Chase v. Hodges

Burnside, J. — The statute of 17 Charles 2, chap. 8, made perpetual by 1 James 2, chap. 17, sect. 5, enacts, that when either party dies between verdict and judgment, the death shall not be alleged for error, so that the judgment be had within two terms after verdict. Robert’s Digest, 309; 6 Serg. & Rawle, 126; Murray v. Cooper. [His honour here stated the facts of the case.] In Hopkins et al. v. Wrigglesworth, 2 Levinz, trespass and judgment against the defendant in the Exchequer Chamber, and assigns for error the death of the defendant before the first judgment. The defendant in error pleads in nullo est erratum, which confesses error in fact; but the court affirmed the judgment, for the Court of Exchequer had nothing to do with the error in fact. It is a general rule, that nothing can be assigned for error that contradicts the record. 2 Bac. [49] Ab. 489; Rolle Ab. 787, and note to 2 Ld. Raym. 1415; Murray v. Cooper, 6 Serg. & Rawle, 126. Here the defendant Morse had all the advantage of the writ of error. The plaintiff was delayed, and the recognisance of the defendant in this action became absolute by the affirmance of the judgment that he, Hodges, would pay the debt and damages. The judgment is reversed, and judgment entered for the plaintiff on the case stated.