Albright v. Lessee of M'Ginnis

4 Yeates 516 | Pa. | 1808

Tilghman, C. J.

delivered the opinion of the court. This cause was originally tried in the Common Pleas, and a verdict had there for the plaintiff, and judgment. It was removed on a writ of error to the Supreme Court, on a bill of exceptions, and the judgment of the Common Pleas was reversed. The Supreme Court made no actual order to remit the record ; but the plaintiff below considered the cause as still depending in the Common Pleas, and a rule for struck jury and view was entered there at the instance of the defendants ; after which the cause was tried, and a verdict and judgment entered for the plaintiff, on which this writ of error is brought.

This court are of opinion, that inasmuch as they had a power to remit the record and award a venire facias de novo, and as the parties have proceeded to a trial, and the cause has been tried on its merits, it is proper that an order to remit the record to the Court of Common Pleas, and an award of a venire facias de novo, should now be entered, as of the term when the first judgment was reversed. This being done, the proceedings will all be regular. This court will always support verdicts, where there have been trials on the merits, when they have it in their power. Let the judgment of the Court of Common Pleas therefore be affirmed.

Cited in 9 S. & R. 36 in support of the decision that the description of a road prayed for by petition as beginning at a dwelling house, which is known, and ending at a public road, is sufficiently certain. Cited for asimilar purpose in 35 Pa. 281.