
    THE STATE v. KENNEDY.
    Motion to quash a Certiorari &c.
    The service of a writ of Certiorari, after its return day, is void, and the error cannot be cured by a rule of this court. The correct practice is to apply for an extension of its return while it is in esse as valid process; when the court to which it is directed, has no term at which it might be presented, intervening between its test and return.
    A writ is void if not executed before its return day.
    
      H. W. Green in support of the motion, cited 1 Archbold’s Pr. 71, 260; Barnet Notes, 196; Kirby v. Coles, 2 Green 576.
    
      8. P. Hamilton, contra.
   Dayton, J.

The writ in this case was tested of September term, 1839. Returnable November term, 1839, of the Supreme Court. It was presented to the Warren Pleas, in December term, 1839, after the return day mentioned in the writ, and a return has been made thereto. It is admitted, that no term of the Warren Pleas intervened between the September and Novcmber terms of the Supreme Court. Nor was there any rule taken at the November term of said court, extending the return day of the writ.

Upon this state of facts, the counsel moves to quash this writ. I. That upon general principles, all writs mast be executed on or before their return day, is undoubted. The presentation of this Certiorari after the return day therein mentioned was past, was therefore unquestionably erroneous. The only doubt is, whether we may not now order a rule to be entered as of Nov. term, 1839, extending the return day of this writ.

In Kirby et ux. v. Cole et al. 2 Green, 576, the return of a Certiorari, directed to the Orphans’ Court of Gloucester, was extended, because no term had intervened between its test and return day; though in that case, the rule was absolutely necessary to save the party’s rights, and was applied for at the term to which the writ was made returnable. It was in effect amending the writ, by an alteration or postponement of its return day. This course of practice was unusual. I have seen no case where the return of a writ has been so amended or rather extended, as to be made returnable at a future and distant term ; though there are many where they have been so amended as to be returnable to the next or forthcoming term. The common practice in such cases is to order out a new writ. But the peculiar requisitions of the statute made this course necessary in the case cited, and for uniformity of practice I would not object to extending the rule to other like cases. These rules, however, have always been granted while the writs were in esse as valid process. There are many cases in the books where it has been held that if a term intervene between the test and return of a writ, it is void ; as in Parsons v. Lloyd, 2 Black. R. 845; Bunn v. Thomas and King, admrs. &c., 2 J. R. 190; Shirley v. Wright, 2 Ld. Raym. 775; but the ease last' named, which by the way, is a leading ease, confines this rule to mesne process only and personal actions: and the reason assigned is, that a person ought not to bo detained so long in prison without being heard. The rule, it was said, did not extend to writs of execution.

The same principle was recognized in Campbell v. Cumming, 2 Burr. 1187; and in Jackson v. Crane, 1 Caw. 38. In the case last cited, a writ of Certiorari was amended where there were a number of terms intervening between its test and return, and in the case in Burrow, a ca. sa. returnable out of term, was held not void, but voidable for irregularity only. In all such cases, it is said that the court may in its discretion, amend the writ.

But where the writ is absolutely void, as it is held in cases of mesne process, there can be no amendment. 2 J. R. 190; 2 Ld. Raym. 775; 4 Cow. 504; 9 J. R. 385; 4 J. R. 390; 5 J. R. 166; 3 Wils. 58; 5 Taunt. 853. It appears to me proper that this doctrine of amendment be applied to the present question. If the writ be void when the amendment is applied for, the court cannot vivify it by a rule which is intended to cure an irregularity merely. But if .not void, the court may in its discretion, cure its irregularities by a rule.

At the time of the service of this writ of Certiorari on the Warren Pleas, it was a void thing. In Wood v. Lide, 4 Cranch 180, Chief Justice Marshall, said “if the writ of error had been served when it was not in force, that is, after its return day, such service would have been void; but if served when in force, a return afterwards will be good.”

There are numerous cases which settle the principle, that after the return day has passed, the writ is dead. Devoe v. Elliot, 2 Caines R. 243; Vail v. Lewis et al. 4 J. R. 450; Adams v. Freeman, 9 J. R. 117; Wintermute v. Hankinson, 1 Hal. 140; 2 Tidd’s Pr. 1072; 10 Vin. (Execution) A. a. 568; 1 Chilly Pl. 170; and many other authorities might be found on this subject.

I think therefore, I am fully justified in the position, that this writ of Certiorari was a void thing after its return day had passed, and it remained unexecuted. Its force was spent. If this be so, I am at a loss to see how we can now, by the entry of a rule, mono pro tuno, ratify and make valid the execution of that writ, which at the time of its execution, was not voidable only, nut absolutely void. It cannot be done. If this rule had been applied for at the Nov. term of the Supreme Court, while the writ was in esse, we might have extended its return day. But permitting that term to pass, the writ is dead, and we cannot vivify it by a posthumous rule.

I-Iobnbloweb, C. J. and Fokd, White, and Nevius,

Justices concurred.

Writ quashed.

Note. In the preceding case of The State v. Kennedy, Mr. Justice Ford is erroneously stated to have concurred; he dissented from the opinion delivered as that of the Court. Mr. Justice White, has furnished the Reporter with the following opinion.

White, J.

A Certiorari issued out of this Court, directed to the court of Common Pleas of Warren, to send up the proceedings had before them, in a road case. This writ was tested in September term, 1839, returnable to November, 1839.

The vacation between September and November terms, is the shortest vacation we have in the Supreme Court; and in that vacation, there is no term of the court of Common Pleas, held in the county of Warren. The writ was therefore not presented, nor could it be, until the December term, 1839. It was then presented, and was returned to the February term, 1840. A rule was then taken on the party who prosecuted the writ, to show cause why the writ and return should not be set aside.

If the return of the road in this case, was confirmed by the Pleas at the August term of that court, it became necessary for the party, in order to stay the opening of the road, to apply for the writ of Certiorari at this bar, in the term of September; and according to the uniform practice of this court, it was necessary that the writ tested in September, should be made returnable in November following. It is a general principle that a writ has life from its test until the day it is returnable; when it ceases to have life or to operate unless some action has been taken on it, during the period between the test and return. The writ in this case, then, after the return day in November, was a dead letter, and no command therein could be enforced, because if not presented to the court before the return day, in became impossible for them to obey its mandate.

In 4 Cranoh, 180, Chief Justice Marshall said, that if a writ of error is served when it is not in force, (that is after the return day,) the service would be void; but if served whilst in force, the return after, would be good.

But can a return to a void writ, or a writ dead in law, be made or required ? I think not; but a writ about to expire, may perhaps be resuscitated by the power which created it; as in the case reported in 2 Green, 576, of Kirby and Coles. There as in this case, the writ could not be presented to the Orphans’ Court, because not in.session during its life; but as the February term, 1835, intervened, to which it was returnable, and before it was entirely dead, this court granted a rule which revived the writ, and going to the inferior tribunal with the writ, directed them, in what way they could still comply with what the old writ required. So in this case, if at the November term, a rule had been applied for, no doubt this writ might have been, and would have been kept alive, or had life enough remaining at the commencement of the term, to have been revived by amending or altering the return; or by granting a rule on the court below, to make return at a subsequent day.

It may be said, that the writ is returned and the parties are before the court, but the return without a writ, or order of court, cannot be received or acted upon by this court, and the party defendant in Certiorari, is only here to ask the writ and return to be quashed, which I think we must do, having no power now, to resuscitate the writ or legalize the return.

I see no good reason why in all cases where the court to which a writ of Certiorari or error is directed, will not be in session so that a writ can be presented to them, the writ may not be made returnable to the second term after its test.

In the case in 3 Ball. 37; a writ of error was quashed by the Supreme Court of the United States, because a term intervened between the test and return day: but in another case, reported in 7 Oranoh, 277, the same court refused to quash or dismiss a writ of error, tested in February, 1810, returnable to February term, 1811; the term of August 1810 intervening.

In the last case there was an appearance and perhaps that cured the irregularity.

Writ quashed.

Cited in State v. Comm’rs of New Brunswick, 8 Vr. 395, 396.

ANONYMOUS.

On attachment.

On motion of H. W. Green, the court ordered a horse and carriage attached as property of the defendant, to be sold by the auditors, being perishable property.  