Rew v. Barker

2 Cow. 408 | N.Y. Sup. Ct. | 1823

Curia.

The delay of,making this motion is fully accounted for; and the objection, of laches, fails. It is true, as contended, that here is a joinder in error, which admits the return to be perfect. It is, therefore, too late to allege diminution.| and no certiorari can be awarded. But that objection does not reach the case. The office of a certiorari is to bring Up matter of record, omitted in the return. The object here, is to amend, by the alteration of a date, in such a manner as plainly to subserve the ends of justice; and we think the case of Tully v. Sparkes, (2 Ld. Raym. 1570; 2 Str. 369,) fully justifies the motion. That case Was error from the K. B. to the Exchequer Chamber. A motion was made in the latter Court, for leave to amend imperfections in the record. They refused this, in the first instance, but gave time for applying to the K. B. which amended; and the Exchequer Chamber afterwards made a corresponding amendment in the transcript, and this too, after a joinder in error and argument in that Court. It is said, the Court below could not amend, because the record was brought up by the writ of error. But this is not so. For the purposes of amendment, it remains in the Court below; and the Exchequer Chamber considered it so, in Tully v. Sparkes, and proceeded accordingly. This case, with others to the same point, are cited as sound law, in Tillotson v. Cheetham, (3 John. Rep. 95.) The Court below have amended, as in Tully v. Sparkes. But suppose the record here, we would amend it ourselves. (Pease et al. v. Morgan, 7 John. Rep. 468.) The principle of this case was acted upon in Price v. M Evers, (Col. Cas. 41,) in the Court of Errors. The inaccuracy of the special verdict arises from the mere oversight of the Judge in the Court below. It comes within the very common-principle of amendments, that it is a mistake of an officer; and the motion must be granted.

Rule accordingly.