CHAPTER IV. OF WRITS OF Error, AND THE PROCEEDINGS IN ERROR. SECTION I. OF THE WRIT of error, WHEN, AND BY AND AGAINST WHOM, IT MAY BE BROUGHT, AND TO WHAT COURTS IT LIES. writ. The general nature of a writ of error has already been Nature of briefly considered in a former part of this treatise. It is, as we have there seen, in the nature of a commission to the judges of the same, or a superior court, by which they are authorised to examine the record upon which judgment was given, and upon such examination to reverse or affirm the same according to law; and lies, in all cases where a party is aggrieved by any error in the foundation, proceeding, judgment, or execution of a suit, in a court of record.2 The error must be one in substance, and that is not aided, amendable, or cured, at common law, or by statute.3 writ may be The following provisions, in the revised statutes, prescribe By whom by what persons the writ of error may and should be brought: brought: "Writs of error must be brought, 1 Ante, Vol. 1. p. 84. 32 Tidd. Pract. 1191. 1. "By the party against whom the judgment complained of was rendered: "2. In case of his death, by his executors or administrators, if the judgment was to recover any debt or damages only, or to recover any interest in lands declared by law to be personal assets: or, "3. In case of the death of such party, if the judgment was for the recovery of real estate, or the possession thereof, or the title to real estate, was determined thereby, by the heirs or devisees of such deceased party, to whom such estate was devised or descended, or might have descended: "4. By any person having an estate in reversion or remainder, in any real property, which shall have been recovered, or the possession of which shall have been recovered, in any action relating to property, brought against any tenant for life, or for years, in which action such person was not a party; and such writ may be brought within the time prescribed by law, by such person, as well during the life time of such tenant as after his death."101 "Any party, in whose favour any judgment may have been rendered, upon which no execution shall have been issued, and which shall not have been in any way satisfied, in whole or in part, and after his death, his personal representatives, heirs, or devisees, may bring a writ of error to reverse such judgment, in the same cases as if such judgment had been rendered against such party."4 "Writs of error may be brought by the attorney-general in behalf of the people of this state, in the same cases, and in the same manner, except where otherwise specially provided, as they might be brought by any individual."5 "If a judgment be recovered against a female, and she afterwards marry, or if a judgment be recovered against a married 101 R. St. P. 3 Ch. 9. T. 3. s. 2. Vol. 2. p. 591. 4 Ib. s. 3. p. 592. 5 Ib. s. 4. woman, a writ of error may be brought thereon, by her and her husband jointly." "If a judgment shall have been obtained against several persons, and one or more of them die, a writ of error may be brought thereon by the survivors."" not be trary to The defendant is not allowed to bring error contrary to his Error canown agreement, or that of his attorney; therefore, when the brought condefendants have agreed upon a consolidation rule, not to bring agreement: a writ of error, they are not allowed to do so, though there be manifest error in the record. And where executors against whom a scire facias had been sued out, to recover damages assessed on an interlocutory judgment against the testator, brought a writ of error after the testator's attorney had agreed for him that no writ of error should be brought, the court of king's bench, on motion, ordered the attorney to nonpros the writ of error; for the scire facias was merely a continuance of the proceedings in the original action; and, as the testator himself, if he had lived, could not have brought a writ of error in consequence of the agreement, so neither could his executors.10 But a consent to confess judgment in a second action, with a stay of execution till a writ of error be determined on the original judgment, does not prevent the defendant from bringing a writ of error on the second judgment, after the affirmance of the first, unless it be so expressed in the rule." Where a judgment has been obtained against a sheriff, for escape of a defendant in execution, who has been admitted to the jail liberties, the bail or sureties of the defendant are entitled to maintain a writ of error, in the name of the sheriff, for the reversal of the judgment against him; and a court of equity will set aside a release of errors éxecuted by him with 6 Ib. s. 5. 7 Ib. s. 6. 2 Term. Rep. 183. VOL. II. 56 1 H Black. Rep. 21. 10 1 Term. Rep. 388. Former practice where some of error would not assign errors. out the consent of the bail, and compel him to allow them to use his name.12 It is rule that on a judgment against several parties, the writ of error must be brought in all their names, provided they plaint in are living; and according to the former practice, where a writ of error was brought in the names of several parties, and any one, or more of them, refused to appear and assign errors, they must have been summoned and severed, after which the writ of error might have been proceeded in by the rest alone. 13 All persons living against whom judg vered must join in writ of error. In the following provisions in the revised statutes the rule above noticed is recognised; but the proceedings by scire facias to summon persons not named in any writ of error, and to sever them, are abolished, and a new remedy substituted, where any of the persons who ought to join in the writ have refused, or are incapable of doing so : "If there be several persons against whom any judgment shall have been recovered, and entitled to bring a writ of error ment reco thereon, living, at the time of bringing such writ, they shall all join in such writ, except in writs of error upon judgment in proceedings for partition, and if any are omitted, the writ shall be quashed, on motion of the defendant in error, made at any time before joinder in error, upon affidavit of the facts, unless one or more of such persons be allowed to proceed separately, by the court into which the writ shall have been returned.”14 Excuses for not joining all. "To the allegation of there being other persons living who ought to join in such writ of error, if it be established or admitted, the party prosecuting such writ may answer by due proof on affidavit, that any of such persons not joined, are either incapable of consenting to join in such writ, by reason of insanity, or imbecility of mind; or that their consent could 12 14 Johns. Rep. 501. 14 R. St. P. 3. Ch. 9. T. 3. s. 7. Vol. 2. p. 592. not be obtained, by reason of their being absent out of this state; and if the court shall be satisfied of the truth of such answer, such party shall be allowed to prosecute such writ, without joining such persons, in the same manner as if they were joined."15 fusing to "To such allegation, the party prosecuting the writ may also Parties reanswer, by due proof on affidavit, that application has been join. made to any of the persons not named in such writ, to join therein, and that they have refused. In such case the court shall stay further proceedings on such writ, and on the motion to quash the same, until a rule shall have been duly served upon the persons so refusing, as herein after provided."16 ring them to "The court shall thereupon cause a rule to be entered in Rule requiits minutes, directing the persons so refusing to join in such join. writ, to appear in such court, within such time as shall be prescribed therein, and then join in such writ of error, and in the proceedings thereon, or be for ever precluded from bringing another writ of error on the same judgment." 118 rule. ted to join. "A copy of such rule shall be served on the parties named Service of therein, at least ten days previous to the time of appearance therein specified, by delivering the same personally to them, if they can be found; and upon such of them as cannot be found, by leaving the same at their last places of residence respectively, with some person of proper age.' "Upon the application of any person, named in such rule, he How permitmay be permitted to join in such writ of error, and in the proceedings thereon, upon payment of the costs of the proceedings, to bring him into court, including the motion to quash the writ of error, if it shall appear that he refused to join in such writ, on application, and without just cause; and the writ and proceedings shall be amended, by inserting the name of such person."19 on their de "If any person, named in such rule, do not appear by the Proceedings time therein specified, and join in such writ of error, upon due fault. |