INTRODUCTION xxix

in the court records such as that now published, and for further information
on the points decided resort was had to the contemporary notebooks already
mentioned, those which had been kept by lawyers in attendance upon the
court sessions.

10. REVIVAL OF FINAL APPELLATE JURISDICTION

The provisions made for revival of the final appellate jurisdiction for
which this present book was opened need to be prefaced with an explana-
tion of procedure continued by them from earlier years, or, more particu-
larly, of a peculiar distinction observed between review in common law
cases on appeals and review on writs of error, to be noted all through this
record. There had been before 1678 four methods by which proceedings
in county courts had been removed to the provincial court. Before trial in
the county court the record might be removed in an appropriate case by
a writ of certiorari, still a familiar method, or before trial and before issue
joined a case might be removed by the writ of habeas corpus ad faciendum
et recipiendum, more familiarly called the writ of habeas corpus cum causa,
that is, cum causa detentionis. Instances of removal by the latter method
will be found here in the cases of Burroughs' v. Tench, Administrator, and
Gresham v. Gassaway.¹ The writ required that the defendant be produced
in the higher court with a statement of the cause of his detention, to the end
that the cause might there be investigated, which meant, in effect, that the
cause would be tried above. After judgment, removal was effected both by
appeals to the provincial court, for trials anew in that court, or by writs of
error, which instituted reviews only of specified rulings of the court below.
Appeals and writs of error were permitted even to parties who had allowed
judgments to go against them by default, in which case, as there had been no
rulings below, the assignments of error would necessarily be general and per-
functory. Many instances of appeal or writ of error after judgment by de-
fault appear in this volume. In iGyS,² the general assembly restricted the
proceeding on appeal as well as that on writ of error to a review of specified
rulings below, thus denying for the future a trial anew. The old appeal was
left in use, nominally, but the substantial difference was no longer there.
Henceforth it was to be effected merely by lodging a transcript of the record
with the clerk of the higher court, with a statement of reasons for seeking
the review; and the writ of scire facias ad audiendum errores, and all other
proceedings, would follow as in a proceeding initiated by formal writ of
error. The reasons stated for the appeal were always treated as the equiva-
lents of the assignments of error, and sometimes the same name, " reasons "

1 Post, pp. 46 and 384; Taylor v. Lewellin (1692), i Harris & McHenry, 19; Archives,
XXX, 513; Blackstone, Comm., Ill, 130.

2 Act 1678, ch. 8, ibid., VII, 71.