Page images
PDF
EPUB

AUDITA QUERELA-VACATING JUDGMENT. 155

defendant at any period of the suit, where the cause of action would have survived to or against his co-plaintiff or co-defendant.

The plaintiff having obtained judgment is in the ordinary course of things entitled to issue execution, but there are certain proceedings in the nature of appeals, by means of which, the judgment is sometimes rendered ineffectual, and the prevailing party's right to execution superseded.

This may in some cases be done by writ of Auditá Querela, which is sued out, when a defendant, against whom judgment has been given, and who is therefore in danger of execution or perhaps actually in execution, has some good matter of discharge which has happened since the judgment, and therefore applies to the court to be relieved against the oppression of the plaintiff. It is named from the words with which it commences, stating that the complaint of the defendant hath been heard, and enjoins the court to do justice between him and the plaintiff. However, as the court will now, in most of the cases where an Auditá Querela used to be sued out, give summary relief on motion, this species of proceeding has fallen into neglect.

A motion to vacate the judgment is a proceeding pointed out by stats. 1 Wm. 4, c. 7, s. 4, (1) and 3 & 4 Wm. 4, c. 42, and which may be adopted when judgment has been entered during the vacation, and, consequently, before the unsuccessful party has had

(2) See ante, pp. 138-40.

an opportunity of making any application to the court in banco.

A Writ of Error is an appeal against the judgment, grounded, either on the suggestion of some fact which renders the judgment erroneous, as for instance, when the plaintiff or defendant dies before verdict or interlocutory judgment; or on some error in point of law apparent on the face of the proceedings. When it is grounded upon the suggestion of a fact, it is mostly brought in that one of the courts at Westminster in which the judgment was given. (2) Such a proceeding is called a writ of error Coram Vobis, or if the judgment be one of the King's Bench, Coram Nobis, on account of its being founded on a record which, in the one case, remains in the court of our Lord the King, before the King himself, and in the other case before the king's justices.

A Writ of Error from either of the three courts at Westminster to a superior court, is founded on some defect of law manifest upon the record. By stat. 1 Wm. 4, c. 70, writs of error upon any judgment of the King's Bench, Common Pleas, or Exchequer, shall be returnable only before the judges, or judges and barons, as the case may be, of the other two courts, in the Exchequer Chamber, whence error again lies to the House of Lords, the decision of which is final.

A Writ of Error can only be brought where there

(2) But it has lately been held that error for matters of fact lies from the C. P. to the K. B. Castledine v. Mundy, 4 B. & Adol. 97.

is a judgment, but it may be sued out and tested previously to judgment, provided judgment be given before it is returnable. It must be sued out within twenty years after judgment, except, indeed, in the case of a person being an infant, feme coverte, non compos mentis, in prison, or beyond the seas. (1) It is generally brought by the party against whom the judgment has been given, but may be sued out by a plaintiff to reverse his own judgment, if erroneous, and enable him to bring another action. But the person who brings it must be either party or privy to the judgment, or prejudiced by it, and therefore capable of deriving advantage from its reversal. And if there be one judgment against several, they cannot bring separate writs of error, but must all join in bringing a single one, for otherwise the plaintiff might be harrassed by a multiplicity of writs of error.

The writ is sued out of the Court of Chancery, and directed to the person in the court below who has the custody of the record; as, in the King's Bench and Common Pleas, to the lord chief justice; in the Exchequer, to the treasurer and barons. It commands the inferior court to certify the record to the court of appeal, and the superior court to examine it and affirm or reverse the judgment, according to law. When sued out, it is carried to an officer called the Clerk of the Errors of the court where the judgment was given, who thereupon allows it; a notice of this allowance should be immediately served upon the opposite party,

(1) 10 & 11 Wm. 3, c. 14.

containing a statement of some particular ground of error intended to be argued; and then, and not till then, the writ operates as a stay of execution if not already levied, which a judge may, however, direct to issue, if the ground of error mentioned in the notice appear frivolous. (1) And, in order that a writ of error may operate as a stay of execution, it is (unless the court or a judge on special application order otherwise), necessary that the defendant prosecuting a writ of error, and who is then called plaintiff in error, should put in bail, with two sufficient sureties, to prosecute his writ of error with effect, and also to pay, if the writ of error be non prossed, or the judgment affirmed, all the debt, damages, and costs, adjudged upon the former judgment, and all costs and damages to be awarded for the delaying of execution. (2) These sureties are bound by recognizance in double the sum recovered, except in case of a penalty, and in case of a penalty in double the sum really due and double the costs. (3) Within twenty days after the allowance of the writ of error, the plaintiff in error must get a transcript of the record prepared and examined by the clerk of the errors of the court in which the judgment was given, otherwise his writ of error will be non prossed; this transcript the clerk of the errors must annex to the writ of error, and deliver it, when it

(1) R. H. T. 4 Wm. 4.

(2) 3 Jac. 1, c. 8. 3 Car. 1, c. 4, sect. 4. 19 Geo. 3, c. 70. 6 Geo. 4, c. 96, sect. 1.

(3) R. H. 2 Wm. 4, Reg. 1, pl. 26.

becomes returnable, to the clerk of the errors in the Court of Error. (1) After the writ has been returned into the court above, the plaintiff in error may, by stat. 5 Geo. 1, c. 13, move the Court of Error to amend any defect that he perceives in it; this could not have been done at common law, since the writ of error is the only authority of that court, and no court can at common law amend its own commission; or the defendant in error may move to quash the writ, and will be entitled to his costs if he succeed. (2) It may also abate by the death of the plaintiff in error before errors assigned, or by the marriage of the plaintiff in error, being a woman, or by the death of the chief justice before he has signed his return. If none of these things happen, the plaintiff in error must, within eight days after the delivery of the writ, with the transcript annexed, to the clerk of the errors of the Court of Error, assign errors, otherwise he may be non prossed. (3)

The Assignment of Errors is in the nature of a declaration, stating the grounds for imputing error to the record, upon which the plaintiff relies. This assignment of errors, as well as the subsequent pleadings thereon, must be delivered between the attornies of the parties litigant: (4) and the plaintiff, having

(1) R. H. 4 Wm. 4.

(2) Stat. 4 Anne, c. 16, sect. 25.

(3) R. H. 4 Wm. 4. The time for assigning errors in case of a writ of error coram nobis or vobis is twenty days after the allowance. Ibid.

(4) Ibid.

« PreviousContinue »