returned, and filed, without a regular notice of a motion for that purpose.69 Writs of error to all other courts must be returned, and the returns signed by the clerk of the court to which such writs are addressed, under the seal thereof.70 SECTION III. OF THE PROCEEDINGS AFTER THE RETURN OF THE WRIT OF ERROR, When writ may be quashed, or All the proceedings, which have been hitherto mentioned, are in the court below, where the judgment was given; but, from henceforth, they are in the court above, to which they are removed. When the transcript of the record is returned, and filed, but amended, not before,"1 the plaintiff in error may move to amend the writ nonprossed. of error, or the defendant in error to quash or nonpros it;101 or it may abate or be discontinued.72 Amending writ. Great certainty was formerly required, in making the writ of error agree with the record; for, as the writ was the sole authority by which the judges were empowered to act, they could proceed only on that record which the writ, or commission, authorised them to examine;73 nor could any defects 69 19 Johns. Rep. 453. 70 R. St. ib. s. 44. Vol. 2. p. 599. 11 Ld. Raymd. 329. 2 Smith. Rep. 259. 1 Caines' Rep. 251. 101 1 Caines' Rep. 251. therein be amended before the 5 Geo. 1, c. 13, because, by the former statutes of amendment, the judges were only enabled to amend in affirmance of the judgment."4 By the ninth section of the "Act concerning amendments and jeofails," in the old statutes, it was provided, that "all writs of error, wherein there shall be any variance from the original record, or other defect, may and shall be amended, and made agreeable to such record, by the respective courts where such writ or writs of error are, or shall be, made returnable.”75 This section is not expressly re-enacted in the revised statutes; but the eighth section of the Title "Of amending pleadings and proceedings," taken in connection with the preceding section, seems fully to authorise similar amendments.78 to amend Under the statute of 5 Geo. 1, which is the same in terms Practice as as the section from the old statutes, above cited, it has been ments. the practice to amend the writ of error, as a matter of course, without costs.79 Where a writ of error was sued out on a judgment of the common pleas, in an action of covenant, describing it as a plea of trespass on the case, the court of king's bench, in which it was returnable, upon application made to them, permitted the writ of error to be amended, by substituting the words, "in a plea of covenant broken," instead of the words, "in a plea of trespass on the case," without imposing any terms whatever.80 And the court of errors have allowed a writ of error to be amended, as to the parties, and the form of the return, without costs.81 But, where a writ of error was returnable before the giving of the judgment on which it was brought, this was held to be such a fault as was not amendable by the statute. 82 Quashing writ. 83 The general ground, of quashing a writ of error, is some fault, or defect therein, that is not amendable by statute; and the application to quash it ought to be made to the court wherein it is returnable. Where there are several parties who are aggrieved by a judgment, and the writ of error is brought by some, or one of them only, the court will quash it.84 But when one of several parties to a judgment, who is not aggrieved thereby, joins in bringing a writ of error, it must be amended by striking out his name, and stand good for the other parties.85 Where a writ of error was brought on a judgment of the supreme court, on a bill of exceptions, to the court of errors, which decided in favour of the plaintiff, and thereupon a venire de novo was awarded; and on the second trial in the court below, a second bill of exceptions was taken on the same point, and a second writ of error brought; the court of errors, on motion, quashed the second writ of error, with costs. 86 Where a judgment of a court of common pleas was reversed, on error to the supreme court, and a new trial ordered, and the plaintiff in error, who was the defendant in the court below, took out a writ of restitution, and an execution for his costs in the supreme court, and after the money collected on the judgment in the common pleas had been restored, and the costs in the supreme court collected, proceeded by rule to compel the plaintiff below to proceed to trial, who accordingly went to trial a second time, and again obtained a verdict and judgment in the common pleas, and then brought a writ of error from the judgment of the supreme court to the court of errors; it was held, that he had a right to his writ of error, from the judgment of the supreme court, and that his proceedings in the common pleas were no waiver of his right 84 R. St. P. 3. Ch. 9. T. 3. s. 7. 425. 2 W. Black. Rep. 1067. Vol. 2. p. 592. Ante, p. 442. 36 3 Johns. Rep. 554. to bring error; and the court intimated that a reversal of the judgment, in the supreme court, would be a reversal of all the consequent proceedings, including those in the common pleas, upon the second trial.87 Upon a writ of error being quashed, the defendant in error is entitled to costs.88 compelling plaintiff to According to the practice of the English courts, if the Mode of plaintiff in error will not proceed, after the record is certified, assign errors the defendant, in order to compel him, must sue out a writ of in s. C.; scire facias quare executionem non, in the court wherein the writ of error was returnable; except on a writ of error in fact, or by a plaintiff, to reverse his own judgment. But it has been the uniform practice, in the supreme court, for a great many years, instead of issuing a scire facias quare executionem non, according to the English practice, to enter a rule on the return of the writ of error, that the plaintiff in error assign errors in twenty days, or that his default be entered. The defendant in error gives notice to the plaintiff in error, that the writ has been returned and filed, and that thereupon a rule has been entered, that the plaintiff in error assign errors, &c. This notice must be served on the plaintiff in error, or his attorney.90 At the expiration of the time limited by the rule, and on filing an affidavit of due service of the notice, the plaintiff's default may be entered in the book of common rules. On showing a reasonable excuse for not assigning errors in time, the default will be set aside, on payment of costs.91 errors. In the court of errors it is provided by rule, that "the In court of plaintiff in error, on the day the writ of error shall be returned, with the transcript of the record or proceedings, if diminution shall not be alleged, and if diminution shall be 87 9 Cowen. Rep. 635. 33 R. St. P. 3. Ch. 10. T. 1. s. 32. Vol. 2. p. 618. 89 2 Tidd. Pract. 1221. 90 18 Johns. Rep. 508. 91 2 Caines' Rep. 385: Alleging diminution, and certiora ri. alleged, then on the return day of the certiorari, shall assign errors, and file the same with the clerk, or in default thereof, the plaintiff in error, shall lose, the benefit of the writ, unless this court shall see cause to allow further time for that purpose; and the defendant in error may thereupon, on motion, obtain an order, that such writ of error be dismissed, with costs to be taxed." And it is likewise provided by rule of the same court, that orders to assign errors, or to join in error, may be entered at any time by the clerk, of course, in the minutes of the court, upon the written request of the attorney or counsel, at the peril of the party entering the same, with the like force and effect as if entered by direction of the court during its session.99 Where the whole of the record is not certified by the court below upon the writ of error, the party that sues out the writ may allege diminution of the record, and pray a writ to the justices who certified the record below, to certify the whole of it.101 It is provided by statute, that "a certiorari to certify any diminution, variance, or other defect, in any record or proceedings, may be issued by the court to which a writ of error shall be returnable, to the court upon whose judgment such writ shall be brought, and shall be served on a clerk thereof, and shall be returned by him according to the command of such writ."94 And it is further provided, that "any clerk neglecting or omitting to make any return of any writ, to the court for the correction of errors, according to law, shall be liable to be punished by such court on attachment for his contempt, in the same manner as officers of other courts, for disobeying the process or orders of such courts. 1995 It seems that in order to warrant the issuing a certiorari on error, to bring up any proceedings dehors the record, the plain 92 Rule 3. 9 Cowen. Rep. 287. 101 2 Bac. Abr. 468. et vide 3 94 R. St. P. 3. Ch. 9. T. 3. s. 45. Vol. 2. p. 599. 95 Ib. s. 46. |