Owen v. Simpson

The opinion of the Court was delivered by Gibson, C. J. Not only has every court the power, but it is its duty to amend a clerical error which stands in the way of justice ; and here it is evident the defect in the process was produced by the blunder of the prothonotary. But there is one consideration which entitles the purchaser,'in a case like this, to peculiar favour. It is the course of most of our offices not to issue the writ the moment a precipe comes in; and though not expressly a part of the case, it is not too much to presume that in preparing a number of executions to be delivered to the sheriff together, the clerk misplaced the indorsements; consequently, that the sheriff had actually in his hands a formal writ. to authorize the levy when he made it. Now had the return been made on the paper containing this writ, though entitled in another cause, no irregularity could have been pretended, because, theoretically, the body of the writ is every thing and the indorsement of'the title nothing. But why shall not the court attach the return to the writ where their separation was accidental 1 In practice, the indorsement means more than it does in theory, as it determines the line and limit of the officer’s duty, and in a measure controls the mandate [89] within. So far does this prevail, that an alias or pluries for an unmade residue, instead of being based according to strict form on the return of the preceding writ, and commanding further execution to be done but to the extent of such residue, issues, by the practice of most of our offices, nominally for the amount of the entire judgment, but actually for the balance, deducting the credits indorsed. This is an incongruity which doubtless mars the symmetry of the proceeding : but that it is convenient in practice and harmless in its consequences, is proved by the fact that the courts have not been called upon to correct it. It is not meant by this to encourage departures from the forms of the common law ; but it is proper to say, that the indorsement on an execution is something more than an index of its existence on the file. It is an index of the matter within ; and it contains that from which the substance of a perfect writ may be extracted. Now where there have been cross blunders in this matter, it will not be disputed that the court may set every thing right by transferring the indorsement of the title, and return to the paper containing the mandate; and it requires no greater assumption of power to transfer the mandate to the proper- indorsement: so that it would not seem to be a stretch of authority to lay hold on either the writ or the indorsement to sustain a title, like this, grown out of a bona fide proceeding. But, to discard the assumed existence of a formal authority in the hands of the sheriff, concurrently with the paper indorsed as such, which I admit is not a part of the case, we have the precipe directing a writ to be issued ; a levy, inquisition, venditioni and sale, all reciting it; and with such materials for it, why should a court not amend? The objection is, not that there is nothing to amend by, but that there is nothing to be amended; as, on turning from the indorsement without to the matter within, we discover what is either perfect already, though purporting to have been issued on another judgment, or else a nullity as respects the sheriff’s authority to sell the defendant’s land. It is undoubtedly a nullity; but it is no more so than was the execution in Peddle v. Hollingshead, 9 Serg. & Rawle 277, which was insensible and void in its whole frame before the amendment was allowed which made it intelligible, and which, by the insertion of the words introduced, was changed in its legal effect and became a different instrument. And in Black v. Wistar, 4 Dall. 267, a variance between the judgment and the fieri facias, which is the defect here, with this difference that the variance is a¿ total one, was amended by the precipe and judgment even after error brought. Here there is the judgment, the precipe, the indorsement, the inquisition and condemnation, the return of sale; in short every thing precedent or subsequent to the blunder that could indicate its existence and extent; and to suffer the misprision of a clerk to destroy the title of a purchaser with such materials for amendment, would be inconsistent with the liberality which is so conspicuous a feature in the practice of our day. As then the court in which the proceedings were, might have repaired [90] the defect in the purchaser’s title, we are bound by the terms of the case to say he is entitled to recover. Judgment of the court below reversed, and judgment for the plaintiff.