#### BENJAMIN TYLER *vs.*CHARLES B. MORRIS.

A writ of error, *coram nobis,*is not a writ of right. Before it is allowed, there must be an affidavit of some error *in fact,*by which, in case the fact tobe assigned forerroi is true, the plaintiff’s right of action will be,destroyed; and it is a matter of discretion with the court before which the application is made, whether upon the affidavits to grant the writ or not, which'cannot be revised by this court upon an appeal.

The court, pficaVi'on*1’" ^errorL-*ram nobis,*decide *the definitively-*

The defendant Morris, made a motion in the Superior Court of Law, for the county of New Hanover, on the last circuit, before his Honor Judge Toomer, for a writ of error *coram nobis,*to reverse a judgment obtained in the said court by the plaintiff Tyler, against him, for error *in fact;*viz: that Tyler was dead at the time the judgment was rendered; and also for a *supersedeas*to the execution issued thereon. The attorney who obtained the judgment for Tyler, was in court, and resisted the motion, denying that Tyler was dead. His Honor refused the motion, giving as a reason that it did not appear to the court, from the affidavits, that Tyler was dead. From this decision, the defendant appealed.

No counsel appeared for the defendant in this court.

*Badger*for the plaintiff.

Daniel Judge,

after stating the case as above, proceeded as follows: A writ of error *coram*nobis, is not a writ of right. Before it is allowed, there must be an affidavit of some error *in fact;*by which, in case the fact to be assigned for error is true, the plaintiff’s right of action will be destroyed. *Birch*v. *Triste,*8 East. 415. The court, in this case, was of the opinion that the affidavits did not lay a foundation to authorise it to grant the writ. This opinion *488of the court was one of discretion, upon the facts disclosed ^1<3 a®davits. As the affidavits did disclose probable grounds that Tyler was dead at the time the judgment was rendered, we think that the court might have allowed the writ of error, although it refused the *supersedeas.*For the cInesti01b whether Tyler was dead or not, at the time of the rendition of the judgment, was not one for the court to decide *definitively.*If the writ had been granted, upon the err°r assigned, the administrator of Tyler,'when properly brought in, might have plead that Tyler was alive at the rendition of the'judgment, and so have taken issue upon the assigned for error. This issue must have been tried by a jury, and not by the court. 1 Archb. Prac. K. B. 276 to 281. A writ of error *coram nobis,*is not a *supersedeas*in itselt, it is or is not according to circumstances; and therefore execution cannot be sued out after the allowance of *. .*_ the writ oí error, without the leave oí the court. 1 Archb. Prac. 277. And whether a *supersedeas*shall issue after the allowance of a writ of error, for error in *fact,*must depend circumstances, to be adjudged of by the court. In this ^13 refusal of the Superior Court to grant the writ, was in discretion arising upon the facts set forth in the A affidavits. It has been repeatedly decided, that the Supreme Court has not power to revise such a decision. The appeal therefore, must, on this ground, be dismissed. ’ *'*° „

Dec. 1839

if writ um otiwrd’ pa iy when mayfjiead’ sue i^on1S" the fact, be tried by notTy court.

A writ of in itself a *supersedeas*it is so or *in%*Hi?" aniTuiereS' fm-e be"ued after ihe 10WÍU1C6 QC a writ of out°the'Vl111' leave of ihe court, and *supersedeas*shall issue after ihe allowance of such writ, must depend on circumstances to be adjudged of by the court,

Per Curiam. Appeal dismissed.