sel); but, at the instance of the appellants, they granted a case. A rule nisi was afterwards obtained for a mandamus to the justices to enter continuances and hear the appeal.

Milner now shewed cause. A mandamus lies only where there is no other remedy: here the appellants had a remedy given them by the case granted at sessions; they should have followed that up, and the question between them and the respondents might then have been tried upon the statement submitted by the sessions, and not upon affidavits. He then proceeded to argue the case upon the point raised below.

Dundas, contrà. It is clear, from the late decision in Rex v. The Justices of the West Riding (Bower v. The Accounts of the Meltham Inclosure Commissioners) (a), that the order ought not to have been confirmed; justice, therefore, has not been done, and there is no rule of law which prevents applying for a mandamus where the sessions have granted a case.

Lord DENMAN C. J. I am very unwilling to interfere with the practice of the courts below; and if the justices here have themselves granted a complete remedy, I think we ought not, by mandamus, to interfere with the course of enquiry into which the case has been put by them. The sessions cannot do better than grant a case, if they doubt the legality of their own decision; and where that has been done, I think that one of the parties cannot come with a high hand to this court, and say they will abandon the remedy so given,

(a) 5 B. & Ad. 667. 2 Nev. & Man. 390.

1834.

The KING

against The Justices of the West

Riding.

and

1834.

The KING

against

The Justices of

the West Riding.

and apply for a mandamus. The rule must be discharged.

WILLIAMS J. Concurred. (a)

Rule discharged.

(a) Littledale and Taunton Js. had left the Court.

Monday,
June 2d.

By the proceed

ings of a local IN

court returned

into K. B. on

SALTER and Another against SLADE.

(In Error.)

an action brought by Slade against Salter and Balston in the Weekly Court of Record of the town

writ of error, it and county of Poole, the declaration stated, that the

appeared that

below charged

the declaration defendants were indebted to the plaintiff, within the jurisdiction, for money lent; not saying that it was fendant was in- "there" lent. Balston suffered judgment by default; and

that the de

debted to the

plaintiff, within the plaintiff obtained a verdict against Salter, January 2d,

the jurisdiction,

for money then 1834; after which, January 8th, a writ of error to this

and there lent.

On motion

made in K. B.,

by the plaintiff in error, that the transcript

sent up might

Court was allowed, and notice of the allowance given.

Costs were taxed on the 14th; and on the 15th the

plaintiff in error was ruled to certify the record. After the allowance of the writ, and before the proceedings were sent up, the plaintiff in error was called upon, by and there," and summons, to attend the said weekly court, and shew cause

be amended by striking out the words then

making it cor

respond with

the record as it was when the writ of error

was allowed, it was stated on

affidavit, that

why the plaintiff below should not have leave to amend

the record by adding the words "then and there" to

the statement of the consideration in each count. The

the words were inserted by the Court below (after hearing the parties upon summons), subsequently to the allowance of the writ:

Held, that this Court could not notice the document returned as a transcript, but must consider it as the record, and could not amend it on this application.

parties

parties attended the Court upon such summons, January 23d; and, after hearing them, the Court made the amendment. A rule of this Court was afterwards obtained, calling on the defendant in error to shew cause

why the transcript should not be amended by striking out the words then and there, and making it correspond with the record as it was when the writ of error was allowed." The affidavits in opposition to the rule stated that, at the trial, the money was proved to have been lent within the jurisdiction; and also that notice was given of the allowance of the writ, before final judgment was signed.

Follett and Butt now shewed cause. This application, if well grounded, ought not to have been made in the present form: the prayer should have been for a mandamus to the Court below to certify the record properly. [Taunton J. There is a case now depending before me, upon an application like the present, made in the bail court. His Lordship then stated the circumstances of France v. Parry, for which see p. 615. post.] In the present case, the Court below had amended their record before the transcript was sent up: to alter the transcript would vary it from the record; in the case just mentioned, the alteration proposed is to make the transcript like the record. The opinion of the judges, delivered to the House of Lords in Mellish v. Richardson (a), was, that a court of error cannot examine into the propriety of amendments made by the Court below, being a court of record. It may be, in the present case, that this Court might have authority

(a) 9 Bing. 125.; and see 6 Bligh, 70. S. C.

1834.

SALTER

against SLADE.

VOL. I.

S s

to

1834.

SALTER against SLADE.

to direct the Court below to strike out the amendments. In Williams v. Lord Bagot (a), where an inferior court had sent up an imperfect record, this Court sent it back to be amended according to the facts; and in the case of Mellish v. Richardson, in K. B. (b), where the question was, whether this Court might amend the record sent up to them, by the amended judgment-roll remaining in the Common Pleas? this Court would not decide in the negative: but there is no case to shew that the Court of error can alter the transcript, so as to make it different from the record below.

The defect here in question, if it was error, was amendable by the inferior court. The declaration states, that the defendants were indebted within the jurisdiction; but the words " then and there" are omitted. The averment "then and there" is not a substantial one, and the omission of it may be treated as a misprision of the clerk. In Hanslip v. Coater (c), and Waldock v. Cooper (d), the Courts were unwilling (although they considered themselves obliged) to allow such omission to be a ground of error. In Dorrington v. Sliper (e), the action was upon "indebitatus in the Palace Court for oats sold," not saying where; and this seems to have been held by a part of the Court not to be error; and the same opinion was expressed in Peacock v. Burrel (g). If, then, the error be so far formal that it may be regarded as a misprision merely, it is one which the inferior court may amend, since the statute 21 Ja. 1. c. 13., even after judgment, and as well after as before writ of error brought: Bac. Abr. Amendment, G.,

(a) 4 D. & R. 515.

(c) 2 Lev. 87.

(e) 1 Keb. 499.

(b) 7 B. & C. 819.
(d) 2 Wils. 16.

(g) 1 Keb. 467. 500.

Gilbert's

Gilbert's Hist. Com. Pleas, p. 112. In Vita v. Vita (a), before the statute of James, this Court held a misprision, in the proceedings of an inferior court, to be amendable here, after error brought. In Doe dem. Lawrie v. Dyball (b), this Court, after error brought, directed an application to be made to the Court of Common Pleas, for leave to amend the record, which was granted. In Rex v. Carlile (c), a similar course was taken; and Lord Tenterden said, after the amendment, that if error were brought in the House of Lords, the amended record would be the only one of which that Court could take notice. [Littledale J. Is it correct to say that, in a case like the present, a transcript, and not the record itself, is sent? On a writ of error from the Common Pleas (except in the case of a fine), or from an inferior court, the record itself is supposed to come here (d). If we made the amendment as now prayed, would not it be sanctioning, by a rule of court, the practice of sending a transcript instead of the record? Taunton J. In the great majority of instances, the record is not made up in the inferior court till it becomes necessary to do so. When error is brought, the Court below puts together the disjointed members of what should be the record, and sends them to this Court. In such a case, it is impossible for this Court to judge what may have been omitted, unless they had before them the materials which the Court below had.

F. Pollock and Martin, contrà. The defect in this declaration is clearly error, even after verdict: 1 Wms.

(a) Cro. Eliz. 435. (b) 1 Mo. & P. 330. (c) 2 B. & Ad. 971. (d) See 2 Wms. Saund. 101 n. note (1) to Jaques v. Cesar.