On what it lies.

When it may be brought.

of a suit. It is of two kinds-error in law and error in fact. Error in law lies when the error is in the judgment itself. In such cases the error complained of is in matter of law arising from the default of the Court, and the proceedings are taken, not in the Court by which the judgment was given, but in the Court of Exchequer Chamber or House of Lords. Error in fact, on the other hand, is brought in the same Court where the judgment was given, and lies when the error complained of does does not arise from any fault in the Court, but for some defect in the execution of process. Com. Dig. Tit. Pleader 3, B. 1.

Error can be brought only on a judgment or an award in the nature of judgment (Co. Lit. 288 b), and it was, therefore, formerly held that a writ of error could not be brought before judgment was actually given (2 Wms. Saund., 101 d). For the same reason it cannot be brought on mere interlocutory orders for the payment of money or costs made by the Court during the progress of the suit, nor upon an order charging stock in which the defendant is interested (Scott v. Bennett, Ir. R. 3 C. L. 217; Newton v. Boodle, 6 C. B. 532). In the former case (reported in the Court below sub nom. Bennett v. Scott, 8 Ir. Jur. N. S. 394) a statement which had been placed upon the record in order that the defendant might bring error, stating, that, although the Judge at the trial had given no certificate, pursuant to s. 97 of the C. L. P. Act 1856, yet the Court had by an order declared the cause to be a fit one to be tried in a superior Court, and followed by an award of full costs, was ordered to be expunged; and the defendant, having afterwards brought error in fact, the Court of Exchequer Chamber held that the order of the Court below was not reviewable. Neither can error be brought for the purpose of reviewing the decision of the Court below upon a question of practice (Blount v. Evans, 3 Ir. Jur. N. S. 340). Neither is it competent for a Court of Error to examine the propriety of an amendment of the record made by the Court below being a Court of Record, although the order for the amendment is sent up as part of the record, and was made after writ of error brought (Mellish v. Richardson, 9 Bing. 125; S. C. in Dom. Proc. 1 Cl. & F. 224; and cf. 2 Wms. Saund. 101 (n). As to appealing from the decision of the Court in the case of an issue under the Interpleader Act, see Green v. Letterkenny Railway Co., Ir. R. 3 C. L. 160; King v. Simmonds, 1 H. L. Cas. 754.

The judgment on which error is brought must be one which either ipso facto prejudices the civil rights of the party against whom it is given, or upon which execution might be issued, otherwise he is not aggrieved. Thus, as a general rule, error cannot be brought until final judgment is marked, and does not lie upon an interlocutory judgment (Samuel v. Judin, 6 East, 333). It is for the same reason necessary that judgment should be given upon the whole record before bringing error (Tolson v. Kaye, 7 Sc. N. R. 222). Error may, however, be brought upon an award of a venire de novo (The Trustees of Evans' Charities v. The Bank of Ireland, 5 H. L. Cas. 389; 19 & 20 Vict. c. 102, s. 49; M'Mahon v. Ellis, 10 Ir. C. L. R. 437, 448; M'Mahon v. Leonard, 5 H. L. Cas. 931). It may be brought upon a judgment of nonsuit (Evans v. Swete, 2 Bing. 326). Where judgment had been given for the plaintiff on demurrer to a replication to one of several pleas, it was held that the defendant might bring error, although the plaintiff had subsequently discontinued the action except as to the costs of the demurrer (Shepperd v. Sharp, 1 H. & N. 115).

By section 96 of the present Act no proceeding in error can be brought upon any final judgment marked under that section for a debt or liquidated

demand in money. In Williams v. Sidmouth Railway Co., L. R. 2 Ex. 284, the roll of a judgment obtained against a company was erroneous upon the face of it, and the Court, notwithstanding, allowed a scire facias to be issued against a shareholder for the purpose of obtaining execution. As to bringing error for an error in the judgment with respect to costs only, see the 200th G. O. 1854.

By section 122 of the present Act it is provided that no judgment shall be reversed by reason that the venue is misplaced or the trial had in a wrong county or place, nor by reason of any misnomer of any of the jurors who tried the case in name, surname, or addition, so as it appear to the Court to be the same man that was meant to be returned, nor by reason that the plaintiff or defendant being under the age of 21 years did sue or defend by attorney. As to marking a judgment by default against an infant, see ante, p. 101, note (u).

As to the course to be adopted when the record is imperfect, in consequence of the omission of anything which should have been inserted, see sect. 176, note (a). And see, as to the time within which error may be brought, note (j) infra; as to the parties by whom it may be brought, sect. 167, post; and as to the constitution of the Court of Error, 20 & 21 Vict. c. 6, post, in the Appendix.

When a party to the record is desirous of bringing error in law the Procedure in first step to be taken is to lodge the memorandum of error provided error. by the 170th sect. Formerly the proceedings in error were commenced by suing a writ of error out of the Court of Chancery, which writ (where error in law was brought) was in the nature as well of a certiorari to remove a record from an inferior to a superior court as of a commission to the judges of such superior court to examine the record and to affirm it or reverse it according to law. The writ of error has, however, been now abolished in all civil cases, and in its place the memorandum of error substituted. When the memorandum of error is lodged the Master of the Court will give the party lodging it a note of the receipt of it, and this receipt, together with a statement of the grounds of error intended to be argued, must be served on the opposite party or his attorney. As soon as the receipt and statement of the grounds of error are served execution is superseded (sect. 171, post); but the supersedeas (in the absence of a special order) will only last for four days after the lodgment of the memorandum or signing of the judgment (whichever last happens), unless bail in error be given as provided by the 172nd sect. If bail in error be not given, the party recovering the judgment may issue execution, but the plaintiff in error may not withstanding continue the proceedings in error. He may, however, under special circumstances, be ordered to give security for costs, note (q), infra. Having served the receipt of the memorandum of error and the statement of the grounds intended to be argued, the next step to be taken by the plaintiff in error is to enter the suggestion mentioned in the 173rd section of the Act, or if required, to assign error in the manner therein provided. After the entry of this suggestion the paper books for the Judges should be made up, and the case set down for argument as directed by the 197th and 198th G. Os. 1854. When the case comes on for argument the judgment roll is to be brought into the Court of Error by the Master of the Court, whereupon the Court will give judgment. A suggestion of error in the judgment on a verdict, and an appeal against the rule

Incidental

directing how the verdict shall be entered may be made at the same time and argued together (Wheelton v. Hardisty, 8 El. &. Bl. 232).

The jurisdiction of the Court of Error in giving judgment, the manner of entering it up, and the further proceedings thereupon, are provided for by sects. 176-178, q. v.

As to the procedure when error in fact is alleged, see sect. 179, post, and the note thereto.

As regards the incidental proceedings in cases where error is brought; see proceedings as to the course to be adopted when error is brought by one of several parties, sect. 175; as to the course to be adopted when error is brought by or against the representatives of a deceased party, sect. 167; as to discontinuing proceedings, sect. 180; as to nonprossing the plaintiff in error, sect. 174; as to confessing error, and consenting to a reversal of the judgment, sect. 181; as to quashing the proceedings, sect. 177; as to the consequences of the death of any of the parties, sects. 182-187; as to the consequences of the marriage of a female plaintiff or defendant, sect. 183; and as to the costs in error, see the 201st General Order, 1854, and the note thereto.

Within what

time it may be brought.

Error may

be brought by legal re

of a deceased party.

(j) The proceedings in error must be brought within six years after judgment, post. The signing of the judgment, spoken of in this section, would appear to mean the signing of final judgment, completed by the insertion of taxed costs, and not what is ordinarily understood as the siguing of the judgment. See Blackburn v. Kymer, 5 Taunt. 672, sed quaere.

Previous to the present Act, the time within which error might be brought was twenty years after the judgment was signed, or entered of record (6 Geo. 1, c. 6, s. 3 (Ir.); 10 & 11 Wm. 3, c. 14 (Eng.). If error be brought after the time prescribed by the present section, the defendant in error should not apply to the Court to quash the procedings; the proper course to adopt is to call on the plaintiff in error, pursuant to sect. 173, post, to assign error, and then plead the bar by lapse of time (see Higgs v. Evans, 2 Str. 837).

When a party is too late, under the Statute, to bring error, he cannot apply to the Court, in a summary way, to set aside the judgment (Graham v. Graham, 5 Ir. Jur. O. S. 142).

167 If any person is or shall be entitled to bring error as heir or personal representative of any party, plaintiff or depresentative fendant, such person may, by leave of the Court or a Judge, enter a suggestion of the death, and that he is such legal representative, which suggestion shall be embodied in the Memorandum of Error hereinafter mentioned, and shall not be traversable, but shall only be subject to be set aside on application to the Court or a Judge, on motion, if untrue, and the like proceedings in error may thereupon be taken at the suit of such legal representative (k).

Who may bring error.

(k) The parties who may bring error are, 1st, parties to the record; and, accordingly, even a plaintiff may bring error to reverse his own judgment, if he is dissatisfied with it (Johnson v. Jebb, 3 Bur. 1772); 2nd, those who are privy to the record, or injured by the judgment, the rule upon the subject being that a writ of error can only be brought by him who would have

had the thing if the erroneous judgment had not been given, 2 Wms. Saund., 46 n. (6). Accordingly, as a general rule, after the death of the parties to the record, their personal representatives may bring error; or in the case of real estate, the heir. An administrator de bonis non may, on this principle, bring error to reverse a judgment obtained against a previous executor or administrator (Curlewis v. Mornington, 27 L. J. Q. B. 269). According to the practice formerly prevailing, it was necessary, in cases where there had been a change of parties since the judgment, to sue out a scire facias ad audiendum errores, and in England, where there is no section corresponding to the present provision of the Act, it would appear that it is still necessary in such cases to have recourse to such a proceeding (Curlewis v. Mornington, ubi supra); however, by the above section, the heir or personal representative, if entitled to bring error, may enter the suggestion provided above, and thereupon the like proceedings may be bad, as in ordinary cases. Where, however, the proceedings are taken against the personal representative or the heir or assignee of a party, it would appear that a writ of scire facias must still be issued (Greene v. Leclerc, 17 Ir. C. L. R. 357).

As to the liability of the heir, or personal representative to costs, see the case of Parker v. Tootal, L. R. 1 Ex. 41, referred to in the note to the 201st General Order, 1854.

Proviso for

15 & 16 Vict

C. 76, s. 147

168. If any person that is, or shall be entitled to bring disabilities. error as aforesaid is or shall be, at the time of such title accrued, within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas (7), then such person shall be at liberty to bring error as aforesaid, so as such party brings or commences and prosecutes the same with effect within six years after coming to or being of full age, discovert, of sound memory, or return from beyond the seas; and if the opposite party shall at the time of the judgment signed or entered of record be beyond the seas, then error may be brought, provided the proceedings be commenced and prosecuted with effect within six years after the return of such party from beyond seas.

(7) By sect. 4 of the present Act, no part of the United Kingdom of Beyond seas. Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of her Majesty, are to be deemed to be beyond the seas, for the purposes of this Act; and by sect. 10 of the Mercantile Law Amendment Act (19 & 20 Vict. c. 97, post, in the Appendix), it would appear that a plaintiff in error is entitled to no further time for the purpose of bringing error by reason of being beyond the seas.

abolished, 15

169. A writ of error shall not be necessary or used in Writ of error any action, and the proceeding to error shall be a step in the & 16 Vict. cause, and shall be taken in manner hereinafter mentioned; but nothing in this Act contained shall invalidate any pro

c. 76, s. 148.

Error in law how brought

c. 76, s. 149.

ceedings already taken or to be taken by reason of any Writ of Error issued before the commencement of this Act (m).

As to the general nature of the procedure in error, see ante, note (i).

170. Either party alleging error in law may deliver to the 15 & 16 Vict. Master of the Court a memorandum in writing in the form No. 12. contained in the Schedule B. to this 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; and a copy of such note, together with a statement of the grounds of error intended to be argued, may be served on the opposite party or his attorney (n).

Lodgment of

memoran

dum.

By one of several.

Error no su

pe sedeas till

copy of the note and

grund of error. 15 &

s. 150.

(n) From the language of the 172nd section, it follows that the memorandum of error may be lodged before final judgment is marked. When error is brought on a judgment of the Court of Error, returnable to the House of Lords, the memorandum of error is to be lodged with the officer of the Court of Error (Waterpark v. Fennell, 2 Ir. Jur. N. S. 182).

When error is brought by some only of the parties against whom judgment has been given, the note of the receipt of the memorandum should state the names of the persons by whom the proceedings are taken, sect. 175, post; and it would appear that in such a case, the memorandum need not purport to be the memorandum of all the parties, but only of those who intend, at all events, to allege error (Greene v. Leclerc, 17 Ir. C. L. R. 357, 372).

171. Proceedings in error in law shall be deemed a superservice of the sedeas of execution from the time of the service of the copy of the note of the receipt by the Master of the memorandum alleging error, together with the statement of the grounds of 16 Viet. c. 76, error intended to be argued, until default in putting in bail, or affirmance of the judgment, or discontinuance of the proceedings in error, or until the proceedings in error shall be otherwise disposed of without a reversal of the judgment (0); provided that if the grounds of error shall appear to be frivolous the Court or a Judge upon motion may order execution to issue (p).

Supersedeas

of execution.

(0) Accordingly, in cases where error in law is alleged, when the note of the receipt by the Master of the memorandum of error, together with the statement of the grounds of error, has been served, execution cannot be issued until default in putting in bail (which should be put in within the