Anonymous (1794) 6 Mod 263
| Jurisdiction | England & Wales |
| Year | 1794 |
| Date | 1794 |
| Court | High Court |
English Reports Citation: 87 E.R. 1010
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
case 377. buxom against hoskins. If a writ of error be brought on a judgment in ejectment, and, on neglect to assign error, the defendant bring a scire facias quare executionem non, and recite the judgment to be of two messuages, when it was only of one messuage, the variance cannot be amended after "nul tiel record" pleaded.-S. C. post, 310. S. C. 1 Salk. 52. S. C. 3 Salk. 32. S. C. Holt, 58, 762. S. C. 2 Ld. Eay. 1057. Error was brought of a judgment in ejectment: and the plaintiff not assigning error, the defendant in error brought a scire facias against him to have execution, reciting a judgment of two messuages, &c. whereas the judgment in truth was de uno messuagio. And to this the plaintiff pleads nul tiel record. It was now moved to amend it; and for amendments of scire facias were quoted, 1 Eoll. Abr. 197, 797. 22 Edw. 4, 6. 2 Keb. 175. 2 Cro. 372. Br. Abr. 20, sect. 20. 3 Cro. 760. 2 Sid. 7, 12. Holt, Chief Justice. This sort of scire facias is always to have execution, and the writ thus mentions it; and the plaintiff in error may, if he please, plead to it a writ of error brought, and still depending, and assign error. And Holt, Chief Justice, and the rest of the Court. There is a difference when the writ is bad and vicious on the face of it, and when it is good in the frame of it, but not fitted to that particular purpose; and all the cases put of amendment are of the first kind ; and some colour there would be to amend in this case if the defendant had appeared and pleaded some other plea, or had taken no advantage of this slip, so as the proceedings would have been vitious without amendment; but here he having taken advantage of this slip by pleading nul tiel record, shall we vitiate his plea by an amendment 1 And they agreed, that wherever an original was amendable, there a scire facias would be so too; but said, that this would not be amended in an original writ [264] of error. Why? Because it is a good writ, and would well remove the record it describes if any were; and quoted the cases of Hamond v. Jersey (a), and Thomson v. Crocker (b). And he said, if a formedon were made for ten...
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Franshaw against Bradshaw
...record.-Post, 251. Hob. 233. Savil, 87. March, 1. Yelv. 38. Cro. Jac. 13. Bulst. 204. Raym. 231. 2 Vent. 142. 3 Lev. 39. Ld. Ray. 669, 679. 6 Mod. 263. 2 Stra. 890. 1 Bac. Abr. 107. 4 Bac. Abr. 133. Cowp. 407, 425, 841. Dougl. 115. 1 Term Rep. 782. 2 Term Rep. 707. Debt upon a judgment obta......
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Walker et Al v Stokoe
...Amendment not granted where 'tis to reverse, and not to affirm a judgment. Comb. 354, S. C. 1 Danv. 330, p. 48. 1 Salk. 49, 52. 1 Mod. 153. 6 Mod. 263, 276, 285, 286, 310. Skin. 165, 253, 254, 591. Comb. 5, 58, 354, 355. Post, 520. Stat. 5 Geo. 2, c. 13. Vide 1 Leon. 134. 1 Lev. 99. Error o......
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Philips against Rice Huish
...on the record. Post. 67. 354. 372. 396. 445. 587. S. C. Yelv. 38. 1 Bulat, 204. 2 Vent. 142. Cro. Car. 32. 593. 3 Lev. 39. 3 Mod. 235. 6 Mod. 263. 1 Bac. Abr. 107. 4 Bac. Abr. 133. Dougl. 115. The obligee must be ready to receive at the day. 5 Com. Dig. 87. Tender according to the condition......
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Hammond against Gatliffe
...and Cambell, East, term 11 A. On the other side it was argued, that the writ was right on the face of it, and therefore not amendable; and 6 Mod. 263, 310. S. C. 1 Salk. 52, and 1 Salk. 49, were cited. And after consideration to the subsequent term, the amendment was ordered to be made by t......