; Victoria, &c., To our Treasurer and to the Judges of our Court of Exchequer in Scotland, greeting. Whereas in the record and proceedings, and also in the giving of judgment, upon a certain information filed in our said court before you our Judges of the said court, wherein A. B., our Advocate-General, was informant, and C. D., of was defendant touching and concerning our Royal revenue, inasmuch as it is said manifest error hath intervened to the great damage of the said C. D., as by his complaint we are informed; we being willing that the said error (if any there be) be duly corrected and full and speedy justice done in this behalf, do command you, &c. When the London agent obtains the writ of error duly perfected, he forwards it to the attorney in Edinburgh, by whom the same is put in train of presentation to the Barons of the Exchequer in Scotland, under whose authority the record duly certified is attached to it, and an indorsement to the following effect is made to the writ The answer of the Barons within mentioned. The record and process of the information within mentioned, with all things touching the same, to our Lady the Queen, in the present Parliament we send in a certain record to this writ annexed, as we are within commanded. The writ and record thus endorsed, are then sealed up and delivered by one of the Barons to the person who is to take it to London, and who must personally deliver it in at the bar of the House of Lords, upon oath that it is in the same state in which he received it. The subsequent proceedings on a Scotch writ of error are the same as on a writ of error from the Courts in this country. On the several subjects of the allowance of writs of error; of putting in, and perfecting of bail; and of supersedeas of execution;-I have not said anything; because these are matters which do not, in the ordinary course of proceeding, fall under the cognisance of the House of Lords; and they are moreover fully treated of by all writers on the practice of the Courts of Common Law. PRACTICE ON WRITS OF ERROR. CHAPTER THE THIRD. Of Bringing up the Writ and Record. Formerly original Record brought up, 383.-Now a Transcript only, ib. -Mode of Presenting English Writs of Error, 384.-Irish do., 386.Scotch do., 387.-Where there is a Bill of Exceptions, ib.-Plaintiff in Error delaying to bring in the Writ, 388.-Where original Record is lost or damaged, 390.- When the defect in the Record is trivial, 391. -Clerical Errors ordered to be rectified by the proper Officer, ib.Where the Writ and Transcript destroyed, after having been received by the House, 392. IN English causes at an early period, the original record of the Court below, as well as the writ of error, was brought up by the Chief Justice, and remained in custody of the Clerk of the House till judgment was delivered by the Lords; or till the close of the Parlia ment. But, for about four centuries and a half, (that is to say since the time of Chief Justice Gascoyne, 5 Hen. IV. 1403,)a it has been the practice to transmit a transcript of the record along with the original. The transcript (a) See case of Roger Deyncourt, ante, p. 356, and case of Flourdew, ante, p. 357. after due examination is retained by the House; while the original is returned to the Court below. When, therefore, the transcript has been duly completed, examined, and annexed to the writ of error, it should be taken by the Master to the Judge to whom the writ is directed, in order that the accustomed return be made thereupon; which may be as follows: The answer of Thomas Lord Denman, the Chief Justice within named. The record and process whereof mention is within made, with all things touching the same, I certify to the Lady the Queen in the present Parliament, as I am within commanded. (Signed) DENMAN. With the writ, the original record, and the transcript thus certified, the Master, or proper officer of the Court below, will repair to the Parliament office, and there deliver the writ and the transcript to the Chief Clerk; by whom the same will be re-examined with the record. This, at all events, was formerly the practice. But it is said the re-examination in the Parliament office is now dispensed with, and consequently that production of the original record is unnecessary. This, however, is mere official laxity, and ought to be corrected. (') The writ and the transcript are left in the Parliament office the original record being restored to its proper place in the Court below. The cause, however, is not considered to be depending (b) In the case of Hyde v. Loydd, 21 December, 1640; upon examination of the transcript with the record, it was found that the word ibidem was a word too much; which was amended, according to the original, in presence of the Chief Justice at the clerk's table. This case is evidence of the strict practice in former times. See also to the same effect the case of Nash . Kynas ton, which shows that the record and transcript were compared at the table, when presented, by the Chief Justice. Thus, "1 May, 1641, Lord Chief Justice brought in a transcript and the record, and the clerk examined the transcript with the original." For an authority of more recent date, see Bolton e. Jeffes, infra, p. 390. in the House of Lords till the Judge who has certified the return attends in his place, and presents the writ and transcript, according to ancient usage. With respect to this ceremony, we have the following report of a committee of their Lordships: 5 March, 1699.-The Earl of Stamford reported from the Committee, appointed to inspect the Journals as to the methods of bringing and delivering writs of error into this House from the courts below, the precedents following, viz. : 8 May, 1621.-The House being informed by the Chief Justice (c) that he had a writ of error at the door, and desiring to know whether he or one of his brethren the Judges was to bring it in; it was referred to a Committee to consider thereof. 12 May. Upon the report of the said Committee, it was ordered that the Chief Justice do bring in the record. 22 May. The Chief Justice, first propounding it to the House, brought in the record of the judgment given in the Court of King's Bench. He made three obeisances before he came to the bar, and then, after three obeisances more, he laid it on the Lord Chancellor's woolsack. The clerk received the record and transcript, and brought it to the table. 22 February, 1677.-Mr. Justice Wyndham, the ancientest Judge of the Court of King's Bench in town, brought into the House in the usual manner a writ of error to reverse a judgment given in that court. 9 March. This writ of error is brought in by the Lord Chief Justice, and thereupon Judge Wyndham's indorsement upon the writ was cancelled. The Committee is of opinion that the same methods be observed in future. Then follows an order by the House, adopting the opinion of the Committee, and directing that the Judges of the several Courts from which writs of error lay to Parliament should have notice thereof. When there is no Chief Justice, or when he cannot attend, the House, on petition, will authorise one of the other Judges to perform this duty: as in the following instance : (e) The Chief Justice was at this time Speaker of the House, by commission from the Crown, the Chancellor, Lord Bacon, being sequestrated from Parliament, under impeachment by the Commons. The Chief Justice appears to have doubted whether, being speaker, he ought to perform his accustomed duty of bringing up the writ. C C Lyde v. Rodd, 17 March, 1709.-On the plaintiff's petition setting forth that he had a writ of error returned to the House, which, by the death of the late Lord Chief Justice, was delayed; it was ordered that one of the Judges of the Court of King's Bench do bring up the said writ of error as desired. Copeland v. Jones, 1 April, 1802.-Mr. Justice Grose (the Lord Kenyon being ill at Bath), first propounding to the House, did rise from his place, and brought in a writ of error; and made three obeisances before he came to the bar, and then three obeisances more before he laid it on the table. Upon error in Parliament from the Petty Bag, the writ and transcript are usually presented to the House by the Master of the Rolls. It is said that if he be "a member of the House of Commons, he does not go into the body of the House of Lords to deliver the writ of error; but he delivers it in at the bar."(") But it has been decided(c) that the duties of a member of the House of Commons are not inconsistent with service as an official assistant in the House of Lords; and therefore, I apprehend, the Master of the Rolls, when he comes to present a writ of error from the Petty Bag, ought to repair to his proper place on the woolsack, in order thence to propound the writ, and then to deliver it in with the transcript, according to the prescribed formalities. When the Master of the Rolls cannot attend, the House, on application for that purpose, will permit one of the Masters in ordinary to perform that duty (). On one occasion I observe that the writ and transcript were presented by the Lord Chancellor (*). Writs of error (with the transcripts) from Ireland, were formerly sent by a special bearer; but are now transmitted by post from the Clerk of the Errors in Dublin, to the Clerk of the Parliaments at Westminster; in pursuance of an act passed in the 1 Geo. IV. c. 68. s. 9, for the (4) Manuscript in the Petty Bag Office. |