Page images
PDF
EPUB

Of Proceeding in Error from the Court of King's Bench in Ireland into the King's Bench here.

ERROR of a judgment given in the King's Bench in Ire

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 curfitor in the fame 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 fends only a tranfcript of the record, and not the record itself, because of the danger of the feas. Cro. Fac. 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 curfitor for a writ de executione judicii directed to the chief justice in Ireland, whereupon execution may be had of the judgment there.

When the tranfcript is brought over and filed, copies thereof are made out for both parties.

It is faid, that neither party can alledge diminution of the record, and pray a certiorari. But fee Show. 214. centra. And in Palm. 285. Banister v. Kennedy, where it is faid-lf error be brought upon a judgment in B. R. in Ireland in a writ of falfe judgment, upon a judgment in the Thoulfel, (which is the court of the mayor and aldermen of Dublin) and it is aligned for error, that there was no plaint entered in the Thoul, and that the words per quod actio accrevit were omitted in the declaration, if the defendant alledges diminution, yet he shall not have a certiorari to the chief justice · in Ireland, to certify the refidue of the record, &c.; and that if any part of the record be not before him, that he fhould write to the mayor and aldermen to certify it, and that he should 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 judginent of B. R. in Ireland, is only here in queftion. And fuch writ being iffued, a fuperfedeas was granted to the whole, though it was prayed that the fuperfedeas fhould be as to the

Y 4

inferior

[ocr errors]

Of Proceeding in Error from the Court of King's Bench in Ireland into the King's Bench here.

inferior 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 affign his errors, the way is not to take out a fcire facias ad audiendum errores, as is ufual on writs of error from C. B.* but to move for a common rule that the plaintiff fhould affign his errors, and if you cannot find any one concerned for him, fix it up in the office; and if the plaintiff in error, or fome one for him, does not appear and affign errors within the time specified in the rule, an affidavit must be made thereof; and upon fuch affidavit, the court on motion will grant a new rule, that, unless errors be affigned in four days after fixing a new note up in the office, you may be at liberty to fign a nonpros. Stra. 417.

In error from Ireland no bail is requifite, for Ireland is not mentioned in any of the ftatutes requiring bail upon profecuting writs of error. Which vide ante.

If the plaintiff affigns errors, he must move for a rule for the defendant to join in error, after fervice of a copy of which rule, the defendant has four days allowed to join in

error.

On the affignment of errors, there must be an affidavit annexed, verifying the fame.

Paper-books are made up and delivered by the plaintiff and defendant 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 affirmed, the record. is tranfmitted to Ireland, and the court there awards execution-Costs are given at the difcretion of the court. Vide Carth. 460.

[ocr errors]

Ejectment in B. R. in Ireland, judgment for defendant, error brought in B. R. here, and the judgment was reverfed; and judgment given, that the plaintiff do recover bis term, &c. and refolved, that there fhould be a writ directed to the chief juftice in Ireland to reverfe the judgment there,

* Even in writs of error from C. B. a fcire facias, &c. is not now taken out, but the plaintiff is ferved with a rule to affign

errors.

and

Of Proceeding in Error from the Court of King's Bench in Ireland into the King's Bench here.

and commanding the court there to award execution. Cro. Car. 368.

A judgment in Ireland can be amended here upon a writ of error in B. R. Vide Burr. Rep. 4 pt. 2157.

A capias does not lie for cofts given here upon affirmance of a judgment given in Ireland. Ld. Raym. 427.

The declaratory aƐt, 6 Geo. 1. c. 5. which declares the fubordinacy and dependency of the kingdom of Ireland on the king and parliament here, and that the House of Lords there have not of right jurifdiction to judge of, affirm, or reverse any judgment, fentence, or decree, given in any court there, is, at prefent, a difagreeable fubject of contention between the two kingdoms. The affociations formed in that country feem determined to exact from the legiflature 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 their own Houfe of Lords.

Of

Of Proceeding in Error returnable in Parlia

T

ment.

HE court of parliament is the fupreme court where anciently causes of great confequence, as between the magnates regni, were heard and determined. Hence the lords is the dernier refort 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 reverfed, yet a writ of error lies of fuch judgment into parliament, and the lords may reverse fuch fecond judgment.

So, a writ of error lies into parliament upon a judgment given in B. R. upon a fuit originally commenced there, even: in those actions mentioned in the ftat. 27 Eliz. c. 8. for that statute only gives the party an election in those actions to have the writ of error returnable, in the Exchequerchamber.

A

If the fuit is by original in B. R. in all cafes, a writ of error is returnable in parliament; for the ftatute of Eliz. only gives the party an action to profecute error in the Exchequer-chamber in the feven actions therein fpecified, if such actions were originally commenced in B. R.

The writ of error is obtained of the curfitor as in other cafes, and is made returnable, if the parliament is fitting, immediately; or, if the parliament is prorogued, then ad proximum parliamentum.

If error is brought on a judgment in B. R. the chief justice conveys the roll, with the tranfcript, to the House of Lords, and leaving the tranfcript 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 interpofes. Salk. 511. 4 Inft. 21. 31 Ed. 3.

When the transcript is brought in, a peer moves the house for a day to be given the plaintiff to affign his errors, which is accordingly ordered, and of which the plaintiff must take notice; otherwife, the tranfcript will be remitted. Upon the affignment of errors, the defendant joins iffue in nullo eft 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 counfel; but no more than two counfel will be heard on each fide.

To

Of Proceeding in Error returnable in Parlia

ment.

To regulate the proceedings in error returnable in parliament, the lords have made feveral orders; and first, by Ordo Dom. Proc. die Ven. 13 Dec. 1661.

Forafmuch as upon writs of error returnable in this high court of parliament, the parties therein often defire to delay justice, rather than to come to the determination of the right of the caufe; "It is therefore ordered, by the lords fpiritual and temporal in parliament affembled, that the plaintiffs, in all fuch writs, after the fame and the records be brought in, fhall fpeedily repair to the clerk of the parliament, and profecute the writs of error, and fatisfy the officers of this houfe their fees juftly due unto them, by reafon of the profecution of the faid writs of error, and the proceedings thereupon; and further, fhall affign their errors within eight days after the bringing in of fuch writs with the records; and if the plaintiff makes default fo to do, then the faid clerk, if the defendant in fuch writs require it, fhall record, that the plaintiff hath not profecuted his writ of error; and that the houfe do therefore award that fuch plaintiff fhall lofe his writ, and that the defendant fhall go without day, and that the record be remitted: and if any plaintiff, in any writ of error, fhall alledge diminution, and pray a certiorari, the clerk fhall enter an award thereof accordingly, and the plaintiff may, before in nullo eft erratum pleaded, fue forth the writ of certiorari in ordinary courfe, without fpecial petition or motion to this house for the fame; and if he shall not profecute fuch writ, and procure it to be returned within ten days after his plea of diminution put into this house, then, unless he fhall thew fome good cause to this houfe for the enlarging of the time for the return of fuch writ, he shall lose the benefit of the fame, and the defendant in the writ of error may proceed as if no fuch writ of certiorari were awarded."

And by Ordo Dom. Procer. die Martis, 19 Aprilis 1698.

The house taking notice, that upon appeals and writs of error, there have been of late feveral fcandalous and frivolous printed cafes delivered to the lords of this house; for preventing whereof for the future, It is this day ordered, by the lords fpiritual and temporal, in parliament afïembled, that no perfon whatsoever do prefume to deliver any printed cafe or cafes to any lord of this house, unless such case or

cafes

« PreviousContinue »