In this case the court are of opinion, that the writ of error must be quashed. It appears that a former writ of error was brought on this same judgment, and upon the plea of in nullo est erratum the judgment was affirmed. On such a plea, any error apparent on the record may be assigned, and the entire validity and legal correctness of the judgment are open, and of course were decided. Upon the principle of res judicata, the plaintiff in error is now estopped from denying that the supposed error, now insisted on, was not considered and adjudged against him by the affirmance of the judgment.
Authorities have been cited to show that a second writ of error has been maintained, where the former decision did not embrace the whole merits of the case. Hopkins v. Commonwealth, 3 Met. 460. Wilde v. Commonwealth, 2 Met. 408. No doubt, where the error arises from matter subsequent to the former decision, and which did not then exist, a new writ of error may be Drought, and such new matter be assigned for error. Such was the case of Hopkins v. Commonwealth. A judgment had been rendered on an information for additional punishment, which judgment was founded upon three or more former convictions. The errors assigned, in the first writ of error, to the judgment on information were, in several instances, supposed defects in those former judgments. But it was decided that whilst such former judgments were in force, the court could not take notice of such defects. Then wr'ts of error were brought to reverse those for *287mer judgments, and one or more of them was reversed. When these supports of the judgment on the information were thus re moved, the latter became erroneous by such matter subsequent. This matter of error was not in issue on the first writ, and could not have been considered and determined in the judgment of affirmance. The plea in nullo est erratum is in the nature of a demurrer, and. puts in issue the validity of the judgment in all matters of law. New errors may be assigned viva voce at the hearing, taking care that the adverse party is not surprised ; and that has been frequently done ; and if the judgment be erroneous, in the particulars thus indicated, though not in the particulars assigned for error, the judgment will be reversed. Therefore the decision on such issue, that the judgment be affirmed, is an adjudication that there is no error in law, apparent on the face of the record, and is a bar to another writ of error founded on any such supposed error then existing.
Writ of error quashed