appearance to the district attorney within ten days after filing the certificate staying proceedings, notice of argument thereon may be served on such attorney by the district attorney, as in other cases. If no attorney shall have so appeared, such notice shall be served personally on the defendant if he be in custody, and if he be not in custody it may be served by affixing the same in the office of a clerk of the Supreme Court.1 § 8. NO ASSIGNMENT OR JOINDER OF ERRORS NECESSARY. No assignment or joinder in errors shall be necessary upon any certiorari, issued in pursuance of the provisions of the statute above cited, but the court shall proceed, on the return thereto, and render judgment upon the record before them.2 § 9. OF THE PROCEEDINGS IN THE SUPREME COURT. After the return to the writ has been made, the practice in regard to filing notes of issue, printing the writ and return, and points of the counsel, and the furnishing of copies thereof to the court, and the argument of the same at the general term held in the judicial district where the conviction is had, is of the same character as the practice, in those respects, in civil causes. § 10. JUDGMENT ON CERTIORARI. By the provisions of the Revised Statutes, if upon the return to any certiorari removing an indictment upon which judgment shall have been stayed, the Supreme Court shall decide against the exceptions taken, it shall either proceed to render judgment and pronounce sentence against the defendant, or shall remit the proceedings to the court in which the trial shall have been had, with directions to proceed and enter judgment.3 But by a subsequent act of the Legislature, the Supreme Court shall, upon affirming or reversing the judgment or other proceedings, remit the record to the court, from which the same was removed, and the court to which the same shall be so remit ted shall have power to proceed thereon according to the decision and direction of the Supreme Court." '2 R. S., 740, § 24. Id., § 25; see Hayen v. The Peo., 3 Park. Cr. R., 175. " Id., § 27. Laws 1859, Ch. 462, § 2, p. 1074; Vide Laws 1862, ch. 226. Under the old statute, in the case of the People v. Haynes, (11 Wend., 557,) which was a case where a writ of certiorari had been sued out under the provisions of the statute above referred to, the court, in concluding their opinion in the case, said, upon the whole, after a careful examination and consideration of the bill of exceptions in this case, and all the questions raised upon it, we are compelled to come to the conclusion that no rule of law has been violated against the prisoner, and that he has been rightfully convicted; and we therefore direct that the indictment, bill of exceptions, and all proceedings, be remitted to the court below, to the end that judgment be rendered against him. § 11. DEFENDANT NOT APPEARING AFTER JUDGMENT. If the defendant in any indictment shall be let to bail after the staying of any judgment as above provided, and shall neglect to appear at any new trial that may have been ordered, or to appear and receive judgment, the court authorized to render such judg ment, or in which such new trial shall have been directed, may cause such defendant to be arrested, in the same manner as upon the finding of an indictment, and may forfeit his recognizance and direct the same to be prosecuted.1 Section SECTION III. WRIT OF ERROR TO REVIEW TRIAL OF INDICTMENT. I-GENERAL REMARKS. II. WHEN WRIT TO ISSUE. III.-WRITS OF ERROR ON BEHALF OF THE PEOPLE IN CRIMINAL CASES. BLACKSTONE defines a writ of error to be, in practice, an origi nal writ, which lies after judgment in an action at law in a court Vol. 3, R. S., 5th ed., 1035, § 29. of record to correct some supposed mistake in the proceedings or judgment of the court.1 Lord COKE says it is a writ which lieth where a man is greived by any error in the foundation, proceeding, judgment or execution.2 A writ of error has further been defined to be an original writ issuing out of the court in which it may by law be made returnable, in the nature as well of a certiorari to remove a record from an inferior to a superior court, as of a commission to the judges of such superior court to examine the record and to affirm and reverse the judgment according to law.3 A writ of error is used to remove the indictment and other proceedings from the oyer and terminer or sessions into the Supreme Court, after judgment given in the court below, for the purpose of reversing such judgment. When once judgment is given, this is the only remedy for any defect in the proceedings, but it can never be obtained before judgment.4 The mode of reviewing a decision of the oyer and terminer, as it existed previous to the adoption of the Revised Statutes, compared with the present practice, will be found in Carnell v. The People, in 1 Park. Cr. R., 262. The present provisions of the Revised Statutes upon this subject are to be found in article second, title six, chapter two of part four of the Revised Statutes. A justice of the Supreme Court has power to allow a writ of error, and to make an order staying proceedings after conviction in a capital case.5 The proceedings upon certioraris and writs of error in many respects are similar, the essential difference being that one is sued out by the district attorney, in behalf of the people, while the other is generally sued out by the defendant. One seeks a review of the case before judgment; the other after judgment has been rendered. Both are based upon a bill of exceptions. The general characteristics are the same. The special differences will be observed by a careful perusal of the last and present sections. 1 3 Bl. Com., 406. 'Co. Litt., 288. ⚫ 2 Saund., 100, n. 1; 2 Bac. Abr., 448. • 1 Chit. Cr. L., 747; State v. Ruthven, 19 Mis., 382; Kinsley v. The State, 3 Ohio (N. S.), 372; 4 Yeates, 319. Carnal v. The People, 1 Park. Cr. R., 262. § 2. WHEN WRIT TO ISSUE. Formerly writs of error upon judgments rendered on any indictment for a capital offence, could not issue unless allowed by one of the justices of the Supreme Court, upon notice given to the Attorney General or to the district attorney of the county where the conviction was had, and no officer other than such as are above enumerated was empowered to allow such writ.1 But it is now provided that they shall issue upon convictions for capital offences, or for one punishable as a minimum punishment, by imprisonment in a State prison for life, to the court of general sessions in the city of New York, as a matter of right.2 It is provided by statute that in all other cases than those above mentioned, writs of error upon any final judgment rendered upon any indictment are writs of right, and issue, of course, in vacation as well as in term, out of the court in which by law they may be made returnable.3 In cases not capital, a writ of error for the purpose of reviewing a final judgment of the court of oyer and terminer is a writ of right, and issues, of course, and brings before the Supreme Court the bill of exceptions with the transcript of the record.1 It is no objection to a writ of error that the prisoner's fine has been paid, or that his sentence of imprisonment has been fully executed.5 6 An order quashing a conviction and sentence is not a judgment upon an indictment which can be reviewed in a writ of error, for it is only a judgment that is authorized to be reviewed." Thus, an order of the court of sessions that judgment against the defendant be arrested, cannot be reviewed; nor an order quashing an indictment, and discharging a defendant from custody, although a judgment arising on demurrer may be, even 12 R. S., 740, § 16; 1 Park., 611. 'Laws 1855, ch. 337, § 3; amended Laws 1858, ch. 330; Vide Walter v. Peo., 32 N. Y., 147; 31 How., 140 '2 R. S., 740, § 17. Safford v. The People, 1 Park., 474. See Yates v. The People, 6 John., 335; Lavett v. The People, 7 Cow., 339. 'Bartholemy v. The People, 2 Hill, 248. Peo. v. Barry, 10 Abb., 225; 4 Park., 657. Peo. v. Tarbox, 30 How., 318; Peo. v. Loomis, Id., 323. Id. C. P.-29. 9 Peo. v. Hartung, 23 How., 314. where the plea of not guilty remained in the record undisposed of.1 A writ of error lies immediately to the Court of Appeals from a judgment of the Supreme Court reversing a final decree or judgment of an inferior court, notwithstanding the judgment sought to be reviewed directs a new trial or like proceedings in the inferior court. The Court of Appeals say there is no reason for any distinction in this respect between civil and criminal cases.2 § 3. WRITS OF ERROR IN BEHALF OF THE PEOPLE IN CRIMINAL CASES. Writs of error to review any judgment rendered in favor of any defendant, upon any indictment for any criminal offence, except where such defendant shall have been acquitted by a jury, may be brought in behalf of the people of this State, by the district attorney of the county where such judgment shall be rendered, upon the same being allowed by a justice of the Supreme Court, and the Court of Appeals shall have full power to review by writ of error on behalf of the people, any such judgment rendered in the Supreme Court, in favor of any defendant charged with a criminal offence.3 It was held, prior to the passage of this act, that a writ of error would not lie in behalf of the people, after judgment for the defendant, in a capital case.1 The act of 1852, enabling the people to bring error in certain cases, applies only to final judgments, and a judgment leaving an issue of fact undisposed of, is not final. The indictment contained several counts, and the prisoner pleaded not guilty to the first, and demurred to the others. The defendant had judgment on the demurrers, and the people, without trying the issue of fact, or otherwise disposing of it, brought error in the Supreme Court, which affirmed the judgment. The Court of Appeals reversed the judgment of the Supreme Court, and directed that court to dismiss the writ of error to the oyer and terminer.5 In the above cited case in 4 Kern., WRIGHT, J., said, that in the People v. Corning (2 Com., 9), it was held, that the people 1 Hartung v. Peo., 26 N. Y., 154. Id., 26 N. Y., 154. See People v. Carnell, 2 Seld., 463. |