Wells v. Dench

1 Mass. 176

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1804
• Status: Published

Opinion

The Court, (Dana, C. J., Sedgwick, and Sewall, justices,) without hearing any argument, were clearly of opinion that the plea was good,

(a) They said it was the fault of the plain tiffs them selves, or of their testator, that the judgment had not been completed. It might have been done at any time. The plaintiffs might now have it done upon application to the Court of Common Pleas. They seemed to think, however, that, from the length of time which had elapsed, the clerk ought not, ex officio, to receive the note on file, and complete the judgment, but that there ought to be an application to that court, and notice to the defendant to show cause ; that if, upon such application, that court should refuse to do justice, this Court, upon application made to them, would hear the parties, and do it.

T. Bigelow for the plaintiffs. jS. Dana for the defendant.

The Chief Justice mentioned the case of Bishop and Hall, which was some years since in this county, in which an execution nad issued from the Court of Common Pleas for a sum different from the judgment, and which that court refused to amend; whereupon there was application made to this Court, stating the previous proceedings. The cleric of the Court of Common Pleas was ordered to attend in this Court with the record; and the execution was amended, by the record of the judgment, in the presence of the Court.

The counsel for the defendant consented to take no costs, and the plaintiffs became nonsuit.

[This decision is palpably erroneous. — Ed.]