Low v. Little
New York Supreme Court
MOTION for leave to issue an alias capias ad respond, in this cause, upon filing a capias ad resp. therein, returnable as of August term, 1818, with a return oínon est inventus endorsed thereon ; or for leave to file a capias ad resp. thereon, with a return of non est inventus thereon, nunc pro tunc; or for such order as the court may think proper to grant.
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MOTION for leave to issue an alias capias ad respond, in this cause, upon filing a capias ad resp. therein, returnable as of August term, 1818, with a return oínon est inventus endorsed thereon ; or for leave to file a capias ad resp. thereon, with a return of non est inventus thereon, nunc pro tunc; or for such order as the court may think proper to grant. In the vacation, after May term, 1818, a capias ad resp. in favor of the plaintiff, who sues as well for the poor of the town of Springfield, in Otsego county, as for himself, against the .defendant, in an action of debt, under the act for…
1Opinion of the Court
Spenceb, Ch. J.,
delivered the opinion of the court.
There is no doubt, that the power of the court extends to allow amendments in actions on penal statutes, as well as in ordinary suits. To grant the amendment now asked *would *274be pushing the doctrine to its utmost limits. The suit is barred, unless the court permit a new writ to be made out and filed as of a distant day, and we incline to think it would be going further to subject the defendant to a penalty, than has yet been done; but there is an insurmountable difficulty, unless the sheriff make a return to the writ, that the defendant was…
2Cited by4 opinions
- Smith v. FurbishSupreme Court of New Hampshire · 1894
- Goldman v. KennedyNew York Supreme Court · 1888
- Jackson ex dem. Harris v. MurrayNew York Supreme Court · 1823
- Brown v. The CadmusU.S. Circuit Court for the District of Southern New York · 1856