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Of Proceeding in Error from the Court of
King's Bench in Ireland into the King's Bench here.
IRROR of a judgment given in the King's Bench in Ires
land, lies into the King's Bench here ; for it lies not in the parliament there. Rol. Rep. 17. per Coke. .
The writ of error is obtained of the cursitor in the same manner as other writs of error, directed to the chief juftice of the King's Bench in Ireland, made returnable in B. R.
The chief justice sends only a transcript of the record, and not the record itself, because of the danger of the seas, Cro. Jac. 535, &C.
And when the transcript is brought over, it must be filed in the chief clerk's office, with Mr. Heberden, the figner of the writs.
If the plaintiff in error does not bring in the transcript in due time, the defendant, upon a certificate that the tranfcript is not brought in, may apply to the cursitor for a writ de executione judicii directed to the chief justice in Ireland, whereupon execution may be had of the judgment there.
When the transcript is brought over and filed, copies, thereof are made out for both parties..."
: It is said, that neither party can alledge diminution of the record, and pray a certiorari. But fee Show. 214. contra. And in Palm. 285. Banister v. Kennedy, where it is said--f . error be brought upoir a judgment in B. R. in Ireland in a writ of false judgment, upon a judgment in the Thoulsel, (which is the court of the mayor and aldermen of Dublin) and it is alligned for error, that there was no plaint entered in the Thoulsil, and that the words per quod actio accrevit were omitted in the declaration, is the defendant alledges dimi. nution, yet he shall not have a certiorari to the chief justice in Ireland, to certify the residue of the record, &c.; and that if any part of the record be not before him, tha: he should write to the mayor' and aldermen to certify it, and that he fhould certify it to this court ; for, by the plea of in nullo eft erratum in B. R. in Ireland, he hath admitted the record well certified by the mayor and aldermen: And this court hath no authority to require the court of B. R. in Ireland to write to the mayor, &c. And the judgment of B. R. in Ireland, is only here in question. And such writ being issued, a super fedeas was granted to the whole, though it was prayed that the super fedeas should be as to the
Of Proceeding in Error from the Court of King's Bench in Ireland into the King's Bench here. . ;
inserior court only; but at another day it being moved, that there might be a certiorari as to the words per quod, &c. it was granted. •
In error from Ireland, if the plaintiff does not assign his errors, the way is not to take out a jcire facias ad audiendum trrorts, as is usual on writs of error from C. B. * but to move for a common rule that the plaintiff should assign his errors, and if you cannot find any one concerned for him, fix it up in the office; and if the plaintiffm error, or some one for him, does not appear and assign errors within the time specified in the rule, an assidavit must be made thereof; and upon such affidavit, the court on motion will grant a new rule, that, unless errors be assigned in four days after fixing a new note up in the office, you may be at liberty to sign a nonpros. Stra. 417. '• , ..
In error from Ireland no bail is requisite, for Ireland is
• not mentioned in any of the statutes requiring bail upon prosecuting writs of error. Which vide ante.
If the plaintiff assigns errors, he must move for a rule for the defendant to join in error, after service of a copy of which rule, the defendant has four days allowed to join in error.
On the assignment of errors, there must be an affidavit annexed, verifying the same. ''.-' - "'-'. .
Paper-books are made up and delivered by the plaintiff
• and desendant in error to the judges, and the cause is entered for argument in like manner, as in error from the Common Pleas to the King's Bench here.
. If the judgment is assirmed, the record is transmitted to Ireland,' and the court there awards execution—Costs are given at the discretion of the court. Vide Carth. 460.
Ejectment in B. R. in Ireland, judgment for desendant, error brought in B. R. here, and the judgment was reversed; and judgment given, that the plaintiff do recover bis -term, Use. and resolved, that there should be a writ directed to the chief'justice in Ireland to reverse the judgment there,
* Even in writs cf error from C. S. a feire facias, l£c. is not now taken out, but the plaintiff is served with a rule to asiign errors. • ~ • •
. • and
Of Proceeding in Error from the Court of Kings Bench in Ireland into the King's Bench here.
and commanding the court there to award execution. Crt. Car. 368.
A judgment in Ireland can be amended here upon a writ of error in B. R. Vide Burr. Rep. \pt. 2157.
A capias does not lie for costs given here upon affirmance of a judgment given in Ireland. Ld. Raym. 427.
The declaratory acl, 6 Gea. 1. c. 5. which declares the subordinacy and dependency of the kingdom of Ireland on the king and parliament here, and that the House of Lords there have not of right jurisdiction to judge of, affirm, or reverse any judgment, sentence, or decree, given in any court there, is, at present, a disagreeable subject of contention between the two kingdoms. The ajscciations formed in that country seem determined to exact from the legislature here a formal repeal of this odious, unjust, and impolitic act, as they term it. In all probability, therefore, it will be long before our parliament, to quiet the minds of the people, will relinquish their claim to the examination of errors from the courts in Ireland to tbeir own House of Lords.
Of Proceeding in Error returnable in Parlia*
THE court of parliament is the supreme court where anciently cauies of great consequence, as between the magnates regnit were heard and determined. Hence the lords is the dernier resort to which a writ of error lies; and therefore, if a writ of error be brought of a judgment in the King's Bench into the Exchequer chamber, and there the judgment is reversed, yet a writ of error lies of such judgment into parliament, and the lords may reverse such second judgment.
So, a writ of error lies into parliament upon a judgment given in B. R. upon a suit originally commenced there, even in those actions mentioned in the stat. 27 E/iz. c. 8. for that statute only gives the party an election in those actions to have the writ of error returnable in the Exchequerchamber.
If the suit is by original in B. R. in all cases, a writ of error is returnable in parliament; for the statute of EHz. only gives the party an action to prosecute error in the Exchequer-chamber in the seven actions therein specified, is such actions were originally commenced in Z?, R.
The writ of error is obtained of the cursitor as in other cases, and is made returnable, if the parliament is sitting, immediately; or, if the parliament is prorogued, then ad proximum parliamentum.
If error is brought on a judgment in B. R. the chief jujlice conveys the roll, with the transcript, to the House of Lords, and leaving the transcript there, takes back the roll. 4 Inf. 21. Dy. 375. a. 1 Rol. 753. 1. 20. Cro. Jac. 341. Godb. 247.
Note: Error does not lie from the court of Exchequer into the House of Lords immediately, for the Exchequer-chamber interposes. Salk. 511. 4 Injl, 21. 31 Ed. 3'.
When the transcript is brought in, a peer moves the house for a day to be given the plaintiff to aslign his errors, which is accordingly ordered, and of whicti the plaintiff must take notice; otherwise, the transcript will be remitted. Upon the assignment of errors, the defendant joins issue in nullo est erratum, and thereupon another motion is made by a peer for their lordships to appoint a day for hearing the errors. On the day appointed, both parties attend with their counsel; but no more than two counsel will be heard en each side.
Of Proceeding in Error returnable in Parliament.
To regulate the proceedings in error returnable in parliament, the lords have made several orders; and first, by Ordo Dom. Proc. die Ven. 13 Dec. 1661.
Forasmuch as upon writs of error returnable in this high court of parliament, the parties therein often desire to delay justice, rather than to come to the determination of the right of the cause; " It is therefore ordered, by the lords spiritual and temporal in parliament assembled, that the plaintiffs, in all such writs, after the same and the records be brought in, snail speedily repair to the clerk of the parliament, and prosecute the writs of error, and satisfy the officers of this house their see? justly due unto them, by reason of the prosecution of the said writs of error, and the proceedings thereupon; and farther, shall assign their errors within eight days after the bringing in of such writs with the records; and if the plaintiff makes desault so to do, then the said clerk, if the desendant in such writs require it, (hall record, that the plaintiff hath not prosecuted his writ of error; and that the house do therefore award that such plaintiff shall lose his writ, and that the desendant shall go without day, and that the record be remitted: and if any plaintiff, in any writ of error, shall alledge diminution, and pray a certiorari, the clerk shall enter an award thereof accordingly, and the plaintiff may, before in nullo ejl erratum pleaded, sue forth the writ of certiorari in ordinary course, without special petition or motion to this house for the same; and if he shall not prosecute such writ, and procure it to be returned within ten days after his plea of diminution put into this house, then, unless he shall shew some good cause to this house for the enlarging of the time for the return of such writ, he shall lose the benefit of the same, and the defendant in the writ of error may proceed as if no such writ of certiorari were awarded."
And by Or do Dom. Procer. die Martis, 1 (j Apr His 1698.
The house taking notice, that upon appeals and writs of error, there have been of late several scandalous and frivolous printed casts delivered to the lords of this house; for preventing whereof for the suture, It is this day ordered, by the lords spiritual atid temporal, in parliament assembled, that no person whatsoever do presume to deliver any printed case or cases to any lord of this house, unless such case or