Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/603

 CH. XXXVIII.] Abridgment, tit. Error, L. it is laid down, that "where by a writ of error the plaintiff shall recover, or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea. And when land is to be recovered, or restored in a writ of error, a release of actions real is a good bar. But where by a writ of error the plaintiff shall not be restored to any personal or real thing, a release of all actions real or personal is no bar." And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Reports. A writ of error, then, is in the nature of a suit or action, when it is to restore the party, who obtains it to the possession of any thing, which is withheld from him, not when its operation is entirely defensive. This rule will apply to writs of error from the Courts of the United States, as well as to those writs in England.

§ 1722. Under the judiciary act, the effect of a writ of error is simply to bring the record into Court, and submit the Judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a state obtains a judgment against an individual, and the court, rendering such judgment, overrules a defence, set up under the constitution, or laws of the United States, the transfer of this record into the Supreme Court, for the sole purpose of inquiring, whether the judgment violates the constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced, or prosecuted against the state, whose judgment is so far re-examined. Nothing is demanded from the state. No claim against it,