superior court of appeal. A writ of error lies for some supposed mistake in the proceedings of a court of record; for to amend errors in a base court not of record, a false judgment Finch. L. 484. lies. The writ of error only lies upon matter of law arising upon the face of the proceedings, so that no evidence is required to substantiate or support it; there being no method of reversing an error in the determination of facts but by a new trial to correct the mistakes of a former verdict. The courts will allow the record to be amended at any time of amending while the suit is depending (d), notwithstanding the record the record. be made up and the term be past: for they consider the proceedings as in fieri till judgment is given; and, therefore, that till then they have power to permit amendments by the common law; but when judgment is once given and enrolled, no amendment is permitted in any subsequent term. or plea or to demur, or otherwise the judgment shall be reversed. If in any case the time allowed for getting the transcript prepared and examined for assigning errors, or for delivering a joinder in error, or plea or demurrer, shall not have expired before the 10th of August, in any year, the party entitled to such time shall have the like time for the same purpose after the 24th October without reckoning any of the days before the 12th of August. And in all cases such time may be extended by a judge's order. When issue in law is joined, either party may set down the case for argument with the clerk of the errors in the court of error, or the clerk of the rules in the Q. B., as the case may require, and forthwith give notice in writing thereof to the other party, and proceed to argument as on a demurrer. Four clear days before the day appointed for argument, the plaintiff in error must deliver copies of the judgment of the court below, and of the assignment of errors, and of the pleadings thereon, to the judges of the Q. B. on writs of error from the C. P. or Exch., and to the judges of the C. P. on writs of error from the Q. B., and the defendant in error must detain copies thereof to the other judges of the court of exchequer chamber, before whom the case is to be heard; and in default of either party, the other party may deliver such books as ought to have been delivered by the party making default, and the party making default shall not be heard until he shall have paid for such copies. No entry on record of the proceedings in error is necessary before setting down the cause for argument; but after judgment in the court of error in the exchequer chamber, either party may enter the proceedings in error on the judgment roll remaining in the court below, on a certificate of the clerk of the errors of the exchequer chamber of the judgment given. "A writ of error still lies to the house of lords, first after a refusal or affirmance of a judgment of the Q. B. in the exchequer chamber; secondly, without a previous writ of error to the exchequer chamber, upon the reversal or affirmance by the Q. B. of the judgment of an inferior court; and thirdly, where the queen is a party.”—Archbold's Q. B. Prac. by Chitty, 7th ed. 35. (d) By 9 Geo. 4, c. 15, in cases where a variance shall appear between written or printed evidence and the record, the court may order the record to be amended on payment of costs, and see the act 3 & 4 Wm. 4, c. 42, s. 23, allowing amendments to be made on the record in certain cases. Of bail, where necessary in a writ of error. From what Finch. L. 180. If a writ of error be brought to reverse any judgment of an inferior court of record, where the damages are less than 10, or if it is brought to reverse the judgment of any superior court after verdict, he that brings the writ or that is plaintiff in error must (except in some peculiar cases) find substantial pledges of prosecution or bail, to prevent delays by frivolous pretences to appeal (e), and for securing payment of costs and damages, which are now payable by the vanquished party in all except a few particular instances. A writ of error lies from the inferior courts of record in England into the king's bench, and not into the common pleas. And from the king's bench in Ireland to the king's bench in England. Also from the common pleas; from proceedings on the law side of the exchequer; and from proceedings in the king's bench in debt, detinue, covenant, account, case, ejectment, or trespass, originally begun therein (except where the king is party) it lies to the exchequer chamber before the justices, or justices and barons of the exchequer; and from 27 Eliz. c. 8. thence also to the house of lords. The court of appeal may, upon hearing the matter of law in which the error is assigned, reverse or affirm the judgment of the inferior courts; but no judgment is final except that of the house of peers, to whose judicial decisions all other tribunals must therefore submit and conform their own. (e) By 3 Jac. 1, c. 8, (made perpetual by 3 Car. 1, c. 4, s. 4) no execution shall be stayed or delayed upon any writ of error or supersedeas thereon, for reversing any judgment upon any action of debt upon bond or obligation, or upon any contract of debt for rent, or any contract, unless the person in whose name the writ of error be brought, with two sufficient sureties, become bound to the party obtaining judgment, by recognizance in double the sum adjudged, to prosecute the writ of error, and to pay (if judg ment affirmed) the debt, damages, and costs. By 16 & 17 Car. 2, c. 8, s. 3, and 22 & 23 Car. 2, c. 4, in writs of error upon any judgment after verdict in any writ of dower or action of ejectione firma, no execution shall be stayed unless the plaintiff in the writ of error shall be bound to the plaintiff in the writ of dower or action of ejectione firma, in such sum as the court in which such writ of error shall be directed shall think fit, conditioned if the judgment be affirmed, or the writ of error discontinued by default of the plaintiff therein, or the plaintiff therein be nonsuited, for payment of damages, costs, &c. And by 6 Geo. 4, c. 96, s. 1, upon any judgment in any personal action, execution shall not be stayed or delayed by writ of error, or supersedeas thereon, without the special order of the court, or some judge thereof, unless a recognizance with condition according to 3 Jac. 1, c. 8, be first acknowledged in the same court. By 1 Geo. 4, c. 87, s. 3, two bail in error are necessary in writs of error upon judgments in actions of ejectment. By Reg. Gen. H. T. 2 Wm. 4, a recognizance of bail in error must be for double the sum recovered; but on a judgment in an action for a penalty, for double the amount of the actual debt, and double the amount of the costs. 1 CHAPTER XXVI. OF EXECUTION. THE next step is the execution of the judgment or putting of execution. the sentence of the law in force, which is performed according to the nature of the action upon which it is founded, and of the judgment which is recovered. If the plaintiff recovers in an action real or mixed (a), In real and whereby the seisin or possession of land is awarded to him, mixed actions. the writ of execution shall be an habere facias seisinam, or writ of seisin of a freehold, or an habere facias possessionem, In a quare or writ of possession of a chattel interest. These are writs Finch. L. 470. directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered, in the execution of which the sheriff may take with him the posse comitatus, or power of the county, and may justify breaking open doors if the possession be not quietly delivered. But if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, is sufficient execution of the writ (b). Upon a presentation to a benefice recovered in a quare impedit, the execution is by a writ de clerico admittendo: directed not to the sheriff, but to the bishop or archbishop, and requiring him to admit and institute the clerk of the plaintiff. In other actions, where the judgment is that something in Special writs special be done or rendered by the defendant, then in order to compel him so to do, and to see the judgment executed, a special writ of execution issues to the sheriff according to the nature of the case. Upon a replevin, the writ of exe- In replevin. cution is the writ de retorno habendo: and if the distress be eloigned, the defendant shall have a capias in withernam; but on the plaintiff's tendering the damages and submitting to impedit. of execution. a fine, the process in withernam shall be stayed. In detinue, 2 Leon. 174. after judgment, the plaintiff shall have a distringas to compel 1 Roll. Abr. the defendant to deliver the goods by repeated distresses of 737. (a) By 3 & 4 Wm. 4, c. 27, s. 36, all real and mixed actions, (except the writ of right of dower, or writ of dower unde nihil habet, or a quare impedit, or an ejectment) are abolished. (b) See 11 Geo. 4, and 1 Wm. 4, c. 70, s. 38, providing for the immediate execution of writs of possession after trials of ejectments at nisi prius in certain cases, ante, note (c), p. 385. Rast. Entr. 215. Bro. Abr. tit. damages, 29. Writs of exe cution in actions for debt and damages. his chattels; or else a scire facias against any third person holding them, to show cause why they should not be delivered; and if the defendant still continues obstinate (if the judgment has been by default or in demurrer) the sheriff shall summon an inquest to ascertain the value of the goods and the plaintiff's damages, which (being so assessed, or by the verdict in case of an issue) shall be levied on the person or goods of the defendant (c). Executions in actions, where money only is recovered as a debt or damages, and not any specific chattel, are either against the body of the defendant or against his goods and chattels, or against his goods and the profits of his lands; or against his goods and the possession of his lands; or against all three, his body, lands, and goods. Capias ad The first is by writ of capias ad satisfaciendum, which adsatisfaciendum. dition distinguishes it from the former capias ad respondendum, which lies to compel an appearance at the beginning of a suit. And properly speaking, this cannot be sued out against any but such as were liable to be taken upon the former capias. 3 Rep. 12. Moor. 767. Moor. 704. Cro. Jac. 323. Cro. Car. 513. The intent of it is to imprison the body of the debtor till satisfaction be made for the debt, costs, and damages (d): it therefore does not lie against any privileged persons, peers, or members of parliament; nor against executors or administrrtors, or such other persons as could not originally be held to bail. If judgment be against husband and wife for the debt of the wife when sole, the capias shall issue against the husband and wife. If the action was against herself when sole, and pending the suit she marries, the capias shall be against her only. But if judgment be against husband and wife for the contract or personal misbehaviour of the wife during coverture, the capias shall issue against the husband only. (c) See the next note. (d) By 1 Wm. 4, c. 7, s. 2, in all actions brought in either of the courts of law at Westminster, the judge may certify before the end of the sittings or assizes, that execution ought to issue forthwith. See the act abstracted, ante, book 3, chapter 23, extended by 3 & 4 Wm. 4, c. 42, s. 19, to judgments and executions upon writs of inquiry, and writs for the trials of issues before the sheriff. "In assumpsit, covenant, case, trespass, and replevin, the writ of execution for the plaintiff is for damages and costs. In debt, the writ is for the debt, damages, and costs. In detinue, the execution for plaintiff is for the goods, or their value, with damages and costs. For the defendant, in all cases except replevin, the execution is for the costs only; and in replevin on a judgment at common law, it is also for a return of the goods; or on a judgment upon 17 C. 2, c. 7, for the arrears of rent and costs.”—Archbold's Prac, Q. B. by Chitty, 7th ed. 400. ciendum. When a man is once taken in execution upon this writ, no Effect of capias other process can issue against his lands or goods. But by ad satisfa 21 Jac. 1, c. 24, if the defendant dies whilst in execution, a new execution may issue against his lands, goods, or chattels. The writ is directed to the sheriff, commanding him to take the body of the defendant, who must remain in custody till he makes satisfaction. Defendant in custody, how to be kept. In the Escapes. c. 27. F. N. B. 130. The writ may be sued out, as may all other executory process for costs against a plaintiff as well as a defendant, when judgment is had against him. When a defendant is in custody on this process, he is to be kept in close and safe custody, and if he be afterwards seen at large, it is an escape; and the plaintiff may have an action against the sheriff for his whole debt. Escapes are either voluntary or negligent. former, the defendant cannot be retaken, and the sheriff must 8 & 9 Wm. 3, answer for the debt; in the latter, he shall be excused if he has him again before any action brought against him for the escape. A rescue of a prisoner in execution, either going to Rescue. or in gaol, or a breach of prison will not excuse the sheriff from answering for the escape; for he ought to have sufficient force to keep him, since he may command the power of the county. If a non est inventus is returned to this writ, the plaintiff Where to may proceed against the bail, if any, by writ of scire facias (e), capias ad commanding them to shew cause why the plaintiff should not non est invenhave execution against them; and if they shew no sufficient tus is returned. cause, or the defendant does not surrender himself on the day of the return, or of showing cause, a capias ad satisfaciendum, or other process of execution may issue against them. satisfaciendum The next species of execution is against the goods and of the writ of chattels of the defendant, and is called a writ of fieri facias, fieri facias. from the words in it, where the sheriff is commanded quod fieri faciat de bonis, that he cause to be made of the goods and chattels of the defendant the sum or debt recovered (ƒ). (e) By Reg. Gen. H. T. 2 Wm. 4, no judgment shall be signed for non-appearance, unless the defendant has been summoned, but such judgment may be signed by leave after eight days from the return of one scire facias. (f) By 1 & 2 Vict, c. 110, s. 20, such new or altered writs shall be sued out of the courts of law, equity, and bankruptcy, as may by such courts respectively be deemed necessary for giving effect to the provisions of the act, and in such forms as the judges of such courts shall order; and the execution of such writs shall be enforced in the same manner as writs of execution were then enforced, or as nearly as can be; and any existing writ, the form whereof shall be altered in pursuance of this act, shall be of the same force as if no alteration had been made therein, except so far as the effect thereof |