purely in respect of the special circumstances of the case. There is nothing particular in the manner of assigning errors in Parliament, as distinguished from similar proceedings in subordinate courts of justice, whose wellestablished rules will in general be followed in the last resort, where writs of error are comparatively of but rare occurrence. The assignment of errors is engrossed on parchment, and is usually subscribed by counsel. It may be either general, or special; the general assignment being merely an allegation in general terms, that judgment has been given for the defendant; whereas, by the law of the land, it ought to have been given for the plaintiff. The special assignment, on the other hand, is an allegation of some special matter appearing on the face of the record, which shows the judgment to be erroneous. Several errors may be assigned; but it is to be observed that it has been, in modern times, the peculiar office of the printed cases (lodged at a subsequent stage of the proceedings), to set out the errors intended to be argued at the bar; and therefore, the mere form of assigning errors does not now require the same degree of consideration and nicety as at a former period. For this reason I shall not insert here a recital of precedents under this head, which may be found in Lyllie's Entries and in the ordinary works of practice. The mere form of the assignment may be as follows: In the House of Lords. before our Afterwards, that is to say, on the Lady the Queen, and the Lords Spiritual and Temporal, in Parliament assembled, comes the said C. D., by D. A., his attorney, and says that in giving (or if there were an affirmance by a court of intermediate jurisdic tion, "in giving and affirming;" or if there were a reversal by a court of intermediate jurisdiction, "in reversing ") the judgment aforesaid, there is manifest error in this that (here state the errors, repeating at the close of each allegation respectively, the words "therefore in that there is manifest error;") and the said C. D. prays that the judgment aforesaid (or if there were an affirmance by a court of intermediate jurisdiction, "the judgment and affirmance thereof aforesaid ;" or if there were a reversal by a court of intermediate jurisdiction, "the said judgment of reversal ") may be reversed, annulled, and altogether holden for nought; and that he may be restored to all things which he hath lost, by occasion of the said judgment complained of. PRACTICE ON WRITS OF ERROR. CHAPTER THE FIFTH. Of Certiorarí. Allegation of Diminution and Award of Certiorari, 399.—Certiorari not granted till Errors are assigned, 400.—nor after Plea of in nullo est erratum, ib.-Standing Order, No. 54, 401.-and Precedents as to return of Certiorari, ib.—Case of quashing Certiorari, 402.—Standing Order, No. 105, as to Certificate of Certiorari by the Clerks of the Parliaments, 404.—and object thereof, ib. If the whole record be not certified, or if it be not truly certified, the party thereby injured may allege diminution (a) of the record, and cause it to be rectified. This rectification is effected by certiorari. And it appears competent for either plaintiff or defendant in error, to make application for an award of this (*) The word "Diminution," in its legal sense, means keeping back, or withholding, something which ought to be produced; and it is either of the body of the record, or of its members or out branches. When any part of the former is omitted, or not correctly set forth, this is a diminution of the body of the record; and the Court below may be called upon, by writ of certiorari, to certify the whole of the record truly, or what is deficient. F. N. B. 25, a. Lil. Ent. 226. If the original writ, or the bill by which the action was commenced; or if the warrants of attorney, or some collateral matter, are not returned (as they seldom are) with the record; this is diminution of the branches; to obtain which, a writ of certiorari issues to the Chief Justice. Tidd, 1167. writ, which, issuing out of Chancery, is directed to the chief Judge of the court below, requiring him more perfectly to certify the record. The award of certiorari will not (as I understand the precedents) be granted until after errors are assigned. In other words, the House will require to see the assignment of errors before granting certiorari. For if the alleged errors are evidently frivolous, the writ of certiorari will be ordered to be returned by a short day, or even instanter, as appears by some cases. On the other hand, it would seem to be a rule not to grant certiorari after the plea of in nullo est erratum has been put in by the defendant in error; because both parties are then pledged to try the issue on the record. The plaintiff, having called on the defendant to join issue on the case made by his assignment of errors, will not afterwards be suffered to raise a new, and possibly a different, case by means of certiorari. And the defendant is, in like manner, precluded from certiorari; being held to have waived the allegation of diminution by his plea of in nullo est erratum. But, in the event of its being suggested or surmised, that any matter remains of record in the court below, tending to elucidate the errors assigned, I apprehend the House, ex proprio motu, even after issue joined, would order a certiorari to issue ad informandam conscientiam. This, however, is matter of speculation; for which I cannot cite a precedent. As it was soon found that applications for certiorari were often made by plaintiffs in error, merely studying delay, the House, at an early period, endeavoured to correct this abuse ("). Accordingly, by the Standing Order No. 54 (c), it is provided, (b) See order of 28th May 1648. (c) See Appendix, No. 1. That if any plaintiff in any writ of error shall allege diminution, and pray a certiorari, the clerk shall enter an award thereof accordingly; and the plaintiff may, before in nullo est erratum pleaded, sue forth the writ of certiorari in ordinary course, without special petition or motion to this House for the same; and if he shall not prosecute such writ, and procure it to be returned within ten days next after his plea of diminution put into this House, then, unless he shall show some good cause to this House for the enlarging of the time for the return of such writ, he shall lose the benefit of the same, and the defendant in the writ of error may proceed as if no such writ of certiorari were awarded. Instead of attempting a commentary on the practice of the House with respect to certiorari, I shall merely set forth some precedents recorded in the Journals. Phillipps v. David, 31 May, 1675.-The plaintiff by petition alleging diminution, a writ of certiorari was awarded, directed to the Custos Brevium of the Court of King's Bench, returnable on the 10th of June. Woodward v. Herbert, 26 June, 1678.-On the plaintiff's application, an order was made that the Chief Justice of the Court of King's Bench be attended with the errors and this order; and that thereupon his Lordship cause the said record and proceedings to be forthwith perfectly certified unto this court. 11 July. An alias certiorari awarded. Walker v. Scrape, 1 November, 1722.-The plaintiff having alleged diminution, but neglected to procure a certiorari to be returned within the time limited by the Standing Order, the defendant was allowed to proceed as if no such diminution were alleged. See also to the same effect Chivers v. Morfoot, 18 March, 1725. Where a variance between the transcript and the record is alleged, the House will award a writ of certiorari; and in such a case, the return will be accompanied by the original record, or such part thereof as may be necessary to ascertain the truth of the allegation; as in the following case:— Wilkes v. The King, 12 December, 1768.-On the petition of William de Grey, Esq., his Majesty's Attorney-General, for and on behalf of his Majesty, defendant in a writ of error depending in this House, wherein J. Wilkes, Esq., was plaintiff; setting forth that the plaintiff had assigned several matters for error in the record and proceedings in this case; and, amongst others, for that there was a variance between the said record brought into this House and the original information filed in D D |