Jackson v. Fletcher

Per Curiam,

Mason, Chief Justice.

The first question I shall consider in this case, is whether the court erred in allowing the amendment in the writ. The second section of our statute concerning amendments and jeofails, vests the District Courts with power while the pro. ceedings are before them, to examine writs, &c,, and to amend “ all that which to them,, in 'their discretion seemeth to be misprision of the clerks therein, so that by such misprision of the clerks, no judgment shall be reversed or annulled.'” The District Court certainly had sufficient grounds to conclude that the amendment allowed was the correction of a clerical error, even although less latitude had been given to its discretion. The precipe and declaration, being in debt, clearly shows that the summons being in assumpsit, was wholly an error of the clerk. The attorney for the plaintiffs below, filed their declaration in debt, and gave directions to the clerk to issue a summons, also in debt. The clerk committed an error, which the court was right in allowing to be amended. The English courts, under a similar statute allow the writ to be amended by instructions to the clerk. 1 Tidd, 661.

The writ being amendable, the defendant had no right to regard the case as being without a declaration, and therefore the motions based upon that position were correctly overruled.

The original affidavit was clearly insufficient, but the statute as clearly authorized the amendment allowed by the court. The amendment must be considered as made within a reasonable time, when made as soon as the court has decided it to be necessary. Nor can the amendment of the affidavit authorized by the statute, be limited to mere matters of form. The language of the law is general, and no great evils seem likely to result from the natural and liberal construction of it. Where the grounds for issuing the attachment really exist, the object of the statute seems to be, to prevent the quashing of the writ from any mistake or oversight in the original affidavit. Where such grounds do not exist, the affidavit cannot be amended.

The pleas which were demurred to, are defective, not only in form, but in substance. They both look beyond ¡he judgment on which this suit was brought; which judgment cannot be invalidated in this manner. The judgment was therefore right in sustaining the demurrer.

Judgment affirmed.