cannot give a new and complete judgment, but by an interlocutory judgment, quod recuperet; and the transcript being remitted, the K. B. will award a writ of inquiry and give final judgment, Cro. Jac. 207. Yelv. 75. Where On a special verdict for a judgment is given against the plaintiff in the King's plaintiff, if reBench, on a special verdict, by which the damages are versed. assessed, the Exchequer-chamber may, in case of reversal, give a new and complete judgment, for the plaintiff to recover those damages. 1 Ld. Ray. 9, 10. Carth. 319. Skin. 514.

costs.

The Exchequer-chamber is bound to allow double Interest and costs to the defendant in error, on the affirmance of a judgment of the King's Bench; but it is entirely a matter in their discretion whether or not interest shall be allowed on such affirmance. Shepherd v. Muckreth, 2 H. Black. Rep. 284.

It seems the mode at the time of the affirmance, is to The motion. let counsel move for a rule to shew cause why it should not be referred to the clerk of the errors to calculate and ascertain the amount of the interest upon the final judgment, after the rate of 5l. per cent. from the time of final judgment being entered up, until the affirmance of final judgment in this court; and that such interest may be added to the damages for which such final judgment was entered up; the rule is drawn up by Mr. Poole, serve it, make affidavit thereof, and then move to make it absolute.

As to Interest being allowed against Bail in Error.

The plaintiff recovered a judgment in Hilary term, In debt upon 1784, for 8001. the defendant brought error in the Ex- a recognichequer-chamber, and put in bail. In Nov. 1785, judg- zance of bail ment was affirmed, and an action of debt was brought in error in against the bail in same term, and plaintiff recovered. The Exchequer Chamber, the bail required indulgence, and granted. The question was, bail are not whether the plaintiff was entitled to interest from the liable to inbail on the sum recovered between the time of signing terest between the judgment in the King's Bench, and the affirmance in the time of the Exchequer, as interest for the whole time, since the signing judgment below, time of signing the final judgment, had been levied and the affiragainst the bail? Buller, J.-This is not an application mance, but to a court of equity, but to a court of law, to enforce the they are liable performance of an engagement which the bail have enter- to interest afed into. The recognizance they entered into is with a condition, that the defendant in the original action shall

ter the affir

mance.

If the judgment be reversed.

Where plain

tiff in the original action

has execution and money levied, and

prosecute his writ of error, and that if judgment should be affirmed, they will pay the debt and costs upon the former judgment, together with such costs as are occasioned by the delay. So that the bail in express terms only promise to pay what was due upon the original judgment, and the costs given in the Exchequer-chamber; therefore we are not warranted in giving any more. In Bodily v. Bellamy, 2 Burr. 1094. it is laid down, that when final judgment is given by the court, the demand is liquidated, and no interest can be computed after that time. Wilford v. Davison, 4 Burr. 2127. it was held, that ou affirmance of judgment in error, bail are not liable for more than they have undertaken to pay; namely, the debt and costs which have been adjudged due. Asto interest due subsequent to the time of the affirmance, that stands on a different ground; because when the judgment is affirmed, it becomes, from that time, the debt of the bail; and if an action were brought on that judgment, the jury might give damages for the detention of the debt, so as to include interest up to the time of final judgment. Frith v. Leroux & an. 2 Term Rep. 57.

Of Reversal.

If the judgment be reversed, the party shall be restored to all that he has lost by occasion of the judgment, Cro. Jac. 698. and a writ of restitution shall be awarded.

Where the plaintiff in original action has execution, and the money is levied and paid, and the judgment is afterwards reversed, there the party shall have restitution without a scire facias; because it appears on the record that the money is paid, and there is a certainty of what after judgment was lost; otherwise where it was levied but not paid, for then there must be a scire facias, suggesting the matter of fact, viz. the sum levied, &c. But where judgment is set aside after execution for irregularity, there needs no scire facias for restitution, but an attachment shall be granted upon the rule for contempt, if there be not a restitution. Per Holt, C. J. 2 Salk. 588. 19 Vin. Ab. 157. See 2 Saund. 101. Lill. Ent. 641.

is reversed, defendant

shall have restitution.

If a lease be sold.

If a lease be taken in execution by fi. fa. and sold, and afterwards the judgment is reversed, the restitution must be of the money for which it was sold, and not of the term. Cro. Jac. 246. pl. 3.

Of the Days for hearing of Errors in Exchequer.

The Exchequer-chamber is a branch of the court of Of the days Exchequer, in which there are no more than two return for hearing days in every term: one is called the general affirmance causes in Exchequerday, being appointed by the judges of the Common chamber. Pleas, and barons of the court of Exchequer, to be held a few days after the beginning of every term, for the general affirmance or reversal of judgments. The other is called the adjournment day, which is usually held a day or two before the end of every term; and on the first of these days, judgments are affirmed, or reversed, or writs of error nonprossed. The intent of the latter is, to finish such matters as were left undone at the former; on which last day also (as well as on the first) judgments may be affirmed, or reversed, or writs of error nonprossed, on paying 16s. extraordinary to the clerk of the errors, and setting down the cause for affirmance two days before the adjournment day; the clerk of the errors charging 9s. 6d. for every cause set down for the general affirmance day, and 11. 5s. 6d. for the adjournment day.

If the judgment be affirmed, the court who affirm it, Of the judgmay also give judgment for costs for delay of execution, ment. 2 Saund. 22. 5. 4 Mod. 127. and may award execution,

by ca. sa., fi. fa. or elegit, without a sci. fa. Cro. Eliz.

in this Common as

707. If judgment shall be reversed, the record shall be If reversed. remanded by statute 27 El. for the Exchequer has no 1 B. and P. authority but to affirm, or reverse the judgment. I Salk. 30. 403. But if it is upon a special verdict, that court on motion will give final judgment.-So where the plaintiff in error is nonsuited or discontinues. 2 And. 123. If the judgment is reversed for error, the whole shall be reversed, 1 Salk. 24. Carth. 235. without costs. 1 Str. 617. Afterwards, to wit, on next after same term, comes the said R. C. by J. F. his attorney, signment of and says, that in the record and proceedings aforesaid, errors in the and also in giving the judgment aforesaid, there is mani- xchequerfest error in this, to wit, that the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said A. B. to have and maintain his aforesaid action thereof against the said R. C. There is also error in this, to wit, that by the record aforesaid, it appears that the judgment aforesaid, in form aforesaid given, was given for the said A. B. against the said R. C. Whereas, by the law of the land, the said judgment ought to have

chamber.

been given for the said R. C. against the said A. B. And the said R. C. prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings aforesaid, may be reversed, annulled, and altogether held for nothing, and that he may be restored to all things which he hath lost by occasion of the said judgment, &c.

And hereupon the said A, B. by his attorney, freely comes before the justices of our said lord the king, of the Bench, and the barons of the Exchequer of our said lord the king, of the degree of the coif, in the Exchequerchamber, at Westminster aforesaid, and says that there is not any error in the record and proceedings aforesaid, or in giving the judgment aforesaid, and he prays that the said court of our said lord the king here, may proceed to examine as well the record, and proceedings aforesaid, as the matter aforesaid, above assigned for error, and that the judgment aforesaid, in form aforesaid given, may be in all things affirmed, &c. but because, &c.

Writ of Certiorari,

George, &c. To our trusty and well-beloved Edward Lord Ellenborough, our chief justice assigned to hold pleas in our court before us, greeting: because in the record and proceedings, and also in the rendition of the judgment, of a plea which was in our court before us by bill, between A. H. and J. G. of a plea of trespass on the case, it is said, manifest error hath happened, to the great damage of the said J. as by his complaint we have understood; the record and proceedings of which said judgment we have lately caused to be brought before our justices of our common bench, and our barons of our Exchequer, of the degree of the coif, to correct the errors in the same, according to the form of the statute in such case made and provided, in the chamber of our Exchequer aforesaid; and the said J. appearing in the same Exchequer-chamber hath said, that whereas by the record aforesaid sent to the same justices and barons it appears that the said A. in Trinity term, in the 57th year of the reign of his present majesty, exhibited into the said court of our said lord the king, before the king himself, her bill against the said J. in the plea aforesaid, and that the said J. was in the custody of the marshal of our Marshalsea before us; nevertheless the said J. ator before the time of exhibiting the bill of the said A. was not in the custody of the marshal of our Marshalsea before us;

neither was any bail ever filed for him in the said court; nor any such bill, and the continuances thereon, indorsed in our said court, of the same term, before us of record remaining; and that whereas by the record aforesaid so as aforesaid sent, it also appears that the said A. constituted one R. F. her attorney against the said J. in the plea aforesaid; nevertheless the said J. hath said that the said R. F. had no warrant of attorney thereon on record filed; and we being willing to be certified of the premises aforesaid, in this behalf, command you that the files of the bails of the county of Middlesex, and of the bills of the said Easter term in the 57th year aforesaid, in your custody, and also the rolls and other memorandums of the warrants of attorney of the same term, in your custody of record likewise remaining, being searched, what of the said bill, bail, and warrant of attorney aforesaid, you shall find, to our justices and barons aforesaid immediately into the chamber of our Exchequer aforesaid, you certify, together with this writ. Witness, Sir James Mansfield, knight, &c.

N. B. Writs issuing out of the Exchequer-chamber are always witnessed by the chief justice of the Common Pleas.

The like writ will issue where there is the want of an original assigned for error.

Error from the Common Pleas into the King's Bench.

The method of proceeding to obtain this writ is parti cularly stated in my Instructor Clericalis in the Common Pleas, from p. 756, fifth edition, as far as the delivering over the transcript to the court of King's Bench.

Although eight days are mentioned in the rule to tran- Transcript. scribe, it is the duty of the officer to transcribe sooner if he can; and as soon as the record is brought into court, the defendant in error may proceed upon it. Sambridge v. Housley, 2 Term Rep. 17. And if the record is brought in the vacation, it is a record of the preceding term.

fore the es

No cursitor shall make any original writs of any return Original to be past, unless he receive instructions within the term bespoke bewherein they are to be returnable, or at farthest on or soign day of before the essoign day of the next succeeding term, with- the succeeding out warrant from the lord chancellor or master of the term. rolls. Lord Clarendon's order in Chancery.

The proceedings shall not be staid, because the chief justice has not signed the return. Str. 1063. Blackwood . South Sea Company.