to examine the record in order that some alleged error in the proceedings might be corrected: Stephen on Pleading, 117. The nature of the writ is thus stated by Tidd: "If a judgment in the king's bench be erroneous in matter of fact only, and not in point of law, it may be reversed in the same court, by writ of error coram nobis, or quæ coram nobis resident, so called from its being founded on the record and process, which are stated in the writ to remain in the court of the lord the king, before the king himself; as where the defendant, being under age, appeared by attorney, or the plaintiff or defendant was a married woman at the time of commencing the suit, or died before verdict, cr interlocutory judgment; for error in fact is not the error of the judges, and reversing it is not reversing their own judgment. So, upon a judgment in the king's bench, if there be error in the process, or through the default of the clerks, it may be reversed in the same court by writ of error coram nobis; but if an erroneous judgment be given in the king's bench, and the error be in the judgment itself, and not in the process, a writ of error does not lie in the same court upon such judgment. In the common pleas, the record and process being stated to remain before the king's justices, the writ is called a writ of error coram vobis, or quæ coram vobis resident:" 2 Tidd's Pr. 1136, 1137, 3d Am. ed.; 2 Saund. 101 a, note; 1 Rolle Abr. 747; Meggot v. Broughton, Cro. Eliz. 106; Rex v. Cornwall, 1 Sid. 208. The writ of error coram nobis does not lie in the king's bench after an affirmance in that court: 2 Saund. 101 a, note; Horn v. Bushel, 2 Stra. 949; Burleigh v. Harris, Id. 975. Nor does it lie in the king's bench after an affirmance in the exchequer chamber: 2 Saund. 101 a, note; Lambell v. PrettyJohn, 1 Stra. 690.

In this country the procedure is so different from that in England that the terms writ of error coram nobis, and writ of error coram vobis, appear to us to have become misnomers. In New York the courts have held that, although a writ in the nature of a writ of error coram nobis existed in that state as it did in England, it has lost its name, the command in the writ there being "that the record and proceedings aforesaid remaining before you, being inspected, you cause further to be done," etc.: Camp v. Bennett, 16 Wend. 48; Smith v. Kingsley, 19 Id. 620. In discussing this subject, Harris, J., delivering the opinion of the supreme court of New York, in the case of Comstock v. Schoonhoven, 3 Abb. Pr. 358, 360, said: "In this state there is, strictly speaking, no such thing as a writ of error coram nobis. In the king's bench all proceedings are supposed to be before the king himself. Hence, when a writ for error in fact is brought in the king's bench, the record and proceedings are described in the writ as being 'before us' (coram nobis), and when the writ is directed to the common pleas, returnable in the king's bench, the record and proceeding are described as being 'before you' (coram vobis). In this state the writ issuing in the name of the people, directed to the supreme court, describes the record and proceedings as remaining 'before you,' so that, if either name can be considered as appropriate, it is that of a writ of error coram vobis. It is, however, unlike the latter writ, because the record is to be reviewed by the same court to which the writ is directed. Hence it is sometimes, and perhaps more appropriately called, in this court, ‘a writ in the nature of a writ of error coram vobis.'" Accordingly we find that in several New York cases the writ is denominated a writ in the nature of a writ of error coram nobis. In many of the states no such writ has ever been in use, the objects to be attained by it being provided for by other means. In Tennessee the procedure under this writ is provided for by statute. In several of the states it is held that this writ may be resorted to as a common

law remedy, although an additional remedy may have been provided by statute. In a recent case in Connecticut, Park, C. J., delivering the opinion of the court, said: "The common law remedy is by a writ of error coram nobis. Judge Swift (in his Digest, vol. 1, p. 790), says: 'When a judgment in the superior court is erroneous in matter of fact, a writ of error will lie in the same court, called a writ of error coram nobis, in which the judgment of the same court may be reversed.' This proceeding is a part of the common law practice of the court, and though not often resorted to, since the statute furnishes a sufficient remedy in a petition for a new trial, yet still exists as an available remedy in a case like the present. Such was clearly the view of Judge Swift, as the statute authorizing petitions for new trials had long been in existence when he wrote his Digest. Its existence as a common law remedy is also recognized in many decisions of our sister states:" Jeffery v. Fitch, 46 Conn. 601, 604.

The difference between a writ of error coram nobis and the ordinary writ of error, is thus clearly and succinctly stated by Battle, J., delivering the opinion of the court in Boughton v. Brown, 8 Jones' Law, 393, 394: "The distinction between an ordinary writ of error and a writ of error coram nobis is, that the former is brought for a supposed error in law, apparent upon the record, and takes the case to a higher tribunal, where the question is to be decided and the judgment, sentence, or decree is to be affirmed or reversed; while the latter is brought for an alleged error of fact, not appearing upon the record, and lies to the same court, in order that it may correct the error, which it is presumed would not have been committed had the fact, in the first instance, been brought to its notice."

WHERE WRIT LIES.-A writ of error coram nobis lies to correct an error of fact, in the same court in which the judgment was given and where the record is, when the error assigned is not for any fault in the court, but for some defect in the execution of the process, or for some default of the ministerial officers. An error of law, which is a fault of the judges, can not be corrected by the same court; such error must be corrected by another court: Phillips v. Russell, Hempstead, 62; Hawkins v. Bowie, 9 Gill & J. 428; Bridendolph v. Zeller's Ex'rs, 3 Md. 325; Kemp v. Cook, 18 Id. 130; Fellows v. Griffin, 17 Miss. 362; McKinney v. Western Stage Co., 4 Iowa, 420; Hillman v. Chester, 12 Heisk. 34; Bigham v. Brewer, 4 Sneed, 432; Williams v. Edwards, 12 Ired. L. 118; 2 Paine & Duer's Pr. 446; 2 Saund. 101 a, note; 1 Rolle Abr. 746; 2 Bac. Abr. 215. The writ is the proper remedy where a judg ment has been rendered against a party who in fact had no notice of the pendency of the suit: Wynne v. The Governor, 1 Yerg. 149; S. C., 24 Am. Dec. 448; Jeffery v. Fitch, 46 Conn. 601. So where a party obtained a judgment against a co-surety after the claim was barred by the statute of limitations, and without notice, appearance, or defense, a writ of error coram nobis was decided to be the proper remedy: Merritt v. Parks, 6 Humph. 332. And this writ was held to be the only remedy in a case where error was committed in dismissing a suit for a supposed want of a prosecution bond: Arrowood v. Greenwood, 5 Jones' L. 414. In the case of Tucker v. James, 12 Heisk. 333, the petitioner's attorney was misled by the attorney for the plaintiff in the judgment sought to be reversed, the latter having taken judgment by default and obtained final judgment, whereas if he had filed a plea which petitioner's attorney had left with him, and which he had promised to file, the judgment by default could not have been taken, and this was decided to be proper case for relief by writ of error coram nobis.

WHEN WRIT DOES NOT LIE.-A party seeking to avail himself of the

remedy by writ of error coram nobis, must show that it was by no fault or negligence of his that the error of fact assigned was not made to appear at the former trial. If by the exercise of reasonable care and diligence he could have availed himself of the fact at that trial, this remedy will be denied to him: Bigham v. Brewer, 4 Sneed, 432. A petition for the writ is insufficient, which alleges as ground of relief that the petitioner understood, and that it was declared in court, that no litigated cases would be tried at the term at which the decree complained of was rendered, without stating by whom the declaration in court was made: Thruston v. Belote, 12 Heisk. 249. In the case of Hillman v. Chester, Id. 34, ejectment was brought against lessees in the actual possession of land. They failed to notify their landlords, and suffered judgment final by default against themselves. The landlords failing at a subsequent term to have the judgment by default set aside, afterwards sought relief by a writ of error coram nobis, assigning as errors their title and the plaintiffs' want of title to the land, and their want of notice of the suit, but it was held that they were not entitled to the writ. It was decided in Hawkins v. Bowie, 9 Gill & J. 428, that the rejection by the county court of a plea that the plaintiff is a slave and was at the time when the single bill upon which the suit was brought was given, was no ground upon which the same court could reverse its own judgment by a proceeding in error coram nobis, being, if an error at all, an error in law. In Tennessee it is held that the supreme court has no power to entertain a writ of error coram nobis, or to reverse a decree or judgment of a former term, unless for errors apparent upon its face: Lamb v. Sneed, 4 Baxt. 349. While in Virginia it has been decided that a writ of error coram nobis does not lie in the court of appeals: Reid v. Strider, 7 Gratt. 76. A writ of error coram nobis does not lie to reverse the judgment of another court, and especially not of a higher one: Roughton v. Brown, 8 Jones L. 393; Latham v. Hodges, 13 Ired. L. 267; Land v. Williams, 20 Miss. 362; Calloway v. Nifong, 1 Mo. 223.

PRACTICE UNDER THE WRIT.-A writ of error coram nobis is not regarded as a writ of right, and is not allowed as of course, but only upon its being made to appear with reasonable certainty that there has been some error of fact: Birch v. Triste, 8 East, 414; Tyler v. Morris, 34 Am. Dec. 395; Smith v. Kingsley, 19 Wend. 620; Ferris v. Douglass, 20 Id. 626; Crawford v. Williams, 1 Swan, 341. The application for the writ is made on affidavit, by motion or petition, of which notice must be given to the opposite party, unless by appearing he waives it: Tyler v. Morris, 34 Am. Dec. 395; Ferris v. Douglass, 20 Wend. 626; Comstock v. Van Schoonhoven, 3 Abb. Pr. 258; Wynne v. Governor, 24 Am. Dec. 448; Goodwin v. Sanders. 9 Yerg. 91; Merritt v. Parks, 6 Humph. 332; Crawford v. Williams, 1 Swan, 341. And where a party sues out a writ of error coram nobis, but does not give the notice required by statute, the judgment may be affirmed: Mears v. Garretson, 2 Greene (Iowa), 316. Notice is a prerequisite because the writ of error coram nobis is in the nature of a new suit to annul and revoke the former judgment. Upon the writ being granted, the plaintiff in error makes an assignment of errors, in the nature of a declaration stating the errors in fact relied upon. In making the assignment, only such errors in fact as are consistent with the record can be assigned: Williams v. Edwards, 12 Ired. L. 118; Wetmore v. Plant, 5 Conn. 541; Burgess v. Tweedy, 16 Id. 39; State v. Disney, 5 Sneed, 598. Errors of fact and errors in law must not be assigned together in the same writ: Clarke v. Bell, 2 Litt. 162; Turner v. Haggin, 5 Id. 56; Patterson v. Arnold, 4 Coldw. 364. The defendant in error may plead or demur to the assignment. The common plea in error is in nulle est erratum. This

plea admits the truth of the errors assigned, but insists that in law it is not error: Crawford v. Williams, 1 Swan, 341; Goodwin v. Sanders, 9 Yerg. 91. If the defendant desire to deny the truth of the error in fact assigned, he traverses it by plea and takes issue thereon, which issue must be tried by a jury: Tyler v. Morris, 34 Am. Dec. 395; Crawford v. Williams, 1 Swan, 341. Or he may, if he please, plead specially any matter in confession and avoidance: 2 Tidd's Pr. 1175; 2 Bac. Abr., tit. Error. The judgment, if for the plaintiff in error, is, that the former judgment be recalled, revoked, and annulled; if for the defendant in error, that it be affirmed: Fellows v. Griffin, 17 Miss. 362; Dewitt v. Post, 11 Johns. 460; Crawford v. Williams, 1 Swan, 341; 2 Tidd's Pr. 1179. But it is only the proceedings complained of as erroneous that are reversed, and all prior proceedings remain unimpeached, and therefore the plaintiff may after reversal continue the original action without being compelled to commence de novo: Dewitt v. Post, 11 Johns. 460. A judgment for damages on reversal is proper: Turner v. Haggin, 5 Litt. 56. Where a judgment sought to be reversed upon a writ of error coram nobis has been satisfied, the court can only vacate and annul the judgment. It can not in that proceeding order the money to be refunded: Bigham v. Brewer, 4 Sneed, 432. The discretion of the court in granting or refusing a writ of error coram nobis can not be revised by the supreme court on appeal: Tyler v. Morris, 34 Am. Dec. 395; Wood v. Colwell, 34 Pa. St. 92. But an appeal lies from a judgment of the county court, reversing upon error coram nobis their former judgment, and rendering judgment for costs in favor of the party suing out the writ: Hawkins v. Bowie, 9 Gill & J. 428. The writ of error coram nobis is not of itself a supersedeas; it is or is not according to circumstances to be judged of by the court: Tyler v. Morris, 34 Am. Dec. 395; Smith v. Kingsley, 19 Wend. 620; Ferris v. Douglass, 20 Id. 626.

DESHA, SMITH & Co. v. HOLLAND.

[12 ALABAMA, 513.]

CUSTOM WHICH MAKES WAREHOUSEMAN SUBAGENT OF FACTOR, TO EXAMINE COTTON stored with him, and to send it, if damaged, to a 'pickery" to have the damaged cotton separated from that which is merchantable, and which renders the factor liable for the picking, is not unreasonable. CUSTOM WHICH IS GENERAL AND UNIFORM, IS VALID, without being universally acquiesced in.

DORMANT PARTNER IS ALLOWABLE BUT NOT ESSENTIAL PARTY to an action. EVIDENCE OF CUSTOM MUST SHOW CERTAIN AND UNIFORM USAGE, and if it is contradictory, and fails to do this, it is insufficient to establish the validity of the custom.

ERROR to the circuit court of Mobile. On the trial the plaintiff testified that two bales of cotton were sent to him from "Hitchcock's press warehouse" to be picked immediately; that he picked out all the damaged cotton, leaving only that which was merchantable; that he was afterwards informed that the defendants, as commission merchants, had stored the cotton in

the warehouse, and he then charged them for the picking. The other facts appear from the opinion.

A. F. Hopkins and W. G. Jones, for the plaintiffs in error.

J. A. Campbell, for the defendant in error.

com

By Court, COLLIER, C. J. It can not be assumed that the custom which the plaintiff sought to establish was unreasonable, and therefore contrary to law. The powers of a factor in the cotton trade certainly authorize him to appoint an agent to examine the condition of cotton consigned to him for sale or shipment, and to invest such agent with authority to put it in a situation that it may be disposed of in the one mode or the other. If he think proper, he may appoint the bailee with whom it is deposited for safe keeping to perform this service. It is for the interest of the owner of the cotton that the factor should possess such a power; for an internal damage in a co pressed bale, we all know, frequently extends itself very rapidly, so that if the factor was compelled to obtain a special authority in such case, the loss to the owner would be frequently increased, before the progress of the damage could be arrested. If, then, he may appoint an agent to act for him in each, or in all cases, where cotton is consigned to him, is not a custom which makes the warehouseman an agent pro re nata altogether reasonable? It is but the substitution of a standing, continuous authority, as a substitute for one specially created as occasion may require, and its reasonableness, whatever may be said of its liability to abuse, can not be pronounced against.

If the warehouseman be an honest and prudent man, it would really seem peculiarly proper that he should be authorized to cause cotton stored with him to be freed from internal damage. Such damage, it is said, and generally credited, sometimes generates combustion. To prevent such a result, the warehouseman and his agents would be likely to exercise circumspectiondiscover the damage more readily than any one else, and thus be enabled to take the promptest measures to prevent its extension. Besides, their experience would soon give them facilities for making such discovery more readily than most other persons. Assuming the existence of the custom which makes the warehouseman the subagent of the factor, we can conceive of no objection to its extension, so as to make the latter the debtor of the pickery, for separating the damaged from the merchantable cotton. In this view of the case, we think the evidence objected to was properly admitted. It is not indispensable to the valid