CHAP. XVII.
Writ of Error.
Where it lies. Of what Error the Court shall take Conisance without Diminution or Certi∣ficate. Variance between the Writ and De∣claration. Variance between the Record and the Writ of Error. One Defendant dies after Issue and before Verdict. Non-age in Issue on Error where to be tried. Amendment of the Judgment before Certiorari unaided. Release of Errors from one of the Plaintiffs in the Writ of Error, bars only him that released it, and why. Outlawry in one of the Plaintiff pleaded in Error. Of Release of Errors by ca∣sual Ejector.
ERror lies in B.* R. upon a Judgment in Ejectment before the Justices in Wales, per Stat. 27 H. 8. Error in Real Actions shall be reversed in B. R. and in personal Actions by Bill before the President and Council of the Marches;* and because Ejectment was a mixt Action, there was some doubt, but it was resolved, ut supra, Moor p. 248. no 391.
Writ of Error lies in the Exchequer-Cham¦ber upon a Judgment in a Scire fac' in E∣jectione, Sid. Crook Car. 286.
Lessor or Lessee may have a Writ of Er∣ror on Judgment in Ejectione, Sid. 317.
Page 257 In a Writ of Error upon a Judgment in Banco in Ejectione Firme,* is certified a brief Entry of the Writ according to the Course there, and then the Declaration at large, and by the Recital of the Writ which mentions that the Action is brought de Rectoria de D. viginti Acris terrae & duodecim Acris prati cum pertinentiis in D. And the Declaration is of a Lease by Indenture of the said Rectory and Tenements cum pertinentiis (excepta terra pro mensa Vicarij ibidem cum omnibus talibus easia∣mentis quales Vicarius adtunc habuit cum omni∣bus talibus decimis, &c.) And upon Not guilty a Verdict and Judgment was for the Plaintiff, and assigned now for Error, That Judgment was given pro Querente; whereas it ought to to be for the Defendant. And after in nullo est erratum pleaded, it was moved for Error, That it appears by the Record certified, that the Writ is general of a Rectory, and the Declaration is of a Rectory with certain Ex∣ceptions.* In this Case the Court ought to reverse the Judgment for this Cause, in as much as this is not assigned for Error, nor the Writ it self certified; so that the Court may not take notice that the Writ is as the Entry of it is certified; and this Exception is but a Variance between the Writ and the Declaration, and perhaps this Exception in the Declaration was but ex abundantia,* and is not parcel of the Rectory, and then he ought not to have demanded the Rectory with an Exception. And it seems it had not been a good Plea for the Defendant in the first Action, to say that it appears by the Declaration that there is an Exception, &c. Page 258 without Averment in Fact, that it is parcel of the Rectory, Pas. 11 Car. B. R. Gregory and Shepard on a Lease made by the Dean and Chapter of Peterborough.
Error upon a Recovery in Ejectment out of the Court of Durham. The Error assigned was the Infancy of the Plaintiff in the Eject∣ment, who appeared by Attorney where he ought to have appeared by his Guardian; and upon Issue joyned on the Infancy, it was found for the Plaintiff in the Writ of Error. But this Writ of Error was not sufficient to the Court to proceed to the Reversal.* 1. Be∣cause the Writ of Error is directed to the Bishop of Durham and others by Name to remove a Record of Ejectment between such and such, which was coram the said Bishop and seven others by Name, and the Record removed, seems to be a Record of Ejectment before the Bishop and eight others, so it is not the same Record specified in the Writ; for a Record before eight, and a Re∣cord before seven cannot be intended the same Record. 2. This Writ of Error is di∣rected to the Bishop of Durham and six others by Name, and the Retorn of the Writ (viz.) Respons' of the Commissioners is by the Bishop and five others only, without making men∣tion of the sixth Commissioner, Yelv. p. 211. Ode and Moreton. 2 Rolls Abr. 604.
In Ejectment Verdict was given pro Quer' quoad ill' parcel' Messuagij praedict' jacen' proxim' ad Messuag' modo F. N. continen' ex Bo∣real' parte, &c. & quoad resid' pro Def. and the Judgment was, quod Quer' recuperet termi∣num suum praedict' de C. in praedict' parcel' Page 259 praedicti Messuagij jacen' proxim' ad praedict' Messuag' ut praefertur in occupatione praedicta F. N. & continen'; whether this Variance between the Verdict and Judgment be Er∣ror. Adjournat' Qu. if it be not a Jeosayl deins Art. Stat. 16, 17 Car' 2. c. 8. Raym. p. 398. Norris and Bayfeild.
Ejectione Firme against two,* if after Issue joyned, and Venire fac' awarded, one of the Defendants dies; and after a Verdict is gi∣ven at the Nisi prius for the Plaintiff, and af∣ter before Judgment the Plaintiff ••rmiseth the Death of the one, ut supra, and prays Judgment against the other, and Judgment given accordingly without any Answer to it by the Plaintiff, if it be not true that he is dead, as was surmised, this may be as∣signed for Error; for in as much as the Plain∣tiff had made this Surmise, it being a mat∣ter of Fact, and the Plaintiff might not have any Answer to it (the use not being to en∣ter •up this, that, the Plaintiff does not de∣ny it) the Plaintiff had no other Remedy but to assign this for Error. But this is re∣ported otherwise, p. 767. 1 Rolls Abr. 756. Tiffin and Lenton.
If A. bring Ejectione Firme against B. and C. and after Issue joyned B. dies, and after upon the Hab. Corpora, which mentions the Issue to be between A. of the one part, and the said B. and C. a Verdict is given against B. and C. that they are guilty, and Dama∣ges against them; but a Surmise is made of this before Judgment, and so Judgment given only against C. this is not erroneous, altho' the Verdict was against both, in as much as Page 260 the Judgment was only against him who was in life, 1 Rolls Abr. 767. Tiffin and Lenton.
If A.* recover against B. in Ejectione Firme in D. upon which B. brought a Writ of Er∣ror in B. R. at Westminster and discontinues it, and after there brought a new Writ of Error, quod coram vobis residet, and assigns for Error, That the said A. at the time of the Tryal of the first Action was commorans and within Age, at Westminster in Middlesex, and that he sued in the said Action by At∣torney; and upon the Nonage the Parties are at Issue; this shall be tried in Westmin∣ster, and not in D. where the Land lies, be∣cause the Ejectione Firme is not any real A∣ction; and in as much as it is specially al∣ledged that he was within Age and commo∣rans at VVestminster when the Writ of Er∣ror was brought, 2 Rolls Abr. p. 604. Orde and Moreton.
Error of a Judgment in Ireland in Eject∣ment was assigned,* that the Plaintiff then Defendant was per Attornat', and within Age, Judgment was reversed notwithstand∣ing 17 Car. 2. c. 8. vide 3 Keb. 384. D. of Albermarl and Keneday.
In Ejectment one of the Defendants plead∣ed Not guilty, and Verdict for the Plaintiff against both, and Judgment accordant. Er∣ror was brought, because in the Venire Con∣stantinus Callard was retorned, and so named in the Distringas;* but in the Pannel annex∣ed thereto Constantius Callard was retorned and sworn, and so was retorned by that name on the back of the Postea; this was held manifest Error; for they be distinct Page 261 Names of Baptism, and cannot be amended; but Curia advisare from Hillary Term till Pasche; in the mean time the Defendant in the Writ of Error obtained a Release of all Errors from one of the Plaintiffs in the Writ of Error, and the first day of Term Pasch. pleaded it in Bar as a Plea puis darrein Con∣tinuance; and thereupon a Demurer was en∣tred in the Names of both the Plaintiffs in the Writ of Error;* for in nullo est erratum being pleaded before, there could not now be any Summons and Severance. Per Curiam this Release shall bar him only that released it, and not the other Plaintiff (though the Action was in the personalty:) For the Plea being by way of Action, to discharge them∣selves of Damages which were recovered a∣gainst them, and to be restored to the pos∣session which was lost by the first Judgment; and they being joyned in the first Action by the Act of the Plaintiff, and their own vo∣luntary Act, it is not reason that the Act of one shall charge or prejudice the other. But otherwise if they had been Plaintiffs in the Record by their own Act, Cro. Jac. 116. Blewit and Snedstow.
Verdict was pro Quer' for 10 Messuages, 15 Acres of Land, 15 Acres of Meadow and 20 Acres of Pasture, and as to the Residue Non Culp. And the Judgment was, That the Plaintiff should recover the Messuages and the greater Quantity of Acres which were in the Verdict. Upon which the Plaintiff brought a Writ of Error, and assigned Er∣rors, and had a Scire fac. and before the Defendant in the Writ of Error joyned in Page 262 nullo est erratum, it was moved in Common Bench for amendment of the Judgment. It was objected. 1. That the time after the Assignment of the Error was past for the amendment.* Per Cur. The time is not past, so long as a Diminution may be alledged, or a Certiorari awarded, it may be amended. 2. The Judgment is the Act of the Court, and therefore may not be amended. Per Cur. It is the default of the Clerk, who did not enter the Judgment according to the Verdict, Jones Rep. p. 9.
Ejectione Firme by two against one De∣fendant. And on Not guilty, Verdict for the Plaintiff. The Error assigned was, be∣cause Constantinus Callard was returned, and so named in the Distringas, but in the Pan∣nel annext thereto by the Sheriff, Constanti∣us Callard was Returned and Sworn,* and so was returned by that name on the back of the Postea. Its manifest Error; for they be distinct names of Baptism, and not amend∣able. But Curia advisare. In the mean time the Defendant in the Writ of Error obtain∣ed a Release of all Errors from one of the Plaintiffs in the Writ of Error.* And the first day of Easter Term pleaded it in Bar as a Plea puis darraine Continuance; and thereon a Demur entred in the name of both the Plaintiffs in the Writ of Error. For in nullo est erratum being pleaded before, there could not be any Summons and Sever∣ance. Per Cur. This Release shall bar only him that Released it, for the Plea being by way of Action to discharge themselves of Damages, which were recovered against Page 263 them, and to be restored to the Possession which was lost by the first Judgment; and they being joyned in the first Action, by the Act of the Plaintiff, and not by their own voluntary Act, it is not Reason, that the Act of one should charge or prejudice the other, for then by such practice any one might be charged, and should have no remedy to discharge himself. And the Judgment was reversed, quoad him that did not Release, and that he should be restored to all what he lost, and quoad the other who released, that he should be barred in his Writ of Error, Cro. Jac. 116. Bluit and Snedstow, 2 Rolls Ab. 411. Mesme Case.
So the Defendant in the Writ of Error Pleads Outlawry in one of the Plaintiffs.* Per Cur. Its no Bar, because this is an Action not to recover any thing, but to restore them to what they had lost, and to dis∣charge them of Damages and Fines; and they are forced to joyn, because one of the Plaintiffs was a Defendant in the former Action, Cro. Jac. 616. Bythell and Harrts.
Error without Bail is a Supersedeas in E∣jectment,* notwithstanding the Act of 13 Car. 2. c. 2. being not within the general word Trespass, 1 Keb. 308. Lufton's Case.
And unless all the Defendants in Eject∣ment do give Recognizance, its no Super∣sedeas, for as to the Land its intire, 3 Keb. 138. Cole and Levingstone.*
Baron seised in the Right of the Feme, makes an Ejectment Lease, and the Lessee brings an Action upon it, and hath a Verdict and Judgment; its not Error to alledge the Page 264 death of the Wife before Judgment, by which the interest of the Husband, and Lease by him made to the Plaintiff deter∣mines, because neither the Wife nor the Husband are Parties to the Action, and this determins upon the Title to the Land; for the Plaintiff may say, That the Husband was seised in his own right, 1 Rolls Abr. 768. Wilks and Jordan.
Error was brought to Reverse a Judgment in Ejectione Firme,* and Error in Fact assign∣ed, (viz.) That the Plaintiff in the Eject∣ment was dead before Judgment: To which he that was Attorney for the Plaintiff plead∣ed, That he was alive at such a place, and upon this Issue joyned, and found that he was dead. Per Cur. The Issue is well joyn∣ed, and the Judgment shall be reversed for this Error without Scirc fac. against the Ex∣ecutors, for until the Issue tried none can deny, but that the appearance was good. But the surer way had been for the Attorney to have pleaded quod venit pro magistro suo D. and not qd. D. venit per Attornat. Siderf. p. 93. Dove and Darcen.
If a Man recover in Ejectione Firme,* and after his Executor Sues Execution by Scire fac' against the Recoveree; the Recoveree may not avoid the Judgment, nor stay Exe∣cution by saying, That the Plaintiff died between the Verdict and Judgment, or such like. But he is put to his Writ of Error, for the Judgment is only voidable, 1 Rolls Abr. 742. Hide and Markham.
Page 265 But in 1 Rolls Abr. 768. If a Man brings Ejectione Firme in B. R. and there he hath a Verdict on Tryal at the Bar, and after, and before Judgment he dies,* and after Judg∣ment is given against him the same Term. This is not Error, because the Judgment relates to the Verdict, Hide and Mark's Case.
Lessor of the Plaintiff in Ejectment,* may have a Writ of Error upon a Judgment in Ejectione Firme, Siderf. 317. Cole's Case.
Release of Error, vid. supra.
The Issue was that H. who was casual Eje∣ctor, and gave Release of Errors, was not the same Person. Being tried, The Court would not suffer the Defendant to Assign Error, but conceived he was barred now, 1 Keb. 755. Keyes and Bredon.
The Defendant obtains a Release of his casual Ejector,* and pleads it to a Writ of Error, of a Judgment by defalt, of Eject∣ment in Ireland; altho' the Issue was, that he that made the Release was not the same Person as was casual Ejector. Yet per Cur. It ought to be set aside, and the Error As∣signed, 1 Keb. 705. vid. 7.
Release by Casual Ejector is a fraud.
The Court conceived a Release of Errors,* obtained of the Casual Ejector by the Les∣sor being but Fictitious is void. And the Court made a Rule, That no such Release be ac∣cepted without Leave of the Court, 1 Keb. 740. Keys and Bredon.
The Case was, As it is Reported in Ray∣mond, 93, Keyes and Bredon. The Plaintiff ob∣tains a Judgment against his own Ejector, in a Case where an Infant was in Possession; and the Party concerned in the Lands,* brings a Writ of Error in the name of the feigned Defendant. The Plaintiff in the Writ Pleads the Release of the Defendant. Per Cur. Such Release shall not be allowed. And the Court will not permit the Party to proceed to try the Issue, if the Release be good or not, because it is to Bar the Right of a third person.
On Ejectment after Judgment against Ca∣sual Ejector, for not confessing Lease, Entry and Ouster; the Defendant in the Ejector's name brought a Writ of Error,* and now the Ejector was brought to the Clerk of the Errors, and disavowed the Suit, and there∣upon it was prayed by Council, that a non Pros. may be entred, as is the usual Course in such Case, 2 Keb. 579. M. 21. Car. 2. VVats and Loyd.
In the Lord Byron and Sir VVilliam Juxon's Case, Council prayed leave to discontinue a Writ of Error brought in the Ejector's Page 267 name, of Judgment in the County Palatine of Lancaster against him by default, shew∣ing a Release of Errors by the Casual Eje∣ctor: But the Court denied it, but left them to Non - suit the Plaintiff in Error, 2 Keb. 853.
A Release of Error by the Causual Eje∣ctor, no Discontinuance in Error, 2 Keb. 853.
Ejectment was brought against eight De∣fendants in B. C. Error was brought, ground∣ed upon the Judgment, and the Writ was ad grave damnum ipsorum, and the Judgment was only against three, and other five were acquitted, The Error was assigned in the Non-age of the three. Per Cur. The Writ of Error was good, tho' it might be also ad damnum of those convicted. But being only in the nature of a Commission, whereby the King Commands the Errors to be exa∣mined; this matter is not material, Hob. 70. Yelv. 209. By Twisden, The constant pra∣ctice is for all to joyn, and per tot. Cur. Judg∣ment ought to be reversed against all. Error of a Judgment in Ejectione Firme, and in the Record a space was left to insert the Costs which had not been taxed, if such an im∣perfect Record be certified; yet it might be amended by Rule of Court there, and then if it be removed by Error, the Court there must amend it. For it is the constant practice, That if a Record be removed into the King's Bench, out of the Court of Com∣mon Pleas by Writ of Error, and afterwards amended by Rule of Court in the Common Pleas, The Court of King's Bench must a∣mend Page 268 it accordingly, vid. Hard. p. 905. 1 Ventr: 165. Bell and Richards.
Ejectment was brought in C. B. in Ireland, and declares against Commyn de Castrovilla & Terris de Kilborough, in such a County. The Plaintiff had Verdict and Judgment. Com∣myn brought a Writ of Error in B. R. in Ireland,* and Assigns for Error, the want of an Oiginal. The Plaintiff rejoyns, that such a Day an Original Writ was delivered to such a one, and concludes to the Country. And the Judg∣ment was reversed there for want of an Original, on which the Plaintiff brought a Writ of Error for reversal in B. R. in Eng∣land. And the Judgment given in B. R. in Ireland was reversed here, for the matter was discontinued. Because the Defendant in Ireland concludes al pais, where in truth the matter of his Plea should be tried by the Record, and the Plaintiff in Error doth not Reply, or Demurr upon the Plea of the De∣fendant, and so all is discontinued. Also, there was another apparent Error in the De∣claration, viz. the Action brought de castro villa & terris in Kilborough, without expres∣sing the number and certainty of Acres, and upon such general demand no Habere fac' Possessionem can be awarded and executed, Yelv. 117. St. John vers. Commyn.
