Opinion by

This is an application to this Court to amend the judgment of reversal entered in this case by adding thereto a formal judgment in favor of the defendant, under the authority conferred by the act of May 20, 1891, section second. The provision referred to declares that “the Supreme Court shall have power in all cases to affirm, reverse, amend or modify a judgment, order or decree in the case as the Supreme Court may deem proper and just, without returning the record for amendment or modification to the court below, and may order a verdict and judgment to be set aside and a new trial had.” This phraseology is comprehensive enough to authorize the entry of the amended judgment now asked for. Two preliminary questions require a brief consideration. First, is the act constitutional ? Second, ought the judgment to be entered upon a consideration of the merits of the case ? The general question of the constitutionality of the act was before us in Smith v. The Times Publishing Company et al., 178 Pa. 481, in which we held after full consideration, that it did not infringe upon the right of trial by *145jury, and was constitutional. In that case the assignments of error to the rulings of the court below were not sustained, but we reviewed the exercise of the discretionary powers of the court in the refusal of a new trial and, finding such action to have been an abuse of discretion, we set aside the verdict and judgment and ordered a new trial to be had. What is now asked is that as this Court “deemed it proper and just” to refuse a venire facias de novo because no cause of action was disclosed by the evidence, it should make an end of the contention by entering a formal judgment for the defendant. The whole case is before us. It shows that the plaintiff ought not either as matter of law, or as a matter of justice, to maintain his action, and we know of no rule of public policy nor of any constitutional guaranty that should prevent our saying so.

Second, is the amendment one that ought to be made ? The recovery rested on a mistake of law by the court below. We have corrected the mistake and reversed the judgment for that reason, but we have declined to award a new venire because on the evidence the plaintiff was himself responsible for the injury he received. We do therefore by allowing this amendment what the court below should have done. We apply the correct rule of law to the established facts of the case, and enter the judgment to which the defendant is entitled, and which the act of 1891 expressly authorizes.

The motion is granted. Let judgment be now entered in favor of the defendant nunc pro tunc as of the date of the judgment of reversal heretofore entered.