Of the final Judgment in Partition.

PON the foregoing return to the writ de partitione facienda, the judgment of the court is,

it is confidered, that the aforefaid partition be holden firm and effectual for ever, &c." And therefore this judgment, when made by writ after the appearance of the party, fhall not be defeated. Co. Lit. 168. b. 171. a. even though made against a feme covert - Ibid.or though not equalIbid. or though not equal, and any one of the parties bean infant. Ibid.

And fo by the flat. 8 & 9 W. 3. c. 31. If made without the appearance of the tenant, if he does not appear within fifteen days after the return of the attachment, where an affidavit was made of notice to the tenant forty days before the return of the writ, and a copy of it left with the occupier of the land.

But by the fame ftatute, if judgment be in a writ of partition, without the appearance of the defendant, upon motion fhewing a probable bar, or that the demandant hath not title to fo much, within a year after judgment, or (if the party was an infant, covert, nonfane, or out of the realm after the inability is removed,) the court may order the defendant to plead, &c.

Or if the demandant's title be admitted, but the partition appears unequal, the court may award a new partition.

288

A

Df Error.

Writ of error lies for fome mistake or fuppofed mistakes in the proceedings of a court of record; for to amend errors or mistakes in a base court, not of record, a writ of falfe judgment lies; of which hereafter.

A writ of error is a writ of right in all cafes but felony and treafon, Salk. 504. and may be had against the king.

Error lies either in the fame court where the judgment was, or in a fuperior court It lies in the fame court where the judgment was given, when the error was not for any fault in the court, but for fome defect in the process of the cause, other than in the judgment, or for default of a continuance, Dy. 196. a. or for default in adjudging execution, I Rol. 176. 7 H. 6. 30. Yelv. 157. F. N. B. 21. I. as for misprifion of the clerk, or for error in fact; and there the writ may be in the fame court, 1 Sid. 208. except where it was in the Exchequer. 3 Lev. 38.-But if there is error in law, or in the judgment of the court, then the writ lies to a fuperior court-And fuch writ of error only lies upon matter of law arifing upon the face of the proceedings; fo that no evidence is required to fubftantiate or fupport it: For if there has been an error in the deterinination of the facts in the caufe, which it was the province of the jury to determine, the method of obtaining redress in fuch cafe, is not by writ of error, but by an attaint of the jury, or appealing to the juftice of the court to grant a new trial, in order to correct the mistakes of the former verdict. A writ of error lies from almost all inferior courts of record in England into the King's Bench. But error does not lie from any inferior court of record in England into the Common Pleas, except in two or three cafes; for which, vide Com. Dig. Bac. Abr. &c. But the better opinion feems to be, that error lies not into C. B. in any cafe.

Of

Of Proceeding in Error from inferior Courts.

*

F there is error in the proceedings of an inferior court of record, application must be made by the plaintiff in error to the curfitor for a writ of error, which writ may bear tefte before the judgment given; and this is the ufual courfe for preventing and fuperfeding the execution; but then judgment below must be given before the return of it. 3 Keb. 308. Vent. 96. Latch. 133. For if it fhould be made returnable before judgment given, it is such a fault as is not amendable. Stra. 807.

Upon a fhort abftract or præcipe delivered, the curfitor will make out the writ of error returnable in B. R. as that court has, by its conftitution, a fuperintendency over all inferior jurifdictions.

As foon as the writ is made out, the party who fued it muft carry it to the prothonotary of the inferior court, and get it allowed; and if execution fhould have been fued out, that officer. will also grant a fuper fedeas to the fame; but if no execution fhould have iffued, the allowance of the writ of error is of itself a fufficient fuperfedeas, and no execution

can then be taken out.

Upon a writ of error to remove the record from an inferior court, the party removing it need not formerly have put in bail below; for the ftatutes requiring bail upon profecuting error, did not extend to the inferior courts of record. But now, by the ftat. 19 Geo. 3. c. 70. f. 5.

"No

execution shall be stayed or delayed, upon or by any writ "of error, or fuperfedeas thereon to be fued, for the reverf

ing of any judgment in any inferior court of record "where the damages are under 107. unless such person or "perfons, in whofe names fuch writ of error is brought, "with two fureties, such as the inferior court shall ap

prove, before fuch stay made, or fuperfedeas awarded, be "bound unto the party for whom fuch judgment was given "in a recognizance to be acknowledged in the fame court "in double the fum adjudged to profecute fuch writ of er"ror with effect; and pay (if the judgment is affirmed or writ of error nonprofled) all the debt, damages, and

66

*It is a certain rale, that all the parties to the fuit below, muft, in all cafes of error, be made parties alfo in the writ of error; and in cafe of the death of a party, he must be named, and his death alledged in the avrit. And if one refutes, he should be fummoned and fevered. Carth. 7. Stra. 606.

VOL. II.

U

" cons

Of Proceeding in Error from inferior Courts,

"cofts adjudged; and all cofts and damages awarded for "the delaying of execution."

On the return of the writ of error, the defendant in error fhould ferve the plaintiff in error with a rule out of the inferior court to tranfcribe the record, who, upon fervice thereof, fhould befpeak the tranfcript of the record of the proper officer below, and carry the fame into the office, and file the fame, if in B. R. with the figner of the writs. The officer who is to receive and deliver out writs of error and certiorari, &c. now Mr. Heberben.

The tranfcript fhould be filed before the fecond feal or the defendant in error may apply and get a certificate from the office, that the writ of error is not returned, and the tranfcript brought in; and may thereupon apply to the curfitor for a writ of executio judicii directed to the court below, and commanding them, that, notwithstanding the writ of error, they proceed to execution on the faid judgment.

I

The defendant in error cannot transcribe the record. Wilf. 35. but if the plaintiff does not tranfcribe it, he must be ferved with a rule to tranfcribe. But if the tranfcript of the record is carried in and filed in due time, each party ought to befpeak a copy thereof, which is made out at the rate of 4 d. per fheet; and the defendant in error fhould then, in order to accelerate the plaintiff in error, fue out a feire facias quare executionem non directed to the sheriff of the county where the original action was brought, and which is to this effect:

GEORGE the third, by the grace of God, &c.

To the fheriff of

greeting. Whereas A. B. lately in our court of [the inferior court] before the judges of the fame court without our writ, and by the judgment of the fame court, recovered against C. D. 101. for his damages which he fuftained as well by occafion of the not performing certain promifes and undertakings made by the faid C. to the faid A. at

in your county, and within the jurifdiction of the fame court, as for his cofts and charges expended by him about his fuit in that behalf whereof the faid C. is convicted, as by infpecting the record and procefs thereof in our court, before us at Weftminfter, now remaining, and which for certain

Caules

Of Proceeding in Error from inferiar Courts.

caufes we lately caused to be brought in our fame court before us, appears to us. And now, on behalf of the faid A. in our court before us, we have been informed, that although judgment be thereof given, yet execution of the faid damages ftill remains to be made to the faid A. Whereupon the faid A. hath befought us, that a proper remedy may be provided for him in this behalf: And we, being willing that what is just should be done in this behalf, do command you, that, by good and lawful men of your bailiwick, you make known to the faid C. that he be before us on * wherefoever we shall then be in England, to fhew if any thing he has or knows to say for himself, why the faid A. ought not to have his execution against him of the damages aforefaid, according to the force, form, and effect of the faid recovery, if it fhall feem expedient to him; and further to do and receive what in our fame court before us fhall be confidered of him in this behalf, and have there the names of those by whom you shall make known to him, and this writ. Witness, &c.

If nihil is returned to this writ, the defendant in error may fue out an alias fcire facias which differs only from the above in this, that it is faid, "do command you as before we have commanded you, that by good and lawful men, &c."

If a feire feci is returned to the former writ, or there be a nibil alfo returned to the latter, the defendant in error muft enter a rule with the clerk of the rules, which is given in the fame manner as a rule to plead, and which expires in four days. After the expiration of which, if the plaintiff in error has neglected to affign errors, the defendant may enter an award of execution on the roll for the amount of the judgment below; but then the defendant in error is not entitled to cofts, nor is the plaintiff thereby precluded

A fci. fa. quare executionem non on error from C、 B. and all other writs and procefs must be returnable on a general return ubicunque, and have fifteen days between the tefte and return.

U 2

from