SECTION IV. Judgment cannot be part and affirnied for residue. OF THE JUDGMENT AND SUBSEQUENT PROCEEDINGS IN ERROR. The judgment in error is to affirm, or to recall, or reverse the former judgment; that the plaintiff be barred of his writ of error; or that there be a new trial.85 86 The common judgment for the defendant in error, whether the errors assigned be in fact or in law, is, that the former judgment be affirmed. So on a demurrer to an assignment of errors, in fact and in law, for duplicity, the judgment is quod affirmetur.87 For error in fact, the judgment is recalled, revocatur; and for error in law, it is reversed.88 On a plea of release of errors, or the statute of limitations,90 found for the defendant, the judgment is, that the plaintiff be barred of his writ of error. 89 A judgment, being an entire thing, cannot regularly be rereversed for versed for part, and affirmed for the residue.101 Thus, where an action is brought for a croft and a messuage, in one count, and, upon error, it is holden that the action does not lie of a croft, the judgment must be reversed, both as to the croft and messuage.91 So where A brought an action on the case against B, for words spoken of him, and for causing him to 85 2 Tidd. Pract. 1236. 86 Ib. 87 Yelv. 58. 2 Ld. Raym. 883. 1 Str. 439. 90 2 Str. 1055. S. C. Cas. temp. Hardw. 345. 101 Cro. Eliz. 425. Carth 235. 1 Salk. 24. 2 Ld. Raym. 25. 12 88 11 Johns. Rep. 460. 14 Johns. Johns. Rep. 434. 14 Johns. Rep. Rep. 425. 99 1 Show. 50. 1 Str. 127. 683. 417. 91 1 Ro. Rep. 2. 2 Bulst. 214. Alleyn. 74. Ro. Abr. 774. be indicted, &c., and the jury found a verdict for the plaintiff as to both, with entire damages, yet, it being afterwards holden that the words were not actionable, the judgment was reversed in toto :92 but if part of the words laid be not actionable, and several damages are given, it seems that the judgment will be reversed in part only.99 And if, in an action against several, one judgment be given against all, and upon error, it is held that the judgment is erroneous as to one, it must be reversed against all.94 As where there are several defendants, all of whom appear by attorney, and one of them being an infant, the judgment is reversed on account of his infancy, it must be reversed as to all the defendants, and not as to the infant alone.9 one judg not affect they are dis Where there is more than one judgment, if they be distinct Reversal of and independent of each other, the reversal of one will not ment will affect the other but if they be dependent, as for instance, in the another if case of debt or scire facias on a judgment, if the first judgment is tinct reversed for error, the judgment in debt or sci. fa. is thereby reversed also; but if merely the judgment in debt or sci. fa. be reversed, this does not affect the other.96 ment con sists of dis tinct parts. Or even if there be but one judg:nent, and it consist of Where judgseveral distinct and independent parts, it may be reversed as to one part, and remain good for the remainder ;97 as for costs alone," or damages in scire facias,99 or for the damages assessed by the jury in an action of debt on bond, in which breaches have been suggested.100 If judgment be given for the plaintiff on one count in a declaration, and a distinct judgment for the defendant on 92 2 Bac. Abr. 501. 93 Str. 188. 94 Ro. Abr. 776. Cro. Jac. 289. Alleyn, 74. 76. 14 Johns. Rep. 417. 95 14 Johns. Rep. 417. 96 2 Ld. Raym. 1532. 2 Str. 807. 97 5 Cowen. Rep. 654. 98 8 Johns. Rep. 566. 99 2 Str. 807. 2 Ld. Raym. 1532. 100 8 Johns. Rep. 111. Court of errors to remit another, and the defendant bring a writ of error to reverse the judgment on the first count, the court of error cannot examine the legality of the judgment on the second count, no error being assigned on that part of the record.1 It is required by statute, that the court of errors, after giving transcript. judgment, shall remit the transcript of the record, with their judgment thereon, to the supreme court, "where such further proceedings shall be had, as may be necessary to carry such judgment into effect." And the court have provided by rule, that "the remittitur, in case of a writ of error, shall contain a copy of the judgment of this court annexed to the writ of error, and the transcript of the record of proceedings, as brought into this court, under the seal of this court, and signed by the clerk thereof."s Court to give such judg ment as court below It is a general rule, that on the reversal of a judgment, the court of error shall give such judgment as the court below should have should have given. Thus, after judgment on demurrer, the court of error will render judgment against the party committing the first fault in pleading.5 given. 6 Where a judgment against the plaintiff in a court of common pleas is reversed on a writ of error, the supreme court having the record before them, may, in all cases, give such judgment as the court below should have given, and if necessary, may award a writ of inquiry to assess the damages. And so where judgment is given in the supreme court against the plaintiff on a special verdict, by which the damages are assessed, the court of errors may, in case of reversal, give a new and complete judgment for the plaintiff to recover these damages. But where the damages are not assessed, as where judgment is given on demurrer, the court of errors, not having the record before them, but only a transcript, cannot give a new and complete judgment, but only an interlocutory judgment, quod recuperet; and the transcript being remitted, the supreme court will award a writ of inquiry, and give final judgment. So where after a verdict for the defendant, in the supreme court, the judgment is reversed in the court of errors, that court, having only a transcript of the record before them, cannot order a new trial; and therefore, on remitting the transcript, the court below is directed to order a new trial." And, where a judgment on a verdict in favour of a plaintiff is reversed, on a bill of exceptions to the charge given to the jury, a new trial must be ordered by the court below.10 error from pleas. Where a judgment against a plaintiff, in a court of com- New trial on mon pleas is reversed after verdict, on a writ of error to the commen supreme court, the record itself being removed, the plaintiff will be allowed to proceed to a new trial, at a circuit court.11 The court will not, it seems, order a new trial in such case, where there is evidence that the plaintiff cannot recover a sufficient sum to entitle him to costs, but will be obliged to pay costs.1 12 After the reversal of a judgment of a court of common pleas, and a venire de novo awarded on which a second trial was had, the supreme court, on a motion in arrest of judgment, held, that it was too late to allege a second error in the record from the court below, unless it were, at least, an error in substance.13 7 Salk. 433. Ld. Raym. 9, 10. Carth. 319. 1 Bos. & Pul. 30. Cranch. 285. n. 6 113 Johns. Rep. 443. 7 Johns. Rep. 470. 8 Johns. Rep. 82. 1 Galison, 87. 3 Wheaton, 102. Cro. Jac. 207. S. C. Yelv. Bingh. on Ex. 82. Judgment against ex It is provided by statute, that "judgments against executors, ecutors, &c. or administrators of a deceased defendant, in a writ of error, for the recovery of damages or costs, shall have the like and no other effect, and shall be proceeded on in the same manner, as judgments in a court of original jurisdiction, in a personal action, against such executors or administrators."'14 For errors in fact errone dures only reversed. On reversing a judgment for error in fact, only the proous proce- ceedings complained of as erroneous are reversed, and all prior proceedings remain unimpeached, from whence the plaintiff may, after reversal, continue the original action, without being obliged to commence it de novo; as when the error assigned is the appearance of an infant defendant by attorney, the court will only reverse the plea and subsequent proceedings, and will let the declaration stand;15 and as the whole record is removed into the supreme court, the defendant in error may enter a rule for the defendant below to appear and plead de novo, to the declaration removed into that court.1 Execution. 16 If the judgment be affirmed, or if the writ of error be discontinued, or quashed, or the plaintiff in error nonsuited, the defendant in error may take out an execution for the sum recovered in the original action, as well as the damages and costs in error, or for them alone, by fieri facias against the goods and chattels of the plaintiff in error, or by capias ad satisfaciendum against his person." On a judgment upon a writ of error returnable to the supreme court, execution issues out of that court where the record is, or is supposed to remain.18 But on a judgment in the court of errors, which has only a transcript of the record, execution issues out of the supreme court. The writ should be directed to the sheriff of the county where the venue was laid in the original action; or it may issue, with a testatum clause, into another county.19 14 R. St. P. 3. Ch. 9. T. 3. s. 56. Vol. 2. p. 600. 15 11 Johms. Rep. 460. 16 15 Johns. Rep. 534. 17 2 Tidd. Pract. 1244. 19 Ib. |