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People v. Singer

1 Cow. 41 Court N.Y. Sup. Ct. English

Contents

Majority

p. 41
The People against I. Singer. The Same against I. Singer and H. Singer.

Headnote

The test an# return of a writ, issued and delivered to the Sheriff cannot be altered ho as to» make it returnable at a subsequent term?»
E. Barnes, moved to set aside the attachment in the first cause, with the recognizance taken therein, and on which the last suit had been commenced, with all subsequent proceedings, for irregularity. The attachment was originally returnable in October term last, at the Academy in the town of Utica. I. Singer, the defendant, not being found hy the Deputy Sheriff, who held the attachment, until after the return day, he altered the test to October term, and the return to January term last, at the Capitol in the city of Albany, which he had been instructed to do' by the plaintiff’s attorney. On the altered writ he arrested I. Singer, who, with JI. Singer, .as bail, thereupon entered into a recognizance to appear at the return day thereof. At the last January term, I. Singer made default in appearing, and the recognizance was, on motion, estreated, and the last cause was instituted for enforcing it.
Barnes,
cited Filkins v. Brockway, ( 19 John. Rep. 170 ,) where it is decided that a seal cannot be thus used a-second time. That having been once' used it functus officio ; and cannot, as here, be good for an alias attachment.
Collins, contra,
relied on the case of Sloan v. Wattles,
John. Rep. 158,) as a case in point, against the application.
p. 42
The Court granted the motion ; holding the rule laid dowA in Filkins v. Brockway, as applicable to this case. But they required the defendant, I. Singer, to stipulate, not to bring an action of false imprisonment.- .

Rule accordingly.[1]

(b) (b) In Ross v. Luther, Sheriff, &c. (May term, 1820,) which was an action of debt for an escape, it appeared-the capias had been before issued and put into the hands of the Coroner, hut was not served. The plaintiff’s attorney took it back^ and afterwards altered the test and; return, and issued it again, when it was served on the defendant. An application- was made to this,Court to set aside the writ for irregularity ; hut the Court held' tiio proceeding regular, and refused the motion.