Of Proceeding in Error returnable in Parlia

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cafes fhall be figned by one or more of the counsel, who attend at the hearing of the caufe in the courts below, or fhall 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 houfe, and the courts in Weftminster.

And by Ordo Dom. Procer. die Mercur. 22 Dec. 1703.

Upon confideration of the great inconveniencies arifing by motions and petitions for putting off caufes after days have been appointed for hearing thereof; It is ordered, by the lords fpiritual and temporal in parliament affembled, that when a day fhall be appointed for the hearing any cause, appeal, or writ of error, argued in this houfe, the fame fhall not be altered, but upon petition; and that no petition fhall in fuch cafe be received, unless two days notice thereof be given to the adverfe party, of which notice oath fhall be made at the bar of this houfe; 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 cafes upon writs of error depending in this houfe, when diminution fhall be at any time alledged, and a certiorari prayed and awarded before in nullo eft erratum pleaded, the clerk of the parliaments fhall, upon requeft 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 ftanding 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 confideration matters relating to the proceedings on appeals, and writs of error; It is ordered, by the lords fpiritual and temporal, in parliament affembled, that at the hearing of caufes for the future, one of the counfel for the appellant fhall open the caufe, then the evidence on their fide fhall be read, which done, the other counfel for the appellants may make obfervations on the evidence; then one of the counfel for the refpondents fhall be heard, and the evidence on their fide to be read, after

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which the other counfel for the refpondents fhall 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 difcontinued by the prorogation; another writ was brought tested the last day of the seffion, viz. 1 March, returnable 19 Nov. the day to which it was prorogued. The court refolved, that though the firft writ was not difcontinued by any act of the party, yet the fecond writ fhould be no fuperfedeas. Vide 1 Vent. 31.

A writ of error tefted 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 caufe 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 otherwife if they are fummoned or prorogued to a day certain. A writ of error bore tefte 10 Nov. and returnable 1 Nov. next following, and the record was fent into the Exchequer-chamber, and a mittimus indorfed upon the roll here; and it was refolved, 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 fuperjedeas; 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 fide moved for a fuperfedeas, they would refolve the point. 1 Vent. 266. 2 Lev. 120.

If a writ of error be brought in the Exchequer-chamber, and that being difcontinued, another is brought in parliament, this fecond writ is a fuperfedeas. But if a writ of error be brought in parliament, and that abates, and the plaintiff brings a fecond, this is no fuperfedeas, because it is in the fame court. I Vent. ICO.

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 dem. Proc. and the judgment was reverfed, and the record was remitted into B. R. whereupon the plaintiff' moved B R. for a new judgment, Per cur. A new judgment cannot be given here

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contrary to that which is already given; the fame court which reverfed must give a new judgment. Philips and Bury, Carth. 319. Ld. Raym. 9, 10.

If judgment below was given for the defendant, upon demurrer, and the judgment be reverfed, whereupon a writ of enquiry becomes neceffary, in fuch 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

Of Proceeding in Error coram nobis, and Error coram vobis.

F a judgment in B. R. be erroneous in matter of fact 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 reverfe that judgment; for error in fact is not the error of the judges, and reverfing it is not reverfing their own judgment.

This writ of error is allowed in court by the fecondary, or it may be allowed in vacation by the fecondary.

It is faid to be no fuperfedeas of execution without leave of the court. Vide Carth. 368, 9.

The ftatutes 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 fhould move for a rule to compel the plaintiff to affign errors; upon fervice of which he muft immediately affign errors. Upon the affignment of error in fact, if the error in fact is affignable and well affigned, the defendant may confefs it. Salk. 268.

But a defendant can never confefs error in law.

But if the error in fact is not well affigned, the defendant may plead thereto, upon which the parties are at iffue in fat; and that must be tried by a jury. The record for trial is then made up the fame as in other cafes, and either party may carry it down; and in fuch cafe, if the iffue is found for the plaintiff in error, he must move to put the cause in the paper for argument, and then upon producing the poftea the court will give judgment of reverfal.

But if the error in fact affigned, is not affignable for error, then the defendant may join in nullo eft erratum, which is in nature of a demurrer, and the fame is argued in court as in other cafes.

Error coram vobis, and infancy affigned, a faire 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 reverfed. Thatcher v. Stephenfon, Stra. 144.

Error in C. B. infancy affigned. Doubt del court, and feigned iffue, which was found for plaintiff in error, and the judgment was reverfed on return of the posiea, upon motion, without argument in the paper, but within a day or two after. Ofborn v. Barrington, Stra. 127.

Of Proceeding in Error coram nobis, and Error 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 diftinction. 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 fhall direct. But when the term is paft, 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 fame writ of error is quashed for any other fault than variance, error coram vobis lies in the fame court to which the record is removed. Co. Ent. 289. 1 Stra. 607. and in fuch cafe fuch writ of error is the only writ that can be had. Ibid. Ld. Raym. 1403.

When errors are affigned, and afterwards that writ of error is difcontinued, the plaintiff in error may have another writ quod coram vobis refiden', and upon this new writ may affign other errors than thofe he affigned before, either within or without the record, and is not bound to the fame errors.

This writ of error coram vobis recites the former writ of error, and muft recite it accurately, for where fuch writ recited the former writ to be returnable coram nobis, where it was before the king and the late queen, it was quafhed. Ld. Raym. 151. Garth. 370. Sed q. and vide title Amending Writs of Error, poft.

This writ of error must be entered upon the fame roll with the firft, that the court may fee all together. Cro. El. 155, 281.

If a writ of error, quod coram vobis, is brought after abatement or difcontinuance of a writ of error quod coram nobis, no bail is requifite, because none was required in the writ of error coram nobis.

But that writ was quafhed for that reafon, because the writ of error was brought to defeat a judgment; and therefore it fhould not have a favourable conftruction; although in the fame cafe it was infifted, that according to a grammatical construction, the relatives and verb being in the plural number, the claufe would extend to the queen as well as the king.