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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.

and filed, he may join in nullo eft erratum, and enter it on the roll, paying the plaintiff's attorney 2 s. 4 d. for it.

Want of original was affigned, certiorari prayed, and return no original; afterwards the defendant applied to chancery; and upon affidavit, that inftructions were given to the curfitor for an original, but they were loft, the court of chancery allowed, that the original fhould be supplied. Upon which the defendant in error prayed another certiorari, and an original was certified of the fame term in which the default of an original was certified before; on which it was moved, that this was irregular; for, before the second certiorari was returned, the defendant ought to have given a copy of the original to the plaintiff's attorney; but the mafter informing the court, that the courfe was fo when the second original certified was of another term, but not when it was of the fame term, the motion was difallowed. 118.

Com.

The plaintiff affigned for error want of an original, and the defendant 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 affigned until the certificate is returned, by which it appears, that there was no original in the cause. Com. 115.

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

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

But if on a certiorari upon a writ of error it be certified, that the judgment was quod defend. fit in mifericordia, the defendant, in the writ of error, cannot alledge diminution :

that the record is quod capiatur, because that is contrary to the record certified. Rol. Abr. 764.

In a writ of error in B. R. on a judgment in C. B. the want of warrant of attorney being affigned for error, the plaintiff prayed one crtiorari to the chief juftice, and another to the cuftos brevium; both of whom returned non inveni aliquid warrant, and the defendant dying, the plaintiff, by journies accounts, brought a new writ of enor

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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 defendant, who appearing, alledged diminution, in that the warrant of attorney was not certified, and prayed another certiorari to the cuftos brevium; and it was urged, that the return was not quod non habetur, &c. but quod non inveni, &c. fo that if upon the second a warrant thould be returned it would not be repugnant: But it seemed to Wray, ch. juft. That it would be hard to grant a new certiorari in this cafe; for though if any variance. could be alledged, it would be otherwife, as was adjudged in the case of one Laffells, where it was certified there was no warrant, and because the original was inter Laffells execut teftamenti, &c. where he was not named executor in the first certiorari; and upon the matter a new certiorari was granted. Leon. 22. Vide Cro. Fac. 277. and Buiftr. 21.Where to the firft it was returned, there was no warrant of attorney in that term wherein the action was commenced, and a fecond certiorari was awarded *.

After in nullo eft erratum pleaded, no diminution can be alledged, either by the plaintiff or defendant in error, with

out leave of the court.

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

When all the proceedings are in one and the same term, an original of that term will warrant the fame, but not otherwise. 1 Keb. 327, Booth v. Beard. But an original of the term final judgment is given will not warrant that judgment, if it appear upon the fame record, that there have been proceedings of a precedent term. Duke v. Sweeting, 1 Wilf. 181.

The cafe of originals differs from warrants of attorney; for it is fufficient if a warrant of attorney be filed at any time pending the fuit, let it be which term it will. The ftat. 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 courfe of the court; and that is, to have it filed any time pending the fuit; but it is otherwife 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 after will 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.

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made in one day but it appearing in the chirographer's office, that the proclamations were duly made, and he being the principal officer as to them, and the cuftos brevium having only an abstract thereof; upon the prayer of the defendant a new certiorari was directed to the chirographer, who having certified the proclamations duly made, after examination of the clerks of C. B. by the juftices of B. R. they awarded, that the proclamations with the cuftos brevium fhould be amended according to those in the cuftody of the chirographer. 3 Leon. 105.

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

THE the record is removed. Lutw. 354HE affignment of errors by the plaintiff ought to be in

F. N. B. 20 G.

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

The errors affigned must be figned by counfel, and muft be affigned in term, and not in vacation. Prac. Reg. 203. And must be affigned upon the record.

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

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

After the plaintiff has affigned errors, he may have a feire facias ad audiendum errores-but fuch writ is now feldom fued out, as the defendant appears usually gratis; or the plaintiff in error, after his affignment of errors, takes a rule out for the defendant to appear thereto, and ferves a copy thereof on the defendant.

Two days at leaft before the caufe comes to be argued, paper-books must be delivered to the judges. 2 Fac. 2. though that rule of court fays four days before, yet the practice has been for a long time paft to deliver the paper-books only two days before.

The plaintiff in error delivers paper-books to the chief justice and the fenior judge-the defendant to the two junier judges.

The court will not hear arguments unlefs 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, efpecially as he will be allowed in his cofts for the copies he makes for the other fide. Mich. 17 Car. I.

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

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HE court has refused to hear any argument on the fide of the party who hath neglected to deliver books, though he has been willing to pay the other fide for them.

If a judgment be below for the plaintiff, and error is brought, and that judgment reverfed; yet, if the record will warrant it, the court ought to give a new judgment for the plaintiff. Vide Cro. Car..443.. Salk. 401. Rol. Ab. 774. pl. 1. Hob. 194.

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

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

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But in Salk. 262. it is laid down, that where the plaintiff brings the writ of error, and the court reverfes the judgment below, they give a new judgment for the plaintiff; but otherwife if the defendant 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, the court upon the reverfal of the judgment may give fuch judgment as the court below should have given but if error is brought by the defendant below, the court can only reverse 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 reverfe what is wrong, but give judgment for what is right. Where the defendant below brings a writ of error, we only reverfe fuch wrong part of the judgment as he complains of.

A judgment cannot be reversed in part, and affirmed in part, unless part is by common law, and part by statute. Salk. 24.

VOL. II.

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