dissenting:
The objection which has occasioned the reversal of the judgment and dismissal of the writ in this case is to the words ‘ the said Court’ which are construed to mean the Superior Court. The precedent in Chitty will be found to be as follows: ‘ And now on behalf of the said A. B. in our said Court before us, we have been informed, &c.’ The variance would seem to he in the use of the word the for our, whilst the substitution of the latter in the writ would have obviated the difficulty.
We are at a loss, however, for the rule that confines the construction of an instrument to one word or a part of a sentence. The cardinal rule for construing all instrumentáis that the whole is to be viewed and compared in all its parts, so that every part of it may be made consistent and effectual. In case of difficulty in the construction, there certainly is greater reason for rejecting a word as repugnant and insensible, than for a disregard of the remainder of the sentence, or of the writing. In the case under consideration there would be no unusual stretch in construing the words “ the said” to refer to the Circuit Courts even if Superior had been the antecedent. Courts are not tied down to the grammar of sentences or writings as to their construction but will control even the literal terms, if they contravene the main purpose and object. One of the rules is that a construction is to be avoided which will defeat the instrument ■ — ut res magis valeat quam pereat. So also a construction which is against reason, is to be avoided. Now the Superior Court is admitted not to have been in existence, so that there could have been no .thought of application to it any more than if the name of a dead man had been used.
But looking to the entire sentence we submit, with deference, that every difficulty is avoided. After the quotation of the Court “ yet execution for the damages still remains to be made,” &c., it continues, “ wherefore the said Harley hath besought that a proper remedy be granted in this behalf.”
Of whom was this asked — to whom was the application made ? Most clearly the Circuit Court as the very writ itself shews in commanding the party to appear in the Circuit Court and shew cause, &c.
Admitting that there was a mistake as alleged, the, inquiry arises was it material, the Court say it was, and that a demurrer would lie *169for such defect. We do not so understand the law. It is a suggestion, not an allegation that is complained of, a suggestion to the wrong Court. Now we propose to show that this suggestion was not necessary, and that the allegation ‘ that execution still remains’ was sufficient without it to sustain the writ.
“ A writ of scire facias to revive a judgment, may issue of course at any time within seven years from the date of the judgment without application to the Court.” Tidd’s Prac., 1156.
A scire facias on a judgment after a year and a day states the judgment recovered by plaintiff, and the Court in which it was obtained. It then states that although judgment be thereupon given yet execution of the debt, &c., still remains to be made. 2 Tidd, 1157.
The test is whether plaintiff would be required to prove the suggestion, or defendant could put it in issue or controvert it. Most clearly not. It was then matter not of substance hut of form, and might be rejected as surplusage. 1 Chitty, 232.
Whilst we think the decision clearly against general principles we hold it to he against statutory provisions also. Referring to the record we find the praecipe to this effect.
“ Joseph F. C. Hakley, 7 vs. > In Leon Circuit Court. David Bkown. )
The Clerk will issue a scire facias to revive the judgment which was rendered in the above case on the 21st of Nov., 1842, dated April 4, 1846.”
It was not then the fault of the plaintiff that the word the was put in place of our in the writ, or that a mistake was made. Now the Supreme Court has held in the case of the Union Bank of Florida, vs. Edwards, the English statutes of Jeofails in force. 1 Florida Rep., 153.
One of these provides that “ no process shall be annulled or discontinued for the misprison of the Clerks in writing one syllable, or letter, or word too much or too little, but as soon as the mistake is perceived it shall he amended in due form. And the justice before whom the record is made, or shall be depending by way of error, or otherwise, may amend the same as well after as before judgment, in the same manner as they might have done by the above statute; before judgment.”
“ So the Court may amend whatever to them seemeth to be the mis-*170prison of the Clerks in any record, process, word, plea, warrant of attorney, writ, panel, or return, which may for the time be before them so that no judgment shall be reversed by reason of such misprison.” 8 H. 6, C. 12. 9 H. 5, C. 4. 2 Arch. Prac., 1115.
“ The Courts have power of amending a scire facias for any misprison of the Clerks by Stat. 8 H. 6, C. 12, already mentioned, that statute expressly including writs.” 2 Arch. Prac., 1133.
“Although the omissions, variances and defects, by 16 and 17 Car. are required to be amended, the benefit of the act is attained by the Court overlooking the exception.” 2 Tidd, 960. 2 Strange, 1011.
But again the ordinary process for the commencement of a suit is by way of summons to answer in an action on the case or trespass, &c. Now although this gives him not the slightest information of the nature of the charge against him, it has yet been held sufficient by the Courts for centuries. Can it be that greater precision, more definite allegation is required at the end, after a party has obtained his judgment for leave to issue his execution ? There is no reason indeed why on mere motion and notice to the defendant a plaintiff should not have this permission without putting him to the expense of a new suit and a requisition of strictly formal allegations and suggestions.
The course of the Courts of the present day everywhere (and such has been hitherto that of this Court,) has been to relax and to discountenance objections of mere form. In this case the defendant appeared by attorney, and took a rule on the plaintiff to file a declaration, this shews that he was not misled by the suggestion of the wrong Court, this of itself was sufficient to cover any defect of the writ. Nor is there a pretext that he has any defence or valid objection to the application.
For these reasons I hold that the judgment of the Circuit Court should have been affirmed, and have to express my regret that a suitor after two years of fruitless toil and effort to get leave from the Court to have execution in a case of admitted right on a judgment, without any fault of his, with all the expense of this Court, and the Court below, has his suit dismissed, and is to be subjected to the expense, trouble and delay, of another suit before he obtains his rights.