« PreviousContinue »
Of Proceeding in Error from inferior Courts,
from proceeding in his writ of error, but may afterwards proceed therein and assign his errors, even though execution be actually executed j and in such case, after assignment of errors, joinder in error, and argument thereon, if the judgment given below be reversed above, the plaintiff jn error' shall have restitution of all he hath lost by reason of the execution.
On motion to set aside an execution taken out upon a judgment in a. fare facias auare ex. nen, because they had assigned errors before. On reserence to the master, he reported an old rule, that if the party pleads to the feire facias, and it goes against him, execution may be sued out; but that the writ of error shall go on notwithstanding. Whereupon the court, in consideration of the delay, established it as a standing rule, for the suture, that if upon the return of the fire facias the plaintiff assigns his errors, then all sarther proceedings shall be stayed upon it; but where he phuses to stand out upon pleadings to the feire facias, execution shall go if it be adjudged against him. Gardner v. Claxton, Stra. 391. vide also Stra. 679. Parker y. Stanton, hi. Raym. 1414.
Of Proceeding in Error from inferior Courts* and herein of non-projjing the Writ of Error.
BUT to prevent the plaintiff in error from reassuming the proceedings after the rule is out, upon desault made Upon the scire feci, or upon two nihils returned, the better way for the defendant in error to proceed is, to non-pros the writ of error, which is done by getting another rule from the master [after the former rule is out] upon the back of the Transcript of the record for the plaintiff'in error to assign errors dt recordo. Enter this rule with the clerk of the rules, and serve a copy thereof on the plaintiff \n error's attorney; upon which, if the plaintiff in error does not assign his errors within four days, the desendant may sign a non-pros, and then may have his cojls taxed and allowed.
The entry of a non-pros in error from an inserior court, after two fcire facias's and nihils returned, is in this manner:
Hilary term, twentieth of George the third.
"England, to wit. C. D. puts in his place William Lyon, his attorney, to prosecute his writ of error against A. B. in a plea of trespass on the cafe.
'' England, to wit. The said A. B. puts in his place George Hodgson, his attorney, against the said C. D. on tne said writ of error in the plea aforesaid.
'l England, to wit. Our lord the king hath sent to the judges of his court of- [name the inserior court] his writ close in these words, "to wit," George the third, &c. [here copy the writ of error, and the transcript of the record, acCording to the cssicc copy thereof] afterwards, to wit, on next, af:er the octave of Saint Hilary, in this same term, before our lord the king at JVeJiminJler, comes the said A. by his attorney aforesaid, and says, that execution of the said judgment still remains to be made to him; therelore he prays the writ of our k-rd the king, to be
directed to the sheriff of the said county of
to Warn the said C. to be before our lord the king, wheresoever, f c. to shew if any thing he has or knows to lav for himse:f, why the said A. ought not t'o ha-ic hi? execution thereof against him of U 3 his
Of Proceeding in Error from inferior Courts, and herein oinon-projsing the Writ of Error.
his damages, costs and charges aforesaid, according to the force, form and effect of the said recovery; and it is granted to him, &c. by which it is commanded to the sheriff of the county
Sein facias ?of , that by good and lawsul men
awarded. J of his bailiwick he make known to the said C. that he be before our lord the king on —— wheresoever, &V. to (hew in form aforesaid, if, &c. And surther, &c. the same day is given . to the said A. &c. at which day, before our
lord the king at Westminster, the said A. comes by his attorney aforesaid, and the sheriff of the said
JUMI re- ?county of , to wit, O. P. esquire
turned. J returns, that the said C. hath nothing in his bailiwick, by which he can make known to him; nor is he found in the same: Therefore, as
before, it is commanded to the sheriff of
aforesaid, that by good and lawsul men, ££?f. he Alias feirt f»cias \ make known to the said C. that awarded. J he be before our lord the king,
on wheresoever, ts'c. to shew in form
aforesaid, if, fcfV. And surther, &c. the same day is given to the said A. &c. at which day, before our said lord the king at Westminster, the said A. comes by his attorney aforesaid ; and the sheriff
of the said county of to wit, the said O. P.
Mbii re- I esquire, likewise returns, that the said turned. J c< hath nothing in his bailiwick, by which he can make known to him, nor is he found in the same: and the said C. although on the fourth day solemnly required, came not, but made desault: and upon this the said A. saith, that the said C. hath not yet assigned error or erDay given to as- ?rors in the said record and proceeds.gn errois. 3 ings. Therefore a day is given to the said parties, before our lord the king at Westminster, until, &c. [the day in the rule given by
the master] to wit, to the said C. to assign error or errors in the said record and proceedings, &c. At which day, before our lord the king at Westminster, the said A. comes by his attorney aforesaid; and the said C. at that day, although solemnly demanded, comes not, but makes desault;
Os Proceeding in Error from inferior Courts, and herein of non-projjing the Writ of Error.
nor doth he surther prosecute his said writ of error against the said A. It is therefore considered, Tud j tnat ,ne kid £• be ln mercy, and that
t the said A. have therefore his execution against the said C. of his damages, costs and charges, according to the force, form and effect of the said recovery, isfe. And it is surther considered, that the said A. recover against the said C. ——^— pounds, adjudged to the said A. by the court of our said lord the king now here, according to the form of the statute, for his damages, costs and charges, which he hath sustained by occasion of the delaying the execution of the said judgment, by pretence of prosecuting the said writ of error, and that the said A. likewise have execution thereupon, tiff."
Of Proceeding in Error from inferior Courts, and herein of assigning Errors, and making up the Error-book, &c.
IF the plaintiff' in error appears and proceeds, the next step is to ajjign errors. An assignment of errors may be either general or special, and in either case must be signed by counsel.
The plaintiff may assign for error, error in facl, or error in law. F. N. B. 20. E. But he cannot assign both, for this will be double. 1 Rol. 761. /.. 35. 1 Lev. 105. 76. 1 Sid. 147.
Nor can he assign several errors in facl, but he may several errors in law. F. N. B. 20 E.
In error from an inferior court, the plaintiff in error cannot alledge diminution of the record. Sid. 40. 147. Nor can the desendant; but the court, if they see occasion, may award a certiorari ad informandum confcientiam.
Nor can he assign for error matter contrary to the record. Cro. Jac. 21. I Lev. 76. 1 Salk. 262. 1 Lev. 313. Cro. sac. 244.
Nor matter which he might have pleaded. 1 Rol. 762. /. 40. Though judgment were by desault. Though Dub. Cro. Jac. 54.7.—But Carth. 124. says—Not matter which might have been pleaded in abatement.
An assignment of errors is in the place of a declaration in error, and must be engrossed and delivered over to the defendants on treble-penny stamped paper; the entry whereof is in this form:
Hilary term, twentieth George the Third.
Stormont and Way.
•' And the said C. by William Lyon I is attorney, comes and says, that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manisest error in this, to wit, That the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said A. to maintain his said action against the said C. there is also error in this, that by the record aforesara here sent, it appears,' that the judgment aforesaid, in the plea aforesaid, in form asoiesaid given, was given for the said A. when by the law of the land us this kingdom of England, judgment in the plea