Patrick v. Woods

6 Ky. 232 | Ky. Ct. App. | 1813

OPINION of the Court, by

Ch. J. Boyle.

This is a writ of error with supersedeas to a judgment awarding execution upon a scire facias to revive a former judgment obtained by Woods against Patrick. The scire facias purported to be issued upon a judgment against Patrick and wife, and upon the motion of Woods was amended by' striking out the name of the wife.

The only question is, whether the amendment was permissible or not ?

We have no doubt that it was. Woods had given to the clerk written instructions to issue the scire facias against Patrick only ; and where a writ does not conform to the instructions given to the cleric, it may be amended thereby, according to the universal practice cf-this country and the precedents in the English books. But the amendment in this case was also justified by the former judgment : for a scire facias may be amended by the record in the original action — See Com. Dig. title Amendment, letter D. and the authorities there cited.

The judgment must be affirmed with costs and damages.