
    Hite’s Heirs and Devisees v. Wilson and Dunlap, and the Same v. the Same.
    April, 1808.
    Practice — Supersedeas—Release of Errors — Plea.—A defendant in error wishing- to avail himself (in opposition to a writ of supersedeas) of a release of errors, or of any other matter, not being properly a part of the record, ought not to move the Court to quash the supersedeas, but should plead in bar such a release, or other matter; and an issue joined on such plea ought to be tried by a jury.
    
      Same — Bill of Injunction — Record.—A bill of injunction and the proceedings thereupon, are not properly part of the record of the judgment at common law; neither ought such papers to be brought up to the Superior Court by a certiorari; on a suggestion of diminution in that record.
    Same — Supersedeas—Release of Errors Found in Favor of Defendant — Judgment.—If a release of errors be pleaded to a supersedeas, and found for the defendant in error, the judgment should be, not that the judgment of the Court below be affirmed, but that the plaintiff be barred of his writ of supersedeas
    Same — Joining of Issue, — The Clerk’s stating on the record, “which pleas the plaintiffs join,” &c. is not a joining of issue.
    Same — Two Issues — Verdict Answering One — Effect.— Where there are two issues in fact, and the verdict of the Jury answers to one only, there ought to be a venire facias de novo.
    Release of Errors — Authority of Attorney to Execute. —Quere, whether an attorney, in obtaining an injunction for his client, can execute, on his behalf, a sufficient release of errors ? and, if he can, whether such release would be good though not under seal?
    These were two writs of supersedeas obtained by the heirs and devisees of John Hite deceased, from a Judge of the General. Court, to two judgments of the County Court *of Frederick in favour of Wilson and Dunlap, surviving; partners of Colin Dunlap and Son and Co. The errors assigned in the petitions for these supersedeases need not be mentioned, as the controversy turned altogether upon points arising subsequently to the judgments.
    When the petition was presented in each case, it was annexed to a record of the proceedings at common law; but, on the motion of the defendants in error to the District Court of Winchester, (to which the.-supersedeas was returned,) suggesting a diminution in the transcript of the record, a writ of certiorari was awarded, on. the return of which, other copies of the same records were sent, together with a copy (annexed to each) of a bill in Chancery which had been exhibited in the County Court by the plaintiffs in error,, against the defendants, for the purpose of obtaining an injunction to both the judgments ; on the back of which bill was a writing in these words: “The complainants, in this bill named, do hereby, bjf their counsel, waive and release to the defendants all errors that may be in the proceedings at common law. ’ ’ 1 ‘Elisha Boyd, attorney for plaintiffs;” also copies, of the answer, and other proceedings in Chancery, until the injunction was dissolved; of two judgments afterwards obtained against the plaintiffs in error, on forfeited forthcoming bonds; of a release-of all errors in the last mentioned judgments and proceedings, signed and sealed by the said plaintiffs themselves, in consequence of their having obtained an injunction to the same from the High Court of Chancery; of a bond, with security, executed by them for the due prosecution thereof; and of an order of the High Court of Chancery by which the last mentioned injunction was dissolved.
    On the coming in of these records, the defendants in error, by their counsel, pleaded in writing to each writ of supersedeas, first, the release by Elisha Boyd, as attorney for the said heirs and devisees of John Hite, of all errors at common law prior to-the rendition of the first judgment; (describing the said release as being made by a writing ^signed by the said Boyd, as attorney for, &c. but saying nothing of its having been requisite to their obtaining an injunction;) and, secondly, the release signed by the plaintiffs themselves; describing it as sealed with the seals of Theodorick Dee, Alexander Pitt Buchanan, and Edward Gaunt, being also husbands of the females aforesaid, the names of which females had not been mentioned in the pleas. Each plea concluded with a verification; and with praying judgment if the said Theodorick Bee, &c. ought further to prosecute their supersedeas.
    The record in each case then proceeds, ‘ ‘which pleas the said Theodorick, &c. join, and the same is continued,” &c.
    At a subsequent term a Jury was impan-elled and charged the truth to speak upon the issue joined, (not the issues joined,) and returned a verdict in these words: “We the Jury find that Elisha Boyd, Esq. was the lawfully authorised counsel of the plaintiffs in error, and employed by them to obtain from the County Court of Frederick an injunction to stay the proceedings as stated in the record filed in this cause. We find that the said attorney could not obtain the said injunction from the said County Court, unless he had released all errors in the said proceedings at law; and that he had been directed by one of the plaintiffs in error to do any thing which he might think necessary in order to obtain said injunction. We find that the said E. Boyd, attorney' as aforesaid did, in the presence of the said County Court, execute the paper purporting to bo a release, on the back of the bill of injunction, in these words, &c. We find the said bill of injunction in these words, &c. A. Lindo, Foreman.”
    The District Court, in each case, decided that the law was in favour of the defendants in error, and that the release of errors mentioned in the special verdict was good; and therefore dismissed the supersedeas; from which judgments the plaintiffs in error appealed to this Court.
    The case was first argued at November term, 1807.
    *Williams, for the appellants.
    One of the issues was neither tried by the Jury nor decided by the Judge. This leads to the inquiry whether, if a party means to rely on a release to a writ of error, it must not he pleaded. It may be said that this Court is not constituted like the Courts in England; but 1 understand the law constituting this Court gives the Judges power to try all questions growing out of appeals. As it has, therefore, all the powers of the Courts of Error in England, it should follow the practice of those Courts.
    The case of Carleton v. Mortagh shews that the practice there is to plead the release. In that case it is worthy of observation that the question was, whether, in such plea, it was necessary to lay a venue, and it was decided to be necessary. It was also decided that, although the plea was found against the defendant in error, the Court would inspect the record, and, if there was no error, would affirm the judgment. The same doctrine that a plea is necessary, is laid down in London v. Pickering,  quoted, 2 Bac. Abr. Gwil. Ed. 497, title Error, letter L. in Davenant v. Raftor; in Edw. Altham’s case; and in Street v. Hopkinson. 
    
    It seems, then, I have shewn that the party must plead the release. It follows that the Jury ought to have answered to both the issues, and, not having done so, it is error.
    But, if the Court should think it unnecessary to have put the second release in issue, yet I contend that the first was void ; and having been executed, not by the plaintiffs in error, but by their attorney at law. No principle is better settled than that an attorney' cannot enter a retraxit,  which is the same with a release,  But, if the attorney was specially empowered to grant a release, he ought not to sign in his own name but that of his principal. In this case, it is true, the attorney was directed by one of his clients to do whatever was necessary to obtain the injunction : yet it was not necessary for the attorney to execute the release, because that might have been done by the complainants *themselves. If that authority extended to the making a release, it would comprehend the giving the injunction bond also; for the one is as much a prerequisite to obtaining the injunction as the other. According to 3 Vin. 30, after judgment against an attorney’s client, his power, under his original warrant of attorney, ceases: and even where the attorney gets a judgment for his client he cannot prosecute a scire facias against the bail without a new warrant, 
    
    Even admitting that the attorney had the power, the release being to a matter of record, ought to have been by deed; whereas here it was by a writing without any seal. An indorsement on a bill in equity would not make it a matter of record. If it was a record, it should have been pleaded as such; but it is pleaded as any other release in pais; and the party could not reply nul tiel record. If the Jury have found it as a record, they had no right to do so; for they could not find any thing not put in issue. If they can, the object of pleading is at an end; and either party may be surprised by pleading one thing and giving another in evidence.
    Hay, for the appellees,
    contended, 1. That the District Court ought to have dismissed the supersedeas, even if the pleadings and verdict had been amputated from the record; for the releases themselves were before the Court by means of the certiorari, which brought up all the papers. There ought not to have been any pleading: for no instance could be shewn of a plea to a writ of supersedeas before this case. The form of proceeding in a writ of error is essentially distinct from that on a 'super-sedeas. The right course would have been, without any plea, to have moved the Court to dismiss the writ on the ground of the releases of errors.
    2. That the release executed by the attorney was good. The rules in England concerning attornies do not apply to counsel at law in this country. The latter are a very ^different race of people from the former. Attornies in England are watched with the greatest severity, and cannot stir without a warrant: but no warrant is ever given here to a lawyer to bring a suit, or file a plea: the power is always given verbally. It has also been decided here,  that an attorney’s power does not cease with the judgment, but that he .may receive the money even ten years after-wards, 
    
    That an attorney may release errors is evident from this; that he may, or his client, confess a judgment, which confession is, a release of errors.
    The custom of the country is admitted to be binding; and tjiat custom is for the attornies to execute releases of errors.
    Many things decided in England are unreasonable and inconsistent. There, an attorney cannot enter a retraxit of the suit, but may a remittitur of the damages ; for which distinction no reason can be given.
    But, admitting that an attorney’s power ceases with the judgment, as ending the suit in which he was employed, in this case, Boyd was, after the decision at law, employed for the complainants to prosecute a suit in Chancery, and could not do it without executing the release. It was a power necessarily incidental; because, without it, he could not obtain the injunction.
    3. That it was not necessary for the release to be by deed. A case is mentioned in S Bac. 682, before cited, in which a deed is not necessary to make a release effectual; for a verbal contract not broken may be released without deed.
    Neither is a release by record necessary; for a mere receipt in pais may be pleaded in bar to a judgment,  Yet here the release, if not a record, had, at leas:, the same authenticity; having been executed by «the order of the Court, and in presence of the clerk, its officer. Besides, there may be an implied as well as an express release,  Now, the very act of going into a Court of Equity is an implied ^release of the errors at law; for the injunction is always granted on those terms and no other; the maxim being that he who. wants equity must do equity, and release all technical objections.
    JUDGE TUCKER. Suppose there should happen to be several parties, one only of whom should be willing to release the errors at law; and he applies to the Court of Equity in the name of them all: what is to be done then?
    Hay. I am not prepared at present to answer the question; but, I suppose, if the other parties acquiesce, and suffer the suit to go on in their names, it is an implied release on their part also.
    4. It is unimportant whether the course taken by the counsel in the District Court was right or not, or whether that Court decided upon correct principles. If, upon the whole record, they decided right, the judgment ought to be affirmed by this Court.
    Hening, on the same side, in support of the first point, cited Tidd’s Practice, c. 33,  to shew that the releases of errors, with the bill and other proceedings thereupon, were matters of record, and were properly brought up to the District Court by the certiorari. They might, therefore, have been acted upon, by inspection, without pleading. The practice of pleading a release of errors in England does not apply here, because of the constitution of our Court of Appeals which has not the power of impanelling a Jury. Suppose a release of errors in the Superior Court of Chancery upon granting an injunction to a judgment of a District Court, and a supersedeas af-terwards awarded by a judge of the Court of Appeals. Can the parties make up an issue on the plea of a release, and try it by a Jury in this Court? or has this Court the power by law of sending it to be tried in any other? Not an instance of such a practice can be adduced. If then, this Court could not take notice of the release by inspecting the record and deciding without a Jury, the rule of the Court of Chancery directing a release of errors would be a mere nullity.
    "The practice of the Courts of England in proceedings in error is totally different from ours. In one of the best books in the law, Saunder’s Reports, edited by Williams, the whole doctrine relating to writs of error may be found, digested with all the perspicuity for which that able editor is so very remarkable,  There it is said that a writ of error is grantable ex debito justitiae; and is considered a new action ; that the manner of allowing it is merely by a certificate of the clerk of errors that he has allowed it; and that it may be sued out before final judgment:, whereas, here, a supersedeas cannot be awarded except by the Court or Judge, nor until after final judgment. Here errors are assigned in the petition for the supersedeas: there, after the allowance of the writ of error. This introduces the system of pleading in error, into the Courts of England, which system is unknown here. There are material differences, in other respects, which will appear on a farther comparison.
    The pleadings in this case were unnecessary, and may be considered as an informal inquiry concerning a matter of fact which the Court already possessed, and upon which they ought to have given the same judgment before, as after the finding of the Jury. The Court might, ex officio, award a certiorari, in order to support the judgment. 
    
    It may be objected, that the defendants in error having pleaded the release, and issue being taken, they shall be bound by the proceedings, and not take advantage of their own wrong. But they ask no advantage from the verdict, and only wish this Court to give such judgment as ought to have been given by the District Court, even if the releases had not been pleaded. In truth, the whole pleadings were irregular, and no issue was joined in the cause. After the releases had been pleaded, the plaintiffs in error ought to have replied, and tendered an issue to the country. Instead of that, the entry is, “which pleas the said Lee, &c. join;” and this is no joining of issue, 
    
    *In addition to what had been said on the other points, he quoted Tidd’s Practice, 63, to shew that, even in England, the power of an attorney continues twelve months after judgment. In Latuch v. Pasherante,  the attorney’s consent was held to bind the client, though contrary to the express orders of the latter. The attorney may remit damages ; and payment to the attorney is payment to the principal, 
    
    Call, in reply,
    insisted, that the cer-tiorari could not bring up the Chancery papers, because they were no part of the record at law; that therefore those papers could not properly be taken notice of by the District Court, except when pleaded. The true principle is, that a release, or any other matter, dehors the record, must be pleaded. The case of Street v. Hopkin-son shews that the statute of limitations, against a writ of error, must be pleaded; even though the length of time appears in the record itself; in order that the other party may have the opportunity of replying, and shewing that the plea was barred by infancy, coverture, or any of the other exceptions mentioned in the act.
    It appears, therefore, that any fact which may be put in issue, ought to be pleaded. As to a release, whether executed or not, whether by duress or not, are points which ought to be tried. In some cases, indeed, where the release is entered in the same cause, and at the same term with the judgment, and properly forms a part of the rec-otd, it is not necessary to plead it; but wherever it is extraneous, it must be pleaded. The clerk’s certificate is nothing to the purpose; for, if he certifies a deed or other paper not in the record, he must be examined like other men. The writ of certi-orari is of no effect to have a paper brought up which is not in the record. This can be done only by a writ of subpoena duces tecum. To a sheriff’s’bond, taken in Court, non est factum cannot be pleaded; nor to an injunction bond taken in Court; though in such *cases nul tiel record may. But, if an injunction bond be taken in the clerk’s office, the clerk’s certificate is not conclusive; but non est factum is pleadable. So, here, the release was not entered in the minute-book, and ought therefore to be pleaded. If you throw the pleadings in this case out of the question, there is no proof of the release — of Boyd’s authority to execute it — nor of any other circumstance relative to it. The consequences would be monstrous, if a paper, merely found in the clerk’s office, without proof of its authenticity, is to be taken as a release of errors; for the other party might have thrown it in.
    A plea being necessary, that which was filed in this case was bad, in not pleading the release, either as a record or a deed. Every plea must state the thing as it is, that the other party may reply to it, and plead nul tiel record, or non est factum. You must plead it so that issue may be taken. In this plea, there was no proferí of the release. The English authorities are all, that it should be pleaded as a deed. Such are the forms of pleading ; which forms are evidences of the law. The plea, too, does not state a release of errors in the judgment, but of all errors previous to the judgment. According to the plea, therefore, if all the other improper proceedings were released, the error existing in the opinion of the Court was not.
    The verdict does not cure the defects in the plea; because the verdict is itself insufficient. It does not state why the attorney could not get an injunction without executing the release: it ought to have stated, that the Court would not otherwise grant the injunction. It finds evidence of facts, and not the facts themselves; for it does not state whether the injunction was granted or not, leaving this important circumstance to inference only. It may be said, that the record shews the necessity of the release. Take us out of the verdict, and I deny the fact: for the record only speaks of giving bond and security as a requisite to obtaining the injunction, not of signing a release of errors. Now, a bad verdict will not help bad pleadings, 
    
    ^Neither does the omission to demur to the plea cure the defect. It is true that, according to Baird and Co. v. Mattox,  where the declaration is good and the plea bad, but of such nature that the merits may be investigated, the verdict cures the defect, and the plaintiff shall have judgment; but the case is otherwise, if the declaration be bad, as well as the plea,  So here, the original record being full of error, the omission to demur to the insufficient plea does not prevent the taking advantage of it; because the defendant would be driven (even if the plea was not set aside) back to his defective record.
    As to the power of the attorney to release, there is no case to shew that an attorney at law has such a power. Herbert v. Alexander is an authority to the contrary.  The difference between the characters of attornies in England, and counsel in this country, is unimportant: the question as to both is to be considered according to the portion of power derived from their clients. Now, the authority of counsel, received from their clients, relates only to the conduct of a suit, not to collateral acts, or acts in pais. These must be done by attornies in fact.
    It is true that an attorney at law may release a surplus of damages; hut this is because he has no power given him to demand more than the damages mentioned in the writ. In that case, too, there is a necessity for the attorney to execute the release, to prevent error in the judgment. But no necessity existed for the attorney’s executing this release, since his client might have done it afterwards.
    The attorney in this case, if he could have executed the release, should have done it in the name of his client, and on his behalf; not in his own name; the case being similar to that of a partner binding the company; as in Shelton v. *Pollock and Co.  Besides, could Boyd release for the wives, even if he could for the husbands? A husband cannot release an erroneous judgment against the wife, because her body may be taken to satisfy it.
    The same objection applies to the other release also, which was executed by the husbands, and cannot bind the wives. That release, too, is only to the judgments on the forthcoming bonds, not to the original judgments.
    Hay, to. the las't mentioned objection, said, that the appellants ought not to be permitted to take advantage of it; for it was their duty to have complied with the order of the Court of Chancery, and executed the release correctly; and it was not in the power of the plaintiffs at.law to have seen that it was done right. They therefore cannot avail themselves of their own error.
    This Court has shewn great liberality in discountenancing nice objections to forthcoming bonds, and ought to follow a similar course in cases of this sort.
    Curia advisare vult.
    At March Term, 1808, another' argument took place, (in pursuance of the Court’s request,) on the single point, whether it is necessary to plead a release of errors to a writ of supersedeas.
    Williams, in support of the affirmative side of this proposition, said, that there could be no question, from the authorities cited at the last argument, but that, upon a writ of error, the release must be pleaded. He then contended, that the writ of super-sedeas was the same in its nature with the writ of error. The Legislature, in the year 17S3, appears to have considered them so,  and directed precisely the same proceedings upon both. The same reasons of convenience and policy require the pleading, in opposition to a supersedeas, of any thing extraneous to the record, as in opposition to a writ of error. At the *last term it was contended, that this Court could not have a Jury impan-elled ; but that was begging the question; for, if the District Court can do it, this Court can, the mode of proceeding being the same in both Courts, 
    
    The Court of Appeals is to give the judgment which the inferior Court ought to have given. Now, if the release is not to be pleaded, it must be excluded altogether, except in cases where it forms a part of the judgment; because this Court must act on the same record on which the inferior Court acted, whenever it either affirms or reverses. But the judgment, in case of a release, is a different one; not that the judgment of the Court below be affirmed, or reversed; but that the writ of error be dismissed, or the supersedeas quashed.
    
    Hay, contra.
    The great object of the law is to facilitate the administration of justice: yet, unfortunately, most questions before this Court relate not to the merits, but to the form of the proceedings. My clients will be deprived of a just debt, if this point be decided against them. I hope, therefore, the Court will, if possible, in this case, reconcile the principles of justice with the forms of law.
    In Ragland, the writ of error serves only as process to bring up the record. The proceedings, afterwards, are somewhat complicated and troublesome. There is, first, a scire facias ad audiendum errores; and then a plea is required, which may either be in nullo est erratum, or a release of errors. But there is no instance of a plea to a writ of supersedeas, in England. The practice is uniform there, that to a writ of error there is pleading, but not to a su-persedeas.
    On what grounds does Mr. Williams say, that the writs of error and of supersedeas are the same? A supersedeas, in England, is not to bring up the record, but only to stay proceedings. Why did our Legislature give both the remedies, if they were the same? Their object was to give the super-sedeas the same effect as to bringing up the record, “that a writ of error had, and thereby to simplify the proceedings, by furnishing a process more convenient in its form, and to which no pleadings were requisite. There is no instance, in this country, before the present, of a plea to a supersedeas. This proves the manner in which the law has been understood.
    In the case of an appeal, where the sum in controversy is not within the jurisdiction of the Court, is the party to plead to the jurisdiction? Or, in the case of a su-persedeas issuing after the time allowed for it has elapsed, is the act of limitations to be pleaded? No: in both cases the errors are rectified by dismissions on motion. Why should not the same course, without a plea, have been pursued in this case? If such a motion had been made, the Court would have dismissed the supersedeas without a Jury. Yet it is said, that, because there was no motion, but pleas were filed, the Court could not decide on them without a Jury ! Wherever the Court is authorised to decide on a motion, it is authorised to decide every question of fact incidental to it; and the putting such question in issue by a plea makes no difference. In the case of a motion on a forthcoming bond, where payment is alleged, or against a sheriff and his securities, where non est factum is alleged, it is done ore tenus, and the truth of such allegations is tried by the Court itself. In Asberry v. Calloway, a formal plea was put in; yet the Court decided without a Jury; and its deciding in that manner was not considered as error by the Court of Appeals; but the judgment was reversed on other grounds. Would this Court summon a Jury, if a release were pleaded here to an appeal? Would it not undertake to decide the fact?
    A trial by Jury is frequently not the best way of ascertaining a matter of fact. The truth of this position is striking exemplified in the Courts of Chancery, which decide without a Jury, and generally correctly. This very *case shews the inconvenience of referring some questions to Juries, since the Jury took notice of only half of the plea; yet the Court finally did right in dismissing the super-sedeas, because (exclusively of the verdict) the whole matter was before them, and they were satisfied that both judgments were intended to be released. A great advantage attends the practice of dismissing on motion only, viü. that, if such dismission be obtained improperly, the Court may set it aside, on motion also.
    Call, in reply.
    There can be no reason for a plea in the case of a writ of error, that does not apply with equal force to a supersedeas. The two writs are, in form, the same, or nearly so. The writ of error commands the record to be certified into the superior Court; and the next step is a scire facias to hear errors. The writ of supersedeas combines both together; commands the sheriff to supersede the judgment, and to give the defendant notice to hear errors. The analogy is perfect; the only difference being, that, in one case, there are two writs; in the other, only one. The object is the same, the effect the same; for if error, not assigned, be discovered in the record, the Court may reverse in both cases, 
    
    JUDGE ROANE. Suppose the judgment to be erroneous in matter of fact.
    Call. The remedy is by writ of error coram nobis, not by supersedeas; and this seems to be the only reason for retaining the writ of error in our statute book; its object being sufficiently answered, in every other instance, by the supersedeas. In a super-sedeas, the petition assigns the errors: on a writ of error, errors are filed.
    The object being the same, the defence ought to be the same. The argument that you cannot have a Jury here, goes as far to the destruction of the writ of error as of the supersedeas. Yet you certainly have the power to issue a *writ of error. Bates v. Gordon  was a writ of error; and that, when the Court of Appeals consisted of all the Judges, was the usual mode of proceeding.
    The party has a right, by the Constitution, to trial by Jury, whether it be the best way of ascertaining truth, or not. All pleas tendering an issue in fact must conclude to the country,  There are two distinct kinds of pleas to every writ of error or supersedeas; either of matters of law, or of fact. Where it is a matter of law, (as “no error,”) the Court is to decide ; where matter of fact, (such as infancy, coverture, the act of limitations, a release, &c.) the Jury are to decide.
    A motion to quash the writ of error, or supersedeas, cannot be made on either of those grounds ; there being only one solitary instance where the Court may quash upon motion : that is, for the want of jurisdiction ; the case having been coram non judice from the beginning: but, there, the objection appears in the record itself.
    As to the case of a forthcoming bond, I think Mr. Hay is wrong; but it is not necessary to argue it; for, whether he is right or wrong, there is no analogy between the cases. A forthcoming bond is a mere easement to the defendant, who has already had the advantage of a trial at law. By giving such bond, he voluntarily waives his constitutional right of trial by Jury. No-injustice, therefore, is done him.
    If this Court cannot summon a Jury, the cause ought to be remitted to the District Court to try the fact, as the House of Lords does to the King’s Bench.
    It is said that, in England, there are no pleadings to a supersedeas. Agreed: but the reason is plain: that writ, there, is only auxiliary, and directed to the sheriff, not to the party. The plea, therefore, is always put in to the scire facias to hear errors.
    Another argument is conclusive, that pleadings in this case were necessary. Every remedy created by a statute ought to be assimilated to the common law rules of proceeding, *’as nearly as possible. The proceedings on our writ of supersedeas ought, therefore, to be the same with those on a writ of error, as the statute does not point them out.
    Curia ulterius advisare vult.
    
      
       2 Ed. Ray. 1005; 1 Salk. 288, S. G
    
    
      
       2Rtr. 1215.
    
    
      
       2 Ed. Ray. 1046 — 1052.
    
    
      
       8 Go. Rep. 152 b.
    
    
      
       Cases temp. Hardw. Dublined 380 — 333.
    
    
      
       Lamp v. Williams, 1 Salk. 89; Beecher v. Sir Thomas Shirley, Oro. Jac. 211, 8 Co. Rep. 58 a. S. C. See also 3 Salk. 245.
    
    
      
      
         8 Co. Rep. 58 b.
    
    
      
       3 Vin. 302; 2 Inst. 378; 1 Salk. 89. Burr v. Atwood.
    
    
      
       5 Bac. Abr. Gwil. edit. 682.
    
    
      
       1 Wash. 10, Hudson v. Johnson.
    
    
      
       See also Branch v. Burnley, 1 Call, 147.
    
    
      
      b) lb. 154, and 1 Wash. 10.
    
    
      
       Lamb v. Williams, 1 Salk. 89.
    
    
      
       18 Vin. 385.
    
    
      
       Co. Lit. 264 b.
    
    
      
       P. 688, Philad. ed..
    
    
      
      
         2 Saund. Jaques v. Cesar from 101 a to 101 z.
    
    
      
       101 a.
    
    
      
       101 f.
    
    
      
       101 g. and Tidd’s Pract. Forms, (Albany ed.) p. 298.
    
    
      
       101 g.
      
    
    
      
       2 Saund. 101 s — t.
    
    
      
       1 Wash. 155; Stevens v. Taliaferro. See, as to the form of pleading- a release of errors, and of joining- issue, Tidd's Prac. Forms, 813.
    
    
      
      
         1 Salk. 86.
    
    
      
       1 Salk. 89. 3 fid. Raym. 1142, Earl of Yarmouth v. Russell.
    
    
      
       1 Bl. Rep. 8,Powelv. Little; Doug. 624, Yates v. Freckleton.
    
    
      
       Gas. temp. Hardw. (Dublin ed.) 330 — 333.
    
    
      
       Lilly’s Entries, 229, 230; Rastall, 304.
    
    
      
       Cases temp. Hard. (Dublin ed.) 333.
    
    
      
       1 Call. 257.
    
    
      
       6 Mod. 208.
    
    
      
       2 Call, 498.
    
    
      
       Here Messrs. Hay and Hening- observed, that the gronnd of that decision was. that Mr. Randolph was not attorney for the party for whom he made the agreement. — Note in Original Edition.
    
    
      
       1 Hen. and Munf. 423.
    
    
      
       Acts of 1753, c. 1, sect. 25, 26, 27; Virginia Laws, edit. 1769, p. 301. 303.
    
    
      
       Rev. Code, 1 vol., p. 62, sect. 14.
    
    
      
       lb. p. 63, sect. 19.
    
    
      
       1 Lilly’s Entries, 229; 1 Str. 127, 683.
    
    
      
       1 Wash. 72.
      
    
    
      
       See 1 Call, 329, Wood v. Bouglian.
    
    
      
       1 Wash. 117, White v. Jones.
    
    
      
       3 Ca.ll 555.
    
    
      
       Yelv. 58, King v. Gosper and Shire: 2 Str. 837.
    
   Tuesday, April 19. The Judges delivered their opinions.

JUDGE TUCKER.

This was a super-sedeas to a judgment of the County Court of Frederick obtained by the appellees, Wilson and Dunlap, against the appellants as heirs and devisees of John Hite, deceased, in the County Court, to which the appellants obtained a writ of supersedeas.

Wilson and Dunlap appeared by their attorney and pleaded first, a release by Elsha Boyd as attorney for the Hites, &c. of all errors in the proceedings at law prior to the rendition of the first judgment, and, secondly, a release by Th. Lee, A. P. Buchanan, and Edward Gaunt, being the husbands of the females aforesaid, (who were not before named,) of all errors in the judgment on a delivery bond, taken upon an execution sued out on the first judgment. The record then proceeds, “which pleas the said Theodorick, &c. join, and the same is, continued,” &c. on which day came a Jury, who, being sworn to try the issues, returned a special verdict as to the first; but took no notice of the second. The Court gave judgment in favour of the defendants in error, Wilson and Dunlap; from which judgment the plaintiffs in error appealed.

In the argument of this case a question arose whether a defendant in error can be admitted to plead a release of errors to a writ of supersedeas.

The tenor of the writ of supersedeas, independent of authorities, would seem to settle this question. The sheriff is commanded to supersede from his execution because the judgment for cause of error is removed before the Superior *Court to be corrected. And he is further

commanded to give the defendants notice to be before that Court to have a rehearing. This operates, in fact, as a writ of error granted by a single Judge out of Court; as is well explained in 1 Wash. 117, 118, White v. Jones, and 2 Wash. 162, 163, Bee v. Turberville. That a release of errors may be pleaded to a writ of error, and that it ought to be so pleaded, as that the plaintiff may take issue upon it, is clearly proved by the books, And the rule is, that if, in error, a release is pleaded, and found for the plaintiff in error, yet if there is no error, the Court cannot reverse the judgment: and, if the release be found for the defendant, a different judgment must be given, according as the error assigned is sufficient or not; for, if it is a good error, the judgment must be that the plaintiff be barred of his writ of error, and not that the first judgment be affirmed, I therefore conclude that a release of errors may be pleaded to a writ of supersedeas.

As to the substance of these pleas I shall say nothing at present. The plaintiffs might have demurred to them, if they thought them defective in either form or substance. But the record tells us they joined. This is precisely like ' the case of Stevens v. Taliaferro, the pleas in which concluded, as these pleas do, with a verification; and then the record stated, “and thereupon issue was joined by the parries. ” Yet, this Court held there was in fact no issue joined; and affirmed the judgment of the District Court which had for that cause awarded a repleader. In that case the Court held the plea to be good, and therefore awarded a repleader only back to the plea. In Smith v. Walker the declaration being bad, this Court did not award a repleader. In the present case, without deciding upon the substance of either plea, I am inclined to think both defective in point of form. This might have been brought regularly before the Court by a demurrer; but, as the parties have chosen to contest the fact of the releases pleaded, rather than the law with respect to them, I think we ought to award the repleader, as far back as to the supersedeas.

*If, however, the Court should think that no repleader ought to be awarded, I still shall be of opinion that there ■ought to be a new trial. The Jury have found nothing as to the second plea; and, whether that plea be material or not, we can do no more than set aside the verdict for this omission. The case of Cooke v. Simms, clearly shews that where any issue in fact remains to be tried, or otherwise disposed of, the Court will remand the cause for such further proceedings as the parties may be advised to pursue.

Upon these grounds, I am of opinion that rhe judgment be reversed; the verdict and pleadings, including the pleas, set aside, and the cause remanded to the District Court, and a repleader be awarded there, if the parties should think proper to plead de novo.

JUDGE) ROANE).

The supersedeas obtained in this case, is on the ground of errors in point of law existing upon the face of the record. It does not therefore involve the question whether a supersedeas will lie for errors in point of fact existing at the time of the judgment; such as nonage, death of the plaintiffs, &c. Whenever that point, which has never been decided in this Court, shall occur, it will be important to consider whether the jurisdiction of the Court in granting supersedeas is.not limited by the criterion established by the certificates of counsel in such cases; namely, to errors apparent on the face of the record only. On this point I now give no decided opinion; but it is evident that if such be deemed the true construction upon this subject, no injury is done to parties, for they may still proceed, in the other case by way of writ of error.

It is said that in this case, the release should not be pleaded, but that the Court should quash the supersedeas as having improvidently issued. In those cases whére this has been done, in this Court, it plainly appeared on the face of the judgment or proceedings themselves that the writ ought never to have issued.

*In the case of Gaskins v. The Commonwealth, for instance, by reference to the judgment, and the general rule of limitation, it plainly appeared that the supersedeas was barred by time, and consequently ought not to have issued; and in Burwell v. Anderson it was evident from the record itself, that there existed no judgment in that case to justify the supersedeas: but, in the case before us, while the record exhibited to the Judge seems to teem with error upon the face of it, it only appeared subsequently, upon pleading the release, or, at most, upon the coming in of the new record upon the certiorari, which (perhaps irregularly, as it properly appertained to the Chancery side of the proceedings) introduced the injunctions which had been obtained and the releases of errors granted thereupon, that the supersedeas was thereby probably barred: but ought this Court now to say, that the Judge of the District Court, taking the existence and the validity of the releases for granted, when they were neither exhibited nor pleaded, ought not to have granted the supersedeas, and that it ought now to be quashed as having improvidently issued?

I will now cite two cases which were not mentioned in the argument, and which seem to answer perhaps all the other objections taken in the case before us.

The case of Gomez Serra v. Munez was a writ of error depending in the Exchequer Chamber, a Court of Error, like this, having no original jurisdiction, and consisting, I believe, of all the Judges, The defendant, in error moved the Court of Chancery for a supersedeas to the writ of error, on affidavit that he had a release of errors which he could have no benefit of in the Exchequer Chamber for want of power in that Court to try the release. It was answered by the counsel for the plaintiff in error that it was a vulgar error to imagine that they (the Exchequer Chamber) could not try it, for that the stat. 27 Eliz. 8, had given them power “to examine all errors, and therefore to reverse or affirm as the law shall require,” and that it was the highest absurdity to imagine a Court to be so constituted *as to be obliged to reverse a judgment for an error which the party (having given a release) has no right to assign: that besides, the notion that they cannot by a release, proceeds from confounding the case of a release of errors, with that of assigning errors in fact, and concluding from thence that he cannot plead a release, &c. And per King, Chancellor, ! !I think it a great absurdity to imagine that the Court which is to hold plea on a writ of error, should not have power to do justice by giving the party the benefit of his release: 1 think they may try the release and award a venire under the seal of the Court of Exchequer, and if they may, I see no reason why I should deprive the party of the benefit of the trial by Jury by inquiring into the validity of the release upon a motion to supersede the writ. I will make no order in the case.”

This case goes beyond the one at bar: it even extends to the case of a supersedeas taken to this Court: but the case before us is to be considered merely in relation to the proceedings by the District Court, which can be under no difficulty in impanelling a Jury to try the validity of the release.

In the case just cited, however, the release pleaded was a mere private one: but in 3 Atk. 297, it appears that on a writ of error to the Exchequer Chamber, a release precisely similar to the one before us (namely, a release granted in obtaining an injunction) was pleaded. These two cases therefore seem in all points, to come up to the case before us.

As to the pleas in the present case, the record does not shew that any issue was joined thereupon; nor, if so, whether it was an issue in law or in fact: it merely says that they “joined such pleas.” This I infer to have been no issue, upon the authority of Stevens v. Taliaferro, adm’r of Thornton; nor has the verdict of the Jury answered to the second plea. I am therefore of opinion that a repleader ought to be awarded; and as both pleas are probably defective *m point of form, and the first is also defective in point of substance, in not averring that the release signed by Elisha Boyd, the attorney, was for the purpose of obtaining an injunction, I think the repleader ought to go up to the writ of supersedeas itself.

JUDGE EEEMING

concurring, the judgment was reversed; all the proceedings back to the supersedeas set aside; and a repleader awarded. 
      
       2 Lord Raym. 1005, 1046, 1052; 2 Salk. 268 ; 2 Strange, 1215; Ca. temp. Harflw. 345; Bac. Abr. Title Error, L.
     
      
       2 Ld. Ray, 1005 — 1006.
     
      
       1 Wasti. 155.
     
      
       Vide 2 Call, 279, Kerr v. Dixon.
     
      
       1 Wash. 135.
     
      
       2 Call, 39 and 357.
     
      
       l Call, 202.
     
      
       2 Wash. 194.
     
      
       Stra. 808.
     
      
       3 Bl. Com. 56.
     
      
       Case 105, Anonymous.
     
      
       1 wash. 155.
     