such recognizance shall be first acknowledged. 13 Car. 2. s. 9. Sect. 11. provides, That it shall not extend to actions Does not expopular, or on penal statutes, indictments, &c. other than tend to popu the statute of Ed. 6. lar actions. By 16 & 17 Car. 2. c. 8. s. 3. (made perpetual by stat. No execution to stay after 22 & 23 Car. 2. c. 4.) "No execution shall be staid after verdict, in any "verdict and judgment in any personal action whatso- action person"ever, unless a recognizance be entered into according al, unless bail, "to the 8 Jac. 1. c. 8." This does not extend to any writ of error to be brought Not to extend by any executor, &c. nor to any action popular or penal to executors. (except debt for tithes.) Sect. 5. That in writs of error on any judgment after verdict, In dower and in dower, or ejectione firma, no execution shall be staid, ejectment, unless the plaintiff shall be bound in such reasonable sum given by as the court shall think fit; with condition, that if judg- plaintiff himment shall be affirmed, or the writ be discontinued, in self. default of the plaintiff therein; or that the said plaintiff be nonsuit, that then the plaintiff shall " pay such costs, "damages, and sums of money, as shall be awarded "after such judgment affirmed, discontinuance or non "suit had;" and the court shall issue a writ to inquire Court shall as well of the mesne profits, as of the damages by any issue a writ to waste committed, after the first judgment in dower, inquire, &c. or in ejectione firma; and upon the return thereof, judgment shall be given, and execution awarded for such mesne profits, and damages, and also for costs. s. 3. (a) lue. A recognizance in error in ejectment ought to be in Two years vadouble the improved rent, and single amount of costs of ejectment. Vide 4 Burr. 2501. 8 East, 298. Barnes, 103. and double costs. Ibid. The defendant may give two sufficient sureties if he Two sureties, please in ejectment. if he please. The same persons who were bail in this court, may justify again upon a writ of error in parliament. Martin v. Justice, 8 Term Rep. 369. The case of 1 Str. 527. only means, that bail must justify again upon the new writ of error. So Salk. 97. 2 Ld. Ray. 840. Same persons who were bail below may be again bail. (a) Cannot examine the plaintiff in error as to his sufficiency. 8 East, 299. Keene v. Deardon. An infant or feme covert must find bail. Ibid. Does not extend to error coram nobis. Executors where the judgment is de bonis propriis, must put in bail. In error on The statutes requiring bail in error, do not extend to the writ of error de coram nobis. 2 Cromp. 394. If judgment be against an executor or administrator de bonis propriis, and he brings error, he must put in bail and pay costs on affirmance; but if judgment be de bonis testatoris only, he shall neither put in bail nor pay costs. 1 Lev. 245. 1 Sid. 368. On a judgment in debt on a bond in the penalty of 14701. it was moved to justify bail, each in 14701. on the judgment in debt on bond, other side it was insisted, that the bail ought each of bail bound in them to justify in double the sum the judgment was given the sum reco- for. But per Curiam---The sum recovered is double the vered, it being debt really due: and it is sufficient for the bail to justify in 14701. 1 Wils. 213. Moore v. Lynch. double the sum due. What bonds bail. There must be bail on a bottomry bond, Str. 476.; on that require a second writ of error, Ibid, 527. ; also on a bond given for the payment of 5001. being the sum mentioned in certain indentures, Ibid. 959. on bond for 3001. mentioned in a surrender of a copyhold, by way of mortgage, wherein judgment had passed by default, Barnes, 78; upon a bond conditioned to pay so much as I shall appoint, 1 Lev. 117. A bond given by A. to B. to pay a sum certain (the debt of C.) by instalments, the last whereof is still future, is an obligation for payment of money only, and within the stat. 2 Burr. 746. Chauvet v. Alfray. Bonds that require no bail. Bond for another's debt. When not requisite. But not on a bond for the performance of covenants, though for the payment of money also, Barnes, 72; 10 East, 407. nor if conditioned to pay for so much beer as should be delivered to S. not exceeding 1001. after judgment upon demurrer, Str. 1190. 1 Wils. 19.; nor upon a bond for performance of an award, nor on an obligation to indemnify; agreed by counsel on both sides. Com. Rep. 322. 2 East, 359. 7 T. R. 449. Error on a bond, conditioned that W. G. was bound with the defendant, for his debt, by bond of the same date, to pay 511. 10s. to Lat. Ridley, 30th October, in discharge of the recited obligation; it was held that bail ought to be given. Comyn's Rep. 321. Huddy & ux v. Gifford. Bail is not requisite on bringing a writ of error on judgment in an action of debt, founded on a prior judgment. 3 Burr. 1545. Biddleson v. Whytel. Nor on judgment in an action of debt, upon a recognizance of bail in error. Ibid. 1565. It does not appear that this was determined. See 8 East, 240. ! Nor in an action of debt for goods sold and delivered, Nor in debt for goods sold. and an account stated. 7 Term Rep. 449. Alexander v. Biss. See Yelverton, 227. 2 Bulstr. 53. Nor in debt on a count on a promissory note. Frier v. Bridgman, 2 East, 359. And if there be one count, in the declaration on which judgment is entered upon a cause of action for which debt would not lie at the time of the stat. 3 Jac. 1. no bail in error is required. Ibid. 360. Lord Ellenborough. (a) Nor in debt on a promis sory note. estate and The condition of a bond was to convey an estate, on If bond be which oyer was craved; but defendant suffered judg- conditioned to ment to go by default: on a question whether there should convey an be bail on the writ of error, the court held that the ques- judgment by tion was properly examinable by affidavit, and that default, no plaintiff ought to make it appear that the bond was bail in error. within 3 Jac. 1.; and on affidavit of the defendant that the bond was conditioned to convey the estate, court held, that bail was not requisite. Bennett v. Aylett, Trin. 32 Geo. 3. How to sue out a Writ of Error upon a Judgment in the King's Bench, by Bill, returnable in the Exchequerchamber. (b) A writ of error, like a sci. fa. is considered as a new action, and therefore upon bringing it, the defendant in the original action may change his attorney, without obtaining a judge's order for that purpose. 7 T. R. 337. Batchelor v. Ellis. To obtain a writ of error make out a præcipe or notę of instructions, containing the names of the plaintiff, and defendant, in the original action, state the nature of the action, as case, debt, &c. and the judgment, whether on verdict or inquiry, and the court in which the cause is instituted, and take the same to the cursitor of the (a) But if judgment be affirmed on a writ of error in K. B. or Exchequer Chamber, new bail must be given upon bringing error in parliament. 1 Sul. 97. 2 Ld. Ray, 840. 7 Mod. 121. 1 Str. 527. (b) The writ of error must be made returpable after When to be judgment given, or not amendable. 2 Str. 807. 1 Term returnable. Rep. 979. Jacques v. Nixon. Præcipe for writ of error. A new attorney may do this. As to getting sealed. Allowance. When writ of error return- the errors. If sued before signed as upersedeas. county, where the venue is laid; also take the declaration with you to shew to the cursitor the right names. Middlesex. Writ of error between John Brown plaintiff, and Charles Denn defendant, on a judgment in a plea of trespass on the case, (on verdict for the plaintiff, or on inquiry as the case is) given in the court of King's Bench, by bill returnable in the Exchequer-chamber. J. K. attorney. The defendant in the original action, need not obtain a judge's order to change his attorney, on bringing a writ of error. Batchelor v. Ellis, 7 Term Rep. 337. The cursitor will make out the writ, and seal it at the next seal, or if you are pressed for time, he will seal it at a private seal. Pay for writ of error at a general seal, 11. 10s. 6d. and 8s. 6d. more by private seal; when sealed, then take it to Mr. Smith's office at Lord Ellenborough's chambers, who will allow same, pay him 21. He makes out the allowance thus, Between John Brown and Charles Denn; Case. I have allowed a writ of error in this cause, this Clerk of the errors. Make an exact copy of it, and serve same on the plaintiff's attorney in the original action, and at the same time shew him the original, and from that time it is a supersedeas of all proceedings in the original action, provided it be regularly proceeded in. day of 1812. Ordered, that writs of error, returnable before the justices of the Common Bench and the barons of the Exchequer-chamber, shall without delay be delivered to the clerk of the errors for the time being; and that no person shall be found to forbear suing out execution, on pretence of any such writ of error, before the writ shall be delivered to the clerk of the errors. R. E. 36 Car. 2. When a Supersedeas. A writ of error sued out before final judgment signed, final judgment continues in force during the whole term in which it is returnable. 5 East, 145. Somerville v. White, 1 N. R. 298. And if final judgment be signed at any time durng that term, it is a supersedeas, or a stay of execution from the time of signing it, 1 Str. 362. provided bail is put in (when requisite) within four clear days after final judgment is signed. And the court have gone so far, that if a writ of error be sued out and allowed, and the plaintiff do not sign final judgment till a subsequent term after the return of the writ, and then take out execution in order to avoid the effect of it, they would set it aside. Howston v. Howston, T. 28 Geo. 3. After final judgment signed, and before execution is- Tidd, 1045. sued, this writ is, generally speaking, a supersedeas of execution from the time of its allowance, (provided bail be put in in due time.) But in order to bring the attorney into contempt for proceeding after allowance, he must have had actual notice of it. 1 Burr. 340. 1 Term Rep. 280. and the allowance is notice of itself, ib. And a writ of error is so absolutely a supersedeas, that So absolutely after it is allowed the plaintiff cannot take out a ca. sa. a supersedeas against the principal, and get it returned non est inventus, after allowed, that a ca. sa. in order to proceed against the bail. 2 Str. 867. Nor if cannot be tthe ca. sa. be sued out before, can the plaintiff call for en out, nor a return after the allowance of a writ of error. 1 East, call for a re662. even though it has previously lain four days in the turn. office. 3 Term Rep. 390. An execution being an entire thing, cannot be super- After execuseded after it is once begun; therefore if execution be tion once executed before a writ of error allowed or notice, it executed, it may cannot be sube returned afterwards. But so long as it is executable, but not executed, the allowance of a writ of error is a supersedeas, but not afterwards. 1 Salk. 321. perseded. In cases where special bail is required on writs of error, Bail to be put it is ordered, that unless the plaintiff upon such writ of in within four error shall, within four days after the delivery thereof days. to the clerk of the errors, put in bail according to law, the defendant may proceed to execution, notwithstanding such writ. R. E. 36 Car. 2. Vide E. 16 Car. 2. Cases. Judgment signed 30th April, plaintiff sued out a fi. fa. When it is a 3d of May, a writ of error was allowed and served on the supersedeas. agent, and on the under-sheriff the 5th May; the sheriff entered the same day, but after the service of the allowance; no bail in error was put in. Rule why fi. fa. executed, should not be set aside for irregularity. Ashhurst, J. If the writ of error had been followed up immediately by the plaintiff in error regularly putting in bail, it would have operated as a supersedeas; but no bail having been put in, the writ of error became a nullity, therefore no foundation for the application. Lane v. Bacchus, 2 Term Rep. 45. Rule discharged. |