Chew's Appeal

The opinion of the Court was delivered by SeRGeant, J. If the court below had authority to make the order of the 18th December 1844, as it has not been complied with, the appeal has not been perfected, and it is the duty of this court to dismiss it. It seems the court below at first ordered the bail on appeal to be given in the sum of $100. They afterwards considered that the justice of the case required the bail on the appeal to be as large as that which they had previously required to be given by the executor, and they ordered it. This order is in the nature of an amendment of the former one. And, it seems to us, the only question is, whether the court had power to make the amendment. It is not a question, as has been supposed, whether they could proceed further in the cause after an appeal; for this was not properly a further proceeding in the cause, but an amendment of a prior proceeding in the nature of an interlocutory order, fixing the amount of bail. Nothing is now more common than the allowance of amendments in the court below, after error brought, to effect the purposes of justice and prevent advantage being taken by technical objections or by surprise. In Short v. Coffin, (5 Burr. 273). after error brought, and in nullo est erratum pleaded, the judgment was amended. In Burrows v. Heysham, (1 Dall, 133), judgment on a scire facias against special bail [153] was removed into the Supreme Court by writ of error. On issuing a certiorari to bring up the record, the scire facias was amended in C. P. These cases, with others, are cited by Mr Justice Yeates in Berryhill v. Wells, (5 Binn. 60), who also states that it was declared by the Chief Justice, in Douglas v. Bearne’s Executors, that after error brought, the court where the record remained might order an amendment on proper grounds. So, in Spakeman v. Byers, (6 Serg. & Rawle 385), the court sent the record back to be amended after the case was called up for argument in this court on the writ of error, and being again returned amended, the judgment was affirmed. There is no difference in principle between a writ of error and an appeal: and the record here for the purposes of amendment, at least, seems to have remained with the court below till the 4th February 1845, when it is marked refiled in the docket of this court, and when the certio-rari was returned by the judges of the Orphans’ Court, who were the proper persons to do so. We, therefore, think the court below had power to make the order of the 18th December; and that, as the appellant has not given the bail required, the appeal has not been duly entered, and must be dismissed. Appeal dismissed.