Plumer v. Fogg
Superior Court of New Hampshire
Review. The defendant, who appeared solely for the purpose, submitted a motion to dismiss the case, for the reason that the writ had been altered since it was sued out, by striking out the original return day, and substituting a later day.
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Review. The defendant, who appeared solely for the purpose, submitted a motion to dismiss the case, for the reason that the writ had been altered since it was sued out, by striking out the original return day, and substituting a later day. The facts are disclosed in the affidavit of Mr. Bartlett, which is as follows: “Some time in July, A. D. 1846, I applied to I. B. Hoitt, clerk of the court of common pleas for the county of Rockingham, for a writ of review in the case Fogg v. Flumer. I think afterward, on the same day, Mr. Iloitt handed me the writ now before the court, the said writ then…
1Opinion of the CourtGilchrist, J.
The proposition has been frequently affirmed in general terms, that a party or his attorney may make alterations in a writ before service, though afterward an alteration cannot regularly be made but upon motion, and as an amendment. Sullivan v. Alexander, 18 Johns. 3; Sloan v. Wattles, 13 Johns. 155; Commonwealth v. Mycall, 2 Mass. 136; Clindenin v. Allen, 4 N. H. Rep. 386.
In the case first cited, it was said in argument that such practice would not be allowed in the English courts, where, after the writ is sealed, no alteration can be made. In that case the teste and return day had both been…
2Cases cited3 opinions
- Hoyt v. Gelston & SchenckNew York Supreme Court · 1816
- Clindenin v. AllenSuperior Court of New Hampshire · 1828
- Sullivan v. AlexanderNew York Supreme Court · 1820