Ames v. Weston

The opinion of the Court was drawn up by

Weston C. J.

’The writ in question, as it stood before it was amended, was dated the twenty-fifth day of November, 1836, and was made returnable to the Court of Common Pleas, next to be holden at Bangor, within and for the county of Penobscot. As that court was, by a general law of the State, to be holden on the first Tuesday of January, the return day must have been understood by the officer who served the writ, arid by the defendants. This is sufficiently indicated by the appearance of the latter, and the regular return of the writ.

In most of the cases, cited for the defendants, the writ was made returnable on a w'rong day. As in Wood v. Hill, 5 N. H. Rep. 229, on the first Tuesday of August, instead of the third. In Bunn v. Thomas, & al. 2 Johns. 190, a writ, dated fMay twelfth, was made returnable on the seventeenth of May next, passing by one or two intermediate terms. So in Burk v. Barnard, 4 Johns. R. 308, the writ being dated 1808, instead of 1809, the return day was apparently passed, when it was served. In Bell v. Austin, 13 Pick. 90, the writ was made returnable tbe first Tuesday of April, whereas the court was holden on the fifth Tuesday of March. In all these cases, the writs were held not amendable. But they differed essentially from the one before us, which was made returnable on the right day, but not with so much particularity, as the statute form must be understood to require. Hall v. Jones, 9 Pick. 446, Bailey v. Smith & al. 3 Fairf. 196, and Dearborn & al. v. Twist, 6 N. H. Rep. 44, turned upon the distinction necessary to be observed, between the seal and process of one court and another.

In this case, the parties, the cause and the court were so plainly indicated, that they could not be misunderstood ; and it appears to us to fall very clearly within the power of amendment, expressly given to the court by statute.

Exceptions overruled,