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

and filed, he may join in nullo est erratum, and enter it on the roll, paying the plaintiff's attorney is. \d. for it.

Want of original was assigned, certiorari prayed, and return no original; afterwards the desendant applied to chancery ., and upon assidavit, that .instructions were given to the curfitor for an original, but they were iost, the court of chancery allowed, that the original should be supplied. Upon which the desendant in error prayed another certiorari, and an original was certified of the same term in which the desault of an original was certified before; on which it was moved, that this was irregular; for, before the second certiorari was returned, the desendant ought to have given a copy of the original to the plaintiff's attorney; but the master informing the court, that the course was so when the second original certified was of another term, but not when it was of the same term, the motion was disallowed. Com. 118.

The plaintiff assigned for error want of an original, and the desendant thereupon did not give a rule; but, at his own proper charges, took out a certiorari, and procured a certificate of an original. Sed per cur. This is ill, for the error is not compleatly assigned until the certificate is returned, by which it appears, that there was no original iri the cause. Com. 115.

Diminution cannot be alledged upon a writ of error brought upon a judgment in any inserior court—But it may, upon error, in Wales and counties palatine. Sid. 147, 364.

So it may upon error of a judgment before justices of of oyer and tenniner. Sid. 40.

But if on a certiorari upon a writ of error it be certified, that the judgment wus quod desend- fit in misericordia, the desendant, in the writ of error, cannot alledge diminution: JJ'. that the record is quod capiatur, because that is contrary to the record certified. Rol. Air. 764.

In a writ of error in B. R. on a judgment in C. B. the want of warrant of attorney being ailigned for error, the plaintiff prayed one c rtiorati to the chief justice, and another to the cujlos brevium; both of whom returned non invent illiquid'; and the desendant dving, the plaintiff, by journies ucccuiirs, brought a new writ of e:ior

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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.

against the son and heir of desendant, who appearing, alledged diminution, in that the warrant of attorney was not certified, and prayed another certiorari to the cujloi brevium; and it was urged, that the return was not quod non babetur, &c. but quod non invent, &c. so that if upon the second a warrant Ihould be returned it would not be repugnant: But it seemed to IVray, ch. just. That it would be hard tc grant a new certiorari in this case; for though if any variance could be alledged, it would be otherwise, as was adjudged in the case of one Laffelh, where it was certified there was no warrant, and because the original was inter Lajfelh execut' tejtamenti, csV. where he was not named executor in the first certiorari; and upon the matter a new certiorari was granted.

Leon. 22. Vide Cro. Jac. 277. and BuIJir. 21. Where

to the first it was returned, there was no warrant of attorney in that term wherein the action was commenced, and a second certiorari was awarded *.

After in nttllo est erratum pleaded, no diminution can be alledged, either by the plaintiff or desendant in error, without leave of the court.

Error, upon a fine in C. B. and error assigned in the proclamations, upon which a certiorari went to the custos brevium, who certified, that two of the proclamations were

* 85" When all the proceedings are in one and the same term, an original of that term will warrant the same, but not otherwise. 1 Keb. 327, Booth v. Beard. Eut an original of the term final judgment is given will not warrant that judgment, if it appear upon the iame record, that the:e have been proceedings of a precedent term. Duke v. Sweeting, iWil/.iZi.

The caib of originals differs feom 'warrants of attorney; for it is sufficient ii a warrant as attorney be filed at any time pending the suit, let it be which term it will. The stat. of Hen. 8. only requires a warrant of attorney to be filed in the cause: and the 4 Ann. requires it to be filed according to the course of the court; and that is, to have it fjied any time pending the suit; but it is otherwise as to an original writ, for if there be proceedings in the action in a term preceding the return thereof, the original of a term asier v/iil not support them.

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.

made in one day : but it appearing in the chirograpber's office, that the proclamations were duly made, and he being the principal officer as to them, and the cujlos brevium having only an abstract thereof; upon the prayer of the desendant a new certiorari was directed to the chirograpber, who having certified the proclamations duly made, after examination of the clerks of C. B. by the justices of B. R. they awarded, that the proclamations with the cujlos brevium should be amended according to those in the custody of the chirograpber. 3 Leon. 106.


Of Proceeding in Error from the Court of Common Pleas into the King's Bench, and herein of assigning Errors, Joinder, &c.

TH E assignment os errors by the plaintiff ought to be in the lame term the record is removed. Lutw. 354.. F. N. B. 20 G.

Otherwise the desendant may non-profs the writ after & fci. facias quare, &c. and alias returned nihil, and a rule thereon given to assign errors, which vide ante.

The errors assigned must be signed by counsel, and must be assigned in term, and not in vacation. Prac. Reg. 203.

And must be assigned upon the record.

Of assigning errors, and of joinder in error, vide ante tinder title, " Of Proceeding in Error from inferior courts, &c."

Upon the joinder in error, either party may move for a concilium, and set the cause down with the clerk of the papers for argument.

After the plaintiff'has assigned errors, he may have a/eire facias ad audiendum errores—but such writ is now seldom sued out, as the defendant appears usually gratis; or the plaintiff' in error, after his assignment of errors, takes a rule out for the desendant to appear thereto, and serves a copy thereof on the desendant.

Two days at least before the cause comes to be argued, paper-books must be delivered to the judges. 2 sac. 2. though that rule of court says four days before, yet the practice has been for a long time past to deliver the paper-books only two days before.

The plaintiff'in error delivers paper-books to the chief justice and the senior judge—the defendant to the two junior judges.

The court will not hear arguments unless books be de» livered to all the judges; therefore it behoves the attorney who expects the judgment of the court to be for his client, to deliver all the books, especially as he will be allowed in his costs for the copies he makes for the other side. Mich. 17 Car. 1.

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Of Proceeding in Error from the Court of Common Pleas into the King's Bench, Argument thereon, Judgment, &£.

/ * v HE court has resused to hear any argument on the JL side of the party who hath neglected to deliver books, though he has been willing to pay the other side for them.

If a judgment be below for the plaintiff, and error is brought, and that judgment reversed; yet, if the record will warrant it, the court ought to give a new judgment for the p/aintijs. Vide Cro. Car..443. . Satk. 401. Rol. Ab. 774'. pi. 1. Hob. 194.

But if the judgment be erroneous, and against the plaintiff, that ought to be reversed, and no new judgment given for the plaintiff. Ibid.

If an erroneous judgment be given for the desendant, and that is reversed, and the merits appear for the plaintiff, he shall have judgment—But if the merits be against the plaintiff, the desendant shall have a new judgment. So it is in the exchequer chamber, for they are to reform, as well as to assirm or reverse it. Ibid.

But in Salk. 262. it is laid down, that where the plaintiff brings the writ of error, and the court reverses the judgment below, they give a new judgment for the plaintiff; but otherwise is the desendant below brings the writ of error,. for then they only reverse it.

So in Burr. Rep. 4 pt. 2156. If error is brought by the plaintiff below, tne court upon the reversal of the judgment may give such judgment as the court below should have given: but if error is brought by the defendant below, thejt court can only reverfj. it.

And per lord Mansfield, in Cuming v. Sibley, Mich. 10 Geo. 3. B. R. Burr. 4 pt. 2490. Where the plaintiff below brings a writ of error, we may not only reverse what is wrong, but give- judgment for wharis right. Where the defendant below brings a writ of error, we only reverse such wrong part of the judgment as he complains of.

A judgment cannot be reversed in part, and affirmed in part, unless part is by ammon law, and part by Jlatute. S»lk. 24.

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