in quare impedit (a), and in darrein presentment. (b) And the On what judgjudgment for the damages may be reversed, while the judgment ments it lies. for the land shall stand good. (c)

A writ of error does not lie until judgment is given against all the parties to the suit. Thus, if a quare impedit is brought against two, and one pleads to issue, and the other confesses the action, upon which confession judgment is given, the defendant against whom it is given cannot have a writ of error till the matter is determined as to the other. (d) So in a formedon, if the demandant has judgment for part, no writ of error lies, until the entire matter in demand is determined. (e) And so if the tenant is ousted of aid, error does not lie on such judgment, until the principal judgment is given. (ƒ)

By the 16 and 17 Car. 2, c. 8, s. 3, made perpetual by the 22 Bail in error. and 23 Car. 2, c. 4, "No execution shall be stayed, by writ of error, or supersedeas thereupon, after verdict and judgment, in any action personal whatsoever, unless a recognizance with condition according to the statute, 3 Jac. 1, shall be first acknowledged in the court where such judgment shall be given; and further, that in writs of error to be brought upon any judgment after verdict, in any writ of dower, or in any action of ejectione firma, no execution shall be 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 firma, 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, or the writ of error discontinued, in default of the plaintiff or plaintiffs therein, or the said plaintiff or plaintiffs be nonsuited in such writ 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 to the end that the same sum or sums and damages may be ascertained, it is further enacted, (sec. 4,) that, "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

(a) Ibid. 1. 53. Ante, p. 326.

(b) Ibid. 749, 1, 44.

(e) 1 Rol. Ab. 776, 1. 4.

(e) Metcalf's case, 11 Rep. 39, b. Dyer, 291, b.

(ƒ) Ld. Barkley v. Countess of War

(d) Metcalf's case, 11 Rep. 39, a; wick, Cro. Eliz. 636.

and see Vin. Ab. Error, (M).

Bail in error.

Reversal and restitution.

Entry after writ

of error.

Certificate of assise.

committed after the first judgment in dower, or in ejectione firma; and upon the return thereof, judgment shall be given and execution awarded, for such mesne profits and damages, and also for costs of suit." (a)

Upon the reversal of a judgment in a real action, the tenant shall be restored to the lands which he has lost (b); and if there be an erroneous judgment against tenant for life, and he and the reversioner bring several writs of error, judgment given for one of them, and execution, shall revest both estates. (c) So on the reversal of the judgment by the vouchee, or tenant by resceit, the terre-tenant shall be restored. (d) When the demandant recovers seisin, or possession of land, in any action by erroneous judgment, and afterwards the judgment is reversed, the plaintiff in the writ of error shall have a writ of restitution, reciting the first recovery, and the reversal of it in the writ of error, and directing the plaintiff in the writ of error, to be restored to his possession and seisin, together with the profits thereof from the time of the judgment, taken by the plaintiff below, by colour of the judgment. (e) It seems, however, that where the profits (which are uncertain) are to be recovered, a scire facias ought to issue. (f)

In a real action, after judgment, the demandant may enter, notwithstanding the writ of error, if his entry were lawful without the judgment, for such entry is not by force of the judgment, which shall not put him in a worse condition than he was in before. (g)

The certificate of assise is a proceeding in the nature of a writ of error. At common law, if the matter be not well examined by the verdict before or after judgment, the justices of assise may, ex officio, re-examine the matter by the same recognitors (h); and, therefore, a writ goes to the sheriff to summon the recognitors ad certificandum eos super articulis, and that he

(a) For the decisions on this statute, see Tidd's Pr. 1212, 8th edit.; and post, in "Ejectment.”

(b) 1 Rol. Ab. 805, l. 23.

(c) Jenk. Cent. 69. Vin. Ab. Error, (H. b). Stat. 9 R. 2, c. 3. Ante, p. 346. (d) Br. Ab. Restitution, 6.

(e) Menvill's case, 13 Rep. 21. Vin. Ab. Error, (I. b). Sympson v. Juxon,

Cro. Jac. 698.

(f) Sympson v. Jackson, Palm. S24; and see 2 Saund. 101 z, note.

(g) Badger v. Floid, 12 Mod. $98. Withers v. Harris, 2 Ld. Raym. 808.

(h) 2 Inst. 415. F. N. B. 181 A, B. C. Com. Dig. Assise, (B. 27). Booth, 216.

assise.

summon the parties ad audiendum illam certificationem. (a) A Certificate of certificate lies upon an assise of mortd'ancestor, darrein presentment, or juris utrum, as well as upon an assise of novel disseisin. (b) A certificate is not allowed at common law, where the jury give a full general verdict, or where any of the recognitors have died. (c)

By statute of Westminster 2, c. 25, a certificate of assise lies where the assise is taken by default or upon a plea by the bailiff, in which case, the party who is made defendant in the assise, may verify to the justices, that he has matter of record, or in writing, as a release, and pray that it may be re-examined (d); and this may be done before or after judgment. (e) The judgment is, that the defendant recover his seisin again, and double damages, and that the plaintiff be imprisoned at the discretion of the justices. (f)

(a) F. N. B. 181 F.

(b) F. N. B. 183 E.

(c) 2 Inst. 415.

(d) 2 Inst. 414, 415. F. N. B. 181 A, F. Com. Dig. Assise, (B. 28).

(e) F. N. B. 183 D.

(f) F. N. B. 182 A. See more as to certificate, under the statute, Com. Dig. ut sup. Booth, 289.