Majority
p. 99Bartholemew vs. Chautauque County Bank. ALBANY, Feb. 1838.
Headnote
An original writ like other process, is amendable.Motion to set aside summons because tested in the third Feb. 1838. week of term, and because the si te fecerit securum clause was omitted. The writ was tested on the third Monday of January, 1838, returnable on the thirteenth day of January instant. The plaintiff asked leave to amend. The right to amend an original writ was denied.
By the Court,
The statute gives power to the court to amend any process in any action pending therein. The only limitation is, that process on which a defendant shall have been arrested, shall not be amended in the return day thereof. 2 R. S. 424, § 1 and 3. In Lynch v. Mechanics’ Bank, 13 Johns. R. 127, it was held that an original writ was not amendable. No good reason is perceived why the above statute should not include originals as well as other process. The plaintiff, therefore, may amend the summons as to ifs teste, and may insert a si te fecerit clause on payment of the costs of this motion.