Majority — SWAYNE J.
p. 684Hampton v. Rouse.
Syllabus
Where ft writ of error was made returnable to the first Monday of December (a return day then, within a month, abolished by act of Congress),, instead of being made returnable the second Monday of October, next ensuing,"the day which the act fixed thenceforth as the return day, held that the mistake was amendable under the third Bection of the act of June 1st, 1872, “to further the administration of justice,” which empowers the court to allow amendments in certain cases, including the
p. 685
ease “ where the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ.”
On motion to amend a writ of error.
Prior to the 24th of January, 1878, the annual session of this court began on the first Monday of December in each year; and writs of error were, of course, returnable to that day. But by an act approved on the 24th, just mentioned,[1] the day was changed; Congress enacting that thenceforth the session should commence “ on the second Monday of October of each year.”
By an act of a previous date, the act of June 1st, 1872, “ to further the administration of justice,”[2] it had been thus, in the third section of the act, provided:
“ That the Supreme Court may, at any time, in its discretion, and upon such terms as it may deem just, and where the defect has not injured and the amendment will not prejudice the defendant in error, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ.”
In this state of statutory enactment, one Hampton, against whom, in a suit against him by Bouse, a judgment had been given in the Circuit Court for the Southern District of Mississippi, took a writ of error to this court. The writ bore teste of the 25ih of February, 1873, about one month after the law changing the return day had passed, and before it was much known. And it was made returnable in the old way, that is to say, to the first Monday of December then next ensuing.
Mr. W. W: Boyce, in support of the motion to amend, relied on the act of June lsi, 1872, above quoted; Mr. P. Phillips, contra, now moved to dismiss the writ.
delivered the opinion of the court.
The case is before us on a motion to amend the writ. It bears teste on the 25th of February, 1873, and was made returnable on the first Monday of December, instead of the second Monday of October, then next ensuing. The commencement of the terms of this court was changed from the former to the latter time by the act of January 24th, 1873. The passage of this act was doubtless unknown to the clerk when he issued the writ. Authority to amend it. in the particular in question is given by the third section of the “act to further the administration of justice,” of June 1st, 1872.
The motion is granted, and the amendment may be
Made accordingly.