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Jackson v. Tanner

18 Wend. 277 Court N.Y. Sup. Ct. English

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p. 277
Jackson vs. Tanner.

Headnote

In action by scire facias, no declaration is necessary; the plaintiff after appearance of the defendant may amend of course, the same as in case of an ordinary declaration, and the amended scire facias need not be sealed.
[527] This suit was commenced by scire facias. The defendant demurred to the same. The plaintiff entered a rule to amend as of course, and served an amended scire facias on the defendant’s attorney, which was disregarded by the defendant’s attorney, and the plaintiff’s default for not joining in demurrer entered. The plaintiff and defendant made cross-motions: the first, to set aside the default; and the second, to set aside the amended scire facias, because not sealed.

By statute, the plaintiff may require the defendant to plead to declaration is necessary. (2 R. S. 579.) The writ itself is treated both as process and a pleading. It is substantially a declaration. The defendant in this case has so treated it by demurring to it. No one ever demurred to a writ. If a writ as process is irregular, the motion is to quash or set it aside, or to supersede; but if the writ is a substitute for a declaration, then it should be treated as such, and subject to the same rules, This proceeding is entirely anomalous; but. there seems to be no more impropriety in amending a writ as a declaration, than there is in pleading to it as such. Considered as a pleading, there is no necessity for a seal to the amended writ; the seal is necessary only when it is to be used as process. The writ in this case has performed its office in that respect, before it was returned and filed; and having been demurred to, was treated by the defendant as a declaration. He ought «not, therefore, to object that.it is not to be treated as a declaration. The 23d rule permits an amendment of a declaration in the manner in which, this was dong. the writ, and no

The motion to set aside the amended writ should be denied; and the motion to set aside the default should be granted—but as this is a new point, without costs.