Near v. Van Alstyne
New York Supreme Court
Error from the Madison common pleas. Near commenced a suit by attachment against the defendants. On the return day of the process, the defendants appeared and objected that the amount of the debt sworn to by the applicant was not stated in the attachment, 2 R. S. 230, § 30, and prayed that the suit abate.
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Error from the Madison common pleas. Near commenced a suit by attachment against the defendants. On the return day of the process, the defendants appeared and objected that the amount of the debt sworn to by the applicant was not stated in the attachment, 2 R. S. 230, § 30, and prayed that the suit abate. The justice, instead of granting the motion, amended the process by inserting the words fifty dollars as the sum sworn to, and proceeded to hear the proofs of the plaintiff, (the defendant refusing to appear,) and rendered judgment in favor of the plaintiff. The common pleas of Madison, on…
1Opinion of the Court
By the Court,
Savage, Ch. J.
By the construction given by this court, in Brace v. Benson, 10 Wendell, 214, to the revised statutes, 2 R. S. 424, 5, and 225, it was held that justices have the power of amendment, in the same manner as courts of record before judgment. The amendment made by the justice was clearly such an one as it became his right and duty to make. The provision requiring process to be filled up before issuing, 2 R. S. 267, § 233, was intended to guard against the abuse which at one time was but too common. Justices put blank process into the hands of constables and others, to…
2Cited by4 opinions
- Farrand v. BentleyMichigan Supreme Court · 1859
- Bacon v. BassettWisconsin Supreme Court · 1865
- Kidd v. DoughertyMichigan Supreme Court · 1886
- Talcott v. RosenbergNew York Court of Common Pleas · 1870