Clark v. . Hellen

23 N.C. 421

• Court: Supreme Court of North Carolina
• Decided: June 5, 1841
• Status: Published

Opinion

Daniel, J.

It has been frequently decided in this Court, that, where the Clerk has omitted to affix the seal of his Court to writs of executions issued out of the County, the same may be amended by his being directed to affix the seal, nunc pro tunc. The authorities are all collected in the case of Den ex dem. Purcell v. McFarland, 1 Iredell’s Rep. 34. But it is said, this being an original writ, the same dulgence ought not to be allowed, and that in fact it is void. The answer is, and so is an execution void until it is sealed. It is further objected, that there is nothing to amend by. The answer is, that the writ is not defective; it only lacked authentication. The Clerk knew whether he issued it; and* if true, the Court possessed the means of giving it authentication as to the rest of the world, by stamping it with the seal of the Court. The Revised Statutes (c. 58, s. 1,J declare, that the Court, in which any action shall be pending, shall have power to amend any process,-pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment. This act is very broad, and we think covers this case. The judgment must be affirmed, and this opinion certified accordingly.-

Per Curiam, Ordered accordingly*