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

But if error coram vobis is brought upon difcontinuance, &c. of a writ of error upon a judgment of C. B. or other inferior court, it feems new bail is requifite. Vide Carth. 369. and Ld. Raym. 151.

Such writ of error coram vobis is allowed by the fecondary in court. Carth. 369.

Such writ of error coram vobis, is not a fuperfedeas of itself, therefore the plaintiff in error muft move the court for a fuperfedeas. Ibid.

If a writ of error once good, abates by plea or death, the inferior court cannot proceed; but the fuperior court and party may have a new writ quod coram vobis refidet; but where the writ is ill, no new writ coram vobis can be had ; as where the writ was to remove a judgment quod fuit in curia noftra, where it was in the time of a predeceffor. Latch. 198.

Error coram vobis lies not after an affirmance of a judgment, except in cafe of error upon a fine in C. B. after affirmance thereof in B. R. Salk. 337. although in this cafe of a fine, the tranfcript is only tranfmitted into B. R. upon error brought.

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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 fact, after an affirmance in parliament; and the Exchequer-chamber is now in the fame degree with regard to B. R. in those cases within the ftatute, 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 fame is reversed, a certiorari goes for the foot of the fine, and it is cancelled in B. R. If it is affirmed the tranfcript is remitted into C. B. because B. R. has no chirographer.

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Of Proceeding in Error tam quam.

Writ of error tam in redditione judicii quam in adjudicatione executionis, is a writ of error brought by bail (after fcire 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 fecond judgment, and in the execution thereof to the damage of the bail.

For error in fact the bail are relievable by audita querela. Yelv. 155.

No bail is requifite upon fuch writ of error.

Of quafhing and amending Writs of Error, of Abatement, Difcontinuance, Summons, and Severance in Error, &c.

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Writ of error was not amendable at common law, nor by any of the ftatutes of amendments and jeofails, till the 5 Geo. 1. c. 13. for all amendments are granted for the fupport of judgments; but the principal defign of writs of error is to reverfe them. Ld. Raym. 71.

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But by the ftat. 5 Geo. 1. c. 13. it is enacted, "That all "writs of error, wherein there fhall be any variance from "the original record or other defect, may and shall be <amended and made agreeable to fuch record, by the re"fpective courts where fuch writ or writs of error shall be "made returnable, &c."

No cofts are to be paid on any amendment of writs of error, pursuant to this ftatute; but if the writ of error be quashed, the defendant in error fhall have costs. Fitzgib. 201.

Error of a judgment in C. B. in an action there by a feme fole. To the fcire facias quare executio. non, the plaintiff in error pleaded in abatement, that the defendant in error was married fince the judgment, and before the ifsuing of the scire facias ; on which defendants in error moved to quash their own fei. fa. and the other fide infifted upon cofts. Per cur. It is the fame in a feire facias as in an action, where you plead in abatement, and plaintiff's writ is abated, he pays no costs. Had there been no plea in abatement, and the party had moved to quafh his own writ, we should have made him pay cofts. The writ was quashed without cofts. Pocklington v. Peck, Stra. 638.

A writ of error was returnable before any judgment given, and on confideration it was held to be fuch a fault as is not amendable by the 5 Geo. 1. Stra. 807.

There was a variance between the writ of error and the record; and as it ftood in the paper the court obferved it; but neither party would move to amend it, for fear of paying cofts. Upon which the court faid the ftat. 5 Geo. 1. . 13. would warrant their amending it, which they did without costs. Gardner v. Merratt, Stra. 902. Ld. Raym. 1587.

A writ of error cannot be quafhed till the tranfcript is returned and filed. Ld. Raym. 329

A writ of error was quafhed becaufe all the proper parties were not plaintiffs. Ld. Raym. 71.

Of quafhing and amending Writs of Error, of Abatement, Difcontinuance, Summons, and Severance in Error, &c.

A writ of error tam quam may be quafhed 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 adjudicatione executionis, which is wrong. Ld. Raym. 328.

Judgment was against A. and B. executors; a fcire fieri inquiry was awarded, to which a devaftavit against A. was returned; and upon that devaftavit judgment was given against A. upon which judgment A. fued a writ of error without naming his co-executor to reverse the principal judgment, and alfo the judgment upon the devaftavit against himself; and because he alone could not fue error upon the principal judgment; the writ of error was quashed as to that, and food good as to the other part. Ibid.

A writ of error of a judgment on a recognizance was quafhed, because it was in adjudicatione executionis judicii. Ld. Raym. 553. for it ought to have been in adjudicatione executionis fuper recognitionem.

So quafhed for variance in the ftile of the court. Ld. Raym. 704.

If one brings error without the other, who ought to join with him, though the writ fhall be quashed, yet the record fhall be removed by it. Ld. Raym. 1403.

Cofts upon quafhing writs of error are to be given in all cafes. Stra. 606.

The court will not quafh a writ of error on motion, though it appears to be brought twenty-nine years after the judgment, and the ftatute 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. Higgs v. Evans, Stra. 837.

Several judgments were against three executors, two of whom only joined in bringing error, and bad. I Wilf. 88.

No perfon 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 reverfal. 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 firft judgment, his heirs, executors or adminiftrators. Rol. Abr. 747. 9 H. 6. 46, &c.

If a writ of error abates by the act of the party, execution fhall go. Stra. 1015. as where a writ of error brought

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Of quashing and amending Writs of Error, of Abatement, Difcontinuance, Summons, and Severance in Error, &c.

by a feme fole abated by her marriage, and then she and her husband brought a fecond 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 feveral defendants in error, and one dies, it is otherwife, for they are not named in the writ. Ld. Raym. 244.

A writ of error does not abate by the death of the defendant in error. Ld. Raym. 439. Salk. 264. but otherwise if the plaintiff die. Sir H. Thynne v. Corie, 1 Vent. 34. A feire facias ad aud. errores went against the executor, when the defendant in error died.

If the plaintiff in error dies before errors affigned, the writ abates, and the defendant in error may fue out a feire facias to revive the judgment against his executor, &c. But if he die after errors affigned, and a joinder in error, it does not abate the writ, and the defendant in error may proceed to get the judgment affirmed, but muft then revive it againft the executor, &c. of the plaintiff in error.

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So a writ of error does not abate by the death of the defendant in error after in nullo eft erratum pleaded. Raym. 1295.

After the record removed into B. R. by writ of error, defendant died, and plaintiff moved C. B. for leave to fue out a fei. fa. against defendant's executors. Per cur. The record being removed out of this court, the motion is improper. Barnes 206.

Entry of diffeifee, pending a writ of error, abates it. Ld. Raym. 476.

An 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; but otherwife if for variance. Salk. 264, 5. But now if the writ varies from the record, &c. it is amendable by 5 Geo. 1. c. 13.

If a writ of error abates or difcontinues by the act and default of the party, a fecond writ fhall be no fuperfedeas. Keb. 658. As if a plaintiff in error be nonfuit, he fall not have a writ of error again. Salk. 263. pl. 4. Ld. Raym.

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