Dominick v. Eacker
New York Supreme Court
Trespass, for an assault and battery. The defendants pleaded, severally, the general issue, and gave special notices of justification. The cause was tried at the Herkimer circuit in September, 1847, before Justice Gridley.
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Trespass, for an assault and battery. The defendants pleaded, severally, the general issue, and gave special notices of justification. The cause was tried at the Herkimer circuit in September, 1847, before Justice Gridley. The assault and battery complained of consisted in the arrest of the plaintiff by the defendant Powell, a deputy sheriff, under a ca. sa. issued out of the court of common pleas, in favor of the defendant Eacker, with a seal of the supreme court attached to it, instead of the seal of the common pleas. At the close of the case a motion was made, on the part of Powell, that…
1Opinion of the Court
By the Court,
Willard, J.
The ca. sa. in this case was erroneous, because it lacked the seal of the proper court. It was the same as if it had no seal. This defect, however, was amendable. (4 Cowen, 550. 1 Wend. 16. 5 Id. 103.) The ca. sa. was therefore not absolutely void, but voidable only; *19and such process is a good protection to the officer, and it seems, to the party, until set aside. (Reynolds v. Corp, 3 N. Y. T. Reports, 267. Chapman v. Dyett, 11 Wend. 31, 32.) In the latter case the chief justice confounds irregular with erroneous, as applicable to voidable process, or such as may be…
2Cases cited4 opinions
- Savacool v. BoughtonNew York Supreme Court · 1830
- Parker v. WalrodCourt for the Trial of Impeachments and Correction of Errors · 1836
- Walden v. DavisonNew York Supreme Court · 1836
- Stone v. MartinNew York Supreme Court · 1846
3Cited by22 opinions
- Hunter v. Burnsville Turnpike Co.Indiana Supreme Court · 1877
- In Re JohnsonCourt of Appeals for the Eighth Circuit · 1989
- Hill v. . HaynesNew York Court of Appeals · 1873
- Tanzer v. BreenAppellate Division of the Supreme Court of the State of New York · 1909
- Wolf v. CookU.S. Circuit Court for the District of Eastern Wisconsin · 1889
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