4. Entry of Judgment of Non-pros for not assigning Errors. year of the reign of Victoria. Witness, Thomas Lord Denman, (name of chief justice). As yet of term, in the England to wit. Our lady the queen hath sent to her judges of her court [at her palace at Westminster,] her writ close in these words, to wit: Victoria [&c. here copy the writ of error and return, with the proceedings in the original action, and proceed as follows:] Afterwards, to wit, on comes here the said A. B. by P. A. his attorney, and prays that the said C. D. may assign errors of record, in the record and proceedings aforesaid; whereupon a day is given by the court here until that is to say, for the said C. D. to assign errors in the record and proceedings aforesaid: At which day comes here the said A. B. by his attorney aforesaid; and the said C. D., although solemnly called, doth not come, nor hath he assigned any error of record in the record and proceedings aforesaid, nor doth he further prosecute his said writ of error, but makes default: Therefore on the day of -, A. D. — ———, it is considered, that the said C. D. take nothing by his writ aforesaid, and that the said A. B. do go thereof without day &c.; and that the said A. B. have his execution against the said C. D. of his damages [or if in debt, "debt and damages"] aforesaid, according to the force, form, and effect of the said recovery &c. It is also considered, that the said A. B. do recover against the said C. D. £– by the court here adjudged to the said A. B. and with his assent, according to the form of the statute in such case made and provided, for his damages, costs, and charges which he hath sustained and expended by reason of the delay of execution of the judgment aforesaid, on pretence of prosecuting his said writ of error; and that the said A. B. have execution thereof &c.; and the said C. D. in mercy &c. [See 1 Chit. Ar. Pr. 387, 5. Fieri facias thereon. Victoria [as ante, 110,] to the sheriff of 388.] baili greeting: We command you, that of the goods and chattels of C. D. late of in your wick, you cause to be made £- [or "a certain debt of £- "which A. B. lately in our court of [our palace at Westminster,] held at [Southwark, in the county of Surrey,] within the jurisdiction of the said court, before [J. L. the steward of the said court,] recovered against the said C. D. &c. as post, 149,] whereof the said C. D. is convicted, as by the inspection of the record and proceedings thereof, which we lately caused to be brought into court before us at Westminster, for certain supposed causes of error therein, and which are now there remaining, appears to us of record; and also £— which in our said court before us at Westminster aforesaid, were adjudged to the said A. B., according to the form of the statute in such case made and provided, for his damages, costs, and charges which he had sustained and expended on occasion of the delay of execution of the judgment aforesaid, on pretence of prosecuting our writ of error, brought thereupon by the said C. D. against the said A. B., because the said C. D. did not prosecute the said writ of error with effect; whereof the said C. D. is also convicted, as appears to us of record; and have the said monies before us immediately after the execution hereof [or "on"] wheresoever we shall then be in England, to be rendered to the said A. B. for his damages, costs, and charges aforesaid; and that you do all such things as by the statute passed in the second year of our reign you are authorised and required to do in this behalf, and in what manner you shall have executed this our writ make appear to us at Westminster immediately after the execution thereof; and have there then this writ. Witness, Thomas Lord Denman (name of chief justice), at Westminster, the year of our reign. day of in the in 6. The like, for the Damages and Costs in Error only. Victoria [&c. as ante, 110, No. 2,] to the sheriff of greeting: We command you, that of the goods and chattels of C. D. late of your bailiwick, you cause to be made £——, which lately in our court before us were adjudged to A. B., according to the form of the statute in such case made and provided, for his damages, costs and charges which he had sustained and expended on occasion of the delay of the execution of a certain judgment obtained by the said A. B. against the said C. D. in our court of [our palace at Westminster,] held at [Southwark, in the county of Surrey,] within the jurisdiction of the said court, before [J. L. steward of the said court], on pretence of prosecuting our writ of error, brought by the said C. D. against the said A. B. of and upon the said judgment, because the said C. D. did not prosecute the said writ of error with effect; whereof the said C. D. is convicted, as by the record and proceedings thereof, which for certain supposed causes of error therein we lately caused to be brought into our said court before us, and which are now there remaining, appears to us of record; and have the said money [&c. conclude as in the last.] 7. Ca. sa. thereon. [A ca. sa. may be easily framed from the above and the forms already given, ante, 118.] [See 1 Chit. Ar. Pr. 385.] 8. Assignment of Common Errors. In the Queen's Bench. C. D. V. Afterwards, to wit, on before our lady the queen at Westminster, comes the said C. D. by D. A. his attorney, and A. B. says, [conclude as ante, 118, No. 28.] In error. [See 1 Chit. Ar. Pr. 387.] 9. Assignment of the want of original Writ, on Error from the Common Pleas at Lancaster (a). In the Queen's Bench. V. in Afterwards, to wit, on—, the day of term, before our lady the queen at Westminster, comes the A. B. said C. D. by D. A. his attorney, and says, that in the reIn error. cord and proceedings aforesaid, and also in giving judgment aforesaid, there is manifest error in this, to wit, that by the record aforesaid it appears that the said C. D. was attached to answer to the said A. B. in the plea aforesaid, yet no original writ between the parties aforesaid, in the plea aforesaid, is filed or remaining of record in the said court of our said lady the queen before her justices at Lancaster aforesaid; therefore in that there is manifest error: There is also error in this, to wit, that the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said A. B. to have or maintain his aforesaid action thereof (a) This cannot now be assigned for error in any personal action. against the said C. D.; therefore in that there is manifest error: There is also error in this, to wit, that by the record aforesaid it appears that the judgment aforesaid, in form aforesaid given, was given for the said A. B. against the said C. D., whereas by the law of the land the said judgment ought to have been given for the said C. D. against the said A. B. And the said C. D. prays the writ of our said lady the queen, to be directed to the custos brevium and justices of the said court of our said lady the queen, before her justices at Lancaster aforesaid respectively, to certify to our said lady the queen the truth of the premises; and it is granted to him, &c. And the said C. D. prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings aforesaid, may be reversed, annulled, and altogether held for nothing, and that he may be restored to all things which he hath lost by the occasion of the said judgment, &c. [Counsel's signature.] [See 1 Chit. Ar. Pr. 387.] 10. Common Joinder in Error. In the Queen's Bench. A. B. ats. And hereupon afterwards, that is to say, on the said A. B. by P. A. his attorney, comes into court, and says that there C.D. is no error either in the record and proceedings aforesaid, or in giving the judgment aforesaid, and he prays that the court of our lady the queen now here may proceed to examine as well the record and proceedings aforesaid, as the matters aforesaid assigned for error, and that the judgment aforesaid, in manner aforesaid given, may in all things be affirmed, &c. But because the said court of our said lady the queen now here are not yet advised what judgment to give of and upon the premises, a day is therefore given to the parties aforesaid until before our said lady the queen, wheresoever she shall then be in England, to hear their judgment thereupon, for that the said court of our said lady the queen here are not yet advised thereof, &c. [See 1 Chit. Ar. Pr. 387.] 11. Entry of Proceedings upon the Roll. [The same as ante, 137, No. 4, to the end of the transcript. Then enter the assignment of errors and joinder with the curia advisari vult, as in the last form.] [See 1 Chit. Ar. Pr. 388.] 12. Copies of the proceedings for the judges. 13. Judgment of Affirmance for Plaintiff. At which day, before our said lady the queen at Westminster, come the parties aforesaid, by their attornies aforesaid; whereupon as well the record and proceedings aforesaid, and the judgment given in form aforesaid, as the matters aforesaid by the said C. D. above for error assigned, being seen, and by the court of our said lady the queen now here fully understood, and mature deliberation being thereupon had, it appears to the court of our said lady the queen now here, that there is no error, either in the record and proceedings aforesaid, or in giving the judgment aforesaid: Therefore it is considered, that the judgment aforesaid, in form aforesaid given, be in all things affirmed, and stand in full force and effect, the several matters above for error assigned in anywise notwithstanding: And it is further considered, that the said A. B. do recover against the said C. D. as well his damages [or "debt and damages"] aforesaid, as also £ adjudged to him by the court of our said lady the queen now here, according to the form of the statute in such case made and provided, for his damages, costs, and charges which he hath sustained and expended by reason of the delay of execution of the judgment aforesaid, on pretence of the prosecution of the said writ of error, which said damages, costs, and charges in the whole amount to £- and that the said A. B. have execution thereof, &c.; and the said C. D. in mercy, &c. [See 1 Chit. Ar. Pr. 389.] 14. Entry thereof upon the Roll. [After the entry of the proceedings, as ante, 137, No. 4, to the end of the transcript, and also the entry of the assignment of errors and joinder, with the curia advisari vult, enter the judgment supra.] 15. Execution thereupon, [The same as on the judgment of non-pros, ante, 137, No. 5, and 138, No. 6, substituting the words "the said judgment being in our said court before us in all things affirmed," instead of" because the said C. D. did not prosecute the said writ of error with effect."] [See 1 Chit. Ar. Pr. 389.] 16. Judgment of Reversal for Defendant. At which day, before our said lady the queen at Westminster, come the parties aforesaid, by their respective attornies aforesaid; whereupon as well the record and proceedings aforesaid, and the judgment aforesaid, in form aforesaid given, as the matters aforesaid by the said C. D. above for error assigned, being seen, and by the court here fully understood, and mature deliberation being thereupon had, it appears to the said court of our said lady the queen now here, that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error: Therefore it is considered, that the judgment aforesaid, for the error aforesaid, and other errors in the record and proceedings aforesaid, be reversed, annulled, and altogether held for nothing; and that the said C. D. be restored to all things which he hath lost by occasion of the said judgment, &c. 17. Entry thereof upon the Roll. [After the entry of the proceedings as directed, supra, No. 14, enter the judgment supra.] 18. Judgment of Reversal for Plaintiff in Debt. [Proceed as in the form supra, No. 16, to the asterisk", and then thus:] And that the said A. B. do recover against the said C. D. his debt aforesaid, and also £- for his damages which he hath sustained, as well by reason of the detaining of the said debt, as for his costs and charges by him about his suit in this behalf expended, by the court of our said lady the queen now here adjudged to the said A. B. and with his assent; and that he have execution thereof &c.; and the said C. D. in mercy, &c. 19. Entry thereof upon the Roll. [After the entry of the proceedings, as directed, ante, 140, No. 14, enter the judgment ante, 140, No. 18.] 20. Execution thereon. [See the forms, ante, supra, 122, 140.] 21. Judgment of Reversal for Plaintiff in Action for Damages. [Proceed as in the form supra, No. 16, to the asterisk*, and then thus:] And that the said A. B. ought to recover against the said C. D. his damages on occasion of the premises: But because it is unknown to the court of our said lady the queen now here what damages the said A. B. hath sustained by means of the premises, the sheriff is commanded [&c. conclude as ante, 123, No. 40.] 22. Entry thereof on the Roll. [After the entry of the proceedings, as directed, ante, No. 14, enter the judgment supra, No. 21.] 23. Writ of Inquiry thereon. [See the form, ante, 123, No. 42, which may be made applicable, mutatis. mutandis.] 24. Execution thereon. [See the forms, ante, 122.] 25. Restitution thereon. [See the forms, ante, 125, No. 46, which may be made applicable, mutatis mutandis.] IV. WRIT OF ERROR TO HOUSE OF LORDS AFTER JUDGMENT OF INFERIOR COURT AFFIRMED OR REVERSED IN QUEEN'S BENCH. [The forms will be nearly the same as those ante, 126 to 135, mutatis mutandis.] |