Heath v. Wright — 1 How. Pr. 250

Majority

p. 250

Chauncy Heath vs. Benjamin Wright.

Headnote

A writ of error served after return day, may be amended by making it returnable subsequent to the return day, on giving a new bond and payment of costs.

Motion by defendant to set aside writ of error.—The defendant moved on the ground that the writ was not served on the clerk of common pleas until after the return day. The writ was tested, first Monday of May, and returnable, first Monday in July; it was served and filed, July 30, 1845.

D. Burwell, jDefts Counsel. B. Wright, Mty in person.

M. T. Reynolds, Plffs Counsel. Wm. L. Sherman, Plffs Mty.

Denied the motion to set aside the writ, and allowed the plaintiff to amend, so as to make the return day of the writ subsequent to the day when it was served, to wit, to test it of July term and make it returnable in October term, plaintiff to give a new bond, and pay costs of the motion.