Prickett v. Herring

KENT, October term, 1845. This was a certiorari directed to Justice Walston, who returned the record at the term, and the plaintiff *Page 324 in error filed exceptions in due time. When the case was called for hearing,

Mr. Bates, for the plaintiff below, asked to alledge diminution of the record; and the question arose whether the rule No. 36, which requires the plaintiff in a certiorari to file exceptions or alledge diminution by the first Friday of the term, should apply also to the defendant; and the court thought it would not be reasonable to require the party who supports the judgment to use the same diligence, for he necessarily awaits the proceeding of the other party.

Leave given to alledge diminution and continued.