Pratt v. Bidwell

56 N.E. 707, 175 Mass. 453, 1900 Mass. LEXIS 795

Opinion

Holmes, C. J.

This is a writ of error upon a judgment of the Superior Court in a writ of entry. The error alleged is that, by mistaken figures in a plan giving a measurement which the scale of the plan showed to be wrong, every one was misled at the trial and the defendant in error recovered a strip of land to which she was not entitled. In short, it is an attempt to re-try a case upon its merits by writ of error, on the ground that the time for review has gone by, and that otherwise the plaintiff in error will suffer wrong. A writ of error has no such function. “ A party cannot re-try his case upon error.” Raymond v. Butterworth, 139 Mass. 471. “ Error in fact cannot be assigned, where it contradicts the record, and where the matter of fact might have been put in issue and tried, and a fortiori, when it is in fact put in issue and tried.” Riley v. Waugh, 8 Cush. 220, 221. Bodurtha v. Goodrich, 3 Gray, 508, 512. Gray v. Cook, 135 Mass. 189, 190.

Writ of error dismissed.