Condit v. Gregory

¶1The practice of amending writs of scire facias has not been uniform. In Beecksom v. Hoskins, Salk. 52, in Error, the scire facias was, “ wherefore he should not have execution of a Judgment in ejectment for two messuages,” whereas the recovery was of one messuage only. The plaintiff in Error pleaded nul tiel record. The defendant moved to amend. _ The court said that nothing vicious or informal appeared to need an amendment. The writ was good, though improper for the purpose. The same case is reported" by Lord Raymond (2 Ld. Raym. 1057), who questions the ruling of the court, and states that at the same time two writs óf scire facias were amended, one of which recited a judgment as of the third year of the Queen, and it was amended and made the first, agreeably to' the record. But in both these cases the amendments were made immediately on the return of the scire facias, and before plea pleaded.

¶2In Vavaso v. Baile, Salk. 52, and in Hillier v. Frost, 1 Stran. 401, motions to amend the scire facias to make it conform to the original record, and also in the date of the return, were denied. By the ancient practice, it was considered that a scire facias in general was not amendable. 2 Tidd’s Pr. 1036.

¶3More recently, however, the courts have in repeated instances allowed the scire facias, and the declaration thereon, to be amended, and made conformable to the original record, after nul tiel record pleaded. Sweetland v. Beezley, Barnes 4; Perkins’ Adm’r v. Pettit, 2 Bos. & Pul. 275; King v. Scott 4 Price 181; 2 Arch. Pr. 244; 2 Tidd’s Pr. 1037, note D; 2 Sell. Pr. 64.

¶4A scire facias is, in strictness, not an original, but a judicial *431writ. Properly speaking, a scire facias to revive a judgment, is only the continuance of an action. 2 Sell. Pr. 187, 188.

¶5It is therefore not within the objection made by Kirkpatrick, C. J., to amending a writ of dower. 1 Holst. 167.

¶6Amendment allowed on payment of costs, (a)