Dewitt v. Post

11 Johns. 460

Opinion

Platt, J.

delivered the opinion of the court.. This court, . . . , . , . on writ oí error coram vobis, gave judgment, if correctly enter- • ed, that its former judgment, in this cause, be “ revoked, annulled, and altogether held for nothing,” for an error in fact; viz. that the defendant, being an infant, appeared by attorney. It seems, judgment of reversal for error in fact, is “ revocetur.” For error in law, « reverseturP (Bac. Abr. tit. Error. (M) s. 2. Rol. Abr. 805.) i

In this case the first judgment is recalled, for error dehors the . record ; but, according to the forms of entries, in such cases, the “proceedings” are not reversed and annulled. (Tidd's Practical Forms, 304. &c.)

In the case of Cuming v. Silly, (Burr. 2490.) Lord Mansfield says, “ Where the defendant below brings a writ of error, we only reverse such wrong part of the judgment as he complains of.”

In this case we correct our own judgment. The record has never been out of this court; and I see no reason for compelling the plaintiff, who no doubt made an innocent mistake, to commence his suit de novo.

Let a new rule to plead be entered.