No. VI. 9 Rich. II.

c. 3.

4 Henry IV. c. 23.

3 Henry VII. c. 10.

6

' and the other betwixt the said Edmund and Ideyn demandants, and 'Richard Cornwall and Isabel his wife, and others tenants of certain ' tenements in the same town, of which tenements the reversion at the time of the said two judgments given did pertain to the master and 'scholars of the college of the University Hall in Oxenford, as it is said, 'so that the master and scholars may have and do their suit by writ of ' attaint or of error of the same judgments, as to them best shall seem, ' according to the form of this statute.'

[No. VII.] 4 Henry IV. c. 23.-Judgments given shall continue until they shall be reversed by Attaint or Error.

66

"IT

66

TEM, Where as well in plea real as in plea personal, after judgment given in the courts of our Lord the King, the parties be made to come upon grievous pain, sometime before the King himself, some"time before the King's council, and sometimes to the Parliament, to "answer there of new, to the great impoverishing of the parties aforesaid, and in the subversion of the common law of the land;" it is ' ordained and stablished, That after judgment given in the courts of our Lord the King, the parties and their heirs shall be thereof in peace, ⚫ until the judgment be undone by attaint or by error, if there be error, as hath been used by the laws in the times of the King's progenitors.'

[No. VIII.] 3 Henry VII. c. 10.-Costs, &c. awarded to the Plaintiff, where the Defendant sueth a Writ of Error.

ITEM, That where oftentimes plaintiff or demandant, plaintiffs or demandants, that have judgment to recover, be delayed of execution, for that the defendant or tenant, defendants or tenants, against 'whom judgment is given, or other that been bound by the said judg 'ment sueth a writ or writs of error to adnul and reverse the said judgment, to the intent only to delay execution of the said judgment: It ' is enacted, ordained, and established, by the advice of the Lords Spiritual and Temporal, and at the prayer of the Commons, in the said Parliament assembled, and by authority of the same, That if any such defendant or tenant, (1) defendants or tenants, or if any other that shall be bound by the said judgment, sue, afore execution (2) had, any writ of error (3) to reverse any such judgment, in delaying of execution, that then if the said judgment be affirmed (4) good in the said writ of error, and not erroneous, or that the said writ of error be discontinued in the default of the party, or that any person or persons that sueth writ or writs of error, be nonsued (5) in the same, that then the said person or persons, against whom the said writ of error is sued shall recover his costs (6) and damage (7) for his delay and wrongful vexation in the

(1) Extending to writs of error sued by plaintiff or demandant by 8 and 9 W. III. c. 11. sec. 2. ante, Class XI. No. 8.

(2) The statute does not apply if the writ of error is brought after execution; Eardley v. Turnock, Cro. Jac. 636. Vi. ac. 2 Str. 1199. So after execution as to damages and costs in ejectment, although previous to the execution for the term; Earl of Pembroke v. Boston, Cro. Car. 173.

(3) This extends to cases in which the plaintiff is not entitled to costs in the original action; Ferguson v. Rowlinson, Andr. 113, 2 Str. 1084; (accord Cro. Eliz. 616) overruling Smith v. Smith, Cro. Car. 425; Winne v. Lloyd, 1 Lev. 146, Raym. 134, contra.

(4) Extended to cases where the writ of error is quashed, 4 Anne, c. 16. ante, Pt. I. Cl. I.

No. 23.

(5) The Act does not extend to the case of a writ of error nonprossed before the transcript of the record; Salt v. Richards, E. 111.

(6) Double costs, in cases of error after judgment, are given by stat. 13 Charles II, stat. 2. c. 2. ante, Class III. No. 13.

(7) The following view of the practice of the courts respecting damages in error is, with the exception of the passage in brackets, extracted from Serjeant Williams's note to 2 Saund. 101. w." On a writ of error returnable in the King's Bench, that court, on motion, will

same, by discretion of the justice (1) afore whom the said writ of error is sued.

[No. IX. ] 19 Henry VII. c. 20.-Writs of Error.

No. VIII.

3 Hen. VII.

c. 10.

c. 20.

A confirmation of 3 H. 7. c. 10, touching costs

awarded to the

plaintiff, where

the defendant sueth a writ of

error.

PRAYEN the Commons in this present Parliament assembled, That 19 Henry VII. where at a Parliament holden at Westminster, in the third year of the reign of our sovereign Lord the King that now is, by the advice of the Lords Spiritual and Temporal, and the Commons, in the same Parliament assembled, and by the authority of the same, it was en' acted, ordained, and established, among other things, That if any ⚫ defendant or tenant, defendants or tenants, or any other that shall be 'bound by any judgment, sue, afore execution had, any writ of error to reverse any such judgment, in delaying of execution of the party, that then if the same judgment be affirmed good in the said writ of ' error, and not erroneous, or that the said writ of error be discontinued ' in the default of the party, or the person or persons that sueth the writ ' or writs of error be nonsuited in the same, that then the said person or persons, against whom the said writ of error is so sued, shall recover 'his costs and damages for his delay and wrongful vexation in the same, by discretion of the justices afore whom the said writ of error is sued: Which Act or ordinance hath not been as yet duly put in execution, by reason whereof, as well plaintiffs as demandants, in divers actions by them sued sith the making of the said statute, have been oftentimes delayed of their execution, to their great and importable hurt, loss, and charges: Wherefore the King our sovereign Lord, by the advice of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by authority of the same, ordaineth, establisheth, and enacteth, That the said Act made the third year of his reign, concerning the premises, be good and effectual, and that from henceforth it be duly put in execution.

་

order the master to compute interest on the sum recovered, by way of damages, from the day of signing final judgment below down to the time of affirmance, and to add the same to the costs taxed for the plaintiff in the original action; Doug. 752, Zinck v. Langton, note 3; and see 2 Str. 931, Bishop of London v. Mercers' Company; 2 Burr. 1096, 1097, Bodily v. Bellamy; S. C. 1 Blac. Rep. 267, 268; 2 Term Rep. 79, Entwistle v. Shepherd. And if, by the course of the court of error, interest is not computed in the allowance of costs on the affirmance of the judgment, the jury may give interest by way of damages from the time of signing the original judgment; 2 Term Rep. 79, Entwistle v. Shepherd. But in debt on a recognizance against bail in error in the Exchequer chamber, the bail are not liable to pay interest between the time of the original judgment and affirmance; though they are liable to interest from the time of the affirmance; 4 Burr. 2127, Welford v. Davidson; 2 Term Rep. 57, Frith v. Leroux. In the Exchequer chamber the officer is bound to allow double costs to the defendant in error on the affirmance of a judgment; but it is a matter entirely in the discretion of the court to allow interest on the affirmance; 2 H. Blac. 284, Shepherd v. Mackreth. [Where the declaration contained two counts, one for a sum certain, the other for unliquidated damages, and a general verdict was given, the Court of Exchequer

chamber held that interest could not be allowed; Martin v. Emmote, 2 Marshall, 230. Previous to the case of Sykes v. Harrison, 1 B. and P. 29. the usual course was to allow only four per cent.; but in that case the court intimated that in future the allowance would be five per cent.] In the court holden before the Lord Chancellor and Treasurer and Judges (under the 31 Edward III.) for examining erroneous judgments given in the Court of Exchequer, the practice is to give interest from the day of signing judgment to the day of affirming it there, computed according to the current, and not the strictly legal, rate of interest; 2 Burr. 1097. Bodily v. Bellamy. In the House of Lords, sometimes very large, sometimes very small costs are given, according to the nature of the case, and the reasonableness or unreasonableness of litigating the judgment of the court below; ibid: and in order to mitigate costs, the plaintiff will sometimes withdraw his errors; Tidd's Prac. K. B. 1169." And see Johnes v. Johnes, 1 Dow. P. C. 1.

(1) This means the court of error; Salt. Richards, 7 E. 111; and when the House of Lords affirmed the judgment, and remitted the record without awarding costs in Parliament, it was ruled that the King's Bench could not order the master to allow the costs in Parliament; Beale v. Thompson, 2 M. and S. 249.

1

No. X. 27 Elizabeth, c. 8.

Erroneous judgments given in the King's Bench

[No. X. ] 27 Elizabeth, c. 8.-An Act for Redress of erroneous Judgments in the Court commonly called the King's Bench.

FORASMUCH as erroneous judgments given in the court called the King's Bench, are only to be reformed by the High Court of 'Parliament: which Court of Parliament is not in these days so often 'holden as in ancient time it hath been, neither yet (in respect of greater 'affairs of this realm) such erroneous judgments can be well considered law are only re' of and determined during the time of the Parliament, whereby the versible in Par-subjects of this realm are greatly hindered and delayed of justice in 'such cases.'

by the common

liament.

Before whom judgments given in certain

actions in the King's Bench may be examin

ed.

Erroneous

judgment examined in Parliament.

31 Elizabeth, c. 1.

II. Be it therefore enacted by the authority of this present Parliament, That where any judgment shall at any time hereafter be given in the said Court of the King's Bench in any suit or action of debt, detinue, covenant, account, action upon the case, ejectione firmæ, or trespass, first commenced or to be first commenced there, (other than such only where the Queen's Majesty shall be party) the party plaintiff or defendant, against whom any such judgment shall be given, may at his election sue forth out of the Court of Chancery a special writ of error to be devised in the said Court of Chancery, directed to the chief justice of the said Court of the King's Bench for the time being, commanding him to cause the said record, and all things concerning the said judgment to be brought before the justices of the common bench and the barons of the Exchequer, into the Exchequer-chamber, there to be examined by the said justices of the common bench and barons aforesaid; which said justices of the common bench, and such barons of the Exchequer as are of the Coif, or six of them at the least, by virtue of this present Act, shall thereupon have full power and authority to examine all such errors as shall be assigned or found in or upon any such judgment; and thereupon to reverse or affirm the said judgment, as the law shall require, other than for errors to be assigned or found for or concerning the jurisdiction of the said Court of King's Bench, or for any want of form in any writ, return, plaint, bill, declaration or other pleading, process, verdict or proceeding whatsoever and that after that the said judgment shall be affirmed or reversed, the said record and all things concerning the same shall be removed and brought back into the said Court of the King's Bench, that such further proceeding may be thereupon, as well for execution as otherwise, as shall appertain.

:

III. And be it further enacted, That such reversal or affirmation of any such former judgment shall not be so final, but that the party who findeth him grieved therewith, shall and may sue in the High Court of Parliament for the further and due examination of the said judgment, in such sort as is now used upon erroneous judgments in the said Court of King's Bench. 14 Ed. 3. stat. 1. cap. 5. 31 Eliz. cap. 1.

[No. XI. ] 31 Elizabeth, c. 1.-An Act against Discontinuances of Writs of Error in the Courts of Exchequer and King's Bench.

WHEREAS by an estatute made in the xxxi. year of the reign of King Edward the Third, it is enacted, that upon complaint concerning error made in the Exchequer touching the King or other persons, the Lord Chancellor aud Lord Treasurer shall do to come before them in any chamber of council nigh the Exchequer, the record and process of the Exchequer, and taking to them such justices and other sage persons, as to them shall be thought meet, shall hear and determine such errors, as by the said estatute more at large appeareth: And whereas those two being great officers of the realm are employed, not only in their several offices and places of justice else'where, but also for other weighty affairs of the realm in council,

'attendant on the Queen's Majesty's person and otherwise, they be many times upon sudden warning called away, in such wise as they . both many times, and sometimes neither of them, can be present in the Exchequer at their day of adjournment in such suit of error; and then by not coming of them at the day of adjournment, every such writ of error depending is by the laws of the realm discontinued, and the party cannot proceed, but must begin his suit of new, to the great loss of the party and hindrance of justice:' For remedy whereof, be it ordained and enacted by authority of this present Parliament, That the not coming of the Lord Chancellor and Lord Treasurer, or of either of them, at the day of adjournment in any such suit of error depending by virtue of the said former estatute, shall not be any discontinuance of any such writ of error: but if both the chief justices of either bench, or any one of the said great officers, the Lord Chancellor or Lord Treasurer, shall come to the Exchequer chamber, and there be present at the day of adjournment in such suit of error, it shall be no discontinuance, but the suit shall proceed in law to all intents and purposes, as if both the Lord Chancellor and Lord Treasurer had come and been present at the day and place of adjournment: Provided always, that no judgment shall be given in any such suit or writ of error, unless both the Lord Chancellor and Lord Treasurer shall be present thereat.

II. And whereas in the Parliament holden in the xxvii year of the reign of our most gracious Sovereign Lady the Queen's Majesty, one Act or statute was made, intituled, An Act for Redress of erroneous Judgments in the Court commonly called the King's Bench;" by which it is amongst other things enacted, That where any judgment shall at any time then after be given in the said Court of King's Bench, in any ⚫ suit or action of debt, detinue, covenant, account, action upon the case, ejectione firme, or trespass, first commenced or to be first commenced there, other than such only where the Queen's Majesty shall be party; the party plaintiff or defendant against whom any such 'judgment shall be given, may at his election suc forth out of the Court of Chancery a special writ of error to be devised in the said Court of Chancery, directed to the Chief Justice of the said Court of King's Bench for the time being, commanding him to cause the said record, and all things concerning the said judgment, to be brought before the justices of the Common Bench and the barons of the Exchequer, into the Exchequer chamber, there to be examined by the 'said justices of the Common Bench and barons aforesaid. Which said *justices of the Common Bench, and such barons of the Exchequer as are of the degree of the coif, or six of them at the least, by virtue of ⚫ the same Act, shall thereupon have full power and authority to exa*mine all such errors as shall be assigned or found in or upon any such ‘judgment, and thereupon to reverse or affirm the said judgment, as the law shall require, other than for errors to be assigned or found for or concerning the jurisdiction of the said Court of King's Bench, or for any want of form in any writ, return, plaint, bill, declaration, or other pleading, process, verdict, or proceeding whatsoever: Forasmuch as it doth many times fall out, that the full number of the said jus'tices of the Common Bench and barons of the Exchequer, so authorized by the said statute, sometimes for want of health, sometimes through other weighty services and earnest occasions, cannot be present at the days and times of the returns and continuances of the same writs of error; and by reason of their absence and not coming the said writs of error are discontinued, justice delayed, and the parties put to begin new suit, to their great charges and prejudice: For remedy thereof be it also enacted by the authority aforesaid, That from henceforth, if the full number of the justices and barons authorized by the said Act come not at the day or time of return or continuance of any such writ of error, that it shall be lawful for any three of the said justices and barons, at every of the said days and times, to receive writs of error, to award process thereupon, to make and prefix days from time and time of and for the continuance of all such writs of error as shall VOL. III. 2 A

No. XI.

31 Elizabeth,

c. 1.

The not com

ing of the Lord Chancellor and Lord Treasurer shall be no discontinuance of writs of error.

No judgment

to be given unless both the Lords be pre

sent.

27 Eliz. c. 8.

Three justices and barons may receiveandcontinne writs of error, &c.

No. XI.

be there returned, certified or depending. And that the same shall be to these respects as good and available as if all the justices and barons 31 Elizabeth, authorized by the same Act were present. And that the justices and barons authorized by the said statute may after that proceed in all those cases, in such sort to all intents, as they may do in other cases mentioned in the said statute; any not coming of any the said justices or barons notwithstanding.

c. 1.

Judgment may be given by six justices and barons.

The plaintiff in error may have his writ returnable in Parlia

ment at his election.

c. 2.

31 Eliz. c. 1.

31 Ed. 3. st. 1. c. 12.

III. Provided nevertheless, That no judgment shall be given in any such suit or error, unless it be by such full number of the said justices and barons as are in that behalf authorized and appointed by the said

Act.

IV. Provided also, and be it nevertheless enacted by the authority aforesaid, that the party plaintiff or defendant, against whom any such judgment hath been heretofore or hereafter shall be given in the said Court of King's Bench, may at his election sue in the High Court of Parliament for the reversal of any such judgment as heretofore hath been usual or accustomed; any thing in this statute or in the said former Act to the contrary thereof notwithstanding.

[No. XII. ] 3 James I. c. 8.-An Act to avoid unnecessary Delays of Executions.

[See the last Class, p. 317.];

No. XIII. ] 13 Charles II. st. 2. c. 2.-An Act for Prevention of Vexations and Oppressions by Arrests, and of Delays in Suits of Law.

[Inserted at length, Class III. No. 13.]

[ No. XIV. ] 16 Charles II. c. 2.-An Act for preventing of Abatements of Writs of Error upon Judgments in the Exchequer.

16 Charles II. WHEREAS by a statute made in the one and thirtieth year of the reign of the late Queen Elizabeth, it is enacted, That the not coming of the Lord Chancellor and Lord Treasurer, or either of them, at the day of adjournment, in any suit of error depending by virtue of the statute of the one and thirtieth year of the reign of King Edward the Third therein mentioned, concerning error made in the Exchequer, 'shall not be any discontinuance of any such writ of error; but if both 'the chief justices of either bench, or any one of the said great officers, 'the Lord Chancellor or Lord Treasurer, shall come to the Exchequer chamber, and there be present at the day of adjournment in such suit ' of error, it shall be no discontinuance, but the suit shall proceed in 'law, to all intents and purposes, as if both the Lord Chancellor and Lord Treasurer had comen and been present at the day and place of adjournment: Which statute doth not provide a remedy, in case the 'said Lord Chancellor and Lord Treasurer, or either of them, shall not be present at the days and times of the returns of such writs of error, although it be within the same mischief, justice being delayed, and the parties in such cases being put to begin new suits, to their great charges and prejudice, by reason of the absence and not coming of the 'said great officers :'

The not com

6

II. Be it therefore enacted by the King's most excellent Majesty, by ing of the Lord and with the advice and consent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by autho rity of the same, That the not coming of the Lord Chancellor and Lord Treasurer, or either of them, at the day of return of any writ of error

Chancellor or
Lord Treasu-

rer.