Jaques v Caesar
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 776
COURT OF KING'S BENCH
776 JAQUES V. CESAR 2 WMS. SA0ND. 100. [100] 17. jaques versus clesar. Paschee 22 Car. II. Regis, But. 752. S. C. 2 Keb. 646. The plaintiff had judgment for 551. 10s. and the ca. sa. upon which the defendant was taken in execution, was only for 511. 2s. and the plaintiff in debt for an escape recovered against the sheriff 551. 10s.-This mistake in the execution is not assignable for error by the sheriff. Error (1) by Jaques against Cesar to reverse a judgment in the Common Pleas in an action of debt for an escape, in which the plaintiff declared, that he had recovered (1) A writ of error ia an original writ issuing out of the Court of Chancery, in the nature as well of a certiorari to remove a record from an Inferior into a Superior Court, as of a commission to the Judges of such Superior Court to examine the record, and to affirm or reverse it according to law; 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. Co. Litt. 288 b. 2 Bac. Abr. 187. 2 lust. 40. Upon the ground of its being in the nature of a certiorari, it is holden, that though the writ is irregularly sued out, and would therefore be quashed in the Superior Court, yet the record is removed by it if rightly described, and remains in the Superior Court after the writ ia quashed. 1 Str. 606, Cowper v. Ginger. S. C. 2 Ld. Raym. 1403. 8 Mod. 316. 2 T. R. 737, Laroche v. Wasbrough, arg. Gas. temp. Hardw. 135, Eaddiff v. Burton. 1 Str. 233, Brewer v. Turner. 8 Mod. 305, Cooper v. Ginger, And upon the principle of its being in the nature of a commission, it is, that a writ of error was not amendable at common law, because no Court was ever allowed to amend its own commission. 1 Str. 607, Cowper v. Ginger, See post, 101, and note. But in a writ of error coramnobis hereafter ?ioticed, the certiorari part being unnecessary, is omitted, and the writ contains only a commission to examine errors. The form of a writ of error from the Common Pleas to the King's Bench is that in the beginning of this entry ; and the form of a writ of error coram noMs may be seen in Tidcl's Pract. Forms, 468. A writ of error is grantable in all cases ex debito justitice, except in treason and felony; so resolved by ten of the Judges. 2 Salk. 504, Regina v. Paty.(a) And a distinction is taken by Lord Holt, that wherever a new jurisdiction is created by Act of Parliament, and the Court or Judge that exercises this jurisdiction, acts as a Court or Judge of Record, according to the course of t)ie common law, a writ of error lies on their judgments; but where they act in a summary method, or in a new course different from the common law, a writ of error does not lie, but a certiorari. 1 Salk. 263, Groenvelt v. Bur-well S. C. Garth. 494. Com. Rep. 80, S. P. 1 Salk. 144. If an erroneous judgment be given in a Court, which is not a Court of Record, no writ of error lies, but a. writ of false judgment. F. N. B. 38 A. 7th ed. Co. Litt. 288 b.(6) A writ of error lies for some error or defect in substance, which is not aided at common law, or by some of the Statutes of Jeofails ; and may be brought in the same Court where the judgment was given, or to which the record is removed by writ of error, or in another Court. Error may be brought in the same Court where the judgment was given, when the error is not assigned for any fault in the Court, but for some defect in the execution of the process, or through the default of the clerks. 1 Rol. Abr. 746. F. N. B. 49, T. 7th ed. Indeed, it is said that the Court of Common Pleas may in the same term reverse their own judgment for error in process, or default of the clerks, without any writ of error; but in another term, the party must sue out (a) [9 Price, 606, Bleasdale v. Darby, accord. A writ of error does not lie on a feigned issue. 5 A. & E. 239, Snook v. Mattock. 6 Nev. & Matin. 783, S. C.] (b) [But a Common Law Court cannot correct the errors of a Court not of record by writ of false judgment, any more than those of an Inferior Court of Record by writ of error, if the proceedings of such Court are not according to the course of the common law. Therefore it was held that a writ of false judgment does not lie from the Southwark Court of Requests to a Court of Common Law. 2 Bing. 344, Scott v. Bye. 9 Moo. 649, S. C.] 3 WMS. SADND. 100. PASCH. 22 CAR. If. REGIS 777 iii the Common Pleas against one Joseph Travers 551. 10s. for damages in an action a writ of error to the King's Bench. F. N. B. 49 I. 7th ed.(c) So a writ of error may be brought in the same Court for an error in fact; thus, where an erroneous judg-meut is given in matter of fact only, and not in point of law, in the King's Bench, it may be reversed in the name Court by writ of error, which is sometimes called error eoram vobis, but, more correctly, coram nohis,(d) or quce mram nobis resident; because the record and process, on which it is founded, are stated in the writ to remain in the Court of our lord the King before the King himself: as where the defendant, being under age, appeared by attorney; or th plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict, or interlocutory judgment. 1 Rol. Abr. 747, pi. 13. Cro. Eliz. 106, Meggot v. Broughton. 1 Sid. 208, Rex v. Cornwall. But if the error be in the judgment itself, and not in the process, a writ of error does not lie in the same Court, but must be brought in another. 1 Rol. Abr. 746, pi. 1. '2 Bac. Abr. 215. So if a record be removed into the King's Bench by a writ of error, and the writ afterwards abate, either by judgment of the Court, or by plea, death, or otherwise; 1 Rol. Abr. 753 (Q.), pi. 1. Yelv. 6, Orumwell v. Andrews. Cro. Eliz. 891, Andrews v. Cromwell. Latch, 198, Dun v. Dean cmd Chapter of Carlisle ; or if it be quashed for any other fault than variance, Carth. 367, Walker v. StoJtoe. S. C. 1 Ld. Raym. 151. 1 Str. 606, Cooper v. Ginger. S. C. 2 Ld. Raytn 1403. 8 Mod, 316, error coram nobis lies in that Court; for if there had been a variance between the record and the writ of error, the record was not removed, but there must have been a new writ, and therefore error coram nobis did not lie. Indeed it is not necessary now to have a new writ of error, because by the statute 5 Geo. 1, c. 13, it is enacted, " that all writs of error wherein there shall be any variance from the original record, or other default, shall be amended and made agreeable to such record by the respective Courts where such writs of error shall be made returnable."() But error coram nobis does not lie in the King's Bench after an affirmance in that Court. '2 Str. 949, Horn v. Bushel. Ibid. 975, Burleigh v. Harris; in which last case, 1 Salk. 337, Winthwch v. Bel-wood, to the contrary is denied ; nor does it lie in the King's Bench after an affirmance in the Exchequer Chamber. 1 Str. 690, Lambell v. Pretty-John. And if a writ of error, brought into the Exchequer Chamber upon a judgment in the King's Bench, abate by death or otherwise, no writ of mram nobis lies there, for the record itself is not removed there by the writ of error, but only a transcript; #nd therefore there must be a new writ of error. 1 Rol. Abr. 755, pi. 16. Cro. Jac. 620, Gave v. Polewheel. So a writ of error does not lie for error in fact, either in the Exchequer Chamber or House of Lords. 2 Lev. 38, Hopkins v. Weiggleswortb. S. C. 1 Vent. 207. Com. Rep. 597, Roe v. More.(f) Next with respect to a writ of error to another Court. A writ of error lies from the Common Pleas,( 7) and also from all Inferior Courts of Record in England, except in London, and some other places, to the Queen's Bench, for the error or mistake of the Judges in point of law; 4 Inst. 21, 22. Finch. Law. 480. 2 Burr. 777, Bollard v. Bennti; and after judgment is given thereon in the Queen's Bench, another writ of error may be brought upon that judgment in the House of Lords : but a writ of -error does not lie in the Common Pleas upon an erroneous judgment given in an (c) [2 B. & Ad. 971, Rex v. Carlile.] (d) In the Common Pleas the writ is pi'operly called a writ of error coram vobis, or qttce coram vobis resident; Tidd's Pract. 117 b.; for there the record and process are stated to remain before the Queen's Justices of the Bench. () So where defendant in an action of covenant sued out a writ of error from C. B. into K. B. on a plea of trespass on the case, it was held no supersr.deas, though the defendant in error had been served with the allowance of the writ, and had given a rule to transcribe; 5 Taunt. 82, Sampayo v. De Payba; but the Court of K. B. permitted the writ to be amended. Ibid. 86. (/) [But it was held in Castledine v. Mmuly, 4 B. & Ad. 90. 1 Nov. & M. 635, S. C., that error, in fact, would lie in the Court of K. B. on a judgment of the Common Pleas.] (g) [See infra, p. 101, note (/).] K. B. xiv.-25* 778 JAQUES V. CESAR 2 WM3. SAUND. 100. of trespass and that he had sued out a writ of capias ad satisfaciendum against Travers, Inferior Court of Record. Cro. Eliz. 26, Roe v. Hartly. Finch. Law, 480. Dyer, 230.(A) A writ of error lies from the proceedings on the law side of the Exchequer into the Court of Exchequer Chamber before the Lord Chancellor and Lord Treasurer, calling to their assistance the Judges of the Courts of King's Bench and Common Pleas, or some of them; (i) and from thence it lies to the House of Lords. 2 Bac. Abr. 213, stat. 31 Edw. 3, c. 12. 4 Inst. 105. But the Chancellor and Treasurer, or the Chancellor only, if there be no Treasurer, are the Judges there, and judgment shall be entered pursuant to their sentence, though the other justices differ in opinion. 8 H. 7, 13 a. Garth. 388, King v. Homely, or The Banker's case. S. C. 5 Mod. 42-62. Upon a judgment given in the Hustings in London, a writ of error lies at St. Martin's before certain commissioners...
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