avery against Kirton mich banc sup mich car rot error upon a judgement in  trespass Kirton bring a action of trespass against Avery and declare upon a  original for imprison he till he enter into a bind of l upon not guilty plead  the plaintiff have a verdict and a judgement the defendant bring a writ of  error and upon the certiorari to remove the record the record be certify and  in nullo erratum plead but the original in the record certify be that the  defendant keep the plaintiff in prison till he enter into bind of l a piece  whereas the right original be till he enter into one bind of l whereupon the  party bring a new writ of error and by that have the true original certify the  council for the defendant in the writ of error say that original after  original may as well be certify before in nullo be erratum plead style report  as afterward but here the party be at issue and the first original be certify  and issue join upon that and there can be a new original certify and the  original here do not agree with the other part of the record and so can  support it and our original certify stand with the record and here be no  certiorari to warrant the original here certify and it be a material variance  James banc Reg cummins case h f pasch Kedgwins case yard on the other side  answer that now the original be certify and be before you in this court and  you ought to judge as it be and not as it ought to be and it be agree with the  former process find both the original be before the declaration and the court  shall take the right original and the other shall be intend for another cause  roll chief justice say the certiorari be general and not inter part predict  but the certificate be inter part predict and the court may take the right  original that be certify and the judge be not bind by the plea in nullo be  erratum that be plead but may grant a new original writ of error but the party  can require it for he be conclude by his own plea and if he discontinue his  original he may have a due but not if be plead and the certiorari be good and  well certify and therefore judgement ought to be affirm Jerman Nicholas and  ask to the same effect and so judgement be affirm except better matter shall  be show Saturday next