Rule to assign errors. Counsel's hand not ne cessary. If special errors, contra. Joinder. term, and argue them the fourth term, provided the several rules are taken out and served without loss of time. Rule to assign Errors. If the plaintiff in error alleges diminution, then in the next term get a rule from Mr. Smith to assign errors (pay 2s. 4d.) which expires in eight days next after service. Serve plaintiff's attorney with a copy. The common errors, which are best and cheapest, are entered by Mr. Smith, pay him 8s. counsel's signature is not necessary. But if special errors are assigned, then the assignment is drawn and signed by counsel, fee 10s. 6d. ingross same on a 4d. stampt paper, and file it with Mr. Smith, pay 8s. who will give an office copy to the attorney for the defendant in error. The defendant's attorney in error will then draw the joinder, and get counsel to sign same, which also is filed with Mr. Smith, on a 4d. stampt paper, and file it with Mr. Poole. Rule to assign Roe errors. In nature of a declaration. Errors are common or special. In the Exchequer-chamber. Unless the plaintiff in the writ of error assigns error or errors, within eight days next after notice hereof, given to the said plaintiff or his attorney, a nonsuit will be entered. V. Clerk of the errors. If the plaintiff in error within the time limited by the rule do not assign errors, the defendant may apply to Mr. Smith, and he will sign a nonpros, and tax the costs, then execution may issue. Assignment of Errors. An assignment of errors is in the nature of a declaration, 2 Bac. Abr. 216. and is either of errors in fact, or errors in law. Errors in law are common, or special. The common errors are, that the declaration is insufficient in law, to maintain the action; and that the judgment was given for the plaintiff instead of the defendant. Special errors are in cases of judgment by default, the want of a bill, or warrant of attorney, or other matter appearing on the face of the record, which shews the judgment to have been erroneous. The plaintiff may assign several errors in law, but only one error in fact; and he cannot assign error in fact and error in law together. 1 Str. 439. Where there are several plaintiffs in error they must all If several plaintiffs. join in assigning errors, unless some have been summoned and served. And errors must be assigned in term, and not in vacation. Sty. Pract. Reg. 241. After in nullo est erratum pleaded, an assignment of general errors shall not be amended. 2 Mod. 304. contrary to Error cannot be assigned contrary to the record, if it is Cannot assign judgment must be affirmed. 1 Wils. 85. Bradburn v. Tay- record. lor. 1 Str. 684. Helbret v. Held. 1 Roll. Abr. 758. pl. 8. Where the matter alleged is not by law assignable, there in nullo est erratum is a demurrer in law, as the want of an original, or bill after verdict. If neither plaintiff, nor his attorney, can be found, the court will order, that the rule to assign errors fixed up in the King's Bench office, shall be good notice. Str. 417. Leeds v. Power. Of the Writ of Certiorari. If neither torney be plaintiff or atfound to serve rule. tiorari issues, In case the plaintiff in error should assign for error (after If error be asjudgment by default) the want of a bill, he should sue signed on out a certiorari to verify his errors, which is a judicial want of a writ, issuing out of the court, where the writ of error is bill, a cerdepending, directed to the chief justice of the court of King's Bench for certifying a bill, which is tested in the. name of the chief justice of the court of Common Pleas ; and it ought not to bear teste before the assignment of errors. It is to be signed by Mr. Smith and sealed. But if the plaintiff's attorney does not make out the If the plaintiff certiorari, the defendant, in error, may compel him by in error's atobtaining a rule for that purpose of Mr. Smith, serve a torney does copy on his attorney, and he must within the limited not make out certiorari, time sue out the certiorari, leave it with the clerk of the how to compel declarations in the King's Bench office, who will return him. it with a copy of the bill, which he gets the chief justice to sign, and then it is delivered over to Mr. Smith. But if no certiorari be sued and returned in the time limited by the rule, then you may, by applying to Mr. Smith, sign a nonpros, and take out execution. In case the bill should not be filed before the assign- If the bill be not filed. Can have but one writ of certiorari. After one certiorari must move court for a second. May plead or demur to an errors. ment of errors, and the same is so returned on the cer tiorari, still the defendant in error may file the bill of the term the declaration is of with the clerk of the declarations of the King's Bench, and he may afterwards sue out a writ of certiorari in the Exchequer-chamber, which is signed by Mr. Smith, then seal it; leave same with Mr. Maddock, the clerk of the declarations, who will certify the bill, and take same to the chief justice for his return, which is taken away by you and filed with Mr. Smith. The court of King's Bench will not inquire how the bill came there. See 1 Taunton Rep. 126. French v. Cook. When done you may plead nullo est erratum, and the court will when the cause is set down, affirm the judgment. There are many cases in 9 Viner 555. to this effect. 2 Ld. Ray. 1476. Com. R. 118. 1 Salk. 267. The court will apply the record to that which is good, and support the judgment. The plaintiff in error can have but one writ of certiorari. 2 Str. 765. Merrifield v. Berry. Bowers v. Mann, ib. 819. Ordered that no certiorari upon a writ of error, shall be sued out, or made, by an attorney, after a certiorari in the same cause hath been already sued out, and returned, without motion in court by counsel. R. E. 11 Car. 2. Of what Term the Original is to be. When all the proceedings are in one and the same term, an original in that term will warrant same; but an original of the term final judgment is given, will not warrant that judgment, if it appear upon the same record that there have been proceedings of a precedig term, as an interlocutory judgment. 1 Wils. 181. Dyke V. Sweeting. It is sufficient if a warrant of attorney be filed at any time pending the suit. To an assignment of errors, the defendant may plead or demur. Pleas in error are common, or special. The assignment of common plea, or joinder in nullo est erratum, or that there is no error in the record or proceedings; which is in the nature of a demurrer, and at once refers the matter of law arising thereon, to the judgment of the court. Tidd, 1085. If error be in the body of the record. If error be alleged in the body of the record, in nullo est erratum, is a good rejoinder, for this shall put the matter in the judgment of the court. 1 Roll. Abr. 763. By pleading in nullo est erratum, the defendant in error admits the record to be perfect, and neither party can allege diminution, or pray a certiorari, 1 Salk. 269. But before or after in nullo est errutum pleaded, the court ex officio may award a certiorari, 1 Salk. 269, 270. in order if possible to support the judgment without a certiorari being sued, where the want of a bill, original, or warrant of attorney is assigned for error. 2 Ld Ray. 1005. 1 Salk. 269. 2 Str. 765. 819. 907. The defendant may plead a release of errors: and such release being in the same instrument with the warrant of attorney, and dated in the term in which judgment is entered, is good. Str. 1215. Landon v. Pickering. Show. 50. 3 Atk. 29. If defendant dies after in nullo est erratum pleaded, the If the defen court may reverse the judgment, without a new writ of dant dies, error, for the writ does not abate. Show. 186. The defendant may plead the statute of limitations. Defendant Str. 1055. B. R. H. 345. If an error in fact, and an error in law be assigned, the defendant must demur; for this is double. 76. 1 Roll. 761. 1. 35. 2 Str. 975. Of arguing the Errors. (a) may plead the statute of limitations. 1 Lev. 105. When defendant must de mur. The next term, being the fourth, the defendant in error Setting down (if general errors are assigned) may plead in nullo est er- for argument. ratum, which is done by informing Mr. Smith the first day of the term, or previous thereto, (which is best): he also sets down the cause, pay 9s. 6d. and moves to affirm the judgment. N. B. You may now apply for interest to be added in the Exchequer-chamber, but such application is made by special motion in court. Wait four days after affirmance (exclusive,) then apply to Mr. Smith to tax the costs; pay according to the length of the pleadings; when the costs are taxed, issue out execution, but, before it is returnable, apply to him for the transcript, (a) If general errors are assigned there can be no argument-Therefore be careful as to this point, if an argument special errors must be assigned. And this court does not award a scire facias ad audiend. errores, not having the record before them, but notice is given to the parties concerned. 1 Vent. 34. If real errors are assigned, and are intended for argument. When copies of error and record are to be delivered to the judges of the Common Pleas, and Exchequer. How to pro ceed if cause which take to the King's Bench treasury, and file it with Mr. Edge; pay 2s. 6d. In case real errors be assigned, and the joinder filed as before stated, and it is meant that there should be an argument, the defendant's attorney in error must then obtain an office copy of the transcript, assignment, and joinder of Mr. Smith, pay him 8d. per sheet; when obtained, make a copy thereof to the end of the joinder, and deliver same to the attorney for the plaintiff in error, then set down the cause with Mr. Smith, pay him 9s. 6d. there is no necessity to move for a concilium. In this case the joinder should be filed in the vacation preceding the fourth term, and the office copy bespoke, so that the paper books may be got ready for the judges according to the following rule, as well as the counsel who are to argue the errors. And the attorney for the plaintiff in error must search if error is set down for argument, with Mr. Smith, as there is no rule in this case to appoint the day. It is ordered, that no copy of error and record thereupon be delivered to the justices or barons, before the attorney for the plaintiff upon the writ of error shall give ten days notice to the clerk of errors in the Exchequerchamber, that the error assigned in the record is to be argued before the said justices and barons, for both parties, and that the attorney for the plaintiff shall deliver four copies to the justices of the Common Pleas, and the attorney for the defendant shall deliver four other copies to the barons of the Exchequer, four days before the hearing the cause. R. E. 33 Car. 2. If the plaintiff in error does not set them down, the is to be heard. defendant may; if the judgment is affirmed, the costs are taxed by Mr. Smith four days after, exclusive; then sue out execution, a bill is necessary for him to tax by. If judges divide equally. If damages As to Interest and Costs. In this court, it is the practice, upon an equal division of the judges, to affirm the judgment. 1 Show. 36. And so is the practice in the House of Lords; but in the King's Bench, if the court are equally divided, there must be a consent of the parties for affirming or reversing the judgment. 1 Str. 379. Thornby v. Fleetwood, in order to expedite the determination in the House of Lords. Where the damages are not assessed, as when judgare not assess- ment is given on demurrer, the Exchequer-chamber ed. |