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Where an iffue in fact is tried by the court, and there is any defect in the declaration or pleadings, which might have been taken advantage of under a motion in arreft, error will lie; but in the cafe of iflues in fact tried by courts or juries, let the judgment be ever fo erroneous, error will not lie, because the facts appeared in evidence only, and not on record. Some attempts have been made to bring up the whole cafe by stating all the facts in a bill of exceptions after verdict, but the courts have refused to fanction the practice.

In all the cafes above mentioned, writs of error are brought for a miftake in the judgment of the court, with respect to the law aring on the facts conceded by the parties, and appearing in the pleadings. There are fome cafes however in which this writ will Fe, for errors in fact not appearing of record: but this can be only in certain cafes, where the party had no capacity or opportunity to take advantage of them upon trial. As where an action is brought against a married woman, as tho fhe was fingle, or a minor as being of full age, and judgment is rendered on default, or where an action is brought against a person, described to live out of the state, or if the perfon live in the state, and is absent at the time of fervice of the writ, and does not return before the fitting of the court, and judgment is rendered against them the first term, error will lie and these facts may be stated as the grounds. In thefe cafes, the married woman had no power to appear, and make a separate defence from her husband: the minor had no capacity to appear and defend without a guardian, and the abfent defendants had no opportunity to make defence; but for matters of fact that come before the court in evidence, or which the party might have advantage of on trial, not being prevented by any legal incapacity, or want of opportunity, no writ of error will lie.

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Writs of error will lie upon matters stated in bills of exception. These were introduced into England by ftatute, but in this ftate, they depend on the authority of the adjudications and practice of the courts of law. They are calculated to lay a foundation to revife the judgment of courts refpecting the law, arising upon facts not apparent of record. By the practice in England, a bill of exception

i Morgan's Effays 466.

ception ought to be upon fome point of law, either in admitting. or denying of evidence, or a challenge, or fome matter of law arifing upon a fact not denied, in which either party is overuled by the court: it is evident that the object is to lay a foundation to bring before higher courts, the judgment of a court, upon fome collateral point that turns up in the courfe of the trial, and of courfe that they cannot be allowed with refpect to the general merits of the queftion. Our courts have allowed them in cafes which refpected the admiffion of evidence, and alfo in a cafe where both parties did not appear on the first day of the term, and on the fecond day the plaintiff appeared, and revived the action, without the confent and knowledge of the defendant, who being informed of it appeared and objected to it, and lodged his bill of exceptions on file, which was certified by the judge. Judgment was afterwards rendered on nihil dicit, and on writ of error was reversed for the facts ftated in the bill of exceptions. But in a cafe where a writ of error was founded upon a bill of exceptions containing a general ftating of the facts and arguments in the caufe, drawn up aftes verdict and judgment, the court upon a plea in abatement, difmiffed it. becaufe a bill of exceptions taking up the whole caufe is inadmiffible, and no legal foundation for a writ of error,

A bill of exceptions muft contain a true ftating of the facts, and then the judge is bound to fign it, and permit it to be lodged on file: but if the facts are not truly ftated, the judge is not bound to fign it.t "Where manifeft and material error thall appear of record in any judginent, or decree given in any fuit for relief in equity, the party aggrieved may be relieved by writ of error, in the fame manner as in proceedings at law.

2. Of the manner of bringing a Writ of Error.

A writ of error contains a command or fummons to the party, to appear before the court, to hear read the files and records of the court whofe judgment is complained of as erroneous, and to do what fhall be enjoined by the court. The writ contains a recital of

k Kirb, 168. / Ibid. 361. m bid 436. Rule of court established by the fuperior court, 1795. The party intending to file a bill of execptions, must give notice of it before the caufe is committed to the jury or the court, and the bill must be filed within twen. ty-four hours after verdict is recorded, and in trials by the cogit, within twenty-four hours after judgment and before the court rifes.

# Statutes, $1.

of the declaration, the pleadings, the judgment of the court, and an affignment of errors. It must be figned by one of the judges of the court to which it is returnable, and ferved in the fame manncr as other writs. It is a judicial writ, and the judge is not bound to fign it of courfe, but will examine if there be probable foundation for error: if it appear that the nature of the trial was fuch, that error can be predicated upon the proceedings, it is fufficient to juflify a judge in figning the writ. He must take good and fuflicient bond with furety, that the plaintiff in error, fhall profecute his writ to effect, and answer all damages in cafe he fail to make his plea good.

The parties to the original fuit must bring this writ, and if dead their executors or administrator. A writ of error may contain a fuperfedeas to the execution, if not levied, and which ought to be expreffed in the writ.

3. Of the affignment of Errors.

A general affignment of errors will be fufficient, as the whole record comes up before the court, they will examine and look through the whole, and if any error appears, they will reverfe the judgment. The ufual practice is, however, to make a fpecial affignment of errors: but if the plaintif fhould efpecially affign for error, what is not erroneous, and omit to affign the real errors, yet the court will reverfe the judgment, for errors not affigned, being apparent of record. The plaintiff cannot affign errror in fact, and error in law together, for thefe are diftinét things, and require different trials; but if fuch aflignment of error be made, the defendant if he means to take advantage of it must do it by way of abatement: for if he plead nothing erroneous, it is a confettion of the error in fact, and the judgment must be reverfed if the facts are material. If an error in fact be well affighed, the plea of nothing erroneous confells it to be true, but if it be ill af figned, fuch plea is no confeffion. Where the plaintiff affigns errors in fact, not properly affignable in error, together with futticint errors in law, fuch errors in fact will not abate the writ.

Nothing can be aligned for error which contradicts the re cord

1 Statutes, 443,
Roll. A 757•

Roll. Abr 761. n Salk 268, • Raym. 234.

cord itfelf. Thus where it was fuggefted that the plaintiff confeffed to the defendant in error upon a note for the fum of twentyfeven pounds, before a justice of the peace, who difcovering it to be above his jurifdiction, made up two judgments upon two confeffions, one for twenty pounds, and the other for the refidue: here the averment of the fact contradicts the record, and therefore is not adıniflible. 9 The plaintiff cannot affign a matter in error to procure a reverfal of a judginent, which was for his own advantage; but if the error be by default of the court, tho for the advantage of the party, he may aflign it; for the course of the court ought to be pursued.

▾ A man shall never affign that for error, which he might have taken advantage of by plea in abatement, for it fhall be accounted his folly to neglect the proper time of taking the exception. As If a married woman brings an action in her own name, and the defendant pleads in bar to the action, he fhall never afterwards align the marriage for error.

4. Of the defence that may be made by the defendant in Error.

The defendant may plead in abatement, if the writ of error is not properly brought and ferved, or if there be an affignment of error in fact and law together. If the aflignment of errors contains error in fact only, the fact may be denied, and an issue clofed and tried by witneffes in the ufual form. if the fact affigned be infufficient, the defendant may plead nothing erroneous, and which is always the proper plea to errors in law. The defendant may plead a release of all errors, or a discharge of all actions, or any act of the plaintiff, by which he is exonorated from all demands on account of the erroneous judgment.

As to the amendment of judgments on which writs of error are brought, it would seem reasonable that where a justice should miftake in giving a copy of a judgment that it might be rectified, and made according to the judgment, but where he has made an irregu lar, informal, or improper judgment, on which writ of error is brought, it would ferm that he ought not to alter fuch judginent;

and

95 Co 39. - Carth. 124. J Leavensworth vs. Tomlinfon, S. C. 1794. Nichols vs. Benedict, 1791.

and on motion in fuch cafes, to permit the justice to come in and amend a judgment, the court have refufed unless there is fomething to amend by; for it would be dangerous to fuffer courts to mend their records, by memory after the term is over.

5. Of the judgment that may be rendered on a Writ of Error.

It is enacted by ftatute-that when on any writ of error, that shall be brought before the fuperior court, the defendant in fuch writ of error fhall recover judgment, that the judgment complained of is not erroneoues, he fhall recover coft against the plaintiff: but if on fuch trial it fhall be determined, that the judgment complained of is erroneous, judgment fhall be given for the reverfal of fuch erroneous judgment, and the plaintiff fhall recover all that he hath been damnified thereby, but no cost in that cafe fhall be taxed for either party.

That when any judgment in a civil action fhall be reversed as aforefaid, the plaintiff in the original action on which fuch erroneous judgment was given, may enter his action in the superior court, paying the fame fees, as if he had brought it by appeal, and the faid court fhall proceed to try faid action, as if it had or could have been brought there by appeal: and the whole coft in faid action, (excepting the coft on the writ of error) fhall be allowed, and taxed in favour of him, who fhall recover final judgment.

In all cafes of the reverfal of a judgment, if the action be not entered anew in the fuperior court for trial, the rule of damages to be allowed to the plaintiff, will be the coft he ought to have recovered in the courts below: if any thing has been paid by him on fuch erroneous judgment, then he will be allowed in damages fuch fums as he has paid: but if the erroneous judgment has not been paid, no damages will be allowed on that account, because it is vacated.

Where the action is entered anew in the fuperior court, then no dainages are to be allowed on the reverfal, unless the erroneous judgment has been fatisfied, in which cafe the fum paid is to be allowed as damages: but the plaintiff in error cannot be allowed

any

Statutes jo.

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