Reply for the Plaintiff in Error. Judgment reversed.—It was replied in Behalf of the Plaintiff, much to the same Effect as 'twas argued before, and great Weight laid upon the Contumacy, which hindred the Observance of the Statutes; that by allowing such a Behaviour in a College, no Will of the Founder could be fulfilled, no Visitation could ever be had; and all the Statutes would be repealed or made void at once; that tho' this Crime was not mentioned, 'twas as great, or greater than any of the rest; that here was an Authority, and well executed and upon a just Cause, and in a regular Manner, as far as the Rector's own Misbehaviour did not prevent it; and therefore they prayed that the Judgment might be reversed: And upon Debate the same was reversed accordingly.
Error from B. R. lies either to the Exchequer Chamber, or to Parliament. But from the Court of Exchequer it lies not immediately to Parliament.—Note, That in this Case there was one Doubt conceived before, and another after this Hearing: The first was, If a Writ of Error lay in Parliament immediately upon a Judgment in the King's Bench, without first resorting to the Exchequer Chamber; but upon perusing the Statute which erects that Court for Examination of Errors, it appeared plainly that that Act only gives the Election to the Party agrieved to go thither; that it did not take away the old Common Law Method of Relief in Parliament, and so hath the Practise been; but upon Judgments in the Exchequer Court, the Writ of Error must first be brought before the Lord Chancellor, and cannot come per saltum into Parliament, because the Statute in that Case expresly ordains, That Errors in the Court of Exchequer shall be examined there; and so held in the Case of the Earl of Macclesfield and Grosvenor.
[57] Carth. 319, 310. Argument and Precedents that the King's Bench is to give a new Judgment upon the Reversal.—The other Doubt was raised by a Motion in B. R. for the Court to give a new Judgment upon the Reversal above; and insisted on, that it ought so to be, as was done in the Case of Faldo and Ridge, Yelv. 74. entred Trin. 2 Jac. 1. Rot. 267. Trespass, and special Plea, and Judgment in B. R. for the Defendant; and upon Writ of Error in the Exchequer Chamber the Judgment was Reversed; and upon the Record returned into the King's Bench, they gave Judgment that the Plaintiff should recover, contrary to the first Judgment; for otherwise, they said, the Law would prove defective; and a Precedent was shewn in Winchcomb's Case, 38 Eliz. where the same Course was taken; and the like Rule was made Mich. 1 W. & Mar. upon the Reversal of the Judgment inter Claxton vers. Swift, which is entred Mich. 2 Jac. 2. B. R. Rot. 645. the like between Sarsfield vers. Witherley.
Argument contra. The new Judgment given in Parliament.—'Twas argued on the other side, That the Court which reverses the Judgment ought to give the new Judgment, such as ought to have been given at first, that in the Exchequer Chamber it may be otherwise, because they have only Power to affirm or reverse; yet in the Case of King and Seutin, the Exchequer Chamber gave a new Judgment, tho' they cannot inquire of Damages: And that is a Kind of Execution which must be in B. R. In Omulkery's Case, 1 Cro. 512. and 2 Cro. 534. the Court here sends a Mandatory Writ to command them in Ireland to do Execution there, St. John vers. Cummin, Yelv. 118, 119. 4 Inst. 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed, shall proceed in B. R. and 1 Rolls 774. to the same Effect, Green vers. Cole, 2 Saund. 256. The Judges Commissioners gave the new Judgment. 'Tis true, in Dyer 343. the Opinion was that he was only restored to his Action, and then Writs of Error were not so frequent. The Judgment may be erroneous for the Defendant, and yet no Reason to give a Judgment for the Plaintiff, as in Slocomb's Case, 1 Cro. 442. the Court gave a new Judgment for the Defendant; therefore it properly belongs to the Court, which doth examine the Error, to give the new Judgment; the Record is removed, as Fitzh. Nat. Brev. 18, 19. on false Judgment in Ancient Demesne; 38 Hen. 6. 30. and Griffin's Case in Error on a quod ei deforceat, in 2 Saunders 29, 30. new Judgment given here. In the Case of Robinson and Wolley in 3 Keble 821. Ejectment, special Verdict, Judgment reversed in the Exchequer Chamber, and they could never get Judgment here, the Court of Exchequer Chamber not having given it: And in the principal Case, after several Motions in the Court of King's Bench, the Remittitur not being entred
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