
    BROWNELL v. SKINNER.
    Writ of error — waiver—jurisdiction—captious objection.
    Without a writ of error issued and returned, the oourt of error has no jurisdiction: the parties may appear and waive citation, but not the writ.
    
      If a party obtain a continuance of a complaint under the forcible detainer law, it is captious for him to object to the jury on that account, or to require a new complaint.
    Error to the Common Pleas. Skinner complained before two justices under the forcible d etainer law, and obtained a venire, returnable *the 14th of Sept. 1833. The parties appeared at the time, [683 and Brownell obtained a continuance of the cause till the 4th of October on account of the absence of a witness. At which time the parties and jurors appeared, and Brownell obtained a further continuance till the 26th of October. On that day the parties and jurors appeared for trial, and Brownell objected to the jury, and Skinner, without waiting for the decision of the justices, took a new venire on which the same jurors were summoned and answered. Brownell then objected that a second venire could not issue, .and as the first jury was discharged, no further proceeding could be had except a new complaint were made. The objection was overruled and the jury sworn. After the plaintiff rested her case, the court allowed her to call a witness to prove notice to the defendant to quit, and then charged the jury to return such a verdict as they should think proper. There was no bill of exceptions — these facts were certified by the justices. The judgment, which was for the plaintiff, was afterwards removed into the Common Pleas, by certiorari, and affirmed. To reverse this affirming judgment this writ is brought, and the general errors are assigned. A writ of error had been allowed, but none had issued.
   BY THE COURT.

This cause may be struck from the docket. Without a writ of error and a return we have no authority to act in the case. The parties may waive the citation but not the writ of error. We do not regret this, for the plaintiff’s objections are too captious to entitle him to favor.

[Issuing, service and return of writ of error cannot be waived, approved; Stemble v. Hewling, 2 O. S. 228, 233; Walker v. Walker, 4 W. L. M. 32, 36.]  