Ilsley v. Harris

[A motion for a rehearing having been granted in this *100case, the following further opinion was filed on the 4th day of June, I860.]

Paine, J.

A motion for a rehearing was granted in this case, for the reason that it was formerly decided upon the ground that the defendant had waived all objection to the order of arrest, by putting in bail; overlooking the specific provision of the code, that the motion may be made at any time before the justification of bail. Under that provision it would seem that the motion was in time. But we are still of the opinion that it was properly overruled. For although we think an order of arrest is a process within the meaning of the constitution, which requires all process to run in the name of “ The State of Wisconsin,” yet it was a matter of form, and the defect was amendable. The authorities cited by the counsel for the respondent on the rehearing, established the position that an-amendment may be allowed to cure a defect arising from the non-observance of a constitutional direction, as well as of a statutory one. We think the court should have allowed an amendment of the order, and not have vacated it for that reason, and, therefore, we affirm it as before.

Note. — The authorities referred to as cited hy counsel, are Parsons vs. Swett, 32, N. H., 87; Ripley vs. Warren, 2 Pick., 592; Lovell vs. Sabine, 15 N. H., 37; Marston vs. Bruchett, 9 id., 336, 349; Whiting vs. Beebee, 7 Eng., 536; Reynolds vs. Donnell, 19, N. H., 394; State Bank vs. Buckmaster, Breese, 133; Norton vs. Dow, 5 Gilm. 459; McCormick vs. Meason, 1 S. & R., 97.