Rowan v. Lytle , 4 Cow. 91 ( 1825 )

The Court, in delivering their opinion, did not enter much into the practice which should be pursued by the party in issuing a certiorari. They inclined to think, however, that the English practice as ¿entended for by Mr. Foot should be' pursued. They said that this practice was to assign errors in the record, removed by the writ of error, and by the same instrument to allege diminution and pray a certiorari. This seemed to be the more reasonable, because on serving the defendant’s attorney with a copy of this assignment and allegation, he may come in and confess the diminution assigned; and thus supersede the necessity of a certiorari. But they were clear that the defendant in error should have looked to all these objections for irregularity, earlier. They were merely technical; and were waived by the delay.

They said no substantial injury could arise to the defendant from retaining the proceedings as far as they had gone. He now applied on his part to enter a suggestion upon the roll and take out a certiorari ; and they saw no objection to this. It was true that, after in millo est erratum pleaded; neither party could as of course have a certiorari, yet the Court might award this writ to affirm the judgment at any time. (1 Archb. Pr. 229.) They allowed the defendant therefore, to take a rule for this purpose.

Rule : That the motion to set aside the suggestion of diminution made, and the certiorari issued by the plaintiff be denied ; and it is further ordered, that the defendant have leave within 20 days to enter a suggestion that judgment has been entered on the verdict rendered in favor of the plaintiff in the Court below ; and that thereupon a certiorari issue ; and that no costs be allowed on this motion.