I

Of Declaring, &c. in Audita Querela.

F the defendant in audita querela appears upon the feire facias, venire facias, or diftringas, the plaintiff in audita querela declares, in which declaration the whole writ of audita querela is recited in the same manner as in a declaration in fcire facias, with a beginning to this effect:

"OUR lord the king fent to his juftices, * affigned to hold pleas before the king himself; his writ clofe in these words, to wit, George the third, &c." (and fo recite the whole writ of audita querela.)

In the declaration in an audita querela, the better form is to recite the whole record of the recovery, or it may be recited generally, as "Quod cum quidam A. nuper fcilicet, &c. implacitaffet quendam B. &c. fuper quo he found bail, taliterque in eâdem curiâ noftrâ processum fuit, quod prædiētus A. recuperet, &c." Co. Ent. 87. b. c.

But if there is a variance between the audita querela and the record, the writ abates. F. N. B. 104. R.

The declaration ought to comprehend only one gravamen, or at least, if it mentions several, it ought to rely upon one only, otherwise it will be double. F. N. B. 104. R. Cro. El. 809. Dy. 297. b. And the plaintiff ought to fhew himself aggrieved. Ibid.

In the entry of the declaration, after the writ of audita querela is fet forth, the plaintiff fuggefts the gravamen, and prays to be difcharged, &c. Afterwards is fet out the award of the feire facias or venire, &c. and the recognizance of bail (if the plaintiff was in execution and delivered on bail) then the return to the feire facias, or venire, and the defendant's appearance.

If the defendant confeffes the matter alledged, the plaintiff has judgment and discharge by confeffion; but if the defendant denies it, the parties proceed to iffue in fact, or in law, as in other cafes.

No damages or cofts can be given to a plaintiff in an audita querela. See Dyer 194.

If the plaintiff in audita querela be nonfuited, though he may have a new writ of audita querela, he shall have no fuperfedeas to ftay execution.

* This is the form of beginning in B. R. In C. B. the form is thus, OUR lord the king fent to his juftices of the Bench," &'c.

Of Declaring, &c. in Audita Querela.

If the audita querela be brought while the money recovered on the first judgment remains in the hands of the sheriff, and not paid over to the party, the court will make an order for it to remain there till the audita querela is determined. But it feems, that if the money on the first judgment is paid over to the party recovering it, there is no remedy for it.

But by Windham, juft. Where judgment is had in an audita querela brought before the former execution done, the plaintiff in audita querela shall be restored to whatever he loft by the execution, which the court agreed, being founded on a releafe. Vide 1 Keb. 260, 245. I Sid. 74.

Of

Of the Judgment in Audita Querela.

Y the process of venire facias, the plaintiff in audita querela may have diftrefs infinite till the defendant appears-But if the defendant does not appear and plead after a fcire facias and two nihils returned, there fhall be judgment against him.

But if there is judgment after one nihil, it is error. R. Yelv. 88.

If the defendant pleads, and afterwards makes default upon the fcire facias ad audiendum judicium, there shall be judgment against him.

If there be judgment for the defendant in an audita querela, before he have execution upon his firft judgment, he may afterwards pursue his execution upon that.

264.

I Vent.

If the defendant in the firft judgment was in execution before the audita querela, and in that there is judgment for the defendant, he fhall pursue judgment in the audita querela. Vent. 264.

Of

380

Of laving the Statute of Limita

tions.

Of entering Procefs on the Roll to fave the Statute of Limitations.

HE ftatute 21 Jac. 1. c. 16. f. 3. for limiting perfonal Tactions, enacts, "That all actions of trefpafs quare claufam fregit, all actions of trespass, detinue, action fur. trover, and replevin for taking away of goods and cattle, all actions of account and upon the cafe, other than fuch accounts as concern the trade of merchandize between merchant and merchant, their factors or fervants, all actions of debt grounded upon any lending or contract without specialty all actions of debt for arrearages of rent, and all actions of affault, menace, battery, wounding and imprifonment, or any of them which fhall be fued or brought, fhall be commenced and fued within the time and limitation hereafter expreffed, and not after, (that is to fay);

"Actions upon the cafe, (other than for flander) actions for account, actions for trefpafs, debt, detinue, and replevin for goods or cattle, and actions of trefpafs quare claufam fregit, WITHIN SIX YEARS next after the cause of fuch actions or fuit, and not after :

"And actions of trefpafs, of affault, battery, wounding, imprisonment, or any of them, WITHIN FOUR YEARS next after the cause of fuch actions or fuit, and not after :

"And actions upon the cafe for words WITHIN TWO YEARS next after the words fpoken, and not after."

And by fect. 7. It is provided, "That if any perfon or perfons that is or fhall be entitled to any fuch action of trespass, detinue, action fur trover, replevin, actions of accounts, actions of debt, actions of trefpafs for affault, menace, battery, wounding or imprisonment, actions upon the cafe for words, be or fhall be at the time of any fuch cause of action given or accrued, fallen or come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond the feas; that then fuch person or perfons fhall be at liberty to bring the fame actions, fo as they take the fame within fuch times as are before limited after their coming to or being of full age, discovert, of fane memory, at large, and returned from beyond the feas,

as

Of entering Procefs on the Roll to fave the Statute of Limitations.

as other perfons having no fuch impediments fhould have done."

This ftatute bars the plaintiff's action if he do not commence it within the time therein expreffed, or if disabled at the time the action accrued, if he do not commence it within the limited times after the difability, removed from himfelf-but the 4 & 5 Ann. c. 16. f. 19. entitles the plaintiff, in cafe the defendant is beyond fea at the time the action accrues, to bring his action within the limited time, according to the ftat. 21 Jac. 1. after the defendant fhall be re turned..

A latitat is good to avoid the ftatute of limitations, without a bill of Middlefex previously fued,-So is a capias without an original. Metcalf v. Burrowes, 14 Geo. 2. Bull. Ni. Pri. 151. Vide Stra. 736.

And a latitat fued in vacation, will by fiction of law fave the limitation of time, unless the defendant in, his rejoinder fet out the day on which the latitat iffued. Lambert v. Witeley, E. 1760. K.B. Vide Ld. Raym. 432, c. 386,

880, 553.

The procefs fued out with a view to avoid the ftatute of limitations, must be carried to the fheriff's office, in order to be returned with a non eft inventus, after which it must be entered on a roll in this manner :

As yet of the term of the Holy Trinity. Witnefs, William Earl of Mansfield.

Middiefex, to wit. The fheriff is commanded to take G. D. and E. F. if they may be found in his bailiwick, and keep them fafely, fo that he may have their bodies before our lord the king at Weftminfter, on IVednesday next, after three weeks from the day of the Holy Trinity, to answer A. B. in a plea of trefpafs, and to have then there this precept. By bill. Stormont and Way. At which day, before our lord the king, at Westminster, came as well the aforefaid A. B. in his proper perfon, and offered himself against the faid C. D. and E. F. in the plea aforelaid, and the fheriffs, namely, Thomas Wright and Evan Pugh, efquires, fheriff of the county of Middlefex aforefaid, returned, that

the