Den on Dem. of Purcell v. Tryon McFarland's Heirs

Daniel, Judge, after stating the case as above, proceeded as follows: The case comes before us upon the single point, whether the Superior Court of Robeson county had the power, at the time the motion was made, to amend the executions by affixing the seal of the court to them. We are of the o *35 pinion that the court had the power. The omission of the clerk to affix the seal to the executions, was but a misprision in him. At common law, the court on motion will, while the pleadings are in paper, and before they are entered of record, permit amendments in form or substance, on proper and equitable terms. But when the proceedings are entered on record, the court will not amend further than is allowable by the statutes of amendments. In this State, as in. England, judicial writs are seldom ever recorded, so that while they are but on the file, the common law rule as to amendments are as properly applicable to them as to the pleadings in a cause whilst they remained in paper. Bing, on Judgments 72; Bing, on Execut’s. 189. In England, writs of ca. sa. andyi. fa. must be signed as well as sealed. When third persons, who derive title from one of the parties, are not affected, executions may be amended by adding or altering the teste or return. Tidd. 986,1027. 1 Marsh. Rep. 399. 5 East. 291. Bing, on Exect’ns. 190. Such amendment was authorised to be made by a decision of this Court, in Smith v. Daniel, 3 Murp. 128. And we think, with Judge Henderson, that an amendment is a matter of course, as to the affixing the seal to the executions, when they have been omitted by the negligence or ignorance of the clerk, and no third person claiming under one of the parties to the execution is affected thereby. Seawell v. Bank of Cafe Fear, 3 Dev. Rep. 284. We know that executions may be amended after they have been acted on, so as to render them a justification to the officer, when otherwise they would not be. Bender v. Askew, 3 Dev. Rep. 151, and the authorities then cited. Then why not amend by affixing the seal to protect a bona fide purchaser? We think that the judgment must be reversed; and this opinion must be certified to the Superior Court of Robeson, with directions to proceed upon the motion ac'cording to its sound discretion. Per Curiam.. Judgment reversed.