Powell v. Waters

| Court for the Trial of Impeachments and Correction of Errors | Dec 15, 1826

Concurrence Opinion

Golden, Senator,

concurred. True, he said, the question on the amended record could not be disposed of at the present session; but it may just as well be heard and decided at the,next year’s session.

*Crary, Senator.

The parties were governed by their own form of bringing up the question. It has come here by a special verdict, with their mutual consent. I do not mention this to oppose an amendment, if there be no other , , way of reaching the question: but to submit whether it would not be proper to dispose of it upon the record before us. It has been fully argued. This difficulty was mentioned and discussed in the outset; but the argument went on upon the main question. We heard it Why should we not decide it ?

Spencer, Senator.

The case does not present the question. This was the opinion of some members; and they have not examined it. Others have looked into it imperfectly. Taking time will not obviate the difficulty; for eight members go out of office in a few days. There is no time to examine the question and decide it, even if we felt authorized to do so. The decision cannot be postponed for any reason, if they are to join in it,

Viele, Senator.

True; but if we do not put the case in a train for amendment, there can be but little doubt how it will go. We shall not reach the only question in-. tended to be raised. If it be postponed, it can be-argued and decided by the new court, whether an amendment is effected or not.

The court suspended their opinion till further order.

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Lead Opinion

Jones, Chancellor.'

It is evident from the opinion of the supreme court, that the cause turned there on the single point of competency. The sole object of the writ of error is defeated, if things remain in their present shape. But we ought not to hear and decide the question of amendment ex parte. Counsel should- be heard on both sides; and for that purpose, perhaps a motion be regularly made. I am free to say, however, that I would not inquire whether there be, j ust now, any thin'g in the supreme court which can be brought up. The practice of that court is well known. They will- even allow an original to be filed nunc pro tunc, to be brought up after the want of it has been assigned for error. In The Manhatten Company v. Osgood, (1 Cowen, 65,) this court allowed the assignment of errors to be withdrawn, in order to a motion below, so to amend the continuances by cur. adv. vult, as to avoid the statute of limitations, which had nominally attached; and also, by entering an old bill of exceptions upon the roll. These amendments were granted by the court below; the amended record then came here on a writ of certiorari; and the cause was heard, and the judgment of the supreme court reversed. (3 Cowen, 612.)

(b) Chapman v. Black, 2 B. & A. 688, & P.