A test. fi. fa.

in case on a judgment affirmed in parliament.

may be in all things affirmed, &c. but because our said
lord the king in his parliament aforesaid, is not yet ad-
vised what judgment to give of and concerning the pre-
mises, a day is therefore given to the said parties here,
until
wheresoever, &c. to hear their judgment
thereon; for that the court of our said lord the king, in
his parliament aforesaid, is not yet advised thereof, &c.

George the third, &c. To the sheriff of Middlesex,
greeting whereas we lately commanded our sheriffs of
London, that they should cause to be made of the goods
and chattels of C. D. late of
Esq. the sum of
1. which A. B. Esq. lately in our court before
us at Westminster, by our writ, and by the judgment of
the same court, recovered against the said C. D. for his
damages which he had sustained, as well by reason of
the not performing certain promises and undertakings
made by the said C. D. to the said A. B. as for his costs
and charges by him about his suit in that behalf ex-
pended, whereof the said C. D. was convicted, as ap-
peared to us of record in our said court before us, and
also
1. which to the said A. B. in our court of
parliament, according to the form of the statute lately
made and provided, were adjudged for his damages, costs
and charges, which he had sustained on occasion of the
delay of the execution of the judgment aforesaid, on pre-
tence of prosecuting our writ of error brought there-
upon by the said C. D. against the said A. B. the said
judgment being in our said court of parliament in all
things affirmed: whereof the said C. D. is also convicted,
as by the inspection of the record and proceedings
thereof remitted from our said court of parliament into
our court before us, appears likewise to us of record,
and that our said sheriffs of London should have the
aforesaid monies before us at Westminster, at a certain
day now past, to render to the said A. B. for his da-
mages, costs, and charges, aforesaid: and our said sheriffs
of London have returned to us, that the said C. D. had
not any goods or chattels in their bailiwick, whereof they
could cause to be levied the said damages, costs, and
charges aforesaid, or any part thereof; whereas, it is suf-
ficiently testified in our said court before us, on the be-
half of the said A. B. that the said C. D. hath sufficient
goods and chattels in your bailiwick, whereof you can
cause to be levied the said damages, costs, and charges,
aforesaid, and every part thereof: therefore we command
you, that of the goods and chattels of the said C. D. in your
bailiwick, you cause to be made the aforesaid sums of

E

on

1. and 1. for the damages, costs, and charges aforesaid, and that you have the said monies before us, wheresoever, &c. to render to the said A. B. for his said damages, costs, and charges aforesaid; and have you there also this writ. Witness Edward Lord Ellenborough, at Westminster, the day of in the 52d year of our reign.

Law and Markham.

When the Writ of Error abates.

A writ of error may abate by the act of God, the act of the law, or the act of the party.

error dies.

If plaintiff in error dies, before errors assigned, the writ If plaintiff in abates; and the defendant in error may thereupon sue out a scire facias quare executionem non, to revive the judgment against the executors, &c. 2 Cromp. 401. 7 East, 270.

If defendant

It does not abate by the death of the defendant in error, dies before or whether it happen before, or after errors assigned. 1 Salk. after error as

264.

signed.

plaintiffs, and

If there be several plaintiffs, and one dies, the writ shall If several abate, Il Co. 135. 1 Vent. 34. 1 Salk. 261. before errors assigned. But if there be several defendants in error and one dies, it is otherwise. 1 Ld. Ray. 439. 1 Salk. 264. In this case the death being suggested on the roll, the writ proceeds against the survivors.

one die. If several defendants.

By the death of the chief justice, it is said, before he By death of has made or signed his return, the writ becomes ineffec- C. J. tual, and the defendant in error by leave of the court, may take out execution. Barnes, 201. See 1 Keb. 658. Bankruptcy is no abatement. 1 T. R. 463.

If there are several plaintiffs, and one dies, the writ
shall abate. 11 Co. 135. 1 Vent. 34. 1 Salk. 261. 1 L.
Ray. 244. Contra if there be several defendants.
Ray, 439.

Ld.

The plaintiff in error married, whereby her writ abated; Marriage. court gave defendant leave to take out execution with

out time to bring error coram vobis. 2 Str. 1015. Jenkins

v. Bates.

A writ of error was allowed in parliament, and before If plaintiff in it was returned and certified, the plaintiff in error died, error dies. execution issued without leave of the court. Motion to set it aside, and the rule was made absolute. Lord Kin

naird v. Lyal, 7 East, 296. See 1 Ld. Raym. 244. Barn. 201. Carth. 404. 1 Salk. 319. And in this case the court refused leave for the plaintiff here to issue a testatum, fi. fa. tested in the last term, on the return day of the original fi. fa. which was after the allowance and service of the writ of error. Ibid, 237.

If errors are assigned before defendant in error's death, the executor must proceed as if defendant was living, till judgment is affirmed, and then revive by scire facias; but cannot take out execution pending the writ of error. Barnes, 432. Wright v. Treweeke.

Of a second Writ of Error.

Where a writ of error abates by the act of God, as by the death of the parties, or chief justice, or by the act of law, a second writ of error is a supersedeas of itself, 1 Vent. 353. without motion or leave of the court.

And after abatement or discontinuance of a writ of error coram nobis, no bail is requisite. 2 Cromp. 396. But this must be understood, where a second writ of error is brought after an abatement by the act of God, or of the law; for where error is granted for insufficiency, a writ of error coram nobis, is not a supersedeas of itself. 1 Ld. Ray. 151.

But the court on motion will order that upon bail being put in and justified within four days, further proceedings shall be staid on the judgment on the original action, until the error be determined. 2 Ld. Ray. 1404. Carth. 370.

But where the writ abates by the act or default of the party, a second writ of error brought in the same court is not a supersedeas of execution as the first is. 1 Salk. 263. as where plaintiff in error marries, or nonprosses his own writ, and execution may be sued out in these cases, without leave of the court. 8 East, 412. Birch v. Triste. But on a writ of error coram nobis, execution taken out without leave of the court, is irregular. Say. Rep. 166.

The case of Birch v. Triste, was where bail in error was required, the plaintiff failed in perfecting his bail, and nonprossed his own writ, the plaintiff sued out execution, without applying to the court for leave, and it was held regular. 8 East, 412. see 1 Mod. 285. 1 Salk. 263.

Of Costs in Error.

firmed or non

When the judgment is affirmed, or writ of error non- If error be afprossed, the defendant in error is entitled to costs, and prossed, damages, by stat. 3 H. 7. c. 10. & 19 H. 7. c. 20. By the double costs. former, it is enacted, that if any defendant, or tenant, against whom judgment is given, or any other that shall be bound by the judgment, sue before execution had, any writ of error, to reverse same, if the judgment be affirmed, or the error be discontinued in default of the party, or the plaintiff in error be nonsuited therein, the person against whom the writ of error is sued, shall recover his costs and damages for delay, by discretion of the justices before whom the writ of error is sued; see Dougl. 561. n. 5. As to the word justice, the other statutes recite the former, and enacts that it shall be thenceforth put in execution. Upon these statutes, costs and damages are recoverable, in error for delay of execution, though none were recoverable in the original action. 2 Str. 1084. Cro. Eliz. 617. 659.

It appears that at common law no costs were given upon any writ of error. 1 Str. 617.

By the 13 Car. 2. c. 2. st. 2. c. 2. s. 10. If the judg- Affirmance. ment be affirmed, the plaintiff shall pay to the defendant in error his double costs. This statute does not apply where the defendant below obtains judgment upon a special verdict, 5 East, 545. Bell v. Potts. The statute is confined to cases where the judgment so affirmed, is for the plaintiff below.

By 8 & 9 W. 3. c. 11. s. 2. If a verdict be given for the defendant in any action, &c. in any court of record, and the plaintiff shall sue any writ of error to annul the judgment, and the same shall be affirmed, or the writ of error be discontinued, or the plaintiff be nonsuit, the defendant shall have judgment to recover his costs against the plaintiff, and have execution for the same by ca. sa., fi. fa., or elegit.

If verdict be for defendant,

&c.

Judgment for A judgment for the plaintiff was given in the C. P. on plaintiff on a special verdict in assumpsit, which was reversed on special verdict error brought in the K. B.; it was held, that the de- in assumpsit, fendant was entitled to his costs of the defence below, but to no costs of the writ of error. Gildart v. Gladtone, 12 East, 668. see Carth. 254. 1 Salk. 268. S. P.

reversed, on error brought, costs of defence, but none in error.

Same point on error in fact.

Though no costs in original action, yet there

must be costs

in error.

Exchequer must give double costs.

Executors.

Avowant not entitled to costs or interest.

Costs on quashing.

How to get a

A judgment for plaintiff was reversed on error in fact brought by defendant; court held, that the plaintiff in error was entitled to costs in the original action, though not to the costs in error. H. 40 Geo. 3. Tidd, 1101.

Therefore upon the reversal of the judgment each party must pay his own costs, and so upon a bill of exceptions. 5 East, 49.

Error of a judgment, on the statute of usury, on af firmance, it was held, that though no costs were given in the original action, yet the court declared that the defendant in error was entitled to the costs by the express words of 3 H. 7. c. 10. Str. 1084. Ferguson v. Rawlinson qui tam. Cro. Eliz. 609. 1 Vent. 31.

The court of Exchequer-chamber is bound to allow double costs to the defendant in error, on the affirmance of the judgment of the court of King's Bench. Shepherd v. Mackreth, 2 H. B. R. 284.

If an executor brings error upon a judgment against his testator, and after affirmance moves to pay principal, interest, and costs, he shall not pay costs in error, Str. 1072. Rep. temp. Hardw. 367. 1 Vent. 166. 1 Mod. 77. But if after a devastavit, he brings error, he shall pay costs on affirmance. Str. 977. Cazwell v. Norman.

An avowant is not a plaintiff within 3 H. 7. and is not entitled to costs or damages on the affirmance by a court of error of a judgment in his favour. Carth. 122.

4 Mod. 7. 1 Salk. 25. 205. 10 East, 2. S. P.

Costs on quashing writs of error, are to be given in all cases. Str. 606. 8 Mod. 305; 4 & 5 Ann. c. 16. but on an amendment of the writ.

This court will not refer it to the master to tax plaintiff his costs in error, in parliament, on a judgment affirmed in error in dom. proc. without awarding costs, and remitted to this court, to the end that such proceedings may be had thereon, as if no such writ of error had been brought. 2 Maule and Selw. 204.

Inrolling Deeds.

The deed intended to be inrolled must be taken to deed inrolled. a judge; if it be a bargain and sale, one of the parties must acknowledge his execution of the deed, either in court or before a judge at his chambers; but if the deed requires the judge's fiat only, then the party need not