atkins case smith versus Wilmer and other December after original writ have  issue under the seal of this court they be alter and amend with the leave of  the cursitor by the plaintiff attorney and then resealed the defendant apply  to supersede the writ on account of the rasure make in they after they be seal  as the mistake be mere literal or verbal no ground to supersede they especial  as the cursitors have declare it to be the course of their office that when  their clerk be guilty of mistake in make out the original variant from the  praecipe they direct the plaintiff attorney to set they right where the  mistake do not affect the substance of the writ in the month of April last at  the instance of Alexander smith the defendant underwrite the sum of pound on  the good to be load on board the Ghent packet on a voyage from Dort to London  and in the voyage she founder and sink with all her cargo the defendant  believe the ship be unfair lose refuse to pay the sum insure whereupon Mr  Cracraft attorney for smith cause eleven special original writ to issue out of  chancery against the defendant returnable in the court of king bench and have  sue out the same number of capiasses ad to answer returnable in Michaelmas  term hold the defendant to special bail thereon and on the that of November  deliver three declaration against the defendant and demand plead and on the  that of November the defendant attorney have demand oyer and a copy of the  several original writ Lilliot who be clerk to Cracraft bring to their attorney  on the that of November the three original and copy thereof who discover they  have be alter in several place after they have pass the seal of this court for  upon examine the copy with the writ he find there be several interlineation  rasure and write upon rasure new make in the writ themselves and the defendant  apprehend that the alteration be make by Lilliot under the direction of  Cracraft apply by petition to the court that the several original writ may be  bring here for Lord chancellor inspection to make such order as he shall think  proper and that they may have their cost they have be put to on this account  it appear by the affidavit of Lilliot that three prcipes agreeable to the  declaration deliver to the defendant attorney be leave with Mr Buxton the  cursitor in order for he to make out the original writ conformable thereto and  that Lilliot afterward go to Mr Richard Floyer who act as deputy philazer of  the court of king bench and ask he for they who deliver they to he and tell he  that Mr Buxton have not time to examine the writ and that if there be any  mistake in any of they that Lilliot himself may alter and make they agreeable  to the prcipes that upon compare and examine they with the draft of the  declaration he find several mistake and particular in several place where the  policy of insurance be recite some word be contract and write short which be  write at length both in the declaration and prcipes and admit he do by the  permission and direction of Floyer make several alteration in the writ in  order to make they agreeable to the prcipes before oyer and copy thereof be  deliver to the defendant attorney but there be some few mistake overlook after  such alteration make when the original writ be read over atkins with the copy  deliver to defendant attorney he rectify the same after oyer and copy deliver  on the day they be so deliver and that the mistake be entire owe to the  cursitors clerk who ingross the writ without examine the same with the prcipes  and that Lilliot after he have make all the alteration in the original writ go  on the that of November to Mr Buxton the cursitor and acquaint he with it who  approve of it and the writ be on that day leave with the cursitor to be  resealed and be accord resealed the next day and be now agreeable to the  declaration and to the prcipes leave with the cursitor and that this be the  true and only reason why he alter the saige and that there be no alteration in  the return thereof atkins er p Lord chancellor I have great doubt whether I  can proper enter into this matter for though where a original writ issue out  of this court and be alter and erase I may before the return and while it be  in passage have the cognizance yet after it be return it be a record of the  law court Mr attorney general counsel for the petitioner cite the case of the  weaver company who tam versus Hayward June ante S c which be a prosecution on  the calico Act and hold there that alter the original writ after it have be  seal be destroy the writ and it be order to be supersede with cost in the  present case the writ be alter after the return and resealed after oyer have  be pray the copy of the writ be give to the petitioner attorney by the  plaintiff as they stand original and thereupon the defendant make application  to Mr justice wright to make the declaration agreeable to the original writ  and afterward for the like purpose to the court of king bench who refuse to do  any thing in it as it be a matter for the animadversion of this court the  present application therefore be to your lordship to supersede the writ on  account of the rasure and alteration make in they after their be seal and the  question be whether the plaintiff attorney can alter it or if it be not a sort  of forgery upon the great seal for the former writ have be make use of return  by the sheriff and declaration deliver pursuant to they and as there be no  double stamp upon they fall exact within the case of the weaver company versus  Hayward for it be plain a fraud upon the stamp act they have beside not only  raze they once to make they tally with the declaration but amend they a second  time and all the alteration be before the resealing atkins Mr Cox of the same  side say after use have be make of a writ it be a record of the court and can  be vary or alter Mr brown counsel for the plaintiff at law say it be very well  know that where special capiasses be sue out the original be not take out till  some time afterward the prcipes have never be alter but only the original make  agreeable to they and though the defendant put in a sham plea at first they  have retract it and have plead the general issue since it be insist the writ  ought to be supersede because they have be alter after they have issue from  the great seal now nothing be more frequent than alter writ in thing which be  not material and the revenue be not at all defraud because it be the capiasses  only that be stamp the case cite therefore differ from the present because  here the revenue can suffer any alteration that vary the testae or the return  or the substance of the writ be not Allowable but a alteration may be make in  immaterial part because that do not vary it in substance in the weaver company  versus Hayward the alteration be thus the attorney who take out the writ leave  the old testae and enlarge the return which give a new cause of action and  that the court will not endure here nothing more have be do than only rectify  some verbal mistake owe to the negligence of the cursitor clerk the original  be consider mere as thing of form for they have be take out even after a  warrant for enter up of judgement and the return of they be endorse by the  attorney as a thing of course and never come into the hand of the sheriff it  be say the defendant may have take advantage of it by plead in abatement but  if they have the court will have assist the plaintiff in rectify these  variances between the original and the capiasses but as the defendant have  plead now the general issue they shall not be allow to take advantage of a  mere mistake in form to supersede a writ Mr Buxton and Mr Whitehead two of the  cursitors attend Lord chancellor ask they what the practice of the office be  where there be original writ Mr Buxton say in thing that be not material as  clerk be liable to mistake they have in a hundred instance direct the attorney  clerk to set it right atkins Lord chancellor suppose a original writ be make  out to warrant a special capias and the attorney clerk have alter the original  writ to make it conformable to the prcipe have this be justify Mr Whitehead  say he always apprehend that in literal mistake and even where a word have be  leave oh light it have be usual to supply it and reseal it atkins er p in the  present case the word enure be alter to endure and the word detainment to  define Lord chancellor the prcipe leave with the filazer be the warrant to the  cursitor to make out the original for the prcipe be transmit by he to the  cursitor and in the notion of law precede the capias though in practice it be  not make out till afterward when this application be first make to I I  apprehend it have be a extraordinary behaviour in the plaintiff and his  attorney and that they have take upon they to alter a original writ without  bring it to be resealed that will have be unwarrantable for no body after seal  can alter it without bring it to be resealed or if it be such a mistake as be  warrant to be amend by the cursitor yet it shall be bring to be resealed but  at the hear it turn out not to be a alteration by the attorney himself but by  the cursitor and the writ send by he to be resealed the question be whether  this be irregular or not a great many consideration arise and some of a pretty  nice nature first whether it be in the power of this court now to supersede  the writ if the writ have be alter after the return be out and process have  issue upon they and file in the court of king bench without have they resealed  I shall not have meddle with they but it will have be under the cognizance of  that court who may have set right a mistake where there be a efface of a  original and restore the writ as they be before the second consideration will  be what be the nature and foundation of original writ to be sure they be  commissional to court of commonlaw for without a original none of these court  have a commission to hold plea and a judgement where there be no original be  void unless by reason of privilege as in the court of king bench where the  defendant be bring there by bill of Middlesex then he be in the custody of the  marshal atkins and a prisoner to the court at the time and consequent they  have a privilege to retain he in that court in the common plea they proceed in  the nature of a declaration by the by in the court of exchequer they proceed  upon a supposition that defendant be debtor domini king so that the  jurisdiction that court of commonlaw have be upon a presumption of privilege  unless it be by original writ where the party proceed upon a special capias  and take out a original writ to warrant it the plaintiff have this benefit  that the defendant must plead without imparlance but all this be vary by  practice and modern usage for though the special capias be find on the  original and suppose a original take out first yet it be otherwise in practice  and where they proceed upon a latitat in the court of king bench or enclosed  space to break in pieces in the court of common plea they will commit a  attorney for pray oyer of a original and where the plaintiff obtain a verdict  he need not sue out a original for the statute of jeofails cure the want of it  and yet in judgement of law the original be suppose to be take out before the  capias I only mention this to show how by the modern practice it be grow into  mere matter of form the complaint before I be that this original after it have  issue under the seal of the court have be alter and amend and then resealed  which it be insist ought not to have be do the cursitors Mr Buxton and Mr  Whitehead have certify in court that it be the course of their office whenever  a cursitors clerk be guilty of a mistake in make out the original variant from  the prcipe which be the cursitors warrant for the original on the plaintiff  attorney show the mistake to direct they to be set right if they be only  literal or verbal mistake without affect the substance of the writ this be a  very reasonable alteration for it be not the mistake atkins of the party but  fault clergyman if the alteration be to vary it in substance that will not  bejustified but if I be to alter this practice in the office the plaintiff  must make a motion to amend the writ for undoubted they be amendable and then  there be no occasion to reseal they for this court can certain alter writ  issue from hence but where the officer alter it it be necessary to have the  ratification of the court by resealing it as it will put the party to a great  expense to alter it I shall not set aside the practice of the cursitors office  provide they do not exercise this power any further than they have hitherto do  atkins er p it have be say this ought not to be do after the writ be make use  of the use that have be make of they in this case be the writ be return and  oyer deliver to defendant attorney it be manifest this return be mere form for  though make in the sheriff name it never go to he but be endorse by the  attorney for the plaintiff that there be nothing in our bailiwick by which the  defendant can be attach whether true or false the defendant can be hurt by it  which show these thing be go into mere matter of form and therefore this will  not prevent the cursitor from make these alteration it be just as much a form  as the cursitors endorse on the writ pledge to prosecute the next  consideration be as to give oyer this be a transaction which passes in the  court of king bench and therefore the cursitors can know nothing of it suppose  after over give the plaintiff have come to this court and show a variance  between the writ and prcipe the court will have direct it to be set right  therefore this be not such a use of the writ as the law call make use of it  what the law consider as a use of it be a service of the copy of the writ on  the defendant to appear which be do in the case of the weaver company versus  Hayward the present be not any such use of the writ at law I will consider the  precedent next the weaver company versus Hayward what induce I to supersede  the writ there be first that it ought to have be stamp for it have be alter in  the return without be stamp anew and if once it have be make use of the act of  parliament relate to the stamp require it to be new stamp or otherwise it can  be resealed atkins second it be a popular action by a common informer on the  callico Act and the time limit for bring the action upon the statute have be  expire and as the alteration of the writ be erroneous and can not be serve  again because the return be out they therefore resealed the writ but let the  old testae stand that be within the time limit by the statute so that it be a  scheme and contrivance mere to carry on the prosecution after the time be  expire in the present case there be no ground to supersede the writ and  therefore all I can do will be to restore they as they be before it have be  object they be so fix by give oyer that I ought not to restore they but  suppose I shall determine the cursitor have do wrong and alter they if the  plaintiff be afterward to move I to set they right I be bind to do it for it  be mere a fault clergyman and the party be not to be hurt by it what a  circuity be this that I shall correct the cursitor in order to bring on a  motion of the party to amend the writ the next consideration be what the  defendant have do to wave this irregularity and they certain have go a good  way towards it the oyer be on the that of November so that the defendant  attorney see at that time the variance between the original and declaration  therefore he shall have plead the variances in abatement instead of that he  plead outlawry in bar for a plea of outlawry may be plead either in disability  of the person or in bar and upon the that of November plead the general issue  to be sure this be a waver and he shall have apply to the court before by  petition complain of this transaction for he have all that time to do it in  between the that and that of November and yet do not think proper to apply  till the that of December beside what advantage can it be to the defendant to  restore they for the court of king bench can stay the proceed in the suit  either for want of a original or on account of a faulty original for if the  plaintiff have a verdict that cure the want of it and therefore they can stay  the proceed and by a new act of parliament made Geo ch Lord king act even a  error in substance be cure after verdict for the word be that where any  verdict have be or shall be give in any action suit bill plaint or demand in a  that of his majesty court of record at Westminster or any other atkins court  of record within England or Wales the judgement thereupon shall not be stay or  reverse for any defect or fault either in form or substance in any bill writ  original judicial or for any u variance in such writ from the declaration or  other proceed upon the whole it will be a most fruitless thing to supersede  these writ and put the party to a expense of a further application and  therefore as to that I shall dismiss the petition but as the plaintiff have  put the defendant to the expense of oyer atkins er p he ought to pay the  defendant the cost he have put they to of crave oyer of original writ in the  court of king bench and likewise the cost of this application and his lordship  order accord