Den on Dem. of Purcell v. Tryon McFarland's Heirs

23 N.C. 34 | N.C. | 1840

The case comes before us upon the single point, whether the Superior Court of Robeson had the power, at the time the motion was made, to amend the executions by affixing the seal of the court to them. We are of the opinion that (35) the court had the power. The omission of the clerk to affix the seal to the executions was but a misprision in him. At common law the court on motion will, while the pleadings are in paper, and before they are entered of record, permit amendments in form or substance, on proper and equitable terms. But when the proceedings are entered on record, the court will not amend further than is allowable by the statutes of amendments. In this State, as in England, judicial writs are *34 seldom ever recorded, so that while they are but on the file the common-law rule as to amendments are as properly applicable to them as to the pleading in a cause whilst they remained in paper. Bing. Judgments, 72; Bing. Executions, 189. In England, writs of ca. sa. and fi. fa. must be signed as well as sealed. When third persons, who derive title from one of the parties, are not affected, executions may be amended by adding or altering the teste or return. Tidd, 986, 1027; 1 Marsh., 399; 5 East, 291; Bing. Executions, 190. Such amendment was authorized to be made by a decision of this Court in Smith v. Daniel, 7 N.C. 128. And we think, with JudgeHenderson, that an amendment is a matter of course, as to the affixing the seal to the executions, when it has been omitted by the negligence or ignorance of the clerk, and no third person claiming under one of the parties to the execution is affected thereby. Seawell v. Bank, 14 N.C. 284. We know that executions may be amended after they have been acted on, so as to render them a justification to the officer, when otherwise they would not be. Bender v. Askew, 14 N.C. 151, and the authorities there cited. Then why not amend by affixing the seal to protect a bona fide purchaser? We think that the judgment must be reversed. The Superior Court of Robeson will proceed upon the motion according to its sound discretion.

PER CURIAM. Reversed.

Cited: Clark v. Hellen, post, 423; Smith v. Spencer, 25 N.C. 262;Freeman v. Morris, 44 N.C. 289; Phillips v. Higdon, ib., 383; Williamsv. Sharp, 70 N.C. 584; Henderson v. Graham, 84 N.C. 498; Williams v.Weaver, 101 N.C. 2; Redmond v. Mullenax, 113 N.C. 511; McArter v. Rhea,122 N.C. 617; Calmes v. Lambert, 153 N.C. 252.

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