Kelly v. Gilman
Superior Court of New Hampshire
This is an action of trespass for assault and battery and false imprisonment. The plaintiff, in his declaration, alleges that he was imprisoned and detained in prison sixteen days, to wit: from the 8th day of April, 1853, to the 23d day of the same month.
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This is an action of trespass for assault and battery and false imprisonment. The plaintiff, in his declaration, alleges that he was imprisoned and detained in prison sixteen days, to wit: from the 8th day of April, 1853, to the 23d day of the same month. The parties agree that this plaintiff, Charles H. Kelley, on the 11th day of January, 1853, was indebted, by-note of that date, to this defendant, Gil-man, in the sum of $22,88 ; that on the 17th day of February, 1853, said Gilman caused a writ of capias and attach-, ment to be issued of that date, in due form of law, except as is…
1Opinion of the CourtBell, J.
The position of the plaintiff’s counsel is, that the writ upon which the plaintiff was arrested is void, and, consequently, no justification for the arrest, because it is not made returnable at the next term of the court. The general rule seems to be that where the return day of process is mistaken or defectively stated, it does not render the process void, but only voidable, liable to be set aside; but the defect may be remedied by amendment. Thus in Jackson v. Crane, 1 Cowen 38, a writ, tested January 1, 1823, re- • turnable on a day in January next, was held not void, but voidable only,…
2Cases cited8 opinions
- Hitchcock & Fitch v. AickenNew York Supreme Court · 1803
- People ex rel. Macey v. HillsdaleNew York Supreme Court · 1807
- Blanchard v. GossSuperior Court of New Hampshire · 1822
- Burk v. BarnardNew York Supreme Court · 1809
- Findley v. RitchieSupreme Court of Alabama · 1839
3 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Carroll County Elderly Housing Associates v. Merrimac Tile Co.Supreme Court of New Hampshire · 1985