of time, release of error, or other like matter of fact. (1) To the plea the plaintiff in error may reply, and the defendant in error rejoin, &c., as in the pleadings of the action below, no rule to plead in any case being necessary, and either party being entitled to give to the opposite party a notice to answer the previous pleading in four days otherwise judgment," which notice may either be delivered separately or indorsed on the pleading. (2) The issue is made up and the cause carried down to trial as in ordinary cases, except that the defendant may carry it down without waiting for a default.(3) If the pleadings to the assignment should terminate in an issue of law, it is determined as an ordinary demurrer.() (d) Entry of judgment.]—After verdict the proper mode of proceeding is to put the cause in the paper for argument, and four days thereafter move the court for a reversal or affirmance of the judgment according to the finding.(5) (e) Assignment of error in fact.]-We have already enumerated (ante, p. 539) the matters of fact which may be assigned as error. Only one matter of fact canbe assigned.(6) Where the plaintiff in the original suit dies before verdict or interlocutory judgment is assigned, the assignment should conclude with a prayer for a scire facias ad audiendum errores.() (f) Form of assignment.]—In the following form the error assigned is the coverture of the defendant at the time of bringing the action. In the Q. B., ["C. P.," or "Exch. of P."] C. D. & Wife) Afterwards, to wit, on the V. } day of A.D. A.D. comes here C. D. and E. his wife, which said E. was A. B. and is impleaded in this suit by the name of E. F., in their proper persons, and say that in the record and proceedings aforesaid, and also in giving the judgment aforesaid there is manifest error, in this, to wit, that before the day of the commencement of the said suit of the said A. B. against the said E. by the name of E. F., (1) C. L. P. Act, 1852, s. 152. (2) Reg. Gen. H. T. 1853 (Pr.) r. 65. (3) Tidd. Pr. 175. (4) Lush. Pr. 512, 2nd edit. (5) Jackson v. Marshall, 3 Com. L. R. 292; Sexton v. Astop, 1 Dowl. N. S. 141; 1 Chit. Arch. 523, 8th edit. (6) F. N. B. 45 (e.) (1) Dore y. Darkin, T. Raym. 59; Edmonds v. Probert, Carth. 339. at at and before the giving of the judgment aforesaid, to wit, on aforesaid, the said E. intermarried with and took to husband the said C. D., and that she, the said E., at the time of the commencement of the said suit, and also at the time of giving the judgment aforesaid was and yet is covert of the said C. D. then and yet her husband, to wit, aforesaid. Therefore in that there is manifest error, and this the said C. D. and E. his wife are ready to verify, wherefore they pray that the judgment aforesaid for the error aforesaid may be revoked, annulled, and altogether held for nothing, and that they may be restored to all things which they have lost by occasion of the judgment aforesaid, &c. (9) Notice to plead.]—By Reg. Gen., H. T., 1853, (Pr.) r. 65, "no rule to plead to assignment of error in fact, or any other pleading, shall be necessary, but either party may give to the opposite party a notice to answer such pleading within four days, otherwise judgment; which notice may be delivered separately or indorsed on the pleadings." If the notice be disregarded, the court upon motion will reverse the judgment.(1) (h) Joinder in error and pleas.]-The defendant in error may plead specially, confessing and avoiding the fact assigned, and concluding with a verification, or generally denying and concluding to the country, or in nullo est erratum, which confesses the fact assigned, but denies that it is error, or he may demur.(2) Pleas setting up a release of errors,(3) or the bar by lapse of time() should conclude by praying that the plaintiff may be barred of his error, and not that the judgment be affirmed.(5) The common joinder in error answers the same purpose as a demurrer. (i) Form of plea.]—The following specimen of a plea is to the above assignment. A. B. ats. C. D. } The day of A. D. And hereupon the said A. B., by P. A., his attorney, freely here in court comes and says, that by reason of anything above for error assigned the judgment aforesaid ought not to be revoked, annulled, or held for nothing; because he (1) Walmsley v. Roson, 2 Str. 1210; Thatcher v. Stephenson, 1 Str. 144. (2) See Sheepshanks v. Lucas, 1 Burr. 410; Grell v. Richards, 1 Lev. 294; Okeover v. Overbury, T. Raym. 231; Evans v. Roberts, 3 Salk. 147. (3) Davenant v. Raftor, 2 Lord Raym. 1046; Hacket v. Herne, 3 Mod. 135; Cole's case, Latch. 110. (*) Street v. Hopkinson, 2 Str. 1055. ($) Cunningham v. Houston, 1 Str. 127. says that the said E., at the time of the commencement of the said suit aforesaid, was not nor is covert of the said C. D. in manner and form as the said C. D. and E. have above alleged, and of this he, the said A. B. puts himself upon the country, &c. (k) Trial.]-Notice of trial and all other proceedings thereon are the same as in issues joined in an ordinary action. (1) (1) Judgment.]-The common judgment for the defendant in error is that the judgment be affirmed; and it is the same on a demurrer to the assignment of error. (2) But if on a plea of the lapse of time, (3) or a release of errors, (*) it is that the plaintiff be barred of his error. IV. OF ERROR TO THE HOUSE of Lords FROM THE JUDGMENT OF THE EXCHEQUER CHAMBER. 1. Suggestion of error, &c. 2. Assignment of errors. (a) Joinder in error where errors assigned. 3. Motion for hearing. 4. Drawing up and delivering copies of case. 5. Argument. 6. Judgment. 7. Costs. 1. Suggestion of error, &c.]-Error, as we have seen, lies from an affirmance or reversal of the judgment below in the Exchequer Chamber to the House of Lords. As the proceedings are almost identically the same as in the case of error to the Exchequer Chamber, we have in treating of the various steps in error in law, pointed out the particulars in which any difference occurred. The House of Lords and the Court of Exchequer Chamber have the same powers of affirmance, reversal, or varying of the judgment below. The judgment roll, as has been already pointed out, is without any writ or return brought by the Master into the High Court of Parliament before or at the time of its sitting; and the proceedings and judgment as altered or affirmed are entered on the original record,(3) and the judgment roll is then returned to the court in which the original judgment was given.() The following points peculiar to the proceedings in the House of Lords must however be noted. (1) Rule Pr. 66, H. T. 1853. (2) Jeffrey v. Wood, 1 Str. 439. (3) Street v. Hopkinson, 2 Str. 1055. (4) Dent v. Lingwood, 2 Str. 683; Kerie v. Clifton, 3 Salk. 214. (5) C. L. P. Act, 1852, s. 155. (6) Lane v. Hooper, 3 E. & B. 731. 2. Assignment of errors.]-In cases where an assignment of errors is necessary, the following form may be adopted : In the House of Lords. C. D., Plaintiff in error. A. B., Defendant in error. Afterwards, that is to say, on the day of before our Lady the Queen, and the Lords spiritual and temporal in Parliament assembled, comes the said C. D. by A. B., his attorney, and says that in giving [or if there were an affirmance by a court of intermediate jurisdiction, "in giving and affirming," or if there were a reversal “in reversing"] the judgment aforesaid, there is manifest error in this, that [&c. state the errors] and the said C. D. prays that the judgment aforesaid, for "the judgment and affirmance thereof aforesaid," or "the said judgment of reversal" as the case may be] may be reversed, annulled, and altogether holden for nought, and that he may be restored to all things which he has lost by occasion of the said judgment complained of. (a) Joinder in error where errors assigned.]—If, after assignment of errors, the defendant in error do not appear, the plaintiff in error may present a petition requiring him to plead, and praying that if he make default either the judgment be reversed, or the cause be set down ex parte, and that service of the order on the attorney of the defendant in error be sufficient. (1) The following is the form of joinder in error where errors are assigned :In the House of Lords. C. D., plaintiff in error. And hereupon the said A. B., by P. O., his attorney, comes and says, that there is no error in giving [or if there were an affirmance by a court of intermediate jurisdiction "in giving and affirming," or if there were a reversal "in reversing"] the judgment aforesaid; and he prays that the court of our Lady the Queen, in her Parliament here, may proceed to examine as well the records and proceedings aforesaid, as the matters aforesaid assigned for error; and that the judgment aforesaid or if there were an affirmance by a court of intermediate jurisdiction, "the judgment and affirmance thereof aforesaid," or if there were a reversal, "the said judgment of reversal"] in manner aforesaid given, may be in all things affirmed, &c. The following words are usually added :— But because the said court of our said Lady the Queen in her Parliament here are not yet advised what judgment to give of and upon the premises, a day is therefore given to the parties aforesaid here, until to hear judgment thereon; for that the said court of our said Lady the Queen in her said Parliament here are not yet advised thereof, &c. (1) Macq. Pr. H. of L. 411. 3. Motion for hearing.]-To procure the setting down of the cause for hearing, a motion must be made for that purpose by a peer, and it will be set down in the list of causes and taken in its turn. But to procure its being taken out of its turn, a petition must be presented to the House, of which two days previous notice must be given to the opposite party. The motion is that it be referred to a committee: and the House acts upon the report of the committee so appointed. (1) 4. Drawing up and delivering copies of case.]—The case must be drawn up and signed either by the counsel engaged below or those who are to argue it in Parliament :(*) and each side must deliver one hundred printed copies at the parliament office, for the use of the peers, at least four days before the hearing.(3) 5. Argument.]-Two counsel are heard on each side. Those for the plaintiff begin, and the senior counsel for the plaintiff is heard in reply.() 6. Judgment.]-After the argument the Lord Chancellor delivers his opinion, and moves that the judgment be either affirmed or reversed. The other peers then deliver their opinion, if they wish. The affirmance or reversal is decided by the votes of the peers present, no proxies being allowed, and if the votes be equal the judgment is affirmed.(3) 7. Costs.]-As a general rule, no costs are given to the plaintiff in error.(6) And the court in which the action is pending has no power to give the costs of the proceedings in the House of Lords.(7) Where the House orders the costs to be paid by either party, the clerk of the Parliament, or clerk-assistant, will, upon application, appoint a person to tax the costs.($) (1) Ord. D. P. 22nd Dec. 1703. (2) Ibid. 19th April, 1698. (3) Lerds' S. O. cxv. (4) See Ord. D. P. 2nd March, 1727. (5) Thornby v. Fleetwood, 1 Str. 381. (*) Macq. Pr. H. of L. p. 420. (7) Veale v. Thompson, 2 M. & S. 249. (8) Lords' S. O. No. cxxxviii; see also Order, 4 Mar. 1851. |