Majority
p. 233Morrell against Waggoner. moved to set aside t h e capias ad respondendum issued in this cause. He objected, 1. That the return of the writ was not according to the statute, (24 sess. c. 75.) which directs all process to be made returnable “ before our justices of our supreme court of judicature,” &c. and was therefore void. 2, That by the ac etiam clause, it appears to be an action on a statute, and the title of the statute is not indorsed on the writ. insisted, that the writ was not void, but voidable merely, and asked leave to amend. He said, that the action was not founded on any statute, but was a common action of trespass quare clausum fregit. The words in the ac etiam. clause, “ according to the statute,” &c. are inserted, merely to show that the plaintiff might hold the defendant to bail,
Headnote
A wr'»t jiiutie returnsbie 66 be^otiiy! be a", RIKER, for the defendant,
It was made returnable “ before us, at,” &c. to answer, &c. and to “ a bill of the plaintiff against the defendant for breaking the close of the plaintiff, and taking and cutting the. apple-trees of the plaintiff, to the value of 1,000 dollars, according to the statute in such case made and provided, then and there to be exhibited,” &c.
Boyd, contra,
We have decided that such a writ is Voidable only. The case of Drake v. Millar (Coleman’s Cases, 85.) was contrary to the existing rules on the subject, and ought not to govern, unless in a case precisely similar, in every respect. (See ante, Williams v. Rogers, 166.) The plaintiff may amend, on payment of costs.