Parke v. Heath & M'Cotter — 15 Wend. 301

Majority

p. 301

Parke vs. Heath & M’Cotter.

Headnote

A capias tested out of term may be amended; but if returnable out of term, it is void and cannot be amended.

A bail-bond taken on an arrest under a capias tested out of term is valid, and the defect in the process cannot be taken advantage of by plea. The remedy is by motion to set aside the process.

Demurrer to plea. This was an action on a bail-bond. The defendant pleaded that the capias, by virtue of which the defendant in the original action was arrested, and under which arrest the bail-bond was given, was tested out of term, to wit, on the 10th June. The plaintiff demurred.

J. H. Boyd, for plaintiff.

J. R. Smith, for defendant.

By the Court,

If the capias had been returnable out of term, it would have been void, and could not be amended. Miller v. Gregory, 4 Cowen, 504. 2 R. S. 424, § 3. The same rule was laid down in relation to process tested out of term, in Chandler v. Bicknell, 4 Cowen, 49. But the statute already referred to has provided for this case, and mesne process tested out of term may now be amended. “ The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just,” <§>1; but “ process by which any action shall have been commenced, and on which any defendant shall have been arrested, shall not be amended in the return day thereof.” § 3. Chandler v. Bicknell was decided long before the statute was passed, and is no longer applicable. Mesne process tested out of term is not now void, as it was before, but voidable only; and the court will upon proper terms allow it to be amended, whenever that course is requred “ for the furtherance of justice.”

p. 302

As the process was voidable only, and not a nullity, the remedy of the defendants was by motion to set it aside, and the plea is bad. It sets up a mere question of practice, which cannot in general be pleaded. Nichols v. Nichols, 9 Wendell, 263. Independent of this rule, if the process was not absolutely void, the arrest was legal, and the bail-bond valid.