Crouch v. Hain, 1 N.C. 57, 1 Mart. 57 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 57, 1 Mart. 57

*Crouch vs. Hain.

Pasch. 1 Car.

Ejectione Armæ. The plaintiff had judgment in the Common Bench, and the defendant brought error in the King's Bench, where it was affirmed. Error was brought in Parliament, and the Chief Justice, as the practice is, carried the record there. Now, by the death of King James, the Parliament was dissolved, and the plaintiff prayed execution.

Davenport.

The writ of error is abated by the act of God, and not that of the party. There is a difference when it abates by the act of the party, for then it is not a supersedeas; and when it drops by the act of God, it is. I pray that execution be stayed till the next Parliament.

Noy, Contra.

The party may have a new writ of error in Parliament, but it shall not be a supersedeas. And it is doubtful whether error in Parliament be a supersedeas omnino; for the record remains here, 1 H. 7. 19. If one be in execution under a judgment in the King’s Bench, and brings error in Parliament, he shall not be bailed: But if he be in execution in the Common Bench, and he brings error in the King’s Bench, he shall be bailed. In this case there has been much delay. The plaintiff brought error in Parliament, and on the writ of error in this court, did not assign error till a scire facias was sued against him, and he has not yet assigned error in Parliament. In 8 Eliz. 6 H. 7. 15. 3 E. 4. 3. 7 H. 6. Execut. 15. 19 H. 6. 8 where delay will prevent a writ of error from serving as a supersedeas. The Parliament and writ of error ended together 22 E. 3. 3. 1 H. 7. 19. 15 R. 2. and he may have another writ. If the writ of error is determined,

surely the supersedeas is. Godsave and Sir Richard Heyden’s case proves this. In an assize of Novel disseisin, judgment was given in the assizes, and error was brought and the record delivered by Sir Edward Coke in Parliament. 10 Jac. and Parliament was dissolved the 11 Jac. adjudged that the plaintiff shall have execution. We know not whether he will bring a writ of error to the next Parliament: and if he does, it will not be a supersedeas.

Jones, J.

- If he gets a new writ of error, there may be a doubt whether we ought to award execution. A distinction is taken in the books, when the writ abates by the act or fault of the party: there the second writ shall not be a supersedeas. Otherwise when it abates by the act *of God, or without any act or fault of the party, as want of form. But here there is no writ depending, and there is no reason to stay execution.

Doderidge, J. and Crew, C. J.

assented. Although we do award execution, he may bring error to the next Parliament. Here is no writ depending. We are not to know whether he wishes for a new writ or not. Therefore, Fiat executio.

Doderidge, J. cited 8 H. 6. tit. error. Error brought in Parliament. The plaintiff prayed a scire facias to next Parliament, and denied that it works any delay. It is so in this case. Postea 149. Noy 76. Rol. 765. Jones 66. 2 Cr. 241. Mo. 834.