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Of Proceeding in Error returnable in Parliament.
cases shall 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 assixed on the doors of this house, and the courts in Wejiminjler.
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 haye 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 (hall in such case be received, unless two days notice thereof he 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. IJ1J.
Ordered, that in all cases upon writs of error depending in this house, when diminution shall be at any time alledged, and a ccrtiorari prayed and awarded before in nullo est 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 surther ordered, that this order be entered on the roil of the standing orders of this house.
And by Ordo Dom. Procer. die Sabbatis, 2 Mart. 1727.
Upon report from the committee 6i 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 os causes for the suture, one of the counsel for the appellant shall open the cause, then. the evidence on t.heir side si's all be read, which done, the other counsel for the appellants may make observations on the evidence; then one of the counsel for the respondents shall be heard, and the evidence on their fide to be read, after
.-...*: i which
Of Proceeding in Error returnable in Parliament.
which the other counsel for the respondents shall be heard and one counsel only for the appellants to reply.'
If the parliament is dissolved, 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. 1 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 supersedeas. Vide 1 Vent. 31.
A writ of error tested 30 Nov. returnable in parliament the yzib 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 teste 10 Nov. and returnable 1 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. idly, 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 supersedeas; but they would make no rule, because nor judicially before them; but that the party might take out execution if he thought fit; and then if the other fid? moved for a supersedeas, they would resolve the point. 1 Vent. 266. % Lev. 120.
If a writ of error be brought in the Exchequer-chamber, and that being discontinued, another is brougiit in parliament, this second writ is a supersedeas. But if a writ of error be brought in parliament, and that abates, and the plaintiff brings a second, this is no supersedeas, because it is in the same court. 1 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 desendant into dom. Proc. and the judgment was reversed, and the record was remitted into B. R. whereupon. the plaintiff' moved B R. for a new judgment. Per cur. Anew judgment cannot be ^iven here
Of Proceeding in Error returnable in Parliament.
contrary to that which is already given; the same court which reversed must give a new judgment. Philips and Bury, Carth. 319. Ld. Raym. 9, 10.
If judgment below was given for the desendant, 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. lor 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 coram 'oobis.
IF a judgment in B. R. be erroneous in matter of fact only, and not in point of law, a writ of trror coram nobis refident? 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 supersedeas 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 desendant in error should move for a rule to compel the plaintiff to assign errors; upon service of which he must immediately assign errors. Upon the assignment of error in fact, if the error in fact is assignable and well assigned, the desendant may consess it. Salk. 268.
But a desendant can never consess error in law. But if the error in sact is not well assigned, the desendant may plead thereto, upon which the parties are at issue in fact; 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 such cafe, 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 po/lea the court will give judgment of reversal.
But if the error in fact assigned, is not assignable for error, then the desendant 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 insancy assigned, a fiiri facias ad audiendum errores, and' scire seci returned; but desendant 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. Tnatcher v. Stephenson, Stra. 144.
Error in C.B. insancy assigned. Doubt del court, ahd seigned issue, which was found for plaintiff in error, and the judgment was reversed en return of the po/iea, upon motion, without argument in the paper, but within a day or two after. Ostorn v. Barringtonf Stra. 127.
Of Proceeding in Error coram nobis, and Error coram vobis.
In F.N. B. 21. It is said, that a judgment cannot the same term it is given be reversed 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. pi. 332. Yilv. 157. Pop. 181. For during the whole term in which any judicial act is done, the record remains in the breast of the judges of the court; and therefore the roll is alterable during the term, as they shall direct. But when the term is past, the roll is the record, and admits of no alteration. Co. Lit. 260. a.
When a racord is removed upon error brought from C.B. or other inserior court into B. R. and the same writ of error is quashed for any other sault 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. Rajm. I403.
When errors are assigned, 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 Ot 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. Cartb. 370. Sed q. and vide title Amending Writs of Error, post.
This writ of error must be entered upon the same roll -with the first, that the court may see all together. Cro.
EL i55t 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 savourable construction j 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.
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