People v. Judges of Court of Common Pleas — 1 Cole. & Cai. Cas. 61

Majority

p. 61

The People at the relation of Thompson v. The Judges of the Court of Common Pleas for West-Chester.

Headnote

AT a previous term, Woods had moved for and obtained a rule to stay, proceedings on a writ of error in this court, until the common pleas in West- Chester could be moved for leave to file a plaint mine pro tune, the want of which had been the error assigned here. Application had been made to that court for such purpose, and was refused by them, on which Woods obtained the rule here to show cause why a mandamus should not issue to compel them to allow such application; and now

Munro showed cause.

He insisted that the court below had always a discretion in cases of this kind, and that in the present instance, having considered the judgment before them as unjust, had refused the application on that ground, and that therefore it was not a proper case to grant a mandamus.

The court below have indeed a discretion, but it is a legal and not an arbitrary one. We

p. 62

always allow a bill to be filed nunc pro tune when error is brought and that assigned for cause.

Rule absolute.