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pros, which enables the plaintiff in the original action, to take out execution for the sum for which the judgment is recovered and the costs taxed thereon. But in this case the stat. 3 H. 7. c. 10. gives no costs in error. Salt, one, &c. v. Richards, 7 East, 111. But you may still proceed on the writ of error to obtain the costs.

bill.

N. B. In case the plaintiff's attorney has not filed a bill To file the to warrant his proceedings, it should now be done, and of the term the declaration is of (in case the judgment be by default or on inquiry.) If there be a verdict, it is unnecessary, as the want of a bill cannot be assigned for

error.

Until the transcript of the record is carried over to the Till the tranExchequer-chamber, all the proceedings hitherto men- script is carried over all tioned are in the court of King's Bench; but when the proceedings transcript is delivered over to Mr. Smith, the clerk of the remain in errors in the Exchequer-chamber, they are then in the court below, court above to which they are removed.

The defendant in error cannot transcribe the record.

1 Wils. 35. he must nonpros the suit.

Of Amendment after Judgment if Error brought.

When the transcript is returned and filed, the plaintiff in error may move to amend the writ of error, or the defendant in error may move to quash it, or it may abate, or be discontinued.

By stat. 5 Geo. 1. c. 13. all writs of error wherein there Variance. shall be any variance from the original record, or other defect, may and shall be amended and made agreeable to such record, by the respective courts, where such writ or writs of error shall be made returnable.

It seems no costs are to be paid on any amendment. No costs. Fitzgib. 201. 1 Str. 683. 2 Str. 892. Cow. 425.

A fault' in the writ of error was amended without. 2 Str. 863. So by striking out a plaintiff. Ibid, 892. The court may, when cause in the paper, amend ex officio. Ibid, 902, Ld. Ray. 1587. Barnard, 462.

In an action against two, one found not guilty, the Action against other had a verdict against him; the latter brought error two, one found in the name of both. Motion to quash it, motion at not guilty, the other guilty; same time to amend by striking out the name of defend- error brought ant, found not guilty; both rules came on together, and in names of

both, court ordered writ

to be amended.

Mistake in the name of de

fendant in

error.

No amend

ment if error returned before giving judgment.

Costs are allowed on quashing the

writ.

1 Wils. 88. S. P.

court ordered the amendment, and discharged the rule to quash. Verelst, Esq. & an. v. Rafail, Cowp. Rep. 423.

A mistake in the name of the defendant in error, who issued execution, this court granted a rule to shew cause why the sheriff should not pay the money levied on the execution into court, and enlarged that rule, in order to allow the plaintiff in error to amend his writ. 2 Smith R. 259.

But where writ of error was returnable before the giving of the judgment, on which it was brought, court held, this not to be amendable by the statute. 2 Stra. 807. Wright v. Canning, 2 Ld. Ray. 1531.

of quashing Error.

The general ground of quashing a writ of error, is some fault or defect therein, that is not amendable by stat. 5 Geo. 1. c. 13. and it seems the application ought to be made to the Exchequer-chamber wherein it is returnable, but it cannot be quashed in this court. Lloyd v. Skutt, Dougl. 352. see the note.

By stat. 4 Ann. c. 16. s. 25. Upon quashing any writ of error for variance from the original record, or other defect, the defendant in such error, shall recover against plaintiff his costs, as he should have had, if the judg ment had been affirmed, and in the same manner.

This statute is not confined to those cases only, where a variance from the original record was assigned as error; but extends to all writs of error by reason of the words in the statute or other defect.

It seems a writ of error may be quashed being brought by one defendant only, of a judgment against two, and 2 Ld. Raym. laid to the damage of one. Brewer v. Turner, 1 Str. 233. 8 Mod. 305. 5 Mod. 338. Salk. 319. 2 Str. 1110. by this court; and costs are given. Str. 606. 8 Mod. 305. It is said, a writ of error cannot be quashed till the transcript is returned and filed. Ld. Ray, 329.

1403.

But will not quash it if

But where a writ of error was brought on the statute of usury, returnable in the Exchequer-chamber; the court brought on a held, that this application ought to be made to the court of Chancery, or to the Exchequer-chamber, where it is returnable. Lloyd qui tam v. Skutt, Dougl. 352. And there it is said, on application to the Chancery, that court refused to entertain the question, but the court of Exchequer held that the writ of error lies to that court.

qui tam action returnable in Exchequer,

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If the writ of error be returnable before judgment signed it is good. 5 East, 145.

The court on motion will not quash a writ of error, though brought twenty-nine years after the judgment, for this would be to deprive the party of the benefit of replying the exceptions in the statute. 2 Str. 837.

If return be

fore judgment.

ter 29 years. If brought af

A writ of error having been quashed because brought Error by feme covert by a feme covert without her husband, the defendant in without huserror is entitled to costs under stat. 4 Ann. M'Namara v. band joining. Fisher, 8 Term Rep. 302.

See 1 Str. 139. 2 Str. 834. Barn. 270. where not liable to costs. Also see further on when the writ abates.

On a writ of error, the King's Bench sends only the The King's Bench only transcript to the Exchequer-chamber, and therefore sends a tranthe transcript must be brought back to the King's Bench script. to be amended by the original record.

v. Redstone.

Str. 837. Rutter

If there be any mistake of the clerk made in the transcript, the court above will order the transcript to be amended by it. Hard. 505. see 1 Wils. 337.

Mistake of the clerk in tran

script.

amendment.

As to an inferior court, costs are to be paid on amend- Costs on ment, provided the plaintiff proceed no further. 2 Ld. Raym. 897. Barn, 17. But if amendment be made after verdict by virtue of the statute of jeofails, no costs are given. Cas. temp. Hard. 314. The postea may be amended by the judge's notes after final judgment and error brought. 3 Term Rep. 749. So where damages are given for a greater sum than laid, and error brought, court will permit plaintiff to enter a remittitur, on payment of costs of the writ of error. 1 H. Black. Rep. 643. So where defendant pleaded the general issue, and statute of limitations, a verdict was found for plaintiff on the first issue, and no notice taken of the last; after error brought, and joinder (which was assigned on this point,) court allowed it to be amended, on payment of costs. 3 Term Rep. 659. Petrie v. Hannay. Vide another amendment, 349. So a judgment may be amended by changing it from de bonis propriis, to de bonis testatoris si, &c. after error brought. Short v. Coffin, 3 Burr. 2730. Dougl. 116. cited. So the name of the plaintiff's attorney in the warrant on the roll, so as to make it correspond with that of the declaration after error brought, and assigned for error. Richards v. Brown, 116. See Barnes, 18. 7 Salk. 51. 1 Str. 786.

To stay proceedings in action on judgment,

Of the Action on the Judgment pending Error.

If the plaintiff brings an action in the judgment pending a writ of error, and he has obtained judgment for want of a plea and execution on it, the court will on application stay the proceedings, as it would be unreasonable that the plaintiff should proceed in execution of a judgment which would of course fall to the ground, in case the original judgment upon which it was founded, should be reversed, and restrain also the defendant from bringing a bill in equity. Taswell v. Stone, 4 Burr. 2454.

In an action on the judgment pending error, the court held, that the defendant was not in a situation to make any application to stay the proceedings in the action until bail must first he had put in bail. Smith v. Shepherd, 5 Term Rep. 9. be put in and Determined in Bicknell v. Longstaffe, 6 Term Rep. 455. perfected, that he must perfect his bail first.

Acknowledg

delay.

On motion to stay proceedings pending error, it was ment of error sworn that defendant had acknowledged that the writ brought for of error which had been depending two years was for delay. Court ordered, that upon the defendant's confessing judgment in this action, and undertaking to bring no writ of error thereon, execution should be staid till the determination of the writ of error. And court said, that they could not make him undertake to waive his right in that respect. Gribble v. Abbot, Cowp. Rep. 72.

Pending second writ of

error, action on the judg

ment.

On death of plaintiff before affirmance, court

will refuse the judgment to be entered nunc pro tunc. If a second action be brought on

the judgment.

Error on a judgment, in C. P. afterwards error in parliament, they nonprossed the first writ of error, and motion to stay the proceedings in an action on the judgment pending the second writ. Buller, J.-It appears by the defendant's own conduct, that the writ of error has been sued out without any foundation for it. Rule discharged with costs. Entwistle v. Shepherd, 2 Term Rep.

78.

Where an action is brought on a judgment recovered in the King's Bench, and after judgment, the defendant brings error, and obtains a rule to stay proceedings in the mean time, and the plaintiff dies before judgment affirmed, the court will not permit judgment to be entered nunc pro tunc. Bates v. Lockwood, 1 Term Rep. 637.

If the defendant bring a writ of error in an action on the judgment, and plaintiff brings another action on the judgment, and recovers, he cannot sue out execution on

the second judgment, till the writ of error be determined. Benwell v. Black, 3 Term Rep. 643.

Of alledging Diminution.

delivered over

After the transcript is examined and delivered over to After made Mr. Smith, the defendant's attorney in error applies to up and exa him for a rule to allege diminution, which is to be done mined to be in eight days after service, or a nonsuit may be entered; to clerk of pay 8d. per folio, and 2s. 4d. for rule; serve a copy on the errors in the plaintiff's attorney, who must call at Mr. Smith's Exchequer. office, and pay the sum demanded; if not, he will require Rule to alaffidavit of the service of the rule to be tendered to him lege diminubefore he signs a nonpros (provided the attorney for the tion. defendant in error insists on a nonpros before he sends to the plaintiff's attorney); but if he sends, and there is no answer the next morning, he will sign a nonpros and tax the costs.

Roe

V.

In the Exchequer-chamber,

Unless the plaintiff in the writ of error alleges dimi- Rule to alnution, within eight days next after notice hereof lege diminuDoe. given to the said plaintiff, or his attorney, a nonsuit will be entered. Smith, clerk of the errors.

(a) Formerly a writ of diminution issued, which was not an original writ, but if issued out of the court of error to allege diminution, if the whole record is not certified, or not truly certified, the party injured may allege diminution of the record, and cause it to be rectified. But no diminution can be alleged on records out of inferior courts, Sid. 40. 7 Mod. 103. except Wales and county palatine, 1 Salk. 206. But the court may award a certiorari ad informandum conscientiam. Errors cannot be entered until the certiorari of diminution alleged, and the rule to assign errors is out.

nution. The names of the parties are now reversed.

If the writ of error be returnable the first day of term, If return first the plaintiff in error is to transcribe the same term, allege day of term, diminution the term following, assign errors the next when to tran

(a) Diminution is either of the body of the record or of its out-branches, as of the original writ, warrant of attorney, &c. and after alleged, a certiorari issues to certify all the record.

scribe.

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