P. L. 762.

16 June 1836 § 8. or by any other person suing or defending in a representative character: And provided, 2. That if a writ of error in any such case shall be issued, served, and bail Executors, admin- entered as aforesaid, within three weeks (i) from the day on which the judgment istrators or guard- shall be entered, such writ of execution shall be stayed and superseded, upon the ians need not give payment of costs, although the service or execution thereof shall have (been) begun ;

bail in error. When to be a supersedeas.

13 June 1840 § 10. P. L. 692.

Assignees for creditors need not give

bail in error.

15 March 1847 § 1. P. L. 361.

and if such execution shall have been fully executed, (k) the defendant therein may have from the court which issued the same, a writ of restitution of the proceeds thereof, as the case may require.(1)

27. The provisions of the 31st section of the said act of the 16th of June 1836, relative to reference and arbitration, and the first proviso of the 8th section of the act of the 16th of June 1836, entitled "An act relating to executions," be and the same are hereby extended to the assignee of voluntary assignments, for the benefit of creditors, whenever such assignee shall enter an appeal, or sue out a writ of error, under the provisions of the 9th section of the present act.

28. When any corporation (municipal corporations excepted), being sued, shall appeal or take a writ of error, the bail requisite in that case shall be taken absoBail to be given by lute, for the payment of debt, interest and costs on the affirmance of the judgcorporations. ment.(m)

21 March 1849 § 3. P. L. 216.

Foreign corporations to give additional security.

16 June 1836 § 11. P. L. 787.

Record to be remitted for execution.

Or execution may be directed to issue

from the supreme court.

14 April 1870 § 1. P. L. 72.

29. In all suits or actions hereafter to be brought in any court of record of this commonwealth, against any foreign corporation, or body corporate not holding its charter under the laws of this commonwealth, every judgment, verdict or award rendered against such corporation, shall be final and conclusive, unless the said defendants, in addition to the usual proceedings in cases of appeal, shall give good and sufficient bail, in the nature of bail absolute, for the payment of such sum or sums as shall be finally judged to be due to the plaintiff or plaintiffs, together with interest and costs thereon.(n)

IV. Of the subsequent proceedings.

30. As soon as the supreme court shall have rendered judgment, or made a final decree or decision in any cause, action or matter brought into the same by writ of error, certiorari or appeal, such court shall order the records thereof, with their judgment or decree thereon written and duly certified, to be remitted to the appropriate court, (o) which judgment, decree or decision such court shall duly carry into execution and effect;(p) or the said supreme court may, if they see cause, order execution thereof to be done by process issued out of the same, and thereupon order the record to be remitted, as aforesaid.

31. Whenever the record of a case has been left remaining, in the supreme

(i) A writ of error, although issued after three weeks, is a supersedeas, if execution be not actually executed. Bryan v. Comly, 2 M. 271. Adams v. Hindman, Ibid. 464. McDonald v. Gifford, 1 Brewst. 278; s. c. 6 Phila. 315. That is, actually levied on real or personal estate. Patterson v. Juvenal, 1 T. & H. Pr. 844. A fi. fa. returned nulla bona, and an alias fi. fa. returned stayed, will not hinder the supersedeas of a writ of error. Roberts v. Springer, cited 1 Phila. 172. But where there has been a fi. fa. and condemnation, and vend. exp., but no sale, a writ of error is not a supersedeas, unless issued within three weeks of the judgment. Bozarth v. Marshall, 1 Phila. 172. plaintiff in error may have a second writ of error, after a non-pros, but it is not a supersedeas. Sheerer v. Grier, 3 Wh. 14. Power v. Frick, 2 Gr. 306. ' writ of error, with security, operates as a supersedeas of an attachment-execution. Supplee v. Reznor, 1 W. N. C. 20.

A

A

(k) The act 11 March 1834, which appears to be supplied by this section, provided, that a writ of error from the supreme court shall be a supersedeas in all cases, although an execution may have been issued and executed; Provided, That said writ of error be issued, served, and bail entered within three weeks from the day on which judgment shall be entered." P. L. 125. The pendency of a writ of error is no bar to a scire facias or action of debt upon the judgment. Falkner v. Franklin Insurance Co., 1 Phila. 183. And an action of debt will lie on a foreign judgment, notwithstanding the pendency of an appeal from the decision of the foreign court. Merchants' Insurance Co. v. De Wolf, 33 P. S. 45.

(1) The act 8 June 1881, P. L. 80, providing that no appeal should be entered in any case without security for costs, was repealed by the act 21 May 1885, P. L. 22.

(m) A corporation may have a writ of error, without bail, but it is no supersedeas. Savings Institution V. Smith, 7 P. S. 291. But this is now altered as to foreign corporations, by act 21 March 1849, infra 29; and as to stage companies and all joint-stock com

panies not incorporated, when the members of said companies do not reside within the commonwealth, by act 15 April 1851, P. L. 675. See tit. "Corporations."

(n) See tit. " Corporations."

(0) No further proceedings can be had in the court below, until the record be actually returned to it. Cox's Administrator v. Henry, 36 P. S. 445. See Gibbons v. Sheppard, 2 Brewst. 122. The act 23 February 1824, P. L. 27, provides, that in all cases in which a judgment on an award of arbitrators may be reversed by the supreme court, the said court may order the record to be remitted to the court below, in order that such further proceedings may be had therein, as the justice of the case may require.

(p) Where the court reverses a judgment, and awards a venire de novo, it has power to impose terms as to costs; if none be imposed, they abide the event of the suit. Work v. Maclay, 14 S. & R. 265. On reversing a judgment and execution, the court will not suspend the award of restitution, for the purpose of directing an issue to try the merits. Ranck v. Becker, 13 S. & R. 41. But they will award restitution only of what the defendant in error has actually received. Cassell v. Cooke, 8 S. & R. 296. A judgment of restitution is conclusive of the matter adjudicated by it. Breading v. Blocher, 29 P. S. 347. It is not merely collateral to the judgment of reversal, but a part of the judgment itself. Duncan v. Kirkpatrick, 13 S. & R. 294. A writ of restitution creates a lien on goods, from the time it goes into the sheriff's hands, and on lands, from the time of the levy. Appeal, 2 R. 37. A writ of restitution, however, will not be awarded, where it is against equity and justice. Fitzalden v. Lee, 2 Dall. 205. McGee v. Fessler, 1 P. S. 131. Grant v. Rodgers, 6 Phila. 132. But though the supreme court refuse to make an order of restitution, yet if a second trial result in a verdict and judgment for the defendant, the money paid may be recovered back in assumpsit. Travellers' Ins. Co. v. Heath, 95 P. S. 333.

Boal's

court, in the western district, for a period of three years after a final decision 14 April 1870 § 1. thereon, the prothonotary may remit the same, with certificate of the proceedings, P. L. 72. to the court below, whence it arose, and shall be entitled to charge therefor to the Prothonotary of county in which the court below is, the sum of three dollars in full of all fees remit records after due him in the case, to be paid to him by the county commissioners in the usual three years.

32. The prothonotary, when so remitting the records, shall tax on the face of his certificates the full amount of the fees he would be entitled to receive from the parties, and shall furnish a list of the cases remitted to the district-attorney, or the from the person attorney of the county commissioners, whose duty it shall be to enter his appear- liable, by execuance for the county, and to proceed forthwith, whenever practicable, by execution or otherwise, to collect for the use of the county, from the parties liable therefor, the full amount of the fees so taxed as aforesaid; and no person shall be allowed to avail himself in the court below of any such record, until the fees so taxed shall have been paid for the use aforesaid.

33. In all cases in which a writ of error or an appeal from a decree in equity 25 May 1874 § 1. shall (q) delay the proceedings on the judgment of the inferior court, and in the opinion of the supreme court the same shall have been sued out merely for Power to award delay,(r) damages at the rate of six per centum per annum shall be awarded upon damages, and the amount of the said judgment or decree, by the said supreme court; and an attorney fee of twenty dollars, and the cost of printing the paper-book of the defendant in error or appellee, shall be taxed and collected as part of the costs of suit.(s)

V. Writs of certiorari to justices of the peace.

34. No writ of certiorari issued by or out of the supreme court, to any justice of 20 March 1810 § 24. the peace, (t) in any civil suit or action, (u) shall be available to remove the proceedings had before such justice of the peace. (v).

35. In all cases either party shall have the privilege of removing the cause, by Ibid. § 22. writ of certiorari,(w) from before any justice, whose duty it shall be to certify the whole proceeding had before him, by sending the original precepts, a copy of the Duty of justice on receipt of certijudgment, and execution or executions, if any be issued: Provided always, That orari. the proceedings of a justice of the peace shall not be set aside or reversed, on certiorari, for want of formality(x) in the same, if it shall appear on the face assigned for error thereof, that the defendant confessed a judgment for any sum within the jurisdiction of a justice of the peace, or that a precept issued in the name of the commonwealth of Pennsylvania, requiring the defendant to appear before the justice, on some day certain, (y) or directing the constable to bring the defendant or defendants forthwith before him, agreeably to the provisions and directions con

5 Sm. 172.

In case of execution.

20 March 1810 § 22. tained in this act, and that the said constable, having served the said precept,(z) judgment was rendered, on the day fixed in the precept, (a) or on some other day, to which the cause was postponed by the justice with the knowledge of the parties. And no execution issued by a justice shall be set aside for informality, if it shall appear on the face of the same, that it issued in the name of the commonwealth of Pennsylvania, after the expiration of the proper period of time, and for the sum for which judgment had been rendered, together with interest thereon, and costs, and a day mentioned (b) on which return is to be made by the constable, and that the cause of action shall have been cognizable before a justice of the peace. (c) And the judgment of the court of common pleas shall be final on all proceedings removed as aforesaid, (d) by the said court, and no writ of error shall issue thereon.(e)

Judgment of the common pleas to be final.

Ibid. § 21. Party to make oath.

Limitation.

Ibid. § 25.

reversal on certiorari.

36. No judge of any court within this commonwealth, shall allow any writ of certiorari to remove the proceedings had in any trial before a justice of the peace, until the party applying for such writ (g) shall declare, on oath or affirmation, before such judge, (h) that it is not for the purpose of delay, but that in the opinion of the party applying for the same, the cause of action was not cognizable before a justice, or that the proceedings proposed to be removed, are, to the best of his knowledge, unjust and illegal, and if not removed, will oblige the said applicant to pay more money, or to receive less from his opponent than is justly due:() a copy of which affidavit shall be filed in the prothonotary's office: Provided, That no judgment shall be set aside in pursuance of a writ of certiorari, unless the same is issued within twenty days(k) after judgment was rendered, and served within five days thereafter;(1) and no execution shall be set aside in pursuance of the writ aforesaid, unless the said writ is issued and served within twenty days after the execution issued.

37. In all cases where the proceedings of a justice of the peace shall be removed Of the costs after by certiorari, at the instance of the plaintiff, and the same be set aside by the court, and on the second trial being had before the same, or any other justice of the peace, if judgment shall not be obtained for a sum equal to or greater than the original judgment, (m) which was set aside by the court, he shall pay all costs accrued on the second trial before the justice of the peace, as well as those which accrued at the court before whom the proceedings have been set aside, including any fees, which the defendant may have given any attorney, not exceeding four dollars, in such trial, together with fifty cents per day to the said defendant, while attending on the said court in defence of the proceedings of the said justice of the

(z) Where the defendant did not appear before the justice, it must appear by the record, that the process was served in the manner required by law, otherwise, the judgment will be reversed. Frailey v. Sparks, 2 Pars. 232. Buchanan v. Specht, 1 Phila. 252. See Hastings v. Farmer, 4 N. Y. 296. Barnes v. Harris, Ibid. 379, 383. Unless process be served before the return-day, the proceedings are coram non judice. Fisher v. Longnecker, 8 P. S. 410.

(a) A justice may give judgment before the returnday, if the party voluntarily appear, and consent to the hearing. Buckmyer v. Dubs, 5 Binn. 29.

(b) See Lewis v. Jones, 1 Ash. 53-55.

(c) The court will call in the aid of affidavits, to ascertain whether the justice has exceeded his jurisdiction. Burginhofen v. Martin, 3 Y. 479. Ohio and Pennsylvania Railroad Co. v. Brittian, 1 Pitts. 271. It is never too late to attack a judgment void for want of jurisdiction. Adams v. Hill, 29 L. I. 126. McNaught v. Swing, 1 Chest. Co. R. 467.

(d) See Borland v. Ealy, 43 P. S. 111. This only applies to a judgment on a certiorari issued under the act of 1810; where a subsequent act confers jurisdiction on justices of the peace, to proceed in a different manner from that directed in that act, the judgment of the common pleas, on certiorari, may be re-examined by the supreme court. Commonwealth v. Burkhart, 23 P. S. 521. Zimmerly v. Road Commissioners, 25 Ibid. 134. It does not apply to proceedings under the landlord and tenant law. Clark v. Yeat, 4 Binn. 185. And see Cooke v. Reinhart, 1 R. 317.

(e) See Cozens v. Dewees, 2 S. & R. 112. Johnson v. Hibbard, 3 Wh. 12. Silvergood v. Storrick, 1 W. 532. Castor v. Cloud, 2 W. N. C. 252. The act 7 July 1879, P. L. 194, enlarging the jurisdiction of justices, does not give the right to a writ of error. Stewart v. Lindsay, 3 Penny. 85. Pennsylvania Pulp Co. v. Stoughton, 106 P. S. 458. Palmer v. Lacock, 107 Ibid. 346.

(g) Or his agent or attorney: see supra 23. (h) Or before the prothonotary: see infra 38. (i) The affidavit must substantially follow the words of the act. See Benner v. Ducoing, 1 Bro. 217.

Monell v. Phillips, 1 T. & H. Pr. § 891. For form of affidavit, see Graydon's Forms 38.

(k) If this provision be not observed, the court will not look into the judgment, even if it do not appear from the record that the summons was served, if within twenty days the defendant had knowledge of the proceedings, and applied to have the judgment opened. Dailey v. Bartholomew, 1 Ash. 135. If, however, it be apparent on the face of the record, that the justice had no jurisdiction, or that the summons was not served in the manner directed by the act of 1810, and the defendant did not appear, the court will reverse the proceedings, on certiorari, notwithstanding more than twenty days may have elapsed before the issuing of the writ; where there is no legal service of the process on the defendant, he is not in court, and all the subsequent proceedings are erroneous and void. Offerman v. Downey, Com. Pleas, Phila., Oct. 1849. MS. Tryon v. Keller, Com. Pleas, Phila.. 2 Oct. 1852. MS. Lacock v. White, 19 P. S. 495. Fritz v. Fisher, 5 Clark 350. Ohio and Pennsylvania Railroad Co. v. Brittian, 1 Pitts. 271. Love v. North Branch Canal Co., 2 Luz. L. Obs. 28. Dicks v. Carter, 21 L. I. 340. McCale v. Culp, 8 Phila. 636. Paine v. Godshall, 29 Leg. Int. 12. Ingham v. Sickler, 2 Luz. L. Reg. 105. But, in such case, the party must satisfy the court that this application was made within twenty days after the fact of the entry of the judg ment had come to his knowledge. Campbell v. Penn District, Com. Pleas, Phila., 19 March 1853. Dailey v. Bartholomew, 1 Ash. 135. Brookfield v. Hill, 1 Phila. 439. The fact that notice was not given may be proved by parol. Lacock v. White, 19 P. S. 495. A judgment obtained by any trick or fraud ought to be reversed, if the certiorari be taken within a reasonable time after it is discovered. Ibid. Stedman v. Bradford, 3 Phila. 258.

MS.

(1) This proviso only applies to civil suits, and an action for a penalty for a breach of ordinance is not included. Caughey v. Pittsburgh, 12 S. & R. 53.

(m) This section does not extend to the reversal of an execution on certiorari. Atkinson v. Crossland, 4 W. 450.

5 Sm. 172.

peace. And in cases where the proceedings of any justice of the peace shall be 20 March 1810 § 25. removed at the instance of the defendant, and be set aside by the court, and it shall appear that he attended the trial before the justice, or had legal notice to attend the same, and on a final trial being had as aforesaid, the plaintiff shall obtain judgment for a sum equal to or greater than the original judgment, which was set aside by the court, he shall pay all costs accrued on the second trial before the justice of the peace, as well as those which accrued at the court before whom the proceedings have been set aside, including any fees which the plaintiff may have given to any attorney, not exceeding four dollars, to defend the proceedings of the justice, together with fifty cents per day while attending at court on the same; which cost shall be recovered before any justice of the peace in the same manner How recoverable. as sums of similar amount are recoverable; and in such cases, the legal stay of execution shall be counted from the date of the original judgment rendered by the

justice of the peace. And the court shall, at the term to which the proceedings of Certiorari to be the justices of the peace are returnable, in pursuance of writs of certiorari, deter- decided at the first mine and decide thereon. (n)

term.

6 Sm. 398.

38. The prothonotaries of the several courts of common pleas are hereby respec- 8 Feb. 1817 § 1. tively authorized and empowered to administer the oath or affirmation required by the 21st section of the act to which this is a further supplement, to be taken on Prothonotaries the issuing of any writ of certiorari; which oath or affirmation so administered, may administer oath. shall have the same force and effect as if administered by a judge of any of the said courts.(o)

landlord and

39. In every proceeding or suit brought, in the city of Philadelphia, under any 24 March 1865 § 1. of the several acts of this commonwealth, by landlords to recover possession of P. L. 750. property leased for a term of years, or from year to year, in which a certiorari is Certiorari to be a not allowed, the said certiorari shall be a supersedeas;(p) and the execution upon supersedeas in the judgment in the said suit or proceeding shall be suspended until the final Philadelphia in determination of the certiorari by the court out of which the same issues;(q) tenant cases. and the said court, if the said determination shall be made adversely to the party at whose instance the writ of certiorari has issued, shall proceed to issue a writ of possession directed to the sheriff of the county of Philadelphia, directing him to deliver actual possession of the premises to the lessor; and also to levy the costs on the defendant in the same manner that costs are now by law levied and collected on other writs of execution: Provided, That the said certiorari shall be issued Oath. within ten days from the date of the judgment rendered in said proceedings, and upon oath of the party applying for the same, to be administered by the prothonotary of the court of common pleas, that it is not for the purpose of delay, but that the proceedings proposed to be removed are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due; a copy of which affidavit shall be filed in the prothonotary's office: And pro- Security. vided further, That the party applying for the same shall give security for the payment of all costs that have accrued or may accrue, and of the rent which has already or may become due up to the time of the final determination of said certiorari, in the event of the same being determined against him.(r)

VI. Error in criminal cases.

P. L. 439.

40. Every person indicted in any court of quarter sessions, or in any county 31 March 1860 § 38. court of oyer and terminer and general jail delivery, may remove the indictment, and all proceedings thereon, or a transcript thereof, into the supreme court, by a How indictments writ of certiorari, (s) or a writ of error, as the case may require;(t) Provided, may be removed. That no such writ of certiorari, or writ of error shall issue, or be available to remove the said indictment and proceeding thereupon, or a transcript thereof, or to stay execution of the judgment thereupon rendered, unless the same shall be specially allowed (u) by the supreme court, or one of the judges thereof, upon sufficient cause to it or him shown,() or shall have been sued out, with the consent

(n) Where the certiorari is non-prossed, the record must be remitted to the justice for further proceedings: a scire facias will not lie upon the judgment of non-pros. Welker v. Welker, 3 P. & W. 21. Tobin v. Griffith, 1 Leg. Rec. R. 264. A will of court making a certiorari returnable within twenty days is invalid. Overseers v. Overseers, 2 C. C. 340.

(0) The prothonotary is also empowered to take the necessary recognizance of bail in error. Clark v. McCormack, 2 Phila. 68.

(p) This does not extend to proceedings by a purchaser at sheriff's sale, under the act of 1836. Jachson v. Gleason, 6 Phila. 307. But see act 24 March 1865, tit. "Landlord and Tenant," as to Philadelphia.

(9) No writ of possession can be issued by the alderman, until the expiration of the ten days allowed for a certiorari. Connelly v. Arundell, 6 Phila. 38.

(r) Unless the recognizance be given in the form prescribed by this act, the certiorari will be quashed.

Hutchinson v. Vanscriver, 6 Phila. 39. The bail is liable for the rent, until the final determination of the case, or the plaintiff obtains possession. Clapp v. Senneff, 7 Phila. 214.

See Taylor v. Commonwealth, 44 P. S. 131. Commonwealth v. Frowenfield, 3 Gr. 99. The writ may be made returnable in any district. Hazen v. Commonwealth, 23 P. S. 355.

(s) See Commonwealth v. Frowenfield, 3 Gr. 99. (t) See Taylor v. Commonwealth, 44 P. S. 131. (u) The commonwealth may have a certiorari, without a special allocatur. Commonwealth v. Capp, 48 P. S. 53. Commonwealth v. Meyer, 2 S. & R. 453. Commonwealth v. McGinnis, 2 Wh. 113. So also, if the allocatur be obtained before sentence. Marsh v. Commonwealth, 16 S. & R. 319.

(r) It is never granted on mere technical matters, not going to the merits. Commonwealth v. Martin, 2 P. S. 244. Commonwealth v. Pennock, 3 S. & R.

31 March 1860 § 33. of the attorney-general; (w) which special allowance or consent shall be in writing, and certified on the said writ.(x)

P. L. 439.

Ibid. § 57. Bills of exception

41. Upon the trial of any indictment for murder or voluntary manslaughter,(y) it shall and may be lawful for the defendant or defendants to except to any and writs of error decision of the court upon any point of evidence or law, (2) which exception shall be noted by the court, and filed of record as in civil cases, (a) and a writ of error to the supreme court may be taken by the defendant or defendants, after conviction and sentence. (b)

allowed.

Ibid. §*58. Written opinions to be filed.

Ibid. § 59.

Granting of writs

42. If during the trial upon any indictment for murder or voluntary manslaughter, the court shall be required by the defendant or defendants to give an opinion upon any point submitted and stated in writing, it shall be the duty of the court to answer the same fully, and file the point and answer with the records of the case.(c)

43. No such writ shall be allowed, unless special application be made therefor, and cause shown, within thirty days after sentence pronounced; (d) and if the of error regulated. Supreme court be sitting in banc in any district, the application shall be made, and cause shown there; if the said court be not sitting, application may be made to, and cause shown before one of the judges of that court; and upon the allowance of such writ, the said court or judge shall fix a time and place for hearing the said case, which time shall not be more than thirty days thereafter; if the said court shall be at that time sitting in banc in any district of the state, the said court or judge, upon the allowance of any such writ, shall make all such proper orders, touching notice to the commonwealth, and paper-books, as may be considered necessary.

Ibid. § 60.

Whence a writ of error to issue.

Ibid. § 61.

affirmance or re

44. The writ of error shall issue from the prothonotary's office of the proper district, and all orders, decrees and judgments in the case shall also be entered of record there; but the application and final hearing may be made and had before the said supreme court while sitting in any other district.

45. Upon the affirmance of the supreme court of the judgment in any case, the same shall be enforced pursuant to the directions of the judgment so affirmed, and Proceedings after the said court may make any further order requisite for carrying the same into versal of judgment effect; (e) and if the supreme court shall reverse any judgment, they shall remand the record, with their opinion, setting forth the causes of reversal, to the proper court for further proceeding.(g),

19 May 1874 § 1. P. L. 219.

46. On the trial of all cases of felonious homicide, and in all such other criminal cases as are exclusively triable and punishable in the courts of oyer and terminer and general jail delivery, exception to any decision of the court may be

199. Sheffer v. Rempublicam, 3 Y. 39. Commonwealth v. Immell, 6 Binn. 403. Commonwealth v. Profit, 4 Ibid. 424. Commonwealth v. Earle, Wh. 525. There must be strong ground to believe that if the case be not removed, some important principle of law, or the plain justice of the case, will be violated. Commonwealth v. Mickel, 2 Phila. 147. But see Commonwealth v. Winnemore, 2 Brewst. 379, where it is said to be the duty of the court to allow the writ, in case of doubt as to the accuracy of the rulings of the court below. The commonwealth may sue out a certiorari, without an allocatur. Commonwealth v. Capp, 48 P. S. 53. See Commonwealth v. Ferrigan, 44 P. S. 386.

(w) This only applies to a common-law writ of error. Schoeppe v. Commonwealth, 65 P. S. 51.

(x) This section is taken from the 7th section of the act of 13 April 1791, 3 Sm. 30; and the 9th section of the act of 16 June 1836, P. L. 787. Report on the Penal Code 44. See tit. Errors and Appeals."

(y) A bill of exceptions to the admission or rejection of evidence, on the trial of one charged by indictment with a criminal offence, other than murder or voluntary manslaughter, is not the subject of consideration on a writ of error, although the bill may have been sealed by the court below. Middleton v. Commonwealth, 2 W. 285. But see infra 46.

(z) The prisoner must show that a substantial error was committed on the trial, in the admission or rejection of evidence, by which he has been injured; it is not sufficient, that an abstract or technical error has taken place. Fife v. Commonwealth, 29 P. S. 429. See Commonwealth v. Ferrigan, 44 Ibid. 386.

(a) The supreme court is limited to a review of the points so noted and filed of record by the court below. Fife v. Commonwealth, 29 P. S. 429. Cathcart v. Commonwealth, 37 Ibid. 108. Hopkins v. Commonwealth, 50 Ibid. 9. The act does not authorize an exception to the charge of the court. Commonwealth v. Jacoby, 1 Pitts. 490. And the judge is not bound to seal a bill of exceptions unless presented to him for settlement, within the time prescribed by the rules of

court. Haines v. Commonwealth, 100 P. S. 317; s. c. 38 L. I. 185.

(b) The supreme court is limited to a review of the points so noted and filed of record by the court below. Fife v. Commonwealth, 29 P. S. 429." Hopkins v. Commonwealth, 50 Ibid. 9.

(c) This section does require the court to write out its charge to the jury. Commonwealth v. Jacoby, 1 Pitts. 489.

(d) A writ of error issued without a special allocatur will be quashed. Commonwealth v. Meyer, 2 S. & R. 453. And so also, if the allocatur be obtained before sentence. Marsh v. Commonwealth, 16 S. & R. 319. And see Sheffer v. Rempublicam, 3 Y. 39. An allocatur is never granted on mere technical matters, not going to the merits. Commonwealth v. Profit, 4 Binn. 424. Commonwealth v. Immell, 6 Ibid. 403. Commonwealth v. Pennock, 3 S. & R. 199. Commonwealth v. Martin, 2 P. S. 244. Fife v. Commonwealth, 29 Ibid. 429. Commonwealth v. Mickel, 1 Phila. 147. No criminal cause can be removed from the courts of the city of Philadelphia, unless the writ be specially allowed by one of the judges of the supreme court. Act 8 February 1848, § 4. P. L. 26. Commonwealth v. Simpson, 2 Gr. 438, 443.

(e) On the reversal of a judgment, the supreme court may resentence the prisoner. White v. Commonwealth, 3 Brewst. 30.

(g) The courts have no power, when passing sentence, to enter a rule to reconsider their judgment, and, at a subsequent term, to alter the sentence. The wonder is, that such power should ever have been supposed to exist. Commonwealth v. Mayloy, 57 P. S. 291. But, it seems, a judgment of conviction may be set aside, during the term, though the defendant have entered upon the term of imprisonment imposed. Basset v. United States, 9 Wali. 38. And the court has power, during the term, to reconsider the sentence, and impose a severer punishment. Commonwealth v. Brown, 12 Phila. 600. Commonwealth v. Monroe, 38 L. I. 185.