Cawthorn v. Knight

COLLIER, C. J. The act of 1830, provides that all de [581] crees made by the orphans’ court on a final settlement of the accounts of executors, administrators, and guardians shall have the force and effect of judgments at law, and executions may issue thereon, for the collection of the several distributive amounts against such executor, administrator, or guardian. [Clay’s Dig. 304, § 42.] A subsequent enactment, of 1832, declares, that when such an execution shall be returned by the sheriff “no property found,” as to a part thereof, or generally, execution shall forthwith issue against the sureties of such executors, administrators or guardians. (Id. 305, §45.] In the case at bar, it is distinctly shown, that previous to issuing the execution in question, a fieri facias had been issued and returned “no property found,” against the estate of Speight, the former guardian of the ward; so that it was altogether competent to have proceeded against the sureties as the statute prescribes. The plaintiff in execution must be the party in whose favor the decree is rendered; for the execution is a consequence of the decree, and the return upon the execution which issued against the principal obligor, and must conform to them. The seeming incongruity of permitting an execution to issue in favor of any other person than the obligee, is relieved by the statute which declares its legal effect, and gives the summary remedy to the party to whom the money has been adjudged. Such has been the unvarying construction placed upon the act. John Jones it seems was the executor of Geo. Jones, a deceased obligor, and the question is, whether the insertion of his name avoided the execution in toto, or whether it was not amendable by striking out his name, without affecting its validity as it respects the other defendants. It is said that a- writ of execution may be ameuded for a misprision of the clerk, by the 8th Henry VI, ch. 12 ; but the statutes of jeofails do not extend to such final process. {2 Archb. Prac. 279.] The amount of the judgment stated in the execution may be amended. [2 T. Rep. 737; 5 John. Rep. 100.] A misnomer on a ca. sa. has been amended after it has been executed. [Barnes’ Notes, 10; 4 Taunt. R. 322.] And even to strike out one of thejaames of the plaintiffs. [2 T. Rep. 737.] And an amendment has been allow [582] ed so as to make the amount agree with the judgment, where it is variant. [1 Chit. R. 349.] The amendment of a ca. sa. has been allowed by adding the testatum clause, (3 Johns. Rep. 144;) or where it issues for more costs than were awarded, (3 Caine’s Rep. 98;) and an execution, if tested after the plaintiff’s death, has been amended so as to make it conform to the truth of the case. [1 Cow. R. 33; 6 T. R. 368, 450.] An execution made returnable by mistake to one county instead of another has been amended. [2 B. & P. Rep. 336; 1 Marsh. R. (Eng.) 237; 5 Burr. Rep. 2588.] Indeed it is very difficult to prescribe limits to this salutary power possessed by the courts, of permitting amendments in their process, whether mesne, or final. It is a power exercised for the promotion of justice, with no parsimonious hand; yet where its allowance would be destructive of the rights of innocent third persons, the court will scan well the grounds upon which its action is sought. See further, 1 H. Bla. R. 541; 1 W. Bla. R. 694; 2 Id. 836; 5 T. Rep. 577; 4 Taunt. R. 322; 5 Id. 606; 4 M. & S. Rep. 328; 3 Greenl. R. 20, 260; 1 Johns. Ca. 31; 11 Mass. Rep. 413; Coleman & C’s Cas. 59; 3 Johns. Rep. 448; 9 Id. 386; 3 Murp. Rep. 128; 4 Ohio. Rep. 45; 4 Yeates’ Rep. 185, 205, 483; 4 Dall. R. 267.] Without stopping to inquire whether the" present case is embraced by the enlarged and liberal provisions of our statute of amendment, it is perfectly clear that the cases cited, furnish an ample warrant for striking out the name of the party who was improperly joined as a defendant. The powers of courts over their process, independent of legislation, are sufficiently expansive to embrace such an authority. If necessary to sustain the amendment by some record or memo-randa, the bond would show who were the sureties, and that John Jones was not one of them. As a reason for omitting the name of Geo. Jones, it would be allowable to suggest his death upon the roll nunc pro tunc, or to show the fact to the court in answer to a motion to quash. We think the recital in the ft,, fa. that his executor was a defendant therein was [583] p'ima facie sufficient, if it was necessary to excuse its omission. The judgment of the orphans’ court permitting the execution to be amended, and overruling the motion to quash, is therefore affirmed.