ant, where he was a prisoner in custody under it.(mm) But the court of King's Bench would not grant a rule for amending the writ, under which (mm) Per Cur. M. 48 Geo. III. K. B., and see 7 Durnf. & East, 698. And in New York. Ohio, like liberality is allowed. See Curwen's Laws, p. 1183, 1184. See Blatchford's Gen. Stat. p. 240. Massachusetts Rev. Stat. ch. 100, 22, p. 608. The power to grant amendments is a discretionary power in the court, and in general, will not be interfered with on writ of error. Caldwell v. M'Kee, 8 Missouri, 334. Lansing v. Birge, 2 Scam. 375. Green v. Robinson, 3 How. Miss. 105. Quiett v. Boon, 5 Iredell, 9. Perley v. Brown, 12 N. Hamp. 493. Dyott v. Com., 5 Whart. 67. Archer v. Stamps, 4 Sm. & Marsh. 352. Newall v. Hussey, 6 Shep. 249. Glasscock v. Glasscock, 8 Missouri, 577. They are almost universally allowed, where they do not surprise, hinder, or delay the opposite party. They may be allowed even after a mis-trial. Hester v. Haygood, 3 Hill, S. C. 195. Cayce v. Ragsdale, 2 Benn. Miss. Rep. 32. Every court of record has power over its own records and proceedings, as long as they remain incomplete, and until final judgment is rendered; and until that time it is the established practice in such courts to regard all actions, whether on the docket of the existing or a former term, as within the jurisdiction and control of the court. Woodcock v. Parker, 35 Maine, (5 Red.) 138. Killein v. Sistrunch, 7 Geo. 281. Barefield v. Bryan, 8 Geo. 463. Bagley v. Wood, 12 Ired. 90. Until the expiration of the term, the court has authority to amend, reverse, or annul its judgments, as well upon material as immaterial points, upon the merits as well as upon matters of form; so that it is not error to allow a judgment to be amended, after a motion to set it aside has been over ruled and notice of appeal entered. Wood v. Wheeler, 7 Texas, 13. And these amendments may be made of their own motion or on the suggestion of any party interested, and without notice to any one, and they are the exclusive judges of the necessity and propriety of amending. Balch v. Shaw, 7 Cush. 282. Where there is no statute on the subject, amendment is a matter of mere discretion; and the exercise of that discretion cannot be impeached or controlled by bill of exceptions or error. Wyman v. Dorr, 3 Greenl. 183. Clapp v. Balch, 1b. 219. Mandeville v. Wilson, 5 Cranch, 15 Walden v. Craig, 9 Wheat, 576 Chirac v. Reinicker, 11 Wheat, 302. Bailey v. Musgrave, 2 S. & R. 29. Benner v. Fry, 1 Bin. 369. Stephens v. Watts, 2 Wash. 203. Marine Insurance Co. v. Hodgson, 6 Cranch, 206. United States v. Buford, 3 Pet. 12. Merriam v. Langdon, 10 Conn. 460. Brown v. M'Cune, 5 Sandf. 224. Phincle v. Vaughan, 12 Barb. 215. Green v. Cole, 13 Ired. 421. Bean v. Moore, 2 Chand. Mis. Rep. 44. Austin v. Jordan, 5 Texas, 130. King v. The Bank, 4 Eng. 185. Wilson v. Johnson, 1 Green's Iowa Rep. 167. Saunders v. Smith, 3 Kelly, 121. Graves v. Fulton, 7 How. Miss. 592. And the amendments may be made at any stage of the proceedings, provided the opposite party be not put in a worse situation. Beard v. Young, 2 Overt, 54. Cooper v. Jones, 4 Sandf. S. C. 699. Cartwright v. Chabert, 3 Texas, 261. Mere clerical errors may always be amended, even in criminal cases. Sharff v. Commonwealth, 2 Binn. 514. Keans v. Rankin, 2 Bibb. 88. Anon. 1 Gallis, 22. State v. Seaborn, 4 Dev. 319. Vandyke v. Dare, 1 Bailey, 65. State v. Williams, 2 M'Cord, 301. Young v. State, 6 Ham. 435. Toomer v. Parkey, 1 Rep. Const. Ct. 323. Jackson v. Anderson, 4 Wend. 474. 632. It may be stated, as a general rule, that any mere clerical error is amendable. Smith v. The Bank, 5 Ala. 26. Mitchell v. Sparkes, 1 Scam, 122. Galloway v. M'Gethens, 5 Ired. 12. Dearing v. Smith, 4 Ala. 432. Jordan v. The Bank, 5 lb. 284. Hawley v. Bates, 19 Wend. Tatem v. Potts, 5 Blackf. 534. Woods v. Green, Wright, 503. Scale v. Swan, 9 Porter, 163. Smith v. Strade, Ib. 446. Furness v. Ellis, 2 Brock, 14. Cherry v. Woodard, 1 Ired. 438. Otez v. Rodgers, 4 Ibid. 534. M'Call v. Trevor, 4 Blackf. 496. Johnson v. Nash, 5 Washb. Verm. 40. Sheppard v. M Clay, 12 Ala. 561. Silner v. Butterfield, 2 Carter Ind. Rep. 24. Austin v. Jordan, 5 Texas, 130. Thus where the inferior court of Georgia had passed an order requiring the clerk to issue a fi. fa. against the treasurer of a county, but the clerk failed to record such order, it was held, that it was competent for the inferior court, after the fi. fa. has been issued, to place the order on the minutes, nunc pro tune. Foster v. The Justices, &c., 9 Geo. 185. So where a seal was omitted from a citation, the clerk of the court was allowed to amend it, by affixing a seal. Cartwright v. Chabert, 3 Texas, 261. It rests in the discretion of the court. Clark v. Hellen, 1 Ired. 421. Purcell v. M'Farland, 1 Ired. 34. A writ of error may be amended by affixing a seal to it. Lowe v. Morris, 13 Geo. 147. The People v. Steuben Co., 5 Wend. 103. But see where leave was refused, Hall v. Jones, 9 Pick, 446. Bailey v. Smith, 3 Fairf. 196. Stayton v. Newcomb, 1 Eng. 451. And in Maine it has been held, that an original writ without a seal cannot be amended. Bailey v. Smith, 3 Fairf. 196. Tibbetts v. Shaw, 19 Maine, 204. Wetherill v. Randall, 30 Id. 168. An error in the test of a writ may be amended. Nash v. Brophy, 13 Metcf. 218; Baker v. Smith, 4 Yeates, 185; Shoemaker v. Knorr, 1 Dall. 197; Ross v. Luther, 4 Cow. 158; De the defendant had been arrested by a wrong name, after actions of false imprisonment had been brought for such arrest.(n) So, an amendment cannot be made of mesne process, by adding the name of another person as plaintiff.(o) A writ returnable on a dies non is altogether void, and cannot be amended by the court. (p) And the courts, we have seen,(q) will not in general allow a writ to be amended, to the prejudice of the bail.[A] Before or immediately after the end of every term, the sheriff is required, by an old rule,(r) to deliver and return into court, all writs of latitat, *and writs thereupon issuing out of the King's Bench. [*162] And where a writ is sued out to avoid the statute of limitations, it should regularly be entered on a roll, and docketed, with the sheriff's return thereto, and continuances to the time of declaring. (aa) The writ should be entered on a roll of that term wherein it was returnable; and, in the King's Bench, it is entered in hæc verba: after which the roll proceeds with an entry of the plaintiff's appearance, the sheriff's return of non est inventus, and continuances of the process from term to term, by vicecomes non misit breve, to the term of the declaration. In the Common (n) Anon. M. 41 Geo. III. K. B. (p) 4 Barn. & Ald. 288, but see 6 Moore, 113. 3 (9) Ante, 130. (aa) 2 Wms. Saund. 5 Ed. 1, (1). 8 Moore, 189. 112, and see Append. Chap. VI. 28. Chap. XIV. § (0) 1 Chit. Rep. 369. Append. Chap. VIII. 48, 9, 50, 75, moss v. Camp, 5 How. Miss. 516; Converse v. The Bank, 3 Shep. 431; Ripley v. Warren, 2 Pick. 592; or, in the ad damnum, Cragen v. Warfield, 13 Metcf. 218; Foulkes v. Webber, 8 Humph. 530; Converse v. The Bank, 3 Shep. 431; M'Lellan v. Crifton, 6 Greenl. 307; Clark v. Herring, 5 Binn. 33; Danielson v. Andrews, 1 Pick. 156; Gregg v. Gier, 4 M'Lean, 208; Geren v. Wright, 8 Sm. & Marsh. 360; Clayton v. Liserman, 7 Ired. 92. But where it involves the question of jurisdiction it cannot; Hart v. Moloney, 2 New Hamp. 322. In the date of the writ it may; Anderson v. The Bank, 5 Geo. 821; Jackson v. Bowling, 5 Eng. 578; M'Larren v. Thruman, 3 Ib. 313; Harness v. M'Cormick, 5 Pike, 663; or in the names of the parties, Wilcox v. Hawkins, 1 Hawks. 84; Wilson v. King, 6 Yerg. 493; Burnham v. Savings Bank, 5 New Hamp. 573; Sherman v. The Conn. Bridge, 11 Mass. 338; Bullard v. The Nan. Bank, 5 Id. 99; Bank v. Lacey, 1 Monr. 7; Anderson v. Brock, 3 Greenl. 243; Kincaid v. Howe, 10 Mass. 203; M'Clure v. Burton, 1 Car. Law Reps. 472; Acquitta v. Cromwell, 1 Calf. 191; Heath v. Lent, Id. 410; Maxwell v. Haven, 8 Geo. 61; Cauthorn v. Knight, 11 Ala. 579; Coburn v. Ware, 12 Shep. Maine Rep. 330; Woodson v. Law, 7 Geo. 105; Porter v. Goodman, 1 Cow. 413; Cox v. The Macon Railroad, 12 Geo. 270; Winsor v. Lombard, 18 Pick. 57; Thayer v. Hollis, 3 Metcf. 369; or in a wrong addition or place, Gooch v. Bryant, 1 Shep. 386; Kimball v. Wilkins, 2 Cush. 555; or in the signature of the clerk or his deputy, Whitney v. Beebe, 7 Eng. 421; Farmers' Loan v. Carrell, 2 Comst. 556; Pepoon v. Jenkins, Coleman's Cases, 55; or the clerk's omission to enter defendant's appearance, Worrell v. M'Henry, 1 Mann. Mich. Rep. 227; or irregularities in jury process, Livingston v. Rodgers, 1 Caines, 587; Beach v. The Bank, 7 Cow. 509; Whittier v. Varney, 10 New Hamp. 291; or in the record, The State v. King, 5 Ired. 203; Colby v. Moody, 1 App. Maine Rep. 111; in re Limerick Petitioners, 6 Shep. 183; Simpson v. Bank, 2 Speers, 41; Sweney v. Delany, 1 Barr Penn. 320; or in the amount of the judgment, Walker v. Walker, 3 Harring. 502; Dearing v. Smith, 4 Ala. 432; Hunt v. Grant, 19 Wend. 96; or in the name of the county in which the alleged taking in replevin is laid, Judson v. Adams, 8 Cush. 556; or in the name of the court, Anthony v. Humphries, 6 Eng. 663; or of the state, Harris v. Jenks, 2 Scam. 475; or mistake in the date, Parkman v. Crisby, 16 Pick. 297. But before any amendment can be allowed there must be something to amend by. Ellis v. Ewbanks, 3 Scam. 190; Bird v. Hood, 6 Black. 260; Beck v. Williams, 5 Ib. 374; Jackson v. Fletcher, 1 Morris, 230; Beall 7. Fox, 4 Geo. 403; Nimmon v. Worthington, 1 Carter, Ind. Rep. 376; Sickles v. Overton, 3 Barr, 325; Ellison v. The State, 8 Ala. 273; Ellis v. Brown, 1 Pike, 82; Lake v. Morse, 11 III. 587; Wright v. Hale, 2 Cush. 486; Smets v. Wetherbee, R. M. Charl. 537; Dean v. Swift, 11 Verm. 331. See post, p. 696; Vol. II. p. 922, for a fuller discussion of the law of amendments and statutes of jeofails. [4] See 1 Broom's Pract., p. 652, et seq. Pleas, the roll merely contains a recital of the writ, with an entry of the plaintiff's appearance, and sheriff's return, &c. And when the proceedings are thus entered, the roll is docketed(b) with the clerk of the judgments in the King's Bench, or prothonotaries in the Common Pleas, and afterwards filed in the treasury of the court. In replying to a plea of the statute of limitations, except by original, (c) the plaintiff should show that the cause was regularly continued, by vicecomes non misit breve, from the return of the writ to the time of declaring.(d) And where three latitats were sued out at different times, for the same cause of action, and the defendant appeared upon the second, and signed a non pros for not declaring, the court ordered the continuances subsequently entered upon the first, to be struck out; being of opinion, that the first latitat was made an end of by the second; and if it were not so, the practice of the court is clear and well known, that the continuances must be by alias and pluries, and not by original writs of latitat.(e) But the continuances need not appear in pleading, to have been by alias and pluries writs :(f) And in general, the continuances are mere matter of form, and may be entered at any time.(g) It has even been holden, that they may be made by the attorneys in their chambers. (h) And, in order to save the statute of limitations, it is sufficient that the writ be sued out, and the return indorsed upon it, in time; it not being necessary that the writ should be delivered out of the sheriff's office as returned.(i) In penal and other actions, which are limited by statute to be commenced within a certain time, it is necessary for the plaintiff to produce the writ at the trial, or an examined copy of it, if filed, in order to show that the action was commenced in due time, unless it appear to have been so commenced, on the face of the record of nisi prius. And, in the Common Pleas, the production of a capias ad respondendum, sued out in [*163] time, *is deemed sufficient for that purpose. (a) But if the writ was not sued out till after the time prescribed, though by relation it would be within the time, the plaintiff will be nonsuited.(bb) If there be only one writ, the plaintiff may give it in evidence, without showing it to be returned. (cc) And if the declaration appear, on the face of the record, to have been delivered or filed within the time allowed by the rules of the court for declaring, it is sufficiently connected with the writ;(dd) if not other evidence is necessary to connect them. And, in the Common Pleas, if the issue be made up of a term subsequent to that allowed by the rules of the court for declaring, the plaintiff must show that the declaration was delivered or filed (b) Append. Chap. VIII. 2 49, 113. (c) Sty. Rep. 373, 401. 1 Wils. 167, 8. (d) 1 Show. 366. 2 Salk. 420, S. C. 1 Lutw. 260. 1 Ld. Raym. 435, S. C., and see 3 Durnf. & East, 662. 3 Bos. & Pul. 334, 5. (e) Benson v. King, H. 25 Geo. III. K. B. (f) 4 Barn. & Cres. 625. 7 Dowl. & Ryl. 25, S. C. (g) Bates, qui tam v. Jenkinson, E. 24 Geo. III. K. B. cited. 6 Durnf. & East, 257, 618, S. C., 7 Durnf. & East, 618, and see Moore, 525. 3 Brod. & Bing. 212, S. C. 1 Bing. 324. 5 Barn. & Cres. 341. 8 Dowl. & Ryl. 270, S. C. Ante, 27, (i). (h) 1 Sid. 53, 60, and see 2 Salk. 590. 2 Wms. Saund. 5 Ed. 1, (1). (i) 5 Barn. & Ald. 489, and see 6 Moore, 525. 3 Brod. & Bing. 212, S. C. 1 Bing. 324. 5 Barn. & Cres. 341. Ante, 27, (i). (a) 3 Wils. 455. (bb) Bul. Ni. Pri. 195. (cc) 7 Durnf. & East, 6. 2 Bos. & Pul. 157, and see 4 Taunt. 555. 6 Taunt. 142, 3. 1 Marsh. 498, 9, S. C. (dd) 4 Taunt. 555, and see 6 Taunt. 144. 1 Marsh. 499, 500, S. C. OF THE PROCEEDINGS ON MESNE PROCESS, ETC. 163 within that time.(e) Where there are two writs, the court will presume that the plaintiff proceeded on the last, unless he can connect them, by showing the first to be returned:(f) for until that be done, the court is not in possession of the cause, so as to award an alias or pluries for bringing the defendant into court.(g) But where the debt was paid after a pluries writ issued, the defendant was not allowed to object at the trial, that the latitat was not returned; for at any rate, if the pluries writ had been the commencement of the action, it was only an irregularity, which though a ground for applying to the court to set aside the proceedings, yet having been once waived, could not afterwards be objected to.(h) Where one writ was produced at the trial, and three declarations against the principal and his bail, to show that certain actions had been brought against them, and three allocaturs of the costs taxed in the same actions were also put in and proved; this was deemed sufficient evidence of three actions having been brought, and of the costs having been taxed therein.(i) To prove the issuing of a writ, in an action against an attorney for practising without a certificate, it is not sufficient to prove the præcipe by the filacer's book, and to give notice to the party to produce it; but it should also be shown that, after the return, the treasury was searched, and no such writ found, and that it was in the party's hands, who had notice to produce it.(k) Of the PROCEEDINGS on MESNE PROCESS, against the PERSON of the DEFENDANT; and of the SERVICE of a COPY of PROCESS, NOT BAILABLE; and the NOTICE to appear thereto. THERE are two ways of proceeding upon mesne process against the person of the defendant, whether the action be commenced by original writ, bill of Middlesex or latitat, capias quare clausum fregit, &c. or attachment of privilege; first, by service of a copy of the process; and 2dly by arrest. Before the making of the statute 12 Geo. I. c. 29, a defendant might have been arrested, upon process against the person, in civil actions, for any sum of money however trifling, or to any amount however considerable, without any affidavit of its being due. To remedy which, it was enacted by the above statute, (amended by the 5 Geo. II. c. 27, made perpetual by the 21 Geo. II. c. 3, and extended to inferior courts by the 19 Geo. III. c. 70, § 2,) that "in all cases, where the cause of action shall not amount to the sum of ten pounds or upwards, and, the plaintiff or plaintiffs shall proceed by way of process against the person, he she or they shall not arrest, or cause to be arrested, the body of the defendant or defendants; but shall serve him her or them personally, within the jurisdiction of the court, (e) 6 Taunt. 141. 1 Marsh. 497, S. C. (f) Bates, qui tam, v. Jenkinson, E. 24 Geo. III. K. B., per Buller, J. 6 Durnf. & East, 617. 2 Bos. & Pul. 157. 14 East, 491, and see 6 Taunt. 142, 3. 1 Marsh. 498, 9, S. C. (g) 7 Mod. 3. 1 Lutw. 260. 1 Ld. Raym. 435, S. C. 2 Ld. Raym. 883. Willes, 255. (h) 7 East, 536. (i) 11 Price, 235, 250, 270, 71. (k) 4 Esp. Rep. 160. with a copy of the process; upon which shall be written an English notice to such defendant, of the intent and meaning of such service; for which no fee or reward shall be demanded or taken: provided nevertheless, that in particular franchises and jurisdictions, the proper officer there shall execute such process. And that in all cases, where the plaintiff's cause of action shall amount to the sum of ten pounds or upwards, an affidavit shall be made and filed of such cause of action; which affidavit may be made before any judge or commissioner of the court out of which such process shall issue, authorized to take affidavits in such court, or else before the officer who shall issue such process, or his deputy; which oath such officer or his deputy are empowered to administer; and for such affidavit one shilling shall be paid, and no more; and the sum or sums specified in such affidavit, shall be indorsed on the back of such writ or process: (a) for which sum or sums, so indorsed, the sheriff or other officer, to whom such writ or process shall be directed, shall take bail, and for no more." This [*165] part of the statute, we have seen, (aa) is merely directory to the sheriff; and does not avoid the process, where the sum sworn to is not indorsed upon it. But the statute is express, that the affidavit must be filed, before the writ issues. (b) And "if any writ or process shall issue for the sum of ten pounds or upwards, and no affidavit and indorsement shall be made as aforesaid, the plaintiff or plaintiffs shall not proceed to arrest the body of the defendant or defendants, but shall proceed in like manner as is directed by the statute 12 Geo. I. c. 29, in cases where the cause of action does not amount to the sum of ten pounds or upwards."[A] And, by a late act of parliament, (c) "no person shall be held to special bail, upon any process issuing out of any court where the cause of action shall not have originally amounted to the sum of twenty pounds or upwards, over and above and exclusive of any costs, charges or expenses that may have been incurred, recovered or become chargeable, in or about the suing for or recovering the same, or any part thereof: And that in all cases where the cause of action shall not amount to twenty pounds or upwards, exclusive of such costs, charges and expenses as aforesaid, and the plaintiff or plaintiffs shall proceed by the way of process against the person, he she or they shall not arrest, or cause to be arrested, the body of the defendant or defendants; but shall serve him her or them personally, within the jurisdiction of the court, with a copy of the process and proceedings thereupon, in such manner as by the said act of the twelfth year of the reign of his late majesty king George the first is provided, in cases where the cause of action shall not amount to ten pounds or upwards, in any superior court, or to forty shillings or upwards in any inferior court." But the statute 51 Geo. III. c. 124, § 1, did not avoid the plaintiff's proceedings and judgment, by reason of his having arrested the defendant for a sum exceeding fifteen pounds, when he recovered less than that sum. (d) And where the defendant pleaded, the plaintiff had sued out a writ against him by a wrong name, under (a) Append. Chap. VII. 2 2. Chap. VIII. & 22, 29, 55. (aa) Ante, 159. (b) 2 Ken. 374. (c) 7 & 8 Geo. IV. c. 71, 2 1, and see stat. 51 Geo. III. c. 124, 1, continned by 57 Geo. III. c. 101, but which had expired before the passing of the 7 & 8 Geo. IV. c. 71. (d) 7 Taunt. 435. 1 Moore, 131, S. C. [A] This act was said by President Shippen in Taylor v. Rivers, 1 Dall. 159, never to have been in force in Pennsylvania, but see note p. 180. |