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“ where the sentence was transportation and the punishment was only death,” the court of Error had no power either to pronounce the proper sentence or to remit the record to the court below for the purpose; but the prisoner must be discharged, although the indictment was valid and the trial and conviction strictly according to justice and law. Such a doctrine, one would think, could only have place where the criminal code was so sanguinary that the humanity of the Judges forced them to take shelter under the great name of Coke for the purpose of saving the prisoner's life. Fortunately for Pennsylvania, the act against citing British decisions, pronounced since the 4th July 1776, protected this state from the controlling authority of this precedent, and our courts, although they frequently in such cases reversed the judgments of the inferior courts, without making any further order, sometimes remitted the record to the court below with orders to proceed on the indictment, as in Comth. v. M' Kisson 8 S. & R. 422 and Comth v. Church, 1 Barr 110; and at other times ordered the Prisoner to give security for his appearance before the court below to answer any charge that might be brought against him, as in White v. Comth. 1 S. & R. 139, and in Scott v. Comth. 6 S. & R. 227. In Comth. v. Dunn, Lewis' Cr. Law 689, as well as in the case of Clellands, et al. v. Comth. just decided, the prisoners, although discharged, were not let loose on society upon the monstrous principle that a court, created for the correction of errors, had a right to commit wrongs far more pernicious than those it assumed to correct. The prisoners, in the cases last referred to, were discharged because they had already, in the opinion of the Supreme Court, been sufficiently punished, under the erroneous sentence of the court below. This clearly implies that if they had not been thus punished the court of Error would have taken the proper measures to “minister justice” in the premises. The doctrine that an error in a sentence vitiates all the previous proceedings in a cause, and that a criminal, legally convicted upon a valid indictment, is thereby to escape the just punishment due to his crimes, belongs not to the beautiful perfection of the Common Law. It may sometimes be the unfortunate result of defective legislation, in creating special jurisdictions, with authority to proceed in a manner different from the course of the Common Law, but it never can be the case under the sanction of that great compilation of wisdom which has been aptly denominated the perfection of human reason. Hasty'expressions, limited comprehension, defective discrimination, and other unfavorable mental conditions of its ministers will sometimes muddy the beautiful stream as it flows down the channel. But through its own recuperative energies the sediment soon finds its gravitating affinities at the bottom and the current flows on in its purity. The ideas that a court of Error could not award a venire de novo, nor render such judgment as the court below ought to have rendered, if the defendant below happened to be plaintiff in error, are no longer entertained by enlightened tribunals. Judicial emancipation, in these particulars, at least so far as respects civil suits, has taken place in England, 12 East 608, 3 Bac. Abr. 389, 6 Com. Dig. 464 Title Pleader, 3 B. 20; in Pennsylvania, 2 Rawle 56, 6 Watts 513; in New York, 11 John. 141, 4 Wend. 95; in Massachusetts, 6 Mass. 445, 11 ib. 462; in New Jersey, 1 Harrison 66; in Ohio, 5 Ohio 259; in Mississippi, 3 Howard 104, 2 S. & M. 601; in Illinois, 1 Scam. 405, 417, 511 ; and, we trust, throughout the United States, 1 Mason 57. The cobwebs of antiquated folly should not be permitted to hold the ministers of the criminal law in bondage, at the expense of sound reason and public justice. The true doctrine on this question, as applied to criminal cases, was declared hy Chancellor Walworth, in the court of Errors of New York, and not denied by any one: “If the judgment is reversed” (on the ground of an error in the sentence) “we must still go on and sentence the plaintiff in error.” Kane v. The People 8 Wend. 211.

In this State, the act of 16 June, 1836, has placed the civil and criminal justice of the country upon an equal footing in this particular. Its injunctions to the Supreme Court to “minister justice,” to "correct all and all manner of errors," and, where the case requires it, to “reverse, affirm or modify ” the judgments of the courts below, are declaratory of the common law, and leave no pretext for the introduction of a principle which sets at large the legally convicted criminal, and mocks at justice in her most venerated temples. “The principle is well settled," says Mr. Justice Jackson, in delivering the opinion of the Supreme Judicial Couri of Massachusetts, in the Com'th. v. Ellis : “If the judgment complained of was rendered “ by a Court proceeding according to the course of the com“ mon law, a writ of error lies, on which, in case of reversal, " this Court is authorised to render the same judgment as the Court below ought to have rendered.” 11 Mass. 465. But a principle which was deemed “well settled " in that state in 1814 seems to have been entirely subverted in 1841, under the influence of the English decisions in Rex v. Ellis and Rex v. Bourne; and a man legally convicted of several larcenies, was permitted to escape without any punishment whatever, upon the ground that the court of Error could neither pronounce the proper judgment itself nor remit the record to the court below for that purpose. Sheperd v. Com. 2 Met. 419. It is to be regretted that a tribunal so deservedly respected for its learning should have arrived at a conclusion so greatly at variance with reason, justice, and its own previously well settled views of the common law.

English Decisions.

The Queen v. Michael Stokes. The prisoner was convicted of murder, before Mr. Baron Rolfe at the late Yorkshire Assizes in England. The indictment alleged that the prisoner shot, discharged, and sent forth" a certain musket, and thereby caused the death of the deceased. It was objected that the indictment must be taken to mean that the masket itself was sent forth as a missile. The point was reserved for the fifteen judges of England, who took time to consider, and on the 1st May 1848 intimated to the prisoner's counsel that the indictment was valid, and that the words “gent forth" must be rejected as surplusage.

The Queen v. Dunn.- The defendant having been convicted of perjury, at the trial before Lord Denman, Ch. J. at the London Sittings, moved the Common Pleas for a Habeas Corpus on the ground of illegality in the sentence. Wild, Ch. J. on the 24th Nov. 1847 delivered the opionion of the court that the remedy open to the defendant, if he has a right to impeach the judgment, is by writ of error, and if this court were to grant this application, it would lead to the conclusion that the judgment of every court might be set aside on a writ of Habeas Corpus.” Motion refused. Vide London. Jurist Feb. 12 1848, p. 99.

Smith v. Pex.-Bill for discovery. Upon the face of the bill it appeared that the plaintiff had employed Fox, a Solicitor, to give a notice to Cadwallader a mortgagor, required to be given by the terms of the mortgage previous to its foreclosure by the plaintiff the mortgagee. A notice was given on 29 June, 1829, and the mortgage foreclosed. But in January 1841, it was determined that the notice was defective and that the mortgagor bad a right to redcem, decrecing an account. In March, 1844, the sum was ascertained, and the plaintiff paid the amount shortly afterwards. The plaintiff in Nov. 1846 brought an action on the case against Fox, the solicitor, for negligence in giving the notice. Fox demurred to the bill of discovery.

On the 26 January, 1848, Sir James Wigram, Vice Chancellor, delivered his opinion.

1. That whatever question might at one time have existed upon the point, it is now clear that the question whether the statute of limitations is a bar or not to the relief sought by the bill may be raised by demurrer. There is no question but that is the law where relief is sought in equity, and I apprehend that it is the same where relief is sought at law.

2. That if the cause of action arose when the act of negligence occurred, the statute is a bar, but not so if the cause of action did not arise till the plaintiff sustained the injury. According to the case of Howell v. Young the cause of action arose not later than June 1829, when the insufficient notice was given, and I find since the argument that Howell & Young is considered to be law in Westminster Hall, and the demurrer must therefore be allowed.Vide London Jurist of 26 Feb. 1848 p. 130.

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