Case of the State Road from Howell's Mills , 6 Whart. 352 ( 1841 )

Per Curiam.

The origin of the irregularity in these proceedings is the clerk’s omission to state in his minute book the presentation of the original petition, with its contents, and the appointment of viewers, preparatory to the regular docket entries. Had that duty been attended to, there would have been no occasion for recurrence to the recollection of the judges for the existence of a proceeding which ought to be matter of record. There was a time, indeed, when the recording of judicial proceedings was a matter of official routine; but for some cause—possibly the want of that skill in affairs of this nature which experience alone can give—it has come to pass that many of our judicial entries are suffered to rest in memoranda endorsed on loose papers, which, by want of system in the offices occasioned by accelerated rapidity in official rotation, and by the practice of putting the originals into the hands of counsel to suit their convenience, are exposed to a fearful risk of being lost. And when a loss occurs, as it not only must, but very frequently does, how is it to be repaired 1 Surely not by individuals in vacation, but by the solemn act of the court on due investigation. In this instance, the subsequent petition„with the order endorsed on it, was a fabrication ; and the best thing that can be said of it, is, that it proceeded from no improper motive. Is the order of the two judges any better? Of the power of a court to replace its lost record, or supply an omission of its officer, it is unnecessary to speak. The direction to issue an order to view, was an act done by individuals in vacation, and not an act of the court. But it wanted that foundation which could have authorised even the court to make such an order—there was no record evidence of the petition and appointment of viewers, and the want of it had not been supplied. The order to view having been unauthorised, all the proceedings are irregular.

Proceedings quashed.