(Amendment of petition.) an illustration, suppose one be presented, charging the grossest fraud in a clear and specific form, with a direct averment that these fraudulent acts changed the result, and the manner in which the result would have been changed; but it was entitled in the common pleas, instead of the court of quarter sessions, where the contested election of county officers must be heard, and the contestants asked leave to amend, by entitling it in the proper court, can any one doubt, that such an amendment ought to be allowed, and that it would be, by a court wishing to administer justice to its suitors? That it would be, there have been many authorities cited to show, and others will be, in the consideration of the next proposition; and moreover, we have settled principles in previous election cases, which, if now maintained and adhered to as sound law, will absolutely prevent our deciding that no amendment can be allowed in any case. To say that we will refuse an amendment in all cases, would be in opposition to the previous indications of the opinions of a majority of this court in the previous cases, and utterly inconsistent with the principles laid down by us, in Carpenter's case, a few weeks ago. It was declared by Judge King, in the case of the County Treasurer, decided in October 1845, that "liberty would be granted to amend the petition, if application were made." Although the point did not come up for a direct adjudication, yet, Judge Jones and myself being upon the bench at the time, with the president judge, when the announcement was made in that case, my own opinion responded to what was then indicated, as the expressed sentiment of the court, and I am confident that an amendment would have been granted, if asked for; but it was intimated by counsel that they preferred a review of our opinion, on the petition as it then stood, by the supreme court. It was with a full recollection of the views then indicated by my brethren on the bench, that I ventured to make the assertion, in the Penn District Election case, (Amendment of petition.) last spring, cited in the argument (while I differed from my brethren on the main point decided), and when this opinion was read in their hearing, there was no dissent from the proposition, that if a petition were defective, it might be amended. It was said by us, in the case of Carpenter (all the judges agreeing thereto), that it was to the merits of the case alone the court would look; that to mere matters of form, or irregularities which could have no bearing on the result, we would not listen; and this principle must be applied as well to a question of pleading, as to a review of the conduct of election officers. How can the court determine upon the merits of a case, if we sternly refuse to let the parties present the facts fully before us, or drive them out of court on a mere technicality or form of pleading, as we shall do, if we lay down the broad doctrine that a petition of this description can never be amended in any particular? It is the opinion of a majority of the court, that an amendment can be allowed to a petition for the contest of an election; and this must depend upon the exercise of a sound discretion by the court, in each particular case, with a view to the furtherance of public justice. It is difficult to say in what cases an amendment would be allowable; it is much more easy to lay down a rule when it would not be. An amendment should never be permitted, when the charges in the petition are general in their character, or when the specifications have relation to mere irregularities in the conduct of the officers as to the return, or informalities in the same, when there is no charge of fraud, nor allegation that it could have had any influence upon the result; nor in any instance, if the charges, sustained by proof, would afford no substantial ground for setting aside the election. II. The second point for consideration is, whether the amendment now proposed is one that the court ought to allow? In the opinion of a majority of the court, the amendment now proposed is one that should be permitted. (Amendment of petition.) And first, because it is a settled rule, both in this country and in England, that in all legal proceedings, amendments are allowed, where there is anything to amend by. Green v. Rennet, 1 T. R. 782; Guhr v. Chambers, 8 S. & R. 157. It has been shown that in eleven out of the twenty-six specifications, there are charges of direct fraud, mentioning the wards, and the manner in which the alleged frauds were perpetrated. Take, for instance, the fourth specification, where it is charged "that in the Second ward, Moyamensing, 153 votes and upwards were deposited for William B. Reed, as district-attorney; whereas, the officers of the election have fraudulently returned but 94 votes, the remainder being either fraudulently withdrawn from the ballot-box, or counted as having been given for Horn R. Kneass." Now, the amendment proposed is, to add, that by this the result was changed; that by giving the number of votes which each candidate received, it would show to the court how and in what manner the result would be changed. Here, then, we have the very case coming within the rule above laid down, something to amend by, to wit, the fraud charged, the place where it was committed, and the extent thereof. I do not see how we can refuse it, if we regard this as a proceeding in a court of law, and are consistent with former decisions. We have said, but a few weeks ago, that these contested elections must, as far as possible, be assimilated to other legal proceedings. (Carpenter's Case, 2 Pars. 537.) What, then, is the rule in all other legal proceedings? We have given some cases. I will mention a few more, which seem to apply with peculiar force here. An appeal of murder may be amended, Smith v. Bowen, 11 Mod. 230; a recognisance of bail may be amended and made agreeable to the writ, Faggot v. Van Thiennen, Cas. Pr. C. P. 75; in ejectment, the term of the demise may be enlarged, Oates v. Shepherd, 2 Str. 1272; Gale v. Babcock, 4 W. C. C. 199; a declaration in a penal action may be amended, Anon., 1 Wils. 256. So, the court allowed a plaintiff to amend (Amendment of petition.) his declaration, in a penal action, after the time limited for bringing another action, there having been no unnecessary delay in his proceedings, Cross v. Kaye, 6 T. R. 543; a declaration, in an action for usury, was amended, after the record was made up, carried down to trial, and withdrawn by the plaintiff, Mace v. Lovett, 5 Burr. 2833. It is said, in Rex v. Holland, 4 T. R. 457, and Rex v. Wilkes, 4 Burr. 2527, that amendments in criminal informations are now so much a matter of course, that they are made on application to a judge at chambers. Cole, Crim. Informations 70; 1 Chitty Cr. L. 868. Cases of this sort are more like the one under consideration than, perhaps, any other kind. With these conclusive authorities, and many more which might be cited to the same point, if they are to have the least influence on the judicial mind, I do not see how the present amendment can be refused, if we adhere to our previous ruling, that we will liken these petitions to other legal proceedings. But in my opinion, there is another ground on which the present application should be allowed, still stronger, if possible. There are a number of specifications in which there is a direct charge of fraud, that, if sustained by proof, are of the most flagrant kind; and had the petitioners averred that these alleged fraudulent acts would have changed the result, and how it would be changed, it must be admitted, this court would have had no hesitation in at once directing the proof to be taken. So soon as this omission is pointed out, the contestants propose to insert in their petition all which the respondent requires, to make it proper that an inquiry should be had; therefore, in our opinion, we ought now to permit the petition to be amended. The cause of public justice demands it; it is due to the people of the county, and it is due to the gentleman who holds the certificate; for I am sure neither he, nor any other high-minded, honorable man, would wish to hold an office so important, except by the suffrages of a majority of the people, truly and fairly expressed. And (Amendment of petition.) we should do an injury to Mr. Kneass, as well as to the cause of public justice, if, in the exercise of a sound discretion, we refused to open the doors of a judicial tribunal for a full inquiry into charges so grave as those alleged in this petition, if it can be done consistently with the rules of law and the practice in legal proceedings. That it can be, I think, has been abundantly shown by authority. In this exercise of a sound discretion relative to the allowance of amendments, the court should always have in view, the great object in all legal proceedings, the elucidation of truth; also a desire to detect and expose fraud; therefore, if there were no other ground, the specific allegation of fraud should be sufficient. When the supreme court, in the case of Mitchell v. Kintzer, 5 Penn. St. R. 216 (also reported in 8 Ibid. 64), have held that a decree of an orphans' court, and a sale by an administrator in pursuance thereof, a deed executed, a judgment subsequently entered against the purchaser, and a sale by the sheriff on the same, and his deed solemnly executed, may all be impeached and set aside on the ground of fraud; surely, this court would be wanting in respect for adjudicated cases, if we should refuse to suffer an investigation of an election fraud, involving the right of suffrage of 50,000 voters in this city and county. And perhaps there is no case in which the eloquent language of Judge Coulter, in the case of Mitchell v. Kintzer, could be cited with more propriety than in the present: "in the eye of the law,” said the learned judge, "fraud spoils everything it touches; the broad seal of the commonwealth is crumbled into dust, as against the interest designed to be defrauded; every transaction of life between individuals, in which it mingles, is corrupted by its contagion; why then should it find shelter in the decrees of courts? there is the last place on earth where it ought to find refuge; but it is not protected by record, judgment or decree; wherever and whenever it is detected, its disguises fall around it; and the lurking spirit of mischief, as if touched by the |