#### VANCE v. GOUDY AND WARING.

Error — final record — -journal entries — case in fieri — writ of error cannot be waived.

A writ of error only brings up the *final*records of the Court of Common Pleas. The writ is the authority for the Supreme Court to proceed: it is directed to the Court, not the party, and the party cannot waive it. He may waive a citation.

Where a case is removed from a justice of the peace into the Common Pleas, and is retained there after reversal, it is still *in*fieri, and cannot be removed by writ of error.

Several *entries*in progress of a cause are not records, to be noticed on a writ of error.

Issues will not be *considered*as joined: if parties do not make, up their issues, their causes will not be heard.

Error, to the Court of Common Pleas. The judgment of a justice of the peace had been brought into the Court of Common Pleas upon certiorari, reversed, and a judgment given for costs on the writ of certiorari: that court retained the cause for further proceedings under the statute, and no final record of the case has been made. The writ of error was allowed on copies of the *entries*in the Common Pleas, and the same are returned with the writ.

*T.*Corwin, for the plaintiff in error.

*A.*Harlan, contra.

By the Court.

Our statute (23 *Ó. L.*77) only allows writ of error to remove the *final judgment*of the Court of Common Pleas, and provides for returning a transcript of the *record*with the writ. *A rule*of this Court, in 1831, requires a copy of *the record*to be exhibited to the judge, allowing the writ of error-, and'permits the same copy to be returned, with the writ. The proceedings before us are neither copies of records, nor of *final judgments.*They are mere copies of proceedings still *in fieri.*The writ has been improvidently allowed to issue, for the. case‘is still pending in the court below. How can the case be before this Court on error, and at the same time, before the Common Pleas on its merits? Can we have part of a case on error, and that court the residue? The certiorari to remove a case from a justice into the Common Pleas, when the cause is retained in that court for further proceeding, in reference to the further proceeding in the cause, takes the place of mesne pi’oeess. Perhaps the decision of the court may yet be with the plaintiff in error, and he have no cause of complaint. At any rate, we cannot proceed, in anticipation of error in the Court of Common Pleas.

In fact, it does not appear that any writ of, error has been issued; nor is there any appearance, or plea, to the assignment of errors.

The counsel then proposed *to consider*the issue made up.

*308Court. No agreed case can give this Court jurisdiction to examine into the errors of the courts of Common Pleas, except on their record of the *final judgment.*The writ of error is the authority of this Court to examine the records of the Common Pleas; without it our judgment upon the records of that court, have no force. Counsel or parties cannot give jurisdiction by agreement. The writ of error goes to the inferior court,not the party,and the return is by the court or the clerk; the party cannot waive this, because it is not directed to him, nor intended to compel his attendance.. The citation, on the contrary, is to *the party,*and its object (is to bring him into court; he may, therefdre, appear voluntarily, and waive the citation or.serVice. As to *considering*an issue made up, we do not know how that is to be made manifest in our records. If counsel are too indolent to make up their issues, or cannot find time to do so, we cannot hear their causes.

Case ordered to be struck from the docket.