Calaway v. Calaway

3 Del. 84

• Court: Superior Court of Delaware
• Decided: July 5, 1840
• Status: Published

Opinion

The Court.

The act of assembly requires the justice to set down on his record a history of the cause in every step of it, for the very purpose that the parties may have any errors or impropriety in the cause below corrected in this court. The power of correcting the errors of these magistrates is a very important one, and ought to be exercised so as to prevent oppression or fraud, as well as to correct mere mistakes in law. And if the case arises in which the fraud or oppression consists in not placing on the record that which the law requires should be put down, the party must from necessity be permitted to prove such matters dehors the record. On this principle the Supreme Court, in the case cited, received proof that the party had tendered a plea which the justice refused to receive, and refused to enter on the record. For the same reason, if the justice made one or more adjournments of this cause, without setting them down on the record, and then antedated the judgment and entered it as of the first day of appearance, by means of which the defendant was deprived of her right of appeal; it will be impossible to prevent this wrong, but by allowing proof of the facts otherwise than by the record.

Laws, for plaintiff below. Frame and Comegys, for defendant below.

Testimony ordered to be taken by commission and depositions.