Eastman v. Morrison

46 N.H. 136 | N.H. | 1865

Perley, C. J.

It appeared, on inspection of the writ, that a writ had been made and completed on the same blank in the action John 8. Bryant v. Isaac S. Smith; but it did not appear that it had been delivered out for service in that action. After erasing what related to the action of Bryant v. Smith, the same blank was used to commence this suit. When a writ has been filled up and completed with the names of the parties to the suit and a declaration inserted or annexed according to our practice, we think the blank writ has done its office and cannot be used again to commence another action. This furnishes a plain and simple rule which can be applied in all cases on amere inspection of the writ. If we were to go beyond this and undertake to ascertain, by an issue to the jury or in any other method of trial, with what motive the writ was made, whether it was intended to be served, or whether it had been delivered out for service, we should enter upon inquiries very inconvenient to make and altogether unusual on an incidental question like This. The reasons for such a positive rule are clearly and forcibly stated in Dearborn v. Twist, 6 N. H. 44.

In our practice there would seem to be no objection to changing the date of a writ before service and making it returnable to a later term without applying to the clerk for a new seal or a new signature. In the English practice a writ stamped and sealed maybe dated anew and made returnable to another return day, provided it is resealed. We can see no reason in such a case for requiring a new seal except to give the sealer of writs another fee. The sealer of writs is not in England any clerk of the courts, but a special officer, the hereditary sealer being the Duke of Grafton for the time being, who holds the office under a patent to his ancestor from Charles the Second, and executes it, of course, by deputy.

A practice like ours formerly prevailed in England of issuing blank writs sealed; but the practice, it is said, led to abuses, which occasioned the general order of 1747, since which blank writs are first filled out and the seal afterwards affixed by the sealer. Featherstone v. Hunt, 1 B. & C. 113; Gibson v. Varley, 7 Ellis & Blackburn, 49; 1 Tidd’s Practice, 33 note (t.) This experience in England should warn us that our practice of issuing blank writs to attorneys needs to be guarded against abuse.

The writ must be quashed.