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10. Error in feigned issues.

11. Plaintiff may except to refusal of judgment, for

want of affidavit of defence.

12. Proceedings on writ of error.

26. Executors, administrators and guardians need not give bail in error. Writ to be a supersedeas, if issued, served, and bail be entered within three weeks; although execution may have been executed.

27. Assignees for creditors need not give bail in

error.

28. Bail to be given by corporations.

29. Foreign corporations to give additional security.

IV. OF THE SUBSEQUENT PROCEEDINGS.

ecution may be directed to issue from the supreme

30. Record to be remitted for execution. Or ex

court.

31. Prothonotary of western district to remit records after three years. County to pay fees.

32. To be collected from the person liable, by execution.

33. Power to award damages and costs.

13. Appeal from decree on application to open judg- V. WRITS OF CERTIORARI TO JUSTICES OF

ment entered on warrant of attorney.

14. In applications to open, vacate or strike off judgments entered by amicable confession, warrant of attorney or otherwise.

15. Power of the supreme court. 16. Repealing clause.

II. PROCEEDINGS TO OBTAIN AN APPEAL.

17. All appellate proceedings to be by appeal. 18. Form of præcipe. How appeal to be entitled. When record may be filed without a certiorari.

19. Party to make oath. Where special verdict is insufficiently found, new trial to be awarded. Execution not to issue within three weeks, in certain cases, without leave of court.

20. How recognizances to be taken. How suits to be brought thereon.

21. By whom oath to be made, in case of corporation. 22. Party, his agent or attorney, may make oath to obtain writ of error.

23. And in case of appeal, or certiorari to justices. 24. Oath and recognizance may be taken by prothonotary of court below.

III. OF BAIL IN ERROR, AND WHEN IT IS A SUPERSEDEAS.

25. Execution not to be stayed, except bail in error is entered. Condition of recognizance.

THE PEACE.

34. Not to issue from the supreme court.

35. Duty of justices on receipt of certiorari. What may be assigned for error. In case of execution. Judgment of the common pleas to be final.

36. Party to make oath. Limitation. 37. Costs, after reversal on certiorari. How recoverable. Certiorari to be decided at the first term. 38. Prothonotaries may administer oath. 39. Certiorari to be a supersedeas in Philadelphia, in landlord and tenant cases. Security.

VI. ERROR IN CRIMINAL CASES. 40. How indictments may be removed.

41. Bills of exceptions and writs of error allowed. 42. Written opinions to be filed.

43. Granting of writs of error regulated. 44. From whence writ of error shall issue.

45. Proceedings after affirmance or reversal of judgment.

46. Bills of exception in criminal cases. Stay of execution. Writs of error and certiorari.

47. Error to be of right, in cases of homicide. 48. Writ not to issue, in capital cases, after twenty days, unless specially allowed.

49. Supreme court to determine the grade of murder.

I. In what cases error lies.(x)

1 Sm. 138.

1. If any person or persons shall find him or themselves aggrieved with the 22 May 1722 § 9. judgment of any of the said courts of general quarter sessions of the peace and jail delivery, or any other courts of record within this province, it shall and may Writs of error to be be lawful to and for the party or parties so aggrieved to have his or their writ or writs of error; which shall be granted them, of course, in such manner as other

(x) A writ of error lies in all cases in which a court of record has given a final judgment, or made an award in nature of a judgment. Commonwealth v. Judges, 3 Binn. 273. As, where judgment has been arrested. Skinner v. Robeson, 4 Y. 375. Benjamin V. Armstrong, 2 S. & R. 392. Or an appeal from a justice has been dismissed. Beale v. Dougherty, 3 Binn. 432. On an issue of nul tiel record. Crutcher v. Commonwealth, 6 Wh. 340. Or where a judgment has been lessened. Fitzgerald v. Caldwell, Add. 119, Or ordered to be marked to the use of a surety. Burns v. Huntingdon Bank, 2 P. & W. 395. Moser v. Hoch, 3 P. S. 230. Or on an award of execution. Harger v. Washington County, 12 Ibid. 251. Or where an execution has been set aside. Jarrett v. Tomlinson, 3 W. & S. 114. Or a sheriff's sale of per

121.

issued from the supreme court.

sonal property. Mackaness v. Long, 85 P. S. 158. But that which is a matter of discretion with the court below cannot be the subject of a writ of error. Renninger v. Thompson, 6 S. & R. 1. White v. Leeds, 51 P. S. 187. Gump's Appeal, 65 Ibid. 476. Nor does error lie to proceedings not according to the course of the common law. Barnes v. Commonwealth, 2 Penny, 506. And a party suing out an execution and enforcing a judgment in his favor cannot afterwards prosecute a writ of error to it. Hall v. Lacey, 37 P. S. 366. See cases collected in Bright. Dig. tit. "Error." 1T & H. Pr. § 822. See also Lindsley v. Malone, 23 P. S. 24. Hill v. Irwin, 32 Ibid. 314. Pontius v. Nesbit, 40 Ibid. 309. O'Hara v. Pennsylvania Railroad Co., 2 Gr. 241. Putney v. Collins, 3 Ibid. 72.

22 May 1722 § 9. writs of error are to be granted, and made returnable to the said supreme court of this province.

1 Sm. 138.

1 April 1874 § 1. P. L. 50.

Limitation of writs of error.

of persons under disabilities.

2. No fine or common recovery, nor any judgment in real, personal or mixed action, nor any appeal from the register's court, shall be avoided or reversed for any defect or error therein, unless the writ of error be commenced, or the appeal be brought and prosecuted with effect, (y) or the certiorari taken, as the case may be, within two years (2) after such fines levied, common recovery suffered, judgment Exception in favor signed or entered of record, or decree be pronounced :(a) Provided nevertheless, That if any person who is or shall be entitled to any such writ of error or appeal, or other writ aforesaid, shall, at the time such title accrued, be within the age of twenty-one years, covert, non compos mentis, in prison, or out of the limits of the United States of America, that then such person, his or her heirs, executors or administrators (notwithstanding the said two years be expired), shall and may bring his, her or their writ of error, appeal or other writ aforesaid, for the reversing of such fine, recovery or judgment, so as the same be done within two years after his or her full age, discoverture, coming to sound mind, enlargement out of prison, or return into some one of the United States of America, or the organized territories thereof, but not afterwards or otherwise.(b)

9 May 1889 § 3.

P. L. 158.

No exemption from limitation.

18 June 1840 § 9. P. L. 691.

3. Hereafter there shall not be any exemptions in favor of any person from the acts of assembly limiting the time within which writs of error, appeals or certiorari must be sued out.

4. When the defendant or defendants in any suit now pending, or hereafter to be brought, have assigned for the benefit of creditors, before or after such suit Assignees for the brought, or hereafter may assign for the benefit of creditors, the land or other benefit of creditors property which is (the) subject of, or affected by such suit, the assignee or assignees may appeal from any award made in such suit against the defendant or defendants, under a rule of reference entered under the 8th section of the act of the 16th June 1836, entitled "An act relative to reference and arbitration ;" and also to bring a writ of error upon any judgment which may be rendered in any such suit.

may sue writ of error.

5 April 1842 § 15. P. L. 236.

5. Writs of error may be sued out, upon the judgment quod partitio fiat, in all actions of partition now pending in the courts of common pleas, or that may hereTo judgment quod after be brought; and the supreme court shall hear and determine the same, as if the said writ or writs of error were issued on the final judgments in said proceedings. (c)

partitio fiat, in partition.

10 April 1848 § 8. P. L. 450.

In feigned issue from orphans' court.

10 April 1849 § 7. P. L. 620.

6. In all cases where a feigned issue has been or hereafter may be directed by the orphans' court, a writ of error shall lie(d) in the same manner as in cases where feigned issues are directed by the court of common pleas; and shall embrace all causes now pending on writ of error in the supreme court or otherwise.(e)

7. Upon the trial of any issue directed by any court under the 9th section (g) of the Act extending the chancery powers of, and to the jurisdiction and proAnd in proceedings ceedings in, certain courts," it shall and may be lawful for either and all of the under sheriff's in parties to said issue to except to any decision of the court upon any point of eviterpleader act. dence or of law; which exception shall be noted by the court, and filed of record therein, (h) and a writ of error may be taken therein, by either or all of said parties, with the usual force and effect.

P. L. 230.

Party may have

22 March 1850 § 2. 8. No act of the legislature of this commonwealth heretofore passed shall be so construed as to prevent either party in a cause from obtaining his, her or their writ of error, and a decision by the supreme court thereon, as well after a decision by the said court on a writ of error previously obtained by the adverse party in such cause, as if both parties had obtained their respective writs returnable to the same term of the supreme court. And any writ of error heretofore taken under such circumstances, and not yet acted on, shall entitle the plaintiff in error to a hearing and action of the supreme court thereon, as fully as if no former

writ of error not withstanding deciout by the adverse

sion on writ sued

party.

(y) If bail in error be not perfected within ten days after exception, the writ of error may be non-prossed. Taggart v. Cooper, 3 Binn. 34. Campbell v. Gregg, Bright. 440.

(2) Where judgment was entered 10 January 1876, and on 10 July 1877, the defendants obtained a rule to show cause why the judgment should not be opened, it was held, that a writ of error was too late which was not taken until June 10, 1878. Insurance Co. v. Gaus, 91 P. S. 103. The writ must actually be issued within the two years, it is not enough that the præcipe was dated and mailed to the prothonotary on the last day of the limitation. Bair v. Black, 10 W. N. C. 156. See Road in Salem, 103 P. S. 250; Weil v. Frauenthal, Ibid. 317.

(a) This act does not apply to a decree of probate of a will, devising real and personal estate; such case is governed by the act of 1856, which allows five years for an appeal. McCort's Appeal, 98 P. S. 33, 37.

(b) The second section of this act provides, that it shall not extend to prior judgments or decrees. These are governed by the act of 1791, in which the period of limitation was seven years. There may be many

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decision had been made on a previous writ of error obtained by the adverse 22 March 1850 § 2. party.(i)

P. L. 230.

9. Upon the hearing and argument of all appeals before any court of quarter ses- 16 March 1868 § 1. sions, from the order of removal of paupers from one district to another, it shall be P. L. 46. lawful for either of the parties to the issue, (k) to except to any decision of the Writ of error and court upon any point of evidence or of law, which exception shall be noted by the bill of exceptions, court and filed of record, as in civil cases; and a writ of error to the supreme court on orders of remay be taken by either party to the judgment of the court, with like effect as in civil cases:(1) *** Provided, The said appeal or writ of error shall be taken within two years from final judgment of the court of quarter sessions, in all cases hereafter to be tried.

moval.

P. L. 3. Error in feigned issues.

18 April 1874 § 1.

10. In cases of feigned issues heretofore or yet to be tried, when exceptions have 12 Feb. 1869 § 1. been or shall be taken to the rulings or charge of the court, a writ of error may be taken without prejudice to the right of appeal on final judgment or decree. (m) 11. In all actions now pending, or which may hereafter be brought, wherein, by act of assembly or rule of court, the plaintiff is entitled to ask for judgment for want of a sufficient affidavit of defence, and the court shall decide against his right to such judgment, plaintiff may except to such decision and take a writ of error to the supreme court.(n)

P. L. 64. Plaintiff may except to refusal of judgment, for want of sufficient affida

vit of defence. Ibid. § 2.

12. If, in the opinion of the supreme court, the decision of the court below is correct, the writ of error shall be dismissed at the costs of the plaintiff, but without prejudice to his right to trial by jury, and a second writ of error after final Proceedings on judgment;(0) but if the affidavit of defence should be deemed by the supreme writ of error. court insufficient to prevent judgment, then said court shall remit the record to the court below, with directions to enter judgment against the defendant or defendants for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be so entered.

13. In all cases of application made to any court of common pleas within this 4 April 1877 § 1. commonwealth, to have any judgment which has been entered by virtue of a war- P. L. 53. rant of attorney, or on judgment-note, opened and defendant or defendants let into Appeal from dea defence, the party or parties aggrieved by the decision of the court thereon, may cree on application have the same reviewed in the supreme court by appeal, in like manner and pro- entered on wa to open judgment ceedings as equity cases are now appealed :(p) Provided, That no such appeal rant of attorney. shall be a supersedeas, unless the party appealing shall be bound by recognizance, with two sufficient sureties, conditioned for the payment of debt, interest and cost, in the event that the plaintiff shall recover in the trial of the issue directed upon the opening of the said judgment, or the said judgment is not opened or set aside.

14. In all cases of application for the opening, vacating and striking off of

proper practice is, to prepare a bill of exceptions, and annex it to a petition to have it supplied, as in the ordinary case of amendments; the petition should account for the delay in sealing the bill, aver the correctness of the one annexed, and that it was taken at the trial, according to the usual practice; and be verified by affidavit. Then, the petition should be answered, and if the facts be disputed, a time for the hearing appointed, when the evidence may be presented in the form of affidavits, depositions, oral testimony, the notes of counsel, or of the former judge, or his associate. After the hearing, the court will direct the bill of exceptions to be prepared according to the evidence, and seal it: as to the charge, it is not necessary to have the whole of it; it is sufficient, that the bill of exceptions contain the principles upon which the cause was submitted to the jury. The object is to supply a defect in the record. McCandless v. Mc Wha, 20 P. S. 184. And see Wheeler v. Winn, 53 Ibid. 122, as to the nature and purposes of a bill of exceptions.

(i) Where both parties take writs of error on the same grounds, and the judgment is reversed on one of them, the other writ will be abated. Wormcastle v. Negley, Sup. Court, 28 March 1853. MS. But judgment on a writ of error sued out by one of the parties, is no bar to a subsequent writ, at the suit of the other party, on different grounds. Ormsby v. Ihmsen, 34 P. S. 462. This act is not retrospective. McCabe v. Emerson, 18 P. S. 111.

(k) See Sugar Creek v. Washington, 62 P. S. 479. (1) On a writ of error, under this act, the supreme court cannot review the judgment below, on the merits, as on an appeal; they can only notice such decisions on points of evidence and law as have been excepted to. Lower Augusta v. Selinsgrove, 64 P. S. 166. Moreland v. Davidson, 71 Ibid. 371.

(m) See Cake v. Cake, 106 P. S. 472. Schriver v.

20 May 1891 § 1. P. L. 101.

Eckenrode, 94 P. S. 456. McFarland v. Clark, 4
W. N. C. 250. Gallagher v. Stewart, 34 L. I. 232.

(n) This act was only intended to reach clear cases of error in law, and thus prevent the delay of a trial. The court will not reverse in a doubtful case. Griffith v. Sitgreaves, 32 Sm. 378. On affirmance of the order refusing judgment, the supreme court will not, as a general rule, anticipate the final judgment, by a discussion of the points of law raised by the affidavit. Philadelphia v. Philadelphia and Reading Railroad Co., 3 W. N. C. 492.

187.

(0) Chartiers' Railway Co. v. Hodgens, 77 P. S.

And see

(p) Where the judgment is opened, the plaintiff cannot appeal from the order, until after a trial of the issue, and judgment thereon. Citizens' Building and Loan Association v. Hoagland, 87 P. S. 326. No appeal lies, where there has been a subsequent amicable revival. Lamb's Appeal, 89 P. S. 407. Glaub's Appeal, 11 W. N. C. 297; s. c. 2 Penny. 128. Bank of Muncy's Appeal, 106 P. S. 68. Where judgment was confessed in an adverse proceeding, no appeal lies to the supreme court, under this act, from the refusal of the court of common pleas to open it. Maneval v. Jackson Township, 141 P. S. 426. No appeal lied, unless the judgment was entered on a warrant of attorney or judgment note. Jones's Appeal, 38 L. I. 430. The act did not apply to a judgment in an amicable action of ejectment on a default or breach of covenant in a lease. Limbert's Appeal, 118 P. S. 589; Swartz's Appeal, 119 P. S. 208. It did not apply to a judgment confessed in an amicable action. Kerr's Appeal, 20 W. N. C. 95. Township's Appeal, 12 Atlan. 849. Nor to a judgment confessed in a suit commenced by an amicable scire facias. Jones's Appeal, 1 Walk. 355. Nor to a judgment upon a scire facias to revive, entered on two nihils. Glaub's Appeal, 2 Penny. 128. But see act 20 May 1891, P. L. 101, infra.

P. L. 101.

20 May 1891 § 1. judgments of any kind, whether entered by amicable confession, (q) upon warrant of attorney or otherwise, any party aggrieved by the decision of the court openApplications to ing, vacating or striking off, or the refusal to open, vacate or strike off such open or strike off judgment, may appeal therefrom to the supreme court of this commonwealth, judgments. and such cause shall thereupon be heard, reviewed and decided upon such appeal by the supreme court, in like manner as appeals from final decrees to the said

Ibid. § 2. Power of the supreme court.

Ibid. § 8. Repealing clause.

9 May 1889 § 1. P. L. 158.

An appellate proceeding to be by

appeal.

Ibid. § 2.

Form of the præcipe.

How appeal to be

entitled.

When record may be filed without a

certiorari.

11 March 1809 § 6.

5 Sm. 17.

Party to make oath.

Execution not to

supreme court.

15. The supreme court shall have power in all cases to affirm, reverse, amend or modify a judgment, order or decree appealed from, and to enter such judgment, order or decree in the case as the supreme court may deem proper and just, without returning the record for amendment or modification to the court below, and may order a verdict and judgment to be set aside and a new trial had.(r) 16. All acts and parts of acts inconsistent herewith be and the same are hereby repealed.

II. Proceedings to obtain an appeal.

17. All appellate proceedings in the supreme court heretofore taken by writ of error, appeal or certiorari shall hereafter be taken in a proceeding to be called an appeal.

18. The names of the parties, estate or matter shall be set forth in the præcipe for the appeal in the order and sequence in which they were recorded at the trial or hearing in the court from which the appeal shall be taken, with a substitution of proper parties in case of death or amendment, and the appeal shall be entitled as the appeal of who was (plaintiff, or defendant, as the case may be), from the (judgment or decree) of the court of and the record shall be brought to the supreme court by a writ of certiorari. The record, on any appeal perfected in the court from which the appeal may be taken, may be filed in the supreme court without requiring a writ of certiorari.(s)

19. Appeals (t) and writs of error may be had, and may issue to and from the supreme court of the proper district, from and to the courts of the several counties; and any party appealing or purchasing any writ of error, shall make oath(u) or affirmation, to be filed with the record, that the same is not intended for delay; and where the facts in any special verdict may be insufficiently or uncertainly issue within three found, the judges may remand the record and direct another trial to ascertain the facts. And that every party may have sufficient opportunity to take out a writ of error, no execution shall issue upon any judgment on any special verdict, demurrer or case stated, unless by leave of the court, in special cases, for security of the demand, within three weeks from the day on which such judgment shall be pronounced.(v)

weeks in certain

cases, without

leave of court.

(q) See Township's Appeal, 12 Atlan. 849. The supreme court will consider whether the discretion of the court below was rightly exercised. Earley's Appeal, 90 P. S. 321. Hickernell's Appeal, Ibid. 328. Wernett's Appeal, 91 P. S. 319. See Rand v. King, 134 P. S. 641. An appeal lies under this act from an order made prior to its passage, opening a judgment for want of an appearance, but the supreme court will only determine whether the discretion of the lower court has been properly exercised. Kelver v. Plow Co., 146 P. S. 485.

(r) The supreme court may modify the judgment without a return of the record. Terry v. Wenderoth, 147 P. S. 519. Where an action for mesne profits was brought in the name of a husband and wife in right of the wife, but was tried on the merits as though it had been brought in the name of the husband for the use of the wife, it was held that the error was amendable in the supreme court. Thornton v. Britton, 144 P. S. 126.

(s) For forms of taking an appeal under this act and interesting and valuable remarks thereon by Arnold, J., see In re Forms, 24 W. N. C. 572. See also In re Act, 25 Ibid. 361. This act does not extend the right of review; it simply provides that the dissimilar proceedings of writs of error, appeals and certioraris shall be called by the same name. Each retains its own character as before. Rand v. King, 134 P. S. 641; s. c. 26 W. N. C. 81. An appeal from a decree setting aside the satisfaction of a judgment was treated as a certiorari. Ibid. See Berg's Petition, 139 P. S. 354. Commonwealth v. Bird, 144 P. S. 194.

(t) It does not follow, from the language of this section, that the party has the option of entering an appeal, or taking out a writ of error, as the error below is on the record, or dehors the record; the law means that causes shall be removed according to the course of proceeding in the respective courts-an appeal from the orphans' court, and a writ of error

to the common pleas and quarter sessions. McClem mons v. Graham, 3 Binn. 88. Commonwealth v. Haas, 57 P. S. 443. A certiorari lies in all judicial proceedings in which a writ of error does not lie; and being a substitute for a writ of error, it is governed by the same, or strictly analogous principles. Philadelphia and Trenton Railroad Co., 6 Wh. 41. Where a new jurisdiction is created by statute, and the court or judge exercising it, proceeds in a summary manner, or in a new course, different from the common law, a writ of error does not lie, but a certiorari. Ruhlman v. Commonwealth, 5 Binn. 24. Northampton County's Appeal, 57 P. S. 452. Barnes v. Commonwealth, 2 Penny. 506. Wetherald v. Sharpe, 16 W. N. C. 502. A writ of error does not lie upon proceedings in a domestic attachment, but an appeal. Lewis v. Wallick, 3 S. & R. 410. The common law writ of habeas corpus cum causâ may likewise be used, in connection with the writ of certiorari, for the revision of the proceedings of a subordinate tribunal. Gosline v. Place, 32 P. S. 520. A writ of error is not a proper form for the review of equitable remedies. Springer v. Springer, 43 P. S. 518. Aurentz v. Porter, 48 Ibid. 335.

(u) It is no objection to the writ of error, that the oath was made before the trial of the cause. Miles v. O'Hara, 1 S. & R. 32. But it must be made before the writ of error issues. Beale v. Patterson, 6 S. & R. 89. Executors and administrators are not exempted from making it. Ibid. In an application for a writ of error in formâ pauperis, the applicant must present the record, assign the errors, and show to the court that he is entitled to it when a special allocatur will be granted. Anon., 3 Luz. L. Obs. 226.

() The latter part of this section was intended to have been supplied by § 6 of the revised act of 16 June 1836, but owing to the omission of several words which were in the reviser's bill, it was rendered insensible.

5 Sm. 17.

20. All recognizances of bail, or other surety or security, by law required to 11 March 1809 § 7. be entered into, or given for the prosecution of any appeal or writ of error, may be entered into or taken, by or before any of the judges of the court, from or upon How recognizance whose judgment or decree the same shall be taken or issued, (w) and shall be duly to be taken. certified and transmitted with the record. And any suit or suits may be brought How suits to be brought thereon. upon any such recognizance or bond, in the court of common pleas of the proper county or elsewhere, (x) if the defendant or defendants shall not reside in such county, any law or usage to the contrary notwithstanding.

21. In cases of appeal, certiorari or writ of error by any corporation, (y) the oath or affirmation required by law shall be made by the president or other chief officer of the corporation, or in his absence, by the cashier, treasurer or secretary.(z)

22. Whenever a writ of error may be sued out from the supreme court, to remove the proceedings of any inferior court, the party, his agent or attorney, shall be competent to make the affidavit required in such cases. (a)

23. Whenever an appeal is entered to the supreme court, or a certiorari is sued out to remove the proceedings of a justice or alderman to the common pleas or quarter sessions, the party, his agent or attorney, may make and enter into the required affidavit and recognizance.

22 March 1817 § 4.

6 Sm. 439. By whom oath to

be made for a corporation.

11 June 1832 § 8.

P. L. 611.

27 March 1838 § 2.

P. L. 99.

In case of appeal

or certiorari.

25 April 1850 § 29.

24. The oath or affirmation required to be made before obtaining a writ of error from the supreme court, or entering an appeal to said court, may be made, and the P. L. 574. recognizances of bail in all such cases may be entered into, before the prothonotary Oath and recogniof the court to which such writ of error is directed, or the prothonotary or clerk of zance may be taken the court from whose decision the appeal is taken, with like power and effect as if by prothonotary of the said oath or affirmation were made before a judge of such courts, or a justice of the peace, or the said recognizance taken before any such judge.(b)

III. Of bail in error, and when it is a supersedeas.

the court below.

P. L. 762.

25. Execution shall not be stayed upon any judgment in any civil action or 16 June 1836 § 7. proceeding, by reason of any writ of error from the supreme court to any other court of this commonwealth, (c) unless the plaintiff in such writ, or some one in Execution not to his behalf, with sufficient sureties, (d) shall become bound by recognizance, to the be stayed, except party in whose favor such judgment shall be given, (e) with condition to prosecute bail in error be ensuch writ of error with effect, and if the judgment be affirmed, or the writ of Condition of reerror be discontinued, or non-prossed, (g) to pay the debt, damages and costs (as cognizance. the case may be) adjudged (or) accruing upon such judgment, and all other damages and costs that may be awarded upon such writ of error.(h)

26. Provided, 1. That the preceding section shall not extend to any writ of error brought by an executor or administrator, or by any guardian in behalf of his ward,

(w) The supreme court has concurrent authority to take bail in error. Smith v. Ramsay, 6 S. & R. 573. (2) The supreme court has no jurisdiction to issue a sci. fa. on such recognizance. Smith v. Ramsay, 6 S. & R. 573.

(y) This extends to all corporations. Washington and Pittsburgh Turnpike Co. v. Cullen, 8 S. & R. 517. (z) An agent of a corporation, who is neither president, chief officer, cashier, treasurer nor secretary, is not authorized to enter an appeal from an award of arbitrators. Washington and Pittsburgh Turnpike Co. v. Cullen, 8 S. & R. 517. This provision is not repealed by act 11 June 1832, § 3, infra 23. Academy of Fine Arts v. Power, 14 P. S. 442.

(a) Corporations are within this section. Academy of Fine Arts v. Power, 14 P. S. 442.

(b) The prothonotary cannot fix the amount of the recognizance. Ennis's Estate, 2 Del. Co. 523.

(c) A writ of error or certiorari is a supersedeas, at common law. Ewing v. Thompson, 43 P. S. 372.

(d) A recognizance with less than two sureties will not be a supersedeas. Rheem v. Naugatuck Wheel Co., 33 P. S. 356. Henry v. Boyle, 1 M. 386. Allan v. Killam, 94 P. S. 253.

(e) See James v. Cochrane, 9 Exch. 552. (4) A recognizance of bail in error is forfeited, if the plaintiff in error non-pros. the writ by agreement with the other party, provided there be no fraud or collusion. Share v. Hunt, 9 S. & R. 404. But not, if the writ be non-prossed, under the rule of court, for neglect of the bail in error to justify. Tilden v. Worrell, 30 P. S. 272. See Mechling v. Merchants' and Manufacturers' Bank, 34 L. I. 313.

(h) If the recognizance be not conformable to law, the writ is no supersedeas. Magill v. Kauffman, 4 S. & R. 317. See Share v. Hunt, 9 S. & R. 404. The stat. 16 & 17 Car. II., c. 8, § 3 (made perpetual by stat. 22 & 23 Car. II., c. 4), provides, that in writs of error

tered.

to be brought upon any judgment, after verdict, in any writ of dower, or in any action of ejectione firmæ, no execution shall be thereupon or thereby stayed, unless the plaintiff or plaintiffs in such writ of error shall be bound unto the plaintiff in such writ of dower, or action of ejectione firmæ, in such reasonable sum as the court to which such writ of error shall be directed shall think fit, with condition, that if the judgment shall be affirmed in the said writ of error, or that the said writ of error be discontinued in default of the plaintiff or plaintiffs therein, or that the said plaintiff or plaintiffs be nonsuit in such writs of error, that then the said plaintiff or plaintiffs shall pay such costs, damages, and sum and sums of money, as shall be awarded upon or after such judgment affirmed, discontinuance or nonsuit had. And the 4th sect. provides, that, to the end that the same sum or sums and damages may be ascertained, the court wherein such execution ought to be granted, upon such affirmation, discontinuance or nonsuit, shall issue a writ, to inquire as well of the mesne profits, as of the damages by any waste committed after the first judgment in dower or in ejectione firmæ; and upon return thereof, judgment shall be given and execution awarded, for such mesne profits and damages, and also for costs of suit. Rob. Dig. 41-2. The practice under this act is, to require bail in double the annual rent of the premises, and the costs of the ejectment. Thomas v. Goodtitle, 4 Burr. 2501. Keene v. Deardon, 8 East 298. See Hosie v. Gray, 73 P. S. 502. Kocker v. Fidelity Tr. Co., 103 P. S. 331, and Brown v. Lovein, 35 Leg. Int. 134, as to bail in error, in scire facias upon a mortgage. And see Leach v. Bonsall, 1 W. N. C. 7. McLean v. Mann, Ibid. 62. McCurdy v. Leslie, 2 Ibid. 381. Savage v. Kelly, 11 Phila. 525. In error to a judgment recovered in a feigned issue, the bail are only liable for the costs. Guyer v. Spotts, 85 P. S. 51.

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