Burrows v. Heysham

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United States Reports, Volume 1 {1 Dall.}
Supreme Court of the United States
1405235United States Reports, Volume 1 {1 Dall.}Supreme Court of the United States

BURROWS verʃus HEYSHAM.


S

CIRE FACIAS againft the bail, and the judgment removed by writ of error. Upon the iffuing of a Certiorari to bring up the record, the plaintiffs moved to amend the Scire Facias by the records, fubftituting September 1782 for December 1781. The motion had been argued at the laft term, and now came on for a fecond argument.

On the part of the defendant, it was faid, that as the caufe had been removed, by the writ of error, this Court had no longer any jurifdiction over it ; but this objection was not infifted upon. Doug. 130. 10. and Cowp. 841. 844. had been cited for the plaintiff on the former argument ; but thefe were cafes of ejectment ; and it would overfee the law, if other points ere to be brought within the principle, by which ejectment are regulated. With refpect to amendments by the ftatutes of Jeoƒƒaille, they were only in matters of form ; but

1785.

the prefent motion went to matter of fubftance, and, therefore, ought not to be granted. The bail, it the judgment is mifrecited in the Scire Fracias, is intitled to the relief by writ of error, Salk. 52. L.Ray. 1057. S.C. 6. Mod.263.2 Stra. 1165. Gilb. 136.

For the plaintiƒƒ it was anfwered, that, independent of the ftatutes of Jeoƒƒailles, this might be amended. It is a rule at common law to amend, whenever there is anything to amend by. 5 Barr. 1730, was matter of fubftance, yet amended ; becaufe there the reft of the pleadings rectified the error. That, likewife, was a cafe after a writ, which recites the judgment to have been prior to the date of the recognizance ; and in this point it is diftinguifhable from Salk. 52. L. Raym.1057.

On the 20th of Auguʃt, the PRESIDENT delivered the opinion of the Court.

SHIPPEN, Preʃident.  As it has not been made any part of the argument, that the power of the Court to amend, is not the fame, as it was before the action was removed, we fhall determine the queftion as we fhould have done, if the writ of error had not been brought.  Upon the liberal principles of modern practice, therefore, and indeed, for the honour of common fenfe, we think it incumbent upon us to direct the Scire Facias  to be amended by the record.  Befides the cafes in the books (particularly that in Barnes 6 Sweetland vs Beezely)  there are fome inftances in our own Courts that authorizes this determination.  I remember in Scott vs Gatbraith  at Niʃe(illegible text), in Lancaʃter,  a verdict was given for the plaintiff in ejectment, for one half of the premifes, and nothing was faid refpecting the other half.  A motion was made in Bank   to fet afide this verdict ; but it was allowed to be amended, by adding, ‘‘and for the refidue they find for the defendant ;’’  although, in that cafe, there was not anything to amend by, but merely what was implied in the verdict.