By the Court.
Nisbet, J.
delivering the opinion.
[1.] The dismission of a writ of error in this Court, confirms the judgment below. This is true by our own ruling. We dismiss a writ for defective pleadings. Our judgment, in that case, is not upon the merits of the cause as made in the pleadings. It is upon the sufficiency of the pleadings, and nothing else. The confirmation of the judgment is the legal effect of the dismission of the writ. It is the conclusion which the law draws from that fact. Now, the damages are awarded for bringing up causes for delay only. Whether, they are brought up for delay only, can only be determined by a hearing and judgment on the merits. If we neither hear nor adjudge a cause, how can we grant or withhold a certificate ? The law, we are satisfied, does not contemplate the recovery of damages in such a case. The damages are recoverable when the judgment of the Court below is for a sum certain, and is affirmed in the Supreme Court, provided no one of the Judges will certify that the case was not brought up for delay only. The granting or withholding the certificate is a discretion to be exercised when the judgment, being for a sum certain, is affirmed by us. In this case there has been no affirmance of the judgment by this Court. It is not, therefore, a case for damages. See law organizing Supreme Court, sec. 5, 1 Kelly, 8.
Let the judgment be affirmed.
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