ELECTION,

1. In an action for penalty for voting without legal qualification, the list of votes taken as required by statute, is the best evidence to show who voted. Olivi v. O'Reily, A. R. 410. 2. The Legislature, after making an election, may at any time, before its adjournment, arrest it, and proceed to a new election.

Ex. rel. Mead. Dún. A; K. 16. 3. The original election returns are admissible evidence to prove the truc number of votes given, although they had been for some days in an exposed situation, and altered in some respects, their fairness and alterations being for the investigation of a jury. State v. Adams, 2 S. 231. 4. In a qui tam action, for voting at an election without legal qualification, held:

1. That the act of voting is not complete until the ballot is put into the box, when the name of the voter is also entered on the list kept by the clerk.

II. That no forfeiture is incurred by voting without qualification, unless the voter's name be inserted on the list,

II. That a voter's name entered on the list, is prima facie evidence that he voted.

IV. That such list must be produced in evidence, or its loss or destruction accounted for before parol testimony is admissible of the fact of voting. Blackwell v. Thompson, 2 S. & P. 348.

See. Actions in general.

ERRORS AND APPEALS.

I. OF THE WRIT; ITS ISSUANCE; AND THE PARTIES THEreto.

II. OF THE CITATION.

III. OF THE BOND AND SECURITIES THERETO.

IV. WHEN THE WRIT LIES; TO WHAT JUDGMENT AND WHAT COURTS; AND

IN WHOSE FAVOR.

V. OF THE ASSIGNMENT OF ERRORS; AND RELEASE OF ERRORS.

VI. OF THE BILL OF EXCEPTIONS.

VII. OF THE RECORD.

VIII. DAMAGES.

I. Of the Writ; its Issuance; and the parties thereto.

1. Since the passage of the statute 1819, the clerk below has no authority to issue the writ of error, and the court will ex-officio, notice the defect.

Laud v. Patterson, A. R. 14.

2. Where a mistake occurs in favor of a party he cannot take advantage of it on writ of error. Henry v. Smoot, A. R. 18.

3. No person, not party or privy, or who is not to receive advantage by the reversal, can prosecute a writ of error.

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Ibid. Childress v. McGehee, A, R. 131. 4. Judgment below against two; writ of error prosecuted by one only. By the court, "It does not appear but that the co-defendant was living on the date of writ of error; the writ issued improperly and must be quashed." Caller v. Britain. A. R. 27.

5. Writ of error may be. reversed by administrator, who will be entitled a contingance thereof, as in ather cases..

Lewis, adm. v. Lewis, A. R. 35.

6. Writ of error barred by the statute of limitations dismissed on motion; the statute extending the time to three years, does not apply to judgments reversed before its passage. Davis v. Pindar, adm. A. R. 57.

7. Indorsement of writ will not be looked to, to sustain a writ of error. Flant & Sossiman v. Malone, A. R. 92. 8. Writ of error, amended on motion, it being directed to the presiding judge, instead of to the clerk, (there was no opposition to the motion).

Roberts & Marshall v. Anderson, A. R. 113.

9. Writ of error issued by clerk, after expiration of his term of office, quashed. Hart v. Judson, A. R. 135, 10. One of several parties may sue out a writ of error in the name of all, and his bond with security will operate as a supersedeas.

Webster v. Yancey, A. R. 183. 11. Writ of error, by putative father of bastard, on order of Judge of the County Court, requiring bond and security; the Judge of the County Court, and not the mother, should be made defendant.

Brown v. McLane, A. R. 208. 12. Writ of error on motion to quash execution, statute of limitations does not run from date of original judgment.

Creighton v. Denby, A. R. 250. 13. Judgment, on appeal from justice of the peace, writ of error thereon, in which, if security is not joined, will be quashed.

Eastlands v. Jones & Stephen's A. R. 275. 14. Writ of error not including all the parties, who, it appears from the record, should be made defendants-dismissed.

Tombecbee Bank v. Freeman, A. R. 285. 15. Writ of error in the name of more plaintiffs than were parties to judgment below, dismissed. Adams. et al. v. Robinson, A. R. 285. 16. Death of plaintiff in error suggested, if representatives do not appear and revive, writ abates at next term.

Evans v. Boggs, et al. A. R. 354.

17. Plaintiffs in error, after joinder, cannot dismiss their writ.

Hallett et al. v. Allaire, A. R. 360. 18. Writ of error, dated day of1823, and 47th year of American independence, returnable second Monday in June next, shall not be dismissed for want of date. Smith & Howell v. Winthrop, A. R. 378. 19. Writ against three, service on two, judgment in default against the three-error through the record recites that the "defendants, by their attorney waived the plea," there being no discontinuance as to the one not served with process. Williams et al. v. Lewis, 1 S. 41.

20. When a party died, after judgment in the court below, the clerk cannot, on the production of letters of administration, issue a writ of error, and thereby make the supposed administrators defendants thereto; and a writ thus issued will be quashed, on motion. Serrell v. Bates, 2 S. 462.

21. Where defendant dies after judgment, application must be made to this court for a scire facias to the representatives or a certiorari to bring up the record, on a suggestion of the death, supported by sufficient evidence.

Ibid.

Bettis, adm. v. Taylor, 6 P. 333.

22. Writ of error named defendant, individually, the records below describes him as administrator, there being but one case, the variance was not fatal. Greene v. Foley, 3 S. 239.

23. All the parties must join in the writ of error, else it will be quashed, or the case dismissed, at the mere motion of the court, but it is competent for one defendant to use the name of his co-defendants, in prosecuting a writ of error without their consent, and if either of them should afterwards refuse joining in the assignment of errors, he should be summoned, and failing to appear, severed; and the writ prosecuted by other plaintiff in error alone. Jameson v. Coleburn, 1 S. & P. 253.

24. A writ of error will be dismissed if it appear that parties interested have not been joined. Billingslea v. Abercrombie, 2 S. & P. 24. 25. Writ will not be dismissed on the suggestion that co-defendants are not joined, it not appearing from the record that the other parties are made defendants by the decree, than those embraced in the writ.

Campbell v. Longworth, 3 S. & P. 343. 26. A writ of error bringing up two distinct judgments of a court below, on appeal from magistrate, no order of consolidation appearing, will be dismissed. De Sylva v. Henry, 4 S. & P. 409. 27. Writ of error will be quashed, for want of proper parties, as when a guardian appointed on application to sell real estate is not made a party. Whittaker v. Patton, 1 S. 9.

28. When a judgment is rendered against two defendants, and a writ of error is prosecuted in the name of only one of them, the writ may for that reason be quashed. Swift v. Hill, 1 P. 277. 29. The omission to set out, in writ of error, the particular day on which it should be returned, is cured by statute of amendments.

DeSylva v, Henry, 3 P. 132. 30. It is no cause for dismissal of writ of error, that the sureties to a bond for an appeal from the judgment of a justice of the peace, are not joined, it not appearing that the judgment on appeal is against them.

Ibid. 31. One executor complaining of the judgment of the Orphans' Court, rendered against several executors jointly, cannot prosecute a writ of error, without using the name of all, which he may do without their consent, and a writ prosecuted in the name of one only, will be dismissed.

Portis v. Creagh, 4 P. 333.

32. Writ of error not shewing the term to which returnable, may be amended by its test, or the bond, or the citation.

33.

Lyon v. Malone, 4 P. 415. It is good cause for the dismissal of a writ of error, that it recites the names of persons not parties to the suit as shewn by the transcript, and this even after appearance and joinder in error.

Roberts v. Taylor et al. 4 P. 421. 34. The statute, limiting the prosecution of writs of error to three years, applies as well to a writ of error from a supreme to an inferior court, as to one issued from a court and returnable to itself to make its own judgment. Richardson v, Williams, 5 P. 515. 35. One who has lost the right of suing out a writ of error, cannot, except that the opposing party had died, and that there was no representative against whom to sue out the writ.

Ibid.

36. In a case when it may be essential to sue out a writ of error against a

deceased party whose estate has not been administered on for the period of three months after his death. One desiring the advantage of such writ, should apply to the County Court, and have administration granted to the sheriff.

1bid.

Hutchinson v. Tolls, 2 P. 44.
Houpt v. Shields, 3 P. 247.

37. If one suing out a writ of error fails from any cause to file the transcript at the term to which the writ is returnable, a new writ of error may be sued out at any time, before the affirmance of the judgment on certificate. United States v. Hayden & Everett, 5 P.533. 38. When one of several plaintiffs in error dies, before errors assigned, the suit does not abate; the suggestion of the death is all that is required, and the case may proceed in the name of the survivors.

Gregg et al. v. Bethea, 6 P. 9. 39. The writ of error is to be considered as a new action, and fully within the letter and spirit of the statute 1824. Ibid. 40. At common law the writ of error is a supersedeas which continues until the court is apprised of the abatement of the writ by scire facias, and therefore when one of several plaintiffs in error died before error was assigned, the defendant in error was obliged to sue out a scire facias quare executionem non, against the survivors to revive the judgment, before he could Ibid. 41. When there is no community of interest, parties cannot join in action and therefore the obligors on two several bonds, who had incurred different liabilities, may not join in a writ of error.

sue out execution.

Jones et al. v. Etheridge, 6 P. 208. 42. Therefore, also, when several defendants below, who may make different matters of defence, and for or against whom different judgments might be rendered, such writ will be dismissed.

Ibid.

43. When one of the parties to a judgment in the court below, dies before the issuance of a writ of error, it is competent for his survivors to suggest the death in their writ of error, when the suggestion of the death requires no new parties to be made, without application to the supreme court; and if the death is improperly suggested in the writ it can always be under the control of the court, on a motion supported by affidavit, so as to prevent any injury to the parties interested.

Perrine et al. v. Babcock, 6 P. 391.

44. The supreme court will dismiss a writ of error on motion to that effect, for a misjoinder of defendants, if the objection be well taken.

Brown et al. v. Lewis, surv. et al. 6 P. 414.

II. Of the Citation.

45. After return of writ of error, clerk cannot issue a citation.

Harris v. Richardson, A. R. 97.

Ibid.

46. Writ of error quashed for want of a citation. 47. Writ of error will not be dismissed for want of citation which is in the name of some of several plaintiffs in error, but if necessary a sci fa will be awarded. Webster v. Yancey, A. R. 183. 48. Writ of error will not be dismissed because the citation returned executed, is directed to the coroner instead of the sheriff, even if no part of the record shows the sheriff to be a party in interest,

Chenault v. Bash, 3 S. & P. 342.