
    [Pittsburg,
    September 28, 1827.]
    MEANS against TROUT.
    IN ERROR.
    If the recognizance given on appeal from the award of arbitrators, or a justice of the peace, be defective, the party should be called on by a rule to perfect his bail within a given period, or in default thereof, to have his appeal dismissed: the court ought not to quash the appeal in the first instance.
    This was a writ of error to the Court of Common Pleas of Mercer county, in a suit brought by Jacob Trout, the plaintiff below, and the defendant in error, against Thomas Means, the plaintiff in error. The defendant arbitrated the case, and an award was rendered in favour of the plaintiff, for forty-seven dollars and eighty-two cents. The defendant appealed, and in the recognizance, he and his surety were bound in one hundred and fifty dollars on condition, that if the plaintiff, Jacob Trout, shall obtain a judgment more favourable to him in the event of the suit, he will pay all costs and damages, &c.
    On motion of the plaintiff, in the court below, to quash the appeal on account of the defect in the recognizance, the defendant asked leave to file a new recognizance: but the court refused leave,' and quashed the appeal.
    This was now assigned for error, by I. fV. Foster, for the plaintiff in error, who contended that the court below ought to have permitted the defendant to file a néw recognizance.
    
      Bredin, contra,
    
    relied on the practice of the court to quash the appeal, which, had constantly prevailed, and had been repeatedly sanctioned by this court.
   The opinion of the court was delivered by

Gibson, C. J.

The recognizance is undoubtedly bad: but the question is, whether the appellee has pursued the proper course. Great hardship has, I fear, been suffered in consequence of the strictness with which these matters have been considered in this court. When bail has been defectively given within the period prescribed, there can be neither injustice nor hardship in suffering the appellant to perfect it as soon as the defect is discovered. Such a practice would be in analogy to bail at the common law. On the other hand, if a defect in the recognizance were irreparable, the appeal would be lost, and a great constitutional right frustrated. Such a mischief would be intolerable; and the more so as it is found to be of daily occurrence. Justices of the peace manifest such a remarkable inaptitude in this particular, as almost to warrant a suspicion that these defects frequently happen by design. I admit that we have often turned an appellant outof court on an exception like this: and were not the mischief become insufferable from the frequency of its recurrence, I would be sorry at so late an hour to adopt a new course; but in cases of this sort where the recurrence of the mischief may be prevented without disturbing what has already been done, the rule of stare decisis must yield to the justice and policy of a new practice. The proper course, therefore, will be to call on the appellant by a rule to perfect his bail within a specified period, or in default of it, to have his appeal quashed, and such ought to have been the course here. The judgment is, therefore, reversed with directions to reinstate the appeal, but leaving the appellee to the remedy which has just been indicated.

Judgment reversed.  