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Of Proceeding in Error cor am jiohis, and Error cor am vobis.
But if error coram vobis is brought upon discontinuance, &c. of a writ of error upon a judgment of C. B. or other inserior court, it seems new bail is requisite. Vide Carth. 369. and Ld. Raym. 151.
Such writ of «rror cor am vobis is allowed by the secondary in court. Carth. 369.
Such writ of error coram vobis, is not a supersedeas of itself, therefore the plaintiff in error must move the court for a supersedeas. Ibid.
If a writ of error once good, abates by plea or death, the inserior court cannot proceed; but the superior court and party may have a new writ quod coram vobis restdet j btic where the writ is ill, no new writ coram vobis can be had; as where the writ was to remove a judgment quod suit in curia no/lra, where it was in the time of a predecessor. Latch. 198.
Error coram vobis lies not after an affirmance of a judgment, except in case of error upon a fine in C. B. after affirmance thereof in B. R. Salk. 337. although in this cafe of a * fine, the transcript is only transmitted into B. R. upon error brought.
Error coram vobis does not lie in B. R. after error brought in Cam. Scacc. and judgment affirmed. Because, before the ftat. of Eliz. B. R. could not examine its own errors in facl, after an affirmance in parliament; and the Exchequer-chamber is now in the same degree with regard to B. R. in those cases within the statute, as the parliament was before, and is now. Vide Stra. 69O.
Error coram vobis lies not in the Exchequer-chamber.
* If on error brought into B. R. of a fine in C. B. and the same is reversed, a certiorari goes for the foot of the fine, and it is cancelled in B. R. If it is affirmed the transcript is remitted into C. B. because B. R. has no cbirographer.
Vol. II. Z Of
Os Proceeding in Error tarn quam.
A Writ of error tam in redditione judicii quam in adjudications txecutionis, is a writ of error brought by bail (after scire facias against them, and award of execution thereon) of the judgment against them, and the execution awarded thereupon; for they cannot have error of the principal judgment. Vide Cro. Car. 481. 2 Leon. 101. Cro. Car. 561.
Nor can the bail join with the principal in error. Palm. 567.
This writ of error recites the judgment against the principal, but alledges the error in the second judgment, and in the execution thereof to the damage of the bail.
For error in fact the bail are relievable by audita querila. Yelv. 155.
No bail is requisite upon such writ of error.
Of quashing and amending Writs of Errrtr, of Abatement, Discontinuance, Summons, and Severance in Error, &c.
A Writ ef-error was not amendable at common law, nor by any of the statutes of amendments and jeosaili, till the 5 Geo. I. c. 13. for all amendments are granted for the support of judgments; but .the principal design of writs of error is to reverse them. Ld. Raym. 71.
But by the stat. 5 Geo. 1. c. 13. it is enacted, " That all "writs of error, wherein there shall be any variance from "the original record or other desect, may and shall be *' amended and made agreeable to such record, by the re'' spective courts where such writ or writs of error shall be "made returnable, £5V."
No costs are to be paid on any amendment of writs of error, pursuant to this statute; but if the writ of error be quashed, the desendant in error shall have to/is. Fitzgib. 201.
Error of a judgment in C. B. in an action there by a feme sole. To the feire facias quart executio. nan, the plaintiff in error pleaded in abatement, that the desendant in error was married since the judgment, and before the issuing of the feire faciat; on which desendants in error moved to quash their own set. fa. and the other side insisted upon costs. Per cur. It is the same in a feire facias as in an action* where you plead in abatement, and plaintiff'* writ is abated, he pays no costs. Had there been no plea in abatement, and the party had moved to quash his own writ, we should have made h:m pay costs. The writ was quashed without costs. Pocilington v. Put, Stra. 63?.
A writ cf error was returnable before any judgment given, and on consideration k was held to be stftb a sauit as is not amendable by the 5 Geo. 1. Stra. fccj.
There was a variance between the writ of error and tKe record; and as i: stoeii in the paper the court observed it; but oeither party wouid nx-ve t& nztnd it, for leaf cf paying costs. Upcn wticb the coin. iild the stat. 5 Gt*. I. t. 13. would warrant their axeid.c? it, wi:v9 uvty i-i without costs. Gardner v. Mr rait, Ztra. 5C2. Ld. JL/jlr. 1587.
A wnt of error cannot be c.sa&td ti.l the traM.;.pC tf returced a&d i>sti. Lc. Raym. 329
A writ of errec wss ciifi^i tÆ^»-se aul the y.-ya pwtk» Wcts 3^: pli.it:fft. Li. £*;«. jt.
Of quashing and amending Writs of Error, of* Abatement, Discontinuance, Summons, and Severance in Error, &c.
A writ of error tam quam may be quashed as to one judgment, and stand good as to another, if it should be brought for error in the principal judgment, as well as for error in adjudkatione executionis, which is wrong. Ld. Raym. 328.
Judgment was against A. and B. executors; a scire fieri inquiry was awarded, to which a devajlavit against A. wa$ returned; and upon that devajlavit judgment was given against A. upon which judgment A. sued a writ of error without naming his co-executor to reverse the -principal judgment, and also the judgment upon the devasiavit against himself; and because he alone could not sue error upon the principal judgment; the writ of error was quashed as to that, and stood good as to the other part. Ibid.
A writ of error of a judgment on a recognizance was quashed, because it was in adjudkatione executionis judieii. Ld. Raym. 553. for it ought to have been in adjudications executionis super recognitionem.
So quashed for variance in the stile of the court. Ld. Raym. 704.
If one brings error without the other, who ought to join with him, though the writ shall be quashed, yet the record shall be removed by it. Ld. Raym. 1403.
Costs upon quashing writs of error are to be given in all cases. Stra. 606.
The court will not quash a writ of-error on motion, though it appears to be brought twenty-nine years after the judgment, and the statute restrains the party to twenty years, because if they did, it would deprive the plaintiff in error of the benefit of replying to the exceptions in the statute. Jiiggs v. Evans, Stra. 837.
Several judgments were against three executors, two of yrhom only joined in bringing error, and bad. 1 Wils. 88.
No person can bring error to reverse a judgment, who was not a party or privy to the record, or who was not injured by the judgment, and therefore to receive advantage by the reversal. Rol. Abr. 747. Dy. 90. Vide Bac. Abr. 2 vol. 195.
So error does not lie against any but him who was party or privy to the first judgment, his heirs, executors or administrators. Rol. Abr. 747. 9 H. 6. 46, iS'c.
If a writ of error abates by the act of the party, execution shall go. Stra. 1015. as where a writ of error brought
Os quashing and amending Writs of Error, of Abatement, Discontinuance, Summons, and Severance in Error, &c.
by a feme sole abated by her marriage, and then she and her husband brought a second writ; the court gave leave to take out execution, it being a delay by the act of the plaintiff in error.
If there are several plaintiffs in one writ of error, the death of one abates the writ of error, because there cannot be any judgment according to the writ; but if there are several desendants in error, and one dies, it is otherwise, for they are not named in the writ. Ld. Raym. 244.
A writ of error does not abate by the death of the desendant in error. Ld. Raym. 439. Salk. 264. but otherwise if the plaintiff die. Sir H. Ibynne v. Corie, 1 Vent. 34. A feire facias ad aud. errores went against the executor, when the desendant in error died.
If the plaintiff in error dies before errors assigned, the jvrit abates, and the desendant in error may sue out a feire facias to revive the judgment against his executor, &c. But if he die after errors assigned, and a joinder in error, it does not abate the writ, and the desendant in error may proceed to get the judgment assiimed, but must then revive it against the executor, &t. of the plaintiff in error.
So a writ of error does not abate by the death of the defendant in error after in nullo ejl erratum pleaded. Ld. Raym. 1295.
After the record removed into B. R. by writ of error, desendant died, and plaintiff moved C. B. for leave to sue out a fci. fa. against desendant's executors. Per cur. The record being removed out of this court, the motion is improper. Barnes 206.
Entry of dijeifee, pending a writ of error, abates it. Ld. Raym. 476.
Ab abateable writ is abated as to a stranger. Ibid.
Where a writ of error abates by motion, the court must be moved to take out execution j but otherwise if for variance. Salk. 264, 5. But now if the writ varies from the record, btc. it is amendable by 5 Geo. 1. c. 13.
If a writ of error abates or discontinues by the act and desault of the party, a second writ shall be no superfedeas. Keb. 658. As if a plaintiff in error be nonsuit, he sh»ll cot have a writ of error again. Salk. 263. pi. 4. Ld. Raym.
Z 3 91.