Benner v. Frey

1 Binn. 366 | Pa. | 1808

Tilghman C. J.

delivered the opinion of the court.

This action was brought in the Court of Common Pleas of Dauphin county, and removed by the defendant by writ of habeas corpus to the Supreme Court. It was there brought to issue, and from thence transferred to the Circuit Court of Dauphin, where it was tried, and a verdict found for the plaintiff. The defendant after all this, moves in arrest of judgment," because the suit was not legally removed to the Supreme Court. He alleges two reasons against the removal.

1st. That the habeas corpus was left blank in many substantial places.

2d. That the return to the habeas corpus is signed but by one of. the associate Judges of the Court of Common Pleas.

1. As to the first point, the fact is that a regular praecipe was given by the attorney for the defendant, for issuing the habeas corpus, but by inadvertency of the clerk, the writ, although allowed by a Judge of the Supreme Court and sealed with the seal of the Supreme Court, was left blank in material places. If there had been no praecipe, there would have been nothing to amend by; but as amendments have frequently been made by the praecipe, I think there can be no case more proper to allow it than the present. I am therefore of opinion that this writ may be amended by the praecipe.

2. The return by one associate judge is not good, because one judge cannot hold a court. But I observe it is said in the record, which is certified by the prothonotary under the seal of the court, that the suit was removed by habeas corpus. This affords reason for supposing that the court did in fact order the record to be returned in obedience to the habeas corpus; and it maybe that it is only owing to the error of the prothonotary, that the record was sent up without a proper certificate. On the argument of this cause I feared there would be great difficulty in getting at the justice of the case; but upon reflection I am of opinion that the Circuit Court may send back the record to the Common Pleas, with permission to the Judges of that court to amend the return if they think proper. In the case of the King against The Mayor and Burgesses of Grampond, 7 D. & E. 699, a motion was made for leave to amend the return to a writ of mandamus after verdict. The Court of King’s Bench refused to give leave to amend, because they did not think it proper under the particular circumstances of that case; but they had no doubt of their power, not under the statutes of Jeofails,, but under the general authority of the court. It was there said that these amendments were reducible to no certain rule, but that each particular case must be left to the sound discretion of the court; and that the best principle seemed to be, that an amendment should or should not be permitted to be made, as it would best tend to the furtherance of justice.There is so much liberality and good sense in the opinion which I have cited, that I cheerfully subscribe to it. Let us apply the principle then to the case before us. Will the amendment of the return tend to- the furtherance of justice? No one can entertain a doubt but it will; but whether the Court of Common Pleas will think proper to make any amendment, must be left to their own judgment. They know the truth of the case, and will no doubt-govern themselves by the truth.

I am of opinion that the record should be sent back to them, with leave to amend if they think proper.