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(Amendment of petition.)

PARSONS, J., after discussing the sufficiency of the specifications in the petition, delivered the opinion of the court, upon the motion to amend, as follows:

There is another important question for our decision in this case. After the motion to quash had been made, and before the argument began, the counsel for the contestants moved to amend their petition so as to meet the objections made against its validity, set forth in the motion to quash; which amendment, if allowed, would make all the specifications, not ordered to be stricken out, good; and obviate the objections on which the motion to quash is made. The question is at once presented, can an amendment be allowed in a petition to set aside an election?

It is contended by the counsel for the contestants, that this petition is susceptible of an amendment, under the 63d section of the act of the 21st of March 1806; but in our opinion, that act cannot, with propriety, be applied to a case like the present. The suits in which the court is required, by that law, to allow amendments, are specially defined by the act; they are actions brought for "moneys owing or due, or for damages by trespass or otherwise." It is, therefore, difficult to bring the present application within the provisions of that law, so as to make it a binding statutory direction on the court, requiring them to allow the amendment, as a matter of right, as is the case in the suits described in the act. If then, the amendment can be allowed at all, it must be under the general common law power, which can be exercised in all cases, where there is no express prohibition in the statute giving jurisdiction to the court, in the case presented for adjudication. In this view alone the question must be considered.

In the first place, it may be remarked, there is nothing in the act of 1839, which prohibits the allowance of amendments; on the contrary, the powers conferred upon the court are large and extensive, and the discretion limited only by those great principles which govern courts

(Amendment of petition.)

in the exercise of their common law powers. What then, are the rules, under the common law, which govern the court, in granting or refusing amendments?

It is said by Chief Justice Tilghman, in the case of Benner v. Frey,1 Binn. 369, that amendments are reducible to no certain rule, but that each 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. It is said, in Bailey v. Musgrave, 2 S. & R. 219, that where the object of an amendment is to do justice, courts are vested with extensive powers, not only by statute, but by common law. In the case of Fisher v. Rutherford, Bald. 193, it was ruled, that where there was a want of averment of citizenship of parties, it could be supplied by an amendment. In the case of Caster v. Wood, Ibid. 289, an answer made under oath was allowed to be amended, by the insertion of new matter, material to the case; the court there said, such an application is not a matter of course, but must depend on the discretion of the court. In the case of Megargell v. Hazleton Coal Co., 8 W. & S. 342, it was ruled, that an action qui tam could be amended, by inserting the name of the common informer, after an appeal to the common pleas, and when the cause came on for trial. In the case of Sweeny v. Delany, 1 Penn. St. R. 320, an amendment was allowed, by the transfer of the record in one case to that of another, though it resulted in the loss of an appeal from an award of arbitrators; and the supreme court said, the common law power of the court below was adequate to the amendment, nor was such an exercise of discretion the subject of a writ of error. To the same point is Davis v. Church, 1 W. & S. 240, and Commonwealth v. Hultz, 6 Penn. St. R. 469.

From these and many other authorities which might be cited, it is well settled in Pennsylvania, that amendments, not regulated by the act of 1806, must be granted

(Amendment of petition.)

or refused under the exercise of a sound discretion of the court, for the furtherance of public justice, and is not the subject of revision by a higher court; in short, it is an appeal to the conscience of a judge.*

It is admitted by the counsel for the respondent, that, in England, in cases of quo warranto (where the validity of elections is generally contested under such a form of proceeding), amendments are allowed to the information; this, however, is done by express statute, and without such power by statute, it could not be exercised. But in this state, it has been ruled, that in this class of cases, while it is doubtful whether the act of 1806 will apply, yet, said the court, we have the power to authorize amendments in pleadings, which we are always disposed to exercise in furtherance of substantial justice. Commonwealth v. Gill, 3 Whart. 236.

Against the exercise of this power, in petitions of this kind, two classes of cases have been relied on by the counsel for the respondent. The first is the case of Rex v. Barzey, 4 M. & S. 253, decided in 1815, which was an application to amend an affidavit in a case of quo warranto, and it was refused; for, said the court, it would be a dangerous precedent, to permit the parties to amend, they must make a new application.

The others are the cases of Rossett v. Hartley, 7 Ad. & E. 552, and Bodfield v. Padmore, 5 Ad. & E. 785, where a party had obtained a rule before one judge, in a bail court, and it had been discharged, and it was held, that a new rule should not be granted. Those of Rex v. Francis,

* A dangerous power, in an election case, to be vested in an elective judiciary, holding for a limited term, and dependent for their continuance in office on a partisan nomination. A power inconsistent with the first principles of free government. "The discretion of a judge," said Lord Camden, in Hindson v. Kersey, 1 Day 81 n., "is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper and passion; in the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable."

(Amendment of petition.)

2 Ad. & E. 49, and Rex v. Smithson, 4 B. & Ad. 861, were cases where an application had been made for a criminal information, which had been heard and determined, when a new application was made on additional affidavits, and the second application was refused, "because," said the court, "the parties should come prepared, in cases of this sort, at the first hearing." The case of Regina v. Benton, 9 Dowl. 1021, was one where there had been a verdict for the defendant, but leave was given, on a point reserved, to enter a verdict for the crown, and a rule was granted for that purpose, which was argued and made absolute; the defendant afterwards obtained a rule for the purpose of confining the verdict for the crown to the first two counts in the indictment, and this was discharged, because the parties had before had a full hearing in the case. The case of Regina v. Harland, 8 Dowl. 323, has also been relied upon, which was one where there had been an application for an attachment against the clerk of assize, for not returning a writ of certiorari, but the rule was discharged; a second rule was then applied for, which the court refused, upon the ground that the case had been fully heard, and they would not suffer the application to be renewed.

In my opinion, these authorities do not apply to a case like the present. All of them, except that of Rex v. Barzey, were cases which were ruled upon an arbitrary practice established in the English courts, for the government of their own particular manner for the transaction of business, and were not decided upon any of the great and established principles which govern the courts, either in England or this country, in the exercise of a sound discretion in relation to the justice or the merits of a given case. Further, in none of them, except that above referred to, was there an application to amend the record, but all are motions for a new or further hearing, after the point had been heard and decided. Had the court, in the present case, heard the parties on their petition and objections, and a full argument of the whole matter, after

(Amendment of petition.)

which the cause had been dismissed, and this was a new petition, and a second hearing was applied for, on a more perfect petition, then I can perceive how these authorities might be supposed to have some bearing on a question presented under such circumstances. But such is not the case we are now considering; here is an application to amend, as soon as the defect is pointed out, and before a step is taken in the hearing of the cause. I, therefore, cannot conceive how these cases can, in any respect, be said to rule the present, because they establish no principle and decide no point of amendment.

The case of Rex v. Barzey, was an application to amend an affidavit in a case of quo warranto; it was not to amend a suggestion, which would be more like the present case; nor was it to amend a plea filed by the defendant; therefore, it would have really no weight on a question of pleading, to which the present proposition must be assimilated. But whatever may be the value of this authority, it is sufficient for our purpose, that the supreme court of this state have ruled directly the reverse; for, in the case of Commonwealth v. Gill, an amendment was allowed in a case of quo warranto; an entire plea was permitted to be withdrawn and another substituted. Sitting as we do, in a Pennsylvania tribunal, we should be bound by the decisions of the tribunal of last resort here, rather than those of a foreign court. It is to our law I feel bound to submit, not only as a duty, but upon principle, no matter what may be its operation on suitors. In this connection, I have examined all the authorities on which the counsel for respondent have relied.

Two questions, then, arise for deliberate consideration: 1. Will the court ever allow a petition, in the case of a contested election, to be amended? 2. Is the amendment now asked one that can be permitted by any established rules of law?

I. In my opinion, there are cases in which the court ought to allow a petition of this description to be amended; as

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