Lynch v. Mechanics' Bank , 13 Johns. 127 ( 1816 )

Per Curiam.

The two exceptions taken to the original writ, and upon which the present motion is founded, are, that it should have been in the nature of a summons, and not by pone or attachment; and that it should have been tested On the day it was issued, and not on the last day of the preceding term.

With respect to the first exception, it is unnecessary to pursue the very extensive range taken by the counsel on the argument. If this was an action against a private person, there can be no doubt, from the nature of the demand, that the form adopted in this case would be correct. The demand being uncertain; the general rule is, that where the demand is certain, the original writ is in the alternative, and is called a precipe, commanding'the defendant to do the thing required, or show why he has not done it; and this is the process by summons. Where the demand is uncertain, the writ is called a si te fecerit securum, and is peremptory, commanding the sheriff to cause the defendant to appear in court, without any option given him to do the thing required, as in the precipe; and this is the process by pone, which directs, the sheriff to put by gages and safe pledges, the defendant to show wherefore, &c. No precedent of an original writ against a corporation has been shown. But in all the elementary writers, and in all the books of practice, which treat of the proceedings against corporations, it is laid down as the universal rule, that the process must be by summons, and not by attachment ; and such would not have been the language of the books, if the same form, in all cases, was to be pursued in proceedings against corporations- as against individuals. The alteration in the writ is very plain and simple, instead of the words “ then put 7 „ , 7 ,, „ . , , 7 by gages and safe pledges, ’ <yc., insert, then summon by good summoners, 8rc. In this respect, therefore, the original writ is defective, and it is not amendable. There is nothing to amend by. It cannot be considered a clerical mistake. The writ is conformable to the precipe. (1 Salk. 52.) The test of the writ depends entirely upon the construction to be given to the statute lately passed on that subject. (Sess. 38. ch. 38.) This statute declares, that all original writs which, according to any law,usage, or custom, have hereto issued out of the court of chancery, &c.y shall hereafter issue out of, and under the seal of, the court in which such writ may be returnable, and be tested in the name of the chief justice, first, or senior judge, of such court, observing, in other respects, the form now in use ; and giving to this court the like power which the court of chancery had, to make and devise new writs. This statute is rather obscurely worded, and it is a little difficult to say what, precisely, was meant by the expression, “ observing, in other respects, the form now in use.” There can be no doubt that, according to the established course of proceedings in the court of chancery, with respect to original writs, they must be tested after the cause of action arises, and the day they .are actually issued. Although the statute might well warrant the construction, that the original writ was still to have á true test, in the same manner as when it issued out of chancery ; yet this is not the obvious and necessary interpretation to be given to the act; and it is much more fit and proper that it should be tested like other process issuing out of this court, and such was, most likely, the intention of the legislature. To assimilate it as nearly as may be to other process, in ma tters that may be considered in a great measure formal, is less liable to lead to mistakes in the issuing of the writ. And as it is the universal and established rule, with respect to all other process, that it should be tested in term time, we think it the most fit and proper construction to be.given to the statute, that it was intended to apply the same rule to the test of original writs. In this respect, therefore, the writ is correct, but must be quashed upon the first exception, taken.to it.

Motion granted.