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Of Proceeding in Error returnable in Parlia
cases thall be signed by one or more of the counsel, who attend at the hearing of the cause in the courts below, or shall be of counsel at the hearing in this house : and this order to be added to the roll of standing orders, and affixed on the doors of this house, and the courts in Westminster.
And by Ordo Dom. Procer. die Mercur, 22 Dec. 1703.
Upon consideration of the great inconveniencies arising by motions and petitions for putting off causes after days have been appointed for hearing thereof; It is ordered, by the lords spiritual and temporal in parliament assembled, that when a day shall be appointed for the hearing any cause, appeal, or writ of error, argued in this house, the same shall not be altered, but upon petition, and that no petition shall in such case be received, unless two days notice thereof be given to the adverse party, of which notice oath shall be made at the bar of this house; and it is further ordered, that this order be added to the roll of standing orders.
And by Ordo Dom. Procer. die Veneris, 21 Feb. 1717.
Ordered, that in all cases upon writs of error depending in this house, when diminution shall be at any time alledged, and a certiorari prayed and awarded before in nullo eft erratum pleaded, the clerk of the parliaments shall, upon request to him made, give a certificate that diminution is so alledged, and a certiorari prayed and awarded thereupon. And it is further ordered, that this order be entered on the roll of the standing orders of this house.
And by Ordo Dom. Procer. die Sabbatis, 2 Mart. 1727.
Upon report from the committee of the whole house, appointed to take into consideration matters relating to the proceedings on appeals, and writs of error; It is ordered; . by the lords spiritual and temporal, in parliament assembled, that at the hearing of causes for the future, one of the counsel for the appellant shall open the cause, then the evidence on their side shall be read, which done, the other counsel for the appellants may make observations on the evidence; then one of the counsel for the respondents thall be heard, and the evidence on their fide to be read, after
Of Proceeding in Error returnable in Parlia
which the other counsel for the respondents shall be heard and one counsel only for the appellants to reply.
; If the parliament is diffolved, the writ of error is abated.
A writ of error returnable in parliament, was discontinued by the prorogation; another writ was brought tested the last day of the session, viz. i March, returnable 19 Nov. the day to which it was prorogued. The court resolved, that though the first writ was not discontinued by any act of the party, yet the second writ should be no super fedeas. Vide i Vent. 31.
A writ of error tested 30 Nov. returnable in parliament the 30th of April next, the day to which parliament was prorogued. Per Hale, The lords have lately declared, that prorogation does not determine a cause depending in parliament by writ of error; but that comes not to this case, the writ not being returned. A writ of error returnable at the next parliament is not good ; but otherwise if they are summoned or prorogued to a day certain. A writ of error bore tefte io Nov, and returnable i Nov. next following, and the record was sent into the Exchequer-chamber, and a mittimus indorsed upon the roll here ; and it was resolved, that execution might be taken out, because of the long return. 2dly, That though there were a mittimus upon the roll, yet the record remained here until the return of the writ to all purposes. In the opinion of the court, the writ of error was no super fedeas ; but they would make no rule, because not judicially before them ; but that the party might take out execution if he thought fit; and then if the other side moved for a supersedeas, they would resolve the point. Vent. 266. 2 Lev. 120.
If a writ of error be brought in the Exchequer-chamber, and that being discontinued, another is brought in parliament, this second writ is a super fedeas. But if a writ of error be brought in parliament, and that abates, and the plaintiff brings a second, this is no super fedeas, because it is in the same court. Vent. 100.
A writ of error does not determine by the prorogation of the parliament. 2 Lev. 93.
Error of a judgment in B. R. for defendant into dom. Proc. and the judgment was reversed, and the record wis remitted into B. R. whereupon the plaintiff' moved B. R. for a new judgment. Per cur. A new judgment cannot be given here
nd the judowhereupo A new ju
Of Proceeding in Error returnable in Parlia
contrary to that which is already given; the same court which reversed must give a new judgment. Philips and Bury, Carth. 319. Là. Raym. 9, 1o.
If judgment below was given for the defendant, upon demurrer, and the judgment be reversed, whereupon a writ of enquiry becomes necessary, in such case, as the lords cannot award a writ of enquiry, the record is remitted to B. R. for them to award the writ of enquiry, and upon return thereof, then to give final judgment. Vide ibid.
Of Proceeding in Error coram nobis, and Error
T F a judgment in B. R. be erroneous in matter of fact
I only, and not in point of law, a writ of error coram nobis refidend may be brought in B. R. where the judgment was given, to reverse that judgment; for error in fact is not the error of the judges, and reversing it is not reversing their own judgment.
This writ of error is allowed in court by the secondary, or it may be allowed in vacation by the secondary.
It is said to be no fuper fedeas of execution without leave of the court. Vide Carth. 368, 9.
The statutes requiring bail in error do not extend to this writ of error.
When the writ is allowed, and notice thereof given, the defendant in error should move for a rule to compel the plaintiff to assign errors ; upon service of which he must immediately afsign errors. Upon the assignment of error in fact, if the error in fact is assignable and well assigned, the defendant may confess it. Salk. 268.
But a defendant can never confels error in law.
But if the error in fact is not well assigned, the defendant may plead thereto, upon which the parties are at issue in fat; and that must be tried by a jury. The record for trial is then made up the same as in other cases, and either party may carry it down; and in fuch case, if the issue is found for the plaintiff' in error, he must move to put the cause in the paper for argument, and then upon producing the postea the court will give judgment of reversal.
But if the error in fast assigned, is not allignable for error, then the defendant may join in nullo eft erratum, which is in nature of a demurrer, and the same is argued in court as in other cases.
Error coram vobis, and infancy assigned, a fcire facias ad audiendum errores, and fcire feci returned ; but defendant did not appear and join in error; on which plaintiff applied to know what to do. The court directed him to put it in the paper, without taking out any rule to join in error; and when it came on, the judgment was reversed. Thatcher v. Stephenson, Stra. 144.
Error in C. B. infancy assigned. Doubt del court; and feigned issue, which was found for plaintiff in error, and the judgment was reversed on return of the poliea, upon mosion, without argument in the paper, but within a day or two after. Ofporn v. Barrington, Stra. 127.
Of Proceeding in Error coram nobis, and Er
ror coram vobis.
In F. N. B. 21. It is faid, that a judgment cannot the fame term it is given be reverfed in B. R. without a writ of error, though a judgment in the Common Pleas may: but there seems no foundation for this distinction. Moor 186. pl. 332. Yelv. 157. Pop. 181. For during the whole term in which any judicial act is done, the record remains in the breaft of the judges of the court; and therefore the roll is alterable during the term, as they shall direct. But when the term is patt, the roll is the record, and admits of no alteration. Co. Lit. 260. a.
When a record is removed upon error brought from C. B. or other inferior court into B. R. and the same writ of error is quashed for any other fault than variance, error coram vobis lies in the same court to which the record is removed. Co. Ent. 289. 1 Stra. 607. and in such case such writ of error is the only writ that can be had. Ibid. Ld. Raym. 1403.
When errors are afrigned, and afterwards that writ of error is discontinued, the plaintiff in error may have another writ quod coram vobis refiden', and upon this new writ may assign other errors than those he assigned before, either within or without the record, and is not bound to the same errors.
This writ of error coram vobis recites the former writ of error, and must recite it accurately, for where such writ recited the former writ to be returnable coram nobis, where it was before the king and the late queen, it was * quashed. Ld. Raym. 151. Carth. 370. Sed q. and vide title Amending Writs of Error, poft.
This writ of error must be entered upon the same roll with the firit, that the court may see all together. Cro. El. 155, 281.
If a writ of error, quod coram vobis, is brought after abatement or discontinuance of a writ of error quod coram nobis, no bail is requisite, because none was required in the writ of error coram nobis.
* But that writ was quashed for that reason, because the writ of error was brought to defeat a judgment; and therefore it should not have a favourable construction ; although in the same case it was insisted, that according to a grammatical construction, the relatives and verb being in the plural number, the clause would extend to the queen as well as the king. :