Parke v. Heath & M'Cotter

15 Wend. 301

• Court: New York Supreme Court
• Decided: May 15, 1836
• Status: Published

Opinion

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 terms as shall be just,” <§>1; but “ process by which any action shall have been commenced, and on which any defendant shall have been arrested, shall not be amended in the return day thereof.” § 3. Chandler v. Bicknell was decided long before the statute was passed, and is no longer applicable. Mesne process tested out of term is not now void, as it was before, but voidable only; and the court will upon proper terms allow it to be amended, whenever that course is requred “ for the furtherance of justice.”

As the process was voidable only, and not a nullity, the remedy of the defendants was by motion to set it aside, and the plea is bad. It sets up a mere question of practice, which cannot in general be pleaded. Nichols v. Nichols, 9 Wendell, 263. Independent of this rule, if the process was not absolutely void, the arrest was legal, and the bail-bond valid.