Writ of error


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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 record; 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 Tidd's Pr. 1033; Steph. Pl. 140 1 Browne's Rep. 75.
     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, Tidd's Pr. ob. 43; Graham's 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, ch. 5.
     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, qu'entre l'arret et la loi." Henrion de Pansey, de l'Autorite judiciare dans les gouvernemens monarchiques, p. 270, edit. in 8 vols.; 6 Toull. n. 193. Ce n'est point le' proces qu'il s'agit 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. Sec. 1721. And it is considered generally as a new action. 6 Port 9.

References in periodicals archive ?
Interpreting section 22 of the Judiciary Act of 1789, it held that the Supreme Court lacked jurisdiction to review a writ of error or appeal (31) unless: (1) the writ of error be returned by the end of the next term, (32) (2) the writ of error be signed by the lower court judge, (33) (3) an authenticated transcript be filed the next succeeding term after the appeal is taken, (34) and (4) the appeal be brought within five years.
The first feature of section 25 discussed below is that it provided for a writ of error in "any suit," not "any case" or "any suit or prosecution.
Thus, what we term an appeal today resembles much more a writ of error than the word's original meaning.
La caracteristique universellement decriee de cette notion et de la procedure de writ of error tenait a ceci: elles exageraient au-dela de toute mesure raisonnable l'importance d'irregularites techniques (ou d'un legalisme obtus) en en permettant la revision au compte-gouttes, mais elles occultaient simultanement de reelles injustices qu'il etait impossible de corriger en raison des lacunes materielles du dossier.
into execution, and no appeal or writ of error from the [remand
1) In certain narrow circumstances, the rare writ of error coram nobis is a remedial petition primarily available to criminal defendants who want to challenge their convictions.
29) The terminology "cases of error," by definition in common law practice, required the issuance of a writ of error.
Under this provision, the Supreme Court's certiorari power was confined to those cases in which the judgment or decree of the circuit court of appeals was not reviewable by appeal or writ of error.
8) The sufficiency of the evidence presented at trial was not open to review on writ of error.
Liebman persuasively demonstrates that "the commensurability and substitutability of writ of error and habeas corpus review" is reflected by the categories of cases in which the Court was willing to entertain federal habeas petitions of state prisoners.
By instructing that the writ of error should have the same effect in cases from the state courts and circuit courts, section 25 incorporated section 24's directive that "the Supreme Court shall not issue execution in causes that are removed from them by writs of error, but shall send a special mandate to the circuit court to award execution thereupon.
10(1)(b) of the New York Criminal Procedure Law is a partial codification of the writ of error coram nobis, (10) an ancient English common law doctrine that the New York Court of Appeals rejuvenated in 1943 in Matter of Lyons v.