case roe vers sir John more bart in the exchequerchamber January error in fact  be not assignable in the exchequerchamber this be error of a judgement in the  court of king bench in a action of assumpsit for for the occupation of a house  and for lodging and necessary comens er p find by the plaintiff for the  defendant and his servant on non assumpsit plead the jury find for the  plaintiff and give damage and judgement be give for the plaintiff on the that  of February Geo which be in hill term follow the plaintiff in error come in  his proper person before the justice of the court f common plea and the baron  of the exchequer and assign for error that it appear by the record that in  easter term Geo be defend and plead to issue in the court of king bench by  Richard Ednel his attorney whereas he be then a infant under the age of  twentyone year the defendant in error plead in nullo be erratum and pray that  the judgement may be affirm in this case it be agree that it be error for a  infant to appear by attorney for he ought to appear by guardian but the  question in this case be whether this be a error in fact be assignable for  error in the exchequerchamber which sit only by virtue of the statute  Elizabeth c comens and it be insist by Mr Robinson that it be and so it be  resolve cro Elizabeth and so again cro where all the justice and baron agree  except Anderson Ch I that it may be assign and the defendant plead that he be  at full age a nisi prius be award under the Exchequerseal and the chief  justice refuse to seal it on which issue the jury find for the plaintiff in  error upon which the judgement be reverse it be true when the record be remand  it be move in the court of king bench that they have proceed in the  exchequerchamber without warrant of the statute to try error in fait for the  statute empower they only to try error in the record and of that opinion be  all the justice but it be not strange that the justice of the court of king  bench who judgement be reverse shall determine against the jurisdiction of the  court that reverse it these case be m el the first be price case wherein the  death of the party before judgement be assign the other be that of rue v long  wherein the error assign be that the plaintiff be a infant sue by attorney  when he ought to have sue by guardian or prochein any which at that time be  error though it be since help by the statute James c after a verdict but  afterward the same error be assign that one of the defendant appear by  attorney be under age upon a writ of error in the exchequerchamber of a  judgement in the court of king bench and the judgement be reverse cro king  vers Marborough and craker so in error of a judgement in the court of king  bench in a action of ejectment it be assign for error that the lessor be seize  in right of his wife who die before judgement although the death of one who be  no party to the suit be hold no error yet it be agree in the exchequerchamber  that judgement may be reverse for matter of fact as the death of the party or  the like be the writ be absolute abate hob Wilkes and Jordon p James comens so  in the case cro car Jon where the death of two of the defendant before verdict  be assign for error it be move that this may be examine in the court of king  bench but the court hold that it can not after judgement enter then it vas  consider whether error in deed be assignable in the exchequerchamber because  as Berkley say the statute give power only to examine matter in law but  Branston Ch I Jones and crook hold that it be well assignable and in the  report notice be take that it be assign in the case of rue and long cro and  try by nisi prius and the like be h James rot and the like m car smith and  merchant sergeant draper contra insist that by the statute Elizabeth c the  preamble recite forasmuch as erroneous judgement give in the court of king  bench be only to be reform by the high court of parliament which court be not  so often hold as in ancient time neither in respect of the great affair such  erroneous judgement can be well consider of and determine during the time of  parliament whereby subject be great delay of justice therefore authority be  give to the judge of the common plea and baron of the exchequer to examine and  affirm or reverse the judgement of the king bench in the case there enumerate  so that it be plain the statute intend to give a writ of error before the  justice and baron comens er p only in case where a writ of error lie before in  parliament and to prevent delay where the parliament be not frequent hold as  therefore the parliament it be lie down in ld raym p that the house of lord  have no jurisdiction in a original cause because that Supreme court be the  last resort beside that for the most part original cause be mix with matter of  fact and it be unworthy of so supreme a court to try matter of fact for which  reason error of fact in b r must of necessity be bring before the same judge  of b r never examine into error in fact nor have any method to try they for it  be never know that the parliament ever issue process for the trial of any  matter of fact but only for error appear upon the record so this statute give  the justice and baron authority only to examine and reform error in and upon  the record nor be there any occasion for it for error in fact be before  remediable and still be by writ of error quod in person thou to sit back so  that it seem a encroachment upon the jurisdiction of the court of king bench  for the exchequerchamber to examine and try matter of fact which be comens  express provide against by the statute and by the exception in the writ of  error other than such as be concern the jurisdiction of the court of king  bench it be true that this matter be not so full consider at first and  therefore there be a variety of opinion among the judge about it and in price  case cro Elizabeth it be hold that error in fact may be assign and try but yet  they hold that they can not bail or do any thing but examine the error which  must be the error in the record before they so in the case cro though the  justice and baron hold such error assignable and triable by they yet Anderson  chief justice be of a different opinion and so strong so that he will not  suffer the seal in his custody to be make use of to seal the writ of nisi  prius and therefore it be no wonder that all the justice of the court of king  bench declare against it and refuse to grant restitution to the defendant  against who there be a execution which can only be on this foundation that the  exchequerchamber have no jurisdiction in the case and then the proceed before  they be null and void as be in this respect in person non judge the case hob  be only a bare admission of the court no judicial determination for the  judgement be not reverse so in the case in cro car for it come before the  court of king bench only upon a motion to amend the record by vary the entry  of the death of two of the defendant after the last continuance and make it to  be before the verdict although it be confess by the other party to be as the  entry be but the court hold that such amendment can not be make after  judgement enter then it be start how it can be help for as berckley say it can  not be assign for error in the exchequerchamber the other justice indeed on a  sudden think it may but then when it come to be consider bow it can be try  they all doubt and the matter be adjourn and what become of it afterward  appear not comens but in the case of Hopkins and prior vers Wrigglesworth lev  keb S c a vent SC where in error in the exchequerchamber of a judgement in the  court of king bench in a action of trespass the death of one of the defendant  before judgement be assign for error and in nullo be erratum plead which be a  confession of the fact yet the judgement be affirm for the exchequerchamber  have nothing to do with error in fact which the court of king bench may have  examine before the statute and therefore the statute extend to no case but  such wherein there be no remedy before but in parliament so it be say in the  case of Ipsly and Turk that error in fact can be assign in the  exchequerchamber Mod Jon salk lev S c b that matter of form can be assign  appear from side the cause be adjourn till the next term hill all the justice  and baron agree that error in fact can not be assign nor be it examinable in  the exchequerchamber that in nullo be erratum be in the nature of a demurrer  to it and that judgement ought to be affirm upon which it be move that the  plaintiff in error may discontinue his writ upon payment of cost which be  grant nisi causan and afterward make absolute but afterward in easter term  upon a affidavit that the cost be tax and have be demand and that the  plaintiff in error refuse to pay they the rule for discontinue the writ of  error be discharge the cause be again put into the paper and the judgement  affirm comens er p