196 amended.90 So if a term or more intervene between the teste and return, it is void.91 But it may be amended as to the name of the chief justice before whom it is tested,92 or as to the place of the teste,93 or of the return.94 It is provided by statute, that "process by which any action shall have been commenced, and on which any defendant shall have been arrested, shall not be amended in the return day thereof."95 A writ returnable "before our justices of our said court" or "before us," ,"97 is voidable only and may be amended. The omission of a seal is erroneous and not void, and therefore amendable.98 It is provided by rule, that "the court will not entertain a motion to set aside the process or proceedings in a cause, on the ground of the misnomer of the party arrested; Misnomer. but will leave him to his remedy, of a plea in abatement,99 Where the ac etiam had been filled up in covenant instead of assumpsit, the court allowed an amendment, although special bail had been put in.100 The words "of a plea of trespass" were formerly held to be material, and it was necessary to insert them in the bill of Middlesex, or latitat; but the description of the plea previvious to the ac etiam is now considered merely as a matter of form, and where it was to answer the defendant in a plea of debt only, and not of trespass, with an ac etiam in debt, the court ordered the bill to be amended by inserting the plea of trespass;2 And in a subsequent case, where the bill of Middlesex was to answer the plaintiff in a plea of debt, instead of 9o 2 Caines' Rep. 63. 4 Cowen. Vol. 2. p. 424. and see 4 Cowen. 49. Rep. 504. "Com. Dig. Abatement H. 14. Burr. Rep. 967. 2 Johns. Rep. 190. 4 Johns. Rep. 309. 96 5 Johns. Rep. 163. 98 1 Wendell. Rep. 17. 4 Cowen. 921 Cowen. Rep. 203. 4 Cow- 550. en. Rep. 156. 93 4 Cowen. Rep. 41. 941 Cowen. Rep. 141. 93 R. St. P. 3. Ch. 7. T. 5. s. 5. 99 Rule 57. 4 Cowen. Rep. 157. 21 W. Black. Rep. 462. 2 Omission of Seal. Writ lost. trespass, and also to a bill to be exhibited, in a plea of trespass upon, the court refused to grant a rule for setting it aside.s Where a writ has been lost or destroyed, the court will order a new writ to be made out, and delivered to the sheriff. But the court will not require an officer to make a false return, to remedy an accident to one of the parties: and where in an action of debt, qui tam, under the statute for preventing usury, the writ, which had been sued out in due time and sent by mail to the sheriff of the county, had been lost or miscarried, and the plaintiff supposing it to have been served and returned, proceeded to file his declaration, &c., the court refused to allow an alias capias to issue, as grounded on a return of non est inventus to the former writ, or to allow a capias to be issued and filed with a return of a non est inventus endorsed thereon, nunc pro tunc.6 32 Saund. 52. a. 43 Johns. Rep. 443. 5 17 Johns. Rep. 346. CHAPTER IL OF THE PROCEEDINGS AFTER THE ISSUING OF THE CAPIAS UNTIL SECTION I. OF THE ARREST AND SERVICE OF THE WRIT. ble to arrest. As a general rule, all persons are liable to arrest; and there Who are li are no personal or perpetual exemptions. There are, however, cases in which persons are temporarily privileged, as on certain days, or during their continuance in a particular office. But as these are not necessary to the understanding of what follows, nor necessarily connected with the progress of the action, they will be more conveniently treated of in a subsequent part of the work.1 duty. When the writ is delivered to the sheriff, he is bound to Sheriff's arrest the defendant, if he can be found; if he return non est inventus, where he might have taken the defendant, but has neglected so to do, he is liable to an action for a false return.2 'See post, Vol. 2. P. 3. "Of Privilege from Arrest.” VOL. I. 2 Esp. Rep. 475. R. St. P. 3. Ch. 7. T. 6. s. 77. Vol. 2, p. 440. 47 Return day latest period. Cannot be made on Sunday. By whom the arrest may be made.] An arrest may be made by the sheriff, or his under-sheriff or deputy, or by some person specially authorised by the sheriff or under-sheriff, to execute the writ in the particular instance. Where no bail is required, the sheriff or deputy may serve the writ, in a case in which he himself is plaintiff; and so in a similar case, he may authorise another, who is plaintiff, to serve a writ in his own cause. But whether, on such an arrest, the defendant can be held to bail, it seems is a doubtful question.5 We have before seen, that where the sheriff is a party, the process may be executed by one of the coroners. When and where.] The return day of the writ is the latest period allowed for making the arrest ; and it can only be made in the county to the sheriff of which it is directed. Process cannot be served on Sunday. It is provided by statute, "that no writ, process, warrant, order, judgment, decree, or other proceeding of any court or officer of justice, shall be served or executed, upon the first day of the week, called Sunday, except in cases of breach of the peace, or apprehended breach of the peace, or for the apprehension of persons charged with crimes and misdemeanours, or the violation of any of the provisions of this and the preceding article, and except where such service shall be specially authorised by law" and that "the service of any such process or proceeding, in all other cases, shall be utterly void, and shall subject the party offending to damages, at the suit of any person aggrieved." 99101 35 Johns. R. 137. 4 4 Johns. R. 485. 8 3 B. & A. 408. 7 Taunt. 233. Doug. 384. 1 Term. Rep. 187. 2 5 Ib. Cro. Car. 416. 19 Viner. New. Rep. 167. 1 Archbold. 79. 443. note. Moore 547. Ante, p. 357. R. St. P. 3. Ch. 7. T. 6. s. 84. 85. Vol. 2. p. 441. 79 Johns. R. 117. Burr. Rep. 812. 1 Term Rep. 191. 1 H. Black Rep. 222. 101 R. St. P. 1. Ch. 20. T. 8. s. 69. Vol. 1. p. 675. The titles of the articles referred to are "Of the disturbance of religious meetings," and "Of the observance of Sunday." The service of a writ on Sunday is void, even though the defendant endorse his appearance; and notice of retainer from an attorney is not a waiver of the irregularity.9 When dehe be retaken fendant may After a voluntary escape of a defendant in custody, he can not be attached on a Sunday; but after a negligent escape, may: for this is not an original taking, but the party is still in custody upon the old commitment.10 on Sunday. not be ar own house. Extent of privilege. No man can be arrested in his own house, provided the A man canouter door be shut; but if the outer door be open, the officer rested in his having gained admittance, may break open an inner door to arrest the defendant;" and the privilege does not extend to a store or barn, disconnected from the dwelling-house, and forming no part of the curtirlage.12 If a man let out part of his house, reserving for himself and occupying an inner room, an officer entering through the outer door, being open, may break open the inner door to arrest him.13 But it has been decided that he cannot break open the inner doors of the house of a third person, on suspicion that the defendant is there, in order to arrest him.14 If the arrest be once made, so that the officer but touch the defendant with the end of his finger, he may then break open the house to seize him." 15 ry to touch How.] If the defendant submit to the arrest, it is not ne- Not necessacessary that the officer should seize or touch his body;16 but it defendant. seems that if he resist or flee, or be not completely in the of power, it cannot be an arrest, unless the officer lay hold ficer's 9 20 Johns. Rep. 140. 1 Cowen. Rep. 209. 3 East. 155. 10 Ld. Raymond. 1028. S. C. Salk. 626. pl. 7. Salk. 78. n. a. Barnes. 374. 5 Term. Rep. 25 6 Mod. 95. "5 Rep. 91. Cowp. 1. 1 Johns. Rep. 127. 16 Johns. R. 287. 12 1 Sid. 186. 1 Heb. 698. S. C. 16 Johns. R. 287. 13 5 Johns. Rep. 351. 17 Johns. Rep. 127. sed vide 3 Bos. & Pul. 223. and Cro. Jac. 555. 14 6 Taunt. 246. 156 Mod. 173. Salk. 79. pl. 2. T6 |