court would dismiss the writ, and supersede any supersedeas, that might have been granted. What errors may be assigned. An assignment of errors is in the nature of a declaration,1· -and is either of errors in fact, or errors in law. 1. Errors in fact. These consist of matters of fact, not appearing upon the face of the record, which, if true, prove the judgment to have been erroneous; as that the defendant in the original action, being an infant, appeared by attorney; that a feme plaintiff or defendant was under coverture, at the time the action was commenced; - that a sole plaintiff or defendant died before judgment; - or that the defendant was out of the Commonwealth, at the time of the service of the writ, and did not return before the entry of the action, and that it was defaulted at the first term.2 2. Errors in law. These are of two kinds, common or special. The common errors in law are, that the declaration is insufficient in law, to support the judgment, and that the judgment was rendered for the plaintiff, instead of the defendant, or vice versâ.3 Special errors in law, are some particular individual defects, apparent on the record, which are specially referred to by the plaintiff in error, and which shew the judgment to have been erroneous.1 The plaintiff may assign several errors in law, but only one error in fact;5 and he cannot assign error in fact and law together; for these are distinct things, one to be tried by the court, and the other by the jury.1 3 Nothing can be assigned for error, which contradicts the record,2 -or was for the advantage of the party assigning it, or that is aided by appearance, or by not having been taken advantage of in due time. But if the error be the default of the court, though it be for the advantage of the party, yet it may be assigned, for the course of the court ought to be observed. So a plaintiff may assign for error, the want of jurisdiction in a court of limited jurisdiction, to which he has chosen to resort. As to the assignment, whether it must be general or special, this distinction seems to be taken. The common errors may be assigned, if the errors complained of appear upon the face of the record itself; or if in such case, any of these errors be assigned specially, counsel will not be confined, in arguing the case, to the errors thus assigned, but may support the writ of error, by any other error appearing on the face of the record. But it is usual, if there really be errors in the record, to assign one of them specially. Where, however, the error is in any of the outbranches of the record, as where there is no writ, or a bad one, it must be assigned specially, and the diminution alleged, and verified by certiorari, 12 Bac. Abr. 217. 2 Ld. Ray. Rep. 883. Jeffry v. Wood, 1 Stra. Rep. 439. 22 Bac. Abr. 218. Helbut v. Held, 1 Stra. Rep. 684. 3 Ibid. 4 Ibid. 2 H. Black. Rep. 267, 299. Ibid. Capron v. Van Noorden, 2 Cranch. Rep. 126. Yelv. 107. which the court will grant, in order to bring up the whole record.1 If there be several plaintiffs in error, they must all join in the assignment of errors, unless some of them have been summoned and severed.2 An assignment of errors in fact, should conclude with a verification, though this position is questioned in some of the books. 3 But in assigning the death of the defendant in error, the assignment ought not to conclude in the common way, but by praying a scire facias ad audiendum errores, against the executor or administrator.1 SECT. VII. PLEADINGS IN ERROR. To an assignment of errors, the defendant may plead, or demur. Pleas in error are common or special. The common plea, or joinder, as it is more commonly called, is, "in nullo est erratum," or that there is no error in the record or proceedings; and this is in the nature of a demurrer, and at once refers the matter of law arising thereon, to the judgment of the court. If the plaintiff in error assign an error in fact, and the defendant in error would put in issue the truth of it, he ought to traverse or deny the fact, and so join issue thereupon, and not plead "in nullo est erratum," for by so doing, he would acknowledge the fact alleged, to be true.5 1 3 1 1 Arch. Pract. 251. Andrews et al. v. Bosworth, 3 Mass. Rep. 223. 21 Arch. Pract. 251. 1 Burr. Rep. 410. Carth. 367. Yelv. 58. contra. 41 Sid. 93. Ld. Ray. 59. S. C. 5 Yelv. 57. But in such a case, if the defendant be willing to acknowledge the fact to be as alleged, but insists that by law it is not error, he ought to plead "in nullo est erratum."" If an error in fact, therefore, be well assigned, "in nullo est erratum," confesses it; for the defendant ought to have joined issue on it, so as to have it tried by the country; but if an error in fact be assigned, that is not assignable, or be ill assigned, "in nullo est erratum," is no confession of it, but shall be taken only for a demurrer.2 If error be alleged of the body of the record, "in nullo est erratum," is a good rejoinder; for this puts the matter in the judgment of the court, the record being agreed to be as stated. So if error be alleged in a matter of record, which is not in the body of the record, but in a collateral thing, "in nullo est erratum," is a good rejoinder.* But if the plaintiff in error assign error in fact, and error in law together, which, we have seen, cannot be assigned together, the defendant in error must not plead" in nullo est erratum," for this would confess the error in fact, and the judgment must be reversed; but he must demur for the duplicity, upon which the judgment will be affirmed." The demurrer, in this case, however, need not be special; for writs of error are not within the statute, requiring demurrers for duplicity to be special. 6 1 Rol. Abr. 758. 2 2 Bac. Abr. 218. 3 1 Rol. Abr. 763. * Ibid, 764. 5 2 Ld. Ray. 883. 2 Bac. Abr. 218. Carth. 338. 6 Ibid. By pleading "in nullo est erratum," the defendant in error admits the record to be perfect, the effect of his plea being, that the record, in its present state, is without error;' and, therefore, after this plea, neither party can allege diminution, or pray a certiorari.2 The court, however, are not restrained thereby, from looking into the record; but they may, at any time pending a writ of error, either before or after the assignment of errors, and even after "in nullo est erratum," pleaded, ex officio award a certiorari, to supply a defect in the body of the record, or in its outbranches.$ 4 Special pleas to an assignment of errors, contain matter in confession and avoidance, as a release of errors, -or the statute of limitations, to which the plaintiff may reply or demur, and proceed to trial or argument. Where there are several plaintiffs in error, the release of one, will not be a bar to the others.5 Special pleas in bar to a writ of error, should conclude by praying that the plaintiff may be barred of his writ of error, and not that the judgment be affirmed, for they admit the judgment to be erroneous. An issue having thus been joined in error, the proceedings are entered of record. If the issue be one of fact, the parties proceed to trial to the jury, as in the Court of Common Pleas; if of law, the action is 11 Salk. 270. 2 Ibid, 269. 2 Cowen. Rep. 408. * Ibid. 2 Ld. Ray. 1005. 2 Tidd's Pract. 1152. 4 2 Bac. Abr. 225. 56 Co. 25a. Cro. E. 648. 6 Cunningham v. Houston, 1 Stra. Rep. 127. Dent v. Lingood, 1 Stra. Rep. 683. Street v. Hopkinson et al. 2 Stra. Rep. 1055. 1 Arch. Pract. |