Stone v. Martin
New York Supreme Court
The plaintiff was nonsuited on the trial of an action of ejectment: he made a bill of exceptions which was settled and signed; but not having obtained an order to stay proceedings, the defendant perfected a judgment for costs. An alias ca. sa. was issued on the judgment to the sheriff of Oswego, tested the first Monday, and made returnable the eleventh day of January last, which was Sunday.
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The plaintiff was nonsuited on the trial of an action of ejectment: he made a bill of exceptions which was settled and signed; but not having obtained an order to stay proceedings, the defendant perfected a judgment for costs. An alias ca. sa. was issued on the judgment to the sheriff of Oswego, tested the first Monday, and made returnable the eleventh day of January last, which was Sunday. The defendant’s attorney fell into the error by consulting a counting house almanac in which the eleventh day of January was put down as being Suturday. The plaintiff was arrested on the ca. sa., and gave…
1Opinion of the Court
By the Court, Bronson, Ch. J.
The writ was irregular in consequence of the mistake in the return day; but it is amendable. The distinction is between mesne and final process. Mesne process against the body, returnable out of term, is void, and cannot be amended. (Miller v. Gregory, 4 Cowen, 504. And see Chandler v. Brecknell, id. 49.) But final process against the body, returnable out of term, is voidable only, and may be amended. (Cramer v. Van Allstyne, 9 John. 386.) The legislature has made the same distinction. (2 R. S. 424, § 1 to 3.) If there were nothing else in the case, the defendant…
2Cases cited1 opinion
- Cramer v. Van AlstyneNew York Supreme Court · 1812
3Cited by4 opinions
- Dominick v. EackerNew York Supreme Court · 1848
- Leetch v. Atlantic Mutual InsuranceNew York Court of Common Pleas · 1873
- Elliott v. HartMichigan Supreme Court · 1881
- Wight v. AldenNew York Supreme Court · 1848