Jones v. Cook
New York Supreme Court
Debt against the defendant, Sheriff of Westchester, for ^ . » the escape of Richard R. Voris. The declaration set forth a judgment in favour of the plaintiff, against Voris, of January Term, 1820 ; that a testatum ca. sa. was, on the 28th October, 1820, sued out, directed, &c. commanding the defend ant to take and safely keep the said Voris, &e. Indorsed to “ Levy $131,03, besides Sheriff’s fees,” fyc.
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Debt against the defendant, Sheriff of Westchester, for ^ . » the escape of Richard R. Voris. The declaration set forth a judgment in favour of the plaintiff, against Voris, of January Term, 1820 ; that a testatum ca. sa. was, on the 28th October, 1820, sued out, directed, &c. commanding the defend ant to take and safely keep the said Voris, &e. Indorsed to “ Levy $131,03, besides Sheriff’s fees,” fyc. Plea, nil debet. ' The cause was tried before his honour, Mr. J. Wood-worth, at the Westchester circuit, May, 1822. Verdict for the plaintiff, subject to the opinion of the Court on a case.. On…
1Opinion of the CourtWoodworth, J.
The execution, though tested out of term, is not void, but voidable, and may be amended. (Cramer v. Van Alstine, 9 John. 388.) It is equally clear it is amendable by inserting the word omitted. (5 John. 1.) Besides, the variance is only matter of form. (Doug. 183.) I might apply what was said by Buller, J. mKing v. Pippet, (1 D. & E. 239) “ It is impossible for any person to read this part of the declaration, without knowing what it should be.”
In Bissel v. Kip, (5 John. 100) the question of variance, between the execution and the judgment,-was considered. The rule appears to be settled, that…
2Cases cited3 opinions
- Bissell v. KipNew York Supreme Court · 1809
- Lewis v. FewNew York Supreme Court · 1809
- Cramer v. Van AlstyneNew York Supreme Court · 1812
3Cited by7 opinions
- Bacon v. . CropseyNew York Court of Appeals · 1852
- Bensel v. . LynchNew York Court of Appeals · 1870
- McComb v. ReedCalifornia Supreme Court · 1865
- Hutchinson v. BrandNew York Supreme Court · 1850
- Ginochio v. OrserNew York Court of Common Pleas · 1855
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