Roberts v. Taylor

4 Port. 421

Opinion

COLLIER, J.

— The defendant in error moved the Court to dismiss the writ of error in this case, because it is variant from the transcript accompanying it, in this: the writ of error in reciting the names of t,he parties in whose favor the decree was rendered, (that is complained of,) discloses the names of one or more persons who were not parties to the proceeding in the Circuit Court.

It has been repeatedly determined by this Court, that where a writ of error is sued out by too few or too many plaintiffs, the Court cannot take jurisdiction of the cause, but is bound to repudiate it.— And this seems entirely conformable to the practice of the English Courts, up to the passage of the sta tute of 5 Geo. I, cb. 13. — (Vide 9 Viner’s Ah. 493.) — ■ In the same book, (504,) it is laid down that a writ of error lies only against parties or privies to the judgment complained of. By privies, we are to understand those who come in as the personal or real representatives of a party,

In Dunlap’s Practice,

Footnotes

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* it is said great certainty was formerly required in making the writ of error agree with the record. The writ was the only authority for the action of the Judges: they were consequently confined to the record, which the writ authorised to be examined, without being licensed to amend, so as to bring about a correspondence between them. This strictness was relaxed by the statute of 5 Geo. I, already cited. And in England it has become the practice to amend the writ of error as a matter of course; and the name of a party has even been stricken out.

However promotive of justice, the enaction of such a statute might be in this State, we are notpermited to follow decisions made under it, but must be contented to move super antiquas vias, until it shall be the pleasure of the Legislature to invest us with more extensive powers.

This motion does not come too late, though the defendant’s counsel has entered his appearance, according to the rule of Court: — it is in time, if made even after joinder in error. And the writ being the warrant of this Court, to revise the decree of the Circuit Court, if it be defective, the Court, mero moiu, must discard the cause.

We are constrained to dismiss the writ of error.

2voi ii42