4 U.S. 267 (1803)

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U.S. Supreme Court

BLACK v. WISTAR, 4 U.S. 267 (1803)

4 U.S. 267 (Dall.)

Black, Plaintiff in Error,

Supreme Court of Pennsylvania.

March Term, 1803

IN error, from the Court of Common Pleas of Northumberland county. The case was, briefly, this: William Wistar brought an action of debt against James Black, in the Common Pleas, to April term 1798. The writ demanded a debt of 766l. 9s. 5d. The declaration demanded a debt of 766l. 4s. 5d. on a bill obligatory for that sum, dated the 28th of May 1796, and payable in three months with interest. On the 10th of September 1798, judgment was entered for 869l. 3s. 6d. with costs. A fi. fa. issued to January term 1799, for 766l. 9s. 5d. which was regularly returned, 'Staid by order of plaintiff's attorney;' with an additional indorsement, signed by Black, the defendant below, in these words: 'I agree that the sheriff return a levy on this writ, as of the term to which it is returnable:' and such a return was accordingly made, at a subsequent period. On the 18th of July 1800, the sheriff held an inquest, by virtue of the above fi. fa. and returned the inquest annexed to the writ. The inquest condemned the property; and it was afterwards sold on a vend. exp. when Wistar became the purchaser.

Page 4 U.S. 267, 268

The following errors were now assigned:

1st. The count varies from the writ, in the sum demanded.

2d. The judgment varies from both writ and count, in the sum recovered.

3d. The judgment was entered after the defendant's appearance, not in term time, nor at the settlement of the docket, nor according to any rule.

4th. The execution varies from the judgment, in the sum for which it issued.

5th. The execution was returned by the sheriff to January term 1799, as having been 'staid by order of plaintiff's attorney;' but after that, another return was made; to wit, 'that the lands and tenements of the defendant had been levied upon;' and an inquest was held upon the estate, in July 1800, by virtue of which the land, &c. was condemned, without any other authority, than the fi. fa. that had been returned, as aforesaid, to January term 1799.

6th. The general errors.

The case was argued by W. Tilghman, for the plaintiff in error, who cited the following authorities, principally to show, that the variances in the writ, count, judgment, and execution, were fatal. 1 Cro. 198. 434. 5 Com. Dig. 25. C. 13. 1 Cro. E. 829. 308. Boh. Inst. 534. Reg. Plac. 282. 8 Vin. Abr. 474. pl. 1. 4. A. 2. Br. Error, pl. 7. 9 H. 6. 38. 9 Vin. Abr. 474. pl. 6. Co. Litt. 288. b. 1 State Laws, 73. s. 9. 3 Bac. Abr. 369. P. Ibid. 570. Roll. Abr. 778. 3 Com. Dig. 313. I. 3.

M'Kean, for the defendant in error, proved that the judgment had been entered by the consent in writing, of the defendant's attorney, for the exact sum agreed upon. He then moved, for leave to amend the execution by the judgment; citing the following authorities, to show the extent to which amendments had been permitted, in every stage of a suit. 8 Rep. 157. 16 & 17 Car. 2. c. ; 1 Vent. 100. 5 Geo. 1. c. 13. 2 Bl. Rep. 836. 1 Suppl. Vin. Abr. 228. pl. 6. 1 T. Rep. 782. 1 Bl. Rep. 462. 2 Vent. 152. 8 H. 6. c. 15. 14 Ed. 3. 1 Wils. 303. 6 T. Rep. 450. 1 Sup. Vin. Abr. 210. pl. 9.


The COURT (adverting to the proceedings by consent, to the means of amending the process by the praecipe, and the fi. fa. by the judgment) declared they had doubt upon the case.

Judgment affirmed.

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