writ of error from an inferior court, or from the Common Pleas to the King's Bench, the entries are made by the attorney for the defendant in error, on different rolls, entitled of the term the writ of error is returnable; and begin with the writ of error and return, after which the proceedings in the inferior court or Common Pleas are entered, to the end of the final judgment: then follows the judgment of nonpros for not assigning errors, or, if they are assigned, the assignment of them; and if it be of errors in fact, the plea and replication, &c. are next entered, with an award of the venire facias, or if it be of errors in law, there is an entry of the joinder, with a continuance by curia advisari vult; after which the roll proceeds with the finding of the jury, or determination of the court, and judgment of affirmance or reversal. And a mistake of the clerk, in entering the assignment of errors and joinder of a wrong term may be amended."

On an issue in fact, a record of nisi prius is made up, and the parties proceed to trial, as in common cases; and, after verdict, the party for whom it is found must move to put the cause in the paper for argument; and then, on producing the postea, the court will *give judgment according to the finding: In this case the [*1234] defendant as well as the plaintiff, may carry down the cause to trial, without a rule for trying it by proviso.

On an issue in law in the King's Bench, either party may move for a concilium, draw up and serve the rule, enter the cause with the clerk of the papers, and proceed to argument, as on demurrer.f Previous to the day of argument, copies of the books, or proceedings in error should be delivered (as on demurrer,) by the plaintiff or his attorney, on unstamped paper, to the chief-justice and senior judge, and by the defendant or his attorney, to the two other judges; in which should be inserted the names of the counsel who signed the pleadings: and the exceptions intended to be insisted upon in argument, should be marked in the margin. If either party neglect to deliver the books, they ought to be delivered by the other;k and in that case, the party neglecting cannot be heard, but judgment will of course be given against him.

In the Exchequer chamber, there are no more than two return days in every term; one is called the general affirmance day, being appointed by the judges of the Common Pleas and barons of the Exchequer, to be held a few days after the beginning of every term, for the general affirmance or reversal of judgments; the other is called the adjournment day, which is usually held a day or two before the end of every term. On the first of these days, judgments

East, 131. Ante, 796.

h R. E. 18 Car. II. K. B. Ante, 796. R. E. 2 Jac. II. revived by R. H. 38 Geo. III. K. B. and see R. H. 48 Geo. III. C. P. 1 Taunt. 203. Ante, 511. 796, 7. * 4 Taunt. 147.

R. M. 17 Car. I. K. B. Imp. K. B.799. R. E. 27 Car. II. R. M. 6 Geo. II. reg. 3. C. P. Sed quære; and see 6 Durnf. & East, 477. 1 Bos, & Pul. 292. Ante, 798.

are affirmed or reversed, or writs of error nonprossed; the intent of the latter is to finish such matters as were left undone at the former: on which last-mentioned day also, as well as on the first, judgments may be affirmed or reversed, or writs of error nonprossed, on paying an additional fee to the clerk of the errors, and setting down the cause two days before the adjournment day."

m

The proceedings in this court are entered by the clerk of the errors, who sets down the cause, at the instance of either party, without a motion for a concilium: In making the entry, after setting forth the writ of error and return, and the proceedings in the court of King's Bench, a day is given to the plaintiff to assign errors; after which the assignment of errors, and other subsequent proceedings, are [*1235] entered on the return days they are put in, with a separate placita for each day." It is a rule in the Exchequer chamber, that "no copy of error and record thereupon be delivered to the justices or barons, before the attorney for the plaintiff in error shall have given ten days notice to the clerk of the errors in the Exchequer chamber, that the error assigned in the record is to be argued before the said justices and barons, for both parties; and that the attorney for the plaintiff shall deliver four copies to the justices of the Common Pleas, and the attorney for the defendant shall deliver four other copies to the barons of the Exchequer, four days before the hearing of the cause:" To enable the parties to deliver these copies, a transcript of the proceedings is made for them, by the clerk of the

errors.

In the House of Lords, when the defendant hath joined in error, the cause is set down, on the motion of a peer, to be heard in turn; after which, if the house is likely to be soon up, either party may on petition, of which two days previous notice should be given to the other, have the cause appointed for a short day: And when a day is appointed for hearing the cause, the same cannot be altered but upon petition; and no petition can in such case be received, unless two days' notice thereof be given to the adverse party, of which notice oath is to be made at the bar of the house. Previous to the argument, the cases for both parties must be drawn up, and signed by counsel; and it is usual for each party to deliver two hundred and fifty printed copies of them at the Parliament office, four days at least before the hearing, some of which are given to the lords, and others to the judges.

On the day appointed for argument, the counsel for the parties are heard, being previously instructed, and furnished with copies of the paper books, or printed cases; and if there be no argument, one of them moves for judgment of affirmance or reversal. If the errors be argued, one counsel only is heard on each side, in the King's Bench; the counsel for the plaintiff in error begins, the counsel for

the defendant is then heard, and the plaintiff's counsel replies: In the House of Lords, no more than two counsel can be heard on each side;" and one counsel only to reply.*

*The judgment in error, unless the court are equally [*1236] divided in opinion, is to affirm, or to recall or reverse the former judgment; that the plaintiff be barred of his writ of error; or that there be a venire facias de novo. The common judgment for the defendant in error, whether the errors assigned be in fact or in law, is that the former judgment be affirmed: So, on a demurrer to an assignment of errors, in fact and in law, for duplicity, the judgment is quod affirmetur. For error in fact, the judgment is recalled, revocatur, and for error in law, it is reversed. On a plea of release of errors, or the statute of limitations, found for the defendant, the judgment is, that the plaintiff be barred of his writ of error. It has already been shown, in what cases a venire facias is grantable de novo.e

When the court of King's Bench are equally divided in opinion upon a writ of error, it seems there can be no rule for affirming or reversing the judgment, without consent; and therefore, in the case of Thornby v. Fleetwood, the court being divided in opinion, a rule was made, with the assent and at the instance of the lessor of the plaintiff, to expedite the determination of the cause in the House. of Lords; whereby it was ordered, that the judgment should be affirmed. But in the Exchequer chamber, it is the practice, upon a division, to affirm the judgment, as was done in the case of Deighton v. Greenville: And so is the practice in the House of Lords; which depends on their mode of putting the question to reverse the judgment, a majority being required to reverse it.

A judgment, when entire, cannot, it is said, regularly be reversed in part, and affirmed for the residue. Therefore, where A. brought *an action on the case for damages against B. for words [*1237]

f1 Str. 379. and see 1 Salk. 17.

Lil. Ent. 524. By the statute 14 Edw. III. stat. 1. c. 5. it is provided, "that whereas causes have been delayed for difficulty and division in opinions; therefore, to remedy the delays occasioned

be chosen a prelate, two earls, and two barons, who by good advice of others, are to give judgment; or if they cannot determine it, that then the record shall be brought into parliament, who shall make a final accord: and the judges before whom the cause is depending shall proceed to give judgment, pursuant to their directions." But there appear to be no footsteps for centuries, of any such appointment of a prelate, two earls, and two barons; and the court of King's Bench, in the above case, thought it would be improper, on a writ of error from the Common Pleas, to adjourn the cause for difficulty into the Exchequer chamber, or House of Lords. 1 Str. 383. h 1 Show. 36. Cruise, on Fines, 222. i1 Str. 383.

2 Bac. Abr. 227. 1 Ld. Raym. 255, 6.

thereby, there shall in every parliament 2 Ld. Raym, 825,

spoken of him, and for causing him to be indicted, &c. and the jury found a verdict for the plaintiff as to both, with entire damages, yet it being afterwards holden that the words were not actionable, the judgment was reversed in toto: But if part of the words laid be not actionable, and several damages are given, it seems that judgment shall be reversed in part only. And where judgment is given for the plaintiff in debt on two counts, one of which is bad, the court may reverse it as to that count, and also as to the damages and costs, which, being given generally, apply to the whole declaration, and cannot be separated, and affirm it as the other count."

m

When there are several dependent judgments, and the principal one is reversed, the other cannot be supported: As if a man recover in debt upon a judgment, if the first judgment be reversed, the second falls to the ground. But the reversal of the last judgment will not affect the first: As if a judgment be given against executors in an action of debt, and after a scire facias, judgment is given against them, to have execution of their proper goods, and a writ of error is brought upon both judgments; in this case, if the first judg ment be good, and the last erroneous, the last judgment only shall be reversed, and the first shall stand.P

So, if there be several distinct and independent judgments, the reversal of the one shall not affect the other: As in an action of account, if judgment be given quod computet, and after auditors are assigned, and upon the account judgment is given against the defendant also, with damages and costs, and after a writ of error is brought upon both judgments, and thereupon the last judgment only is found to be erroneous; in this case, the last judgment only shall be reversed, and not the first judgment, but that shall stand in force; for these are two distinct and perfect judgments, the first judgment being ideo consideratum est quod computet, et defendens in misericordia. So, if the judgment consist of several distinct and independent parts, it may be reversed as to one part only; as for costs alone, or damages in scire facias, or for damages and costs in a qui tam action.

If judgment be given against the defendant, and he bring a writ of error, upon which the judgment is reversed, the judgment, it is [*1238] said, shall only be quod judicium reversetur; for the writ of error is brought only to be eased and discharged from that judgment. But if judgment be given against the plaintiff, and he bring a writ of error, the judgment shall not only be reversed, if erroneous, but the court shall also give such judgment, as the court below should have given; for the writ of error is to revive the first cause of action, and to recover what he ought to have recovered by the first suit, wherein an erroneous judgment was given." The former part of

12 Bac. Abr. 228.

m 1 Str. 188.

6 Taunt. 645. 2 Marsh. 304. 308, 9. S. C. and see 2 Chit. Rep. 30. (a.)

0 2 Bac. Abr. 229.

Þ Id. ibid. and see 2 Str. 1055. Cas. temp. Hardw. 345. S. C.

92 Bac. Abr. 228, 9.

Lil. Ent. 233. 1 Str. 188.

⚫ 2 Str. 808. 2 Ld. Raym. 1532. S. C. 4 Bur. 2018.

u 2 Bac. Abr. tit. Error, M. 2. 1 Salk. 262. 401. 4 Mod. 76. S. C. 4 Bur. 2156. 12 East, 669.

this distinction, however, does not appear to be well founded: for in a late case, where judgment had been given in the Common Pleas for the plaintiffs, upon a special verdict in assumpsit, which was reversed upon a writ of error in the King's Bench, the defendant was holden to be entitled, in the latter court, not only to judgment of acquittal, but also for the costs of his defence in the Common Pleas, being the same judgment which the court below ought to have given; the defendant in such case being entitled to his costs, by the statute 23 Hen. VIII. c. 15. But there must be a rule nisi, for reversing a judgment given for the plaintiff in an inferior court, and that it be referred to the master to tax the plaintiff in error his costs, where the defendant has not joined in error. If judgment be given for the plaintiff on one count in a declaration, and a distinct judgment for the defendant on another, and the defendant bring a writ of error to reverse the judgment on the first count, the court of error cannot examine the legality of the judgment on the second count, no error being assigned on that part of the record.2

When a judgment against the plaintiff is reversed, on a writ of error brought in the King's Bench, that court, having the record before them, may in all cases give such judgment as the court below should have given; and if necessary, may award a writ of inquiry to assess the damages. And so, when judgment is given against the plaintiff in the King's Bench, on a special verdict, by which the damages are assessed, the Exchequer chamber or House of Lords may, in case of reversal, give a new and complete judgment, for the plaintiff to recover those damages. But when the damages are not assessed, as where judgment is given on demurrer, the Exchequer chamber or House of Lords, not having the record before them, but only a transcript, cannot give a new and complete judgment, but only an interlocutory judgment quod recuperet; and *the transcript being remitted, the court of King's Bench [*1239] will award a writ of inquiry, and give final judgment."

When the judgment is affirmed, or writ of error nonprossed, the defendant in error is entitled to costs and damages, by 3 Hen. VII. c. 10. & 19 Hen. VII. c. 20. By the former of these statutes, reciting that writs of error were often brought for delay, it is enacted, that "if any defendant or tenant, against whom judgment is given, or any other that shall be bound by the said judgment, sue, before execution had, any writ of error to reverse any such judgment, in delay of execution, that then, if the same judgment be affirmed, or the writ of error be discontinued in default of the party, or the plaintiff in error be nonsuited therein, the person or persons against whom the writ of error is sued, shall recover his costs and damages, for his delay and wrongful vexation in the same, by discretion of the justiced before whom the writ of error is