
    Bayard against Malcolm and Malcolm.
    After arrest: ofjudgment,if the plaintiff wish ti> bring a writ of error, the court will order judgment to be entered for the defendant for the insufficiency of the declaration— and if the attorney of the defendant does not make up the record, the plaintiff’s attorney may do it.
    The? judgment in this cause having been arrested, at the last term, Benson now suggested that the plaintiff had elected to bring a writ of error, and it became necessary for the court to render a judgment, as no writ of error would lie on an order arresting judgment. F°r that purpose, he prayed, that the rule of the last term might be vacated, and a judgment entered for the defendants, for the insufficiency of the declaration. He observed, that siich was the mode of proceeding in the English courts, and that this had been settled as the practice in this court, in the case of Fish v. Weathenvax, in JanuaryJ 1801.
    
    
      
      
        See rol. l.p. 345.
    
   The court ordered, that the rule entered at the last term, for arresting judgment, be vacated ; and that judg" ment be entered, as of that term for the defendants, for the insufficiency of the declaration; and further, that the attorney for the defendants make up., and file the record in due form, in twenty days, after service of a copy of this rule, or that the plaintiff make up the record, with a remittitur of the costs by the defendant.

Rule granted.  