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5 Mass. 406

Ball v. Brigham

Massachusetts Supreme Judicial Court

Decided September 15, 1809

Massachusetts Supreme Judicial Court · decided 1809-09-15

This writ of error issued to remove the proceedings of a justice of the peace upon the complaint of a clerk of a militia company against a private for neglect of duty, and to recover a fine imposed oy statute for such neglect.

Cited by 2 later decisions — most recently June 1844

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1809-09-15

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Curia.

¶1We have often declared that error does not lie in a case of this kind; but that the remedy of the,, party aggrieved must be sought by moving the Court for a writ of certiorari. In several cases, where the distinction between error and certiorari was not accurately attended to, if the proceedings were manifestly erroneous on the face of them, we have considered the proceedings as removed on certiorari, and have quashed them; at the same time *317declaring that this was an indulgence to the parties arising from an erroneous practice, which must be corrected.

¶2As this opinion of the Court has long been published, and the practice has generally been conformed to it, this indulgence can no longer be continued. The writ of error must be quashed as having issued improvidently. The plaintiff in error may, if he see cause, move the Court for a certiorari.

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