#### Murphy, Adm’r *versus*Philadelphia Trust Company.

1. A writ of sci. fa., which upon its face was simply to substitute in place of the original party his administrator, was indorsed, “plus. sci. fa. to revive, etc.” It was entered in the appearance docket as a “sci. fa. to revive, et qua. ex. non,” etc. On the trial, the plaintiff’s counsel, having proved the loss of the original praecipe, offered in evidence a paper, which he swore was an exact copy of the original prtecipe, and by which it appeared that the prothonotary was directed to issue a sci. fa. to revive, and qua. ex. non. and to make the said substitution. Plaintiff then moved to amend the writ, so as to make it conform to the copy of the praecipe and the docket entries: *Held,*

*380(1) That the admission in evidence of the sworn copy of the praecipe was not error.

(2) That the allowance of the amendment was not error.

2. Where in such case the defendant, having been substituted as administrator without objection on his part, and having entered a plea of “payment, with leave, etc.," asked permission on the trial to withdraw his plea of payment and enter that of “ ne unques administrator," which was refused: *Held,*that the refusal was not error.

3. Any lapse of time less than twenty years will not, per se, raise a presumption of the payment of a judgment.

April 18th 1883.

Before Mercer, C. J., Gordon, Paxson, Trünkey, Sterrett, Green and Clark, JJ.

Error to the Court of Common Pleas of *Sehuyll&ill county :*of January Term 1883, Nos. 345 and 346.

Scire facias, by the Philadelphia Trust, Safe Deposit and Insurance Company, administrator, d. b. n. c. t. a. of William Richardson, deceased, against James Murphy, Administrator d. b. n. ,c. t'. a. of Michael Murphy, deceased.

The original judgment was obtained by Richardson against Michael Murphy in his lifetime, on March ,12th 1862, for $2,238.36. On May 26th 1871, a sei, fa. issued to substitute as defendant in place of said Murphy, Lewis C. Dougherty, his executor. Nothing further was done upon this sci. fa. On March 14th 1879, the present sci. fa. issued ; according to the face of the writ it was simply to substitute James Murphy, administrator, of Michael Murphy, as defendant instead of Lewis C. Dougherty, the executor. The writ was indorsed, however, with the words, “ plus. sci. fa. to revive, etc.,” and in the appearance docket it was entered as a “ sei. fa. to revive and continue the lien of judgment No. 307, Dec. T. 1851, et qua. ex. non,” etc. The defendant pleaded “ payment, with leave,” etc. On January 26th 1880, a rule was granted on defendant to show cause why judgment should nbt be entered for want of an affidavit of defence, and on September 5th 1881, the court ordered that the substitution of James. Murphy should be made.

When the case was called for trial, on December 5th 1882, before Bechtel, J., the defendant asked leave to withdraw his plea of “payment” and substitute that of “ne unques administrator.”' Refused. Exception. (First assignment of error.)

The plaintiff -then offered in evidence the original judgment and rested. The defendant then offered the will of Michael Murphy “for the purpose of strengthening the presumption of payment, twenty years having elapsed since the entry of the judgment,” and rested.-

The plaintiffs counsel then offered in evidence the writ of .sci. fa. dated March 14th 1879, Having proved by the protho*381notary of Schuylkill county that the original praecipe for this writ was not found among the records of his office after a diligent search, plaintiff’s counsel offered in evidence an alleged copy of the praecipe, of which he testified that “ it is in the handwriting of my clerk; I compared it with the original and know it to be a correct copy of, the inside of that praecipe.” Objected to. Objection overruled and copy admitted. Exception. (Fifth assignment of error.) This copy read as follows :

“Issue writ of alias scire facias to revive judgment Ho. 307, Dec. Term 1851, et quare exeeutionem non, and to show cause why James Murphy, administrator d. b. n. c. t. a., should not be substituted as defendant.”

Plaintiff’s counsel then moved to amend the writ (which, as before stated, was upon its face merely to substitute) by the copy of the praecipe and the record, so as to make the said writ conform to the copy of the prmeipe and the docket entries of the case. The defendant’s counsel objected on the ground that the process is at common law, and must be made by the record ; that the copy of the writ in this case, No. 108, May term 1879, shows upon its face that it never was intended to be a scire facias to revive and that there was no mistake made in the filling up of the writ; no clerical error committed ; that the copy served by the sheriff, which is admitted to be the copy of the writ in this case served on the defendant, is merely a scire facias to substitute, and never was intended for anything else; that a scire facias to revive a judgment, cannot be issued at the same time with a scire facias to substitute ; that a scire facias takes the place of a declaration in the cause, and the amending of this scire facias would result in changing the cause of action after plea filed, and issue formed. Objection overruled and amendment allowed. Exception. (Sixth assignment of error.)

The defendant submitted the following point:

1. That the judgment offered in this case is over twenty years old, and there having been no process issued or proceeded with, within the twenty years, that would prevent the running of the statute and the legal presumption of payment would prevail in this case as to payment, and the verdict must be for the defendant. Refused. (Second assignment of error.)

The court in its charge instructed the jury to render a verdict for the plaintiff. Verdict accordingly for $5,022.13 and judgment thereon. The defendant thereupon took this writ of error, assigning for error the action of the court in refusing to permit the defendant to change his plea ; its answer to his first point; in admitting the copy of the praecipe, and in allowing the amendment of the sci. fa. as above set forth.

*382
      *D. A. Jones*(with him *W. F. Shephard),*for the plaintiff in error.

*F. G. Farquhar,*for the defendant in error.

May 14th 1883.

The opinion of the court wasfiied

Per Curiam.

There was no error in allowing the amendment. The indorsement on the scire facias, that issued to revive the judgment, was sufficient to amend by. The lost prsecipe was properly supplied by the production of a sworn copy.

More than a year after the plaintiff in error had been substituted as administrator without objection, after the plea of payment had been entered, and when the case was about to be called for trial, it was too late to withdraw the plea of payment, and substitute one denying that he had ever been administrator.

Any lapse of time less than twenty years will not per se raise the presumption of payment of a judgment. There were no persuasive circumstances tending to show payment. The court therefore committed no error in directing the jury to find for the plaintiff below.

Judgment affirmed.