chamber. (a) Lloyd v. Scutt, Dougl. 350. 5 Mod. 230. If proceedings are by original, error lies in the House Exchequer judgment given in this court in actions in debt, detinue, covenant, account, case, trespass, or ejectment, originally begun therein by bill: and also on an action qui tam (a), it lies to the court of Exchequer-chamber, before the justices of the Common Pleas, and barons of the Exchequer; and from thence also to the House of Lords. (b) But where the proceedings in this court do not first commence therein by bill, but by original writ sued out of Chancery, this takes the case out of the general rule laid down by the statute; so that the writ of error then lies, without any intermediate stage of appeal, directly to the House of Lords, the dernier resort for the ultimate decision of every civil action. 1 Saund. 346. 1 Sid. 424. which upon hearing the matter of law, in which the error is assigned, reverse or affirm the judgment. of Lords. County palatine. Exchequer. Scire facias. When a record is removed here from a county palatine court, by a writ of error, and that writ is nonprossed, this court will award execution. Cowperthwaite v. Owen, 3 Term Rep. 657. From the proceedings on the law side of the Exchequer, a writ of error lies into the court of Exchequerchamber, and from thence to the House of Peers. But no judgment given by either are final, save only the House of Peers, to whose judicial decisions all other tribunals must therefore submit and conform their own. It does not lie in the Exchequer-chamber on an award of execution on a scire fa. only; but the writ must also include the judgment in the former action. 1 Ld. Ray. 98. Andr. 287. Nor in a scire facias against bail. 2 Cro. 171, 384. Cro. Car. 300. contra Cro. Eliz. 730. Twenty Twenty years to bring error. years are allowed for bringing a writ of error, in real and personal actions, 10 & 11 W. 3. c. 14. The stat. has the usual exceptions, in favor of infants, feme coverts, persons non compos mentis, imprisoned or beyond the seas. Who may The writ of error authorises the judges to affirm or have this writ. reverse the judgment given: and all parties against whom judgment is given, ought regularly to join. 3 Mod. 134. Carth. 7. If judgment be against two, and one brings error, it is bad, even though the other is dead, if it does not appear on record; but if it does, then the survivor (b) This statute does not extend to replevin, 2 Roll. 434. rescous. Cro. Jac. 171. Scand. Magn. 954. Cro. Car, 142. but must be brought in parliament. may bring error. Str. 233. If against three executors, though they plead separately, all three must join. 1 Wils. 88. 2 Str. 977. But if one makes default, he may be summoned and severed. Mod. Cas. 40. If two join in Plaintiff may error, and one will not assign, the court will give the other bring error to time to summon and sever. 2 Str. 783. It may be brought reverse his by a plaintiff to reverse his own judgment, if erroneous, own judg ment. What writ is to describe. in order to enable him to bring another action. 3 Burr. Error ought to be sued against all the parties to the re- Against whom covery. So against any who was party or privy to the it shall be judgment; and if any who was, has now nothing, yet he sued. shall be named a defendant in error. F. N. B. 18. Error It does not lies not on an interlocutory judgment; it can only be lie on an interlocutory brought on final judgment. Samuel v. Judin, 6 East, 333. Teste and re turn. It may be tested before judgment, so as the judgment N. R. 298, be given before the return of it; March. 140. 1 Vent. 96. S. P. 255. 1 Roll. Abr. 3, 4. 1 Mod. 112. But if plaintiff will not sign his judgment till after the return of the writ, in order to avoid the effect of it, and then sues out execution, the court will set it aside. 1 Term Rep. 279. Jacques v. Nixon. chamber or If error be brought on a judgment in this court, return- After affirm able in the Exchequer-chamber after the judgment be af- ance in the firmed or reversed, the record and all things concerning Exchequerthe same, shall be brought back into this court, that further proceedings may be had thereupon, as well for exe- record to be cution as otherwise. But still the party may bring error brought back in parliament. Stat. 27 El. c. 8. reversal, the into the K. B. The writ of error on a judgment in this court, is return- Before whom returnable. able before the justices of the Common Bench, and barons of the Exchequer, who are to be of the degree of the coif. Ibid. The court will Motion why the execution founded on a judgment of not set aside defendant's nonsuit should not be set aside, being sued out after plainexecution for tiff had served an allowance of a writ of error. Buller, J. the costs of a Here it is apparent that there can be no error of which nonsuit after the plaintiff can avail himself; for if the record were manifestly erroneous, the plaintiff, who has made deerror, because fault by suffering a nonsuit, can never have a judgment error can only afterwards in his favor. Rule discharged. Kempland v. be for delay. Macauley & another, 4 Term Rep. 436. notice of allowance of If error sued after time given on a promise not to sue. If error be brought purely for delay. If parties are to be restrained from bringing error, then legislature must interfere. Declaration by attorney. As to being brought for Delay. If an attorney desires time, and says he will not bring a writ of error, notwithstanding which he does, it will, on affidavit of the facts, be quashed on motion; the court considering it as sued out against good faith. Cates v. West, 4 Term Rep. 183. 2 T. R. 183. If the parties confess that the writ of error is brought purely for delay, the court will interfere, and will not permit them to abuse the forms of justice. Therefore, pending error, an action was brought on the judgment, and rule obtained to stay the proceedings; on shewing cause it appeared that the defendant and his attorney had declared that they would delay the plaintiff as much as possible by bringing error, if he did not comply with the terms proposed. Rule discharged. Pool v. Charnock, 3 Term Rep. 79. But where in a like motion it was shewn by plaintiff's attorney that he offered to waive the judgment if the attorney for the defendant would point out any error, which was refused; Lord Kenyon said, that the rule must be absolute. If it were fit that parties should be restrained from bringing writs of error, the legislature must interfere. But by the constitution of this country, every subject has a right to have his cause reviewed by a court of error. In this case perhaps the defendant's attorney might not know whether there was error or not. Christie v. Richardson, 3 Term Rep. 79. The defendant's attorney had told the plaintiff," that " he must delay the payment of the debt and costs, as long "as he could, as his client was already considerably in "arrear to him." The court refused to stay the proceedings in the action on the judgment, pending the writ of error. Law v. Smith, Mich. 30 Geo. 3. The same point was ruled, in Evans v. Gilbert, on a declaration by one of the bail, that the writ of error was brought for delay. 4 Term Rep. 436. (in notes.) Declaration by bail. If a writ of error be brought on a nonsuit, the court If error be will not set aside the execution for costs, as there can be brought on a no error of which the plaintiff can avail himself, Kemp- nonsuit. land v. Macartley, 4 Term Rep. 436. 1 H. Black. 432. S. P. On a like motion, the court said, the practice not to stay the proceedings pending a writ of error must be confined to those cases where the party himself, his attorney or bail, declare that the writ of error is brought only for delay. Rule absolute. Levett v. Perry, 5 Term Rep. 669. It Judgment in debt on a recognizance of bail, defend- In debt, on ant sued out a writ of error, plaintiff proceeded. Rule the recogniwhy proceedings should not be staid, pending error. zance, pending error, appeared in the affidavit, that the defendant's attorney proceedings had said, that the reason why he had brought the writ of refused to be error was, that if Grant, the defendant, should pay the staid. money, pending the action, he should never get it again from Phillips (the defendant, in the original action,) but that while the cause was depending, he might prevail on him to settle it. Per Cur.-It is admitted, that when the party has declared that he brought the writ of error for delay, the court has refused to stay the proceedings. Now the expressions used in this case are equivalent to such a declaration. Rule discharged. Masterman v. Grant, 5 Term Rep. 714. Of Bail in Error. If error be brought, he that brings it must find substan- In what cases tial bail, according to the statute of 3 Jac. 1. c. 8. (made bail is to be perpetual by 3 Car. 1. c. 4. s. 4.) which enacts, that no given in error execution shall be staid by any writ of error, to be sued or execution may issue. for the reversing of any judgment given in any action or bill of debt, upon any single bond for debt, or upon any obligation, with condition for payment of money only, or upon any (b) action or bill of debt for rent, or upon any (6)8East, 241. contract sued in any court of record at Westminster, applies to obChester, Lancaster, Durham, or the courts of great sesligations for paymentof sions in Wales, unless such person, with two sufficient money only. sureties, shall first be bound unto the party for whom such Extends to judgment is given, by recognizance to be acknowledged in the same court, " in double the sum adjudged to be re"covered by the said former judgment, to prosecute the "said writ of error with effect; and also to satisfy and pay (if the said judgment be affirmed) all and singular "the debts, damages, and costs adjudged upon the for"mer judgment: and all costs and damages to be also "awarded upon the delaying of execution." See stat. 19 Geo. 3. c. 70. as to inferior courts of record. (a) A writ of error upon a judgment in debt upon recognizance of bail is a stay of execution, without bail being put 8 East, 240. Dell v. Wild, not being within the stat. of 3 Jac. 1. c. 8. This statute extends to all manner of judgments by dejudgment by fault, upon demurrer or nul tiel record, in the above default. Cannot ren der. No execution mentioned actions. By the nature of this recognizance the bail cannot render to prison the plaintiff in error in discharge of themselves, though he become a bankrupt, nor are they entitled to relief. 1 Term Rep. 624. Southcote v. Braithwaite. Where bail in error was put in vacation and excepted to, the plaintiff in error gave notice that they would justify on the first day of next term, and before that day non-prossed his own writ of error, and the bail did not justify held that the bail were not entitled to stay proceedings in an action against them upon the recognizance, nor have an exoneretur enter on the bail-piece. Dickenson, executrix of Hunt, v. Heseltine, 2 Maule and Selw. 210. Bail in error are not chargeable, in an action upon the recognizance, with mesne profits, where they have not been ascertained by writ of inquiry pursuant to 16 & 17 Car. 2. c. 8. No execution shall be staid in any of the courts of to be staid on Westminster, &c. upon any writ of error, after verdict, Ed. 6. unless and judgment in any action of debt on the statute of 2 Edw. 6. for not setting forth of tithes; nor in any action upon the case upon any promise of payment of money, actions for trover, covenant, detinue, and trespass, unless bail; nor action on the case, &c. (a) See rules 23 Eliz. & M. 6 & 7 Eliz. where the error ought to be shewn unto the justices of the Bench. |