Pollard v. Wilder

The opinion of the court was delivered by Hebard, J. The statute in force at the time the action is commenced, and not the statute in force at the time of the alleged fraudulent sale, must determine what certificate is to be made upon the writ by the magistrate. The statute, in this respect, goes merely to the remedy, and not to the right. And upon this point the statute is direct and positive. The Revised Statutes, page 304, sec. 9, provide that, “ when any action shall be commenced in any of the cases mentioned in this chapter, (he clerk, or magistrate, signing the writ, shall enter upon it a true minute of the day, month and year when the same was signed. This provision is evidently made with reference to the time when the action is commenced, and has no reference to the time when the alleged fraudulent sale took place; and a certificate of the day, month and year when the [52] writ was exhibited is not a compliance with the statute. The statute requires a certain certificate to be made, and we might as well come to the conclusion that none was necessary, as that a different one would answer. The next inquiry is, whether this certificate, thus defectively made, was subject to be amended. The amendment proposed was not matter of form, — it went to the whole substance of the certificate. The statute in criminal proceedings is, that the magistrate shall make a true minute of the day, month and year when the complaint, information, or indictment, was exhibited; but in ease of a civil action, brought to recover a penalty, the magistrate is required to enter upon the writ the time when it was signed. These requirements in the two cases are different and distinct, and are positive requirements of the law; and a certificate of the time when the writ was exhibited is no part compliance with the law which requires a certificate of the time when the writ was signed; — and to permit the magistrate, after the writ was entered in court, to alter the certificate in that respect would be in effect to permit him to make a certificate, where none had in fact been made. The only remaining point to be considered, and the principal one in the case, is, whether the motion of the defendant to have the action dismissed came too late. The action was entered in the County Court, May Term, 1841, and was there continued to the November Term for trial; and at the November Term the defendant moved the court to dismiss the action for want of a proper certificate .upon the writ. The provision of tihe statute is, that “every bill, complaint, information, indictment, or writ, on which a minute of the day, month and year shall not be made, as provided by the two proceeding sections, shall, on motion, be dismissed ; ” (Rev. Stat. chap. 67, sec. 10.) The phraseology is very materially changed from the statute of 1797. The phraseology in that statute is that “ every bill, complaint, information, indictment, or original writ, on which a minute of the day, month, and year shall not be made, as aforesaid, shall be void, {Slade’s St. 289, § 5.] The difference between the proceedings feeing void, and being liable to be dismissed on motion, cannot be disguised; and so palpable a change of the language of the Revised [53] Statutes from the old law can hardly be supposed to be accidental. If the writ is void, it of course is subject to the consequences of its imperfections at any stage of the proceedings. If the writ is not necssarily void, but possesses some imperfection that must be met by an introductory proceeding, there must be a time in which the notice of the court is to be called to the defect. This motion to dismiss must be regarded in the nature of a. plea in abatement, and be interposed before an imparlance in the case, and agreeably to the rules of court regulating such pleas, or it must be in the nature of a motion in arrest, and be interposed after verdict. But it does not seem to assimilate itself to the latter, that motion being founded upon some supposed insufficiency of matter, set forth in the declaration, or pleadings, to sustain a judgment. This motion to dismiss, therefore, under the present provision of the statute, as it regards the effect upon the action, must be regarded in the nature of a plea in abatement. This certificate upon the writ is a statutory requirement, to be sure, but, like the statute requiring recognizance to be taken upon the issuing a writ, a want of it must be taken advantage of in proper time, — and if not so taken advantage of, it is understood to be waived. The statute provides, that, if a writ shall issue without a proper recognizance being taken, on motion it shall abate; but that motion must be made in conformity with other pleas in abatement, — which is before there has been a general imparlance. 1 Tidd’s Pr. 462. “ When the writ is de facto a nullity, so that the judgment thereon would be erroneous, then the writ is de facto abated; — but when the writ is not abate-able, it must be abated by pleading in time.” 1 Bac. Abr. 10. Judgment reversed, and cause remanded for trial.