Reynolds v. Davis

2 How. Pr. 103

Opinion

A. Taber, for the motion to strike out the special plea, insisted that a writ of error in a civil case is a writ of right, by any party deeming himself aggrieved by the judgment or proceedings of a subordinate court, which the opposite party could not defeat by prosecuting a writ of error in the same cause. That there was no reason for attaching such a limitation to an unqualified right secured by statute, since it was clear that a party could not avail himself of his bill of exceptions upon his adversary’s writ of error. That several writs of error, by different parties in the same cause, involved no incongruity of practice or principle, and were supported by precedent and authority, and cited 2 R. S., 591, § 1, Cox agt. United States ; 6 Peters, 172, Birkhead et al. agt. Brown et al.; 5 Hill, 634; cases cited Til. and Yates on writs of error, 235-6 ; 2 R. S., 592, § 3.

1ST. Hill, Jr., insisted that the plea in question was a valid bar. That the pendency of the first suit in error was a bar to the second, prosecuted for the same cause, that is, for the reversal of the same judgment, between the same parties, and cited 6 Com. Dig. Pleader, 3 b. 18 and 19 ; Houghton agt. Starr, 4 Wend. 182 ; United States agt. Tingey, 5 Peters, 130; 1 Chit. Plead. 558, note k and 2.

Bronson, Chief J ustice.

Granted the motion but without costs, as the question was new in this court.