5 Cow. 519 | N.Y. Sup. Ct. | 1826
The rejoinder puts in issue two facts ; 1. It denies that the writ was delivered to the sneriff to be executed; 2. That it was sued out with intent to implead the defendant upon the supposed causes of action.
As to the first, the evidence is express, that the writ was not delivered to be executed, that is, to be actually served on the defendant. As to the second, although not intended to be served, it was, nevertheless, issued with intent to implead the defendant in the action. It was to save the statute of limitations, on the ground that process had been sued out before the statute attached; ana being returned non est, might be continued down until the defendant appeared, and thus deprive him of the benefit of his plea, should it be interposed. The writ, then, although not delivered to be executed, must be considered as delivered with the intent to implead the defendant. And the question arises, wheth
I have not found any case, where the fact that the writ was delivered with directions not to execute it, was the point in issue. The general doctrine seems to be this; the plaintiff may reply a capias sued out within time, and returned non est inventus, by the sheriff; ■ and show that the process was regularly continued by vice comes non misit breve, to the time of declaring. (2 Saund. 63; note (6). 2 Salk 420. 6 D. & E. 617.) This is considered a good commencement of the suit for the purpose of defeating the operation of the statute ; and if so, I do not perceive how the principle can be effected by giving the sheriff directions not to make personal service of the first writ. The defendant is not thereby deprived of any defence that he would have had, independent of such instructions given to the officer. The plaintiff may thereby be subjected to greater delay ; but the defendant sustains no injury. To him, this fact is not material. I am of opinion that the motion for a new trial be denied.
To support the motion in arrest, the defendant contends that the first capias, being issued by the plaintiff's in their representative character, cannot support the subsequent process and proceedings in their own right. The identity of the cause of action, and the issuing the first writ, are put in issue. It is true, in that writ, the plaintiffs are described as executors; and declare in their own right. If 'this is irregular, after plea pleaded it was too late to take advantage of a variance between the declaration and the writ. (12
From an examination of the authorities, I am inclined to the opinion, that the variance did not entitle the defendant to any thing more than to be relieved on filing common bail. If, however, the objection can now be properly urged, it is not too late, after trial, to allow an amendment, by striking out the description of the plaintiffs as executors. The doctrine laid down in Lion v. Burtis, (18 John. 512,) is, that amendments in furtherance of justice, ought to be made, even after trial, as to mere formal mistakes, arising from clerical errors, when the substantial rights of one party rvill be promoted by the amendment; and the other party is no otherwise prejudiced, than by depriving him of a formal objection. I am of opinion that the motion in arrest be denied.
Motions denied.
