Of Proceeding in Error from inferior Courts,

from proceeding in his writ of error, but may afterwards proceed therein and affign his errors, even though execution be actually executed; and in such case, after affignment of errors, joinder in error, and argument thereon, if the judgment given below be reverfed above, the plaintiff in error shall have reftitution of all he hath loft by reason of the execution.

On motion to fet afide an execution taken out upon a judgment in a feire facias quare ex. non, because they had affigned errors before. On reference to the mafter, he reported an old rule, that if the party pleads to the fçire facias, and it goes against him, execution may be fued out; but that the writ of error fhall go on notwithstanding. Whereupon the court, in confideration of the delay, established it as a standing rule, for the future, that if upon the return of the fire facias the plaintiff affigns his errors, then all farther proceedings fhall be ftayed upon it; but where he chufes to fand out upon pleadings to the feire facias, execution fhall go if it be adjudged against him. Gardner v. Claxton, Stra. 391. vide alfo Stra. 679. Parker v. Stanton, Ld. Raym. 1414.

Of

Of Proceeding in Error from inferior Courts, and herein of non-proffing the Writ of Error.

BUT

UT to prevent the plaintiff in error from reaffuming the proceedings after the rule is out, upon default made upon the fcire 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 tranfcript of the record for the plaintiff in error to affign errors de recordo. Enter this rule with the clerk of the rules, and ferve a copy thereof on the plaintiff in error's attorney; upon which, if the plaintiff in error does not affign his ertors within four days, the defendant may fign a non-pros, and then may have his cofts taxed and allowed.

The entry of a non-pros in error from an inferior court, after two feire facias's and nihils returned, is in this man

ner :

Hilary term, twentieth of George the third.

"England, to wit. C. D. puts in his place William Lyon, his attorney, to profecute his writ of error against A. B. in a plea of trefpafs on the cafe.

England, to wit. The faid A. B. puts in his place George Hodgson, his attorney, against the said C. D. on the faid writ of error in the plea aforefaid.

"England, to wit. Our lord the king hath fent to the judges of his court of [name the inferior court] his writ clofe in thefe words, "to wit," George the third, &c. [here copy the writ of error, and the tranfcript of the record, according to the cffice copy thereof] afterwards, to wit, on next, after the octave of Saint Hitary, in this fame term, before our lord the king at Wefiminfier, comes the faid A. by his attorney aforefaid, and fays, that execution of the faid judgment fill remains to be made to him; therefore he prays the writ of our lord the king, to be directed to the theriff of the faid county of

to warn the faid C. to be before our lord the king, wherefoever, &c. to fhew if any thing he has or knows to fay for himself, why the faid A. ought not to have his execution thereof against him of.

Of Proceeding in Error from inferior Courts, and herein of non-proffing the Writ of Error.

his damages, cofts and charges aforefaid, according to the force, form and effect of the faid recovery; and it is granted to him, &c. by which it is commanded to the fheriff of the county Scire facias of, that by good and lawful men awarded. Sof his bailiwick he make known to the faid C. that he be before our lord the king on

on

wherefoever, &c. to fhew in form aforefaid, if, &c. And further, &c. the fame day is given to the said A. &c. at which day, before our lord the king at Westminster, the faid A. comes by his attorney aforefaid, and the sheriff of the faid Nibil re- county of -, to wit, O. P. efquire turned. returns, that the faid C. hath nothing in his bailiwick, by which he can make known to him; nor is he found in the fame: Therefore, as before, it is commanded to the fheriff of aforefaid, that by good and lawful men, &c. he Alias feire facias make known to the faid C. that awarded. She be before our lord the king, wherefoever, &c. to fhew in form aforefaid, if, &c. And further, &c. the fame day is given to the faid A. &c. at which day, before our faid lord the king at Weftminster, the faid A. comes by his attorney aforefaid; and the fheriff of the faid county of to wit, the said O. P. Nibil re- efquire, likewife returns, that the faid turned. SC. hath nothing in his bailiwick, by which he can make known to him, nor is he found in the fame and the faid C. although on the fourth day folemnly required, came not, but made default: and upon this the faid A. faith, that the faid C. hath not yet affigned error or erDay given to afrors in the faid record and proceedfign errors. Sings. Therefore a day is given to the said parties, before our lord the king at Weftminfter, until, &c.[the day in the rule given by the mafter] to wit, to the faid C. to affign error or errors in the said record and proceedings, &c. At which day, before our lord the king at Westminfter, the faid A. comes by his attorney aforefaid; and the faid C. at that day, although folemnly demanded, comes not, but makes default;

пор

Of Proceeding in Error from inferior Courts, and herein of non-proffing the Writ of Error.

nor doth he further profecute his faid writ of error against the faid A. It is therefore confidered, Judgment. {that the faid C. be in mercy, and that

faid A. have therefore his exccu

tion against the faid C. of his damages, cofts and charges, according to the force, form and effect of the faid recovery, &c. And it is further confidered, that the faid A. recover against the faid C.

pounds, adjudged to the faid A. by the court of our faid lord the king now here, according to the form of the ftatute, for his damages, cofts and charges, which he hath fuftained by occafion of the delaying the execution of the faid judgment, by pretence of profecuting the faid writ of error, and that the faid A. likewife have execution thereupon, &c."

Of Proceeding in Error from inferior Courts, and herein of affigning Errors, and making up the Error-book, &c.

I

F the plaintiff in error appears and proceeds, the next ftep is to affign errors. An affignment of errors may be either general or fpecial, and in either cafe must be figned by counfel.

The plaintiff may affign for error, error in fact, or error in law. F. N. B. 20. E. But he cannot affign both, for this will be double. 1 Rol. 761. l. 35. 1 Lev. 105. 76. 1 Sid.

147.

Nor can he affign feveral errors in fact, but he errors in law. F. N. B. 20 E.

may feveral

In error from an inferior court, the plaintiff in error cannot alledge diminution of the record. Sid. 40. 147. Nor can the defendant; but the court, if they fee occafion, may award a certiorari ad informandum confcientiam.

Nor can he affign for error matter contrary to the record. Cro. Jac. 21. 1 Lev. 76. 1 Salk. 262. 1 Lev. 313. Cro. Jac. 244.

Nor matter which he might have pleaded. 1 Rol. 762. 1. 40. Though judgment were by default. Though Dub. Cro. Jac. 547-But Carth. 124. fays-Not matter which might have been pleaded in abatement.

An affignment of errors is in the place of a declaration in error, and must be engroffed and delivered over to the defendants on treble-penny ftamped paper; the entry whereof is in this form :

Hilary term, twentieth George the Third.

Stormont and Way.

And the faid C. by William Lyon his attorney, comes and fays, that in the record and proceedings aforesaid, and also in giving the judgment aforefaid, there is manifeft error in this, to wit, That the declaration aforesaid, and the matters therein contained, are not fufficient in law for the faid A. to maintain his faid action against the faid C. there is alfo error in this, that by the record aforefaid here fent, it appears, that the judgment aforesaid, in the plea aforefaid, in form aforefaid given, was given for the faid A. when by the law of the land of this kingdom of England, judgment in the plea aforefaid