If it appear 1001. as we have been informed. Therefore we command you That of the goods and chattels of the said A. in your bailiwick you cause to be made and levied the said ICOL and have you that money before us, on where soever, &c. to restore to the said J. the said 1001. so adjudged to him, by our said court before us, upon the reversal of the said judgment; and have there this writ. Witness, &c. Where the money appears upon the record to be levied party is paid. and paid to the party, the defendant shall have restitution without a sci. fa. Salk. 588. If judgment is reversed, the party shall be restored to all that he has lost, and a writ of restitution shall be awarded. 2 Cro. 698. Vide 4 Mod. 161. as to the value sold for. If the money is levied and not paid, a writ of restitution shall not go against the sheriff without a sci. fa. Salk. 588. Error quæ coram nobis, &c. resident. This writ lies to the same court in which the judgment was given. If a judgment in this court be erroneous in matter of fact only, and not in point of law, it may be reversed in the same court by writ of error coram nobis, or quæ coram nobis resident; so called, from its being founded on the record and process, which are stated in the writ to remain in the court of the lord the king before the king himself; as where the defendant being under age, appeared by attorney, or the plaintiff or defendant was a married woman, at the time of the commencing the suit, or died before verdict, or interlocutory judgment; for error in fact is not the error of the judges, and reversing it, is not reversing their own judgment. Salk. 145. 1 Sid. 208. In the Common Pleas, the record and process being stated to remain before the king's justices, the writ of error is called a writ of error coram vobis, or quæ coram vobis resident. This writ does not lie in this court after affirmance, or in the Exchequer-chamber. 2 Str. 949, 975, 690. It is said, I Lill. Pract. Reg. 710. & 2 Cromp. 394. that the statutes requiring bail in error, do not extend to this writ. But the practice of this court is, after verdict, bail is required, to prosecute the writ with effect, and if the judgment be affirmed, that the bail pay the damages and costs awarded, by the delay of the execution. In the case of Birch v. Triste, Lord Ellenborough says, Not of itself in error of matter of fact coram nobis, which is not within supersedeas in the first in Carth. 368, the statutes requiring bail in error, the writ of error is not stance. The cursitor will not make out this writ, unless he has There must be an affidavit sworn before a master in Chancery of the age an affidavit of the infant, and a copy of the register of baptism, taken made to obfrom the register book, and examined by the person who tain the writ. swears to it, that it is a true copy. So if feme covert 5 brings this writ. The usual way to apply for this writ is to give the How to apcursitor of the county where the venue is laid, the decla- ply. ration, and make him a præcipe for the writ, thus: Middlesex to wit. Writ of error de coram nobis between John Doe plaintiff, and Richard Roe defendant, in case on a judgment for the plaintiff by default (or on a judgment J. K. attorney. for plaintiff on verdict.) When you have obtained it, in case the judgment be by default, no bail is required, take it to the master in court, who will allow it, pay 2s. 6d. then he gives it to the clerk of the rules, who draws up the rule for the allowance, who will return you the writ of error, serve the same on the opposite attorney, which rule operates as a supersedeas to the plaintiff's execution. But if bail should be required (as after verdict) then If bail be rewhen you have obtained the writ from the cursitor, take quired. it to Westminster-hall, to the master, who will allow the same, and return it to you, pay 2s. 6d. who gives it to the clerk of the rules; in the evening go to the clerk of the rules, and he will draw up the rule for its allowance, in the original names of the plaintiff and defendant; and return you the original writ of error; serve a copy of rule on the opposite attorney, then apply to the clerk of the errors of this court, Mr. Smith, with the names and additions of the bail in error and the writ, and he will enter them in his book, and take the bail before a judge; when Rule for allowance. Rule to assign errors. (b) See Tidd's Forms, 509. Fitz. N. B. 45, 7 ed. If error be well assigned. they have entered into the recognizance give notice to the opposite attorney, and also give notice to justify as in other cases within the time limited by the rule. I think it would be best to give two days notice to put in and justify bail, and speak to the clerk of the errors to attend at Westminster-hall at the sitting of the court to take the same; counsel moves to justify as in other cases, and the rule for the allowance of the bail is drawn up and served as usual. N. B. The notice of bail and justification are to be intituled in the original causes you are to keep the writ of error, as you will have occasion to enter it on the roll when the issue is joined. The roll of the original judgment need not be brought into court for the allowance of the writ of error. This writ never was allowed in vacation as I can learn. It is ordered, that the writ of error issued between the parties in this cause be allowed: and (upon the plaintiff in error putting in and justifying his bail within four days next ensuing,) that further proceedings be staid on the judgment in the original action until the said writ of error now depending between the parties be determined. (a). An infant ought to have a guardian appointed by the court to prosecute the writ, as in other cases, before assignment of errors: vide Coke's Entries, title Error; and he should assign them by guardian. When the writ is returnable, apply to the master for a rule to assign errors, which he will give in this form: A. B. v. C. D. "Unless the plaintiff in error assigns errors within four days next after notice given to him "or his attorney, a nonpros may be signed," which take to the clerk of the rules to enter, pay 3s. he will write the word "entered" upon it; serve copy on the attorney. (b) The error to be assigned must be of a fact only. To the assignment of infancy the defendant in error may reply, both of which are to be signed by counsel. The assignment of the errors in the first instance, does not take notice of the writ of error, nor in the replication. (a) The recognizance of bail is to prosecute the writ of error with effect, if judgment be affirmed, and to pay the damages and costs awarded. If the error be well assigned, and the defendant in error would put in issue the truth of it, he ought to deny the fact, and join issue, and not say in nullo est erratum, for by so doing he acknowledges the fact to be true. 1 Lev. 204. 2 Saund. 101. When the replication is delivered, the attorney for the When the redefendant in error makes up the issue from an office copy be delivered. plication is to of the original roll carried in, obtained from Mr. Edge as in Mr. Tidd's Forms 550. ingross same on a 4d. stamp paper, and deliver it with notice of trial, as in usual cases. Then make up the record of nisi prius, which is an How to make exact copy of the issue delivered, adding a new placita up the record. at the foot, and a jurata calling it, in a plea of error. Enter the issue with Mr. Clarke, and pass the record as in other cases; sue out a venire, and distringas, and set down the cause with Mr. Platt at the chief justice's chambers; if the verdict be for the plaintiff in error, the postea is entered by Mr. Edge with the assignment of errors and replication, postea and the judgment thereon at the foot of the original roll. 1 Ld. Ray. 151. Carth. 369. Cro. Eliz. 755.281. After verdict, the party for whom it is found, must How to promove to put the cause in the paper for argument, and ceed after verthen on producing the postea, the court will give judg- dict. ment according to the finding. See Tidd, 1090. On error in fact, the record may be carried down by the defendant in error without a proviso. See 2 Lev. 5. Error in Parliament. (a) turnable. A writ of error that is brought in parliament is made When a writ returnable immediately, or upon a prorogation ad proxi- of parliament mum parliamentum, because that court during the session is made reof it sits continually, and has no vacation, and it is for the honour of that high court to be immediately attended, that they may do the speedier justice. The proceedings there are very expeditious, there being no scire facias quare executionem non; but when the transcript is (a) It is not to be allowed without the king's warrant. God. 247. How to sue it out. Allowance. If bail be re proceed. brought in on a motion in the house by a peer, a day is appointed for the plaintiff in error to assign his errors, and after issue is joined on in nullo est erratum, upon another motion, their lordships appoint a day for hearing the errors; at which day both parties must attend with their counsel, but neither party must have more than two. Sty. Pract. Reg. 235. The writ is made out by the cursitor of the county where the venue is laid: pay him 61. 15s. 6d. if no private seal, and the cursitor procures the warrant from the king: make a præcipe for it, take it to Mr. Smith's office, and he will allow it, pay 41. a copy of which serve on the attorney for plaintiff in the original action. If bail is required, it is to be put in before a judge of quired, how to the King's Bench, apply to Mr. Smith for that purpose, and give notice thereof; if the defendant in error is dissatisfied, he may have a rule for better bail at Mr. Smith's, serve copy, the opposite attorney then gives notice of justification, apply to Mr. Smith to bring down the book, give affidavit of service of notice to counsel to move to justify, draw up the rule for the allowance at the clerk of the rules, and serve copy. As soon as parliament sits, get a rule to transcribe at Mr. Smith's office, serve copy on the defendant's attorney, leave the pleadings with Mr. Smith, the clerk of the errors to transcribe, who will send to plaintiff in error for the money; when the transcript is examined, the chief justice of the King's Bench goes in person to the House of Lords, with the record itself, and a transcript which is examined previous and left by the chief justice, but the record is brought back again into the King's Bench: (his fee is 41.) and if the judg ment be affirmed, that court may proceed on the record to grant execution. 2 Bac. Abr. 203. 4 Inst. 21. Dy. 375. 1 Roll. 753. 1. 20. 2 Cro. 341. Godb. 247. Mr. Smith attends the chief justice to the house. New bail to be given on error in Parliament, If on a judgment in the Common Pleas a writ of error be brought in the King's Bench, and bail be put in thereon, and the judgment thereon be affirmed, and afterwards a writ of error be brought in parliament, the party must give a new recognizance, for the first does not include the costs to be given in the House of Lords. Salk. 97. Str. 527. Colebrook v. Diggs. Serving the bail below with a writ on the recognizance pending the writ of error, is a contempt and breach of privilege. Peer W. 685. |