Jones v. Cook

1 Cow. 309

Opinions

Woodworth, 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 the Sheriff, who is sued >for an escape, cannot take advantage of error, in the process, to deliver himself from the action for the escape. The erroneous process was a sufficient warrant for him. It stands good until reversed. No person can avoid it, for error, but he who is a party or privy to the record. It is not examinable in this collateral action.

The execution is not set out, m hcec verla. The plaintiff is not bound to prove immaterial matter, unless set out, in this manner, in his pleadings. The declaration states the substance of the ca. sa. only. It was, therefore, admissible, under the pleadings. The indorsement on the writ need not be stated in the declaration. It is surplusage. The ca. sa. produced, agreed, substantially, with the pleading.

The plaintiff is entitled to judgment.

Sutherland, J.

The error in the teste day of the execution did not render it void, but voidable only. Leave would have been given to amend it, upon application :

Footnotes

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(1) and -it is perfectly well settled, that a Sheriff is not warrantable in suffering an escape, under such an execution. It is good until set aside, which can only be done on the application of the defendant in the execution. (Bissell v. Kip, 5 John. Rep. 100—opinion of Kent, Ch. J.)

The ground of variance is equally untenable. The plaintiff did not undertake to set out the execution, inJicsc verba, but only its substance ; and there is no material difference between the execution set out in the declaration, and that produced at the trial. The case of Bissel v. Kip, is eqiia1l~r decisive, upon t1ii~ point, also. I concur in th~ opinion, thai the iudoxsement is mere surplusage.

Cramer v. Van Alstine, 9 John. 386.