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Of Proceeding in Error from the Court of Common Pleas into the King's Bench, and herein of tranfmitting the Record.

HEN the writ is allowed by the clerk of the errors,

and bail put in, according to the foregoing ftatutes, if the record is not brought in, the defendant in error may take out and serve the plaintiff with a rule to transcribe, who must, upon fervice thereof, give inftructions to the clerk of the errors to make up the transcript, who does it by the following times.

If the writ of error upon a judgment in C. B. is made returnable the first return of term, the clerk of the errors does not bring in the roll till the laft day of that term.

If it be returnable on any other return of term, he does not bring it in till the first day of the fubfequent term.

If, upon a rule given, the plaintiff in error in B. R. does not affign errors, and certify the record within eight days, he will be nonfuited.-But the writ cannot be nonproffed without a rule to affign errors. Burr. 4 pt. 1772.

In error of a judgment in C. B. into B. R. a mittitur is written on the roll, and the record itself in all cafes [except in error on a fine levied there] is tranfmitted into B. R. 1 Rol. Ab. 752. 1. 45. F. N. B. 20. F. Stra. 837.

And the reason why the tranfcript only of the record upon error on a fine is tranfmitted, is, that in cafe judgment is affirmed, B. R. has no chirographer, nor can it hold plea in a quid juris clamat. 1 Rol. 752. . 50. 50. Dy. 89. b.

When the record is brought in and filed in the office of the chief clerk with Mr. Heberden, the parties take copies thereof, and the defendant in error may fue out a * fcire facias quare executionem non; and if nihil is returned thereto, he may have an "alias." Which writs must have fifteen days between the tefte and return, if the proceedings were by original, and be made returnable on a general return-If by bill as against attornies in C. B. on a day certain in term ubicumque.

* Vide the nature aud form of these writs ante, under title, "Of proceeding in error from inferior courts."

Of

Of Proceeding in Error from the Court of Common Pleas into the King's Bench, and herein of non-proffing the Writ.

I

F the record be brought into B. R. by the effoign-day of the term, the writ of feire facias quare, &c. may bear tefte the last day of the preceding term; and if brought in within the term, it may be tested the first day of the

term.

Note: That a fci. fa. quare, &c. may be prayed and fued by one executor, upon a writ of error brought upon a judgment for him and another, without fhewing that the other executor is dead.' Burr. Rep. 4 pt. 1791.

If two nihils are returned to the feire facias quare, and alias; or feire feci is returned, and the plaintiff in error does not affign errors, the defendant in error may get a rule from the mafter [by whom all rules in error in B. R. after the record tranfmitted and before argument thereon are given] for the plaintiff to affign errors. Upon entering of which rule with the clerk of the rules, and ferving a copy thereof on the plaintiff in error's attorney, if errors are not affigned within four days, the defendant in error may non-profs the writ of error, and fhall have his cofts, according to the ftatute 8 & 9 W. But without fuch rule to affign errors, a 3. c. II. writ of error cannot be non-proffed. Leith v. M'Farlan, Burr. 4 pt. 1772.

A rule to affign errors was fet afide, because given before any rule on the fci. fa. quare executio. non.

Stra. 917. The court will not grant oyer of this feire facias, or allow any plea to it, fave an affignment of errors. Mich. 5 Geo. 2. B. R. Miles v. Wolfham.

A feire facias in error needs not lie in the fheriff's office four days before the return of it, as a feire facias against bail muft. Grofs v. Nash, Bur. 4 pt. 2439. Millar v. Yarraway, ibm. 1723.

Error brought, and defendant in error took out a sci. fa. quare, &c. to which the plaintiff in error pleaded, that the damages recovered were levied by a fi. fa. And on motion the plea was set afide, as it evidently tended to delay; and this writ is only used as a method to bring the party to affign errors. Stra. 679.

* The form of a non-profs, vide ante under title, " Of Proceeding in Error from inferior courts.".

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Of Proceeding in Error from the Court of Common Pleas into the King's Bench, and herein of non-prossing the Writ.

A fci. fa. ad aud. errores is not well brought before the record of the judgment be certified into the court, to reverse which the writ of error was brought, and errors affigned thereupon: for there is no record in court to warrant the granting of the sci. fa. before the record of the judgment is certified, and errors thereupon affigned.

Of

Of Proceeding in Error from the Court of Common Pleas into the King's Bench, and herein of alledging Diminution, Want of Original, Warrant of Attorney, &c.

F the court of C. P. upon a writ of error do not certify all the record, and the plaintiff in error alledges diminution, or affigns for error, that there is no original, or warrant of attorney, and prays a certiorari; the defendant in error may immediately get a rule from the mafter to return the certiorari, and ferve the plaintiff's attorney with a copy thereof; and if it be not thereupon returned and filed in the office within four days, the defendant may join in nullo eft erratum, and enter on record a non mifit breve, and proceed to argument, as in cafes of demurrer.

Where the want of an original is affigned for error, the plaintiff in error muft fue a certiorari, unless the defendant in error confefs it. Salk. 267.

The cafe was error of a judgment in C. P. after a verdict. Want of original affigned for error, but no certiorari taken out to get the want of the original certified. In nullo eft erratum pleaded. And when the cause came on in the paper, it was objected, that there ought to have been a certiorari, and a certificate made of the error; for it might be, that there was an ill original, and if that were returned, the plaintiff in error might take advantage of that, and that would not be helped by verdict, though the want of an original were. Per Holt, ch. juft. If the want of an original be affigned for error, and the plaintiff in error does not take out a certiorari, and get a return to it, and the want of an original certified; the courfe is for the defendant to go to the mafter of the office, and get a rule for the plaintiff in error to return his certiorari; and if he does not get it done, as ordered by the rule, the affignment of error ftands for nothing. But if the defendant in error will come in gratis, and confefs the error, there need be no certiorari returned. And as to the matter, that there might be a bad original, &c. that is another fort of error, and when the want of an original is affigned for error the court will never intend, that there is a bad original, and judgment was affirmed. Smith and others v. Stoneard, Ld. Raym. 1156.

But an original returned by one not fheriff is not affignable for error. Salk. 265.-And irregularity in the return thereof must be complained of the fame term.

Ibid.

"Want

Of Proceeding in Error from the Court of Common Pleas into the King's Bench, and herein of alledging Diminution, Want of Original, Warrant of Attorney, &c.

Want of original was affigned for error, the defendant, before the return of the certiorari, came in gratis and pleaded a release in bar, to which plaintiff demurred and defendant joined. Per cur. The release is mifpleaded for want of a venue, and it was agreed, that the court could award, ex officio, a certiorari ad informandum confcientiam, whether there was an original or not.-Sed Holt, cont. Vide Salk. 268.

So the court can ex officio award a certiorari to supply a defect in the body of the record, even after in nullo eft erratum pleaded. Salk. 270.

If a variant original is returned on the first certiorari, the defendant in error may fue a fecond certiorari. Salk. 266. Continuances cannot be returned upon the fame certiorari with the original. Salk. 269.

If upon error, diminution, want of original, warrant of attorney, &c. is alledged, and a certiorari is fued out, upon which a record is returned contrary to what is before returned, it cannot be received. Vide the cafe of Tyfoun v. Hylyard, 2 Ld. Raym. 1122.

If error be affigned in the original, and upon a certiorari granted, an erroneous original is returned; and upon this, in nullo eft erratum is pleaded; and after the court, ad informandum confcientiam, grant another certiorari for another original; and upon this a good original is certified; the court ought to intend that this is the original upon which the judgment was given, in favour of judgments, which ought to be intended to be good. Cro. Car. 91. Style 176. 2 Rol. Rep. 362. Godb. 407. Rol. Ab. 765.

An original writ of the term wherein final judgment is given, will not warrant that judgment, if it appear upon the fame record, that there have been proceedings of a preceding term. But the plaintiff below ought to have an original writ of the term the placita is of. Dyke v. Sweeting, 1 Wilf. 181.

If a certiorari be prayed to certify an original, or a warrant of attorney of a wrong term, and the chief justice or the cuftos brevium return, that there is no original or warrant of that term, the defendant in error may make a fuggeftion of the right term, and pray a certiorari, which when returned

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