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Writ of Error

court, steph and pl

WRIT OF ERROR. A writ issued out of a court of competent jurisdiction, directed to the judges 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 nam ed, to be examined, in order that some al leged error in the proceedings may be cor rected. Steph. Pl. 138 ; 2 Saund. 100, n. 1; Bac. Abr. Error.

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 ap peal except by. motion for a new trial ; and although a matter of fact should exist which was not brought into the issue, as, for ex ample, 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. *118. 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 commence ment of the suit, the appearance of an in fant in a personal action by an attorney and not by guardian, the coverture of either par ty at the commencement of the suit, when her husband is not joined with her, are in stances of this kind; 1 Saund. 101; Steph.

Pl. *119 ; Day v. Hamburgh, 1 Browne, Pa. 75. The writ of error coram vobis is used to correct errors of fact and not of law ; Maple v. Havenhill, 37 Ill. App. 311.

The second species is Called, generally, writ of error, and is the more common. Its ob ject 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 jeof ail. See, generally, 1 Vern. 169 ; 1 Salk. 322 ; 2 Saund. 46, 101; 3 Bla. Com. 405.

It is the usual way of bringing up a case; an appeal is an exception; Carino v. Insular Government, 212 U. S. 456, 29 Sup. Ct. 334, 53 L. Ed. 594. There cannot be two in the same case at the same time ; Columbus Const. Co. v. Crane Co., 174 U. S. 600, 19 Sup. Ct. 721, 43 L. Ed. 1102.