Gardner v. Webber

33 Mass. 251

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1834
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. It appears, that the alterations in the writ were made in conformity to long established practice ; and of this practice the Court would take notice if no evidence relating to it had been offered. The practice is,, when an attachment is made on a writ, but no summons is served on the defendant, to alter the date and return of the writ, so as to make it returnable to the next l arm. This practice is convenient, and we do not know that "t is liable to abuse.

It is said, that such a practice is a fraud on the clerks ; but if they acquiesce without complaint, this objection fails. It will be time enough to consider this matter when any complaint is made by them. The practice being thus established, it must govern this case, even if the objections to the practice were more weighty than they appear to be. If the Court should establish a new rule of practice, it ought not to operate retrospectively. In Filkins v. Brockway, 19 Johns. R. 170, a seal of the court had been used by being affixed to process which had been filled up, though not issued, and was after-wards detached and affixed to another writ; and the Court refused to set aside the writ, although they laid down a rule against such practice, to operate in futuro.

The practice in England in respect to the alteration of writs, is different from ours ; but we must be governed by our own rules of practice. In England, no writ can be altered after it is sealed ; here, sealed blanks are delivered out for convenience ; and there is no objection to this practice in regard to mesne process. But in England, a writ which fails to be served may be altered and resealed without being stamped anew. Durden v. Hammond, 1 Barn. & Cress. 111. The practice there is, in this respect, similar to ours, excepting that there the writ must be resealed after the alteration of the teste and return day.

In respect to the objection, that the blank writ had been filled up in a case between other parties, we think that stands on the same ground as the other objection. It does not appear that it was ever delivered to an officer ; it was therefore never used to any effectual purpose.

Motion to dismiss overruled, and respondeat ouster.