Page:United States Reports, Volume 1.djvu/144

Rh 

1785.

prior to the judgment upon it, the Court muft clearly decree a preference to the judgment creditor. This feems ineed to be a legiflative direction as to recognizances in fimilar cafes ; nor, for what confusion would arife, from fupporting the lands of decreafed  perfons to be bound from one time,  the lands of living perfons from another ?

Upon the whole, we think, that great mifchiefs and dangers would be impofed upon honeft purchafors, if, at this time of day, we fhould unfettle what has been fo long the general opinion and practice on this fubject. Therefore,

Let the plaintiff take preference only from the date of the judgment on the Scire Facias. 

HE defendant had executed a bond, with warrant of money to confefs judgment to the plaintiff. The bond was payable on the 1ft of September 1785 ; but there no provifion for a ftay of execution, till that time, inferted in the warrant of attorney. The plaintiff iffued a Fi.ƒa. before the 1st of September,  and Dallas  for the defendant, moved to fet it afide.

were of opinion, that the warrant of attorney reciting the bond, was only an inftrument fufervient to it ; and, confequently, that the execution could not be iffued, till the time given for payment was expired. The exectuion fet afide. 

CIRE FACIAS againft the bail, and the judgment removed by writ of error. Upon the iffuing of a Certiorari to bring up the record, the plaintiffs moved to amend the Scire Facias  by the records, fubftituting September  1782 for December 1781. The motion had been argued at the laft term, and now came on for a fecond argument.

On the part of the defendant, it was faid, that as the caufe had been removed, by the writ of error, this Court had no longer any jurifdiction over it ;  but this objection was not infifted upon. Doug. 130. 10. and Cowp. 841. 844. had been cited for the plaintiff on the former argument ; but thefe were cafes of ejectment ; and it would overfee the law, if other points ere to be brought within the principle, by which ejectment are regulated. With refpect to amendments by the ftatutes of Jeoƒƒaille, they were only in matters of form ; but the