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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 est erratum, and enter it on the roll, paying the plaintiff's attorney 2 s. 4 d. for it.

Want of original was assigned, certiorari prayed, and return no original; afterwards the defendant applied to chan, cery; and upon affidavit, that instructions were given to the cursitor for an original, but they were loft, the court of chancery allowed, that the original should be supplied. Upon which the defendant in error prayed another certiorari, and an original was certified of the same 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 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 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 assigned 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.

So it may upon error of a judgment before jultices of 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 misericordia, the defendant, in the writ of error, cannot alledge diminution : f. that the record is quod capiatur, because that is contrasy to the record certified. Rit. Abr. 764.

In a writ of error in B. R, on a judgment in C. B. the want of warrant of attorney being ali zned for error, the plaintif prayed one criorari ü he chief justice, and ano. ther to the curtos irezium; 62016! whom returned non inyeni aligusú warra.t; and in: terenda... dyre, the plantiit, by joustics asuin, 570937.: syrit of ejor

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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 custos brevium; and it was urged, that the return was not quod non habetur, &c. but quod non inveni, &c. so that if upon the second a warrant thould be returned it would not be repugnant: But it seemed to Wray, ch. just. That it would be hard to 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 Lafjells, where it was certified there was no warrant, and because the original was inter Lassells 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. Jac. 277. and Bulstr. 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 nullo eft erratum pleaded, no diininution can be alledged, either by the plaintiff' or defendant 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

* Wlien all the proceedings are in one and the same term, an original of that term will warrant the same, but not otherwise. i 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 same record, that there have been proceedings of a precedent term. Duke v. Szveeiing, i Vilj. 181.

The cate of originals differs from warrants of attorney ; for it is sufficient ii z zvarrant of aitorney be filed at ały time pending the suit, let it be which ierm it will. The stat. of Hen. 8. only requires a warrant of attorney to be filed in the cause : and the 4 Ar!. requires it to be filed according to the course of the court ; and that is, to have it filed any time pending the suit; but it is otherwise as to an original writ, for it there be proceedings in the action in a term precording the return ikercof, the criginal of a term after will not fupport the..

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 chirographer's office, that the proclamations were duly made, and he being the principal officer as to them, and the custos brevium having only an abftract 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 justices of B. R. they awarded, that the proclamations with the custos brevium [hould be amended according to those in the custody of the chirographer. 3 Leon. 105.

Of Proceeding in Error from the Court of

Common Pleas into the King's Beneb, and.

herein of assigning Errors, Joinder, &c. T HE alignment of errors by the plaintiff ought to be in

1 the same term the record is removed. Lutw. 354. F. N. B. 20 G.

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

The errors affigned 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 under 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 asigned errors, he may have a fcire 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 defendant to appear thereto, and serves a copy thereof on the defendant. . .

Two days at least before the cause comes to be argued, paper-books must be delivered to the judges. 2 Jac. 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 juftice and the senior judge-the defendant to the two junior judges.

The court will not hear arguments unless books be delivered to all the judges; therelore 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. I.

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Of Proceeding in Error from the Court of

Common Pleas into the King's Bench, Argu'ment thereon, Judgment, &c. T HE court has refused to hear any argument on the

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 plaintiff. Vide Cro. Car. 443. Salk. 401. Rol. Ab. 774. pl. 1. Hobi 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 defendant, and that is reversed, and the merits appear for the plaintiff, he shall 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.

But in Salk. 262. it is laid down, that where the plaintiff : brings the writ of error, and the court reverses the judge . ment below, they give a new judgment for the plaintiff ; but otherwise 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 reversal of the judgment may give such 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 reverse what is wrong, but give judgment for what is 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 common law, and part by statute, Salk. 24,

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• Vol. II.


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