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,
PER CURIAM. Reversed.
Cited: Clark v. Hellen, post, 423; Smith v. Spencer,
(36)