
    *Thomas Freeborn against John Denman.
    1. Error in fact and error in law cannot be joined in one assignment of errors.
    2. If they are joined, the proper way to take advantage' of it is by-demurrer.
    3. After demurrer, the assignment of errors may be amended.
    This was a writ of error, brought to reverse a judgment which had been rendered by the Court of Common Pleas of the county of Middlesex against the plaintiff in error, who thereupon brought this writ, and the following errors were assigned:
    1. That, by the record, it appeared that the referees in the said record mentioned reported to the Court of Common Pleas, that there was due to the said John Denman the sum of seventy-one dollars ; that the said court gave ’judgment upon that report for the said John Denman against the said Thomas Freeborn, and added thereto, by way of increase, the costs of suit, whereas, by law, the said John could not recover costs against the said Thomas in the said action, the said-judgment, without costs, being under one hundred dollars.
    2. That action in the Common Pleas was brought by the said John Denman and’one Randolph Jaques, jointly, against the said Thomas Freeborn, and the said referees,’ to whom the said action was referred, reported to the said Court of Common Pleas, that there was due to the said John Den-man the sum of seventy-one dollars : which report does not appear to be upon the matters in difference in the cause.
    3. That, by the record, it appears that the action in the Common Pleas was brought by the said John Denman and Randolph Jaqués,-jointly,- against the said Thomas Freeborn ; that the referees reported in favor of the said John Denman, and the Court of Common Pleas gave- judgment for the said John against the said Thomas, when in truth and in fact the said Randolph Jaques, before the referees made their report, died.
    To this assignment of errors, there was a demurrer and joinder in demurrer, and the cause of demurrer specified was, that' the plaintiff in error had, in his assignment of error, joined error in law and error in fact, which it was not lawful for him to do.
    
      Chetwood, in support of the demurrer, contended
    that in an assignment of errors upon the same writ, error in law and error *in fact could not be joined, and cited 2 Tidd’s Prac. 1107; 1 Arch. Prac. 246; Rob. Abr. 761; 1 Sid. 147; 1 Leon. 85; 1 Strange 439; 2 Ld. Ray. 883; 2 Saund. 101, q.
    
    
      Seudder admitted, that he could not assign error in law and error in fact in the same assignment; but ’denied that there was any case to shew that errors in law and errors in fact could not be assigned in different, assignments on the same writ.
    
      Chetwood said,
    there were numerous cases to show that it could not be done in different assignments on the same writ, and cited Carth. 338; 2 Bac. title Error, letter K. 487-8.
    
      Scudder was about to reply, when the Chief Justice asked him, if there was any case to shew that error in fact could be assigned in a superior court? and observed, that if there was any case of that kind, he should be’glad' to see it. The ancient form was, to bring a writ of error, coram nobis, upon error in fact, but error in law only can be assigned coram vobis in a superior court.
    
    
      Scudder observed, that even if the demurrer was put in, the court would permit him to amend the assignment of errors, and withdraw either the errors in law or fact, as lie thought proper.
    Ford, J. The party may take his electionjoefore he proceeds to assign error in law or error in fact; but after he has gone for both, I think it is too late to elect.
    
      
       Though in civil casos error does not lie in the same court, unless for matters of fact, yet in criminal cases it lies as well for an error in law as fact. SUL 208; 2 Jiao-Abr. title Error, letter 1. 0, 184.
    
   Kirkpatrick, C. J.

We are- all of opinion, that this demurrer is supported; that an assignment of errors is a proper subject of demurrer, and that you cannot assign error in fact and error in law together. If you think that the assignment of errors may be amended, wo will hear you on that subject.

Scudder then applied for leave to amend the assignment of errors, and cited 1 Arch. Prac. 215; Fitzg. 268, and Rev. Laws 140-1, to shew that the court had the power to grant the rule to amend.

Ber Curiam.

You may take your rule ^to amend, on payment of costs.  