Parkman v. Crosby , 33 Mass. 297 ( 1835 )

Wilde J.

delivered the opinion of the Court. Two objections are made to the tenants’ title : 1. That the writ of attachment under which they claim was rendered null and void by reason of certain erasures and alterations made therein without authority ; and 2. If not so, that the same was void because several terms of the Court of Common Pleas intervened between the date and the return day of the writ. The first objection has been recently considered in the case of Gardner v. Webber, in the county of Norfolk, in which a similar objection was raised ; and it was decided, after a full argument, that such objection could not be sustained. No new reason has been urged in the argument of this case, to raise a doubt of the correctness of that decision. The question is one of practice, which we apprehend has long been considered as established and regular by the profession generally, and although we are not aware of any decision upon the question in this Court before the case of Gardner v. Webber, yet several cases are recollected in which the like questions were raised in the county courts of Common Pleas, and the alterations were held regular. Then when it is considered that the practice has prevailed for a great length of time, in all parts of the Commonwealth, as I think it has, it must be presumed to have been sanctioned by the Court, and ought not now to be disturbed. Rules of practice, like laws, ought not to be changed so as to have a retroactive effect, nor unless some good reason can be given for the change. It has been said, that the practice is against law, and of dangerous tendency, because it facilitates secret attachments on real estate, and may defraud the clerks of their fees for blank writs. Such attachments, how'ever, are legal ; and although frequent attempts have been made in the legislature for the last forty years to change the law, and to require such attachments to be registered, yet no such change has been made ; and the Court will not modify the rules of practice with a view to throw any obstacles in the way of parties in the exercise of their legal rights. It has been said, also, that the sheriff is commanded in a writ of attachment to serve and return it at the return day, and that after the writ comes to his hands the plaintiff has no power to countermand the command in the writ. But this position is clearly untenable ; for the sheriff is bound to follow all lawful directions of the plaintiff, as to the mode oi service, whether to attach sufficient or hold to bail, or to make a mere formal attachment. And unquestionably, before the writ is served, the plaintiff may forbid the service, and the sheriff is bound to obey. So he may forbid the arrest of the debtor on a capias or execution ; and if the sheriff should make an arrest in defiance of the prohibition, he would be liable for false imprisonment. But if it were otherwise, yet if the plaintiff forbids the service, and the service is not made, or is not completed after noting an attachment, the plaintiff may sue out a new writ returnable to the next term and whether the attorney makes use of a new blank, or to save labor alters the date and return day of the old writ, seems to be quite immaterial. Certainly there is no illegality in such alteration, nor can any one be injured thereby, unless the clerk may be deprived of an inconsiderable profit, too inconsiderable to be regarded so long as no complaint is made by that officer.

As to the second objection, it has been insisted by the demandant’s counsel, that a writ of attachment not made returnable to the term next ensuing the teste, is a mere nullity. On the other hand it has been contended, that the teste of the writ in this case was a mere mistake, and that the process was not irregular and void, but at most was only erroneous ; and that ♦be mistake is cured by the statute of jeofails.

In the case of Parsons v. Loyd, 3 Wils. 341, it was decided that a capias ad respondendum tested in Trinity term and returnable in Hilary term following, was irregular and void; and the plaintiff in that writ was held liable in an action of trespass for false imprisonment. But in that case no mistake in the teste was alleged ; but on the contrary it was alleged and admitted by the pleadings, that the capias was sued out in Trinity term, and was afterwards, on motion, discharged and set aside for irregularity. In the present case it has been proved by parol evidence, that the teste was left unaltered by mistake, and that the writ was sued out and made returnable to the proper term. We think this parol evidence was competent to prove the mistake, and was rightly admitted The like evidence was admitted in Olmsted v. Hoyt, 4 Day, 436 ; and there seems to be no good objection to such evidence. We consider, therefore, that the mistake is satisfactorily proved, and that the writ was made returnable at the next term after it was sued out.

These facts being established, we think that the writ cannot upon any legal principles be treated as a nullity. A writ does not necessarily take effect at the day of its date or teste, but from the time it is actually sued out, or from the time of its delivery to the officer, or the time of its service ; and in whichever way this writ may be considered, it was regular The teste is prima facie evidence of the time when the writ was sued out, but it is not conclusive ; and the actual time when the writ was sued out and delivered to an officer, may be shown, and upon the same principle that the time of the delivery of a deed may be shown, when it becomes necessary to ascertain the time when a deed or contract took effect. The mistake therefore in the teste is cured by St. 1784, c. 28, § 14 ; the language of which is very comprehensive. It is enacted, that no summons, writ, declaration, process, judg ment, or other proceedings in the courts, or course of justice, shall be abated, arrested, quashed or reversed for any kind of circumstantial errors or mistakes, when the person and case may be rightly understood by the court, nor through defect or want of form only; and the court on motion may order amendments. If the mistake had been taken advantage of in season, the court would have allowed an amendment. As this was not done, and the defendants in the action consented to judgment against them, the mistake is cured by the statute. This is conclusively settled by the cases cited by the tenants’ counsel, and by the whole current of the authorities. The case of Olmsted v. Hoyt, 4 Day, 436, is in all respects similar to the present case as to this point, and it is supported by the English decisions, and those of New York, and by this Court in Livermore v. Boswell, 4 Mass. R. 437. In that case the return of the officer was dated November 26, 1806, and the writ was dated by mistake on the 25th of December of the same year, and was returnable, by the terms of the writ, in December 1807 ; but the writ was actually returned and entered at the December term 1806. The defendant moved in arrest of judgment; but the Court held that the mistake was cured by the defendant’s appearing and pleading the general issue.

The English cases are full on this point, and particularly where the objection is to the irregularity of process. The rule is, that a defendant who complains of irregularity of process, must, if he has an opportunity, apply to have it set aside before the plaintiff has taken any further step in the cause. The case of Downes v. Witherington, 2 Taunton, 242, is a strong case in support of this position. It is clear also, that if the defendant in the action cannot, after judgment, take advantage of the mistake in the writ, his grantee cannot impeach the proceedings and set aside the judgment in this action, unless he can show fraud and collusion ‘between the parties ; which is not pretended ; and we think it equally clear that he could not reverse the judgment on a writ of error, for the reasons already stated.

The mistake in the date of the writ is clearly proved, and s cured by the statute ; and the alterations complained of are sanctioned by long practice, in which we can perceive no illegality. So that neither of the objections to the tenants’ title can in our opinion be maintained.

Demandant nonsuit.