(Rehearing.) was applied to by Messrs. McMurtrie and Meredith, and furnished with a copy of the bill in this case, and I granted the injunction, fixing the hearing for Monday the 4th inst. The hearing did not take place until Tuesday, which gave me an opportunity to consult Judges Agnew and Williams, with whom I had united in the majority opinion of the supreme court. We all agreed, that the decision of the supreme court decided nothing, except as to what was before us, and did not affect any future legal action that might be taken by the court below. The court of quarter sessions had a clear right, within the term, to re-examine, and if necessary, to reverse their own judgment or decree. I see, that they did, within the term, allow proceedings that might lead to such a result, which were submitted to by the present plaintiff, and that those proceedings are now in progress. I am now asked, virtually, to stop the action of a tribunal, having by law an exclusive jurisdiction of the subjectmatter, legally commenced, and so far as I know, legally. conducted, not by direct means, but by indirection. Whether I have any such power is, at best, very doubtful; but in one thing I am clear, I will not exercise it. I have every confidence in the judges of the court below, knowing that no suitor will suffer injustice at their hands. Injunction dissolved. The motion for a correction of the decree was then proceeded with in the quarter sessions, and was argued before a full bench, by Hagert and Biddle, in support of the motion, and by McMurtrie and Mann, in opposition to it. ALLISON, P. J., delivered the opinion of the court. On the 16th day of October 1869, this court decided that Charles Gibbons, at the general election held on the second Tuesday of October 1868, had been elected district-attorney for the city and county of Philadelphia, over Furman Sheppard, by a majority of 68 votes. At the same term (Rehearing.) of the court, on the 28th day of October, Furman Sheppard presented his petition, which was allowed to be filed, in which it is set forth, that he had made an examination of the tables and estimates upon which the judgment of the court was based, and had discovered therein a number of omissions and arithmetical and clerical errors, to the extent of 112 votes, showing that the petitioner was duly elected district-attorney, by a majority of not less than 44 votes: the prayer is for a re-examination of the count and judgment entered thereon, and that the court. will declare what is the true vote and majority of the petitioner. This we could not have done, at that time, for the reason that Mr. Sheppard had, by certiorari, removed the case from this court into the supreme court; it was no longer under our control, so as to enable us to change the judgment which had been entered, further than to see that the true record was sent to the court above. We probably could have corrected a mistake apparent upon the face of the proceedings, where there was anything to correct by, or where there was a plain error in the arithmetic of the count, and to this extent, we would have felt ourselves authorized to interfere with the record, before certifying it to the supreme court, if it had been regarded as important to thus alter our judgment, pending the appeal; as these clerical errors would not have changed the result, we deemed it best to await the decision upon the certiorari. Further than this we could not have gone, because the writ, in effect, was a supersedeas; our hands were tied by the act of the petitioner, and for this reason, we paused, after the argument had upon the petition, both upon the merits and upon the law of the case, as it then stood practically removed to the court above, though the record had not, in fact, been made up and sent into the supreme court. If we had done otherwise, we would have exposed ourselves to a charge of contempt of the higher court, or our proceedings would, at least, have been void, (Rehearing.) after the service of the writ. 12 Mod. 384. The authorities are not entirely consistent as to the light in which our action would have been regarded in the court of errors, but they all agree that, after service and until the record is sent back, nothing can be done, except to correct a plain mistake; and this correction can only be made for the purpose of enabling the court to obey the command to send up the record, which means the correct and the true record. A misprision of the clerk, or a mistake of the court is the limit of our authority over the record after the certiorari has been lodged in our court; unless, indeed, the judgment has begun to be executed, before service, in which case, the execution proceeds unaffected by the certiorari. This, however, has no application to the case of a contested election, in which the court, who are to hear and determine on the merits, have nothing to do with the execution of their judgment; our power terminates with the judgment or decree. The case of Ewing v. Thompson, 43 Penn. St. R. 377, is a conclusive authority upon this point; it was the case of a certiorari, allowed by the supreme court, to the judgment of this court, in the matter of the contested election of Thompson v. Ewing; the court say, the effect of the writ was, to stay further proceedings in the court below; originally, in fact, and now always, in theory, at least, it takes the record out of the custody of the inferior court, and leaves nothing there to be prosecuted or enforced by execution (post 577). A certiorari, after judgment, like a writ of error, is, in fact, a new suit; it enables him who obtains it, to aver errors in the record removed, not to re-try the facts in the court above; a judgment in it may be followed by a re-trial in the court below, if the errors in law are sustained (post 579). This principle was reaffirmed by the decision of the supreme court in the present case, the court refusing to look beyond the record, and the principles of law upon which we rendered our decision. But it has been asserted, that our power to re-examine (Rehearing.) the case, and to alter our judgment upon the merits, or even to correct mistakes, is at an end, and that the prayer of Mr. Sheppard for a rehearing must, for this reason, be refused. The common law principle, that after the term at which a judgment has been entered, from which an appeal may be taken by writ of error or otherwise, it cannot be disturbed or changed, has been invoked in support of the objection. Stephens v. Cowan, 6 Watts 513, contains a strong assertion of this doctrine; but it is, even there, qualified to some extent. The qualification is contained in the statement, that it would be going too far, to hold that the court may not, before any proceeding has been had upon the judgment, correct a mere mistake that has arisen, in entering it differently from what was intended, and perhaps, directed. The reason upon which the general principle is maintained, is, that it is the duty of the court in error, when they reverse a judgment, to give such judgment as the court below ought to have given; this shows that the principle is not applicable to the case before us, for the supreme court are, as they have stated, wholly powerless to correct any error of fact in a contested election. Stephens v. Cowan and the authorities there cited, apply to cases in which the court above can grant relief, by a correction of the judgment, which they cannot do in this case, for the cause assigned in the petition; they cannot do here, what, it is said in 7 Mod. 3, the judges are to do, "to reform as well as to affirm or reverse," and to do speedy justice to the parties. In Castle v. Reynolds, 10 Watts 52, the doctrine sought to be applied against the petitioner, is stated thus: “a judgment obtained by trial and verdict is, except in very special cases, out of the power of the court, after the term at which it was entered;" this admits that there are special cases in which, after the term ended, the power may be exercised. In Dyott v. Commonwealth, 5 Whart. 80, the doctrine is laid down as applicable to a judgment in the quarter sessions, upon a verdict of guilty, and is, in some (Rehearing.) respects, analogous to the case of Commonwealth v. Mayloy, 57 Penn. St. R. 291. Catlin v. Robinson, 2 Watts 379, is the strongest Pennsylvania decision cited against the power of the court to go back upon its judgment, and open it for the correction of errors and mistakes; but there, three years after judgment, the rule to open was granted, and at the succeeding term after that, was made absolute; the decision of the court was, that the day of discretion was past; it was admitted, that the opening of a judgment was not matter for correction on a writ of error, and that, only for excess of power, such order could be annulled on error. To the same purpose are the cases of Bailey v. Musgrave, 2 S. & R. 220, and Huston v. Mitchell, 14 Ibid. 310. In Catlin v. Robinson, Gibson, C. J., expresses himself in very strong terms, against the exercise of the power, remarking that "the act imposing a limitation on writs of error, would be of little account, if an inferior court might do, at discretion, what a court of last resort dare not do, by the exercise of its legitimate prerogative." In Freeman v. Tranah, 12 C. B. 413, it is laid down, that only where delay in signing judgment arises from the act of the court, can it be entered, nunc pro tunc, two terms after verdict. But admitting the full force of the principle, which is invoked as restrictive of the power of the court over a judgment, at a subsequent term, we do not think, that it is to be applied with the same strictness, if at all, to a statutory proceeding in the nature of a public inquiry, complaining of a public wrong, in which, though individual citizens are interested, the community have a much greater concern, and in which the court in error cannot correct a mistake upon the merits, committed by the court below. If relief, for this cause, cannot be given by the tribunal in which the proceeding is instituted, which alone can decide upon the testimony and enter judgment upon the facts as they find them, then, there is not only no remedy for the suitor, but what is even worse, the |