It seems to me they should not. The distinction is taken in F. N. B. 71, if a record be removed out of the court of a private man, the King’s court shall not hold plea of it; but if a plea in the county be removed by such a bad writ, the court shall proceed on the record quod coram illis residet.
Dun v. Dean of Carlisle, 1 N.C. 198, 1 Mart. 198 (1793)
1793
·
United States Circuit Court for the District of North Carolina
1 N.C. 198, 1 Mart. 198
*Dun vs. The Dean and Chapter of Carlisle.
Hill. 2 Car.
ERROR on a judgment of an inferior court of the King, obtained by the plaintiff. The judgment was given in the time of King James, and the writ of error to remove the judgment obtained, in the time of King Charles. Now Damport, the King’s Serjeant, prayed that the inferior court might proceed to execution, notwithstanding the writ of error.
I concur. Where the writ is once well, and abates by the party, or by death, and the record is re*199moved, the inferior court cannot proceed, but the superior court shall. But it is otherwise, when the writ is to remove other records, as here. For the record is in the time of King James, and the writ of error speaks of a record in the time of the present King.
Hyde, C. J. and Whitlock, J. concurred.
Damport. They have had twice execution on imprisonment of the plaintiff, upon the writ of error. 3 El. Dyer 206. in point.
And he at last obtained what he had moved for.