Dearborn v. Twist

By the court. According to a long established usage in this state, the clerks of the courts prepare, what are usually called, blank writs ; to which, they affix the seal of the court and their own signature, and then deliver them to the attornies of the court, who use them, for the commencement of actions, by filling up the blanks, inserting the names and additions of the parties, the time of the sitting of the court to which they are to be returned, the declaration, teste, &c. This usage has been-found very convenient in practice, and has been attends cd with very few inconveniences. But, like most other things, it has sometimes, been abused. It has been said that, in some cases, writs hove been made out without a blank, and the seal of the court, and the signature of the clerk taken from the writs which have been used in other suits, and placed upon the writs-so made out. It has also been said that, in other cases, writs which have been used in one case, are, by erasure; and interlineation, made to answer in another case. Emergencies may be easily imagined, in which, expedients, of this kind, might be adopted, to commence a suit,, without casting the slightest suspicion of any impure or improper motive upon him who adopted them. But it has been said that instances have occurred, in which it has been found that these expedients were adopted merely to save the expense of the blank ! When practiced with such a motive, every upright and honorable mind must view it, not only as a fraud upon the clerks of the [46] court, but as displaying a mean and sordid spirit, winch, when found in a member of a liberal and learned profession, deserves the severest rebuke. hi addition to the objection that such practices may be thus abused, there is another ; that they tend to give, to the process and files of the court, an unseemly and slovenly appearance, which ought to be avoided. When a blank has been used for the commencement of an action, and the writ has failed to be served for the term to which it was originally returnable, it has always been the usage, to alter the writ, and make it returnable at another term ; and no reasonable objection to this usage is perceived. 18 Johns. 3; 13 ditto, 158; 4 N. H. Rep. 386; 1 Barnwell and Creswell 111. It is not known to have been the practice to use, for the purpose of commencing an action in one court, blanks issued to be used as the process of another court, where the same persons happened to be clerk of both courts. And we are inclined to think that no mesne process ought to be pronounced valid, in any court in this state, unless it is made upon a blank writ, signed and sealed by the clerk, and which has been issued, by him, to be used as process in the court named in the blank, and which has not been used in the commencement of any other suit. This is a plain and simple rule, which will cure all irregularities on this subject, and which can. never be inconvenient to those, who take due care to be always provided with a proper supply of blanks. We are, on the whole, of opinion that the writ, in {.fin-case, must be quashed.