
    Brents vs. Barnett.
    
      December 14.
    If plaintiff in error coram vo-bis, alTign errors in fact and in law, defendant may demur for duplicity.
    But if be does not, and the court award judgment a# gainft the plain, tiff, that judgment will be affirmed, onac¿ count of che duplicity.
    On affirmance damages given only upon the damages in the court below»
   OPINION ofthe Court, by

Judge Owsley.

.This writ of error is prosecuted to reverse a judgment awarded against the plaintiff in this court in a writ of error coram.vobis brought by him in the Green circuit court. The errors assigned in the writ of error coram vobis, are both errors in fact and law : and it is clear, ha‘d the defendant demurred for the duplicity, the judgment sought to be avoided in the court - below should have been affirmed — See 2 Saun. 101.

But it is contended the defendant having failed to demur or plead in the court below, that court should not have disposed of the cause under such circumstances. It would certainly have beep more regular for the pleadings to have been properly prepared in that court before any judgment was given ; but as the judgment is against the plaintiff, and it is apparent, because of his having assigned errors in fact and law, on a proper state of pleading judgment should have been given against him. The judgment should not be reversed for the purpose of remanding the cause, for pleadings which must ultimately produce a judgment similar to that sought to be reversed.

It is again contended that the judgment of the court below, is neither an affirmance of the judgment to avoid which the writ of error cor am vobis was prosecuted, nor a dismissiop of the writ; hence it is urged ten •per cent, damages should not have been adjudged against the plaintiff in that court»

The writ of error coram vobis was brought to avoid executions and a bond taken by the sheriff for the sale of land at three months credit. That bond by operation of law has the force of a judgment, and as we have before shewn, had a demurrer been filed by the defendant, for the duplicity in the assignment of errors, that judgment should have been affirmed. And although the judgment in this case is not entered in die most technical and formal manner, in substance it is an affirmance. And according to the case of Lansdale and Findley, decided by this court, (Hardin 152) the court below decided correctly m giving judgment for ten per cent, damages. The errors in the proceedings for which the writ of error was brought in the court below, cannot be noticed in this court, because the proceedings on the part sf the plaintiff are so irregular as not to justify a judgment in his favor, did any errors exist.

The judgment of the circuit court must be affirmed with costs and damages upon the damages awarded in that court.  