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

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, (Sty. 254, 280; Haines v. Corliss, 4 M. R. 659); and if the writ be brought by her alone, it will be quashed. McNamara v. Fisher, 8 T. R. 302.

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. 1 Lev. 210; Hob. 70. The writ, however, in such a case, must describe the record as it really is, including all the parties, but alleging the error to be, to the damage of those who bring the writ. Lady Cass v. Title, 1 Stra. Rep. 682.

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. Porter v. Rummery, 10 M. R. 64; Shirley v. Lunenburg, 11 Ib. 379.

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 another than the heir or devisee, be tenant of the land, he also ought to be named in the writ. Porter v. Rummery, 10 M. R. 64.

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. Knox v. Costello, 3 Burr. R. 1789.

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. Glover v. Heath, 3 M. R.

252.

The proceedings in suing out a writ of error are, as has been already stated, according to the course of the common law. It is one of the few parts of our system of practice which has not been amended and simplified; and this neglect can only be accounted for on the ground, that the process is so rare, and has been so effectually supplanted by other and better methods, that the subject was not considered worth the time and labor of correction.

The first process is an assignment of errors, which is in the nature of a declaration, setting forth particularly the errors, by which the party supposes himself to be aggrieved, and which is to be filed in the clerk's office. A writ is then issued, ostensibly, like other writs from the clerk's office, directed to the Court in which the original judgment was rendered, directing such Court to send the record, under the seal of the Judge, to the Supreme Court. This is the writ of error, and must be indorsed, like other writs. It must be made returnable in the county in which the original judgment was rendered. Pembroke v. Abington, 2 M. R. 142; Smith v. Franklin, 1 Ib. 180. The attorney of the plaintiff in error then procures a transcript of the record, annexes it to the writ and hands it to the Judge, who makes his return upon it, under seal. It has been the practice of the clerk to make this return when the writ issues from either of the Superior Courts. The plaintiff now issues a "scire facias ad audiendum errores." It is proper and perhaps requisite that the errors should be set forth in the scire facias, which is to be served upon the defendant in error. Peirce v. Adams, 8 Ib. 383. The writ is entered at the return term, and the case is heard like other cases upon the docket. For the forms of these processes, see Appendix.

As to the pleadings on writs of error, as special pleading has been abolished, "the Court will generally allow the defendant in error to come in and plead that the said judgment is not erroneous, in any matter of fact, in manner and form, &c., and tender an issue to the country. With this plea, he may be required to file a specification, setting forth, in addition to a denial of the fact assigned for error, a release of errors, an estoppel, or any other matter of fact in avoidance, on which he relies, tending to show that the judgment ought not to be reversed." Goodridge v. Ross, 6 Met. 489. If the errors assigned be mere errors in law, apparent on the face of the record, the defendant may properly file a general demurrer, or plead, " in nullo est erratum," which is equivalent to a demurrer. Yelv. 57; 1 Salk. 270.

"When a judgment is reversed, the Supreme Judicial Court shall render such judgment as the Court of Common Pleas should have rendered." Rev. Stat. c. 82, § 20. Where a judgment is erroneous in part, and can be set right without a reversal of the whole, it will be reversed for that part, and remain good for the rest. Cummings v. Pruden, 11 M. R. 206. Thus, where a judgment was erroneous because the Court below had no jurisdiction, so much of it as awarded damages was reversed, and so much as awarded costs was affirmed. Jordan v. Dennie, 7 Met. 590. Where the clerk entered up judgment against an administrator, when it should have been against the goods, &c. of the intestate in his hands, the judgment was not reversed, but corrected. So of a mistake in the name of the administrator. Piper v. Goodwin, 23 Maine, 251.

CHAPTER XXXII.

AUDITA QUERELA.

ANOTHER remedy to correct an erroneous proceeding is a writ of audita querela, which may be brought to prevent, set aside or annul any proceedings upon a judgment or execution. Rev. Stat. c. 112, § 661. It is the proper remedy against an execution irregularly issued. Thus, where, after judgment, a release is given, and yet execution is taken out, or where the judgment is satisfied, and yet the defendant is taken in execution, or where legal process is abused and improperly employed to effect the purposes of fraud and oppression, this writ may be used. Lovejoy v. Webber, 10 M. R. 101; Little v. Newburyport Bank, 14 Ib. 443; Brackett v. Winslow, 17 Ib. 153; Gridley v. Harraden, 14 lb. 497; Skillings v. Cooledge, Ib. 43. In Brackett v. Winslow, it was held to be the proper remedy where an execution was satisfied by one of several defendants, and was afterwards levied for his benefit upon one of the other defendants. So where a debtor was committed after the death of the plaintiff. Commonwealth v. Whitney, 10 Pick. 434. In Coffin v. Ewer, 5 Met. 228, the Court say, that the proper cases in which this writ may be used are," to set aside and annul a judgment improperly obtained through the fraud and deceit of the creditor; or where the debtor had no opportunity to interpose matter relied on in avoidance; or where an execution has been issued, and the object is to release a party from an ille