Opinion
January 12, 1900.
March 2, 1900.
Present: HOLMES, C.J., MORTON, LATHROP, BARKER, HAMMOND, JJ.
A party cannot re-try his case on writ of error.
WRIT OF ERROR, to reverse a judgment of the Superior Court in a writ of entry. Hearing before Barker, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.
J.T. Wilson, for the plaintiff in error.
No counsel appeared for the defendant in error.
This is a writ of error upon a judgment of the Superior Court in a writ of entry. The error alleged is that, by mistaken figures in a plan giving a measurement which the scale of the plan showed to be wrong, every one was misled at the trial and the defendant in error recovered a strip of land to which she was not entitled. In short, it is an attempt to re-try a case upon its merits by writ of error, on the ground that the time for review has gone by, and that otherwise the plaintiff in error will suffer wrong. A writ of error has no such function. "A party cannot re-try his case upon error." Raymond v. Butterworth, 139 Mass. 471. "Error in fact cannot be assigned, where it contradicts the record, and where the matter of fact might have been put in issue and tried, and a fortiori, when it is in fact put in issue and tried." Riley v. Waugh, 8 Cush. 220, 221. Bodurtha v. Goodrich, 3 Gray, 508, 512. Gray v. Cook, 135 Mass. 189, 190.
Writ of error dismissed.