Matthews v. Blossom , 15 Me. 400 ( 1839 )

The case was continued for advisement, and the opinion of the Court was subsequently prepared by

Shefuey J.

The first and second sections of the stat. c. 59, point out the manner of serving writs. When a writ of attachment is used the service is to be made by delivery to the party, or leaving at his place of abode “ a summons in form prescribed by law.” And when “ the process is by original summons” the service is to be made by reading the same to the party or by leaving a certified copy at his place of abode. This process being in the form of an original summons was served in the manner prescribed for a writ of attachment; and the exceptions are sustained.

A motion is made to amend the writ by inserting a command to the officer to attach the goods and estate; and thereby in effect to change the writ from one form to the other, for the part relating to the arrest of the body has been abolished, except in special cases.

The legislature having prescribed the form of writs, it has been doubted, whether the Court could regard them as formal in the sense in which matters of form are spoken of in the sixteenth section. That section prohibits the Courts from granting a continuance, or allowing costs when amendments are made by reason of “ defect or want of form only.” Could it have been the intention to regard those matters, the form of which they had prescribed by law, as so immaterial as to authorize the change from one writ to another to be regarded as a circumstantial error, or want of form only ? Admit such not to have been the intention, and the writ is then to be regarded so far as respects the selection of one or the other a matter of substance., By the rules which this Court, being authorized by law, has made, two classes of amendments are allowed. One applies to matters of form only; the other to matters of substance. The fifteenth rule allows amendments in matters of substance on payment of costs, or on such other terms as the Court shall impose. If the form of the writ be regarded as matter of substance, it may then be amended under this rule upon terms. And when the promotion of justice seems to require it, and the rights of third parties are not affected, there does not seem to be any important reason for refusing it.

Amendment granted upon terms.