The important provisions of the Common Law Procedure Act, with reference to suggesting the alleged material facts on motions for judgment non obstante veredicto, have been given at length in the last Chapter, and it is therefore sufficient to refer to them (a). CHAPTER XLVII. COSTS OF PROCEEDINGS IN ERROR. AT Common Law there were no costs on a writ of error, but the 3 Hen. VII. c. 10 (enforced by 19 Hen. VII. c. 20), gave costs to defendants in error, after affirmance of the judgment or on discontinuance, where the writ was issued by the defendant below before execution, for the purposes of delay. And the Statute 3 Jac. I. c. 8, as extended by the 13 Car. II. st. 2, c. 2, gave defendants in error double costs in cases where the judgment was affirmed after error brought for delay by the defendant below, and these provisions extended only to writs of error sued out by the defendant below; but the Statute 8 & 9 Will. III. c. 11, gave costs to defendants in error after affirmance of judgment upon writs of error brought by the plaintiff below. The 4 Anne, c. 16, s. 25, gave the defendants in error costs where the writ of error was quashed for variance or other defect; but there was no provision for costs on the reversal of the judgment, but in such a case, the party ultimately succeeding was entitled to the costs of the action below, because the Court of Error gives the same judgment that the Court below ought to have given (b). It is unnecessary to notice the decisions under the above Statutes; for by the Common Law Procedure Act, 1852, it is enacted, that " a writ of error shall not be necessary or used (a) See ante, pp. 392, 393. (b) Wyvil v. Stapleton, 1 Str. 617; Gildart v. Gladstone, 12 East, 668; per Coleridge, J., Evans v. Collins, 2 D. & L. 992, 993. in any cause, and the proceeding to error shall be a step in the cause" (a). The Statute then provides, that either party alleging error in law may deliver to one of the Masters of the Court a memorandum, in a form prescribed, alleging such error, and may serve a copy of the note of its receipt (given by the Master), together with a statement of the grounds of error, on the opposite party (b); and from that time the proceedings in error in law operate as a supersedeas of execution (subject to the party giving bail in error, as will be presently mentioned), unless the grounds of error appcar to be frivolous, in which case the Court or a Judge may order execution to issue (c). A suggestion on the judgment roll, that error is alleged by the one party and denied by the other, is substituted in most cases for the former practice of assignment and joinder in error in law. A similar mode of proceeding is provided with respect to error in fact. But after the service of the copy of the note and of an affidavit of the matter of fact, the proceedings are the same as were previously taken under the old practice (d). The Statute provides (sect. 151), that execution upon judg ments shall not be stayed or delayed by proceedings in error, or supersedeas thereupon, without the special order of the Court or a Judge, “unless the person in whose name such proceedings in error be brought, with two, or by leave of the Court or a Judge, more than two sufficient sureties, such as the Court (wherein such judgment is or shall be given) or a Judge shall allow of, shall, within four clear days after lodging the memorandum alleging error, or after the signing of the judgment, whichever shall last happen, or before execution executed, be bound unto the party for whom any such judgment is or shall be given, by recognizance to be acknowledged in the same Court, in double the sum adjudged to be recovered by the said judgment, (except in case of a penalty, and in case of a penalty (a) 15 & 16 Vict. c. 76, s. 148. (d) See also the Practice Rules of Hilary Term, 1853 (rules 64–69). error may in double the sum really due, and double the costs,) to prosecute the proceedings in error with effect, and also to satisfy and pay, (if the said judgment be affirmed, or the proceedings in error be discontinued by the plaintiff therein,) all and singular the sum or sums of money and costs adjudged or to be adjudged upon the former judgment, and all costs and damages to be also awarded for the delaying of execution, and shall give notice thereof to the defendant in error, or his attorney." With reference to actions of ejectment, it is enacted, that be brought in like manner as in other actions upon any judgment in ejectment, after a special verdict found by the jury, or a bill of exceptions, or by consent after a special case stated; but, except in the case of such consent as aforesaid, execution shall not be thereby stayed, unless the plaintiff in error shall, within four clear days after lodging the memorandum alleging error, or after the signing of the judgment, whichever shall last happen, or before execution executed, be bound unto the claimant, who shall have recovered judgment in such action of ejectment, in double the yearly value of the property, and double the costs recovered by the judgment, with condition, that if the judgment shall be affirmed by the Court of Error, or the proceedings in error be discontinued by the plaintiff therein, then the plaintiff in error shall pay such costs, damages, and sum or sums of money, as shall be awarded upon or after such judgment affirmed, or discontinuance; and it shall be lawful for the Court wherein execution ought to be granted, upon such affirmation, or discontinuance, upon the application of the claimant, to issue a writ to inquire as well of the mesne profits as of the damage by any waste committed after the first judgment in ejectment, which writ may be tested on the day on which it shall issue, and be returnable immediately after the execution thereof; and upon the return thereof judgment shall be given, and execution awarded for such mesne profits and damages, and also for costs of suit" (a). "The plaintiff in error, whether in fact or law, shall be at liberty to discontinue his proceedings by giving to the defendant in error a notice, headed in the Court and cause, and (a) 15 & 16 Vict. c. 76, s. 208, signed by the plaintiff in error or his attorney, stating that he discontinues such proceedings; and thereupon the defendant in error may sign judgment for the costs of, and occasioned by, the proceedings in error, and may proceed upon the judgment on which the error was brought" (a). The defendant in error, whether in fact or law, may confess error and consent to the reversal of the judgment, by giving notice to the plaintiff in error, who may thereupon sign a judgment of reversal (b). Courts of Error have power to quash the proceedings in error in all cases in which error does not lie, or where they are taken against good faith, or in any case in which proceedings in error might heretofore have been quashed by such Courts; and the Courts in all respects have such jurisdiction over the proceedings as over the proceedings in error commenced by writ of error (c); and Courts of Error in all cases have power to give such judgment, and award such process, as the Court from which error is brought ought to have done, without regard to the party alleging error (d). The Statute, it will be seen, declares that the proceeding to error shall be a step in the cause, and consequently, without any further provision on the subject, the costs of it would be costs in the cause. The Practice Rules of Hilary Term, 1853, however, expressly provide (rule 69), that "the costs of proceedings in error shall be taxed and allowed as costs in the cause ;" and the Pleading Rules of Hilary Term, 1853, repeat this rule, and further provide (rule 25), that "no double costs in error shall be allowed to either party" (e). (a) 15 & 16 Vict. c. 76, s. 159. (b) Id. s. 160. (c) Id. s. 156. (d) Id. s. 157. The Statute also contains provisions for continuing the proceedings in case of the death of the plaintiff or defendant in error, and also in the case of proceedings in error by one of several persons. (e) The same rules also give power to allow interest for such time as execution has been delayed by the proceedings in error, for the delaying thereof; and the Master, on taxing the costs, may compute such interest without any rule of Court or order of a Judge for that purpose (r. 26). Courts of Error may award a repleader, or direct a trial de novo (r. 24). In no case shall error be brought for any error in a judgment with respect to costs, but the error (if any) in that respect may be amended by the Court in which such judgment may have been given, on the application of either party (r. 27). Where the Court below has arrested the judgment for the plaintiff after verdict for a supposed defect in the declaration, and a Court of Error reverses the judgment, and so restores the plaintiff to his verdict, he is entitled to the costs of the rule in arrest of judgment in the Court below (a); so also upon the reversal in error of judgment non obstante veredicto, the defendant is entitled to the like costs of the rule in the Court below (b). The parties succeeding in the Court of Error are entitled to the general costs in the Court below, and had they succeeded, as by the subsequent decision of the Court of Error they were entitled to do, in opposing the rule, they would have been entitled to the costs of it. They are therefore entitled to their costs of the rule, equally as if the judgment of the Court below had been in their favour (c). These cases, although decided before the passing of the Common Law Procedure Act, 1852, are applicable now. Where issue is joined on error in fact, the plaintiff in error is liable to costs of the day for not proceeding to trial, as in other cases (d). CHAPTER XLVIII. COSTS UPON PROCEEDINGS BY SCIRE FACIAS AND REVIVOR. SECT. 1. Costs of Proceedings by Scire Facias. SECT. 1. Costs of Proceedings by Scire Facias. No costs were recoverable in a suit upon a writ of scire facias previous to the Statute 8 & 9 Will. III. c. 11, the third section (a) Adams v. Meredew, 3 Y. & J. 419. (b) Evans v. Collins, 2 D. & L. 989; 14 L. J. (N. S.), Q. B. 259. (e) Per Coleridge, J., in Evans v. Collins, supra. (d) Greville v. Sparding, 3 D. & L. 336; S. C., nom. Greville v. Chapman, 15 L. J. (N. S.), Q. B. 41. D D |