baily against Garford baily bring a action of debt upon a bind against Garford  executor of another the defendant plead non be factum of the testator upon  which a special verdict be give videlicet that the testator be bind in that  bind with two other joint and several and that afterward the seal of the two  other be eat with mouse and rat and whether now that be the bind of the  testator or not be the question which the jury refer to the court and march  report it be now argue by sergeant Whitfield for the plaintiff that the  obligation stand good against the defendant notwithstanding the eat of the  seal of the two other and his reason be because that where three be bind joint  and several and that be all one as if they have be several obligation for as  when three be bind joint and several there may be one precipe one declaration  and one execution against they altogether so when three be bind joint and  several there may be several precipes several declaration and several  execution against they so it be as it be several and distinct obligation and  therefore the avoid of part be not the avoid of the whole further he put case  where a deed which be entire may be void in part and good for the residue h h  and Piggots case Rep where it be resolve that if some of the covenant of a  indenture or condition of a bind be against the law and some good and lawful  that in that case the covenant and condition which be against the law be void  ab beginning and the other shall stand good and he cite the Rep Matthewsons  case as a strong case to this purpose but the court say that that case of the  Rep differ from this case for there certain person covenant separatin and  there the break of the seal of one of the party from the deed shall not avoid  the whole deed for it be as several deed but here they be bind joint and  several which alter the case beside he say the book in h make not against it  for there it shall be take that they be bind joint and not several as in this  case and he cite a report in the point which be Trinit James in this court  betwixt ban and simmonds where the case be that twenty eight merchant be bind  joint and several as our case be and three of there seal be break from the  deed but notwithstanding it be resolve that the deed do remain good against  the other note that the court doubt of that report and therefore order that  the roll shall be search and the objection here that it be joint be worth  nothing because it be several also and he say that if two levy march report a  fine one within age and the other of full age he say it be good in part and  voidable in part and if a fine which be a matter of record may be good in part  and voidable in part a strong he conceive a matter in fait as a bind and the  case of the fine he say be English case adjudge and he will have take a  difference betwixt raze interlineation and addition as be in Piggots case that  the same shall avoid the whole deed but that the break of the seal of one  shall not avoid it but for part but the court say that it be clear all one  wherefore he pray judgement for the plaintiff sergeant pheasant contrary that  the whole deed be avoid and non be factum of the defendant it be not the same  bind in nature and effect as it be before and as Rep Whelpdales case be if the  deed be alter by interlineation addition rasure and break of the seal there  the defendant may plead non be factum because it be not march report er p the  same deed so in this case it be not the same deed for whereas it be joint at  the first now if the deed shall stand good against the defendant only it shall  be his bind only where it be his bind and the bind of another at the first and  so not the same bind and h ought to be take of a bind joint and several  because that most bind be so and then it be clear our very case and there it  be resolve that if two be bind in a bind and the seal of one be dissolve and  take from the bind that it avoid the whole deed and it be not a obligation  joint and several but joint or several at the election of the obligee for be  can use both and when he have by his own act deprive himself of this election  as in our case which go in prejudice of the obligor who be the defendant the  whole bind be thereby go for by that mean the defendant only shall be charge  where both be and therefore be conceive that if I giant unto a man a annuity  or a robe if the grantee release one of they both be go because he have  deprive himself of election so in this case he by his default shall prejudice  the defendant here which ought not to be he compare this case to laughter case  c Rep beside if the whole deed shall not thereby march report be avoid it  shall be a great prejudice to the defendant in as much as if all happen to be  in execution for the debt due upon that bind as by the law they may and the  one escape the same shall give advantage to the other to have hearing  complaint and by that to discharge themselves which the defendant here shall  lose if the obligation shall stand in force as to he only Rep sir John  Needhams case if a woman obligee take one of the obligors to be her husband  the same be a discharge to the other two commit a trespass the discharge of  one be the discharge of both yet it be there joint or several at will of the  party who release but it may be object that it be a casual act here and  therefore shall not be so prejudicial to the plaintiff here to that he answer  that that shall not help he because it be his own lachess and default and the  same objection may have be make in Piggots case where the obligation be alter  in a material place by a stranger without the privity of the obligee and yet  there it be resolve that the same shall avoid the deed beside if the obligee  have deliver the same over to another to keep and it have be eat with rat and  mouse yet that will not excuse he and by the same reason shall not help the  plaintiff here Matthewsons case c Rep differ much from this case because there  the covenant be several and not joint as in this case and therefore if the  covenantee do release to one of the covenanter that shall not discharge the  other for the case of h and Piggots case they differ much from our case for  there the covenant or condition against the law be void ab beginning by the  construction of the law and no alteration as in our case by the act or default  of the party by matter ex post facto and therefore those covenant or condition  against the law can vitiate those which be good and accord to law because they  take not any effect at all so if a monk and another be bind the bind be void  as to the monk and good as to the other because there be no subsequent  alteration by the party but the same be void by construction of law ab  beginning and upon the same reason stand the case of the fine march report put  of the other side for which cause he pray judgement for the defendant note the  court videlicet foster reeve Crawley and bank chief justice do strong incline  that judgement ought to be give for the defendant and their reason be that if  the obligee by his act or own lachess discharge one of the obligors where they  be joint and several bind that the same discharge they all but give day for  the further debate of the case for that this be the first time it be argue by  justice foster and bank chief justice a trust be not within the statute of  James cap of limitation and therefore no lapse of time shall take away remedy  in equity for it but for other action which be within the statute and the time  elapse by the statute there be no remedy in equity and that they say be always  the difference take by my Lord keeper Coventry but justice Crawley say that he  have confer with the Lord keeper and that he tell he that remedy in equity be  not take away in other action within this statute it be say by the whole court  that they never grant a attachment without a affidavit in write march report  er p the case before of the warrant of attorney be betwixt Firburne and cruse  and be enter Trinit car and now it be resolve upon read of precedent ir court  that no warrant of attorney shall be make or file because that it be a error  and not help be after judgement in nothing to say that none of the precedent  come to our case the great part of precedent be these videlicet the first be  car tailor against Thellwell the same appear to be upon demurrer and no  judgement give another be mich car Peasgrove against brook and in that case it  do not appear march report that any writ of error be bring another be pasch  car tailor against sand another hill car smith against Bland in that it be  conceive to be amendment only and it be agree for law that where there be a  warrant of attorney it may be amend for any defect in it as where there be a  misprision of the name or the like as it be resolve Br amendment and so be I  and Phil and mark dyer pl express where Alicia for Elizabeth in the warrant of  attorney be amend and that after a writ of error bring by construction of the  statute of h and so be e Br amendment and justice reeve say it can appear to  we by any of the say precedent whether there be a warrant of attorney or not  and perhaps upon examination it may appear to the judge that there be a  warrant of attorney which be help by the statute of h and that may be the  reason which cause they to order that it shall be file but that do not appear  to we and therefore the precedent be not to the purpose beside it do not  appear by any of they whether judgement be give or riot and before judgement  it may be amend as the book be e Br amendment beside in one of they the  plaintiff do neglect to remove the record which be the very case in dyer and  that be the reason that the warrant of attorney be file but in this case there  appear to be no warrant of attorney it be not help by the statute of h and  after a judgement and that upon nothing to say which be not help by the  statute of Elizabeth and there be no lachess in remove of the record by the  plaintiff and for these reason the whole court be against the defendant in the  writ of error that it be error and therefore ought not to be amend note that  in this case it be move that the warrant of attorney may be file in this court  after error bring in the king bench but observe that if it have be a thing  amendable that have be no impediment to it for thing amendable before error  bring be amendable after and if the inferior court do not amend they the  superior may and so it be adjudge Rep in blackamoor case march report and so  be the case express in the point I and Phil and mark dyer pl where a warrant  of attorney be amend in banc after error bring and the record certify this be  only my own observation upon the case mich car in the king bench a information  be bring for the king against Edgerley carrier of Oxford because that where by  the custom of England no carrier ox other person ought to carry above two  thousand weight and that with a wagon have but two wheel and but four horse  that the defendant have use for the space of a year last pass to drive a  certain gestatorium England a drag or wagon cum quatuor wheel cum inusitato  numero a horse videlicet with twelve horse betwixt Oxford and London and he  have use to carry with it five thousand weight so that he have dig and spoil  the way in a lane call LobbeLane that the people can not pass to which the  defendant plead not guilty and be find guilty by verdict and many exception be  take to the information all which be overrule by the court videlicet mallet  and heath justice and Brarriston chief justice to be misprision the first be  that he drive a wagon cum inusitato numero a horse and do not show the certain  number of they and therefore the information which be in the nature of a  declaration be not good for the incertainty but per curian the same be mistake  for it say that be drive with eleven horse the second exception be that the  usual weight which it ought to carry be not show but that be rule also to be a  mistake for it say weight the three be that it be not show in the information  that the way do lead to other markettown than from Oxford to London but it  march report be march report er p rule to be good notwithstanding that  exception because that the place a quo and the place ad who be set down and it  be not material whether it lead to other town or not the four exception be  that the nuisance be say to be in a place call LobbeLane and it be not show of  what quantity or extent that lane be videlicet how many pole or the like but  it be rule to be good notwithstanding that first because that the jury have  find that the way be stop that the people can not pass and if it be so then it  be not material how long it be second LobbeLane be say only for the certainty  of the place that the visne may come from it for of necessity it will be a  nuisance through the whole way betwixt Oxford and London and last the nuisance  be lie to be through all LobbeLane and therefore it be good notwithstanding  that exception also and therefore the matter and form of the information be  admit good then the question be what judgement shall be give in this case  whether that the carrier shall repair it at his own cost or shall be fine for  the nuisance to the commonwealth or not justice mallet there be several  judgement in case of nuisance if it be a assize because to lift up or because  be praised it ought to be part of the judgement that the defendant demolish it  at his own cost so where a nuisance be to a river ass pl but our case differ  much from the case of the river for that be a highway which read to a port to  which all resort and therefore a strong case but he conceive that the  judgement shall not be that he shall repair it because it be say in the  information that the township ought and therefore it differ from those case  and be doubt whether he shall be fine or no because that the information be  not way arms and not against any statute for then it shall be a contempt and  so fineable but notwithstanding he agree that he shall be fine first because  it be lie to be contra peace domini king ad nocumentum of the king people  which be a contempt and therefore fineable second because that although it be  not lie to be way arms yet it be lie to be a root and spoil which imply force  march report ass ass where a nuisance be with force there the defendant be  fine then admit that the defendant shall be fine the question then be what  fine shall be set upon he and he say that it shall be secundum magnitude fault  salvo wainagio his accord to the statute of great Charta cap west so that we  ought not to assess a fine upon any freeholder to take away his contenement  nor upon any villain to take away his wainage and he say that he conceive that  the fine set upon he ought to be the less for the great prejudice which may  come to the defendant because that the township may have a action upon the  case against he because they be bind to repair it and therefore he cite h  further he take exception to it that it be not show of what value or estate  the defendant be so as we may know what fine to impose for such fine ought to  be impose salvo wainagio his as aforesaid and he compare it to the case in e a  juror be demand and do not appear he shall be fine to the value of his estate  for a year but that ought to be inquire of by the jury and not set by the  court because they do not know the value of his estate so in this case but  notwithstanding he agree that he shall be fine because it appear to we how  great his fault be and the fine ought to be as aforesaid and therefore be set  a fine upon he of four mark justice heath two thing be here considerable  whether there shall be any judgement as this case be and admit that there  shall what judgement shall be give and he agree that judgement shall be give  because that the information be good as well for the form as for the matter of  it it be good for the matter of it because malum in see ad nocumentum public  officer and therefore it be proper punishable in this court the rather now  because not punishable in another court the starchamber be now take away and  it be good for the form of it for it have sufficient certainty as be before  show now for the judgement what shall be give be agree that he shall be fine  and imprison for imprisonment be incident to a fine but he do not determine  what the march report fine shall be be agree the rule that the fine shall be  secundum quantilatem delieli and that can be so little as it be make for  although LobbeLane be lie in which the nuisance shall be that be only for  necessity that there may be a certain place for the visne but of necessity the  nuisance be through the whole highway betwixt Oxford and London and because we  will not offend as the starchamber do by assess too high fine for which it be  just condemned so upon march report er p the other side we ought not to set so  small fine that we injure justice and be thereby a occasion to increase such  fault where we ought to suppress they and therefore be conceive the fine set  by mallet too little but he agree that the judgement shall be fine and  imprisonment but he adjourn the set of the fine until he have consult with the  clerk whether it shall be inquire of by commission or other good information  Brampston chief justice that the information be good for the matter and the  form but he object that where it be say that he do drive a certain gestatorium  that gestatorium be a word incertain and that therefore the information shall  be insufficient but he agree that notwithstanding that that it be good by  reason of the England for that reduce it to certainty and be cite the case  betwixt spring and Rawlinson pasch car in this court where the case be that a  mail bring all ejection firm de to make one tray which word be put for a  warehouse and resolve that it be nought for the incertainty but the chief  justice here say that it have be good if it have be explain by a England and  so he say it be resolve in that case and therefore he agree that the  information here be good notwithstanding that exception by reason of the  England this offence be a offence against the commonwealth and such a offence  for which a man may be indict for it be lie in the information to be ad  nocumentum ligeorum domini king wherefore he agree that the judgement shall be  a fine with to take in hand and he say that it can be part of the judgement in  this case that the defendant shall repair it because it be say in the  information express that march report the parishioner ought to repair it and  the chief justice say and so justice heath which I before omit that the  township can have their action for so there shall be multiplicity of action  which the law will not suffer but he conceive that if any man have a special  and peculiar damage then he may have his action otherwise not as if a man be  bind by prescription or tenure to repair that place call LobbeLane or any part  of it then he may have his action upon the case against the defendant  otherwise not he agree that the fine shall be secundum magnitude fault but yet  not too high because the other parish may have their information in like  manner against the defendant but he agree to adjourn the set of the fine