Decisions there on the courts", "no judgment shall be signed, for non-appearance to a scire facias, without leave of the court or a judge, unless the defendant has been summoned; but such judgment may be signed by leave, after eight days from the return of one scire facias." The above rule applies to proceedings by scire facias against the defendant, to revive the judgment, as well as against bail on their recognizance. And though the scire facias's on a judgment had been issued previously thereto, it was holden that judgment could not be signed on such scire facias's, without complying therewith d: giving a rule for appearance was not deemed sufficient. And where several attempts had been made to summon a defendant, on a scire facias returnable on the 28th day of April, and eight days had elapsed after the return of the writ, an application on the 5th of November, to sign judgment, was holden to be too late, without summoning the defendant again. But where, on moving for judgment on a scire facias, it appeared that the defendant was out of the country, but notice had been given at his last place of abode, and several efforts made to serve him without effect, a rule was granted. The court will not allow judgment to be signed on the above rule, for non appearance to a scire facias against bail, unless it be shewn that they have been summoned, (in which case no application for leave to sign judgment is necessary 8,) or that efforts have been made to summon them, and what those efforts were h. So, judgment cannot be signed on a scire facias against bail resident out of the county of Middlesex, unless they have received notice of the proceedings, or attempts have been made to give such notice and the court will not give leave to sign judgment on a summons of one bail in Middlesex, unless the other, being resident out of that county, is warned of the proceeding. bail, or defend ant, to scire The appearance of the bail or defendant, to a scire facias in the Appearance by King's Bench, if the action were by bill, was signified by delivering a note in writing to the plaintiff's attorney: If the action were by facias. original, an appearance should formerly have been entered with the filacera, or, in the Common Pleas, with the prothonotaries : But, by a general rule of all the courts, "a notice in writing to the plaintiff, his attorney or agent, shall be a sufficient appearance, by the bail or defendant, on a scire facias." 66 66 No damages were recoverable in scire facias, at common law, for delay of execution : and the parties were consequently not entitled to costs, until the statute 8 & 9 W. III. c. 11. § 3. by which it is enacted, that "in all suits upon any writ or writs of scire facias, the plaintiff obtaining an award of execution after plea pleaded, or de"murrer joined therein, shall recover his costs of suit; and if the plaintiff shall become nonsuit, or suffer a discontinuance, or a ver"dict shall pass against him, the defendant shall recover his costs, "and have execution for the same by capias ad satisfaciendum, fieri "facias, or elegit;" with a proviso, that the statute shall not extend to executors or administrators. This statute was extended by the law amendment act 8; by which it is enacted, that "in all writs of scire "facias, the plaintiff obtaining judgment, on an award of execution, "shall recover his costs of suit, upon a judgment by default, as well "as upon a judgment after plea pleaded, or demurrer joined." And costs are it seems recoverable, when a scire facias is brought on the statute 8 & 9 W. III. c. 11. § 6, for assessing damages upon the death of a plaintiff or defendant, after interlocutory and before final judgmenti; or, on the same statute, § 8. for assessing further damages, on a suggestion of other breaches, in debt on bond for the performance of covenants, &c. In the King's Bench, the plaintiff must formerly have paid costs, on quashing his own writ of scire facias, after the defendant had appeared thereto1: In the Common Pleas, the plaintiff might have moved to quash his own writ, without paying costs, at any time before a 2 Archb. K. B. 89. b Imp. C. P. 7 Ed. 502. 515, 520. eR. H. 2 W. IV. reg. I. § 82. 3 Barn. & Ad. 386. 8 Bing. 300. Cromp. & J. 191. d Knox v. Costello, 3 Bur. 1791; and see Tidd Prac. 9 Ed. 881. 946. e Tidd Prac. 9 Ed. 1132. Bellew v. Aylmer, 1 Str. 188. Scammell v. Wilkinson, 3 East, 202. And for determinations on this statute, see Tidd 6 3 & 4 W. IV. c. 42. § 34. h Sic in printed copy of act, instead of or. i Tidd Prac. 9 Ed. 947. 1132. * Id. 881. 947. 1 Pickman v. Robson, 1 Barn. & Ald. 486; and see Pocklington v. Peck, 1 Str. 638. Damages, and costs in scire facias. Costs, on plaintiff's quashing his own writ. the defendant had pleaded a: But now, by a general rule of all the courts b, "a plaintiff shall not be allowed a rule to quash his own writ of scire facias, after a defendant has appeared, except on payment of costs." And the court of King's Bench will not make a rule for quashing a writ of scire facias, applied for by the plaintiff after the defendant has appeared, absolute in the first instance, unless good grounds are shewn c. a Heney v. Whitehead, Pr. Reg. 378. Poole v. Broadfield, id. 379. Cas. Pr. C. P. 109. Barnes, 431. S. C.; and see Tidd Prac. 9 Ed. 947, 8. 1123. DR. H. 2 W. IV. reg. I. § 78. 3 Barn. & Ad. 385. 8 Bing. 300. 2 Cromp. & J. 190. Ade v. Stubbs, .4 Dowl. Rep. 282. 1 Har. & W. 520. 11 Leg. Obs. 62, 3. 117. S. C. CHAP. XLIV. of WRITS of ERROR, and the PROCEEDINGS thereon. Writ of error what, and when it lies. To same or superior court. A WRIT of error is an original writ, issuing out of Chancery; and lies where a party is aggrieved by any error in the foundation, proceeding, judgment, or execution of a suit, in a court of record a; and is in nature of a commission to the judges of the same or a superior court, by which they are authorized to examine the record upon which judgment was given, and on such examination to affirm or reverse the same according to law b. This writ is grantable ex debito justitiæ in all cases, except in treason or felony; and in general lies For what cause. for some error or defect in substance, that is not aided, amendable, or cured at common law, or by some of the statutes of amendment or jeofails and it lies to the same court in which the judgment was given, or to which the record was removed by writ of error, or to a superior court. If a judgment in the King's Bench be erroneous in matter of fact only, and not in point of law, it may be reversed in the same court, by writ of error coram nobis, or quæ coram nobis residente, so called, from its being founded on the record and process, which are stated in the writ to remain in the court of the lord the king, before the king himself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict, or interlocutory judgment: for error in fact is not the error of the judges, and reversing it is not reversing their own judgment. So, upon For error in a judgment in the King's Bench, if there be error in the process, or d Tidd Prac. 9 Ed. 918, &c. 1136. e Append. to Tidd Prac. 9 Ed. Chap. f 1 Rol. Abr. 747. pl. 13, 14. Meggot Error coram nobis, in K. B. for error in fact. process. Error coram vobis, in C. P. For error in law, to K. B. from C P. and inferior courts. From K. B. at common law. To Exchequer chamber, by stat. 27 Eliz. c. 8. through the default of the clerks, it may be reversed in the same court, by writ of error coram nobis a: and error will lie in the King's Bench, on a judgment of the Common Pleas, for error in fact b. But if an erroneous judgment be given in the King's Bench, and the error be in the judgment itself, and not in the process, a writ of error does not lie in the same court, upon such judgment. If an infant by attorney assign for error coram nobis, that he has improperly appeared in the action by attorney, instead of by guardian, it is not a mere irregularity, but a ground of error: the court however will, on application, set aside the assignment, and allow the plaintiff in error to assign the error by guardian d. In the Common Pleas, the record and process being stated to remain before the king's justices, the writ is called a writ of error coram vobis, or quæ coram vobis resident o. For the error or mistake of the judges in point of law, a writ of error formerly lay to the King's Bench, from the Common Pleas at Westminster; as it still lies from all inferior courts of record in England, except in London, and some other places; and, after judgment given thereon, a second writ of error may be brought, returnable in the House of Lords: but error lies not from an inferior court to the Common Pleas i. At common law, no writ of error lay on a judgment from the King's Bench, except in parliament; by which means the subject was often disappointed of his writ of error, either by the not sitting of parliament, or by their being employed in public business, when they did sit k. To remedy which, it was enacted, by the statute 27 Eliz. c. 8. that "where any judgment shall be given in the King's Bench, in any "action of debt, detinue, covenant, account, action upon the case, eject“ment, or trespass, first commenced there, other than such only where "the Queen shall be party, the plaintiff or defendant, against whom "such judgment shall be given, may, at his election', sue out of the |