44 y F.¤11>1:1zAL imrommn.
. In each of these cases the right to maintain the action depended
on a statute which in the one case was repealed, and the other expired,
after the determination of the cause in the court below, and prior to
the giving of judgment in the appellate court; but owing to the dif-
ference in procedure, and the difference in the effect of that procedure,
on the determination of the court below, a directly opposite result
was reached. In the one case the action had, so far, ended in a
judgment, which continued in force, notwithstanding the writ of error,
and therefore it did not fall with the repeal of the statute. It was no
longer an action pending, but afait accompli.
‘ Nor does the case of Cohcns v. Virginia, 6 Wheat. 405, teach any-
thing to the contrary of this. That was a writ of error from the su-
preme court to a court of Virginia for the purpose of examining a
judgment of the latter given in a case in which the state was the
plaintiff. Counsel for the state, relying on the technical rule that a
writ of error is a proceeding in the nature of a new action, and not a
mere continuation of the one in which the judgment was given, con-
tended that, under the eleventh amendment, which provides: "The
judicial power of the United States shall not be construed to extend
, to any suit in law or equity commenced or prosecuted against one of
the United States, by citizens of another state, or by citizens or sub-
jects of any foreign state, "—the court had no jurisdiction in the prem-
ises. But the court held that the "suit" mentioned in the amend-
ment was a proceeding commenced against a state by an individual,
"for the purpose of establishing some claim against it by the judg-
ment of a court;" and that a suit commenced by a state against an
individual, the final record of which, in due course of law, is trans-
ferred to or brought before the supreme court, "not for the purpose
of asserting any claim against the state, but for the purpose of assert-
ing a constitutional defense against a claim made by a state," does
not thereby become a suit "commenced or prosecuted" against such
state, within the purpose of the amendment. And, in conclusion, Mr.
i Chief Justice Mansnxm. says:
"It is, then, the opinion of the court that the defendant who removes a
judgment rendered against him by a state court into this court, for the pur-
pose of re-examining the question whether that judgment be in violation of
the constitution or laws of the United States, does not commence or prosecute
a suit against the state, whatever may be its opinion, when the effect of the
writ may be to restore the party to the possession of a thing which he de-
mands."_ V ,
At common law a writ of error is the mode of proceeding by which
a court exercises its appellate jurisdiction over the judgment of an
inferior court given in an action at law. The action is not retried, as
on an appeal proper. The record ofthe proceeding is simply examined
for the purpose of ascertaining if there is any error in law therein.
The writ is a commission by which the judges of the appellate court
are authorized to examine the record of the lower court, and aiiirm