Definition
A memorandum in error is a formal document filed in a court of record to allege error in fact in a judgment previously rendered by that court. It operates as the procedural mechanism by which a party places an alleged factual error before the court for correction. The memorandum must be accompanied by an affidavit attesting to the matter of fact in which the error is said to consist. The document was entitled both in the court and in the cause, and was delivered to one of the masters of the court in which the judgment had been given.
The procedure is distinct from an assignment of errors, which addresses errors in law. A memorandum in error targets errors of fact that, by definition, do not appear on the face of the record and therefore cannot be reached by ordinary appellate review of the record alone — hence the requirement of a supporting affidavit.
Why It Matters in Research
This is an extinct English procedural form, codified in the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76, s. 158), and does not survive in modern American or English practice as a discrete procedural device. Researchers encountering this term in historical sources should treat it as belonging to the pre-modern error correction framework, which predates unified appellate procedure.
The critical navigational point: researchers must not conflate this procedure with modern motions to correct clerical error (which address ministerial mistakes in transcription) or with motions for new trial based on newly discovered evidence. The memorandum in error occupied a narrower, specific niche — factual error in the judgment itself, not error in law cognizable on a writ of error, and not mere clerical error correctable by the court's own authority.
When researching historical English cases, the procedural posture matters: a case adjudicated on a memorandum in error is not an appellate decision in the modern sense. The matter went to a master, not a reviewing appellate panel. This affects how you assess the precedential weight and procedural significance of any such disposition.
American sources adopt this terminology only derivatively and sporadically. If the term appears in an American treatise or reported case before the late nineteenth century, it is almost certainly borrowed from English practice and may not correspond to any formally established American procedure.
Historical Dictionary Support
Black's, Rapalje & Lawrence, and Bouvier are in complete agreement on the core definition: a document alleging error in fact, accompanied by an affidavit of that fact. This uniformity signals a stable, technically defined term within the tradition rather than a contested or evolving one.
Bouvier adds the most procedural texture: the memorandum was titled in the court and in the cause, delivered to one of the masters of the court rendering the original judgment. This detail from Kerr's treatise on actions at law (cited in Bouvier) is worth preserving — it confirms the procedure was internal to the original court, not a transfer to a separate appellate tribunal. Bouvier's entry appears to have been cut short in surviving sources, but the substance through the master-delivery requirement is sufficient to reconstruct the practice.
What the historical dictionaries do not address: the practical fate of this procedure after the Judicature Acts of 1873–1875, which consolidated English court administration and rendered many of these specialized procedural forms obsolete. Researchers relying solely on these dictionary entries may not appreciate that the 1852 statute was itself part of a transitional reform era, and that the procedure it codified had a very short operational life in its statutory form before further procedural consolidation overtook it.
Jurisdictional Note
This term is exclusively rooted in English practice. No American jurisdiction adopted the memorandum in error as a formally recognized procedure. American error correction developed through distinct mechanisms — writs of error, motions for new trial, and eventually modern appellate procedure — without importing this specific form.
Encyclopedia Cross-Reference
Standards of Review on Appeal (De Novo, Abuse of Discretion, Plain Error) — The Law Mind Criminal Law Encyclopedia [criminal_230]: Provides modern framework context for how factual and legal errors are now distinguished and reviewed, useful for understanding what the memorandum in error was designed to address before unified appellate standards existed.
Harmless Error and Structural Error — The Law Mind Criminal Law Encyclopedia [criminal_231]: Relevant for understanding the modern doctrinal categories that replaced ad hoc procedural devices like the memorandum in error for addressing errors of fact.