3 Grant 236 | Pa. | 1858
The opinion of the court was delivered
The affidavit of defence in this case was not to the plaintiff’s claim, but to the process; alleging want of regularity in the original scire facias, and that the return of the sheriff upon it was some considerable time after the return day. The writ issued on the 10th of October, 1856, and was marked discontinued on the 10th of November following. On the 27th of December, a rule to show cause why the discontinuance should not be stricken off'and the cause reinstated was had, and on the same day the rule was made absolute; after which, bn the 2d of January, 1857, the sheriff by leave of court returned the writ “ tarde venit.” This return was good, and could be made as well after as before the return day. In practice this- often occurs, and is sometimes allowed to be made after a lapse of several years, to avoid apparent irregularities. Everything connected with the writ that had the appearance of irregularity was amended, excepting a clerical error, as to the amount of the judgment, which was amendable by the precipe, before the alias scire facias issued on which the judgment in this case was entered. On the 31st of January, 1857, the alias issued, was served on one of the defendants, and returned “ mortuus est ” as to the other. Appearance was entered to the case and affidavit of defence filed. It is not easy to perceive how any difficulty can arise under this state of the facts as to the j udgment entered for want of a sufficient affidavit of defence. There was no delay to work a discontinuance of the original scire facias. The alias was issued without the interval of a term, and there was an appearance to it. If the first writ had been a nullity,
Judgment affirmed.