It does not appear from the papers before us, whether the plaintiff in error gave the common assignment of errors at the’same time with the allegation of diminution ; but this was probably so, and we will intend it, until the omission is shown affirmatively. He was right in giving the common assignment before the certiorari was issued, and alleging diminution at the same time, as the foundation of the certiorari. Although he issued a certiorari to verify the allegation, he might afterwards waive it, and proceed upon the common assignment. He has done so by taking the default. The force of the certiorari is probably spent, and the reversal, therefore, stands upon the face of the record; as nothing dehors this is brought up. But be this as it may, the plaintiff had a right to the effect of his rule to join in error, the defendant having omitted to take any step on his part.
Motion denied.
Note. The Court did not say how the defendant should have proceeded; whether by taking issue on the common assignment alone, or pleading in nullo est erratum to the whole, and trusting to the want of a return, upon the argument, as the Court of Errors may do in the like cases, according to their second rule; (see 1 Archb. Pr. 231, Tidd, 1112, for a similar rule in the House of Lords ;) or immediately taking a 4 day rule against the plaintiff to return the writ according to the practice of the King’s Bench, as laid down in 2 Sell. Pr. 378, (and vid. 2 Salk. 267, 2 Ld. Raym. 1156, Tidd, 1112.)