Stone v. Martin

2 Denio 185

Opinion

By the Court, Bronson, Ch. J.

The writ was irregular in consequence of the mistake in the return day; but it is amendable. The distinction is between mesne and final process. Mesne process against the body, returnable out of term, is void, and cannot be amended. (Miller v. Gregory, 4 Cowen, 504. And see Chandler v. Brecknell, id. 49.) But final process against the body, returnable out of term, is voidable only, and may be amended. (Cramer v. Van Allstyne, 9 John. 386.) The legislature has made the same distinction. (2 R. S. 424, § 1 to 3.) If there were nothing else in the case, the defendant would be allowed to amend on payment of the costs of the motion. But the plaintiff wants' relief; and on grounds which it is unnecessary to mention, the ca. sa. will be set aside, and the limit bond ordered to be given up, on the plaintiff’s stipulating not to bring any action; and the costs of the motion will be left to abide the event of the suit.

Ordered accordingly