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Of Proceeding in Error by a Plaintiff to reverse

his own Judgment. . TF a plaintiff having obtained judgment below brings, a I writ of error to reverse his own judgment (which is nothing strange' or unreasonable where it is given for a less sum than he has a right to demand] the common method of bringing a fcire facias quare executionem non would be improper, so would his suing out a' soire facias ad audiendum errores. - Therefore if such plaintiff in error will not proceed after his writ of error brought, the court of B. R. may and ought to make a rule to oblige him to afsign errors within a limited time ; which rule the court will make upon the plaintiff in error, to assign errors-within four days, or else that his writ of error Thall be rion-profled. Johnson V, Jebb, Burr, 4 pt. 1772

Of Proceeding in Error from the King's Bench

into the Exchequer-chamber.

A S no writ of error lay of a judgment in the King's Bench A but in parliament, and as the subjects were often difappointed of their writ of error by the not fitting of parliament, or by their being employed in publick business when they did fit :

By the 27 Eliz. c. 8. it is enacted, " That where any " judgment Mall, at any time hereafter, be given in the said « court of the King's Bench, in any suit or action of debt, " detinue, covenant, account, action upon the case, ejectione firmæ or trespass, first commenced there (other than such s only where the queen's majesty shall be party) the party " plaintiff or defendant, against whom any such judgment " shall be given, may at his election fue forth out of the “ court of chancery, a special writ of error to be devised in « che faid court of Chancery, directed to the chief justice of " the said court of the King's Bench for the time being, comnianding him to cause the said record, and all things

concerning the said judgment, to be brought before the “ justices of the Common Bench, and the barons of the Ex" chequer into the Exchequer chamber, there to be examined " by the said justices of the Common Bench, and barons afore" said ; which said justices of the Common Bench, and such « barons of the Exchequer as are of the degree of the coif, or “ fix of them at the least, by virtue of this present act, " shall thereupon have full power and authority to examine " such errors as shall be assigned or found in or upon any “ such judgment; and thereupon to reverse or affirm the “ faid judgment as the law shall require, other than for

errors to be assigned or found for or concerning the ju“ risdiction of the said court of King's Bench, or for any “ want of form in any writ, return, plaint, bill, declaration, “ or other pleadings, process, verdict, or proceeding what“soever, and that after the said judgment shall be affirmed " or reversed, the faid record, and all things concerning " the same, shall be removed and brought back into the " said court of the King's Bench, that such further proceed" ing may be thereupon had, as well for execution as other" wile, as shall appertain.”

The exchequer chamber, under this statute, hath nothing to do with errors in fact. 2 Lev. 38. I Vent. 207. 2 Mod. 194.

The writ of error can only be returnable in the exchequer chamber in the seven cales mentioned in this act, where the

Y 2

fuit

Of Proceeding in Error from the King's Bench

into the Exchequer-chamber.

judgments in Berror ther-forët is purchafenced there,

fuit was first commenced in B. R. Therefore if a fuit is by original in B. R. a writ of error on a judgment thereon must be returnable in parliament, and cannot be in the Exchequer. chamber, because such fuit is not commenced there, but in chancery where the original writ is purchased.

A writ of error therefore can only be returnable on judgments in B. R. in actions of debt, detinue, covenant, account, action on the case, ejectment, and trespass, first commenced in B. R. which must be by bill.

But if a plaintiff in B. R. be nonsuited, and there is a judgment against him for costs, error lies in Cain Siace. Stra. 235.

This writ of error is obtained of the cursitor in like manner as all other writs of error are ;-and' by Reg. Eaft. 36. Car. 2. Every attorney who shall sue out any writ of error on any judgment of this court returnable in the Exchequerchamber, hall forth with allow such writ of error with the clerk of the errors of this court for the time being, and no execution thall be stayed until such allowance.

And where special bail * is required, if the plaintiff upon such writ of error does not within four days after the allowance thereof put in special bail, the plaintiff in the action may proceed to take out execution, notwithstanding such writ of error. Sane rule,

If special bail is put in, the plaintiff in error, or his attorney, must forth with give notice thereof to the defendant in error, or his attorney; and if the defendant in error does not except against such bail within twenty days afler such notice, such bail shall be allowed. Mich. 5 W. &gi M.

The record itself is not transmitted from the King's Bench into the Exchequer-chamber, as it is from the Common Pleas into the King's Bench in cases of error, but only a tranfcript thereof; and all the rules, until the making up and delivering over the transcript, are given by the clerk of the errors [Mr. Way]: But after delivery of the transcript, all rules, &c. are given by the clerk of the errors of the Exchequer Chamber.

When the plaintiff has afligned his errors in the Exchequer. chamber, that court does not award a scire facias ad audien

.

* In what cases requisite, vide ante, title--- Bạil in error wlere requifite.

, dum

· Of Proceeding in Error from the King's Bench

into the Exchequer-chamber.

dum errores, but notice is given to the parties concerned,

i Vent. 34. Vide Palm. 186.. · If the plaintiff in error, after errors assigned in the Exche

quer-chamber, intends to argue the same, he must give ten days notice to the clerk of the errors there, before they shall be argued ; and copies of the paper book in error must be made and delivered by the parties—The plaintiff in error delivers books to the judges of the Common Pleas, and the defendant to the barons of the Exchequer. East. 33 Car. 2.

On judgment in error in the Exchequer-chamber, a remittitur of the transcript to the King's Bench is entered, and the execution thereon issues out of B. R.

Upon a special verdict, the judgment was in B. R. for the defendant, which judgment was reversed in the Exchequer-chamber. Besides the reversal that court gives a compleat judgment for the plaintiff, viz. that he do recover. Carth. 319. Ld. Raym. 10.

Judgment for defendant on demurrer was reversed in the Exchequer-chamber; and judgment that the plaintiff do recover, was given, &c. But because, that court had not power to award a writ of enquiry, it was sent into B. R. for the execution of that writ, and thereupon to give final judgment. Vide Carth. 319. Ld. Raym. 10. And authorities there cited.

If error is brought by many in the Exchequer-chamber, and some die, a remittitur should be entered to warrant excution in B. R. against the survivors. Carth. 236.

If a writ of error abates in Cam. Scacc. or is discontinued, there must be a remittitur entered in B. R. for without such remittitur it cannot appear to the court of King's Bench, but that the writ of error is still depending in the Exchequerchamber.

On a writ of error into the Exchequer-chamber, a scire facias ad audiend. errores was awarded, returnable on the uth of May; and there being no such day of adjournment in Cam. Scacc. it was held to be a discontinuance; and that a writ of error quod coram vobis lies not in Cam. Scacc. which has its power by stature, and can only reverse or affirm the judgments of B. R. and remand to the King's Bench for execution; and when the plaintiff in error there is nonsuited, or the writ is discontinued, they have no more to do with it, for they have no record before them, but it remains in the King': Binch. And though several precedents Y 3

were

Of Proceeding in Error from the King's Bench

into the Exchequer-chamber.

were produced where writs of error coram vobis, &c. were allowed, yet, as those passed without debate, no regard was paid to them. Cro. Jac. 620. ..

Error of a judgment in B. R. into Cam. Scacc. infancy assigned, and appearance by attorney below, defendant in error pleaded in nullo eft erratum, and prayed the judgment to be affirmed. On argument, all the justices and barons agreed, that error in fact could not be assigned, nor was it examinable in the Exchequer-chamber; and that in nullo eft erratum was in the nature of a demurrer to it, and that judgment ought to be affirmed; upon which it was moved, that the plaintiff in error might discontinue his writ, upon payment of costs, which was granted nisi, and afterwards made absolute : But afterwards, upon affidavit that the costs were taxed, and had been demanded, and that the plaintiff in error refused to pay them, the rule for discontinuing the writ of error was discharged. The cause was again put into the paper, and the judgment affirmed. Roe v. Sir John Moore, bart. Com. Rep. 597.

In trespass 300 l. damages were recovered, and error was brought on the judgment in Cam. Scacc. pending which, plaintiff brought an action of debt on the judgment; and by all the judges, except Keelynge, it well lies, for the record itself is yet in the court, and the writ of error is a fuper fedeas only. I Lev. 153.

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