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Of Proceeding in Error coram nobis, and Error
But if error coram vobis is brought upon discontinuance, &c. of a writ of error upon a judgment of C. B. or other inferior court, it seems new bail is requisite. Vide Carth. 369. and Ld. Raym. 151.
Such writ of error coram vobis is allowed by the secondary in court. Carth. 369.
Such writ of error coram vobis, is not a super fedeas of itself, therefore the plaintiff in error must move the court for a super fedeas. Ibid.
"If a writ of error opce good, abates by plea or death, the inferior court cannot proceed ; but the superior 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 nostra, where it was in the time of a predecessor: Latch. 198.
Error coram vobis lies not after an affirmance of a judga ment, except in case of error upon a fine in C. B. after affirmance thereof in B. R. Salk. 337. although in this case 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 stat. of Eliz. B. R. could not examine its own errors in fact, after an affirmance in parliainent; 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. 690.
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 chirographer.
Of Of Proceeding in Error tam quam. A Writ of error tam in redditione judicii quam in adjudica1 tione executionis, 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 Cré. 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 querela. Yelv. 155.
No bail is requisite upon such writ of error,
fact the beauty the", the recent agai
Of quashing and amending Writs of Error, of
Abatement, Discontinuance, Summons, and
A Writ of error was not amendable at common law, nor by n any of the statutes of amendinents and jeofails, till the 5 Geo. 1. 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 6 writs of error, wherein there shall be any variance from " the original record or other defect, may and shall be «s amended and made agreeable to such record, by the re" spective courts where such writ or writs of error shall be “ made returnable, &c." : 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 defendant in error shall have costs. Fitzgib. 201.
Error of a judgment in C. B. in an action there by a feme sole. 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 issuing of the scire facias; on which defendants in error moved to quath their own fci. fa. and the other side infifted upon costs. Per cur. It is the same in a foire facias as in an action, where you plead in abatement, and plaintiff's writ is abated, he pays no costs. Had chere been no plea in abatement, and the party had moved to quath his own writ, we thould have made him pay costs. The writ was quashed without costs. Pocklington v. Peck, Stra. 638.
A writ of error was returnable before any judgment given, and on consideration it was held to be such a fault · as is not amendable by the 5 Geo. I. Stra. 807. • There was a variance between the writ of error and the record; and as it stood in the paper the court observed it; but neither party would move to amend it, for fear of paying costs. Upon which the court said the stat. 5 Geo. 1. 6. 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 quaihed till the transcript is . returned and filed. Ld. Raym. 329
A writ of error was quashed because all the proper parties were not plaintiffs. Ld. Raym. 71.
Of qualhing and amending Writs of Error, of
Abatement, Discontinuance, Summons, and
A writ of error tam quam may be qualhed as to one judge ment, and stand good as tɔ 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 scire fieri inquiry was awarded, to which a devaslavit against A. was returned ; and upon that devaslavit judgment was given against A. upon which judgment A. lued a writ of error without naming his co-executor to reverse the principal judgment, and also the judgment upon the devastavit 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 adjudicatione executionis judicii. Ld. Raym. 553. for it ought to have been in adjudicatione executionis super recognitionem.
So qualhed 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.
Cofts 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. Higgs v. Evans, Stra. 837.
Several judgments were against three executors, two of whom only joined in bringing error, and bad. I Will. 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. 9o. 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. Rel. Abr. 747. 9 H. 6. 46, &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
Of quashing and amending Writs of Error, of
Abatement, Discontinuance, Summons, and Severance in Error, &c.
by a feme pole abated by her marriage, and then the 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 defendants 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 defendant in error. Ld. Raym. 439. Salk. 264. but otherwise if the plaintiff die. Sir H. Thynne v. Corie, i Vent. 34. A scire facias ad aud. errores went against the executor, when the defendant in error died.
If the plaintiff in error dies before errors alligned, the writ abates, and the defendant in error may sue out a fcire 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 defendant in error may proceed to get the judgment affirmed, but must then revive it against the executor, 830. of the plaintiff in error. .
So a writ of error does not abate by the death of the defendant in error after in nullo eft erratum pleaded. Ld. Raym. 1295.
After the record removed into B. R. by writ of error, defendant died, and plaintiff moved C. B. for leave to sue out a sci. fa. against defendant's executors. Per cur. The record being removed out of this court, the motion is improper. Barnes 206.
Entry of diffeisee, 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 otherwise if for variance. Salk, 264, 5. But now if the writ varies from the record, &c. it is amendable by 5 Geo. 1. 6. 13.
If a writ of error abates or discontinues by the act and default of the party, a second writ shall be no fuper fedeas. Keb. 658. As if a plaintiff in error be nonsuit, he shall not have a writ of error again. Salk. 263. pl. 4. Ld. Raym.
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