Merrill v. Barnard, 61 N.C. 569, 1 Phil. 569 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 569, 1 Phil. 569

ANN MERRILL v. HEZEKIAH BARNARD et al.

A mistake in a writ as to the particular Monday in a month upon which the defendant was to appear, held to be immaterial in a case where the bail bond gave the Monday correctly, and the defendants were not actually misled.

The court to which such a writ is returned has power to amend the mistake.

(Goodman v. Armistead, 4 Hawks, 10, cited and approved.)

Motions, to quash and to amend a writ, heard before Buxton, J-, at Fall Term 1867 of the Superior Court of Madison.

The writ was in trespass. It was tested on the seventh Monday after the fourth Monday in April 1867, and directed the sheriff to have the defendants “before the judge of our Superior Court of Law, at the next court to be hold for the county of Madison at the court house in Marshall, on the 7th Monday after the 4th Monday in September next, then and there,” &c.

The bail bond was for the appearance of the defendants “on the 4th Monday after the 4th Monday in September,” which was the correct day for holding the court. The Spring Term is held upon the 4th Monday after the 4th Monday in April.

At the appearance term the defendants moved to quash the writ, for the mistakes committed as to the term at which It was tested, and as to that to which it was returnable. The plaintiff upon the contrary, moved to amend the writ in those particulars.

His Honor declined to grant the former motion, and permitted the plaintiff to amend as desired. The defendants appealed.

Merrimon and Phillips <& Battle, for the appellants.

No counsel contra.

Reade, J.

It would have been sufficient if the writ had required the defendants to appear at the next term of the court, without stating when the court would be held. And then it would have been the business of’ the defendant to find out when the court would be held. The time being fixed by law, and being besides a matter of general notoriety, there would have been no occasion for mistake. We are aware that it is usual to state the time in the writ; i. e., the particuiar Monday on which the court is to be held, and it would not be improper to state the day of the month also, but it is not necessary to state either. It is also usual to state in the attestation clause the term from which it was issued, and the year of American Independence, and the year of Our Lord, but leaving out or misstating one or both of these would not make the writ void, provided it appeared sufficiently certain from some other description when the writ issued. Goodman v. Armstead, 4 Hawks, 19.

The defendants’ bond for appearance was conditioned for their appearance at the proper time; the writ was served more than ten days before court, and they were present in court; so that there was in fact no surprise.

The clerical mistake of misstating the Monday on which the court was to be held, was a proper subject of amendment. His Plonor had the power to allow the amendment, and there was no error in its exercise.

This will be certified, &c.

Per Curiam. There is no error.