Ball v. Brigham

5 Mass. 406

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1809
• Status: Published

Opinion

Curia.

We have often declared that error does not lie in a case of this kind; but that the remedy of the,, party aggrieved must be sought by moving the Court for a writ of certiorari. In several cases, where the distinction between error and certiorari was not accurately attended to, if the proceedings were manifestly erroneous on the face of them, we have considered the proceedings as removed on certiorari, and have quashed them; at the same time declaring that this was an indulgence to the parties arising from an erroneous practice, which must be corrected.

As this opinion of the Court has long been published, and the practice has generally been conformed to it, this indulgence can no longer be continued. The writ of error must be quashed as having issued improvidently. The plaintiff in error may, if he see cause, move the Court for a certiorari.