WRIT OF ERROR,
practice. A writ issued out of a court of
competent jurisdiction, directed to the judge of a court of record
in which final judgment has been given, and commanding them, in
some cases, themselves to examine the re-cord, in others to send
it to another court of appellate jurisdiction, therein named,
to be examined in order that some alleged error in the proceeding
may be corrected. Steph. Pl. 138, 2 Saund. 100, n. 1, Bac. Ab.
Error, in pr.
2. The first is called a writ of error coram nobis or vobis. When
an issue in fact has been decided, there is not in general any
appeal except by motion for a new trial, and although a matter.
of fact should exist which was not brought into the issue, as
for example, if the defendant neglected to Plead a release, which
he might have pleaded, this is no error in the proceedings, though
a mistake of the defendant. Steph. Pl. 139. But there are some
facts which affect the validity and regularity of the proceeding
itself, and to remedy these errors the party in interest may sue
out the writ of error coram vobis. The death of one of the parties
at the commencement of the suit, the appearance of an infant in
a personal action, by an attorney, and not by guardian, the coverture
of either party, at the commencement of the suit, when her husband
is not joined with her, are instances of this kind. 1 Saund. 101,
1 Arch. Pr. 212, 2 Tidds Pr. 1033, Steph. Pl. 140 1 Brownes
3. The second species is called, generally, writ of error, and
is the more common. Its object is to review and correct an error
of the law committed in the proceedings, which is not amendable,
or cured at common law, or by some of the statutes of amendment
or jeofail. Vide, generally, Tidds Pr. ob. 43, Grahams Pr. B.
4, o. 1, Bac. Ab. Error, 1 Vern. 169, Yelv. 76, 1 Salk. 322, 2
Saund. 46, n. 6, and 101, n. 1, 3 Bl. Com. 405, Serg. Const. Law,
4. In the French law the demande en cassation is somewhat similar
to our proceeding in error, according to some of the best writers
on French law, it is considered as a new suit, and it is less
an action between the original parties, than a question between
the judgment and the law. It is not the action which is to be
judged, but the judgment, ",la demande en cassation est un
nouveau proces, bien moins entre les parties qui figuraient dans
le premier, quentre larret et la loi.", Henrion de Pansey,
de lAutorite judiciare dans les gouvernemens monarchiques, p.
270, edit. in 8vo., 6 Toull. n. 193. Ce nest point le proces
quil sagit de juger, mais le jugement. Ib.
5. A writ of error is in the nature of a suit or action, when
it is to restore the party who obtains it to the possession of
any thing which is withheld from him, not when its operation is
entirely defensive. 3 Story. Const. ,1721. And it is considered
generally as a new action. 6 Port 9.
Source: Bouviers Law Dictionary 1856 Edition
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