Of Proceeding in Error by a Plaintiff to reverfe his own Judgment.

Fa plaintiff having obtained judgment below brings a writ of error to reverfe his own judgment [which is nothing strange or unreafonable where it is given for a lefs fum than he has a right to demand] the common method of bringing a feire facias quare executionem non would be improper, fo would his fuing out a fcire facias ad audiendum errores.- Therefore if fuch 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 affign errors within limited time; which rule the court will make upon the plaintiff in error, to affign errors within four days, or elfe that his writ of error fhall be non-proffed. Johnson v, Jebb, Burr. 4 pt. 1772.

Qf

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

but in parliament, and as the fubjects were often difappointed of their writ of error by the not fitting of parliament, or by their being employed in publick bufinefs when they did fit:

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By the 27 Eliz. c. 8. it is enacted, "That where any "judgment fhall, at any time hereafter, be given in the faid "court of the King's Bench, in any fuit or action of debt, "detinue, covenant, account, action upon the cafe, ejectione firma or trefpafs, firft commenced there [other than fuch "only where the queen's majefty fhall be party] the party "plaintiff or defendant, against whom any fuch judgment "fhall be given, may at his election fue forth out of the court of chancery, a special writ of error to be devised in "the faid court of Chancery, directed to the chief juftice of "the faid court of the King's Bench for the time being, "commanding him to cause the said record, and all things "concerning the faid judgment, to be brought before the

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juftices of the Common Bench, and the barons of the Ex"chequer into the Exchequer chamber, there to be examined "by the faid juftices of the Common Bench, and barons afore"faid; which faid juftices of the Common Bench, and fuch "barons of the Exchequer as are of the degree of the coif, or

fix of them at the leaft, by virtue of this prefent act, "fhall thereupon have full power and authority to examine "fuch errors as fhall be affigned or found in or upon any "fuch judgment; and thereupon to reverfe or affirm the "faid judgment as the law fhall require, other than for

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errors to be affigned or found for or concerning the ju"rifdiction of the faid court of King's Bench, or for any "want of form in any writ, return, plaint, bill, declaration, "or other pleadings, procefs, verdict, or proceeding what"foever, and that after the faid judgment fhall be affirmed "or reverfed, the faid record, and all things concerning

the fame, fhall be removed and brought back into the "faid court of the King's Bench, that fuch further proceed"ing may be thereupon had, as well for execution as other"wife, as fhall appertain."

The exchequer chamber, under this ftatute, 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 feven cales mentioned in this act, where the

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fuit

Of Proceeding in Error from the King's Bench into the Exchequer-chamber.

fuit was firft 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, becaufe fuch 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, ac count, action on the cafe, ejectment, and trespass, first commenced in B. R. which must be by bill.

But if a plaintiff in B. R. be nonfuited, and there is a judgment againft him for cofts, error lies in Cam Scace. Stra. 235.

This writ of error is obtained of the curfitor in like manner as all other writs of error are ;-and by Reg. East 36, Car. 2. Every attorney who fhall fue out any writ of error on any judgment of this court returnable in the Exchequerchamber, thall forthwith allow fuch writ of error with the clerk of the errors of this court for the time being, and no execution fhall be ftayed until fuch allowance.

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

If fpecial bail is put in, the plaintiff in error, or his attorney, muft forthwith give notice thereof to the defendant in error, or his attorney; and if the defendant in error does not except against fuch bail within twenty days after fuch notice, fuch bail fhall be allowed. Mich. 5 W.

M.

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

When the plaintiff has affigned his errors in the Exchequerchamber, that court does not award a fcire facias ad audien

* In what cafes requifite, vide ante, title-" Bail in error where 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. 1 Vent. 34. Vide Palm. 186.

I

If the plaintiff in error, after errors affigned in the Exchequer-chamber, intends to argue the fame, he muft give ten days notice to the clerk of the errors there, before they fhall 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. Eaft. 33 Car. 2.

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

Upon a fpecial verdict, the judgment was in B. R. for the defendant, which judgment was reverfed in the Exchequer-chamber. Befides the reverfal 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 fent 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 fome die, a remittitur fhould be entered to warrant excution in B. R. against the furvivors. Carth. 236.

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

chamber.

On a writ of error into the Exchequer-chamber, a feire facias ad audiend. errores was awarded, returnable on the 11th of May; and there being no fuch day of adjournment in Cam. Scacc. it was held to be a difcontinuance; and that a writ of error qued coram vobis lies not in Cam. Scacc. which has its power by ftatute, and can only reverfe or affirm the judgments of B. R. and remand to the King's Bench for execution; and when the plaintiff in error there is nonfuited, or the writ is difcontinued, they have no more to do with it, for they have no record before them, but it remains in the King's Bench. And though feveral precedents

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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 asfigned, and appearance by attorney below, defendant in error pleaded in nullo eft erratum, and prayed the judgment to be affirmed. On argument, all the juftices and barons agreed, that error in fact could not be affigned, 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 difcontinue his writ, upon payment of cofts, which was granted nifi, and afterwards made abfolute: But afterwards, upon affidavit that the cofts were taxed, and had been demanded, and that the plaintiff in error refused to pay them, the rule for difcontinuing 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 trefpafs 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 fuperfedeas only. 1 Lev. 153.