Luyster v. Sniffin , 3 How. Pr. 250 ( 1847 )

Harris, Justice.

If the record upon which the writ of error is brought, has not been properly made up, the proper course is to apply to the court in which the judgment was rendered to amend the record. (Reu v. Barber, 2 Cowen, 408.) With such errors the Appellate Court has nothing to do. It will assume that the court below has made up the record of its judgment correctly, or if such record is amended, that the amendment was properly made. It is the province of this court to examine and correct all errors which shall be found in any record brought here by writ of error, but it has no control over errors in making up such record. If the court below sees fit to correct an error in the form of its record, it is a matter course to allow the copy of such record which had been sent to this court, before such amendment, to be also amended. But such amendment should only be allowed upon such terms as shall prevent injustice. In this case, the Plaintiff in error, relying upon the errors which he supposed existed in the record below, has brought his writ of error, and issue having been brought thereon in this court, the cause is now in readiness for argument. It may be, that if the record had originally been made up as it is now amended, no writ of error would have been brought. If the Plaintiff in error should elect to abandon his writ of error upon such amendment being made, he ought to be permitted to do so without costs.

The motion is, therefore, granted, but the rule to be entered must also contain a provision allowing the Plaintiff in error, within ten days, to dismiss his writ of error, without costs, if he should elect so to do.