Sir John Heydon's Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1616 |
| Date | 01 January 1616 |
| Court | Court of the King's Bench |
English Reports Citation: 77 E.R. 1150
King's Bench Division
En quo discordia legis perducet miseros!
[B a] sir john heydon's case. Trin. 10 Jacobi 1. In assault and battery, if there are several defendants who plead severally, and one makes default, and a writ of enquiry is awarded on the roll but not issued, the jury who try the first issue shall assess damages against all. Resolved,-1. When, in trespass against several defendants, they plead not guilty, or several pleas, and the jury find for the plaintiff' in all, the jurors cannot assess several damages against the defendants. But in trespass against two, if the jury find one guilty at one time, and the other at another time, several damages may be taxed ; though if the plaintiff himself confesses that they committed the trespasses (a,) 10 Co. 62 a. 4 Co. 2 b. 90 a. (b) Salk. 464. Br. Retorn de Brief 42. Br. Office & Officer 11. Fitz. Retorn. de Vicount 56. (f) Ace. Jones v. Bean, 1 Show. 289. 4 Mod. 16. If one sheriff makes his return without his fellow, this being as no return at all, is not aided by the statute which aids insufficient returns. Lambev. Wiseman, Hob. 70. Brockham's case, Litt. Rep. 129. in a writ directed to two sheriffs, habeas instead of habeatis is not error. Gargrave v. Markham, Cro. Jac. 576. And an action on the case lies against both the sheriffs of London for the escape of a prisoner from one of the two compters, though the plaint was levied before one of the sheriff's only. Ryding v. Edwin and Fleet, Garth. 145. S. C. 1 Show. 162. and vid. Rich v. Player, Skin. 104. But such action does not abate by the death of one of the sheriffs, Benion v. Watson and Elwcke, Cro. Eliz. 625. It seems that when two persons are sheriffs, and one is challenged, the other may execute the writ: but he does it in the name of both. Rex v. Warrinyton, 1 Salk. 152. S. C. [Cart. 214. 4 Mod. 65. 12 Mod. 22. Comb. 191]. (g) Fid. Com. Dig. Grant G. 9. Vin. Ab. Prerog. O. b. nco.rep.Kb. heydon's case 1151 severally, the writ shall abate. 2. In trespass against two where one comes and appears, &c. against whom the plaintiff declares simui cum, who pleads, and is found guilty and damages assessed by the jury ; and afterwards the other pleads and is found guilty; the defendant who last pleaded shall be charged with the damages taxed by the former jury, and in such case may have attaint. The discontinuance, if any, is remedied by stat. 32 H. 8. After the writ of enquiry of damages awarded there is no continuance taken in C. B. between the plaintiff and defendant. 3. If the defendant's plea omits to answer the whole declaration, the discontinuance is aided by verdict. 4. In trespass against several where the defendants appear at different times, and several venire's are awarded which are tried at the same assizes, and several juries give several verdicts with different damages, the plaintiff may have election to have judgment de melioribun damnis, and it shall bind all: but fiat nisi unica executio. 5. When in trespass the defendants plead several pleas all triable by one and the same jury, and both issues are found for the plainliff, the jury cannot sever the damages. S. C. 269. semb. S. C. 1 Brown. 233. nom. Heydon v. Stiles. S. C. affirmed on error. [Cro. Jac. 348. 1 Roll. Rep. 30]. Hugh's Ab. 557, 1405. 2001. Vin. Ab. Dam. X. Sir John Heydon, Knight, brought an action of trespass of battery, and wounding (which in truth waa in a cruel and barbarous manner) at Fakenham in Norfolk, against Froxmere Cocket, Thomas Cocket, and Jeffery Cobbe. Froxmere Cocket appeared, against whom the plaintiff declared with simul cum, £c. and Froxmere Cocket pleaded not guilty, and thereupon a venire facias issued, &c. And afterwards T. Cocket appeared, against whom the plaintiff also declared with simul cum, &c. who pleaded also not guilty, upon which another venire fac.ias issued ; and both these issues came to trial at the assises at Thetford in Norfolk, anno 8 Jac. Regis, before the Chief Justice of the Common Pleas, and in truth the issue against Froxmere was first tried, and the jury assessed two hundred pounds damages; and at the same assises the issue against Thomas Cocket was tried, and de bene esse damages were assessed to fifty pounds ; and the cause which moved the jury to extenuate the damages against the others was, that although they were parties, and of one quarrel, yet Froxmere Cocket was the most malicious and cruel, and his hand gave the said barbarous and grievous wounds. Jeffrey Cobbe appeared, arid confessed the action, and a writ of enquiry of damages awarded upon the roll, but none issued. And a great question was moved and depended for divers terms, how, and against whom, and for what damages, judgment should be entered. And at the last, upon [5 b] consideration had of the...
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