Converse v. Damariscotta Bank , 15 Me. 431 ( 1839 )

The opinion of the Court was afterwards drawn up by

Weston C. J.

As the writ originally stood, it would not justify the service, but by amending it, so as to reduce the ad damnum below one hundred dollars, the service might be justified ; and we are of opinion the Judge might allow that amendment. It has been decided that the ad damnum is amendable. McLellan v. Crofton, 6 Greenl. 307. It has been determined, that a constable has no authority to serve process in a civil action, unless it is directed to him. Wood v. Ross, 11 Mass. R. 271; Brier v. Woodbury & al. 1 Pick. 362. Yet it has been decided, that where a constable had served a writ, not directed to him, the writ might be" amended, by inserting such direction, by which the service would be made good. Hearsey v. Bradbury, 9 Mass. R. 95. There is no reason, which could justify the amendment in that case, which does not apply with equal force to this.

As to the teste, there is undoubtedly a distinction between original and judicial writs, the latter being more perfectly under the control of the Court, than the former. Hence in judicial writs, amendments have been allowed, which in original writs would have been refused. Yet it is the uniform practice of the Courts to allow the latter to be amended, in matters of mere form. And indeed this is expressly required by law. Statute of 1821, c. 59, § 16. The Seal of the Court, which gives solemnity and authenticity to its process, has been held to be matter of substance. Bailey v. Smith, 3 Fairf. 196. And the indorsement of a writ, which is for the security of the defendant, cannot be regarded as a matter of form. But the teste of a writ, in the name of a Justice of the Court, we do hold to be a matter of mere form. In Ripley v. Warren, 2 Pick. 592, Parker C. J. says, “ nothing can be more precisely mere matter of form, than the teste of a writ. We all know that in practice, it is considered wholly insignificant.” And this the Court in Massachusetts felt constrained to regard it, although the requirement as to the teste formed a part of their constitution. It was not here held of quite enough importance, to be inserted in our own. We are entirely satisfied, that the amendment was. within the discretion of the Judge.

Exceptions overruled,