II. PROCEEDINGS WHERE THE ERROR IS IN LAW.

1. Memorandum of error in law, | 2. Of the suggestion of error alleged and Master's note of receipt and denied.

thereof. Service of copy of 3. Setting down case for argument. note and grounds of error.

Argument and judgment.

1. Memorandum of Error in Law, and Master's Note of receipt thereof. Service of Copy of Note, and Grounds of Error.

Writ of error abolished.]-Error may be in law or fact. As the proceedings in the one differ from those in the other they will receive here a separate consideration, premising, that as to both the writ of error is abolished by the C. L. P. Act, 1852, s. 148, as to all future proceedings, and the proceeding to error is now a step in the cause, and must be taken in the manner mentioned in that act. The writ of error is not abolished for all purposes. It must still be brought where the alleged error is in a judgment on an information in the nature of a quo warranto, and in all criminal proceedings. (1) Also where it is on the judgment of an inferior court of record other than the Court of Common Pleas at Lancaster and the Court of Pleas at Durham.

Memorandum.]-As to the mode of proceeding where the error is in law, it is provided by the C. L. P. Act, 1852, s. 149, that either party alleging error in law may deliver to one of the Masters of the court a memorandum in writing in the form contained in the schedule A., No. 10, to that act annexed, or to the like effect, entitled in the court and cause, and signed by the party or his attorney alleging that there is error in law in the record and proceedings, whereupon the Master shall file such memorandum, and deliver to the party lodging the same a note of the receipt thereof. This is the

Form of Memorandum.

Court of Queen's Bench.

A. B. and C. D.

day of lodging note of error.]

The plaintiff [or defendant] says that there is error in the above record and proceedings, and the defendant [or plaintiff] says that there is no error therein.

[Signed,]

[or E. F.,

A. B., plaintiff,

[or C. D., defendant,] attorney for plaintiff or defendant.]

In case the judgment upon which error is brought was against several persons, and one or some only proceed in error, the above memorandam alleging error, and the note of the receipt of such memorandum must state the names of the persons by whom the proceedings are taken. (')

Service of note and grounds of error.]—After the above memorandum alleging error is filed, the plaintiff in error must serve upon the opposite party, or his attorney, a copy of the Master's note of the receipt of the same, together with a statement of the grounds of error.(2)

Supersedeas of execution.]-Proceedings in error in law are deemed a supersedeas of execution from the time of the service of a copy of such note, together with the statement of the grounds of error intended to be argued, until default in putting in bail, or an affirmance of the judgment, or discontinuance of the proceedings in error, or until the proceedings in error are otherwise disposed of without a reversal of the judgment; but if the grounds of error appear to be frivolous, the court or a judge upon summons may order execution to issue.(3) This power was exercised under the old practice, where the grounds of error specified in the notice of allowance was frivolous, and probably the practice now will be in strict analogy to that. Service of a copy of the note of the receipt of the memorandum will not operate as a supersedeas of execution unless there be also a statement of the grounds of error served; but if there is any statement, however frivolous or insufficient, it cannot be treated as a nullity, and execution issued. But before doing so application must be made to the court or a judge for a rule nisi or a summons to show cause why execution should not issue.(*) A statement of the grounds of error in an action of slander that the declaration was bad, the words not being actionable without special damage, and that the inuendoes were bad in law, was considered a sufficient statement of the grounds of error. (3) Where the point stated had been argued and decided on a rule granted to arrest the judgment, the Court of Exchequer refused to

allow execution to issue as upon a frivolous ground of error; (1) so where the question involved a point of practice, and individual judges had acted differently with respect to it.(*) Formerly, if it were made to appear that error was brought for delay, the court allowed execution to issue.(3) But since the above enactment this would appear no longer a ground. If execution be issued, after the proceedings have operated as a supersedeas, without leave of the court or a judge, the court will set it aside.(†)

2. Of the Suggestion of Error alleged and denied :—

(a) Suggestion of error.]-The assignment of and joinder in error in law are now abolished, and the mode of proceeding is by the entry on the judgment roll of a suggestion to the effect that error is alleged by the one party and denied by the other,() which suggestion must be entered and the roll made up by the plaintiff in error within ten days after the service of the note of the receipt of the memorandum alleging error, or within such other time as the court or a judge may order, and in default thereof the defendant in error, his executors or administrators, are at liberty to sign judgment of non pros.(6) The non pros is entered upon the roll in the court below, and no entry of a remittitur is necessary.(') It would seem that the suggestion can neither be traversed nor demurred to. The form of suggestion is given by the C. L. P. Act, 1852, schedule A., No. 11, and is as follows::

entry on the roll.]

The plaintiff [or defendant] says that there is error in the above record and proceeding, and the defendant [or plaintiff] says that there is no error therein.

(b) By one of several parties.]—Where error has been brought by one of several plaintiffs or defendants in case the other persons against whom judgment has been given, decline

(1) Gardner v. Williams, 3 Dowl. 796.

(2) Newton v. Lord Albert Conyngham, 5 D. & L. 762 ; S. C., 6 C. B. 749.

(3) Miller v. Cousins, 2 B. & P. 329; Bygrove v. Bolland, 2 Chit. 193.

(4) Somerville v. White, 5 East, 145.

(5) C. L. P. Act, 1852, s. 152.

(*) Ibid. s. 153.

(Reg. King, 14 L. J. 68, Q. B..

to join in the proceedings in error, the same may be continued, and the suggestion that error is alleged by the one party and denied by the other entered, stating the persons by whom the proceedings are brought, without any summons and severance, or if such other persons elect to join, then the suggestions shall state them to be, and they shall be deemed as, plaintiffs in error, although not mentioned as such in the previous proceedings. (1)

(c) Where matter of fact relied upon.]—Where the defendant in error intends to rely upon the proceedings in error being barred by lapse of time or by release of error, or other like matter of fact, he must give four days' written notice to the plaintiff in error to assign error, as before the change of practice, instead of entering the suggestion.(2) As to the assignment of error, pleas and subsequent proceedings in such case, see post, 541.

3. Setting down Case for Argument, Argument and

Judgment:

(a) Setting down case for argument.]-After the suggestion of error in law alleged and denied is entered, either party may set down the case for argument, and forthwith give notice in writing to the opposite party, and proceed to the argument thereof, as on a demurrer without any rule or motion for a concilium. (3) The case must be entered for argument with one of the Masters of the court in which the original judgment was given. It may be entered four clear days before the first day appointed for hearing arguments in the Exchequer Chamber, whether in term or vacation. () Regularly the plaintiff in error should set down the case for argument, but if he do not the defendant may. Care should be taken that it be set down in time for the copies of the roll to be delivered to the judges.

(b) Delivery of copies of judgment roll to judges.]-Copies of the judgment roll must be delivered to the judges before the day appointed for the argument, in accordance with Reg. Gen. H. T. 16 Vict. (Pr.) r. 68, which is as follows:

(1) C. L. P. Act, 1852, s. 154.

(2) Ibid. s. 152.

(3) Reg. Gen. H. T. 1853, (Pr.) r. 67.

(4) South Eastern Railway Company v. South Western Railway Company, 8 Exch. 367.

"Four clear days before the day appointed for argument, the plaintiff in error shall deliver copies of the judgment roll of the court below to the judges of the Queen's Bench on error from the Common Pleas or Exchequer, and to the judges of the Common Pleas on error from the Queen's Bench; and the defendant in error shall deliver copies thereof to the other judges of the Exchequer Chamber before whom the case is to be heard; and in default by either party the other party may on the following day deliver such books as ought to have been delivered by the party making default, and the party making default shall not be heard until he shall have paid for such copies, or deposited with the Master a sufficient sum to pay for such copies." Where the day for hearing errors was appointed on the 24th of May for the 28th inst., it was held that the plaintiff in error could not object that he had delivered books for the defendant, who had not paid for them, there not having been four clear days before the day appointed for argument.(1)

Judgment roll, how brought into Court of Error.]— After the cause is set down for argument, the judgment roll is, without any writ or return, brought by the Master into the Court of Error in the Exchequer Chamber, before the justices, or justices and barons as the case may be, of the two superior courts of common law, on the day of its sitting, at such time as the judges shall have appointed, either in term or in vacation, or if the proceedings in error be before the High Court of Parliament, then before the High Court of Parliament before or at the time of its sitting.(2) The judgment roll itself is left in the court of error, and remains there until the judgment is either reversed or affirmed; it is then returned to the court in which the original judgment was given. (3)

(c) Palatine Courts.]—Where the error is from the Court of Common Pleas at Lancaster or Court of Pleas at Durham, a transcript of the record of the judgment or proceedings in those courts on which error is alleged is transmitted to the Court of Queen's Bench.(*)

(1) Kernot v. Pittis, 17 Jur. 932.

(2) C. L. P. Act, 1852, s. 155.

(3) Lane v. Hooper, 3 E. & B. 731 ; 23 L. J. 272, Q. B. (4) C. L. P. Act, 1852, s. 233.