Of Proceeding in Error from the Court of IF an erroneous judgment is given in the Common Pleas, the writ of error, in all cafes, is made returnable into the court of King's Bench. In order to bring error, the attorney for the party fuing it finds the number of the judgment roll from the doggett of the prothonotary's office, and thereby finds the roll in the treasury, of which he makes a copy, and thereupon the curfitor makes out the writ of error. Comp. Att. 63. Which may be fued out before judgment, but judgment must be given before the return of it. 3 Keb. 308. Vent. 96. Latch. 133. When the writ of error is obtained from the curfitor, you must get it fealed, and then carry it to the clerk of the errors, and pay him his fee for the allowance of it, who will give you a notice in writing of fuch allowance; after which you fhould ferve the other party's attorney with a copy of the writ, and allowance thereof, which fhould be ferved immediately; for till it is ferved it is no fuper fedeas to the execution; nor is it a superfedeas in many cafes, unless bail be put in by the party fuing the writ of error. Of Of Bail in Error, where requifite. HERE are feveral ftatutes requiring bail to be given by the party profecuting error to reverfe a judgment; in order to understand which I fhall ftate the ftatutes in their order, and give feveral of the determinations of the courts upon those ftatutes. The firft ftatute requiring bail on error, is the 31 El. c. 3. 3. which enacts, "That before any allowance of any writ of error, or reverfing of any outlawry be had by plea or otherwife, through or by want of any proclamation to be had or made according to the form of this ftatute, the defendant in the original action fhall put in bail, not only to appear and answer to the plaintiff in the former suit in a new action to be commenced by the faid plaintiff, for the cause mentioned in the first action, but also to fatisfy the condemnation, if the plaintiff fhall begin his fuit before the end of two terms next after the allowing the writ of error, or otherwife avoiding of the faid outlawry." The next ftatute requiring bail on error is the 3 Jac. 1. c. 8. entitled An act to avoid unneceflary delays of execution"-whereby it is enacted, "That no execution fhall "be ftayed or delayed upon or by any writ of error, or Superfedeas thereupon to be fued for the reverfing of any judgment given in any action or bill of debt upon any "fingle bond for debt, or upon any obligation with condi"tion for the payment of money only; or upon any action or bill of debt for rent, or upon any contract fued in any "of his highneis's courts of record at Westminster, or in "the counties palatine of Chester, Lancaster, and Durham; or in the courts of great feffions in any of the twelve fhires "of Wales, unlefs fuch perfon or perfons, in whofe name or names fuch writ of error fhall be brought, with two "fufficient fureties, fuch as the court (wherein fuch judg"ment is or fhall be given) fhall allow of, fhall firft, be"fore fuch tay made or fuperfedeas to be awarded, be "bound unto the party for whom any fuch judgment is ' given, by recognizance to be acknowledged in the fame "court, in double the fum adjudged to be recovered by the "faid former judgment, to profecute the faid writ of error " with effect; and alfo to fatisfy and pay (if the faid judgment be affirmed) all and fingular the debts, damages, and "cofts adjudged upon the former judgment: and all costs and damages to be also awarded upon the delaying of ex"ecution." Of Bail in Error, where requifite. This ftatute requires only bail to be given upon error to reverfe any judgment of debt upon any fingle bond for debt, or obligation with condition for payment of money only, or action of debt for rent, or upon contract. Therefore bail in error on a judgment in debt on bond, are each bound in the fum recovered, that being double the fum due. I Wil. 213. But bail is not requifite upon bringing a writ of error upon a judgment in an action of debt founded upon a prior judgment, Burr. Rep. 4 pt. 1548. because this is cafus omiffus out of this act, which is to be taken literally and not extended by construction. Ibid. A bond given by a third perfon, to a third person, as collateral fecurity for a debtor's paying his creditors 15 s. in the pound upon a liquidated total of his debts, is a bond with condition for the payment of money only within this act Therefore, bail requifite. Burr. Rep. 4 pt. 746. And it's being payable by instalments, makes no difference. No bail is requifite in bringing a writ of error upon a judgment in debt on bond conditioned for performance of covenants, or upon a bail-bond-because these bonds are not conditioned for the payment of money only. But if the defendant brings error after judgment against him in an action upon a bottomree bond, he must put in bail; because, the contingency having happened, this is now, in every refpect, a bond for the payment of money. 476. Stra. Motion for leave to take out execution, no bail being put in on a writ of error brought by defendant, the action being in debt on bond, conditioned only for payment of money according to the true intent and meaning of an indenture, and not performance of covenants. On fhewing caufe, the court held that bail was required by 3 Ja. 1. If the bond had been generally for performance of covenants in an indenture, and the only covenant in that indenture had been for payment of money, bail must have been given on error. But the court gave time to put in bail. Barnes 98. The condition of a bond was for the payment of 5001. at fuch a day, being the fame mentioned in certain indentures of fuch a date. And error being brought, the plaintiff in error would have been excufed from giving bail, because the words of 3 fac. 1. are "bonds for payment of money only;" whereas, this was rather a bond for perform ance Of Bail in Error where requifite. ance of covenants. But the court held, that bail ought to be given; for the material part of the condition was the payment of 500l. and the other words were only added to fhew they were not diftinct debts, but only different fecurities for the fame. Defbofder v. Horfey. Stra. 959. Action upon an infimul computaffet in C. B. error brought in B. R. after judgment for the plaintiff and upon the queftion of bail being requifite-Per cur. This cafe is out of the ftatute, for the debt recovered did not accrue by any contract or other duty certain at firft, but merely upon an account between the parties, which account has reduced divers uncertain fums to one certainty-Therefore, as the action was founded upon the account, which is uncertain, this cafe is out of the ftatute The fame law in debt upon an award, when the arbitrators have reduced divers, controverfies to be recompenfed by one fum: Tho' this is a debt, yet it is not fuch a one as is intended by the ftatute, which must be a debt certain at first. Yelv. 227. 2 Bulft. 53. The original action was in debt on bond conditioned to pay fo much money as 7. S. fhould declare to be due on an account; and, after pleadings below, error was brought on the judgment. And by all the judges, except Keeling, the plaintiff in error muft put in bail, or execution may go for this obligation is made for the payment of money only, which, though not certain when the obligation was made, is yet certain before the action brought. 1 Lev. 117. Keb. 613, 690. The condition of a bond was to perform covenants in an indenture; and amongst the reft was one for payment of money, and the other were collateral; and the breach affigned, was for the non-payment of the money: Yet, on error brought upon the judgment, no bail was taken; for per Holt-this is not a condition for the payment of money only, but to do collateral acts. It is true, the breach affigned is for not paying the money; and therefore, the cafe upon the pleadings is the fame as if the condition had been for the payment of money only, yet the condition is not for payment of money only. Carth. 28. The condition of a bond was to pay for so much beer as fhould be delivered to S. not exceeding 100l. After judgment upon demurrer below, error was brought, Et per cur. No bail requifite. This fum was not certain even at the VOL. II. X time Of Bail in Error, where requifite. time of the action brought. Thrale v. Vaughan. Stra. 1190. But if an action of debt be brought on a bond, conditioned for the performance of covenants, and the defendant lets judgment go by default, without craving oyer of the condition, and after brings error, he muft put in bail; because it does not appear to the court upon the record, that the condition was for performance of covenants. Motion for bail upon error in an action of debt on bond, conditioned for payment of 300l. mentioned in a furrender of a copyhold by way of mortgage, and not for performance of covenants, wherein judgment had paffed by default. Per cur. There must be bail. This cafe is out of the ftat. 16 & 17 Car. 2. but within the ftat 3 Jac. 1. Barnes 78. By the 13 Car. 2. c. 2. [reciting the ftatute of 3 Fac. 1. in the 8 feet.] 9 fect. enacts, "That no execution shall be "ftaid in any of the courts aforefaid, by any writ or "writs of error or fuperfedeas thereupon, after any verdict "and judgment thereupon obtained in any action of debt 66 grounded upon the ftatute made in the fecond year of "the reign of the late king Edward the fixth, for not fetting forth of tythes; nor in any action upon the cafe upon any promife for payment of money, actions fur trover, actions of covenant, detinue and trefpafs, unless "fuch recognizance, and in such manner, as by the faid "recited former act is directed, fhall be firft acknowledged "in the faid court where fuch judgment is given." Sect. 10. "Gives double cofts to a defendant by delay "of execution by reafon of error brought, if the judgment "be affirmed." Sect. 11. Provides that the said statute shall not extend to "actions popular; or upon penal ftatutes, indictments, &c. "other than the ftatute of Edward fixth mentioned." By the 16 17 Car. 2. c. 8. f. 3. it is enacted, "That "no execution fhall be ftayed in any of the aforefaid † "courts, by writ of error or fuperfedeas thereon, after ver"dict and judgment thereupon, in any action perfonal "whatfoever, unless a recognizance, with condition ac66 cording to the ftatute made in the third year of king * i. e. The courts mentioned in the ftatute of Jac, 1. The fame courts as are mentioned in the ftatute of James 1. viz. the courts at Westminster, courts of the counties palatine, and great feffions. 66 James |