Abbott's Practice Cases Volume 8 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1870 edition. Excerpt: ...has been repeatedly held that the marine and other courts of inferior jurisdiction have the same general power to allow amendments that courts of record possess (Cooper v. Kinney, 2 Hilt., 12; Perry v. Lyman, 22 Barb., 139; Bruce v. Benson, 10 Wend., 213; Ageda v. Faulberg, 3 E. D. Smith, 178; Near v. Van Alstyne, UWend., 230; Fulton v. Heaton, 1 Barb., 552). If, therefore, this had been mesne process, or if the amendment had been allowed in any pleading or proceeding, after the court had acquired jurisdiction, the power of the marine court to order the amendment could not be questioned. But this attachment was Talcott v. Rosenberg. original process, by the service of which the court was to obtain jurisdiction of the person of the defendants; and as inferior courts must acquire their jurisdiction strictly in the manner prescribed by statute, I have had grave doubts as to the power of the court to amend it. But on the other hand, it may be said, that as the language of both the Revised Statutes and of the Code, declaring that "any process, &c," may be amended, is broad enough to cover this case, and as the defect arose through the omission, neglect or mistake of the clerk of the court, the plaintiff ought not to suffer (Neal v. Berry hill, 4 How. Pr., 16). It is also to be remarked, that the act requiring the marine court to affix a seal to its process, was passed many years before either the Revised Statutes or the Code was passed; andit must be assumed that the law-makers knew of its existence when the latter acts were passed, and that they passed them with reference to that as well as any other law applicable to that court. Again, of late years the policy of the legislature and the tendency of the courts seem to have been in favor...