[United States v. Mills.]

aver that the said carrier did in fact commit the offence of robbing the mail. The answer to this, as an abstract proposition, must be in the affirmative. But if the question intended to be put is, whether there must be a distinct, substantive and independent averment of that fact, we should say it is not necessary, and that the indictment in this case sufficiently sets out that the offence had been committed by Straughan, the mail carrier; and that no defect appears in the indictment for which the judgment ought to be arrested.

A certificate to this effect must accordingly be sent to the circuit court.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of North Carolina, and on the question and point on which he judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel: on consideration whereof, it is the opinion of this court that the indictment in this case sufficiently sets out that the offence had been committed by Straughan, the mail carrier; and that no distinct, substantial and independent averment of that fact was necessary, and that there is no sufficient cause for arresting the judgment: whereupon it is adjudged and ordered by this court, that it be certified to the said circuit court that the indictment in this case sufficiently sets out that the offence had been committed by Straughan, the mail carrier, and that no distinct, substantial and independent averment of that fact was necessary, and that there is no sufficient cause for arresting the judgment.

MARTIN PICKETT'S HEIRS, PLAINTIFFS IN ERROR V. SAMUEL LEGERWOOD ET AL.

'he court refused to quash a writ of error on the ground that the record was not filed with the clerk of the court until the month of June 1832, the writ having been returnable to January term 1832. The defendant in error might have availed himself of the benefit of the twenty-ninth rule of the court, which gave him the right to docket and dismiss the

cause.

The appropriate use of a writ of error, coram vobis, is to enable a court to correct its own errors, those errors which precede the rendition of the judgment. In practice the same end is now generally attained by motion, sustained, if the case require it, by affidavits; and the latter mode has superseded the former in the British practice.

In the circuit court for the district of Kentucky, a judgment in favour of the plaintiff in an ejectment was entered in 1798, and no proceedings on the same until 1830; when the period of the demise having expired, the court, on motion, and notice to one of the defendants, made an order inserting a demise of fifty years. It having been afterwards shown to the court that the parties really interested in the land, when the motion to amend was made, had not been noticed of the proceeding, the court issued a writ of error coram vobis, and gave a judgment sustaining the same, and that the order extending the demise should be set aside. From this judgment a writ of error was prosecuted to this court; and it was held that the judgment on the writ of error coram vobis, was not such a judgment as could be brought up by a writ of error for decision to this

court.

IN error to the circuit court of the United States for the district of Kentucky.

In the circuit court of Kentucky, at November term 1831, the defendants in error, Samuel Legerwood, Hugh Roseberry, William Henderson, William Mitchell and John Graves, filed a petition, stating that in 1796 a certain Martin Pickett brought his action of ejectment in the district court of the United States of the Kentucky district, against William Mitchell and William Maxwell. That the petitioner, Samuel Legerwood, under whose father and testator William Legerwood, the said defendants who were tenants claimed, was, with the said tenants, made defendant; and in 1798 a judgment was obtained in the said court in favour of Pickett, but no writ of possession was

[Pickett's Heirs v. Legerwood et al.]

executed in favour of Pickett. The demise in the declaration was laid at ten years, and expired in 1806, and remained dead and inoperative for nearly twenty-five years, when, before the spring term of the court in 1830, a notice was served by the attorney for the devisees of Martin Pickett on William Mitchell, that the court would be moved to amend the demise by inserting a new one; and on the sixth day of the term he procured an order to be made, inserting a demise of fifty years, without the knowledge of any person interested in the said land at that time, which ex parte order was not discovered until one year after. That a writ of possession was then, at the time of filing the petition, in the hands of the marshal, and he was about to take possession of the said land.

The petition proceeds to set forth the title under which William Legerwood, the father of Samuel Legerwood, claimed the land, against the title set up by Martin Pickett. That William Mitchell, one of the defendants in the suit, was a tenant of part of the land; that the tract of Legerwood was, several years after the judgment in ejectment, sold by an execution in favour of the devisees of Pickett, and was bought by Thomas Starke, to whom the sheriff conveyed the same; to whom also William Mitchell, the said defendant, sold out his interest in the land, and moved away nearly one hundred miles from the land; and has not for many years been a tenant of it. This fact is alleged to have been well known to the attorney for the devisees of Pickett; and that Mitchell, having no interest in the same, gave no information of the intended motion to the rest of the petitioners, who are terre tenants. The petition proceeds to state sundry conveyances and devises of the land under which the parties to the petition all became owners or claimants of the same, or possessors thereof, before the said motion to amend the demise, and the notice of the same to William Mitchell.

The petitioners Henderson, Graves and Roseberry say they are exclusive terre tenants, and, as such, were entitied to notice, even if the judgment was to be revived by scire facias; and that Mitchell had not been a terre tenant for upwards of ten or twelve years, and had no interest therein. That Samuel Legerwood has never been a terre tenant, but was entered VOL. VII.-T

[Pickett's Heirs v. Legerwood et al.j

defendant for those claiming under the title of his deceased father, and that Maxwell has abandoned the possession, and has been dead for many years.

The petition prays the court to award a writ of error coram vobis, to reverse and annul the order extending the demise, and to quash the impending writ of habere facias possessionem ; and for such other relief as the case requires.

The circuit court ordered an injunction to stay proceedings on the habere facias: and on the 26th November 1831 the following judgment was entered:

"The court being now sufficiently advised of and concerning the premises, do consider that the plaintiff's writ of error coram vobis, be sustained; that the order extending the demise in the declaration of Seekright, on demise of Pickett against Mitchell, &c. be set aside, and the habere facias which issued thereon be quashed; and that the plaintiffs recover of the defendants their costs herein expended."

From this judgment the plaintiffs in error, on the 28th of November 1831, prosecuted a writ of error to this court. The citation is dated of the 28th November 1831, and required the defendants in error to appear at the January term 1832 of this

court.

The record brought up by the writ of error, was filed in June 1832.

Mr Loughborough, for the defendants in error, moved to quash the writ of error on the following grounds.

1. Because, although the writ of error was returnable to January term 1832 of this court, the record was not filed until June 1832, the term of January 1832 having thus intervened.

2. Because the proceedings of the circuit court on the writ of error coram vobis, were not of such a nature as to admit of revision in this court; it being no more than a different form or mode of exercising the power the circuit court had over its acts, and therefore subject to the rules which this court have established against revising the interlocutory acts or orders of inferior courts.

The motion was opposed by Mr Wickliffe, for the plaintiffs in error.

[Pickett's Heirs v. Legerwood et al.]

Mr Justice JOHNSON delivered the opinion of the Court. This was a motion to quash the writ of error upon two grounds.

The first was because the record was not filed with the clerk of this court until the month of June 1832, whereas the writ of error was duly served, returnable to the January term 1832. It was contended that the case was out of court by lapse of time, and the filing at that late day could not reinstate it. But on this ground we are of opinion that the motion cannot be sustained; since the defendant in error might have availed himself of the benefit of the rule of court, which gave him the right to docket and dismiss the cause. This court decided in the case of Wood and Lide, that provided the service be before the return day of the writ, a return at a subsequent day will be sustained. 4 Cranch, 150, 2 Peters's Cond. Rep. 76.

The second ground is one which required more examination. The judgment below was rendered on a writ of error coram vobis, sued out in the same court, for the purpose of correcting an error committed at a previous term, and into which it was contended that the court had been surprised. We are not now called upon to decide on the merits of the cause below; nor whether it was a case proper for the application of that remedy. The motion here is to quash the writ of error, upon the ground that it is an exercise of jurisdiction in the court below which does not admit of revision in this tribunal: that it is but a different form or mode of exercising the power of the court of the first resort over its own acts, and is therefore subject to the same exceptions which have always been sustained in this court, against revising the interlocutory acts and orders of the inferior courts.

It cannot be questioned that the appropriate use of the writ of error coram vobis, is to enable a court to correct its own errors; those errors which precede the rendition of judgment. In práctice the same end is now generally attained by motion; sustained, if the case require it, by affidavits; and it is observable, that so far has the latter mode superseded the former in the British practice, that Blackstone does not even notice this suit among his remedies. It seems, it is still in frequent use in some of the states; and upon points of fact to which the remedy