Page 39. note (b), after " 22 E. 4, fo. 30," add "S. C. in error, M. 2 R. 3, fo. 2, pl. 7." 242. note (a), for " R. E. 1 Vict." read "R. T. 1 Vict." 243. note (d), for "judgment order" read "judge's order." 249. note (g), for "declaration" read "plea." 360. line 27. for "defendant" read "plaintiff." 34. for "defendants" read " plaintiff." 472. line 5. for "How could he do that" read "How could that be done." 584. note (a), after "Duchess of Lancaster" add "(to use a popular and intelli gible, but not very accurate, term)." 695. side note, for "that impounding " read "that the impounding." 710. side note, for "S. S." read "J. S." 744. lines 6. and 8. from bottom, dele "the replication to." ROBERT BRUCE the younger, Plaintiff in Error, January 24. v. WILLIAM KILLEGREW WAIT and SAMUEL and May 1. JAMES, Defendants in Error. an inferior court to issue THE issue in error first set out the enrolment of a A custom in writ of error, requiring the recorder of the borough (a) of the city and county of Bristol and judge of process of foreign at tachment, for the purpose of compelling the appearance of the defendant, without a previous summons, is bad. A record, by which it appears that process of foreign attachment issued upon a plaint, without an intervening summons and return of non est inventus et (a) Every city is a borough, Co. Litt. 109.; but the Mu VOL. I. B nicipal Corporation Act, 5 & 6 W. 4. c. 76., having used the 1840. BRUCE the Tolzey court, there to have before his late Majesty's justices at Westminster (a) the record and process of a plaintiff in an action of debt by attachment, in which William Killegrew Wait and Samuel James were plainnihil habet, is tiffs, one John Coombe was defendant, and Robert Bruce, the younger was claimant, of certain goods and chattels บ. WAIT. erroneous. The claimant of the goods attached, against whom it has been considered in the court below, that judgment be entered for the plaintiffs (for whom a verdict had been found upon a counter-plea of the claim), may bring a writ of error although the original defendant has not appeared. A plaintiff in error, who has assigned error in fact, to which in nullo est erratum is pleaded, may insist upon errors of law apparent on the record, and stated in the margin of the paper book. Quære, whether the adding of the similiter by the party who takes an issue, is a joining of issue within 21 Jac. 1. c. 23. s. 2. Quære, whether the entry of a claim to goods taken under process of foreign attachment is tantamount to an arrest or an appearance, from which the six weeks for joining issue are to be calculated under 21 Jac. 1. c. 23. s. 2. word "borough" only when intended that such incongruous designations as "borough and city," and "burgesses of the city," should be adopted. (a) This writ of error was made returnable in the Court of Common Pleas rather than in the Queen's Bench, upon a supposition that it would be heard two years earlier in the former court than in the latter. That error lies from an inferior court into the Court of Common Pleas appears from several authorities. Fitzherbert (of whose treatise Willes C. J. says, that it is a work of the greatest authority, Willes 120.) states, that if false judgment be given in London (post, 6 (a) Cro. Jac. 538., except in the sheriff's court, from which error lies to the mayor's court, and in the mayor's court, from which it lies to judges delegates, F. N. B. 22 H.; 1 Rot. Parl. 316 a) or other place, which is a court of record, the party grieved shall attached as the goods and chattels of J. Coombe. Then followed the transcript under the seal of the recorder. 1840. BRUCE v. WAIT. City, and county of the city of Bristol, to wit, Pleas in the court of our Sovereign Lady the Queen of the Tolzey of the city and county of Bristol, holden at Transcript. the Guildhall of the same city according to the law have a writ of error, and the writ may be returned into the Common Pleas, or in the King's Bench, at the pleasure of him who sueth the same, F. N. B. 20 D.; so again, F. N. B. 21 G.; and the law, as laid down by Fitzherbert, is expressly cited and recognised by Dyer C. J. in Dyer, 250.; and in Carter, 222., Vaughan C. J. says, "A writ of error out of an inferior court lies properly here, as in the King's Bench; but generally writs of error, for many years, have not been brought here. The reason is matter of conveniency; because, if you bring a writ of error here and the judgment is affirmed, yet it may be brought into the King's Bench and be reversed; though, indeed, if a writ of error be brought here, we must proceed upon it. But no man will advise his client to bring it here, but rather into the King's Bench, where it is final." (The two courts are now placed upon the same footing in this respect). So in Comyns's Digest, tit. Pleader (3 B. 2.), and in Bacon's Abr. tit. Error (I.) 5., the passage in F. N. B. is referred to as clear law; and in M. 19 H. 6. fo. 12. pl. 31., Newton C. J. C. P. says, "Error in county palatine should be redressed here." In Gilbert's Common Pleas it is said, "The courts of Westminster are the superior courts in the kingdom, and have a superintendency over all the other courts; by prohibition, if they exceed their jurisdiction, or by writ of error and false judgment, if their proceedings are erroneous." No distinction is here made between writs of error and writs of false judgment, and it is notorious that a writ of false judgment lies in C. P. Vide 2 Inst. 138. The only original authority which has been found against the jurisdiction of the Court of C. P. in error, is the following short note in Cro. Eliz. 26., Roe v. Hartley: - "It was held by all the justices that a writ of error doth not lie in the Common Pleas upon an erroneous judgment given in any inferior court of record, and this was, as they said, upon great advice." A reference is added "F. N. B. 20 D. contrà, vide Dyer, 250." It does not appear from this report upon what occasion the opinion there stated was expressed. From the reference to Dyer, 250., and, in the margin to Moore, 78. (Price v. Jones ; S. C. 1 Anderson, 12.; Benlowes, 40. pl. 161.) it may perhaps be inferred that in Roe v. Hartley the question was, whether error lay in C. P. upon a judgment in an assize, which was resolved in the negative. The reason is given in Dyer, 250.; being, that the justices of assize are appointed by the King's merchant, and according to the use and custom of the city aforesaid, from the time whereof the memory of man is not to the contrary in the same used and approved, and according to the liberties and privileges of the same city by divers charters of the progenitors of his present Majesty, granted to the mayor and commonalty of the city aforesaid, before Sir Charles Wetherell, knight, recorder of the said city, and judge of the said court of the Tolzey, (to wit) on Monday, the 30th day of January, in the seventh year, &c., and in the year of our Lord 1837, the said Sir C. Wetherell, knight, then and there being judge of the same court: To this court came W. K. Wait and S. James in their proper persons, and, according to the custom of the city aforesaid, affirmed their certain plaint against John Coombe, in a plea of debt patent. Strictly speaking, the opinion in Roe v. Hartley must have been extra-judicial, inasmuch as whatever the case before the Court may have been, a general opinion as to no writ of error lying in the C. P. cannot have been really necessary. The late text writers, Blackstone (3 Commentaries, 410.), Serjt. Williams (2 Wms. Saund. 101 b.), and Tidd (Practice, 9th ed. 1137, 1138.), also deny the jurisdiction of the Court of Common Pleas in writs of error from inferior courts of record. But these writers, without appearing to be aware of the authorities above cited in support of the jurisdiction, rely upon the case in Cro. Eliz. 26. (Roe v. Hartley), upon the case in Dyer, 250., in which it was held that error does not lie in C. P. upon judgments given by justices of assize appointed by the king's patent, and upon Finch's Common Law, 238., where it is said upon demand of 11007. of that writs of error shall always The opinion that error lies in the Common Pleas from the courts of a county palatine appears to have been controverted by Hillary J., M. 14 E. 3., Fitz. Abr. Error, pl. 6. In Spink v. Bishop of Ely, 21 Edw. 3., 2 Rot. Parl. 192. a. b., a writ of oyer and terminer was directed to be removed into K. B. or C. P. at the election of the defendant. |