McMahan v. Colclough

COLLIER, C. J. 1. The first ground on which the plaintiffs in error seek to quash the execution, is not maintainable. The insertion of the initial of a middle name for one of them, in the execution, is not such a departure from the judgment, as to avoid the process. Such an objection to an original writ, or a declaration, is not pleadable in abatement, or otherwise exceptionable. But the declaration designates the defendant to the action, by the same names that the execution does, and if it were necessary to aid the judgment in a particular, so very unimportant, reference might be had to the pleadings. 2. The second objection is alike untenable. The judgment though somewhat unteehnical, is certainly a sufficient warrant for the issuance of an execution. It is clearly a judgment by confession, and the term “ assessed,” used in the consideratum est, will be intended to mean nothing less than “ confessed,” 3. If the third cause were well taken in point of fact, it would not avail the plaintiffs; the supposed variance between the judgment and execution is a very unessential matter of form. 4. The execution, after setting out the names of the defendants, proceeds thus “ you cause to be made” &c. omitting [70] immediately after their names, “late of your county,” which words are contained in the statute form. Again, the form prescribed, supposes the damages and costs to be added together, and the execution to issue for the aggregate sum; but in the case before us, the execution describes the respective amounts of costs and damages, and directs them to be made, &c. These variances, it is insisted, are fatal to the execution. We think otherwise. They relate merely to matters of form, without affecting the substance. It is not indispensable, (though always safest) that the statute form should be literally followed; if the substance is preserved, it is all the law requires. 5, It is conceded upon the record, that the execution, though not issued by the clerk himself, was issued by his agent, recognized as a deputy, but not qualified as such in the manner directed by law. It is not indispensable to the regularity of an execution, that it should be issued by the clerk, or a duly qualified deputy. If the clerk thinks proper, he can engage the services of an assistant to write for him; and if the execution is made out and subscribed with his name, by his direction, and under his supervision, or if made and subscribed with his name, and afterwards adopted by him, it would in point of law, be as much his act, as if the labor had been performed with his own hand. That such may have been the circumstances under which the execution issued in the present case, there is nothing in the reeord to disprove. Under this view of the question, it is unnecessary to examine the statute, which prescribes the oaths to be taken by deputy clerks. The judgment is affirmed.