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

91.

S. P.

5

Mod. 228. Com. 393. 12 Mod. 105. Comb. 19.

But if a writ of error abates by the act of God, or the law, a fecond writ of error will be a fuperfedeas. As where a writ of error abated by the death of the lord chief juftice Fofter, and a fecond writ of error was fued out and allowed, and it was held a fuperfedeas. Keb. 658, 686.

So a fecond writ is a fuperfedeas upon abatement of the firft writ of error by death.

Three join in bringing a writ of error, the defendant pleads outlawry in abatement as to one of them; but the court held this no good plea, because they are all compellable to join. Palm. 151.

Where two join in a writ of error, and one will not affign errors, the court will give the other time to fummon and fever. Stra. 783.

For if judgment is given against two, both ought to join in error-but if one dies after judgment, error may be brought by the furvivor without the executor of the other. Stra. 234.

If one plaintiff affigns errors, he must do it in the name of all, except where the others are fevered. Mod. Caf. 40. If after a writ of error brought by two, and to a feire facias quare executionem non one only appears, fummons and feverance lies. Yelv. 4.

A. fued B. in the Common Pleas in Ireland, and recovered -A. died, and his executors took out a feire facias quare ex. non, to which B. pleaded payment, and found against him, with 6d. damages; and the judgment was, that they fhould have execution of the debt and damages aforefaid, and also their cofs and expences, &c. and for coffs de incremento.-B. brought error in B. R. in Ireland, and only one of the executors appeared to the writ, who alone fued out the feire facias quare ex. non in B. R. there; and yet, that court affirmed the judgment of C. B. for both, and adjudged, that both fhould recover. On which B. brought error into B. R. here, and though 1. Objection was taken that the court below had given damages for the non-payment, whereas damages cannot be given in a fei. fa. And 2. That the fci. fa. in B. R. in Ireland was prayed by one executor only, though the writ of error was brought against

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

two, and no fuggeftion that either is dead; yet B. R. in England affirmed the judgment. And as to the firft objection they faid, "that the being damnified and put to cofts to the amount of 6 d. was only meant as a foundation for the cofts de incremento; and the judgment is, that the plaintiffs fhall recover 17 l. 14 s. 8 d. for their cofts and expences, &c. To the fecond objection, The fci. fa. quare, &c. is only a process to bring the plaintiff in error in to affign errors, and as he came in and affigned errors, he waved any objection, and admitted the one executor to be fufficient to call upon him to affign errors; and from this we are to prefume, that the other executor is dead: And though a writ of error by one alone, upon a judgment against two, is not good, it is upon account of the inconvenience that would arife from a perpetual delay of execution, if every defendant might bring a writ of error by himself; but that reafon does not not hold in this cafe, where the executors are defendants in error, and not plaintiffs. Knox v. Coftello. Burr, 4 pt. 1789.

In an action for flander, verdict was for the plaintiff as to one set of words, and for defendant as to the other. And on error from C. B. into B. R. the errors affigned were, that there ought to have been a judgment for defendant as to the words of which he was acquitted, that he might be able hereafter to plead acquittal in bar of another action; and that the plaintiff should have been amerced pro falfo clamore as to fo much. The court of B. R. thought the judgment infupportable, but allowed the defendant in error to move the court of C. B. for leave to amend the record by the verdict, which was granted on a rule to shew caufe; and then B. R. amended the record which had been fent there, and affirmed the judgment. Smith v. Fuller. Stra. 786.

After error in Cam. Scacc. from B. R. the transcript was brought back and amended in B. R. by the original record there; and it was held neceffary to make the amendment in B. R. because this differs from the cafe of a writ of error from C. B. into B. R. for C. B. fends up the very record, whereas B. R. only fends the transcript. Rutter v. Redstone. Stra. 837.

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

Plaintiff's attorney, after a writ of error brought artfully, delayed figning the final judgment till the writ of error was fpent, and then brought an action of debt upon the judgment. The court ordered proceedings in the action upon the judgment to be ftayed, and a new writ of error to be brought at plaintiff's attorney's expence. Arden v. Lamley. Barnes 250.

After error brought on a judgment against an executor de bonis propriis, and in nullo eft erratum pleaded, and on argument thereon in Cam Scacc. it was moved in B. R. to amend the judgment by making it de bonis teftatoris fi, &c. et de bonis propriis fi non, c. And the amendment was granted contrary to 1 Ld. Raym. 182. Short v. Coffin Exor.

4 pt. 2730.

Burr.

DE

A

Of Falle Judgment.

Writ of falfe judgment lies where an erroneous judg ment is given in any court not of record, in which the fuitors are judges. F. N. B. 18. a.

If there are no fuitors by whom the plaint may be certified, there shall not be falfe judgment, as in a copyhold court, in which, upon an erroneous proceeding, the copyholder muft fue to the lord by petition. F. N. B. 18. H.

A writ of falfe judgment upon a judgment in the fheriff's court, is in the nature of a recordari. F. N. B. 18. A. B. And upon a judgment in another court, not of record, it is in the nature of an accedas ad curiam. Ibid.

A writ of falfe judgment may be fued by any one against whom judgment is given; his heir, executor, or adminiftrator.

Or by any one who has damages, though the other defendants do not join as they ought to do in error. R. Mod. 854.

A writ of falfe judgment iffues as a writ of error out of Chancery, upon application to the proper curfitor.

Upon the return of the writ and the whole record certified, and not before, the plaintiff fhall affign his errors, F. N. B. 18. I.

And he may have a fcire facias ad audiendum errores, as in error. F. N. B. 18. F. G. Or now he may ferve a rule as in cafes of error.

Or, if the defendant has day by the roll, the plaintiff may affign errors without a feire facias against him.

The writ of false judgment ought to be ferved in court. 6 Hen. 7. 16. a.

And being ferved, fhall be a fuperfedeas to all proceedings below. 6 Hen. 7. 15. b.

Upon two fci. fa. ad aud. errores awarded, and nihils returned, or fcire feci and default made, the judgment shall be reversed.

If a writ of falfe judgment abates, or the plaintiff therein is nonfuited, the defendant fhall have a fcire facias quare executionem non. F. N. B. 18. G.

If upon falfe judgment brought, which ought to be ferved in court, and the lord refufes to hold his court, a diftringas tenere curiam goes against him. 6 Hen. 7. 16. a. When the parties are once in court, the fubfequent proceedings in false judgment are the fame as in error.

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A writ of falfe judgment was delivered to the underfheriff, but no money was tendered or paid for the return; for want whereof, the fheriff took no notice of it and executed a writ de executione judicii. Upon hearing council on both fides, the fheriff's proceeding was now held to be regular. Per cur. The defendant if he think fit, may proceed on his writ of falfe judgment. Gale v. Hooker. Barnes 199.

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