TIT. 7. A. D. 1429. 12. P. L. 38. cord, processes, word, plea, warrant of attorney, writ, panel, and return; except appeals, indictments of treason and of felonies, and the outlawries of the same, and the substance of the St. 8 H. 6. c. proper names, surnames and additions left out in original writs, and writs of exigent, according to the statute another time made the first year of king Henry, father to our lord the king that now is, and in other writs containing proclamation; so that by such misprision of the clerk no judgment shall be reversed or adnulled. And if any record, process, writ, warrant of attorney, return, or panel be certified defective, otherwise than according to the writing which thereof remaineth in treasury, courts, or places from whence they be certified, the parties in affirmance of the judgments of such record and process shall have advantage to alledge, that the same writing is variant from the said certificate, and that found and certified, the same variance shall be by the said judges reformed and amended according to the first writing. A. D. 1585. St. 27 Eliz. c. 5. 4. And after demurrers joined and entered, the court where the same shall be, shall and may by virtue of this act from time to time, amend all and every such imperfections, defects and P. L. Appen. No. 1. p. 11. wants of form as is before mentioned, other than those only Want of form which the party demurring shall specially and particularly exin process and press and set down together with his demurrer, as is aforepleadings may said. be amended. A.D. 1664-5. St. 16 & 17 Ch. 2. c. Provided, That this act, or any thing therein contained, shall not extend to any writ, declaration or suit of appeal of felony or murder nor to any indictment or presentment of felony, murder, treason or other matter, nor to any process upon any of them, nor to any writ, bill, action or information upon any popular or penal statute; any thing aforesaid to the contrary notwithstanding. [This act extended to writs of mandamus, &c. by 9 Annæ, c. 20.] 5. Whereas great delay, trouble and vexation hath been, and still is occasioned to the people of this realm, as well by arresting and reversing of judgments, as by staying executions by writs of error and supersedeas: for remedy thereof, be it This act in 1 Ventris 100, is styled " an omnipotent act," because it extends a broad shield of protection, against the numerous trifling exceptions, for which writs of error were formerly maintained, to the great vexation of the people, and the great reproach of the law. The history of amendments is curious enough, and may be found in 3 Bl. Com. 407 and seq. The perverse scruples, and extreme technical precision, of the ancient English judges, are not regarded with much veneration or indulgence, by the judicial magistracy of the United States. It is hoped, however, that while our courts, under the influence of that liberal spirit by which they are generally distinguished, carefully and properly reject all frivolous and opprobrious niceties, they will take care on the other hand not to break in upon established rules and forms, without due caution and circumspection. The wisdom of antiquity ought not to be too hastily questioned and exploded, lest it should be followed by a train of perplexing and mischievous consequences, not at all foreseen, and not easily remedied. Improvements may be easily fancied and suggested; and to youthful men of ardent minds and sanguine hopes, they often appear no ways difficult to introduce and establish. In general, however, it is safest and best " to abide, by TIT. 7. enacted, That if any verdict of twelve men shall be given in any action, suit, bill or demand to be commenced in any of his majesty's courts of record at Westminster, or in the courts of A. D. 1664-5. record in the counties Palatine of Chester, Lancaster or Dur- St. 16 & 17 ham, or in his majesty's courts of the great sessions in any of Ch. 2. c. 8. the twelve shires of Wales; judgment thereupon shall not be L. 78, 79 Judgment not stayed or reversed, for default in form or lack in form; or to be stayed by reason that there are not pledges, or but one pledge to pro- or reversed secute, returned upon the original writ; or because the for default of name of the sheriff is not returned upon such original writ; form, &c. ed. or for default of entering pledges upon any bill or decla- Such defects ration; or for default of alledging the bringing into court maybe amend, of any bond, bill, indenture, or other deed whatsoever, mentioned in the declaration, or other pleading; or for default of allegation of the bringing into court of letters testamentary, or letters of administration; or by reason of the omission vi et armis or contra pacem; or for or by reason of the mistaking of the christian name or surname of the plaintiff or defendant, demandant or tenant, sum or sums of money, day, month or year, by the clerk, in any bill, declaration or pleading, where the right name, surname, sum, day, month or year, in any writ, plaint, roll, or record preceding, or in the same roll or record where the mistake is committed, is or are once truly and rightly alledged, whereunto the plaintiff might have demurred and shown the same for cause; nor for want of the averment hoc paratus est verificare; or for hoc paratus est verificare per recordum; or for not alledging prout patet per recordum; or for that there is no right venue, so as the cause were tried by a jury of the proper county or place where the action is laid; nor any judgment after verdict, confession by cognovit actionem or relicta verificatione shall be reversed for want of misericordia or capiatur; or by reason that a capiatur is entered for a misericordia, or a misericordia is entered where a capiatur ought to have been entered; nor for that ideo concessum est per curiam is entered for ideo consideratum est per curiam; nor for that the increase of costs after a verdict in any action, or upon a nonsuit in replevin, are not entered to be at the request of the party for whom the judgment is given; nor by reason that the costs in any judgment whatsoever are not entered to be by consent of the plaintiff; but that all such emissions, variances, defects, and all other matters of like nature, not being against the right of the matter of the suit, nor whereby the issue or trial are altered, shall be amended by the justices or other judges of the courts where such judgments are or shall be given, or whereunto the record is or shall be removed by writ of error. approved precedents," and rules, till the necessity and expediency of changing them is clear and certain. Amendments in our courts are made on all occasions without reserve, where errors and mis-entries are palpable; but not so as to work injustice, or give an advantage to the party committing the mistake, which otherwise he would not have had. TIT. 7. to indict ments, nor to actions upon penal statutes. A. D. 1705. St. 4 Ann. c.16. P. L. 94. 1 6. Provided always, That, this act, or any thing therein contained, shall not extend to any writ, declaration or suit of Not to extend appeal of felony or murder, nor to any indictment or presentment of felony, murder, treason or other matter, nor to any process upon any of them; nor to any writ, bill, action or information upon any penal statute, any thing in this act contained to the contrary thereof in any wise notwithstanding. 7. And be it enacted, That all the statutes of Jeofails* shall be extended to judgments which shall at any time afterwards be entered upon confession, nihil dicit, or non sum informatus, in any court of record; and no such judgment shall be reversed, nor any judgment upon any writ of enquiry of damages executed thereon be stayed or reversed, for or by reason of any imperfection, omission, defect, matter, or thing whatsoever, which would have been aided and cured by any of the said statutes of Jeofails in case a verdict of twelve men had been given in the said action or suit, so as there be an original writ or bill, and warrants of attorney duly filed according to the law, as is now used. Statutes of a mendment extended to judgments. A. D. 1705. P. L. 96, 97. 8. And be it further enacted, That this act and all the sta 4. Ann. c. 16. tutes of Jeofails shall extend to all suits in any of her majes ty's courts of record at Westminster, for recovery of any debt immediately owing, or any revenue belonging to her majesty, her heirs or successors; and shall also extend to all courts of record in the counties Palatine of Lancaster, Chester, and Durham, and the principality of Wales, and to all other courts of record within this kingdom. [See Tit. 131, Pleas and Pleading; same act.] A. A. 1734. Of writs of er- TIT. 8. A. A. 1799. 2 Faust 312. 9. All writs of error and writs of appeal, wherein there shall be any variance from the original record, or other defect, shall be amended and made agreeable to such record, by the court where such writs of error and writs of appeal shall be made returnable; and where any verdict hath been or shall hereafter be given, in any action or suit in any court of record in this province, the judgment thereon shall not be stayed or reversed for any defect or fault either in form or substance, in any bill, writ, original or judicial, or for any variance in such writs from the declaration or 'other proceedings whatsoever: Provided always, that nothing herein contained shall extend to any appeal of felony or murder, or to any process, or any indictment, presentment or information of or for any offence or misdemeanor whatsoever. [See Title 105, Judges.] [Copied from 5 Geo. 1. c. 13.] TITLE 8. Annuities. [Public] 1. AND whereas, It has but too frequently happened that public creditors have been the prey of the designing speculator, and it is highly proper, as far as possible, to guard the unfortunate: * 3 Bl. Com. 407. TIT. 8. ties; how to be paid. 2. Be it therefore enacted, That the treasurers be, and they are hereby authorised and required to draw orders on the taxcollectors of the district in which each of the annuitants en- Order in fatitled to the public bounty may reside, in his or her favour, vour of annui for the amount which may be due; and the tax-collector on whom such order is drawn, is hereby authorised and required to pay out of the public monies then in his hands, or from the first public monies he shall receive, the amount of such order, to the drawer only, and not to his or her agent, attorney or assignee; and if the said collector, having public money in his hands, shall refuse or delay to pay the said order, as afore- Duty of the said, or should purchase the said annuity or order, then, and treasurers and tax collectors in that case he shall forfeit and be liable to pay double the amount to the said person in whose favour the order was drawn, thereto: to be recovered by bill, plaint, or indictment, in any court having sufficient jurisdiction, wherein no imparlance or dilatory plea shall be allowed; and that the offender or offenders, shall, on conviction thereof, be committed to close confinement until the same be paid. in relation 3. And be it further enacted, That the treasurers shall not What voucher draw any order in favour of any annuitant, until he or she shall be required by the shall have produced, or cause to be produced, a certificate treasurers, to signed by one member of the legislature and two magistrates, authorise the that the person in whose favour the order is to be drawn, is payment of still living, and stating in what district he or she resides. TITLE 9. Appeal. power TIT. 9: A. A. 1789. Lies from the 1. IN case any person or persons shall think themselves aggrieved by the judgment or sentence of the justices of the county court, or any person or persons possessing the and authorities of ordinary, it shall and may be lawful for P: L. 489. such person or persons to enter an appeal from such judg- sentence of ment, or sentence to the court of common pleas of the dis- the court of trict, in which such judgment or sentence shall be given: ordinary to Provided the said appeal be entered in the same county court, the court of in which the judgment or sentence shall be given, or within common pleas. twenty days after judgment or sentence by the ordinary, where no county courts are established, proof being made to the satisfaction of the said ordinary of the adverse party having notice thereof, and the said courts of common pleas shall hear and determine the said appeals, according to the customs, usage, and practice in cases of appeal from the county courts. 2. But if either of the parties shall conceive him, her, or A. A. 1791. themselves injured or aggrieved by the judgment, decree or Feb. Sess. sentence of any justice of the peace, where the debt or de- 1 Faust 51. mand is for any sum above twenty shillings, such person or ersons may pray an appeal to the first court which shall be From the judgment of TIT. 9. a justice of the peace, when it lies. A. A. 1799. 2 Faust 316. From the held for the said county, and which appeal shall be granted to such person or persons, on giving sufficient security to prosecute such appeal to effect, or on failure thereof, to satisfy the costs and condemnation of the county court.* [See Title 107, Justices of Peace. A. A. February, 1791.] 3. And be it enacted, That if any person or persons shall think themselves aggrieved by the judgment, sentence, decree, determination, denial or order of any of the courts of court of ordi- ordinary aforesaid, it shall and may be lawful for such person or persons to appeal therefrom, to the court of common court of com- pleas of the district in which the said court of ordinary shall be holden, within twenty days next after such judgment, sentence, decree, determination, denial or order shall have been given. [See Title 122, Ordinary.] nary to the mon pleas. Which the shall deter mine. 4. And be it enacted, That the judge or judges, who shall judges of the preside in the court of common pleas of any district within common pleas this state, shall, and he is, and they are hereby expressly authorized, required and enjoined, to receive, hear and determine, in the same court of common pleas, all, and all manner of appeal and appeals whatsoever, which shall from time to time, be as aforesaid made thereto, from any judgments, sentence, decree, determination, denial or order of any court of ordinary of such district, according to the customs, usage and practice, as heretofore used in case of appeal from the county courts; and that all matters of fact shall be tried by a jury. Ibid 318. 5. But if either of the parties shall conceive him, her or themselves injured or aggrieved by the judgment, decree or judgment of a sentence of any justice of the peace or quorum, where the justice of the debt or demand is for any sum above six dollars, such person peace to the or persons may have an appeal to the first court which shall district court, be held for the said district wherein such judgment, decree &c. in what or sentence is given or awarded, upon giving sufficient secucases and upon what terms. Attornies fees' rity to prosecute such appeal to effect, or, on failure thereof, to satisfy the costs and condemnation of the said court; and the said court shall hear and determine the said appeal, according to the justice of the case, and award execution against the person or persons cast therein. 6. And be it further enacted, That the attornies fees in those cases where it may be deemed necessary by either party to have an attorney, that the attorney's fees in future, shall be only two dollars in all cases of appeal from the judgment of a justice of the peace, or justice of the quorum. [See Title 107, Justices of Peace.-Title 49, Constitutional Courts of Appeal.-Title, Charleston, Vol. 3.] * See A. A. 1799, which abolishes county courts. |