Definition
"Of error" is a qualifying phrase historically appended to the names of certain common law writs and proceedings, most prominently in the phrase "writ of error." The phrase identifies the nature or ground of the proceeding: it concerns an error of law alleged to appear on the face of the record of a lower court or tribunal.
The term is not itself a standalone legal concept but a functional descriptor. Its meaning is almost entirely understood through the compounds it forms:
1. WRIT OF ERROR: The principal common law appellate mechanism by which a higher court examined the record of a lower court to determine whether legal error appeared on its face. The writ directed the lower court to certify the record upward. It was strictly limited to errors of law apparent in the record — matters of fact were not reviewable. The writ of error was the dominant mode of appellate review in Anglo-American courts before being largely superseded by the modern appeal.
2. PROCEEDINGS IN ERROR / COURT OF ERROR: Courts exercising jurisdiction to review lower court judgments on writs of error were sometimes styled "courts of error." The proceedings themselves were called "proceedings in error," and the party seeking review was styled the "plaintiff in error" (rather than appellant), while the opposing party was the "defendant in error."
3. ASSIGNMENT OF ERRORS: A formal pleading in writ of error practice specifying the particular legal errors complained of in the record below. Analogous to — but procedurally distinct from — the modern appellate brief's argument section.
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Common Confusion
"Of error" proceedings (writ of error practice) are frequently conflated with the modern appeal. They are not the same. A writ of error was a writ of right at common law, issued as a matter of course upon application, and reviewable only on errors appearing in the written record. A modern appeal is a broader procedural vehicle that may reach findings of fact, exercises of discretion, and matters outside the strict trial record depending on the jurisdiction and standard of review. The distinction matters when reading pre-twentieth-century cases and procedural treatises: a "plaintiff in error" winning reversal obtained a different remedy under different procedural constraints than a modern appellant.
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Why It Matters in Research
Researchers encountering "of error" language in historical sources — whether reports, pleadings, or procedural treatises — need to recognize that the terminology signals a distinct procedural world. Several traps are worth flagging:
TERMINOLOGY DISPLACEMENT: Federal courts in the United States used writ of error procedure well into the twentieth century. The Judiciary Act of 1789 established writ of error as the mechanism for Supreme Court review of state court decisions. It was not until 1928 that Congress formally abolished the writ of error in federal practice and replaced it with the appeal. State courts varied. Reading pre-1928 federal opinions or state opinions from the nineteenth century requires fluency with this vocabulary: "plaintiff in error," "defendant in error," "assignments of error," "bill of exceptions" (the procedural device used to preserve matters for writ of error review).
RECORD LIMITATION: Because writ of error review was confined to the record, an enormous body of procedural doctrine developed around what was "in the record" and what was not. This shapes how courts discussed evidence, jury instructions, and rulings in the era — often in ways that look odd to modern eyes. Understanding that counsel was trying to get something "into the record" for error review explains much of the formalism of nineteenth-century trial practice.
BILLS OF EXCEPTIONS CONNECTION: The bill of exceptions was the companion mechanism to the writ of error. Without a properly filed bill, matters outside the formal record (such as jury instructions or evidentiary rulings) could not be reviewed on writ of error. Researchers tracing the doctrine of waiver or preservation of error will find this history essential.
CORPUS CONNECTIONS: The modern doctrine of plain error — reviewed in the Law Mind Encyclopedia — is the direct descendant of the question whether errors appearing on the face of the record were reviewable even without objection below. The lineage runs from writ of error practice through the formalization of error-preservation requirements into contemporary harmless error and plain error doctrine.
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Historical Dictionary Support
Rapalje & Lawrence's entry, as excerpted in the source material, addresses the broader category of judicial writs rather than "of error" specifically. The fragment provided concerns the classification of judicial writs generally — distinguishing writs that originate actions from interlocutory writs issued during proceedings. This context is useful: the writ of error was classified as a judicial writ (issued under the court's own seal, in response to a record certified up from below), distinguishing it from original writs that commenced actions. The taxonomy helps situate writ of error practice within the common law writ system.
Historical law dictionaries of the nineteenth century — Bouvier's being the most prominent — treated "writ of error" at length and gave "of error" its meaning entirely through that compound. The phrase standing alone was rarely given an independent entry because it carried no meaning apart from the writs and proceedings it qualified. That pattern itself is informative: "of error" is a term of art whose content must be recovered from the compounds it historically formed.
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Encyclopedia Cross-Reference
Standards of Review on Appeal (De Novo, Abuse of Discretion, Plain Error) — The Law Mind Criminal Law Encyclopedia
Harmless Error and Structural Error — The Law Mind Criminal Law Encyclopedia
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