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Of Proceeding in Error from the Court of

Common Pleas into the King's Bench, and herein of transmitting the Record.

W H EN the writ is allowed by the clerk of the errors,

V and bail put in, according to the foregoing statutes, 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 service thereof, give instructions 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 fir return of term, the clerk of the errors does not bring in the roll till the last 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 subsequent 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 nonsuited.-But the writ cannot be nonprofled without a rule to assign 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 cases (except in error on a fine levied there] is transmitted into B. R. i Rol. Ab. 752. I. 45. F. N. B. 20. F. Stra. 837. :

And the reason why the transcript only of the record upon error on a fine is transmitted, is, that in case judge ment is affirmed, B. R. has no chirographer, nor can it hold plea in a quid juris clamat. Rol. 752. l. 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 sue out a * scire facias quare executionem non; and if nihil is returned there. to, 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 againtt attornies in C. B. on a day cere tain in term ubicumque,

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

"

Of Proceeding in Error from the Court of

Gommon Pleas into the King's Bench, and

herein of non-proffing the Writ. I F the record be brought into B. R. by the essoign-day of I the term, the writ of fcire facias quare, &c. may bear tefte the last day of the preceding terms and if brought in within the term, it may be tested the first day of the term.

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

1f two nihils are returned to the feiri facias quare, and alias; or fcire feci is returned, and the plaintiff in error does · not aflign errors, the defendant in error may get a rule from the mafier [by whom all rules in error in B. R. after the re- , cord transmitted and before argument thereon are given) for the plaintiff to assign errors. Upon entering of which rule with the clerk of the rules, and serving a copy thereof on the plaintiff in error's attorney, if errors are not assigned within four days, the defendant in error may * non-profs the writ of error, and shall have his costs, according to the statute 88 9 W. 3. C. II. But without such rule to allign errors, a writ of error cannot be non-prossed. Leith v. M.Farlan, Burr. 4 pt. 1772.

A rule to affign errors was set aside, because given before any rule on the sci. fa. quare executio. non. Stra. 917.

The court will not grant oyer of this fcire facias, or allow any plea to it, save an aflignment of errors. Mich. 5 Geo. 2. B. R. Miles v. Woljham.

A fcire facias in error needs not lie in the sheriff's office four days before the return of it, as a scire facias against bail muft. Gross v. Nash, Bur. 4 pt. 2439. Millar v. Yare raway, ibm. 1723.

Error brought, and defendant in error took out a fci. 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 aside, as it evidently tended to delay; and this writ is only used as a method to bring the party to alsign errors. Stra. 679. .

Wiaintiff in erradefendant in onts, according

* The form of a non-profs, vide ante under title, Of Proceedin Errer 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-proffing the Writ.

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

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.

TF the court of C. P. upon a writ of error do not certify

I 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 master to return the certiorari, and serve 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 errarum, and eoter on record a non mifit breve, and proceed to argument, as in cases of demurrer..

Where the want of an original is assigned for error, the plaintiff in error must sue a certiorari, unless the defendant in error confers it. Salk. 267.

The case was error of a judgment in C. P. after a verdict. Want of original assigned for error, but no certiorari saken out to get the want of the original certified. In nullo eji 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 alligned 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 course is for the defendant to go to the master 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 alignment of error stands for nothing. But if the defendant in error will come in graiis, and confess the error, there need be '110 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 afligned 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 sheriff is not allignable for error. Salk. 265.-And irregularity in the return thereof must be complained of the fanie term. Ibid..

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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 afligned 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 mispleaded 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 sue a second certiorari. Salk. 266.

Continuances cannot be returned upon the same certiorari with the original. Salk. 269.

If upon error, diminution, want of original, warrant of attorney, &c. is alledged, and a certiorari is sued out, upon which a record is returned contrary to what is before re. turned, it cannot be received. Vide the case 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 same 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, I Will. 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 suggestion of the right term, and pray a certiorari, which when returned

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