Of Proceeding in Error from inferior Courts, and herein of affigning Errors, and making up the Error-book, &c.

aforefaid ought to have been given for the faid C. against the faid A. and fo the judgment aforefaid is erroneous; and hereupon the faid C. alfo prays, that the judgment for the faid errors, and other the errors in the record and proceedings aforefaid, may be reverfed, annulled, and fet afide, and that he may be reftored to all things which he hath loft by occafion of the faid judgment, &c."

George Bond.

If plaintiff in error moves to amend his affignment of errors, it is always on payment of cofts, for he comes for a favour of the court. Fitzgib. 268.

The tranfcript on record ought to be entered by the plaintiff in error the fame term it is brought into the office; but if he neglects fo to do, the defendant in error may enter

it.

As foon as the tranfcript is entered, and the plaintiff hath alfo affigned his errors, and entered the fame on record; and if the defendant does not immediately plead or join in error, the plaintiff may fue out a feire facias ad audiendum errores, which is to this effect:

court of

GEORGE the third, &c. To the fheriff of. greeting Forafmuch as in the record and proceedings, and alfo in the giving of the judgment in a certain plaint lately levied in our before the judges of the fame court between A. B. and C. D. of a plea of trejpafs on the cafe, manifeft error, as it is faid, hath intervened to the great damage of the faid C. as by his complaint we are informed, which faid record, and proceedings therein, we have, for certain reafons, caufed to come in our court before us; and we, being willing, if any error there be, to correct the fame, and to do unto the parties aforefaid full and speedy justice in this behalf, do command you, that, by good and lawful men of your bailiwick, you make known to the faid A. that he before us in wherefoever we fhall then be in England, o hear the proceedin.s

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a.orefai

Of Proceeding in Error from inferior Courts, and herein of affigning Errors, and making up the Error-book, &c.

aforefaid, if it fhall feem expedient unto him; and further, to do and receive what in our faid court before us fhall be confidered of him in this behalf, and have there the names of them by whom you shall make known unto the faid A. as aforefaid; and this writ. Witnefs, &c.

If the defendant in error does not come in and plead, or join to the affignment of errors upon the return of the scire facias ad audiendum errores, the plaintiff may have an alias fcire facias, &c. and upon default thereto, the plaintiff in error muft proceed to argument, and will be heard ex parte.

After judgment for the defendant the plaintiff brought error, and affigned infancy in defendant, and appearance by attorney, then took out a fei fa. ad aud. errores; and after a feire feci returned, entered the default; and on producing the record, the judgment was reverfed on motion, without making it a concilium, or putting it in the paper. Walmfley v. Rofon, Stra. 1210.

If the errors affigned are special, the joinder in error must be figned by counfel, and ingroffed on ftamped paper, and then delivered over to the plaintiff's attorney: but if the errors affigned are general, the defendant's attorney may join in error directly, and deliver the common joinder in nullo eft erratum, on a treble penny ftamped paper, to the plaintiff's attorney, paying him 2 s. 4 d. for entering the fame on record.

The joinder of in nullo eft erratum" to an affignment of error in fact, is a confeffion thereof, if the error in fact be well affigned; for if error in fact be affigned, and the defendant in error would deny it, he should not join in nullo

est

Of Proceeding in Error from inferior Courts, and herein of affigning Errors, and making the Error-book, &c.

up

eft erratum; but ought to take iffue upon it, fo as to have it tried by the country. Sid. 93. Raym. 59..

But if the affigniment is of an error in fact, and that be ill affigned, “in nullo eft erratum" is no confeffion of it; as if it be affigned, that fuch a one, at the time of the return of the venire, was not fheriff, and the record be removed; there, in nullo eft erratum is no confeffion of that fact; because the record thereof is not in court, that being no part of the record, for the plea is in nullo eft erratum in recordo. Cro. Jac. 12. 29. 521. Raym. 231. Cro. Car. 421. Rol. Abr. 758.

Alfo if an error in fact, that is not affignable, be affigned, and in nullo eft erratum be pleaded, it is no confeffion; as if it be affigned, that on fuch a day there was no court fitting; becaufe that is against the record, and then in nullo eft erratum is only a demurrer. So if a man says, he did not appear, and the record fays he did, in nullo eft erratum is no confeffion, but a demurrer, because it is against the record. Vide Bac. Abr. title Error, 2 vol. 218. and authorities there cited.

If the plaintiff in error therefore affigns error in fact, which is affignable, and the defendant would not confefs it, he muft not join in nullo eft erratum, but plead thereto, and then the parties go to iffue upon the error in fact, the record is made up, as in other cafes, and the matter goes to a jury.

But where the defendant joins in nullo eft erratum, the parties thereupon are at iffue in law for the determination of the court; and in such case either of them may enter the fame on record, and move for a concilium, or day, for ar

guing the errors. Then the cause for argument must be

entered with the clerk of the papers, and error-books made up and delivered to the refpective judges of the court, in like manner as upon argument of a demurrer *.

The defendant in error cannot give a rule to affign errors, before he has given a rule on the fire facias quare executionem

non.

*For the inftructions to do which, vide title Demurrer, &c. in the first vol.

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Of Proceeding in Error from inferior Courts, and herein of affigning Errors, and making up the Error-book, &c.

A rule to affign errors was fet afide, because given before any rule on the fcire facias quare executionem non. Marfhal v. Cope, Stra. 917.

If the plaintiff in error, on being ferved with a rule for that purpose, affigns his errors, and the defendant joins in nullo eft erratum, in making up the record, purfue the foregoing precedent of non-profs as far as the day given upon the rule, and then go on with the joinder in error, &c. in the following manner :

"Whereupon the faid A. B. by George Hadgfon his attorney, comes and faith, that neither in the record and proceedings aforefaid, nor in the giving of the judgment aforefaid in any thing is there error; and he prayeth, that the court of our lord the king now here may proceed to the examination, as well of the faid record and proceedings aforefaid, as of the matters aforefaid above affigned for error; and that the judgment aforefaid may be in all things affirmed. But because the court of our faid lord the king now here are not yet advised of giving their judgment of and upon the premises, therefore a day is given to the faid parties to be before our lord, until, &c. wherefoever,

c. to hear judgment thereof; for that the court of our faid lord the king is not yet advised thereof: at which day came here into court, as well the faid C. as the faid A. by their attornies aforefaid; upon which the premifes being confidered, as well the record and proceedings aforefaid, as the judgment aforefaid on the fame given, and the causes before for error affigned, being by the court of our lord the king here diligently examined and fully understood; it. feemeth unto the court of our faid lord the king here, that the judgment aforefaid is not in any wife vicious or defective; and that in the faid record there is not any thing erroneous. Therefore it is confidered by the faid court of our lord the king, before the king himfelf now here, that the judgment aforesaid in all things be affirmed, and do ftand in its full force

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Of Proceeding in Error from inferior Courts, and herein of affigning Errors, and making up the Error-book, &c.

and effect (the faid caufes above for error alledged in any thing notwithstanding); and it is further confidered, that the faid A. B. do recover against the faid C. D. fixteen pounds ten fhillings, by the court of our faid lord the king now here adjudged to the faid A. at his requeft, for his cofts and charges which he hath expended by reason of the delay of the execution of the faid judgment, and by the prosecution of the faid writ of error.

Upon affirmance of the judgment, the defendant in error may take out his execution, either a fi. fa. ca. fa. or elegitwhich writ of execution recites the former judgment below, the removal of the record into the court above, and the affirmance thereof, together with the cofts given upon the affirmance.

If judgment were given below for the defendant, and the plaintiff brings error, and thereupon the court reverses the former judgment, the court above gives fuch judgment as the court below ought to have given-and then there is no cofts upon the writ of error, but only the cofts of the original action given. Wyvill v. Stapleton, Stra. 617.

On writs of error from inferior courts, the fuperior court takes notice of the laws and cuftoms of inferior courts; but otherwise upon removal of a caufe by habeas corpus. Salk. 269.

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