The record in this case, as presented to us, is lacking in sufficient completeness to indicate with certainty its condition at the time of trial. The praecipe and writ contained several errors in describing the land for which the action was intended to have been brought; and, doubtless on that account, the defendants filed a disclaimer of “ any estate in the lands described in the plaintiff’s writ, ... as the same is a different tract or parcel of land from that of the defendants’ lands.” A verdict for plaintiff for six cents and costs was directed by the court, and judgment was subsequently entered thereon and a habere facias possessionem issued. That writ was returned unexecuted because of the errors in the description. About six months thereafter, without notice to defendants, the plaintiff procured an order of court amending the record, and thereupon issued an alias habere facias. Subsequently, rules taken by defendants to stay the alias habere and to strike off the amendment were made absolute by the court.
We are all clearly of opinion that there is nothing in the record that would justify us in disturbing this action of the court. Defendants were certainly entitled to notice of the application to amend. It may well be that in the altered condition of the record they would wish to "withdraw their disclaimer. The filing of that at the trial narrowed the issue to the question of possession and consequent liability for costs: Lane v. Harrold, 66 Pa. 819. Withdrawal of the disclaimer, in connection with the amendment of description, would introduce a new issue not passed upon at the trial. The verdict and judgment would necessarily fall with the change of issue, and hence there would be nothing to sustain the habere facias.
We find nothing in the record that requires notice.
The decree staying the writ of habere facias and striking off the amendment is affirmed, and the appeal dismissed with costs to be paid by plaintiff.