Page:United States Reports, Volume 1.djvu/145

134 

1785.

the prefent motion went to matter of fubftance, and, therefore, ought not to be granted. The bail, it the judgment is mifrecited in the Scire Fracias, is intitled to the relief by writ of error, Salk. 52. L.Ray. 1057. S.C. 6. Mod.263.2 Stra. 1165. Gilb. 136.

For the plaintiƒƒ it was anfwered, that, independent of the ftatutes of Jeoƒƒailles,  this might be amended. It is a rule at common law to amend, whenever there is anything to amend by. 5 Barr. 1730, was matter of fubftance, yet amended ; becaufe there the reft of the pleadings rectified the error. That, likewife, was a cafe after a writ, which recites the judgment to have been prior to the date of the recognizance ; and in this point it is diftinguifhable from Salk. 52. L. Raym.1057.

On the 20th of Auguʃt, the PRESIDENT delivered the opinion of the Court.

SHIPPEN, Preʃident. As it has not been made any part of the argument, that the power of the Court to amend, is not the fame, as it was before the action was removed, we fhall determine the queftion as we fhould have done, if the writ of error had not been brought. Upon the liberal principles of modern practice, therefore, and indeed, for the honour of common fenfe, we think it incumbent upon us to direct the Scire Facias to be amended by the record. Befides the cafes in the books (particularly that in Barnes 6 Sweetland vs Beezely) there are fome inftances in our own Courts that authorizes this determination. I remember in Scott vs Gatbraith at Niʃe, in Lancaʃter,  a verdict was given for the plaintiff in ejectment, for one half of the premifes, and nothing was faid refpecting the other half. A motion was made in Bank  to fet afide this verdict ; but it was allowed to be amended, by adding, ‘‘and for the refidue they find for the defendant ;’’  although, in that cafe, there was not anything to amend by, but merely what was implied in the verdict. The rule made abfolute.