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

91. 5 Mod. 228. Com. 393. 12 Mod. 105. Comb. 19. S.P.

But if a writ of error abates by the act of God, or the Jaw, a second writ of error will be a supersedeas. As where a writ of error abated by the death of the lord chief justice Foster, and a second writ of error was sued out and allowed, and it was held a fupersedeas. Keb. 658, 686.-—

So a second writ is a fupersedeas upon abatement of the first 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 compellabletojoin. Palm. 151.

Where two join in a writ of error, and one will not assign errors, the court will give the other time to summon and sever. Stra. 783.

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

If one plaintiff assigns errors, he must do it in the name of all, except where the others are severed. Mod. Cas. 40.

if after a writ of error brought by two, and to a scire facias quart executionem non one only appears, summons and severance lies. Yeh. 4.

J. sued B. in the Common Pleas in Ireland, and recovered —A. died, and his executors took out a fc'trc facias quare ex. von, to which B. pleaded payment, and found against him, with bd. damages; and the judgment was, that they should have execution of the debt and damages aforesaid, and also

their cojls and ixpences, ££fs. and for cojls de incremento. B.

brought error in B. R. in Ireland, and only one of the executors appeared to the writ, who alone sued out the feire facias quare ex. non in B. R. there j and yet, that court aflfnmed the judgment of C. B. for both, and adjudged, that

both should 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 fci.fa. And 2.

'J hat the fci. fa. in B. R. in Ireland was prayed by one executor only, though the writ of error was brought against

two%

Os quashing and amending Writs of Error, of Abatement, Discontinuance, Summons, and Severance in Error, &c.

two, and no suggestion that cither is dead; yet B. R. in England assirmed the judgment. And as to the first objection they said, "that the being damnified and put to costs to the amount of 6 d. was only meant as a foundation for the costs de increments; and the judgment is, that the plaintiffs shall recover 17/. 14s. id. for their costs and expences,

&c. To the second objection, Thefci. fa. quare, &c.

is only a process to bring the plaintiff in error in to assign errors, and as he came in and assigned errors, he waved any objection, and admitted the one executor to be sufficient to call upon him to assign errors; and from this we are to presume, 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 arise from a perpetual delay of execution, if every desendant might bring a writ of error by himself; but that reason does not not hold in this case, where the executors are defendants in error, and not plaintiffs. Knox v. Costello. Burr. 4 pt. 1789. .

In an action for slander, verdict was for the plaintiff as to one set of words, and for desendant as to the other. And on error from C. B. into B. R. the errors assigned were, that there ought to have been a judgment for desendant 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 felfo clamore as to so much. The court of B. R. thought the iudgment insupportable, 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 cause; and then B. R. amended the record Which had been sent there, and assirmed the judgment. Smith v. Fuller. Stra. 786. i

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 necessary to make the amendment in B. R. because this differs from the case of a writ of error from C. B. into B. R. for C. B. sends up the very record, whereas B. R. only sends the transcript. Riitter v. RedJlone. Stra. 837.

Z 4 Plaintiff's

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

Plaintiff's attorney, after a writ of error brought artsully, delayed signing the final judgment till the writ of error was spent, and then brought an action of debt upon the judgment. The court ordered proceedings in the action upon the judgment to be stayed, 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 it 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 bonh te/latoris•./?, &c. et de bon'-s propriisJi non, l£c. And the amendment was granted contrary to 1 Ld. Raym. 182, $bort V. Coffin Exor. Burr. 4 ft. 2730

A Writ of false judgment lies where an erroneous judgment is given in any court not of record, in which the suitors are judges. F. N. B. 18. a.——

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

A writ of salse judgment upon a judgment in the sheriff'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 salse judgment may be sued by any one against whom judgment is given; his heir, executor, or administrator.

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 offalse judgment issues as a writ of error out of Chancery, upon application to the proper curfttor.

Upon the return of the writ and the whole record certified, and not before, the plaintiff shall astign his errors. F.N.B.1%.1.

And he may have a feire faciai ad audiendum erroret, as in error. F.U.B. 18. F. G. Or now be may serve a rule as in cases of error.

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

The writ of false judgment ought to be served in court. 6 Hen. j. 16. a.

And being served, shall be a supersedes to all proceedings below. 6 Hen. 7. 15. b.

Upon two fa. fa. ad and. errtres awarded, and xibi.'i returned, Ot feire fed and desault made, the judgment shall be reversed.

H a writ of salse judgment abates, or the plaintiff therein is nonsuited, the desendant stuli have a feire socias quart execmitnrm nsn. F. N. B. 18. G.

If upon salse judgment brought, which ought to be served in court, and u.e lord re:uses to bold his court, a djlrlxgai temere enriap goes againti 'him. 6 Hen. ~. it. m.

When tbe part.es are once in conn, tee i*jrseqj«:t proceedings us false jssdgrz.em are tbe sax^e as is enc-r.

A v:.'t

A writ of salse judgment was delivered to the undersheriff, but no money was tendered or paid for the return j for want whereof, the sheriff took no notice of it and executed a writ de executione judicii. Upon hearing council on both sides, the sheriff's proceeding was now held to be regular. Per cur. The desendant if he think fit, may proceed on his writ of false judgment. Gale ¥t Hooker. Barnes 199.

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