Sir Henry Gwilliam Matthew Bacon.

A new abridgment of the law with large additions and corrections, Volume 3 online

. (page 51 of 114)
Online LibrarySir Henry Gwilliam Matthew BaconA new abridgment of the law with large additions and corrections, Volume 3 → online text (page 51 of 114)
Font size
QR-code for this ebook

not given, Uie special matter may be returned, viz., that no judgment was given. Sid. 466 ;
Vent. 96, and vide Sid. 311. — [If the plaintiff defers signing judgment till the writ of
error is spent, then signs it, and brings debt thereon, the court will order a new writ of
error at the expense of plaintiff's attorney. Arden v. Lamley, Barnes, 250 ; Jaques v.
Nixon, 1 T. R. 280.] /Sin Connecticut, a writ of error must, in all cases, be served on
such of the defendants as reside within the state at least twelve days before the sitting
of the court to which it is returnable. Gaylord v. Payne, 3 Conn. 258.8^

Digitized by


ERROR. . 337

(D) Of the Manner of bringing it.

But a writ of ern»r, that bears teste before any plaint entered, is not good.

Maich, 140.

So, where the defendant, upon an indictment of barratry, brought (a) a
writ of error beannff teste before the assizes, it was disallowed ; because, if
such practice should obtain, it would disappoint all proceedings there.

Vent. 255 ; 3 Keb. 308. (a) Yet when a cerUorari is awarded before any indictment
found, but one is found before the return^ it should be removed ; but for this vide tit.

By the 10 & 11 W. 3, c. 14, it is enacted, '^ That no fine or common
recoyery, nor any judgment in any real or personal action shall be reversed
or avoided few any error or defect therein, unless the writ of error, or suit for
the reversing such fine, recovery, or judgment, be commenced or brought,
and prosecuted with effect, within twenty years after such fine levied, or
such recovery suffered, or judgment signed or entered of record.

JVb^, this statute hath the usual savmgs as to in&nts, feme coverts, per-
sons rum-compoteSy ih pris(m, or beyond sea.

(D) Of the Manner of bringing it: And herein,
1. Of the Formofiht Writ^ and where the JRecord shall he said to be removed*

The law does not seem to require the same exactness in writs of error as
it does in other writs; therefore, it has been holden, that in a writ of error
to reverse a fine as cousin and heir of the conusor, it need not be shown in
the writ of error how he is cousin, for it is but a ccMnmission to examine the
errors, and needs not such certainty.

Cro. Ja. 160.

Neither need the plaintiff in error show a title in a writ of error, unless it
be in a special case, varying firom the common course ; as, where a special
heir in tsul brings error, or be in remainder, because he is to entide himself
to the writ.

Cro. Ja. 161. [1 Buir. 410.]

So, if a man brings a writ of error to reverse an outlawry, it need not be
shown in what action it was.

Ro. Rep. 29.

But great certainty was formeriy required in makmg the writ of error agree
with the record ; for as the writ was the sole authority by which the judges
were empowered to examine, &c., the^ could proceed only on that record
which the 'writ or conmussion authonzed; nor could the defects herem,
before the 5 G. 1, c. 13, be amended, because by the former statutes of
amendment the judges were only enabled to amend in affirmance of

Vide tit Amendment and JeqfaiL Garth. 368.

Therefore, where a writ of error was brought upon a judgment in quadam
lo^ld by writ of certain land and pasture, without showing in what action
this plea was, it was held naught.

Watson and Bernard, 1 Ro. Rep. 33.

If an ejectment is brou^t against seven, and one dies, and judgment is
given against the six, and laid ad dammum of the seven, the writ shall
abate ; &ough it might have been otherwise if the writ had concluded ad
dajTmum of 3ie six only.

3 Ro. Rep. 310; Palm. 153, adjudged ; hnUper Dodderidge, if the writ of error had

Vol. III.— 43 2F

Digitized by


338 ERROR.

(D) Of the Maimer of bringing it

mentioned the seven only, according to the record, and concluded ad damnum of the six,
it had been well. I f one of the parties is d^, yet he ought to be named in the writ
of error. 2 Mod. 285; 1 Ld. Raym. 71; Garth. 368; 5 Mod. 16, 69; I Str. 606;
3 Ld. Raym. 1403.

If in a quare impedU in C. B., George Shirley, baronet, recovers against
Underbill, and he brings writ of error, reciting a record between George
Shirley, knight and baronet, and Underbill, and Uiereupon the record and pro*
ceedings are sent in B. R., and a miUilur entered upon the roIl,(a) yet the
record is not removed.

Hob. 327 ; Hutt 41 ; Cro. Ja. 633, S. C. (a) Style, 153, like point per Roll, C. J.,
who said the variance was material, for these additions are made part of the name;
otherways where one is named Gent, in the record, and Yeoman in the writ.— *-Where

a variance in the addition shall abate the writ Sid. 104. Where it was moved to

quash a writ of error inter A and B nuper de KeUey in com. Warmci gent,, and the record
certified was, inter A and B nuper de Kehey in com. Lincoln gent., it was doubted whether
this variance in the addition would vitiate the writ, for mat ihe addition was not of
necessity ; and at one time it may be, he was of one Kelsey, and at another time of

another. Sid. 193; Keb. 117. But for variances between the writ and record, vide

Cro. Eliz. 92, 172, 198; Ro. Rep. 16 ; 2 Bulst. 167, 174 ; Style, 193, 407, where the
court by consent of parties made a rule to proceed in the writ of error, notwithstanding
a variance for which it ought to have abat^ ; of which the reporter makes a quaere, the
record not being well removed.

A writ of error was brought to remove a record in curia manerU de CSiU
tingby; where the record was, in cur. custod. liberkU. Anglue authoriiate
parliamenti de CutHngby; and ruled by Roll, that there was no direct oppo-
sition between them, for that both may stand together; and though dejhdo
it is the court of the lord of the manor, yet virtually, and in dignity, it is the
king's court.

Style, 344.

If a writ of error be directed majori et aldermanms civitaHs stuB B ac mor
jori et constabulario stapuUe B nee non vicecom. ejusdem ac hallims majori
et communitaH ejusdem cur. tols. ac ballivis et camTnumtati cur su4B pulvefisat.
et eorum cuilibet, to certify the record of a judgment loqueUe muB Jidt coram
vobis in cur. nostra civitat. prod, sine brevi nostrOj &c., and the record is
certified thus, viz., PlacUa in cur. dom, regis tok. cwitat. prod, ^c, coram
A et B torn vicecomitibus com. civitat. prmd. quam balliviSy majore et com-
munitate ejusdem civitatis ; this is a good writ of error to remove this record;
for though it is not said therein coram vobis seu aliquSms vestrum ; yet it
shall be taken distributive^ viz., the judgment upon a plaint before all the
said officers, or any of them.

Gay and Adams, 2 Saund. 291. || In Walker v. Stokoe, 1 Ld. Raym. 152, note, Lord
Holt expresses his disapprobation of this case, and afterwards, upon its bein? cited by
counsel in Reg. v. Baines, 2 Ld. Raym. 1200, 1203, it was said by Powell, J., that in
the case in Saunders the court went much upon the constant form of writs of error to
that court, which had always ^ne that way; and he heard Chief Justice Saunders say
so; to which Lord Holt said, it would be hard to maintain the judgment otherwise. ||

If a writ of error be (J) directed to Sir Edward Littleton (he being then
Chief Justice de Banco) to certify a judgment in quereld qua/uit coram vobis
et socns vestris, where it was before Sir John Finch, then chief justice, the
predecessor of Sir Edward Littleton, this writ shall abate.

Lewes and Webb, Ro. Abr. 752. (a) It must always be directed to them before

whom the judgment is ; per Godb. 44 ; Salk. 264, 265. ^To him who hath the custody

of the record wherein any judgment is given ; as, of a judgment in the Common Pleas,
to the chief justice only ; so upon a judgment in the Exchequer, to the treasurer of the
Exchequer and barons, to have the record before the chancellor and treasurer of Eng-
land ; though it happen the treasurer of England and of the Exchequer be the same
person. 4 Inst, 105.

Digitized by


ERROR. 339

(D) Of the Manner of bringing it

So, if a writ of error be directed to Oliver St. John, be being Chief Jush
tice de BancOy to certify a judgment in quereld qua Jyii coram vobis et socm
vestris^ where it was before Edmun^ Reeves et socUs suisy there not being
then any chief justice ; this is not good, but the writ shall abate.

Ro. Abr. 759.

But, if a writ of error be directed to Peter Pheasant, to certify a judgment
tit loqueld qua JuU coram vobis et socUs vestrisy where it appears by the
record that it was held coram Edmundo Reeves et Petro Pheasant; this is a
^ood writ ; for though in the return Edmund Reeves is first named, yet this
IS well enough, inasmuch as Peter Pheasant is also named ; and it does not
appear which of them was the eldest.

Clerk and Sprigg, Ro. Abr. 752.

If a writ of error be directed to the mayor, aldermen, and recorder of
Launceston in Comubidy and the record be certified by the mayor, aldermen,
and deputy recorder, the court being held by letters patent ; this is not well
certified, inasmuch as this ought to be certified in the name of the judges
of the court ; and it does not appear that the recorder had power to make a
deputy by the said letters patent.

Sprye and Mill, Ro. Abr. 752; Style, 191, 203, S. C. and S. P., adjudged.

If an assize is summoned before justices of assize, and they are afterwards
removed, and the Chief Justice de B. and another justice are made justices
of assize in the same coun^, and the assize is taken before them, et propter
difficuUatem adjourned in 6.y and judgment there given for the plaintiff, and
a writ of error is directed to the same chief justice before whom the assize
passed, reciting the^assize summoned before the justices of assize by name,
et postmodum capt, before the chief justice, &c., but not reciting how the
assize came in A, viz., by adjournment, or otherwise ; this writ of error is
not good ; for as it took notice of the change of the justices, a fortiori it
ought to take notice of the adjournment, for by that both judges and court
were changed.

Lord Cromwell and Andrews, Yelv. 3 b ; Cro. Eliz. 891 ; Noy, 44, S. C. adjudged;
Godb. 248; Ro. Rep. 15, S. C. cited.

But in the (a) 5 E. 6, where judgment in a quare impedit by the statute
West. 2, was given by justices of nisi priuSy and a writ of error thereof
brought, without showing where the jud^^ent was given ; it was held
good ; for the record beginning and remaimng in the Common Pleas, it was
held not material where the judgment was given ;(J) and Gawdy said, when
the record begins in one place, and is finished in another, there, of neces-
sity, in a writ of error the proceedings in both places ought to be men-

(fl) Dyer, 77. (fi) Lord Cromwell v. Andrews, Cro. El. 891 ; Yelv. 3, S. C, and a
diyeTBity taken between the case of an assize and a quare impedit^ for the assize must
originally commence before justices of assize, and yet by presumption judgment shall
be there given, and not in C. B., but the quart impedit must begin in C. B., and by
intendment judgment shall be there given, though by the statute to avoid a lapse, judg-
ment may be given before justices of assize. 2 Bulst 171, S. C. and S. P. cited.

If a writ of error be directed to several justices, and returned by part of
them only ; yet, if it (c) truly recite the record, it is thereby removed, and a
new writ of error lies de recordo quod coram nobis residet.

Yelv. 212 ; Cro. Ja. 254 ; Sid. 349. (cj If the record vary from the writ of error,
yet the inferior court ought to remove it. Vent. 97.

[Although the return to a writ of error from the Common Pleas be not

Digitized by


340 ERROR.

^ (D) Of the Manner of bringing ii.

signed by the chief justice proprid maamy yet this is no objection to pro-
ceeding on the writ of error.

Blackwood y. 8. S. Company, Ca. temp. Hardw. 344; 9 Str. 1063, 8. C.

If a writ of error be directed to W. W., chief justice, and the return be
only by W. W., without adding "the chirf justice within named,*' yet if
there are the words, ^^ as tome toUfdn is cammanded,^^ the return is good ;
for these words are enough to show him to be the same person to whom the
writ is directed.

SnlliTane t. Seagrave, 3 Str. 695.]

If a writ of error be brought upon a judgment in an assize ce^. coram
J. Flemmg nuper capUol. justiciar, ad plaaJta et J. Dodderidge unomsticiar.
ad placUa coram nobis tenend. assignat. justiciar, nostris ad asstsas; this
vrrit is naught, for there was no such record before Fleming justiciar, ad
placitaj the words coram nobis tenend. assignat. being omitted, and those
after Dodderidge cannot refer to the first.

Cro. Ja. 349, adjudged ; Dodderidge, dissent, who said the addition was smplnsage ;
Godb. S48; Ro. Rep. 16; 3 Bulst. 164.

If a writ of error be brought in recordo et processu assisa^ fyc. inter Ji^B
summonit.j without showing which was plaintiff and which defendant, it is
well enough, because the precedents are both ways.

Cro. Ja. 341.

And now by the 5 G. 1, c. 13, it is enacted, ^^That all writs of error,
wherein there shall be any variance from the original record, or other defect,
may and shall be amended, and made agreesu)le to such record by the
respective courts where such writ or writs of error shall be made returnable.^

[Collins v. MoxwoTthy, Ca. temp. Hard. 194.]

[A writ of error was not amendable at common law, nor by any of the
statutes of amendments and jeo&ils, till the above statute of 5 G. 1, for all
amendments are granted for the support of jud^ents ; but the principal
design of writs of error is to reverse them. A writ of error was not amend-
able at common law, because it has in its naturo two things, viz., a.eerftoran
to remove the record, and a commission to examine it : and no court was
ever allowed to amend its own commission.

1 Ld. Raym. 71. Per Fortescue, J., 1 Str. 607.

An ejectment was brought against the Company and Mr. Edwards. After
a verdict for the plaintiff, Mr. Edwards died, and a writ of error was brought,
laying the judgment to be ad grave damnum of the Company, and of Maiy
Edwards the daughter and heir, and she and the Company jointly assign
errors. It was moved to amend die writ and assignment by striking out her
name. And upon consideration, the court were of opinion, that it was
amendable by the above statute, not only as a variance from the ori^nal
record, which is really no way to the damage of Mrs. Edwards, but also by
virtue of the general words other defects.

Sword-blade Company t. Demusey, 2 Str. 892 ; Fitz^. 201, S. C. ; 1 Barnard. 405,
421, S. C. So where two were cnar^ed with a joint trespass, and judgment was given
against one only, the other being found not guilty, &c., a writ of error was afterwards
brought in both Uieir names ; on an affidayit that this happened by the mistake of the
officer, the Court of B. R., upon the authority of the aboTe case, ordered the writ to be
amended by strikinff out the name of the person who was acquitted. Verelst t. Ra-
fael, Cowp. 425. if But in this case the recognisance of bail in error must also be
amended. 2 Bl. Rep. 1067, S. C.||

There was a variance between the writ of error and the record ; and as

Digitized by



(D) Of the Manner of bringing it.

it stood in the paper, the court observed it, but neither party would move
to amend it, for fear of paying costs ; upon which the court said, the above
statute would warrant their amending it, which they did without costs.

Gardnery. Merrett, 3 Str. 903 ; 3 Ld. Raym. 1587, S. C. ; Fitzg. 368, S. C. ; 1 Barnaid.
462. It appears from some of the reports of this ease, that no costs are payable upon
amendments poreuant to the statute, thoogh at the prayer of the party ; but, it the prayer
be also to amend the assignment of errors, the rule is with costs, because then the party
comes for a favour of the court.]

II Where in suing out the writ .of error a mistake had been made in the
name of the defendant in error, who thereupon issued execution ; the Court
of IGng's Bench ^jianted a rule to show cause why the sheriff should not
pay the money levied on the execution into court, and enlarged that rule in
order to aUow the plaintiff in error to amend his writ

Barnard ▼. Guy, 3 Smith, 359.g ^

[A writ of error was returnable before any judf^ment given, and on con-
sideration, it was holden to be such a fault as is not amendable by this

Wright T. Canning, 3 Str. 807 ; 3 Ld. Raym. 1531, S. C. ; 1 Barnard. 63, 65, S. C. ;
Rejindoz ▼. Randolph, 3 Str. 634, S. P. ; Vice t. Burrow, Ibid. 891, S. P. ; Wilson ▼.
Inffoldsby, 3 Ld. Raym. 1179. However, in almost idl cases, the writ is sued out
before judgment signed, because otherwise execution would issue instantly. Far Bul-
ler, J., Jaques ▼. Nixon, 1 T. R. 380.] {And it is now settled, that it may be made
returnable before the day on which the judgment is actually signed, provided it be of
the same term with the judgment; SomeryUle ▼. AVhite, 5 East, 145; Hill v. Tebb,
1 N. R. 398, and that, whether the judgment Se final or interlocutory. Emanuel ▼•
Martin, 3 M.&S. 334.(1

9. What i$ necessary to he removed^ and herein of removing tie Seoord or a TVanseript,

On a writ of error of a judgment in the Common Pleas, or other inferior
court, in every adverse suit the record itself shall be removed, that it may
remain as a precedent and evidence of the law in the like cases.

33 E. 3, 6; 40 Ass. 39; Ro. Abr. 753 ; 3 Str. 837. /dit is the duty of the plaintiff
in error, and not of the clerk of the court below, to transmit the record to the Supreme
Court. Porter's Lessee v. Cocke, Mart. & Yerg. 364. s^

But in the case of a fine the transcript only is removed, for fines are only
a more solemn acknowledgment or contract of the parties, and therefore no
memorials of the law, and need only be ajBSrmed or vacated ; if the former,
the contract stands as it was ; if the latter, the justices of B. R. may send
for the fine itself, and reverse it, or may send a writ to the treasurer and
chamberlain to take it oflT the file. Besides, should the record itself be re-
moved and affirmed, it could not be engrossed for want of a chirographer
inB. R.

Bendl. 51; Ro. Abr. 753; Dyer, 89; Godb. 348; 3 Ro. Rep. 333; F. N. B. 30.
^In law the record itself is considered as removed to the Supreme Court from the Com-
mon Pleas, though in fact a tninscript only is sent up. Brown v. Clark, 3 Johns. 554.8f

Also, if a writ of error be brought in parliament of a judgment in B. R.,
the chief justice must go in person into the house with the record itself, and
a transcript, which is to be examined and left there, and then the record to
be brought back again in B. R.; and if the judgment be affirmed, the court
of B. R. may proceed on the record to grant execution ; and therefore if
the record itself should be removed, and judgment affirmed, and the par-
liament dissolved, there could not be any proceedings thereupon to l^ve

4 Inst. 31; Cro.Ja.341; Bulst. 166; Ro. Abr. 753; Godb. 349; in which last book
it is said to be at the pleasure of the parliament, to have either the record or transcript,


Digitized by


342 ERROR.

(D) Of the Maimer of biinging it

[According to the course of parliament as settled in the time of Hen. IV.
in error from the King's Bench, when the chief justice was commanded
either by petition of error or writ of error to bring the record into parliament
either indilati or on a day certain, he brought up the roll and a transcript of
ihe record, and left the transcript and roll with die clerk of the parliament to
be examined, and then the same day, or some short time after, the rolls them-
selves were carried back into the treasury. And this hath obtained to this
day. In the parliament of 18 Ja., when the Chief Justice of the King's Bench
was made Speaker of the House of Lords by commission on the suspension
of the lord keeper, yet it was resolved 14 Man 1621, in that parliament, that
upon a writ of terror he should bring in the record as chief justice.

Hale^s Lord's Juried, c. 26.

If a writ of error be brought in parliament upon a judgment in the King's
Bench, if the writ abate by death, a record is made of it in the Lords'
House, and by judgment the writ is there abated, and the judgment of abate-
ment is entered upon the transcript left in the Lords' House, and the same is
remanded into the King's Bench to proceed according to law, H. 22, Car. 1,
B. R. rot. 696. Trowl and Methurst.

Hale's Lords' Juried, c. 28.

So, if the judgment be affirmed by the Lords, the judgment of affirmation
is entered upon the transcript, and remUtUur entered thereupon, and the
record delivered back to the King's Bench to proceed with execution. T.
26 Car. 2, rot. 807.

Hale's Lords' Jurisd. c. 28.

And so, if the judgment be reversed by the Lords, the judgment of reversal
is entered upon the transcript with a remUtUur in this form : Et superinde
recordum et processus per curiam parliamenii curia cbmird regis coram dido
domino rege xdncunquey fyc.y remiUuniury et in eddem curut coram dido
domino rege jam resident. M. 24 Car. 2, B. R. rot. 237. Streter's case.

Hale's Lords' Jurisd. c. 28.

And it seems that, although as to some purposes the record was removed
from the King's Bench into parliament ; vet really the record remains as to
many purposes in the King's Bench ; and after such a remitiiiur the Court
of mne's Bench proceed upon the original record before them, and enter the
reversd and remittitur upon that record. Therefore, if the parliament be
dissolved before anv judgment of affirmance or reverssd, upon a suggestion
thereof upon the roll m the Kbg's Bench, the Court of King's Bench shall
proceed upon the record before them, though there be no remittitur of the
transcript out of the parliament into the King's Bench.

Hale's Lords' Jurisd. c. 28.

If a writ of error be brought in B. R. here, of a judgment in B. R. in
Ireland, the record itself is not sent, but a transcript only, by reason of the
danger of the seas ; but when it is come safe and entered in the rolls here,
then it ceases to be a record in Ireland, and is a perfect record here ; yet if
the judgment be affirmed, the King's Bench in England shall not award
execution, but shall send a special mandate to the chief justice in Ireland
to do it.

[It is the very record which comes here out of Ireland, and not the transcript of it.
And it is no objection that it should be the transcript, for fear of the peril of tne sea ;
for one might object in the same manner, that upon error in the Common Pleas, the
transcript only is removed hither, for fear it should be burnt or lost before it comes into
the King's Bench. But in fact, when the record in both cases arrives here, then it is

Digitized by


ERROR. 343

(D) Of the Manner of bringing it.

the true record, and not before ; and that which is in Ireland, or the Common Pleas,
ceased to be the record. Per Holt, C. J., in Coot t. Linch, 1 Ld. Raym. 437.]

If a writ of error be brought in B. R. to reverse a judgment given in C. B.,
the (a) original shall not be removed, if it be not by special matter, as, if
error assigned in the original.

24 E. 3, 24 ; Ro. Ab. 753. (a) Though the command of the writ is to certify re-
eardum dprocessum^ yet the course is only to certify the declaration and pleas, omitting
the writs. Bridg. 57.— All is certified which is with the chief justice; but the origi-
nal and judicial writs remain with the cuitoa bretnum and other officers, and are never
certified, but where error is assigned for want of them. Cro. Eliz. 84 ; vide Leon. 22;

Cro. Ja. 379 ; Ro. Abr. 790, pi. 6. ^The writ is directed to the chief justice, who

only certifies the body of the record, which remains with his clerk.

If a writ of error be brought in B. R. upon a judgment in an inferior
court against the plaintiff, there the court may reverse the judgment, though
the original be not removed, no error being assigned in the original ; for tms
is removed but to sue here upon the same original.

37 Ass. 5; Ro. Abr. 753.

[By the words of the statute of 27 El. c. 8, which first gave the writ of
error from the Court of King's Bench to the ibcchequer Chamber, the chief
justice is to cause the record to be brought before the judges in the
Exchequer Chamber ; yet the practice hath always been to send only a
transcript, the original record remaimng in B. R. In the pleadings in
Westby's case, (3 Co. 67 a, 70 b,) the entry of the proceedings m error runs
thus : <^ Afterwards, &c., the transcript of the record and proceedings, &c.,

Online LibrarySir Henry Gwilliam Matthew BaconA new abridgment of the law with large additions and corrections, Volume 3 → online text (page 51 of 114)