
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1804.
    Porter v. Brisbane.
    After the lapse of ten years, and the death of the defendant, the court will not entertain a motion to set aside a judgment for such irregularities, or defects, in the form, or matter of the proceedings, as may be supplied by reasonable intendment, or may be presumed to have happened through inattention, or by clerical negligence, and do not appear to have been made fraudulently, or injuriously, or have a tendency to produce an illegal and injurious effect-
    In the district court of Kershaw before Trezev ant, J., B landing obtained a rule to shew cause why the judgment in this case should not be set aside for irregularity, and because the same is not warranted by the proceedings in the cause. It appeared that ascz. fa. had been issued against A. F. Brisbane, and F. Wood-roof, on a joint recognizance of special bail, and that both of them were declared against; yet that the entry of judgment is against Brisbane alo-ie, and no notice is taken in the sub* sequent proceedings, after the declaration, of the other defendant, Woodroof. And it further appeared, that the judgment was entered up for the sum ack mwlodged, and also for ore hundred pounds damages. The rule was discharged by the district court, and the motion here was to review the decision made by the district court, and to grant the motion made therein as aforesaid.
    Trezev ant, J. stated, that the ground of his decision was, that Brisbane being dead, his representatives are not entitled to a reversal of the judgment; but that he ought to have biouglit forward this motion in h>s life-time and that in the record of the judgment, there was only the omission of á suggestion of the death of W oodroof.
    It was argued by Blanding, for the defendant,
    that the death of Woodroof abated the stilt, and that the judgment agaiust the survivor was void, without suggesting the death of the other de* fendant, according to the act of assembly of 1740. P. L. ‘M'Z. But as the death of Woodroof is not suggested, it does not appear that he was dead at the time of the rendition of the judgment, and it cannot be presumed: nor can it be prove,I by extrinsic evidence, or evidence dehors the record. The scire facias being against two jointly, the judgment could not be taken ag.unst one separately, Secondly, that damages are not recoverable upon a sci. ja. 
      against bail. The question is, whether execution shall issue for the sum acknowledged, or not; and there never is a demand of damages for delay of payment. Thirdly, the scire facias states that Holzendorf, Woodroof, and Brisbane, became bail for Giles, &c.; gn(j ass¡gns a breach for non-payment of the money, without stating the default of appearance, &c. of the principal.
    Richardson, for the plaintiff,
    argued, that the judgment ought not to be set aside. That the court will presume every thing, in favor of a judgment, to support it. The omission of the suggeslion of Woodroof’s death, may be presumed. 2. The damages mentioned, refer to the costs. 8. The plaintiff should be allowed to amend, and supply the defects complained of.
   The court

said, that after a lapse of ten years, and after the. death of Brisbane, who in his life time seems to have acquiesced in the judgment, it would be giving too much countenance to such objections, to allow them to prevail. And considering the loose and imperfect practice of former times, when such errors as are now objected to were very common, it would be extremely dangerous and mischievous, to reverse every judgment whicn has not been entered up with technical precision, or which may not be warranted by proceedings correctly drawn in every particular. That more than one half the judgments formerly obtained in this country, would not stand the test of a legal scrutiny, according to that technical rigor which is applied in cases upon writs of error in England. And therefore, it is necessary to reject all applications of this sort to the discretionary power of the court, to set aside judgments for any such irregularities, or defects, in the form or matter of the proceedings, as may be supplied by reasonable intendment, or which may be presumed to have happened through inattention, or by clerical negligence, and which do not appear to have been made fraudulently or injuriously ; or wherein it shall not appear that such irregularity or defect has a tendency to produce an illegal and injurious effect.

Motion overruled.

Present, Grimke, Waties, Johnson, Trezevant, and Brevard, Justices; Bay, J. absent.

Koto. See 1 Salk. 208. The court has no power to award damages for delay of execution, 7 Vin. 302. 6 Mod. 157, on writ of error.  