Legal Opinion

Parke v. Heath & M'Cotter

New York Supreme Court

Decided May 15, 1836PublishedCited by 7 opinions

Demurrer to plea. This was an action on a bail-bond. The defendant pleaded that the capias, by virtue of which the defendant in the original action was arrested, and under which arrest the bail-bond was given, was tested out of term, to wit, on the 10th June. The plaintiff demurred.

1Opinion of the Court

By the Court,

Bronson, J.

If the capias had been returnable out of term, it would have been void, and could not be amended. Miller v. Gregory, 4 Cowen, 504. 2 R. S. 424, § 3. The same rule was laid down in relation to process tested out of term, in Chandler v. Bicknell, 4 Cowen, 49. But the statute already referred to has provided for this case, and mesne process tested out of term may now be amended. “ The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such…

2Cases cited1 opinion

  1. Nichols v. NicholsNew York Supreme Court · 1832

3Cited by7 opinions

  1. Kelly v. . McCormickNew York Court of Appeals · 1863
  2. Dresser v. Van PeltThe Superior Court of New York City · 1857
  3. Leetch v. Atlantic Mutual InsuranceNew York Court of Common Pleas · 1873
  4. Covey v. NoggleNew York Supreme Court · 1851
  5. Kelly v. McCormickNew York Court of Common Pleas · 1854

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