Narrationes modernæ, or, Modern reports begun in the now upper bench court at VVestminster in the beginning of Hillary term 21 Caroli, and continued to the end of Michaelmas term 1655 as well on the criminall, as on the pleas side : most of which time the late Lord Chief Justice Roll gave the rule there : with necessary tables for the ready finding out and making use of the matters contained in the whole book : and an addition of the number rolls to most of the remarkable cases / by William Style ...

Dawkes against Payton.

Trin. 1650. Banc. sup.

Pasch. 1650. rot. 306.

AN Action was ordered out of the Chancery to be tryed in this Court; Whereupon the cause was tryed,* 1.1 and a Iudgement upon a Verdict was given for the Plaintif. The Defendant brings a writ of Error here to reverse this judgement. The first question was, whether it did suffici∣ently appear by the Record, whether the party did appear in person or by Guardian. Hales held that it did not appear, but that it belongs to the other party to shew it; for he ought to have all the Record upon which the Error is assigned. A second question was, Whether the Error assigned, if it be Error, be not helped after a Verdict by the Statute of 21 Iac. Hales held, that however the party appeared, whether by Guardian, or in proper person, it is helped by the Statute of 21 Iac. and cannot be assigned here for Error, and the writ of Error that is brought is as well to reverse the judgement given here, as the former judgement given in Chan∣cery, which cannot be, for this Court cannot reverse their own Iudge∣ment, except it be for Error in process, 1•• H. 6. 2. 44. 7 H. 6. f. 28. nor can this Court reverse their own judgement for Error in fact, because it is to overthrow their own act, yet the Chequer chamber may doe it; yet there it is more proper to appeal to the Parliament; and he said, that the Cases of 2 Rich. 3. f. 1. and Dyer 1••5. cited, to be resolved, have been since dis∣puted, and so prayed the writ of Error might abate. Roll chief Iustice said, that for the first matter, whether it appears by the assignment of the party, whether the appearance were per Guardianum,* 1.2 or otherwise, we will not imagin either Attorney or Guardian in the Case, but that he appeared in propria persona, because nothing to the contrary appears by the Record,* 1.3 and if it be otherwise you ought to have shewn it. And for the matter, whether it be Error to appear by Attorney, where the party ought to appear by his Guardian, he held it was Error, and that it is not help∣ed by the Statute of 21 Iac. because it is more dangerous for an Infant to appear in propria persona, or per Guardianum, than per Attornatum; for against an Attorney he may have remedy, but not against himself or his Guardian; and this is casus omissus out of the Statute. And as to the question,* 1.4 whether this Court may reverse their own judgement, he held, that they may for Error in matter of fact, as the case here is, though they cannot for Error in matter in Law, as was adjudged, Mich. 25. rot. 96. and Mich. 5 Jac. in Watkins and Giffins case, and if it should not be

so here, the party would be without remedy, for he can have no remedy in the Chequer Chamber, and there is no president in Parliament be to relie∣ved there, and it is neither against reason nor any Rule of Law for this Court to do it. Vpon this the Councel moved to quash the writ of Error upon an exception taken to it, as it was entred in the Record, but because it was but a mis-entry, the writ it self being right,* 1.5 the Record was orde∣red to be amended by the Writ.

Notes

• * 1.1

  Error to re∣verse a judge∣ment in the Upper Bench. upon an issue directed out of the Chan∣cerie.
• * 1.2

  Appearance.
• * 1.3

  Error.
• * 1.4

  Casus omissus
• * 1.5

  Amendment.