Pickett's Heirs v. Legerwood. 7 P. MARTIN PICKETT'S HEIRS, Plaintiffs in Error, v. SAMUEL LEGERWOOD et al. If the defendant in error fail to move to docket and dismiss a cause, until after the record has been filed, the writ of error will not be dismissed. A writ of error, coram vobis, enables a court to correct errors which preceded its judgment. It is now generally disused; a summary proceeding upon motion and affidavits, where they are necessary, being substituted. A writ of error from this court does not lie to examine a judgment rendered on a writ of error, coram vobis, where the error alleged was in granting an amendment. ERROR to the circuit court of the United States for the district of Kentucky. The case is stated in the opinion of the court. Loughborough, for the motion. Wickliffe, contrà. JOHNSON, J., delivered the opinion of the court. This was a motion to quash the writ of error upon two grounds. [ *147] 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, 180; 2 Pet. 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, Pickett's Heirs v. Legerwood. 7 P. 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 practice, 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 [148] points of fact to which the remedy extends, it might, perhaps, be beneficially resorted to as the means of submitting a litigated fact to the decision of a jury; an end which, under the mode of proceeding by motion, might otherwise require a feigned issue, or impose upon a judge the alternative of deciding a controverted point upon affidavit, or opening a judgment, perhaps, to the material prejudice of the plaintiff, in order to let in a plea. But in general, and in the practice of most of the States, this remedy is nearly exploded, or at least superseded by that of amending on motion. The cases in which it is held to be the appropriate remedy will show that it will work no failure of justice, if we decide that it is not one of those remedies over which the supervising power of this court is given by law. The cases for error coram vobis, are enumerated without any material variation in all the books of practice, and rest on the authority of the sages and fathers of the law. I will refer to the pages of Archbold for the following enumeration. (1st vol. 234, 276, 277, 278, 279.) "Error in the process, or through default of the clerk; error in fact, as where the defendant being under age sued by attorney, in any other action but ejectment; that either plaintiff or defendant was a married woman at the commencement of the suit; or died before verdict or interlocutory judgment, and the like.” But all the books concur in quoting the language of Rolle's Abridgment, p. 749, "that if the error be in the judgment itself, and not in the process, a writ of error does not lie in the same court, but must be brought in another and superior court." The writ of error in this case was but a substitute for a motion to the court below, to correct an error of its own, in granting improvidently a motion for leave to amend. Many years had elapsed since entering a judgment in ejectment; the term declared on had long since expired; the terre tenant was changed; only one of the original defendants survived, and he had removed to a great distance from the premises recovered; on him alone notice of the motion was United States v. Wilson. 7 P. served; and the court, unaware of these facts, granted leave to amend the declaration in the original suit by extending the term more than twenty years, so as to enable the plaintiffs to sue out a writ of possession. This writ of error was sued out to enable the court below to correct that error; they have ordered that it [149] shall be corrected; and from that order to set aside their former order and quash the writ of possession, is the appeal now made to the reversing power of this court. We think the case comes precisely within the rule laid down by this court in the case of Waldon v. Craig, 9 Wheat. 576; with this difference that the latter was a case in which the court thought so favorably of the claim of the plaintiff in error, that they would have sustained the suit if it had been possible. The court there express themselves thus: "There is peculiar reason in this case, where the cause has been protracted, and the plaintiff kept out of possession beyond the term laid in the declaration, by the excessive delays practised by the opposite party. But the course of this court has not been in favor of the idea that a writ of error will lie to the opinion of a circuit court granting or refusing a motion like this. No judgment in the cause is brought up by the writ, but merely a decision on a collateral motion, which may be renewed." In that case, as in this, the motion was to extend a term in ejectment, after judgment; but where the plaintiff's delay in proceeding with his writ of possession was not attributable to his own laches. He had been arrested in his course by successive injunctions sued out by the defendants. This court did there recognize the case of delay by injunction as one in which, in that action, the court might exercise the power to enlarge the term even after judgment, and the particular case as one which merited that exercise of discretion; but dismissed the writ of error, because it was a case proper for the exercise of that discretion, and not coming within the description of an error in the principal judgment. 14 P. 614; 6 H. 81. THE UNITED STATES V. GEORGE WILSON. 7 P. 150. A pardon is a private though official act of the executive, must be delivered to and accepted by the criminal, and cannot be noticed by the court unless it is brought before it judicially by plea, motion, or otherwise. CERTIFICATE of division of opinion of the judges of the circuit court of the United States for the eastern district of Pennsylvania. The case is stated in the opinion of the court. United States v. Wilson. 7 P. Taney, (attorney-general,) for the United States. No counsel contrà. * 158] * MARSHALL, C. J., delivered the opinion of the court. In this case, the grand-jury had found an indictment against the prisoner for robbing the mail, to which he had pleaded not guilty. Afterwards he withdrew this plea, and pleaded guilty. On a motion by the district attorney, at a subsequent day, for judgment, the court suggested the propriety of inquiring as to the effect of a certain pardon, understood to have been granted by the President of the United States to the defendant, since the conviction on this indictment, alleged to relate to a conviction on another indictment, and that the motion was adjourned till the next day. On the succeeding day, the counsel for the prisoner appeared in court, and, on his behalf, waived and declined any advantage or protection which might be supposed to arise from the pardon referred to; and thereupon the following points were made by the district attorney:— 1. That the pardon referred to is expressly restricted to the sentence of death passed upon the defendant under another conviction, and as expressly reserves from its operation the conviction now before the court. 2. That the prisoner can, under this conviction, derive no advantage from the pardon without bringing the same judicially before the court. The prisoner, being asked by the court whether he had any thing to say why sentence should not be pronounced for the crime whereof he stood convicted in this particular case, and whether he [ *159] wished in any manner to avail himself of the pardon *referred to, answered that he had nothing to say, and that he did not wish in any manner to avail himself, in order to avoid the sentence in this particular case, of the pardon referred to. The judges were thereupon divided in opinion on both points made by the district attorney, and ordered them to be certified to this court. A certiorari was afterwards awarded to bring up the record of the case in which judgment of death had been pronounced against the prisoner. The indictment charges a robbery of the mail, and putting the life of the driver in jeopardy. The robbery charged in each indictment is on the same day, at the same place, and on the same carrier. We do not think that this record is admissible, since no direct reference is made to it in the points adjourned by the circuit court; and United States v. Wilson. 7 P. without its aid we cannot readily comprehend the questions submitted to us. If this difficulty be removed, another is presented by the terms in which the first point is stated on the record. The attorney argued, first, that the pardon referred to is expressly restricted to the sentence of death passed upon the defendant under another conviction, and as expressly reserves from its operation the conviction now before the court. Upon this point, the judges were opposed in opinion. Whether they were opposed on the fact, or on the inference drawn from it by the attorney; and what that inference was, the record does not explicitly inform us. If the question on which the judges doubted was, whether such a pardon ought to restrain the court from pronouncing judgment in the case before them, which was expressly excluded from it, the first inquiry is, whether the robbery charged in the one indictment, is the same with that charged in the other. This is neither expressly affirmed nor denied. If the convictions be for different robberies, no question of law can arise on the effect which the pardon of the one may have on the proceedings for the others. If the statement on the record be sufficient to inform this court judicially that the robberies are the same, we are not told on what point of law the judges were divided. The only inference we can draw from the statement is, that it was doubted [* 160 ] whether the terms of the pardon could restrain the court from pronouncing the judgment of law on the conviction before them. The prisoner was convicted of robbing the mail, and putting the life of the carrier in jeopardy, for which the punishment is death. He had also been convicted on an indictment for the same robbery, as we now suppose, without putting life in jeopardy, for which the punishment is fine and imprisonment; and the question supposed to be submitted is, whether a pardon of the greater offence, excluding the less, necessarily comprehends the less, against its own express terms. We should feel not much difficulty on this statement of the question, but it is unnecessary to discuss or decide it. Whether the pardon reached the less offence or not, the first indictment comprehended both the robbery and the putting life in jeopardy, and the conviction and judgment pronounced upon it extended to both. After the judgment, no subsequent prosecution could be maintained for the same offence, or for any part of it, provided the former conviction was pleaded. Whether it could avail without being pleaded, or in any manner relied on by the prisoner, is substantially the same question with that presented in the second point, which is, "that the prisoner can, under this conviction, derive no advantage |