82 U.S. 684 - Hampton v. Rouse

ON motion to amend a writ of error.

Prior to the 24th of January, 1873, 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 Rouse, 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 25th 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 1st, 1872, above quoted; Mr. P. Phillips, contra, now moved to dismiss the writ.

Mr. Justice SWAYNE delivered the opinion of the court.