dissenting.
The writ of error in this case had not the seal of the Court attached to it, and the motion was to dismiss it on that account. Averse always, from turning a party out of Court without hearing the merits of his cause, I see no alternative, in the present instance, but to sustain the motion. Indeed, if it is not sustained, I see no stability in any rule of this Court; for each and all, in my view of the matter, may, with as good reason, be dispensed with, as that one which in so many plain perspicuous words declares,' that the writ of error shall be “signed by the Clerk and sealed with the seal of this Court.” See 20th rule Supreme Court. The seal of this Court exists by requirement of the organic law; it is not the creation of the Court; it is no handiwork of ours. We have a seal in obedience to the legislative will, and if there be folly or weakness in the use of a thing in itself so utterly insignificant, (as some believe) the folly or weakness lies at the door of the General Assembly of the State of Georgia. If it has outlived the age and the condition of things in which it originated, and the retention of it is therefore unworthy an age of progress and the light of a now order of things, the reproach of dishonoring this brilliant era, belongs to the Legislature. “Thou canst not say I did it.” The 14th section of the Act organizing this Court, among other things, declares “that the Judges of said Supreme Court shall have power to establish and procure a seed for said Court.” This clause is mandatory to the Judges to establish and procure a seal. Will it be said that there was a discretion to establish and procure a seal or not, according to the views which the Judges might entertain of the necessity or propriety of a seal ? I apprehend no one will so say. The Legislature, in giving the Judges power to establish, that is, to determine what should constitute the seal, and to procure, that is, to purchase it, assumed that a seal was necessary ; and upon the Judges they devolved the duty of providing it. We did not consider that we had any discretion about it, and accordingly one of the first things done by this Court after its organization, was to *160establish and procure a seal. We also very naturally concluded that inasmuch as the Legislature had required a seal for the Court, they intended it to bo applied to some use, and accordingly wo declared, in our 2(M rule, that it should be used to authenticate our own processes. Nor was the application of it to this use an unwarrantable usurpation of power, for the 14th section of our organic law also declares that “the Judges of said /Supreme Court shall have power to establish rules of practice.” The Act of 1850 forbade the Clerk of this Court to make a charge for attaching the seal to our writs of error; and the Act of 1852 repealed the prohibition. So it seems, that the use to which we-applied it by our rule, to wit, the authentication of the writ of error, received by implication the legislative sanction in 1852. Certain it is, that we have never repealed it; the lawyers who have practised at this Bar have not considered it either, repealed or obsolete, but have acted upon the idea that what we have required to be done must be done at the peril of the dismission of their causes. Our rules, when not repugnant to the law or to the Constitution, have themselves the force and effect of law. We have given to them the same efficiency that wo have given to the Statutes of the State. Under them, causes have been dismissed, and thereby, judgments in the Courts below have been affirmed, never again to be opened. So potent have we held them, that the rights of parties have been concluded without a hearing here, because of their non-observance. In Chapman vs. Gray, my learned brother, Lumpkin holds this language : “the rules of this Court are the laws of the Court, and must be obeyed, until they are repealed, unless it can bo shown that they are repugnant to the paramonut law.” 8 Geo. R. 339. So that, upon our own authority, the 20th rule stands upon our Statute book, not only the law of this Court, but also of the parties who invoke its corrective jurisdiction. Our rules are in subordination .to the legislative power. To this proposition, however, there may be some qualification. Suffice it to say, that the power of the Legislature to annuli the rule under consideration is not questioned. It is not pre*161tended that it has been annulled by the Legislature. Confessedly then, by law, the seal of the Court must be attached to the writ of error. But it is said that the want of a seal is a defect which may be supplied by amendment, and the right to amend is derived from the 1st .section of the Act of January, 1852. That section is in these words : “when the original writ of error, original citation and notice, and the original bill of exceptions, shall be filed and served within the time prescribed by law, no cause .pending in the Supreme Court shall be dismissed, but any other error or defect shall be amended instanter.” Acts of 1851, 1852, p. 215. So far from this Act extending to a defect of this sort, to my mind it expressly excepts it from the operation of the amending power therein conferred. It declares that the original writ of error shall be filed, in this, that it declares when the original writ of error shall be filed, then, any other error or defect shall be amended instanter. This is manifestly equivalent to a declaration, that if the defect is that the original writ of error has not been filed, that defect shall not be amendable. The Legislature meant to leave the filing of a writ of error, a citation, and notice, and the bill of exceptions, and the service of the notice, intact. These things must be done, at all events, and if not done, there could not be any after relief by amendment. To what writ of error had the Legislature reference ? To the writ of error of the Common Law ? No, but to the writ of error of this Court — the writ of error which our rules have adopted, for be it remembered that the writ of error of the Supreme Court of Georgia is, in all its qualities and forms, the creature of our rules. The Constitution says that cases shall be taken up by writ of error, and that is all that it does say. The law is profoundly silent as to a writ of error. We were therefore left to frame one by our rules, and in establishing it, we said that the seal should be attached to it. It is to this writ and none other that the Act of 1852 has reference. If it has not, but refers to some other writ recognized by other Courts, what Courts ? Courts of Great Britain? Why not say so? Can it be inferred, *162in the face of the fact, that this Court was in the use of a writ framed by its own rules and carefully adapted to all the peculiarities of our organization and familiar to the profession ; that the Legislature intended to' say that if a writ, recognized by the Common Law or any other law, was filed, then any other defect in the pleadings should be amended? No, for such an inference would violate all the reason and all the probabilities of the case. They intended to say that if the writ which we have framed is filed, then any other error or defect shall be amended instanter. This being conceded, and I see no escape from the concession, I say, that in this case the writ of this Court was not filed, and there was no case in Court. The rule requiring the writ to be sealed with the seal of this Court, without such seal, no matter what else the paper contained, it was no writ. We made the seal vital to the writ; it is an original preliminary element of its being; it is, by our own legislation, indispensable to its legal existence. If these things be so, there was not only nothing to amend by, but nothing to amend. The so-called amendment, by adding the seal, would not be an amendment, but the issuing of a writ of error, nunc pro tunc, a kind of ex p>ost facto process, a mandate requiring the Court to certify and send up the proceedings in a cause, which without a command, he had already voluntarily laid before us. What if a Judge of the Superior Court should decline to obey a writ of error not authenticated by the seal of this Court ?
Would he be in contempt? Would it not be a conclusive answer for him to say, I have not disobeyed the process of the Court, for the law of the Supreme Court requires its process to be authenticated by its seal, and no mandate so authenticated has been exhibited to me ? If it be answered to all this, that there is no legal virtue in an impression of.a few words or figures or symbols on wax, or wafer, or paper, called a seal, and attached to a writ of error, I reply, that such a suggestion might have been made with, some propriety to the Court, when it was about to adopt the rule, which made so trifling an affair so eventful in its operation. I might, my*163self, listen to such suggestions now, upon an application to repeal the rule. It is sufficient for me to know that it is the law of the Court, and I do not perceive how I am to escape from the obligation, as an administrator of that law, to enforce it. Nor is the use of a seal so unmeaning a relic of barbarism as, at first view, it might seem to be. The administration of the Common Law depends, in innumerable instances, upon forms, in themselves, it may be, unmeaning or even ridiculous; but consecrated by time and usage, they have become substance, and rights are as effectually guarded by them, as if, in themselves, they were ever so significant. Those forms are as obnoxious to criticism as the seal. So permanently fixed is the seal in the laws and jurisprudence of this country, that it cannot be removed without unsettling several of the most important titles of the science. It may be, if you please, an unsightly excrescence, but apply to it the knife, and the life of the patient is endangered. Even in this age, whose vocation seems to be to reform everything from the religion of Heaven down through a descending series almost infinite, to a certiorari; the seal of my Lord Coke retains a place of commanding power in the law which governs individuals and empires. It governs titles to lands; it determines the gradation of debts in the settlement of insolvent estates; it rules the application of the Statute of Limitations, and controls, to some extent, the action of corporations, and it verifies judicial records. The Cfreat Seal, in England, gives validity to grants and letters patent from the Crown, and its withdrawal or delivery creates or uncreates the Chancellor. When nations contract, upon equal terms, their seal solemnizes and verifies the consummation. We too have our Cfreat Seal, subserving many purposes of State sovereignty and domestic administration, guarded with jealous care, and delivered with ceremonial pomp to each elected Chief Magistrate in the presence of the representatives of the people. It is too late in the day to undertake to lessen the dignity or undervalue the uses of seals. The policy of applying a seal to a judicial writ is to give ceremony and *164solemnity to its issue: to draw and fix attention to it, and effectually to prevent fraudulent uses of it. Such policy commends itself to the reason and good sense of every man. Because it does so commend itself I am disposed to retain our 20th rule, and enforce it whilst it is retained.
It is said that the omission of the seal in this case is a clerical error. If it is, that does not affect the question. But non constat that it is a clerical error. The record does not prove it to be one. The 22d rule of this Court makes it the duty of the Clerk to keep on hand, for the use of the Bar, blank writs of error and citations, according to the form adopted by the Court, duly by him signed and sealed, and to furnish them to the Bar upon application. He does not file the writ — Ms duty is discharged when he furnishes it duly signed and sealed. The party or his attorney files it, and it is at his peril that a valid writ is filed. Whether this identical writ was furnished by the Clerk or not, does not appear. Whether it was or not is immaterial. A valid writ was at the command of the counsel, and it was Ms business to see to it that a valid writ was filed. He has not done so in this case. See 22d rule Supreme Court.
The importance of this question reaches beyond the case in which it originated. The importance and necessity of rules and their strict and uniform enforcement, to the proper dignity and efficiency of the Court, are involved in it. Better have no rules than to make them yield to times, occasions, expediences, or what are called hardships. Better is it to enforce with steadiness, a bad law, than to permit a good one to fluctuate in our hands. It has been our uniform habit to compel a strict enforcement of all the rules of this Court. Differing from my colleagues, I think that the judgment on this motion is a departure from that habit. Having endeavored to sustain my dissent by reasons and authority, I will only add, endorsing it, what my learned brother Lumpkin said on a former occasion on the subject of rules: “I would only remark, in conclusion, that families, schools, corporations, Courts, countries, the world, the universe, are all governed *165by rules, and either wanting these, ends in confusion and chaos.” 'Turner vs. Collins, 8 Geo. R. 255.