possess of a piece of timber  which be felonious steal from he by person unknown which be find in the  plaintiff possession whereof he complain to sergeant Haughton be a justice of  peace who examine the plaintiff and find cause of suspicion in he that he have  steal it commit the plaintiff to prison and bind the defendant in a  recognizance to prosecute against the plaintiff for which cause he exhibit a  bill of indictment thereof and the plaintiff be indict which be the same  conspiracy the plaintiff reply de in an unjust manner svan not common with  others without tali causan and issue join thereupon and find for the plaintiff  and judgement accord and now error bring thereof the first error assign be for  that the original writ and declaration vary and in truth there be one original  writ which be certify upon this writ of error which vary from the declaration  certify but the plaintiff have bring croak throw another writ a see side croak  James er p and do not declare upon the first but declare upon the second writ  which agree with the declaration which writ be not certify wherefore the  defendant ill the writ of error allege diminution and have a certiorari  whereby it be certify which be hold good enough by all the court a second  error assign be because the plea in bar be ill and no bar to the action and so  the issue join be not material and then the judgement thereupon be erroneous  say non allocatur for the plea in bar be good for it be a good justification  of his deal if it be true as Henry pl and in knight v Jermin in the king bench  a it be hold that such a justification be good a three error which be not  assign upon record but over as far as that the declaration be not good be  because it be that he be legitime acquietatus and do not say ind nec de felon  prediction so as it do not appear whereof he be acquit and conspiracy lie not  unless he show that he be lawful acquit of the felony aforesaid and therefore  Fitzherbert n b and the precedent in the book of entry be quod fixed by law  modus ind acquietatus step forth say non allocatur for true it be so it ought  to be in conspiracy as all the court agree but this action be but a action on  the case and for that he falsely et wickedly procure he to be indict and cause  his name to be call in question and procure he to be imprison and for that he  have do it falsely et wickedly for this cause the action be bring Tanfield say  he well know this difference to be so agree in knight v Jermin in this court  after long debate and advisement wherefore the judgement be affirm Richardson  be of counsel with the plaintiff in the writ of error and I of counsel with  the defendant and he several day earnest urge to have the judgement reverse  for this last error but it be adjudge ut above