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another than the heir or devisee, be tenant of the land, he also ought to be named in the writ.'

Where there are a number of defendants, the rule is the same as that relating to plaintiffs, in a writ of error, and all should be named in the writ.2

So when a writ of error is brought to reverse a judgment upon a probate bond, against the original defendant, the names of all the persons, whose names were indorsed on the original writ, and for whose use executions were awarded, should be inserted in the scire facias to hear errors.3

SECT. V. PROCEEDINGS IN SUING OUT A WRIT OF ERROR.

A writ of error, as has been already stated, is a writ of right, and may be sued out, without motion.*

Time of suing out. By Stat. 1805. ch. 35. no judgment in any action, shall be reversed or avoided, for any error or defect therein, unless the writ of error brought for reversing the same, be sued out within twenty years after the rendition of such judgment; provided, that if any person entitled to such writ of error shall, at the time such title accrued, be within the age of twenty-one years, covert, or non compos mentis, then such person, his heirs, executors or administrators, notwithstanding said twenty years may have expired, may bring a writ of error to reverse such judgment, within five years after such disabilities cease, or after the death of such person.

1 Porter v. Rummery, 10 Mass. Rep. 64.

2 Knox v. Costello, 3 Burr. Rep. 1789.

3 Glover v. Heath, 3 Mass. Rep. 252. 4 Vide ante page 460.

Absence from the country is not named in this proviso.

It has been holden, that a disability, to bring a party within this proviso, must be one existing at the time the title to the writ accrued.1

Mode of suing out. At any time within the statute of limitations of a writ of error, the party intending to sue out a writ, should file in the clerk's office of the Supreme Judicial Court, in the county where the judgment complained of was rendered, an assignment of errors to the judgment, naming therein the court, and term, and case, in which the judgment was given, stating his desire that a writ of error should issue, and specifying the errors, by which he deems himself aggrieved.2

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This assignment of errors should be filed before the issuing of the writ, because it is either inserted in the scire facias to the defendant, or referred to therein, as being on file.

The process is then issued from the clerk's office, and consists,

First. Of the writ, which, tested by the Chief Justice of the Supreme Judicial Court, -under the seal of that court, bearing date, the day it issues, — and in the form of a mandamus, is directed to the Chief Justice, or to the judge, if there be but a single one, of the court, in which the judgment complained of was rendered, commanding him to send the record and process of the suit, "together with

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1

Eager & ux. v. Commonwealth et al. 4 Mass. Rep. 182.

2 Vide a form of an assignment of errors, in note A. at the end of this Chapter.

this writ," to the Supreme Court, at a specified term.' And,

Second. Of the scire facias ad audiendum errores, which, tested, sealed, and dated, in the same manner as the writ, - is directed to a sheriff or his deputy, commanding them, to make known to the defendant in error, to appear before said Supreme Judicial Court, at a specified term, to hear the errors, and shew cause, &c.2

The writ and scire facias, are both made returnable at the same term of the Supreme Court; and, it is presumed, they should be made returnable at the next term after issuing, consistent with allowing a sufficient number of days for service.

A writ of error must issue in the county, where the judgment was rendered.3 And though it seems to have been decided in an early case, that it may be returned and determined, in a county other than that, in which the original judgment was rendered, yet it is presumed that the rule is, that it should be made returnable in the same county, in which it issues.*

As the allowance of a writ of error, in the English practice, operates as a supersedeas of the execution, the plaintiff in error must, previous to the issuing of the writ, give bail by recognizance, with two sufficient sureties, to prosecute his writ, and to satisfy the judgment, if affirmed, and all damages that may be awarded for delaying the execution.5

1 Vide a form of a writ of error, in note A. at the end of this Chapter. 2 Vide a form of a scire facias ad audiendum errores, in note A. at the end of this Chapter.

3 Smith v. Franklin et al. 1 Mass. Rep. 480. Pembroke v. Abington, 2 Mass. Rep. 142.

4 Ibid.

2 Tidd's Pract. 1105. Jaques v. Nixan, 1 Term. Rep. 280. Gravall v. Stimpson, 1 Bos. & Pul. Rep. 478. 1 Arch. Pract. 245.

But with us, the writ is issued without motion, and its issuing does not operate as a supersedeas in any case, as a matter of course. No bail, therefore, is here required to be given by the plaintiff in error.

But though the suing out the writ, does not operate as a supersedeas, in our practice, yet the court may in any case, on motion by the plaintiff, and upon reasonable ground being shewn, issue a supersedeas; in which case, the plaintiff must give a sufficient bond to the defendant, upon the same conditions, and for the same purposes, as the recognizance in error, in England.1

How and by whom served. No particular form of service of the writ upon the judge, to whom it is directed, is required. It is generally, merely delivered to him, by the attorney of the plaintiff in error.

The scire facias must be served on the defendant in error, by the officer to whom it is addressed, in the same manner as any other scire facias.

Time of service. There is no specified time before the return day of the writ, within which the writ must be delivered to the judge, to whom it is directed. It should be done, however, within a sufficient time, before the return day, to enable him to have a transcript of the record prepared.

As to the service of the scire facias, it is presumed, that the same rules apply, as to the time between the service and return, as in other writs.2

How and where returned. The writ, with a transcript of the record of the suit therein named annexed, and with a written return indorsed thereon by the

1 Bailey v. Baxter, 1 Mass. Rep. 156.
2 Vide ante Book I. Chap. X. Sect. II.

judge, under his seal,' is by him returned to the clerk's office, of the Supreme Court, at the specified time.

The officer returns the scire facias, with his doings thereon, in the same manner as in other cases.

SECT. VI. ASSIGNMENT OF ERRORS.

When to be made and filed. The assignment of errors should properly be filed in the clerk's office, before the issuing of the writ and scire facias, though there is no rule positively preventing the issuing of the writ and scire facias, previously to the filing of the assignment of errors.

If the assignment of errors be so filed, it may be inserted in the scire facias; in which case, the defendant will be holden to plead thereto, within the first two days of the return term, unless the court, by special order, enlarge the time;2 and a decision may be had at the first term.s

The plaintiff would, at any rate, be holden to assign his errors within a reasonable time, after the return of the writ.

If the plaintiff neglect to assign his errors at the proper time, the defendant, in the English practice, may sue out a writ of scire facias quare executionem non, or give the plaintiff a rule to assign errors.* Here, however, such a writ is not used; but in such a case of neglect on the part of the plaintiff, the

1 See a form of the judge's return of the writ, in Note A, at the end of this Chapter.

2 Reg. Gen. S. J. C. 42. Appendix A.

3 Pembroke v. Abington, 2 Mass. Rep. 142.

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