pleas, where the king is not supposed to preside, it is called a writ of error coram vobis, because the record and proceedings are stated in the writ to remain before you (coram vobis); that is, the king's Justices. In the king's bench, the writ coram nobis also lies on the judgment of an inferior court, after the record has been removed into that court by a writ of error that has been quashed, or has abatedthe writ in that court, in such a case, answering all the purposes of a second writ of error. The reason of this is, that the record of the inferior court, and not a transcript of the record, is returned, or is supposed to be, although the transcript only is sent up": Teller v. Wetherell, 6 Mich. 45. Practically the difference between a writ coram nobis and one coram vobis in this country, in so far as the two writs may remain a part of our remedial procedure, is that that the former issues out of, and is directed to, the court where the judgment or other proceeding from which relief is sought was rendered or has taken place, and is in effect a command from that court to itself to grant relief from its own judgment or proceeding: Asbell v. State, 62 Kan. 209, 61 Pac. 690; Land v. Williams, 12 Smedes & M. 362, 51 Am. Dec. 117; Roughton v. Brown, 53 N. C. 593; Ledgerwood v. Pickets, 1 McLean, 143, Fed. Cas. No. 8175; while the writ of coram vobis issues out of a superior court and is directed to an inferior court. Otherwise the purpose is the same as that of the writ coram nobis. Nor does a superior court, though acting with respect to the judgment or proceedings of an inferior court, exercise a strictly appellate jurisdiction. At least, it does not proceed upon the assumption that the inferior court may have erroneously determined some question of law or of fact presented to it for decision, but, on the other hand, inquires respecting some matter of fact alleged as a ground for relief which was not presented for decision in the subordinate court.

II. Writs of Error Coram Vobis, Authority of the Courts of this Country to Issue.

Very rarely, indeed, in the United States, have writs of the character here under consideration been issued by the appellate or superior courts, and hence the great majority of opinions to be encountered in our reports relate only to writs of error coram nobis. There appears, however, to be no doubt of the power of an appellate or superior court to issue a writ coram vobis, provided the grant of jurisdiction to it by the constitution or laws of the state invests it with power to try the issues presented by such a writ. Hence, the writ has been issued by those superior tribunals which deemed themselves possessed of this jurisdiction: Adler v. State, 35 Ark. 517, 37 Am. Rep. 48; Teller v. Wetherell, 6 Mich. 46; Arnold v. Sandford, 14 Johns. 417; People v. Common Pleas, 20 Johns. 22; Higbie v. Comstock, 1 Denio, 652; Smith v. Kingsley, 19 Wend. 620; and, on the other hand, has been refused by such of these courts as regarded themselves as vested with the power to entertain

and determine assignments of error of law only: Land v. Williams, 12 Smedes & M. 362, 51 Am. Dec. 117; Fellows v. Griffin, 9 Smedes & M. 362; Calloway v. Nifong, 1 Mo. 159; Ex parte Toney, 11 Mo. 662; Powell v. Gott, 13 Mo. 458, 53 Am. Dec. 153; Davis v. Packard, 6 Wend. 327. We shall not here enter upon any inquiry for the purpose of ascertaining which of our several superior or appellate courts. have authority to entertain, try, and determine issues of fact, and may therefore grant relief by writ of error coram vobis; nor shall: we make any further inquiry respecting that writ, for we believe that whatever may be affirmed concerning writs coram nobis is equally true of writs coram vobis, provided they are issued by or sought in a superior court having under the constitution and laws of the state the requisite authority to consider and determine the issues presented.

III. Whether Writs of Right.

The authorities speak of a writ for errors of fact not being a writ. of right: Smith v. Kingsley, 19 Wend. 620; Ferris v. Douglas, 20 Wend. 626; Higbie v. Comstock, 1 Denio, 652; Comstock v. Van Schoonhoven, 3 How. Pr. 258; Tyler v. Morris, 2 Dev. & B. 487, 34 Am. Dec. 395; Crawford v. Williams, 1 Swan, 341; Birch v. Triste, 8 East, 414; and thus tend to produce the impression that the court has a discretion whether it will grant the writ or not. Perhaps what the courts have meant to affirm is, that the writ does not issue on a mere demand for it, that an affirmative showing must be made either by affidavit or verified petition, and from such showing, and not from a mere demand for the writ, the courts will determine whether it shall issue; and furthermore, that the issuing will be refused if it appears that the writ is sought for delay or merely to embarrass the party to the judgment or proceeding or for any other improper or inequitable purpose. On the other hand, some of the decisions support the inference that the court to which application is made for the writ has a discretion to deny it, and that such discretion will not be reviewed in the appellate court: Tyler v. Morris, 4 Dev. & B. 487, 34 Am. Dec. 395; Wood v. Colwell, 34 Pa. St. 92. IV. At Whose Instance and Against Whom the Writ may Issue.

The writ can issue only at the instance of a party to the judgment or one in privity with such party, or who is otherwise injured by the judgment against which relief is sought: Holford v. Alexander, 12 Ala. 280, 46 Am. Dec. 253. It is said that where there are two or more parties bound by a judgment, the writ must be prosecuted by or against all: Cook v. Conway, 3 Dana, 454; but the case was one in which there were two parties defendant, and relief was sought because of an error of fact as to one only, he being the only applicant for the writ, and the granting of relief being confined to him. The result was to leave the judgment in force against the other defendant when, because of the joint nature of the cause of action attempted.

to be asserted against both, the judgment should have been vacated as against both, if vacated against either. In Roughton v. Brown, 8 Jones, 393, it was said that the rule obtaining with respect to other writs of error, namely, that a writ of error must be brought in the names of all the parties to a judgment, and if one or more of them be unwilling to join in it, there must be summons and severance as to each of the objecting parties, does not apply to writs of error coram nobis, and at all events, that there is no necessity of a defendant joining or being joined in an application for a writ when he is not interested in the reversal of the judgment.

V. Questions of Practice.

க. The Petition or Affidavit.-As heretofore stated, the writ does not issue upon a mere demand for it. There must be an affidavit or verified petition disclosing the grounds upon which the writ is sought, or, in other words, stating the error of fact on account of which the right to the writ is claimed: Smith v. Kingsley, 19 Wend. 620; Ferris v. Douglass, 20 Wend. 626; Maher v. Comstock, 1 How. Pr. 175. In some of the states the practice prevails, after the filing of such petition or affidavit, of making a formal assignment of the errors upon which the applicant relies. The granting the writ must, nevertheless, be supported by the petition therefor, and no defects therein can be remedied by the assignment of errors, nor can it enlarge the grounds upon which relief is sought: Williams v. Clay, 5 Litt. 56; Elliott v. McNairy, 1 Baxt. 342; Gallena v. Sudheiner, 9 Heisk. 189.

As to the contents of the petition or affidavit, it is sufficient for our present purpose to state that they must disclose some proper cause for the issuing of the writ, or, in other words, must specify some matter of fact which, had it been known to the court, would have prevented the rendition of the judgment complained of: Dobbs v. State, 63 Kan. 321, 65 Pac. 658; Dunnivant v. Miller, 1 Baxt. 227; Hicks v. Haywood, 4 Heisk. 598; and where the writ is sought on the ground that the defendant in the action suffered the judgment because of his mistake or excusable neglect, or because of any matter justifying the vacation of the judgment, the petition must allege the existence of facts necessary to excuse the negligence, or to show that, in the mistake from which the applicant has suffered, he was not guilty of such negligence or inattention as to charge him with laches and thereby prevent the granting of relief to him: Thurston v. Belote, 12 Heisk. 249. Where the writ is issued in a criminal case for the purpose of escaping the effect of a conviction, upon the ground that it is the only method by which the accused may bring before the court some new fact, the affidavit or petition should be free from all vagueness and show clearly that but for the fact presented as a ground for the writ the conviction could not have occurred: Wheeler v. State, 158 Ind. 687, 63 N. E. 975; Holt v. State, 78 Miss. 631, 29 South. 527.

b. The Notice of the Application.-Usually notice of the application for the writ is required to be given to the party to be affected thereby: Mears v. Garretson, 2 G. Greene, 316; Maher v. Comstock, 1 How. Pr. 175; Ferris v. Douglass, 20 Wend. 626; Comstock v. Van Schoonhoven, 3 How. Pr. 258; Hicks v. Haywood, 4 Heisk. 598; though in one state it is said that such notice is required only when the writ is intended to operate as a supersedeas: Combs v. Carter, 1 Dana, 178.

c. Pleadings in Opposition to the Writ.-If the affidavit or petition does not disclose an error of fact sufficient to warrant the issuing of the writ, it has been said that no pleading in opposition thereto is necessary or proper, but if a demurrer be interposed, it may be regarded as mere surplusage: Landsdale v. Findley, Hardin, 158. Doubtless, if the affidavit or petition on the part of the applicant does not disclose any error of fact, the writ ought not to issue merely because no response is made thereto. In truth, however, the practice at the common law appears to have been to issue the writ, or to give an order directing such issuing, and no responsive pleading was entertained until a later date, and then the plea, if the statements of the plaintiff in error were regarded as insufficient to justify the issuing of the writ, was in the nature of, and at least had the same effect as a demurrer. "The writ being granted, the plaintiff in error makes a formal assignment of errors, in the nature of a declaration, stating the errors of fact relied upon; and to this assignment the defendant may plead or demur. The common plea in error is, in nulla est erratum, which admits the fact to be as alleged, and insists that in law it is not error, and the matter of law arising upon this plea or upon demurrer is, of course, referred to the judgment of the court. If the defendant would deny the truth of the error in fact assigned, he must traverse the same by plea and take issue thereon; or, if the case requires it, he may plead specially any matter in confession and avoidance, as a release of errors, the statute of limitations, etc., to which the plaintiff in error may reply or demur as may seem proper": Crawford v. Williams, 1 Swan, 342; Goodwin v. Sanders, 9 Yerg. 91.

Among the defenses available in opposition to the writ is one that the application has not been made in time, either on the ground that some statute of limitations has become operative, or that the time allowed by some rule of court has expired. If the defense of the statute exists, it must be pleaded: Eubank v. Rall, 4 Leigh, 508. In some of the states there is no statute limiting the time within which the writ may be sought: State v. Calhoun, 50 Kan. 523, 34 Am. St. Rep. 141, 32 Pac. 38; Dobbs v. State, 62 Kan. 108, 61 Pac. 408; and it appears that limitations of time for prosecuting writs of error are inapplicable to writs coram nobis: Strode v. Stafford Justices, 1 Brock. 162, Fed. Cas. No. 13,537. In Tennessee the writ must not

issue unless applied for within a year after the rendition of the. judgment: Elliott v. McNairy, 1 Baxt. 342.

d. The Trial and the Issues Which may be Presented and Contested Thereon. The issues presented must be tried and determined as are like issues in other cases. Issues of law relating to the sufficiency of the alleged errors of fact to entitle the applicant to relief are, of course, heard and determined by the court like other issues of law and without receiving evidence. Where there is any issue of fact, it must be tried: Adler v. State, 35 Ark. 517, 37 Am. Rep. 48; Landers. v. State, 85 Ină. 318, 44 Am. Rep. 29; Cook v. Conway, S Dana, 454; and if the parties demand, by a jury: Fellows v. Griffin, 9 Smedes & M. 362. Where, as is commonly the case, writs of coram nobis do not issue, but motions are entertained as substitutes therefor, the usual practice is to determine issues of fact in the same manner as like issues are determined when arising on other motions, namely, by the court on affidavits and without a jury: Consolidated etc. Co. v. Oeltjen, 189 Ill. 85, 59 N. E. 600. The issues which may properly present themselves for trial do not involve or permit a re-examination or retrial of any issue of law or fact which was expressly or impliedly presented for decision by the court before rendering the judgment from which relief is sought. Doubtless the complaint on which the judgment is based will not be considered for the purpose of determining its legal sufficiency, and the pleadings will not be looked into for the purpose of considering the nature of the cause of action or of defense and of withholding relief if found not to be equitable or meritorious: Higbie v. Comstock, 1 Denio, 652. The record of the case in which the judgment was pronounced cannot be contradicted; the errors assigned must be consistent with it. Hence, the trial cannot involve the hearing of evidence to show that the statements of such record are false: Holford v. Alexander, 12 Ala. 280, 46 Am. Dec. 253; Williams v. Edwards, 12 Ired. 118. This rule applies when an attempt is made to attack a sheriff's return of the serviceof a writ of notice: Shoffet v. Menifee, 4 Dana, 150; Bolling v. Anderson, 1 Tenn. Ch. 127. The whole matter at issue involved in the original trial is not opened for a new trial, but only the questions. presented relating to alleged errors of fact: Breckinridge v. Coleman, 7 B. Mon. 331. Conflicting evidence will not be heard relating to the existence of the cause of action or of the ground of prosecution upon which the judgment in a civil action or a criminal proceeding was founded: Dobbs v. State, 65 Kan. 321, 65 Pac. 658; Memphis etc.. Inst. v. Hargan, 9 Heisk. 496. Hence, relief from a conviction cannot be procured by a writ coram nobis on the ground that proof can be made that another person committed the crime: Howard v.. State, 58 Ark. 229, 24 S. W. 8; or that the prosecuting witness has since the trial admitted that his testimony was materially false: State v. Superior Court, 15 Wash. 339, 46 Pac. 399, or that the accused has since his trial and conviction discovered new evidence establish