Definition
Special errors (also called special pleas in error) are pleas raised by the defendant in error in a writ-of-error proceeding that do not contest the merits of the alleged legal mistake but instead assert an extraneous ground for defeating or dismissing the writ altogether. Rather than joining in error — the standard response that engages the underlying legal question — the defendant in error interposes a matter in confession and avoidance: acknowledging, in effect, that the writ has been properly brought but contending that some independent reason bars the plaintiff in error from pursuing it.
Classic examples include:
- A release of errors: the plaintiff in error previously agreed to waive or release the right to challenge the judgment.
- Expiration of the limitations period: the time allowed by statute or rule for bringing the writ has passed.
- Other extraneous defenses in the nature of a bar or abatement to the writ itself.
Upon a special plea in error, the plaintiff in error may either reply (traversing or confessing-and-avoiding the special plea) or demur (challenging its legal sufficiency). The proceeding thus generates a secondary issue — the validity of the special plea — that must be resolved before the underlying error question is reached, or that may dispose of the writ entirely without reaching the merits.
Common Confusion
Special errors should not be confused with the substantive errors alleged in the writ of error itself (i.e., the claimed legal mistakes made by the court below). "Special errors" is a procedural term describing how the defendant in error responds to the writ, not a classification of the underlying legal mistakes. Researchers encountering "special plea in error" and "special errors" in older sources should treat them as interchangeable labels for the same procedural device. Neither term should be confused with modern appellate concepts such as plain error, harmless error, or structural error, which govern how appellate courts evaluate the severity and consequence of trial-level mistakes — a fundamentally different inquiry.
Why It Matters in Research
This term belongs almost entirely to the historical corpus. The writ of error as a common-law appellate mechanism was abolished or superseded in federal practice by the Federal Rules of Appellate Procedure and in most state systems by similar reforms through the nineteenth and early twentieth centuries. Researchers will encounter "special pleas in error" primarily in pre-twentieth-century case reporters, chancery records, and common-law pleading treatises. Understanding the term is necessary to parse what is actually happening procedurally in those older records: a special plea in error means the appellate proceeding was stopped or contested on threshold grounds, not that the lower court's judgment was reviewed on the merits.
The key research trap is conflation with modern error doctrine. A nineteenth-century court resolving a "special plea in error" based on a release of errors is doing something categorically different from a modern appellate court applying harmless error or plain error review. Importing modern appellate vocabulary onto these older records will produce misreadings.
Within the Law Mind corpus, researchers moving from historical writ-of-error procedure toward modern appellate review should consult the encyclopedia entries on Standards of Review and Harmless/Structural Error to track how the doctrinal landscape shifted as the writ of error disappeared.
Historical Dictionary Support
Black's Law Dictionary and Bouvier's Law Dictionary are in close agreement on the substance. Both sources define special pleas in error as pleas alleging extraneous matter — matters in confession and avoidance — as a ground for defeating the writ, and both confirm that the plaintiff in error may reply or demur in response. Bouvier adds the useful clarification that the limitations period (act of limitations) is a recognized example alongside a release of errors, and he cross-references the general treatment of pleas, situating special pleas in error within the broader common-law pleading system.
Neither source traces the historical decline of the writ of error as an institution, nor do they flag that the procedural context in which special errors arose was already being eroded by reform legislation in many jurisdictions at the time these dictionaries were compiled. Researchers should treat both entries as snapshots of practice that was increasingly vestigial even when Black's and Bouvier's were in active use.
Jurisdictional Note
The writ of error, and with it the special plea in error, survived longest in jurisdictions that were slowest to adopt code pleading reforms. Federal courts transitioned away from the writ of error by statute and eventually rule; most states followed suit through civil procedure reforms in the late nineteenth and early twentieth centuries. Researchers working with English common-law sources will find parallel doctrine, though the precise terminology and available pleas may vary.
Encyclopedia Cross-Reference
Harmless Error and Structural Error — The Law Mind Criminal Law Encyclopedia (criminal_231)
Standards of Review on Appeal (De Novo, Abuse of Discretion, Plain Error) — The Law Mind Criminal Law Encyclopedia (criminal_230)