Burrows v. Heysham

Burrows v. Heysham. Amendment. Scire facias against bail, allowed to be amended by the record, after error brought. Scire Facias against the bail, and the judgment removed by writ of error. Upon the issuing of a certiorari to bring up the record, the plaintiffs moved to amend the scire facias by the record, substituting September, 1782, for December 1781. Tbe motion had been argued at tbe last term, and now came on for a second argument. On tbe part of tbe defendant, it was said, that as tbe cause had been removed by writ of error, tbis court bad no longer any jurisdiction over it; but tbis objection was not insisted upon. Doug. 130, 110, and Cowp. 841, 844, bad been cited for tbe plaintiff on tbe former argument; but these were cases of ejectment; and it would overset tbe law, if other points were to be brought within tbe principle by which ejectments are regulated. With respect to amendments by the statutes of jeoffaille, they were only in matters *1341 ^orm ’ Present motion went to matter of substance, and J therefore, ought not to be granted. Tbe bail, if tbe judgment is misrecited in tbe saire facias, is entitled to relief by writ of error. Salk. 52; Ld. Ray. 1057; s. c. 6 Mod. 263; 2 Str. 1165; Gilb. 136. For tbe plaintiff, it was answered, that, independent of tbe statutes of jeoffaille, tbis might be amended. It is a rule at common law, to amend, whenever there is anything to amend by. 5 Burr. 1730, was a matter of substance, yet amended ; because there tbe rest of tbe pleadings rectified tbe error. That, likewise, was a case after a writ of error bad removed tbe record, and there had been an argument in tbe exchequer. Here, tbe error appears on tbe face of tbe writ, which recites tbe judgment to have been prior to tbe date of tbe recognisance ; and in tbis point it is distinguishable from Salk. 52; Ld. Raym. 1057. [MAJORITY — Shippen, President.] On tbe 20th of August, tbe President delivered tbe opinion of tbe court. Shippen, President. As it has not been made any part of tbe argument, that tbe power of tbe court to amend, is not tbe same as it was before tbe action was removed, we shall determine tbe question as we should have done, if the writ of error bad not been brought. Upon tbe liberal principles of modern practice, therefore, and indeed, for tbe honor of common sense, we think it incumbent upon us to direct tbe scire facias to be amended by tbe record. Besides the cases in tbe books (particularly that in Barnes 6, Sweetland v. Beezely), there are some instances in our own courts that authorize tbis determination. I remember, in Scott v. Galbraith, at nisi prius, in Lancaster, a verdict was given for tbe plaintiff in ejectment, for one-half of tbe premises, and nothing was said respecting tbe other half. A motion was made in banc to set aside tbis verdict, but it was allowed to be amended, by adding, “ and for tbe residue they find for tbe defendantalthough, in that case, there was not anything to amend by, but merely what was implied in tbe verdict. Tbe rule made absolute. This case, by the name Galbraith’s Lessee v. Scott, was cited by Judge Yeates, for another point, in Garwood v. Dennis, 4 Binn. 334, and is said by him to have been tried at the Lancaster Nisi Prius, in 1781, before McKean, C. J., and Bryan, J. It is now well settled, that the court below may order an amendment, after error brought, while the record remains with them. Fury v. Stone, 2 Dall. 184, s. c. 1 Yeates 186; Berryhill v. Wells, 5 Binn. 60; Paul v. Harden, 9 S. & R. 23. And where the record has been removed, the supreme court has sent it back for amendment. Spackman v. Byers, 6 S. & R. 385. In Peddle v. Hollinshead, 9 Id. 285, Duncan, J., said, “ In matters arising from the mere carelessness of the clerk in process, it is to be observed, that those things which are amendable, before error brought, are amendable, after error brought, and if the inferior court doth not amend them, the supreme court may.” And see Black v. Wistar, 4 Dall. 267.