case win against win in what case a common recovery can be amend SC will the  follow rule be obtain to show cause why a recovery shall not be amend Tuesday  the seventeenth day of April easter term in the seventeenth year of George the  second upon read the record of the recovery suffer between the say party in  easter term and the indenture declare the use of the say recovery it be order  that Watkin win Esq and jane his wife which say jane claim title to the  remainder of the premise comprise in the say recovery upon notice of this rule  to be give to they shall show cause to this court on Thursday the twentysixth  day of August why the record of this recovery shall not be amend by strike out  the word at which day relate to the return of the writ of summons to warrant  and insert instead thereof the word follow before which day that be to say on  the five day of may in the same term upon the motion of the follow sergeant  will win Hayward and draper for James Apperley the survive vouchee and for the  demandant and tenant and now in Trinity term in order to induce the court to  the above amendment the affidavit of Mr Thomas who be employ by dr Apperley  and his wife to suffer the recovery be read and run thus modern Thomas Thomas  swear that be employ by dr Apperley to suffer a common recovery in several  manor c in which Watkin win Esq and Corbett Kynaston Esq be demandant the say  deponent Thomas Thomas tenant and the say dr James Apperley and alathea his  wife the vouchees be the say deponent do some time in the month of April issue  out and send down unto dr Apperley a writ of dedimus power direct to certain  commissioner therein name to take the warrant of attorney of he the say dr  Apperley and alathea his wife and the say warrant be take and acknowledge the  same together with the say writ of dedimus be return to the say deponent in  order to have the say recovery arraign at the bar and that the say deponent  have prepare a proper praecipe at bar he attend at the bar of this honourable  court on the five day of may with the say praecipe dedimus and warrant of  attorney and the say recovery be then and there arraign accord to the usual  form of arraign recovery and the say recovery be so arraign as aforesaid the  say deponent do on the seven of may compound the writ of entry in this cause  which writ be test the second of April in the thirteenth year of George the  second and returnable from easter day in fifteen day as appear by a copy of  the say writ in the deponent custody who upon the seven of may aforesaid pay  unto Mr Stephen wicking who act as deputyreceiver of the fine or king silver  the composition money or king silver pay upon the say seventeenth day of may  for that it appear by the say defendant daybook wherein he make a entry of the  several sum of money be lie out for his client account that he pay on the say  five of may for pass the recovery in this cause at bar and for court fee the  sum of nineteen shilling and that be pay the compositionmoney or king silver  on the seven of may to the amount as above but after judgement and execution  of this recovery Watkin win and jane his wife come into the court of king  bench and bring their writ of error suggest that the say James Apperley and  alathea his wife the vouchees in the say recovery at the time of prosecute the  writ of entry be seize of the say manor c in their demesne of fee tail that be  to say to the say alathea and the heir of her body remainder to the say jane  the wife of the say Watkin and to the heir of her body issue and Watkin and  jane his wife assign for error that alathea die at Shrewsbury on the ten day  of may which be before the render of judgement and that she never have any  issue of her body and so the judgement be erroneous and pray for such error  the judgement may be revoke and annul and that the say Watkin and jane his  wife to all that they have lose by the render of that judgement may be restore  Watkin William win the survive demandant be warn into the king bench take  issue that alathea do not die before judgement which issue go down to be try  and the jury at modern Shrewsbury find a special verdict that alathea die on  the ten of may modern er p but know not whether that be before judgement but  submit it to the court after two argument of such special verdict the court of  king bench be of opinion unanimous that alathea die before judgement till they  bad apply to the court of common plea to have the recovery amend in the manner  as be above state Skinner prime and Bootle sergeant show cause against the  amendment and there be some affidavit read that the court shall not favour dr  Apperley in this amendment because he be no purchaser for a valuable  consideration but a mere volunteer and though he marry a lady with so large a  estate and bad a large fortune of his own yet he make no settlement upon her  that the plaintiff in error be entitle to this remainder after a estatetail  which be now spend and that such remainder be valuable thing in equity and  cite vern wms Skinner sergeant although common recovery be favour as common  assurance and though amendment have be allow even after a recovery have be  suffer thirty year yet the present be such a case as be not entitle to it the  form of judicial proceed be to be keep up lest it be a temptation to clerk to  grow negligent in the entry in palm it be say when recovery be suffer by those  who be enable to do so by law they be to be favour otherwise they be to be  take strict the person here be enable to suffer a recovery but this be not  sufficient without comply with the mode the law prescribe in its conveyance  although there appear a plain intention in the party to suffer this recovery  bargain and sale without enrolment or release without antecedent lease for a  year will not pass estate let the intention of the party appear ever so strong  the mistake of mere vine clergyman may be set right if there be proper thing  to amend by or it appear that the instruction be right they must however be  show but the ignorance of clerk be never amendable there be nothing here to  amend by the instruction to the clerk or deed to lead the use can help this  record nor be there any one part of the roll whereby the present amendment can  be grant for there be never any entry or memorandum at what day recovery be  arraign at bar where the tenant come in person to the bar and vouch to  warranty if the vouchee do not appear the tenant pray a summons to warrant and  it be award to fetch in the vouchee but in this case the prothonotary only  enter the appearance of the tenant and judgement where there be such summons  can be give till the return thereof but the prothonotary never enter the  appearance of the vouchee where there be a summons to warrant so nothing  appear upon the roll when the vouchee do appear if not then this amendment can  be make that the vouchee appear on the five of may because the record can give  no inlight to such alteration modern and Mr Thomas affidavit which be only a  matter in pais can be receive as authentic enough to alter a record which  ought only to be rectify by some part of the record itself or at most by the  indenture to lead the use and not by affidavit which be not part of the  transaction but make long after the recovery be complete and everything close  he then cite Leon where it be move by sergeant walmesley if a common recovery  be to pass at the bar and the tenant be ready at the bar and vouch to warrant  a for who one be ready at the bar and the tenant be ready at the bar to appear  for the vouchee by his warrant of attorney it be hold that this appearance be  mere void for in such case the vouchee ought to appear in person because there  be no summons but where summons issue and the same be enter upon the roll  there the vouchee at the return may appear in person or by attorney and this  be the clear opinion of all the justice and also of the prothonotaries in the  present case there be a summons to warrant which be not returnable till the  sixteenth of may and the vouchee can not appear either in person or by  attorney till then it happen she die on the ten of may which be before the  return and the amendment pray for be that she appear by attorney on the five  of may and so judgement give before her death if this amendment be make it  will purge one error by make as great a one videlicet that the vouchee appear  by attorney before the return of the summons to warrant which will make the  recovery void accord to that case in I Leon it be quite reasonable that where  there be a summons to warrant the vouchee shall not appear either in person or  by attorney till the return thereof because the cause be continue to modern er  p the day of the return of the summons by enter that the same day the return  day of the writ of summons be give to the party aforesaid so that if the  vouchee can appear before the return of the summons it will be a surprise upon  the demandant who do not expect to count against the vouchee until the day  give by the court to all the party which be the day on which the summons be  returnable Mr sergeant prime against the demandant I do not know but as this  estate be the wife that the recovery suffer by her be a void act for the  warrant of attorney may be presume to be give by composition for the dedimus  power require no separate examination but be general to take the warrant of  attorney of the husband and wife and the wife may comply near terror though  fine and common recovery be the high public assurance yet there be frequent  such defect in they as the court think incurable and they be frequent reverse  by writ of error in sir Nicholas Bacon case dyer a a recovery be hold to be  erroneous and reverse for a mistake something like the present this court go  further in the amendment of fine and recovery than of adversary proceed but  there modern be no instance of amendment of recovery but where all the party  or their representative who be interest assent or where the party who pray the  amendment have great equity on his side by pay a valuable consideration the  present case be strip of all those ingredient for dr Apperley be a volunteer  only and the amendment be oppose by the person in remainder the recovery be  out of court for the writ of error have remove it into the king bench and the  roll here remain as a dead letter and there be no ground to say we surprise dr  Apperley by remove it without notice for there be a application by we to this  court upon the authority in vent to set aside this recovery for irregularity  which be some notice the case in vent be thus sir Thomas Gower have upon a  commission make all attorney in order to suffer a recovery in the succeed term  and in that term the court be move in behalf of the heir in tail to stop the  pass of the recovery upon several affidavit that sir Thomas Gower since the  make a attorney be dead in Ireland and the court be satisfy of the truth  thereof do stay the pass of the recovery because if it shall pass it will be  erroneous but we in our case make our application too late because the  recovery be perfect and our motion be deny the rather because alathea die  before the render judgement be error and the recovery may be reverse upon a  writ of error after all this notice the defendant in error lie by suffer the  recovery to be remove error to be assign take issue upon they and let a  special verdict be find and never apply for a amendment till the court bad  give their opinion against they as to the amendment itself be submit that this  be a fact which be not amendable a record contain a act of the party as his  appearance or nonappearance nonsuit default or such act when once record be  not amendable act of the court be amendable as appear from salk Mod but not  act of the party in amendment of recovery indeed the court have go further  than in other case but this always either on the ground of assent or equity  this court in common recovery have amend the emission of parcel which have be  the fault of the party themselves and not of the officer of the court for it  have be do where the parcel have be omit in the instruction give to the  officer which be carry the statute of amendment beyond all the rule in  blackmore case   a still such amendment must be agreeable to the truth of the  fact but that which be now pray for contradict the truth for it be attempt to  alter the record and to say that the vouchees appear by attorney on the five  of may which be impossible for there be no warrant of attorney then in court  for that be not send here by mittimus out of chancery until the eight day of  may and nobody can take notice of the warrant of attorney till then modern  sergeant Bootle to the same purpose add that the case of Wynn v Lloyd be not  quite like the present for the court intend that the vouchee come in person  and make a attorney in court and presume the summons to warrant in that case  to be a nullity but there can be no such intendment here for Mr Thomas swear  modern er p that mrs Apperley appear by virtue of that warrant of attorney  that he come to the bar and have the recovery arraign and this take off all  the presumption that she either appear in person or make a attorney at bar or  any other warrant of attorney than what be state to be find upon the summons  to warrant will chief justice most of the objection against this amendment may  be lie out of the case and first that of dr Apperleys be a volunteer for we  shall not determine upon equity but upon the right as it appear before we the  length of time may also be lie out of the case for that be not above three or  four year and we frequent amend recovery after forty year as to the objection  that there be nothing to amend by except Mr Thomas affidavit and that that  will be dangerous to steer by it be no part of the record consider the nature  of the case I think that be a proper thing to amend by if parcel be omit be  put into a recovery we will not suffer they to be add or the recovery to be  amend upon affidavit because that be not the best evidence that can be get  because the deed to lead the use be a better so if a clerk mistake his  instruction or omit anything out of they we will not suffer thing to be verify  and set right by affidavit only because the instruction themselves be better  evidence but the best and the only evidence we can have of the time of arraign  this recovery at bar must be by affidavit for there be no minute either by the  sergeant or the prothonotories in their pass recovery to ascertain the precise  time or day in which they be arraign and suffer indeed there be a case in  Pigotts recovery that the affirmation of the sergeant be not to be regard and  that nothing be to be so but what appear upon the record but that be false I  have be at the pain to read that treatise quite through and never meet with  one more fruitful of error in my life among which the above be a egregious one  Mr Pigott be a very learned man and will have blush to have publish anything  so inaccurate but it be a posthumous work and therefore it be no wonder that  it be no better than what it be I mention this that young gentleman may not be  mislead by it there then appear to be sufficient proof that this recovery be  arraign at bar on the five of may and we shall not scruple to make the  amendment pray if it will be significant and set the recovery right but we  will not make a nugatory amendment or rectify one error by create a fresh one  which will oblige the party to assign new error in the king bench here be no  affidavit that mrs Apperley appear in court from the beginning to the  completion of this recovery and we can presume nothing in our own court where  recovery be suffer but what be verify to we though modern we can presume in  many case what be do in other court if she have appear in person on the five  of may I think this recovery may have be make valid for then she may have  appear before the return of the writ of summons to warrant and all will have  be well but as she have only appear by attorney he have no day in court till  after the return of that writ which be not till some time after her death and  his appearance after her death be error in fact because death be a revocation  of his power of attorney and if we alter the record and say he appear before  her death that will I be afraid be error in law because it will be a  appearance when he have no day in court let this be speak to again next term  by the counsel for the amendment we will effectuate the recovery if possible  this case do not come on to be argue again until Hilary term in the  seventeenth year of George the second and then it be argue by sergeant will  Hayward and draper in succession as follow will sergeant recovery be the  favourite child of this court as they be the general assurance of the nation  and it be for the end of support they that the court presume tenant to the  praecipes and surrender of lifeestates when no such appear the present  recovery be enter up wrong in fact and the court will not suffer a entry which  be false in fact to stand upon a record because to do so will be to destroy it  the common amendment of insert name of place and person be strong than what be  now pray and yet such amendment be numerous and in daily use when a township  or place be insert which be not in the writ of entry before it be in fact make  a recovery of such add land of which there be no plea depend before and yet  the court do they without scruple of liberal amendment make in common recovery  he cite Pigott c it be modern er p object to we that if we obtain our  amendment we shall be only purge one error at the expense of erect another  which will be as fatal because the amendment pray be that the attorney for the  vouchees appear before the return of the writ of summons which he can not do  have no day in court till then it be clear that the vouchee may have appear in  person before the return of the summons and the recovery suffer thereupon will  be good and the court may be say to have accept of such appearance to this  purpose be the case of Gravenor v Massey in Leon where a writ of error be  bring to reverse a common recovery and error be assign because the vouchees  appear by attorney the same day they be vouch which they ought not to do by  law but they may appear gratis the first day without process in their proper  person and coke as to this say who be only a counsel that although the  vouchees can appear thus by attorney yet when the court have admit their  appearance by attorney it be well enough and no error as to the case in vent  there modern sir Thomas Gower die before the return of the writ of entry  though a attorney be appoint by sir Thomas Gower yet that attorney never  appear in the lifetime of his constituent which be not the present case for  here the attorney appear in the lifetime of mrs Apperley as to the case of  side the party die before the return of the writ of covenant and the fine be  reverse because there be no cause in court nor be there anything upon record  for it to attach its jurisdiction upon the case in Salkeld be a fine also  reserve upon the same ground he conclude with cite the case of win v Lloyd in  lev and insist strong upon it win sergeant for t amendment the question will  be whether the recovery will be right if we shall obtain our amendment as pray  and that will depend upon this whether the vouchee may appear at the return of  the summons it must have be pursue and he can not have appear otherwise or  before such time but the directory part of the dedimus be not tie down to such  time but be to appear general the writ of summons be not a original writ but a  mere judicial one of this court only it be only a writ of form as many other  writ be as prohibition and writ of consultation they be seldom sue out or if  sue out they be never serve for to what purpose will it be to serve they for  the suffer of common recovery be no adversary proceed nor be the process of  the summons to warrant to compel a involuntary person to appear but it be for  the benefit of the vouchee himself and for his appearance who interest it be  to have the recovery suffer and therefore to serve the summons upon he will be  absurd the vouchee in fact want no summons he may be always suppose ready to  vouch and to accelerate his own proceed and he may appear in person gratis at  a short day than the return of the summons and there seem to be no reason why  be may not do the same by attorney and there be no more inconvenience in the  one case than in the other at commonlaw a man can make a attorney at all to  appear for he nor can the court receive one without licence from the crown to  make a attorney and to receive he but the statute of Carlisle introduce  dedimus potestatems to make atorneys and when atorneys be constitute they be  in the same place and have the same power with their principal the word of the  warrant of attorney be strong to this purpose videlicet ponent loco his to  gain or lose in such a plea the reason why a attorney may appear with or  without warrant be because he be liable to a writ of deceit to his principal  if be appear without warrant and if be appear with warrant and misbehave the  court can punish he by attachment or the party who be injure may set aside the  proceed if they be irregular palm booth f n b and the register where there be  form of writ de attornato to make et To take back in raym it be say to be the  constant course of suffer recovery in Wales or levy fine I have look into the  practice of the court in Wales and booth modern which be book of authority and  can find any such custom so that the case of win v Lloyd be in point the  counsel for the amendment conscious that such amendment as be pray by the rule  will be of no avail to they because though it will cure one error it will  plant as fatal a one in the room of it now apply for a new sort of amendment  videlicet to alter the testae and return of the writ of entry and of course  the testae and return of all the other process in such manner as to have the  summons to warrant returnable modern er p before the day on which the recovery  be arraign at bar by attorney and then all will be right and to this end they  pray that the writ of entry may be test in Hilary term and make returnable  tomorrow purification of the same term and the writ of summons instead of be  returnable on the morrow of the ascension which be the sixteenth of may may be  alter and make returnable in a month after the day of easter which be the four  of may in the life of alathea and when the attorney bad a right to appear  Hayward sergeant for the amendment the deed to make a tenant to the praecipe  be date early enough for these alteration for it be date the three of February  and it mention that one or more perfect common recovery he have and perfect  before the end of easter term next ensue the date thereof or any subsequent  term the present recovery be arraign at bar on the five of may that year and  the course be that the recovery be pass at bar before any writ of entry be sue  out or anything else do and as the several writ be take out after the suffer  the recovery at bar if their testes be mistake or not make agreeable to such  recovery they be the vine clergyman and amendable because the party have do  everything in their power to suffer a recovery in pursuance to their deed and  it will be cruel that the mistake of the clerk shall disappoint they but then  it be ask what we will amend by the deed to lead the use of the recovery the  pass it at bar the minute of the prothonotary be all of they ground to amend  by instance be frequent of amend writ by minute leave with the cursitor plead  have be amend in my memory by the draught of counsel in the king bench there  have be two method of amend this recovery propose the former accord to the  rule by enter the appearance of the party upon the five of may and that  judgement be then give the Iatter and more eligible one to alter the testae  and return of the praecipe or writ of entry and the testae and return of the  summons to warrant before I enter into the argument of this Iatter amendment I  shall not mention what alteration it will make in the several record if the  writ of entry be amend in the testae and return and make returnable on the  morrow of the modern purification which be the three of February then there  will be a good tenant to the praecipe by the deed and then there must be enter  upon the Hilary roll the court and the appearance of the tenant in person and  the vouch of dr Apperley and his wife to warrant and day give for they to  appear by attorney in the paper book that which be now enter upon the first of  the roll at easter must be enter in the margin roll of Hilary as of the three  of February be the morrow of the ascension and then the first roll of easter  must be vacate and that can be only do by enter in the margin of it vacatur  per curian or by order of the court then the second roll of easter which begin  with the mittimus will remain as it be only alter the testae of the mittimus  and the return of the writ of summons recite in the dedimus the mittimus do  not mention the return of the writ of summons so that the only alteration upon  this second roll of easter will be instead of the word morrow of the ascension  to insert these word in a month from the day of easter and instead of the word  of the say term to insert the word of the term of saint Hilary last then the  consequence of the whole will be that if the summons to warrant be make  returnable in a month from the day of easter and the appearance by attorney  upon the same day then the judgement will be give upon the same day which be  the four of may when the wife be alive and the attorney have a day in court to  appear in there be no amendment to be make in the warrant of attorney or  caption of it but the dedimus and warrant be file with the cursitors to make  out the mittimus they will appear to be right as the record now stand it  appear that alathea be alive after the return of the writ of entry after the  testae of the dedimus after the caption of the mittimus and after the arraign  the recovery but that she die before the return of the writ of summons it be  enter that she appear indeed after the return of the writ of summons this be  contrary to the truth of the fact and what be pray be only such a amendment  agreeable to truth and it be pretty hard where party have do all mesne act  require by law in order to make a good recovery that all this be to be defeat  by a pass entry contrary to the truth of the fact the present case do not  differ from the common one of judgement in debt where the plaintiff in case he  have mistake modern er p any entry may move to amend and it be common allow he  the warrant of attorney be part of the record and so mention in Pigott and  therefore be amendable as such with regard to the appoint atorneys in suit by  warrant no man can do it at commonlaw but by the king writ or in person in  court in f n b Reg there be many dedimuss to empower person to make atorneys  and they issue to the judge or commissioner as to the other method of appoint  atorneys in court in person we have a instance of it last term when a nobleman  come into court and appoint a attorney the modern method of appoint atorneys  by dedimus be find very inconvenient and expensive and be remedy by the  statute of Edward and other statute which be in ease and aid of the proceed of  the court of justice and they be only general commission to all the subject of  England to do that without particular commission which at law they can not and  therefore when a warrant of attorney be file in this court it be consider as  if the constituent be in court and appoint the attorney in court and say I put  you in my place as my attorney in this court and as if the officer take this  warrant from the constituent own mouth the warrant of attorney in recovery be  not to appear until the return of the writ of summons and the dedimus to make  a attorney recite a summons but such suggestion be immaterial and not  traversable for the summons be only a process find upon the original to bring  a vouchee into court and when he appear it be to the original and not to the  process the process be out of the case when the party appear because the  process be then answer and therefore mistake in process be cure and can be  assign for error Danv Abr error a though a summons be not well make yet if the  party appear it take away error and so if he be not summon at all and  appearsCro Elizabeth cro James side or b this be the common case of every  original as if a capias be returnable at a future day and the party appear  before the return day such appearance be good he then cite Mod Mod Keilw dyer  the court take much time to consider of this case and do not deliver their  opinion until the last day of easter term in the eighteenth year of George the  second when will chief justice speak as follow the opinion of himself as well  as of Mr justice Abney and Mr justice Burnett who be present in court in order  to consider this amendment it may be proper in the first place to state how  this recovery stand in the next what the real fact be and last the amendment  pray the recovery stand thus it be a recovery of easter term the writ of entry  be returnable quindena Paschae which that year be the twenty of April so that  the twentythird of April follow be the first day of term and the appearance  day at which day it be say upon the record that William Thomas the tenant come  in be proper person and defend his right when c and thereupon vouch to  warranty James Apperley and alathea his wife summon in the county aforesaid  let he have they here on the morrow of the ascension which in that year be the  sixteenth of may after Alatheas death the same day be give here to the party  aforesaid and hereupon the say William Thomas put in his modern stead Edward  priest and Thomas steward his atorneys joint and several against the demandant  in their proper person as the say tenant by his atorneys aforesaid and the say  vouchees dr Apperley and his wife be summon by Josiah Hodgson their attorney  likewise come and free warrant the manor c this be that part of the recovery  of which a amendment be pray by the rule as this recovery now stand it must be  take to be suffer on the morrow of the ascension and not before which in that  year be the sixteenth of may when alathea be dead as to the fact it appear  upon affidavit that the writ of entry be test the second of April and make  returnable the twenty of April which be the first return day of easter term  the writ of summons to warrant be test the twentythird of April returnable on  the sixteenth of may and it can not be returnable soon because there must be  five return inclusive between the testae and the return of the modern er p  writ of summons to warrant and at commonlaw there must have be nine return  inclusive but these be now abridge by statute to five return and there need be  no more the dedimus power to take the warrant of attorney be test the  twentyfifth of April and the warrant of attorney execute by dr Apperley and  his wife on the thirty of April the dedimus the caption of it and the warrant  of attorney take thereon be send into court by mittimus out of chancery test  on the eight of may and it have be prove upon error in the king bench and now  admit that the wife of dr Apperley die on the ten of may it be prove by  affidavit that the recovery be arraign at bar on the five of may before her  death but at the same time it be admit that she never appear in person neither  at the return of the writ of entry nor when the recovery be arraign so every  thing be do by warrant of attorney only it appear that the deed of lease and  release in which be a covenant to suffer a common recovery and also a  declaration of the use bear date the first and second of February before the  recovery suffer and execute on the day or very near the day on which they be  date the objection be that alathea die before the sixteenth of may on which it  appear by the record that the recovery be suffer that she be dead when  judgement be give the warrant of attorney cease and become void and the  recovery be suffer upon a void warrant must be void also but in order to cure  this two amendment have be pray the first that instead of at which day which  must be take to be the return day of the summons to warrant the sixteenth of  may on which the recovery be in fact suffer may be insert the other amendment  pray when the first will not serve be that the testae and return of the writ  of entry to make it returnable tomorrow purification which be the three of  February and that the summons to warrant may be make returnable the three  return modern of easter term which be the four of may and then all will be  regular as to the first amendment pray there be sufficient foundation in fact  to make it if it will be effectual but we be all clear of opinion that if the  record be to be so alter it will be worse than it be now and we will not cure  one error by give birth to another and perhaps a great for we be all of  opinion that a vouchee can appear by attorney until the return of the summons  to warrant the two case cite prove this and beside it be support by the reason  of the thing Leon be express to this purpose where it be hold that in common  recovery the vouchee can appear by attorney until the return of the writ of  summons to warrant this authority have be much attack by the counsel for the  amendment who have say the case be anonymous and only a sudden opinion give by  the court upon a question demand by a sergeant from the bar that be no unusual  method former though it be become so now but we think that to be a great  authority because it be say to be the clear opinion of all the judge and  prothonotories never contradict since and support by a very ancient case bro  jour pl where it be express say that the vouchee can appear by attorney but at  the day give by the process objection be again make to this case that it do  not appear whether this be speak of a common recovery or of a adversary suit  but that will make no difference for rule relative to process be the same in  adversary suit as in common recovery the statute of car c show this which put  both sort of suit upon the same foot as to the five return make still  requisite in process in real action beside in the present case this rule be  justify by reason and the fact before the court for it be admit that the  vouchee do not appear in person either at the return of the writ of entry or  other time and that she never be in town during this transaction and therefore  there be a necessity to issue a warrant of summons to warrant and a like  necessity as she never be in town that her appearance must be by attorney and  if she never appear in person there be no day give in court for her to appear  in but the sixteenth of may the law which require five return to a warrant of  summons will become ridiculous if the vouchee can appear by attorney before  the end of the five return but we be all clear of opinion that the present be  a appearance by attorney and so admit the attorney can not appear before the  return of the writ of summons to warrant modern er p a case much rely on in  favour of the amendment be that of win v Lloyd lev side a but that be no  authority as to the first amendment now desire first because it be difficult  to know the fact in that case for none of the book agree in it in the next  place because that be not like the present in this point because modern there  be no pretence in that case that the vouchee appear before the return of the  writ of summons that be a question which do not arise upon a motion to amend  but be a objection to a recovery upon a writ of error and as it be in another  court than where the recovery be suffer there be no room for intendment which  there can be in that court where the recovery itself be suffer for there the  court be regulate by fact only beside I must own that I have no great opinion  of the determination of that case however it be not like the present and  therefore upon the whole we can assent to make the first amendment because it  will not make the recovery better the second amendment if it can be make will  set the recovery quite right but we can grant it by the rule of law nor be  there anything to make such a amendment by for the fact will not warrant it  the case rely upon as to this second amendment be three precedent in Mr  Pigotts treatise of recovery which be all of they amendment in this court  about the four and five year of William and mary in which the court order the  return of the respective writ of entry to be alter because return before the  date of the deed which be to make a tenant to the praecipe the doctrine which  prevail at that time be that the recovery be void if there be not a tenant to  the praecipe before the return of the writ of entry but those case in Mr  Pigott do not come up to the present there they only amend the return and not  the testae but here it be pray that both the testae and return may be alter  beside it be more than probable that all those case be precedent upon consent  or for other reason than be mention in the book as to the first of they that  of bounce v Greenway Pigott that appear to be a amendment by consent and by  the rule it be also recite as a clear fact that it be the misprision of the  clerk and it be say in the rule that they read the deed in which it be  covenant to suffer the common recovery which warrant the amendment and say in  the rule also that the amendment be make by the consent of all the party this  make it probable if the other rule make in the case which Mr Pigott have cite  can be find that they will differ from what he have report but the far that  any of these rule go be to amend the return of the writ of entry in order that  there may be a tenant to it at its return second if this amendment can be make  yet here be nothing to amend by for the deed to declare the use which be the  only thing to amend by show it be the intention of the party that no other  writ of entry shall be sue out than the present one for the deed of release  say that a recovery shall be suffer before the end of easter term next ensue  or any other subsequent term so that here be no pretence to say that the party  design to suffer a recovery in the Hilary term before or modern that a writ of  entry shall issue soon than the present have do but here in order to make the  recovery valid the writ of entry must be test before the deed and if such a  writ be permit to have be take out that the vouchees appear on the three of  February the consequence will be that the recovery will be a recovery of  Hilary term contrary to the agreement of the party therefore we can make the  second amendment desire I do not know that in any case at law we can show  favour upon equitable circumstance but if we can the heir at law will be  entitle to it and not dr Apperley who be a mere volunteer the recovery can be  amend and therefore the rule must be discharge