Opinion
AUGUST TERM, 1797.
Ingersoll and Dallas, for the Defendant in error objectep, that a writ of rrror must be prosed of the Term preceding that to which it is made returnable; that a Term cannot intervene between the liste and the returu. E. Tilghman endeavoured to support the writ, considering the objection as founded on a mere error in form, cited 2 Bl. Rep. 918. 2 L. Raym. 1269. Judicial Act S. 32. 1 Vol. p. 72.
ERROR from the Circuit Court, for the District of Georgia. Judgment had been rendered in the Court below, for the Defendant in Error, on the 15th. of November 1796. On the 2nd. of January 1797, the Writ of error was sued out, and lodged in the office of the Clerk of the Circuit Court, and it was served, with the proper notices, on the Defendant in error, upon the 14th. of January 1797; but the affidavit of service was not made till the May following; nor was the writ even transmitted, or returned, till the present Term.
But, THE COURT observed, that there was no error in point of fact; nor any clerical error to amend. The writ bears the date when it was actually sued out and lodged in the office: there is, therefore, nothing on the record, by which it can be amended; and the objection is fatal.
The Writ of Error was, therefore, non-prossed.