Jones v. Cook

1 Cow. 309 | N.Y. Sup. Ct. | 1823

Lead Opinion

Woodworth, J.

The execution, though tested out of term, is not void, but voidable, and may be amended. (Cramer v. Van Alstine, 9 John. 388.) It is equally clear it is amendable by inserting the word omitted. (5 John. 1.) Besides, the variance is only matter of form. (Doug. 183.) I might apply what was said by Buller, J. mKing v. Pippet, (1 D. & E. 239) “ It is impossible for any person to read this part of the declaration, without knowing what it should be.”

In Bissel v. Kip, (5 John. 100) the question of variance, between the execution and the judgment,-was considered. The rule appears to be settled, that the Sheriff, who is sued >for an escape, cannot take advantage of error, in the process, to deliver himself from the action for the escape. The erroneous process was a sufficient warrant for him. It stands good until reversed. No person can avoid it, for error, but he who is a party or privy to the record. It is not examinable in this collateral action.

The execution is not set out, m hcec verla. The plaintiff is not bound to prove immaterial matter, unless set out, in this manner, in his pleadings. The declaration states the substance of the ca. sa. only. It was, therefore, admissible, under the pleadings. The indorsement on the writ need not be stated in the declaration. It is surplusage. The ca. sa. produced, agreed, substantially, with the pleading.

The plaintiff is entitled to judgment.

Sutherland, J.

The error in the teste day of the execution did not render it void, but voidable only. Leave would have been given to amend it, upon application :⁽¹⁾ and -it is perfectly well settled, that a Sheriff is not warrantable in suffering an escape, under such an execution. It is good until set aside, which can only be done on the application of the defendant in the execution. (Bissell v. Kip, 5 John. Rep. 100—opinion of Kent, Ch. J.)

The ground of variance is equally untenable. The plaintiff did not undertake to set out the execution, inJicsc verba, but only its substance ; and there is no material difference between the execution set out in the declaration, and that produced at the trial. The case of Bissel v. Kip, is eqiia1l~r decisive, upon t1ii~ point, also. I concur in th~ opinion, thai the iudoxsement is mere surplusage.

(1) Cramer v. Van Alstine, 9 John. 386.

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Dissenting Opinion

Savage, Ch. J. dissented.

lie agreed, that the objection for variance was not tenable. He said, the other objection, that the ca. sa. is void, being tested out of term, and that, therefore, the plaintiff in this cause, a party to the writ, can not take advantage of it, depends upon the question whether it is to be considered void, or voidable only, on account of this irregularity. If void, the Sheriff had no right to arrest Voris ; and, of course, is not liable for permitting him to escape: If voidable only, he ought to have kept the defendant in custody; for the execution would, notwithstanding, justify him. In Simonds v. Catlin,^(y) a fi. fa. was issued, and tested out of term; and the Court say, "the process, for that reason, is held to be void, and the party suing it out cannot take advantage of it, although it may justify the Sheriff.1” In Bunn v. Thomas & King,^(z) and Burk v. Barnard,^(a) the Court refused t~ amend writs of capids ad respondendum, so tested that a term ~n'd more 1h~tervened between the test and return True, in Shirley v. Wright,^(b) a distinction is taken, in this respect, between mesn~ a~d fin~l process. The process in that case, which was fina', ~ias' both tested and returnable ir~ term. This was holden well, though one full term intervened between the test and return; and it was said that, in the case of mesne process, it would be oppression to keep the body in prison till so long a return, without an opportunity to make a defence to the action ; whereas, dpon final process, the body ought to be imprisoned till satisfaction. But, in a note to the same case, in 1 Salkeld, 700, it is added, that Ch. J. Holt said, that, had it been tested out of term, it would have been void, and the Sheriff shall not be liable to an action of escape, though he would be justifiable. To the same effect is the report of this case, in Ho IBs Rep. 761, and 7 Mod. 29. In Gordon & Wood v. Valentine & Smedes,^(c) the execution was tested proper1y upon its fac~, though, beii~g issued. In term, it was improperly tested ás of a day in the terns preceding.. The Court say, the teste of the writ is irregular, and that the plaintiff may amend. Carly v. Ashly^(d) has been cited, where the Court amended a wrong test of a capias in the Court of C. B. The objection in that case was, that there were not 15 days between the teste and return-not that the writ was tested out of terms , Indeed, the question whether we should amend this mistake, on motion, is, upon authority, by no means clear of difficulty. But we are asked to go farther ; to consider this writ as good, at all events ; as perfect in form and substance, without regard to that discretion which it might become us to exercise tin a summary application to amend it. In Simonds v. Catlin, the Court said that; if the case of an execution, tested out of term, be within the reach of an amendment, yet this must always be a matter of sound discretion -, and they declared that case to be one in which they should incline not to grant an amendment. Till an amendment is granted, however, they do not hesitate in saying, that the plaintiff can derive no advantage from the execution. In this they are sustained by the opinion of Ld. Holt, as reported in 1 Salkeld, Holt, and 7 Modern.

On the whole, therefore, I am of opinion, that the ca. sa. being tested out of term, was void, and ho justification to the Sheriff, for imprisoning. Fom ; and that the defendant is entitled to judgment.

Judgment for the plaintiff^

(y) 2 Caines 63.

(z) 2 John. Rep. 190.

(a) 4 id. 309.

(b) 2 Ld. Raymd. 775.

(c) 16 John. 145.

(d) 2 Bl. Rep. 918