Townsend v. E. B. Stoddard & Co.

[431] By the Court. McDonald J. delivering the opinion. [1.] The Sheriff showed no cause against the rule to make him and his sureties special bail for the defendant, and having been in default in this respect, as appears by the recital in the order absolute making them special bail. [2.] In regard to (he motion to amend the declaration and process, it is sufficient to say that they were both amendable by statute. The time of holding the Court had been but recently changed when the process was issued, and the Acts had not been published; yet, as the Legislature had made no provision for process issued during the time intervening the passing of the Act and its publication, it must be considered that the defendant was required, by the process, to appear at a time different from that fixed by the law. But he appeared at the legal time of holding the Court, and at which the process ought to have required him to appear, and actually by his counsel moved in the cause. The Court heard his motion and decided upon and ordered both declaration and process to be amended. The decision is in harmony with the spirit of the statute of amendrhents, and the defendant is in no manner prejudiced by it. In fact, his appearancej was a waiver of defects and errors in the process calling him to the Court. Judgment affirmed.