[3]*3Radcliff, insisted that the tenant could not avail himself of a defective summons in this manner. The proper course is to object this by plea of non-summons, and support it by wager of law. But here the defendant claims a right to qualify his appearance, and comes to shew that he is under no obligation to appear. His appearance is a waiver of all defects in the return ; authorizes us to treat him as in Court, and to count against him.
Emmet, remarked that where the very question is, whether process shall issue for non-appearance, the only mode of objecting is by way of pointing out the defect which renders his appearance unnecessary. This we have a right to do, at least, as amici curia ;
[4]*4the statute speaks of churches, it means those of the estab* lished religion, and can have no reference to the meeting houses of the dissenters. Hence, it is sufficient to return, in language of their statute, that the proclamation was made at or near the most usual door of the church or chapel of that town or parish where the land doth lie. This must, of necessity, relate to the nearest church within the precinct contemplated by the statute. But the same certainty could not be attained here, where all churches are on the same footing ; accordingly, the phraseology of our statute is different. It provides, that where there is more than one church, proclamation shall be made at the one nearest the' lands ; and if none in the town, then at the nearest church in the county; and as there might have been, and were, for aught that appears, several churches within the 2d ward, where these lands lie, the return should have stated it to be the nearest church in the ward to the lands, or have shewn but one church in the ward. Suppose the proclamation had been made at a church out of the ward ; ought not this also to have been excused by a return that there was no church in the ward ? Nor can the defect here be supplied by intendment or construction in favour of the act of the Sheriff. There was as much room for favourable presumptions in the case of Furnia v. Waterhouse, as here, and yet none were allowed. Nor will the Court intend, from this return, that the service was personal, so as to supersede the necessity of proclamation. Indeed, the summons cannot be a personal one. It must be upon the land, and this appears from Allen v. Walter, (Hob. 133. 2 Saund. 43, n. 1, and vid. also, W. Jones 7, pl. 6.) True, the case in Hobart, was in dower. But this being a proceeding in nature of a writ of right, shews the mode of service applicable to both ; and further, as to the manner of service, they referred to Com. Dig. Process, D. 3. Archbold 421. title, Writs in nature of a writ of right. 2 Saund. 44, n. 4. But if a personal summons be sufficient, this return rather authorises a presumption against, than for one. It is, that; proclamation was made secundum formarn statuti, and it is only in cases of summons upon the land, that the statute rep quires proclamation.
[5]*5Radcliff. It is agreed that this return accords with the English precedents, ancient and modern. A form of the English return may be found in Imp. Shff. 402. 3 Wils. 553. 2 Saund. per Serj. Wms. 43, n. 1, in connexion with id. p. 44, n. 4. ch. 3 pi. 596, The statute does not require a summons upon the land. It is true, this was the ancient practice, and was allowable where every possession was open and notorious, and every man was presumed to occupy his own land. But a personal summons was always sufficient. {Booth on R. A. 4, 5.) In the state of modern possessions it is many times essential, to avoid imposition A summons on the land would be very imperfect in this country, for the purposes of notice ; and where the summons is personal, proclamation is unnecesary. This is required only where the summons is upon the land. As the statute was avowedly for avoiding secret summonses, there can he no motive for proclamation where the summons is personal. As to the church, the statute is merely directory. The same certainty is not required in a return as in pleading, (Imp. Shff. 378,)(c) and every fair intendment is to be made in support of the acts of a ministerial officer. He is presumed to comply with his duty until the contrary expressly appeared,(d) and when he returns, the Court will not presume him guilty of an equivoque. The English statute is not confined either to churches or parishes. The proclamation is to be made at the door of the church or chapel of that town or parish, where the land lies, yet a return in the general form given by the precedents has always been holden good. And according to 2 Saund. 43, n. 1, it is enough, according to the modern practice, to return, that the Sheriff h&d made proclamation of the $aid summons according to the form of the statute, §rc.
But should the Court be against the return, we then ask leave to amend, according to the fact, the summons being, in truth, regular.
Another answer to these objections is, that the defendant has a right to avail himself of them, if they are valid, by plea of non-summons, and where a party may plead a matter, he cannot take advantage of it by motion.
[6]*6The Court took time for advisement, which they declared should not prejudice the demandant; hut that he might take the rule they should finally make, as of the quarto die post.
And now,
May 12th—The opinion of the Court was delivered by Woodworth, J.
Free access — add to your briefcase to read the full text and ask questions with AI
[3]*3Radcliff, insisted that the tenant could not avail himself of a defective summons in this manner. The proper course is to object this by plea of non-summons, and support it by wager of law. But here the defendant claims a right to qualify his appearance, and comes to shew that he is under no obligation to appear. His appearance is a waiver of all defects in the return ; authorizes us to treat him as in Court, and to count against him.
Emmet, remarked that where the very question is, whether process shall issue for non-appearance, the only mode of objecting is by way of pointing out the defect which renders his appearance unnecessary. This we have a right to do, at least, as amici curia ;
[4]*4the statute speaks of churches, it means those of the estab* lished religion, and can have no reference to the meeting houses of the dissenters. Hence, it is sufficient to return, in language of their statute, that the proclamation was made at or near the most usual door of the church or chapel of that town or parish where the land doth lie. This must, of necessity, relate to the nearest church within the precinct contemplated by the statute. But the same certainty could not be attained here, where all churches are on the same footing ; accordingly, the phraseology of our statute is different. It provides, that where there is more than one church, proclamation shall be made at the one nearest the' lands ; and if none in the town, then at the nearest church in the county; and as there might have been, and were, for aught that appears, several churches within the 2d ward, where these lands lie, the return should have stated it to be the nearest church in the ward to the lands, or have shewn but one church in the ward. Suppose the proclamation had been made at a church out of the ward ; ought not this also to have been excused by a return that there was no church in the ward ? Nor can the defect here be supplied by intendment or construction in favour of the act of the Sheriff. There was as much room for favourable presumptions in the case of Furnia v. Waterhouse, as here, and yet none were allowed. Nor will the Court intend, from this return, that the service was personal, so as to supersede the necessity of proclamation. Indeed, the summons cannot be a personal one. It must be upon the land, and this appears from Allen v. Walter, (Hob. 133. 2 Saund. 43, n. 1, and vid. also, W. Jones 7, pl. 6.) True, the case in Hobart, was in dower. But this being a proceeding in nature of a writ of right, shews the mode of service applicable to both ; and further, as to the manner of service, they referred to Com. Dig. Process, D. 3. Archbold 421. title, Writs in nature of a writ of right. 2 Saund. 44, n. 4. But if a personal summons be sufficient, this return rather authorises a presumption against, than for one. It is, that; proclamation was made secundum formarn statuti, and it is only in cases of summons upon the land, that the statute rep quires proclamation.
[5]*5Radcliff. It is agreed that this return accords with the English precedents, ancient and modern. A form of the English return may be found in Imp. Shff. 402. 3 Wils. 553. 2 Saund. per Serj. Wms. 43, n. 1, in connexion with id. p. 44, n. 4. ch. 3 pi. 596, The statute does not require a summons upon the land. It is true, this was the ancient practice, and was allowable where every possession was open and notorious, and every man was presumed to occupy his own land. But a personal summons was always sufficient. {Booth on R. A. 4, 5.) In the state of modern possessions it is many times essential, to avoid imposition A summons on the land would be very imperfect in this country, for the purposes of notice ; and where the summons is personal, proclamation is unnecesary. This is required only where the summons is upon the land. As the statute was avowedly for avoiding secret summonses, there can he no motive for proclamation where the summons is personal. As to the church, the statute is merely directory. The same certainty is not required in a return as in pleading, (Imp. Shff. 378,)(c) and every fair intendment is to be made in support of the acts of a ministerial officer. He is presumed to comply with his duty until the contrary expressly appeared,(d) and when he returns, the Court will not presume him guilty of an equivoque. The English statute is not confined either to churches or parishes. The proclamation is to be made at the door of the church or chapel of that town or parish, where the land lies, yet a return in the general form given by the precedents has always been holden good. And according to 2 Saund. 43, n. 1, it is enough, according to the modern practice, to return, that the Sheriff h&d made proclamation of the $aid summons according to the form of the statute, §rc.
But should the Court be against the return, we then ask leave to amend, according to the fact, the summons being, in truth, regular.
Another answer to these objections is, that the defendant has a right to avail himself of them, if they are valid, by plea of non-summons, and where a party may plead a matter, he cannot take advantage of it by motion.
[6]*6The Court took time for advisement, which they declared should not prejudice the demandant; hut that he might take the rule they should finally make, as of the quarto die post.
And now,
May 12th—The opinion of the Court was delivered by Woodworth, J. He remarked that there was nothing in the return, or in the nature of the case, from which to infer a personal service on the tenant. Had such service in fact taken place and been returned, we think the proclamation would have been unnecessary ;(e) but here is evidently the common proceeding by summons on the land, and proclamation. It does not appear that such proclamation was at the church nearest the lands, though at one in the Second ward, where they lie. The return of the Sheriff is, that he caused proclamation to be made at the most usual door of the Episcopal Church, in Beekman-Street, called St. George’s Chapel, in the Second ward, fyc. We think, that to make the return conform to the statute of this state, he should have gone further, and shewn by the return, either, that St. George’s Chapel was the church within the ward nearest the land, or that it was the only church within the ward. No doubt, that where an omission of duty would be culpable, the officer will, in general, be presumed to have done his duty. But we think the rule does not extend to this case. The statute requires great strictness in this proceeding of the officer ; and his compliance with it ought not to be left to inference, but should plainly appear upon his return. The rule for a grand cape is, therefore, refused, and the demandant must proceed by an alias summons,(f) unless St. George’s Chapel was, in fact, the nearest church in the ward. If so, the Sheriff may amend according to the truth.
At the opening of the Court on the 13th, Radcliff men-, tioned that, at his request, the Deputy Sheriff, who had served the writ, was in attendance to amend his return. This was, perhaps, a matter of course under the rule which had been made; but, as it was convenient, he requested, for grea-
[7]*7tei’ caution, permission to amend it in open the immediate direction of the Justices. Court, under
Ulshoeffer and T. A. Emmet, for the tenant, asked to be heard against the principle of the amendment. As it could not be known what disposition the Court would make of the other objections, the attention of the counsel had not been directed to this branch of the discussion. Leave being granted, they contended that no amendment could be allowed in this case. The statute is, that if the summons shall not be proclaimed and returned, then no grand cape to be awarded, but an alias or pluries summons, as the case shall require. The process is not vitiated ; the effect is merely a change of process, and the action proceeds. Now, in circumstances much more unfavourable to the demandant; indeed, where the omission is fatal to his remedy, and even Ms right, the Courts have refused amendments. In Charlwood v. Morgan, (4 Bos. &. Pull. 64,) a motion was made to amend the count in a writ of right, so as to correct the pedigree. This the Court refused, though Mansfield, C. J. said they would have been willing to amend, had not this been a proceeding by writ of right, which he said had always been discouraged, and tenants had been allowed to avail themselves of every advantage to defeat the claims of demandants. And in this all the Justices agreed. And upon the same principle they refused the demandant leave to discontinue. In Maidment v. Jukes, (5 Bos. & Pull. 429,) the Court, on the authority of Charlwood v. Morgan, ordered a side bar rule to discontinue, to be set aside with costs. In Dumsday v. Hughes & Bedford, (3 Bos. & Pull. 453,) the Court refused an amendment of the count, in a writ of right, after demurrer argued, although cases of amendment were cited in formedon and dower, and in common recoveries. This case, refers the strictness or liberality of the Court, in allowing amendments, to the nature of the action. Dower, say the Court, is favoured in the law. But the cases cited shew that the remedy by writ of right has always been holden to be stricti juris. And the Courts have refused amendments, even where the demandant will, in consequence,,be barred by the statute of limitations.
[8]*8Again, this return being defective, the tenant was not bound t° appear. There is no means of compelling his appearanee except by an alias. ' The Court have not now the power’ ^ an amendment, nunc pro tunc, to make the defendant a defaulter by relation, on the quarto die post, and subject him to a gfand cape.
Radcliff, said that the cases in which Courts would discourage remedies were those where the party had a choice between different modes of redress. It is, really, very singular that the legislature should give a remedy, and yet that it should be the duty of the Court to set about defeating it by requiring an almost impracticable strictness, not applicable to any other case. The authorities cited relate to the a- • mendment of the count, or relief by discontinuance, against the omission of & party ; but the application here, is to amend the return of the officer*?/ho served the process. Nor is it competent to object that we are not now on the quarto die post. The delay for advisement was declared by the Court to be without prejudice, and our proceedings are tobe entered nunc pro tunc.
Slosson, observed that the demandant must offer himself the first day, or a ne recipiatur may be entered. He must then appear with a regular return. If the Court had powei to amend on the first day, they cannot do it on the quarto die post. On that day, the return being insufficient, the tenant may depart without being guilty of a contempt.
Radcliff, denied that the omission of the demandant id offer himself, would prevent his being afterwards received to prosecute. It is true, we are demandable on the first day, and if we do not appear, may be shut out by a ne recipiatur. (g.) But it does not follow that we must come with a suffi-
[9]*9clent return, officer. If this be deficient, it is the fault of the
Woodworth, J.
The ancient strictness, which prevailed in these real actioná, has been much relaxed by the late decisions.(h) I remember that at the last term, a default and grand cape were taken, which it was moved to set aside. This was opposed on the ground of the great strictness which prevails in real actions. But the default was set aside. I should say, then, a fortiori, that relief ought to be granted here, in a casé which is a iheré mistake of the officer. There is no difficulty here from the quarto die post having elapsed. The demand of the tenant was made on that day, but opposed for a defect in the return; and the motion has been adjourned from day to day.
Sutherland, J.
It would, indeed, be a disgraceful rale in our jurisprudence, which would forbid an amendment in this mere mistake in form, by the officer, whether the effect be to delay the démandant ór turn him out of Court. As to the difficulty made in point of time, every thing done now, is as if it had been ordéred on thé quarto die post,(i)
Savage, Ch. J.
This application is addressed to the . sound discretion of the Court. And this is the ground on which it is placed, by the cases cited from the English books. It was in the exercise of this discretion, that the application to amend the count, was rejected by the Court of Common Pleas, (j) Admitting the reason Of those cases to apply to [10]*10this case, which is distinguishable as being the mistake of aft °fficeri yet the strictness of the ancient practice has been. disregarded in the modern decisions.
Rule to amend granted.
Radcliff, then, in presence of the Court, and Deputy Sheriff, amended the return, by inserting the words, “ and which church is the church nearest to the said tenements, in the Ward aforesaid,” between the words “ lie” and “ upon.” (k)
Slosson, then said he should appear for the tenant; and he gave to the Clerk in Court a. principe for appearance.(l)
[11]*11Radcliff, thereupon, counted against the tenant, by produring and filing with the Clerk, a written count, and memorandum of warrant of attorney,(m) and giving Slosson, the counsel for the tenant, a copy.
[12]*12Slosson, then produced, arid filed with the Clerk, a specía/ imparlance.(n)
The Clerk was then furnished, by counsel, with this form, to be entered in the minutes of the Court; which was entered accordingly ;
Richard M. Malcom, demandant,) v. ' > George P. Rogers, tenant. 3
May 8ih, 1823. The demandant, Richard M. Malcom, being present here in Court, on motion of Mr. P. W. Radcliff, ■ of counsel, in beítalf of Mr. Doughty, attorney for the said demandant, Ordered, that the demandant’s appearance be and the same is hereby entered ; and thereupon, the tenant having been duly called, appeared in Court, by Messrs. Winter and Bolton, his attornies,and his appearance having been duly entered, the demandant, in open Court, counted against the tenant; and the tenant thereupon prayed a special im[13]*13parlance, until the first Monday of the next term, at the Academy in the town of Utica, in the county of Oneida, which is granted to him, &c. And the same day is given to the demandant, at the same place.
Similar proceedings were had against foiir other tenants, at the suit oí the same demandant.
And vid. Wheeler v. Lampman, 14 John. 481.