
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1804.
    Porter v. Executrix of Brisbane.
    In scire facias upon judgment, a variance in the amount of damages recovered, for ike detention of the débt¡ is fatal under the plea of nul tiel record.
    
    
      8ci. fa. against defendant,' to revive a judgment against her testator, in Kershaw district, before Trezevant, J. The sci. fa. stated the recovery of adebtot £ ;20, ami £12, 10s. lQd. dam.g-s for the detention of the said debí, &c. Plea nul tiel record, on Which issue was joined. The plaintiff produced i evidence the record of a judgment, which purported to be a judgment rendered against the defendant’s testator, upon a sci. fa. upon a recognizance of special bail for £120, being (lie amount of the recognizance; and also for £ > 00, lor damages, for .the delay of execution. Judgment for the plaintiff. The moti n in this court was for a re-hearing of the cause, and to have the judgment reversed. 1. Because thereeord produced did not piOve the issue. 2. Because the jadgmeet rendered on (he rec< gnizance of bail,* as appeared by the record produced* was irregular and void.
    Blanding, in support of the motion,
    cited 3 Mod. 187. 5 Com* í)ig 349, 9 Rep. 52. Sir Thomas Raym. 223. And there ap. peared the folluwu g irregularities on the face of the proceedings, upon the Sci. fit. upon the recognizance of bail. The sci. fa. stated a recognizance given by Brisbane, and two others, jointly j yet judgment was rendered against Brisbane alone. In the, original action, in winch the recognizance was taken, the irregularity pointed out was, that the writ and cedar ttion were in detinue, and the verdict and judgment wete as in trover; aud on this ground, it was insisted that the original proceedings were void, and therefore, the-judgment on the sci. ja. could not stand. The judgment was entered by default, and for damages, which Were'left blank in one part of the' proceedings. And it was contended, that without presuming matter of fact, the judgment could not be supported ; and matter of fact outfit not' to be supplied on a motion to amend, or to uphold a judgment erroneous on the face ot it. That it did not appear that a cd. sa. had éver issued, sb as to fix the bail, before judgment' against him* That the judgment on the recognizance of bail being for £100, damages, Was erroneous. 6 Mod. 263. A sci: fa. is not amendable by adding any matter of fact. It cannot be pleaded in harto another sci. fa., unless it be ad iderrt. 1 Ld. Raym. 121. On a plea of nul iiel record, the record produced ought to agree, in every particular, with the record stated in the scire facias. See 1 Salk. 52, Sci. fa. variant trom the jui gmont not amendable, after núl tiel re. Cord, the writ not tieing vicious in se. See Cro. EliZ. 162,468, Sec. 1 Com. Rep. 418. Cro. Eliz. 761.
    RrcHARL-soN, contra,
    
    cited 1 Lsp. Dig. 245. and contended, that although the recognizance was j- nf. vet the proceedings against ólie were regular, aud that advam., e could only be taken of that' circumstance in abatement. Thai he judgment, although infor. mal, was substantially good; and a,ter such a lapse of time, the court will presume that a ca,, sa. issued, &c.
   The court

(all the judges present)

thought that the judgment of the district court ought to be reversed, on the ground, that the re> cord produced in evidence did not support the issue, being maten-ally variant from the judgment siated in the scire facias.

Note. One of two plaintiffs died before interlocutory judgment, but the suit-went ou to execution in the name of both ; and'after this, and after motion to set' aside the proceedings for- this irregularity, the' ourt permitted the plaintiff to’ suggest on the roll the death of the other before interlocutory ¡udgment, and t»1 amend the ca. sa., without paying costs, Newnham v. Law, 5 T. R. 577, A misprision of the clerk in affirmance of a judgment may be amended, where words are not pursuant to that which ought to be the direction, or instruction ef the clerk, words of form, &c. 1 Com. Rep. 419. 5 Cro. Car. 35.  