In 1834, when both Houses of Parliament were destroyed by fire, the transcript of a record in a Scotch writ of error (Spears v. Regem) was consumed. The consequence was, that on the 15th June, 1835, a petition was presented by the plaintiff in error, setting forth,—

That on the 8th of August then last, the transcript of the record in the Court of Exchequer in Scotland, was delivered in at the bar, upon oath, and that on the 12th day of the said month of August, errors were assigned. That since the fire in the two Houses of Parliament, a diligent search had been made for the said transcript, but the same could not be found; and, therefore, praying that their Lordships would be pleased to order that another transcript should be prepared by the proper officer of the Court of Exchequer in Scotland, and forthwith transmitted to the clerk of the Parliaments; and that the plaintiff in error should of new be allowed to assign errors within eight days after such transcript should have been received by the clerk of the Parliaments, the agent for the defendant signing the said petition, as assenting thereto. Ordered as prayed.

22 July, 1835.-The Speaker acquainted the House, that the clerk of the Parliaments had received from the proper officer of the Court of Exchequer in Scotland a duplicate of the transcript, transcribed in obedience to the order of the 15th June last; and the same was ordered to lie on the table.

PRACTICE ON WRITS OF ERROR.

CHAPTER THE FOURTH.

Of Assigning Errors.

Limitation of Time, 394.-Enlargements of Time, ib.-Course to be taken by Defendant in Error, when Error is brought for delay or rexation, 395.-After an award of non pros., for non-assignment of Errors, Plaintiff is foreclosed, 396.-Form of Assignment, 397.

AFTER the writ of error and the transcript of the record have been presented to the House in due form, the next step is, to prepare and lodge the assignment of errors; a proceeding which (except in cases where the House makes Special Orders) is governed by the following clause of the Standing Order, No. 54 (").

For-as-much as upon writs of error returnable in this High Court of Parliament, the plaintiffs therein often desire to delay justice rather than to come to the determination of the right of the cause. It is therefore ordered that the plaintiffs in all such writs, after the same and the records be brought in, shall assign their errors within eight days after the bringing in of such writs with the records; and if the plaintiff make default so to do, then the Clerk of the Parliaments, if the defendant in such writs require it, shall record that the plaintiff hath not prosecuted his writ of error; and

(a) See Appendix, No. 1.

that the House doth therefore award that such plaintiff shall lose his writ; and that the defendant shall go without day; and that the record be remitted.

The rule, therefore, in English cases is, that the errors must be assigned within eight days from the day on which the writ has been presented to the House by the Judge of the court below. In Irish cases, the errors must be assigned within eight days from the day on which the Speaker announces the receipt of the writ by the Clerk of Parliament; and in Scotch cases, within eight days from the day on which the writ is delivered in, upon oath, at the bar.

On default made by the plaintiff, the Standing Order will be enforced, if the defendant shall require it; but upon petition, supported by proof of circumstances affording reasonable excuse for the delay, the time for lodging the assignment of errors will be enlarged. Thus,

Johnson v. Lyall, 18th June, 1804, on the petition of the plaintiff, setting forth that the petitioner's agent did not know when the said writ of error was presented to their Lordships, except by a notice to him from the Parliament office in these terms:

“Sir,—Johnson v. Lyall. The above writ of error was yesterday presented to the House of Lords by Lord Ellenborough; and unless you assign errors within eight days, agreeably to the standing order of the House, the defendant in error will be at liberty to petition for a non pros. at the expiration of the time, which will be the 15th instant. I am, &c., William Walmsley, Parliament Office, 7th June, 1804."

That the petitioner's agent, conceiving that from the date and purport of the said note, that he had until Friday, the 15th instant, to assign his errors, did accordingly attend at the Parliament Office on the morning of the said Friday, the 15th of June instant, with an assignment of errors to deliver in at the said office: but the officer or clerk there, refused to receive the same; alleging that the said eight days expired on the evening of the preceding day, the 14th of June instant. That the petitioner's agent was wholly misled by the said note; otherwise the assignment of errors, which had been some time previously prepared, would have been delivered in at the office in due time; and no non pros, having yet been applied for, therefore praying that the said assignment of errors be now received, or that further time be allowed to assign the same; and therefore the agents on

both sides were called in and heard at the Bar; and it was ordered that the petition be taken into consideration to-morrow.

19th June. It was ordered that the plaintiff should be at liberty to deliver in his assignment of errors.

Bishop of Kildare v. Smith, 20th April, 1814, the plaintiff in error petitioned, setting forth that, on his agent proceeding to assign errors, he was informed that the eight days allowed by the House were expired; that the plaintiff and his solicitor being resident in Ireland, occasioned the delay which had taken place; and praying their Lordships that he might be permitted to assign errors by his agent, notwithstanding the time was expired. It was ordered, on hearing the agent of the petitioner at the Bar, that the plaintiff do assign errors on or before Wednesday next.

Where a writ of error is evidently brought for the mere purpose of enforcing an unjust, or resisting a just demand, or for protracting litigation, the defendant in error ought, immediately on the presentation of the writ to the House, to give in a petition setting forth the circumstances, and praying that the plaintiff in error may be required to assign errors by a short day; or in default thereof, that the defendant may have liberty to enter a non pros. This application may be opposed by a counterpetition from the plaintiff, praying either that the matter may be left to the regulation of the Standing Order, No. 54; or that the time allowed by the Standing Order may be enlarged. Both petitions will be referred to the Appeal Committee, before whom the agents will be heard, and such proof taken as the case may appear to require; and and upon the report of the committee, the House will make an order accordingly (").

In cases where the alleged errors are evidently frivolous, especially if the session of Parliament be near a close, the House will order the errors to be assigned in two days. Of such orders there are many examples in

(b) Ditchell v. Doe, 13th July 1797; Houlditch . Houlditch, July 1815; and many similar cases.

the Journals of the last forty years; but as a ruling precedent, the following old case will here be sufficient.

Cortissos v. Perry, 15 May, 1732.-Upon a writ of error from the Court of King's Bench, it was moved that the plaintiff might be obliged to assign his errors in three days' time. On the 16th, upon reading the petition of the defendant in error, setting forth, that the said writ of error was brought purely for delay, and that if the case should go over to the next session of Parliament, the petitioners would run the greatest hazard of losing their whole debt; and praying that a short day might be appointed for the assignment of errors, or that the petitioners might be permitted to proceed on their judgment, against the plaintiff in error and his bail in the court below; and the clerk having produced and read precedents for proceedings in like cases, it was ordered, that if the plaintiff in error do not assign errors within two days after service of this order on himself or his attorney, then the said writ of error shall be non prossed.

20 May. On the petition of the defendant setting forth that the plaintiff had not assigned any errors, although he was required to do so by the order of the House, personally served on his attorney, and praying that the said writ of error might be non prossed with exemplary costs; and proof made at the bar, upon oath, of the service of the order above mentioned; it was ordered, that the defendant in error do forthwith enter a non pros.; and that thereupon the record be remitted to the Court of King's Bench, with 301. costs.

After an award of non pros., for the non-assignment of errors, the plaintiff is finally foreclosed. In one case (°), the plaintiff applied for leave to assign errors, notwithstanding the award of non pros., but although the circumstances were strong in his favour, it was found, on reference to the Appeal Committee, that there was no precedent to justify compliance with such an application, and it was consequently refused. The reversal of a non pros. recorded in the Journals, in the case of Doe v. Hicks, 3 April, 1828, was by consent, and granted

(c) Smith v. Kenny, 19th May, 1826.