Opinion
(1793.)
In error, after errors assigned, the defendant pleaded in nullo est erratum. The record not being fully removed, it was agreed that the plaintiff and the defendant are now estopped from alleging a diminution of record, and no certiorari can be awarded at the suit of the parties. But on the view of Bishop's case, and other precedents, it was agreed per curiam that the court may award a certiorari, ex officio, ad informand. conscientiam; and then what is so certified shall be annexed to the record and called a rider.
But WHITLOCK, J., thought differently.
And by the advice of DODERIDGE, J., the party took such a certiorari ex officio, and the judgment was reversed.
Novel Entry, 254, 263, 267; Gage's case, 5 Rep., quod intratur, M. 39, 40 Eliz., and Bishop's case, 5 Rep., quod rotulat; P., 33 Eliz. rot., 361, which was after a nihil dicit, and not after an in nullo est erratum, as the book says. T., 13 Jac., rot., 52. Bishop of Rochester's case, and Young's case.
The entry here shall not be as the party requires, but as awarded by the court. Novel Entry, 242, 266; 1 Roll., 764, 765; Jones, 139; Noy, 83.