erroneous verdict, in this state, was allowed to be amended, after writ of error brought.'

A writ of error lies, as has been already stated,2 upon a judgment rendered upon a report of referees, for mistakes in the proceedings. So if the judgment of a court, on the acceptance of the report, do not conform to the award, it may be reversed on writ of

error.s

If judgment be rendered upon a report of referees, for a less sum than that awarded by them, it will not be reversible for error on that account, if the prevailing party release the difference, on the record.

Error lies to the Court of Common Pleas, where they dismiss an action without trial, which was brought from a justice by appeal; and a trial will be had at the bar of the Supreme Judicial Court, upon the issue joined before the justice.5

6

A judgment in an action brought upon a former judgment, which was erroneous, cannot be reversed for such error in the first judgment. The only remedy in such a case is, to reverse the former judgment by writ of error, and then petition for a review of the second action.

If the record of a judgment, though defective in itself, refer to the declaration in the writ, for the cause of action, parties, &c. the court will consider the

1 Clark v. Lamb, 6 Pick. Rep. 512.

2 Vide ante page 469.

3 Nelson v. Andrews, 2 Mass. Rep. 164. Commonwealth v. The Pejepscut Prop. 7 Mass. Rep. 399.

4 Phelps v. Goodman, 14 Mass. Rep. 252.

Keen v. Turner, 13 Mass. Rep. 265.

• Hawes v. Hathaway, 14 Mass. Rep. 233.

declaration, so far a part of the record of the judgment, as to save error.1

Where a judge, at one term allowed and signed exceptions to his opinion, and at the next term, deeming the exceptions frivolous, entered judgment and awarded execution, it was holden that the party aggrieved must resort to a writ of error.2

If in an action on a probate bond, judgment be rendered, that executions be awarded against the defendant, for the use of the legatees, creditors, or heirs, without there being any decree for their payment, or any judgment of any court ascertaining them, the judgment in awarding executions, will be erroneous.

4. In the execution. A writ of error will lie to set aside an execution, sued out on a statute merchant, or staple, duly acknowledged. And by analogy, it will lie upon an execution sued out on a recognizance for the payment of a debt, taken before a justice of the peace, agreeably to Stat. 1782. ch. 21.*

But where there is a regular judgment, and a regular award of execution, a writ of error will not lie for an irregularity in the issuing of the execution, as if an execution be taken out against a defendant who is out of the Commonwealth, without a bond being given, pursuant to statute."

1

Clap v. Clap, 4 Mass. Rep. 520.

2 Brown v. Bull, 3 Mass. Rep. 211.

3 Glover v. Heath, 3 Mass. Rep. 252. Dawes v. Head et al. 3 Pick. Rep. 128.

4 Johnson v. Harvey, 4 Mass. Rep. 483.

SECT. IV. PARTIES TO A WRIT OF ERROR.

1. By whom a writ of error must be brought. A writ of error is usually brought by the party or parties, against whom the judgment was given. But it may be brought by a plaintiff, to reverse his own judgment, if he be dissatisfied with it, in order that he may be enabled to bring a new action.1

It is a general rule, that no person can bring a writ of error to reverse a judgment, unless he was a party or privy to the record in the suit, wherein the judgment was rendered, or was injured by the judgment, and who, consequently, will derive advantage from its reversal.

If there be a single party, therefore, against whom the judgment is given, a writ of error may be brought by him alone, and in case of his death, by his heirs,2 or his executors or administrators, according as the judgment affects real or personal property.

And, it is presumed, that within Stat. 1817. ch. 190. s. 18. an administrator de bonis non may bring a writ of error, to reverse a judgment recovered either by or against a former executor or administrator, though, before the passing of the statute, it had been decided that he could not, for want of privity.

Where there are several, against whom the judgment complained of was rendered, any writ of error thereon must be brought in the names of all of them, if living; and if any of them be dead, they

1 Johnson v. Jebb, 3 Burr. Rep. 1772. 2 Saund. 101d. note.

2 2 Saund. 46. note 6.

3 Grout v. Chamberlain, 4 Mass. Rep. 611.

must still be named, and their death alleged in the writ. If this be omitted, and the writ be sued out in the name of a part only of the parties, it will be quashed.2

This rule applies in all cases, even though some of the parties should not desire to bring a writ of error, but are willing to submit to the judgment. All must be named in the writ; and the course in such a case, where some will not prosecute the writ is, after the return of the writ, and before the assignment of errors, to have a summons and severance, that is, a summons to those who do not appear and join in the writ, to come in and do so; and if they do not, they are then severed, and the writ is prosecuted by the remaining parties.3

If a judgment against a wife be erroneous, the husband and wife must join in a writ of error to reverse it, whether the judgment be rendered against her, before or after marriage; and if the writ be brought by her alone, it will be quashed.5

But if in a suit against several, judgment be in favor of part, and against part, those aggrieved must sue out their writ alone; for they in whose favor judgment was given, cannot say that they were aggrieved thereby. The writ, however, in such a case, must describe the record as it really is, including all the parties, but

1 Brewer v. Turner, 1 Stra. Rep. 233. Cooper v. Ginger, 1 Stra. Rep. 606. 2 Saund. 101d. note. Shirley v. Lunenburgh, 11 Mass. Rep. 379.

2 Ibid. Andrews et al. v. Bosworth, 3 Mass. Rep. 223.

3 Yelv. 4. 2 Saund. 101d. note.

4

Sty. 254, 280. Haines v. Corliss, 4 Mass. Rep. 659.

S McNamara v. Fisher, 8 Term. Rep. 302.

1 Lev. 210. Hob. 70.

alleging the error to be, to the damage of those who bring the writ.1

So where there are several persons privy to a judgment, each having a distinct and several interest, each will be entitled to a separate writ of error, and to maintain it by himself; and this, notwithstanding a release by any other having a like privity in the same judgment, by a distinct interest. Thus, in a judgment in a real action, the heir or devisee of a party, as well as the executor or administrator, may have several and distinct interests, and each be entitled to a writ of error.2

2. Against whom a writ of error must be brought. The general rule is, that a writ of error must be brought against him only, who was party or privy to the first judgment; and, in case of his death, against his heirs, or executors or administrators, according to the nature of the action in which the judgment was rendered.

In case of the death of the original party, against whom the writ of error is intended to be brought, every person interested in the judgment, though not a party to the original suit, must be named in the writ, and have notice of it. Thus, if a party to a judgment in a real action have deceased, those entitled at his decease, by descent, or devise from him, have a privity by their interest, in the principal subject of the judgment, and must be named in a writ of error brought to reverse it, as well as the executor or administrator, whether they be tenants of the land or not; and if

1 Lady Cass v. Title, 1 Stra. Rep. 682.

2 Porter v. Rummery, 10 Mass. Rep. 64. Shirley v. Lunenburgh, 11 Mass. Rep. 379.