
    WELSH v. BROWN.
    1. A writ of error directed to the Circuit Court, having been dismissed for want of prosecution, the plaintiff in error cannot sue out a second writ of error.
    2. The record being removed into this court by the first writ, a second writ, directed to the court below, commanding it to certify and return the record, would be a nugatory thing.
    
      S. If the first writ of error was irregularly or improvidently dismissed, the remedy of the plaintiff in error is by motion to set aside the order of dismissal.
    On motion to dismiss writ of error.
    Argued at February Term, 1880, before Justices Depue, Scudder and Knapp.
    For the motion, S. B. Ransom.
    
    
      Contra, Alfred Mills.
    
   The opinion of the court was delivered by

Depue, J.

The plaintiff in error, who was plaintiff below, sued out a writ of error directed to the Morris Circuit Court, to remove into this court a judgment entered in that court on a verdict against him. The writ was duly returned, and at November Term, 1878, was dismissed for want of prosecution. Within the three years after judgment, allowed by the statute of limitations for bringing writs of error, the plaintiff sued out of this court a second writ of error, directed also to the Circuit Court, to bring up the same record. Motion is now made to dismiss the latter writ as improperly issued.

On dismissal of the first writ of error, no remittitur was-entered.

A writ of error answers a two-fold purpose. It is a certiorari to remove the record from the inferior court, and a commission to the superior court, to examine into the record and to affirm or reverse, according to law. If the record be properly described, the eeriioran-paxt of the writ is good, and the record is removed, and will remain in the superior court,, though the writ be quashed. Jacques v. Cesar, 2 Saund. 100, note. In practice, it is usual to send only a transcript of the-record, yet, in contemplation of law upon a writ of error in the King’s Bench, the record itself is removed. 2 Saund. 101, q; F. N. B. 45. The record being removed by the writ, into-the court to which it is certified, it remains there until a remittitur be entered, though the writ is determined by abatement or discontinuance, and until such remittitur be made, the judgment is not again in the court from which it has been certified. Howard v. Pitt, 1 Salk. 261. The supersedeas continues until the record is sent back by a remittitur, though the judgment be affirmed, or the plaintiff in error be non-suit or discontinue, or the writ is abated. Com. Dig., “Pleader, 3 B, 12. After affirmance or non pros., for not assigning errors, execution for the sum recovered below issues out oí' the court to which the record was removed, if it be a court out of which an execution may issue. 2 Saund. 101, dd. Upon analogy with this practice, on dismissal of a writ of certiorari for want of prosecution, execution for the debt and costs issues out of this court. Anon., 2 Penn. 753. It is only when the record is not removed because of a variance ¡between the writ and the record, or the writ is non-prossed -before the removal of the record, that a new writ is necessary. 2 Tidd 1177.

The record being already in the court of error, by force •of the first writ, a second writ to the court below, directing it to certify and return the record, is a nugatory thing. Garr v. Paulmier, 1 Zab. 681, was manifestly decided on that ground. A writ of error directed to the Circuit, had been sued out •of the Supreme Court; and was dismissed for want of prosecution. A second writ, directed also to the Circuit, was sued out of the Court of Errors, and was dismissed on motion. No opinion was delivered, but it is obvious that the Court of Errors, being an independent court of error, out of which writs of error go direct to the Circuit Court, the dismissal •must have proceeded upon the ground that the record, being removed into the Supreme Court by the first writ, and remaining there, could not be reached by a second writ, sent to the Circuit. The plaintiff in error having elected to remove the record into the Supreme Court, could not reach the record by a second writ out of the Court of Errors, directed to the Circuit, from which court it had already been removed into the Supreme Court. In Hartop v. Hoyt, 1 Salk. 263, Holt, C. J., states it as settled practice, that if the plaintiff in error be non-prossed, he shall not have his writ of error again.

By the ancient practice, if the record was removed by the first writ of error, and' the writ abated, or was discontinued -or quashed, the plaintiff might have another writ, which was •called, indifferently, a writ of error coram vobis or coram nobis. This writ was bi-fold in form, and answered a double purpose. It lay in the King’s Bench to correct error in fact or ■error in process, in judgments given in that court, where the ■error arose through the default of the clerks, but not to correct an error in the judgment of the court. It was also, allowable in the King’s Bench for the examination of a record removed there from another court, by a writ of error, where the latter writ had been quashed for insufficiency, or was discontinued. If a record is removed by writ of error, out of the Common Pleas into the King’s Bench, and the writ of error, for insufficiency, is quashed in the King’s Bench, the plaintiff in error may have a new writ coram vobis residente* Bao. Abr., “ Error,” I, 6. So, if the record be removed into the King’s Bench, by a writ of error, and the writ afterward, abate, either by the judgment of the court or by plea,, death, or otherwise, error coram vobis lies in that court. 2' Saund. 101, a, note; Com. Dig., “Pleader,” 3 B, 13; 1 Arch. Prac. 234. In a writ of error where the record cometh into court, if the plaintiff, at that term, do not assign his errors,, and, although that he do assign his error, if he do not sue out a scire facias ad audiendum errores against the defendant, returnable the same term, or the next term, all the matter is discontinued, and at the next term, he ought to sue a new writ of error out of chancery, upon that record, directed to-the justices before whom the record is removed, to proceed-upon the record quae coram vobis residet. F. N. B. 46. If .the record was ever well removed, this writ of error coram vobis is the only one which could be had. Pratt, C. J., in Cooper v. Ginger, 1 Stra. 607. The record being already in the court, the certiorari clause was omitted from tfye writ of error coram vobis, as unnecessary. It recited, quod venire fecimus, the record by a former writ, returnable in curia nostra coram vobis', and commanded “ that the record and proceedings aforesaid being inspected, you may further cause to be done,” &c. Walker v. Stokoe, reported in 1 Ld. Raym. 151, and also in Carthew 367, is a precedent for such a writ. A writ of error was sued out to remove a judgment of the Common Pleas, which the plaintiff quashed on his own motion, for a mistake as to parties. And thereupon he sued out a writ of error coram vobis residente, which was quashed for an error in its recital. As appears by the report in Car-thew, a new writ coram vobis was allowed, on which the judgment was reversed. In Ginger v. Cowper, 2 Ld. Paym. 1403, a writ of error to the Common Pleas was quashed, and a writ of error corarn vobis residet was sued out. On motion to-quash, the court held that the record was removed into the King’s Bench, and consequently error coram vobis residet will lie.

But it is hardly worth while to recall the learning relating to this ancient precept, so long out of use as to be almost obsolete—the place of which is fully supplied by the extensive powers exercised by the court upon motion ; for the allowance of such a writ of error is discretionary with the court, and is not demandable ex debito justitice. Weal v. Smith, W. Kel. 123; Ribout v. Wheeler, Sayer 166; Horn v. Bushel, 2 Stra. 949; Ferris v. Douglass, 20 Wend. 626. If the writ be applied for in the court in which the judgment was given, to revise the judgment for matter of fact, the prosecutor being in no default, the court will allow it, if error in fact be shown to exist. Higbee v. Comstock, 1 Den. 652. But if the plaintiff has lost the benefit of the first writ of error, by his own default, the court, in exercising its discretion in allowing the writ, will be governed by considerations which would arise on a motion to set aside the judgment of non pros.; and, under our practice, the relief of the plaintiff, in such a case, may well be left to be obtained upon such a motion.

This writ of error does not purport to be a writ coram vobis. It is directed to a court in which the record is not remaining, and is a nullity, and should be quashed. Smith v. King’s Ex’rs, 19 Wend. 620.

Ordered accordingly.  