Rainey v. Commonwealth
10 Watts 343
| Pa. | 1840

The opinion of the court was delivered by

Sergeant, J.

The complaint is, that the court permitted the plaintiff to amend the scire facias. The plaintiff’s prsecipe directed the prothonotary to issue a scire facias sur judgment for the penalty in the official bond of William Rainey, as late sheriff of Cambria county, in the name of the commonwealth for the use of Abraham Horbach against William Rainey, Peter M’Guire, Michael M’Guire and John Rainey, No. 25, July term 1839. The prothonotary issued a scire facias, reciting that the commonwealth for the use of Abraham Horbach, on the 3d October 1838, recovered against the defendants, sur judgment for the penalty in the official *347bond of William Rainey as sheriff, for that he neglected and refused to pay to Abraham Horbach the sum of 266 dollars, 82 cents, ordered by the court of common pleas of Cambria county to be paid to him on the 3d October 1839, by said William Rainey, out of the money arising from the sale of the personal property of Thomas Witherow, sold by the said William Rainey as sheriff, by virtue of certain executions, &e. This writ was served on the defendants, who appeared (except William Rainey) and pleaded payment with leave, replication non solverunt and issue. Afterwards the defendant added the plea of mil tiel record. The plaintiff then moved for leave to amend the writ of scire facias by the praecipe and the record, which was given by the court. The defendant then demurred to the amended writ, and judgment was given for the plaintiff.

The amended writ recited that the commonwealth of Pennsylvania for the use of and Graham, now for the use of Nathan M. Chafee, lately in the court of common pleas of Cambria county, on the 4th April 1839, in No. 3 of October term 1838, recovered against William Rainey, Peter M’Guire, Michael M’Guire, and John Rainey, the sum of 8000 dollars, adjudged for debt, and that Abraham Horbach, in the name of the commonwealth- for the use of Abraham Horbach, had insinuated unto us, and according to the form of the statute in such case made and provided, suggested and given the court to understand, that the judgment so recovered was had upon a certain official bond dated the 29th November 1834, whereby the said John Rainey, and the other defendants as his sureties, were bound to the commonwealth in the sum of 8000 dollars conditioned for duly serving and executing all writs, &c., and on request paying over moneys, and faithfully discharging his duty (in the words of the law); averring that he was duly commissioned, and alleging as a further breach of the condition than that whereon the said judgment was recovered, that on the 3d October 183S, the sheriff was ordered by the said court to pay to the plaintiff the sum of 266 dollars 82J cents, moneys arising from the sale of certain property specified, which he had neglected and refused to do.

The recital in the original writ of a judgment recovered on the 3d October 1838, at the suit of the- commonwealth, for the use of Abraham Horbach, seems to have been a mistake of the officer who made out the writ; the real judgment having been recovered on the 4th April 1839, in a suit by the commonwealth for the use of and Graham (now for Chafee), in an action No. 3, of October term 1838. The plaintiff came in subsequently to tbe judgment for the penalty, by suggestion, agreeably to the provisions of the 11th clause of the 6th section of the act passed on the 14th June 1836, relative to bonds with penalties, and official bonds. The praecipe in this case was for a scire facias sur judgment for the penalty in the official bond of William Rainey as late sheriff. This *348certainly pointed to the judgment of the 4th April 1839, and is sufficient to amend by, and it was the duty of the person making out the original scire facias to hunt up and refer to it. The amendment, therefore, remedied a clerical error or slip in the making out of the writ, and rendered it what it ought to have been at first. The question is, whether the court below had power to allow this amendment, and we think they had. It is obviously a clerical mistake, in referring to a judgment ,not existing, instead of the real one meant. There is something to amend by, namely, the praecipe and records of the court; and amendments are allowed at common law, where there is any thing on the record to amend by. Courts have of late years been indulgent in admitting amendments to cure the slips of officers; and more especially is it permitted among us, where legal proceedings are so slowly, and often negligently conducted. 6 Watts 536. In Burrows v. Heysham, 1 Dall. 133, a writ of scire facias against bail was allowed to be amended by the record, by substituting September 1782, for December 1781. In Guhr v. Chambers, 8 Serg. & Rawle 157, a writ of error was allowed to be amended by the praecipe.

Judgment affirmed.