Eno v. Frisbie

5 Day 122

Opinion

Mitciielij, Ch. J.

The first question presented on the record is, did the County Court decide correctly, in permitting the justice, who signed the writ, to amend his certificate of the payment of the duty required by law ?

The statute entitled “ an act laying a duty in certain cases" declares, that “ no writ served after the first day of July, 1784, shall be valid or authentic in law, unless the authority signing the same, shall certify thereon, that the duty required by law, is paid.”

(a) At the time when this writ was served, no such certificate was maué thereon : therefore, at that time, the writ was invalid in law, and of no force, and void to all intents and purposes.

if the plaintiff had proceeded to take a judgment by default, it would have been erroneous, as the service of the writ, imposed no greater obligation to appear and answer to the action, than if the authority issuing the process, had omitted to subscribe his name or official character. This defect in the writ, being by the statute, absolutely fatal, could not be supplied by amendment; for it is a well settled principle, that a void process cannot be amended. Burk v. Barnard, 4 Johns. Rep. 309. Parsons v. Loyd, 3 Wils. Rep. 341. Shirley v. Wright, 2 Ld. Raym. 775. Bunn v. Thomas and King, Admrs. of Jeffery, 2 Johns. Rep. 190.

The justice of the peace, might, after the return of the writ, with as much propriety, supply the want of his signature, as the omission here complained of. There would be great danger to the public, in permitting the certificate to be amended; it would destroy one check which the public have upon the receivers of duties.

If the sura fust entered in ilie certifícele, could be altered after service of the writ, the certificate could never he relied upon, to shew the sum in fact paid; and then, I lie oath of the justiee must be resorted to, to ascertain the duty received. Nor, is this objection, one which could he waived hy the proceedings, or consent of the parties ; to allow, or permit this, would he to establish a rule, hy which, the whole revenue arising from the duty on writs, might be lost to the public-

As to (he omission of the justice to certify the affidavit of the party, verbatim, on the back of the writ, there can be no doubt. This omission is fatal. The statute expressly requires the justice to “ endorse and attest the affidavit on the writand declares, “ if a writ be directed to an indifferent person, without such endorsement, it shall abate (a) and no power is given to any court, to amend the certificate. To allow such amendment, would defeat this salutary regulation, and virtually repeal that clause of the statute. The officers of the law, are to serve all writs, except in certain cases mentioned in the statute, which are very urgent, where indulgence is given to the party, under certain specified regulations that may easily be complied with. To dispense with such compliance, by permitting an amendment, would rather be an act of legislation, than the execution of the law.

As to the other objection, relating to the form of the record, it is sufficient to remark, that the rfecord is in conformity to the established precedents in cases of reversal.

The other Judges severally concurred in this opinion.

Judgment affirmed,

1 Stat. Conn. tit. 54. s. 7,

1 Stat. Conn. tit. 95. c. 3. s. 2.