WRIT OF ERROR - 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.
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. 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.
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.
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.
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.
