
    Jones against Cook.
    . A record Sl^HGQ Soil jj— led, nunc pro ]™deyla^ purpose, was pieadin^and ffiveu in eviterm^’ asfof^ day in which it was ordered to be filed. A ¿a.-síi. tested out of term, is not void, but voidable only; and may be amended on motion.
    But although not amended, in fact, on motion, a sheriff is not, for that reason, warranted in suffering a party, arrested thereon, to escape.
    And if he so escape, the sheriff is liable.
    Where, in debt for an escape, the declaration set forth the ca. sa. with the usual words, and him safely “ keep and the ca. sa. produced in evidence, omitted the word “ keep,” this was holden not to be a fatal variance.
    In such action, the usual indorsement on a ca. sa. directing the sheriff what sum to levy, need not be set forth in the declaration.
    And if set forth, it is mere surplusage, and need not he proved as laid.
    It is settled, that a' sheriff^ who is sued for an escape, cannot protect himself by error in (¡he process.
    It protects him in malting the arrest; and is good till reversed ;
    Which it can be, on the application of a party, or privy only.
    The plaintiff is never bound to prove that part of an instrument, which it is not material to set forth, unless it be alleged as matter of description, or in hmc verba.
    
    Accordingly, where the declaration stated that the ca. sa. issued the 28th October, a ca. sa. tested the 31 st October, was admitted in evidence; and this, though the 31st was out of ,crm. -
    Debt against the defendant, Sheriff of Westchester, for ^ . » the escape of Richard R. Voris. The declaration set forth a judgment in favour of the plaintiff, against Voris, of January Term, 1820 ; that a testatum ca. sa. was, on the 28th October, 1820, sued out, directed, &c. commanding the defend ant to take and safely keep the said Voris, &e. Indorsed to “ Levy $131,03, besides Sheriff’s fees,” fyc. Plea, nil debet. '
    
      The cause was tried before his honour, Mr. J. Wood-worth, at the Westchester circuit, May, 1822. Verdict for the plaintiff, subject to the opinion of the Court on a case.. On the trial, the plaintiff gave in evidence, the exemplification of a record of the judgment, which was signed and docketed on the 18th day of May, 1822. The signing and docketing were under a rule of this Court, ordering it to be as of January 18th, 1820. He next gave in evidence, a testatum ca sa. corresponding, in all particulars, with the. one set forth in the declaration, except that the word “ keepP was omitted, after the word safely. This writ was tested, the 31 st October, 1820, and indorsed for “ Damages $114,14. Costs $16,87=131,04. Interest from 14th January, 1820, yourfeesM The admission of this execution, as evidence, was. objected to, for its variance from the declaration in these respects ; and it was also urged that the execution, being tested out of term, was void ; and the Sheriff, therefore, not. liable for the escape.
    
      L. Billings, for the plaintiff.
    The authorities pn the subject of variance are fully reviewed in Lewis v. Few, (5. John. 1.) In that case, the declaration, in setting forth the libel, had the words “ U. States.” In the libel produced, it was written “ United States,” but the variance was holden immaterial. And it is said, “ that the Court will look to the context, in order to determine whether the variance is material, or not;” and that “ Courts have lately been less strict and scrupulous on these subjects, than formerly.” In The King v. May, for perjury, in the indictment, reciting that part of an indictment for an assault and battery, which says that his life was greatly despaired of, the word despaired was omitted ; which was objected for variance, but the objection was overruled. The word despaired was supplied by intendment, because the omission made it nonsense. In the present case, the word keep may be supplied in the same manner. In King v. Pippet,
      
       the Word “ ifn was omitted, in setting forth a precept, and held no variance. Several cases of the same character are cited in the course of King v. Pippet; as where the declaration omitted to set forth the part of the latitat, which says, “ if they shall be found in your bailiwick where the declaration stated a latitat against Donner & John Doe, with an ac etiam against Donner only, for £30; and the one produced was against Donner, two others, & John Doe : where itstatéd the direction of the precept to the Mayor, only ; whereas it was to the Mayor and Burgesses : these were holden immaterial variances., The indorsement was substantially stated ; and the word interest, &c. may be rejected. It was not necessary to state it in the declaration. In debt on recognizance, the declaration was, that “ S. F. came,” &c. by the name of S. F. of K. &c. ; and the bail-piece was “ S. F. of the town of K&c. ; and in debt for an escape, the declaration alleged a judgment of a term held at Salem, &c. and in the record produced, no place was mentioned,  In hoth these cases, the variance was holden immaterial.
    By being tested out of term, the ca- sa, is voidable—not void; and may be amended. Errors in judicial writs are considered the misprisons of the clerks, and the Courts have a discretionary power to amend, though it is otherwise of the original writ. Accordingly, an execution, returnable out of term, or a writ tested out of term, may be amended ;
      
       as was done, also, of a writ of inquiry, 
      
       and a fi. fa.
      
       And an award of a fi. fa. with a test, may be entered on the roll, and the writ amended thereby, 
       The test of a distringas may be amended by altering the date.  So of a ca. sa.
      
       or by altering the defendant’s name to Edmund instead of Edwards, 
      
       Both the test and return of a venditioni exponas, were amended by the prcscipe.
      
       Á ca. sa. may be amended after it is executed ; and even after a suit for false imprisonment under it. True, in Shirlyv. Wright, 
       it is said if a ca. sa. is tested out of term, it is void, and the Sheriff is not liable for an escape. This case is referred to as the only "authority for the position, in hooks 
      of practice. It is a mere dictum of flolt, J. not called fo~ in the decision of the case, nor warranted by the authority cited. In the report of the same case, in Ld. R~tymd. 775~ no notice is taken of any such decision.
    
    
      If amendable, the Sheriff cannot take advantage of th~ error. The case of Bissell v. Kip,
      
       settles the ru~e, "that the Sheriff, sued for an escape, cannot take advantage of error in the process.~~ This case is also conclusive to shew that there is no material variance between the declaration and ca. sa. as to the test; for we do not assume to set out the ca. sa. in hac verba.
    
    
      M. Mitchell, contra.
    
    
      Several cases have been decided, in. which variances, less materia' than these, were holden f~tal; as where the declaration stated the endorsement to be, "Levy, £32 6s. beside poundage;" and the fi.fa. in evi~ dence was endorsed, "Levy, £32 6s. beside costs of levying, SherifEf' s poundage, officer's fees, &c." 
      
       A lcst it at was declared upon as being in trespass; and the one produced was in trespass, cc etiam billcs. This was holden a fatal variance.
      
       So, where the averment was of a recovery of damages, for not performing certain~prQmises~ and the record produced was of a judgment upon a count on a single proniissory note.
      
       So, where the declaration states, that the writ issued on such a day, it ought to be proved accordingly.
      
    
    
      The ca. sa. being tested out of term, is void. In 2 Ca~ne~, 63, Kent, J. says, "the second objection to thisfi. fir. that it bears test out of term, is equally well taken. The process, f~r that redsdn, is held to be void, and the party suing it out cannot take advantage of it." And in 2 Salk. 700, it is decided, in terms, that, "if a writ of executioii bear test out of term, the Sheriff is justifiable, and yet shall not be liable to an action of escape for it is a void wrjt." The same doctrine is supported by the following authorities: Cro. Eliz. 467; 1 Saund. 39; 2 Bac. .Ab. Execution, (C); ib. Sheriff; 1 Sell. 551.
    
      
      
        Doug. 193, Cowp. 229.
    
    
      
      
         It was objected in argument at the bar, that this order to file, sign and docket a record nunc pro tunc, could not be made so as to affect the Sheriff, the escape having happened before the record was, in fact, filed. But this was not noticed by the Court; for the reason, I suppose, that it ■'Was not made a point at the trial,
    
    
      
       1 T. R. 235.
    
    
      
      
         Rodman v. Forman, 8 John. 26.
    
    
      
      
        Page v. Wood, 9 id.82.
    
    
      
       11 Mass. Rep. 89.
    
    
      
      
        9John. 386, 2 Burr. 1187
    
    
      
       Carly v. Ashley, 2 Bl. Rep. 918. 1 Com. Dig. 477, amendment T
    
    
      
      
        ast, 173.
    
    
      
      
        Sayer, 12.
    
    
      
      
        id.
      
    
    
      
      
         id. 62. 1 John. Ca. 220.
    
    
      
       2 Bl. Rep. 836.
    
    
      
      
         Barnes, 10.
    
    
      
       1 Dali 197.
    
    
      
       2 B. Rep. 836. Jones, 41.
    
    
      
      
         3 Caines, 98.
    
    
      
      
        Salk. 700, 1 Salk. 273.
    
    
      
      
         5 John. 100.
      
    
    
      
      
         2 Bl.Rep.1102
      
    
    
      
      
         Bull. N. P.66
      
    
    
      
      
         5 Esp. Rep.223
      
    
    
      
      
         Bull. N. P.66
      
    
   Woodworth, J.

The execution, though tested out of term, is not void, but voidable, and may be amended. (Cramer v. Van Alstine, 9 John. 388.) It is equally clear it is amendable by inserting the word omitted. (5 John. 1.) Besides, the variance is only matter of form. (Doug. 183.) I might apply what was said by Buller, J. mKing v. Pippet, (1 D. & E. 239) “ It is impossible for any person to read this part of the declaration, without knowing what it should be.”

In Bissel v. Kip, (5 John. 100) the question of variance, between the execution and the judgment,-was considered. The rule appears to be settled, that the Sheriff, who is sued >for an escape, cannot take advantage of error, in the process, to deliver himself from the action for the escape. The erroneous process was a sufficient warrant for him. It stands good until reversed. No person can avoid it, for error, but he who is a party or privy to the record. It is not examinable in this collateral action.

The execution is not set out, m hcec verla. The plaintiff is not bound to prove immaterial matter, unless set out, in this manner, in his pleadings. The declaration states the substance of the ca. sa. only. It was, therefore, admissible, under the pleadings. The indorsement on the writ need not be stated in the declaration. It is surplusage. The ca. sa. produced, agreed, substantially, with the pleading.

The plaintiff is entitled to judgment.

Sutherland, J.

The error in the teste day of the execution did not render it void, but voidable only. Leave would have been given to amend it, upon application : and -it is perfectly well settled, that a Sheriff is not warrantable in suffering an escape, under such an execution. It is good until set aside, which can only be done on the application of the defendant in the execution. (Bissell v. Kip, 5 John. Rep. 100—opinion of Kent, Ch. J.)

The ground of variance is equally untenable. The plaintiff did not undertake to set out the execution, inJicsc verba, but only its substance ; and there is no material difference between the execution set out in the declaration, and that produced at the trial. The case of Bissel v. Kip, is eqiia1l~r decisive, upon t1ii~ point, also. I concur in th~ opinion, thai the iudoxsement is mere surplusage.

Savage, Ch. J. dissented.

lie agreed, that the objection for variance was not tenable. He said, the other objection, that the ca. sa. is void, being tested out of term, and that, therefore, the plaintiff in this cause, a party to the writ, can not take advantage of it, depends upon the question whether it is to be considered void, or voidable only, on account of this irregularity. If void, the Sheriff had no right to arrest Voris ; and, of course, is not liable for permitting him to escape: If voidable only, he ought to have kept the defendant in custody; for the execution would, notwithstanding, justify him. In Simonds v. Catlin, a fi. fa. was issued, and tested out of term; and the Court say, "the process, for that reason, is held to be void, and the party suing it out cannot take advantage of it, although it may justify the Sheriff.1” In Bunn v. Thomas & King, and Burk v. Barnard, the Court refused t~ amend writs of capids ad respondendum, so tested that a term ~n'd more 1h~tervened between the test and return True, in Shirley v. Wright, a distinction is taken, in this respect, between mesn~ a~d fin~l process. The process in that case, which was fina', ~ias' both tested and returnable ir~ term. This was holden well, though one full term intervened between the test and return; and it was said that, in the case of mesne process, it would be oppression to keep the body in prison till so long a return, without an opportunity to make a defence to the action ; whereas, dpon final process, the body ought to be imprisoned till satisfaction. But, in a note to the same case, in 1 Salkeld, 700, it is added, that Ch. J. Holt said, that, had it been tested out of term, it would have been void, and the Sheriff shall not be liable to an action of escape, though he would be justifiable. To the same effect is the report of this case, in Ho IBs Rep. 761, and 7 Mod. 29. In Gordon & Wood v. Valentine & Smedes, the execution was tested proper1y upon its fac~, though, beii~g issued. In term, it was improperly tested ás of a day in the terns preceding.. The Court say, the teste of the writ is irregular, and that the plaintiff may amend. Carly v. Ashly has been cited, where the Court amended a wrong test of a capias in the Court of C. B. The objection in that case was, that there were not 15 days between the teste and return-not that the writ was tested out of terms , Indeed, the question whether we should amend this mistake, on motion, is, upon authority, by no means clear of difficulty. But we are asked to go farther ; to consider this writ as good, at all events ; as perfect in form and substance, without regard to that discretion which it might become us to exercise tin a summary application to amend it. In Simonds v. Catlin, the Court said that; if the case of an execution, tested out of term, be within the reach of an amendment, yet this must always be a matter of sound discretion -, and they declared that case to be one in which they should incline not to grant an amendment. Till an amendment is granted, however, they do not hesitate in saying, that the plaintiff can derive no advantage from the execution. In this they are sustained by the opinion of Ld. Holt, as reported in 1 Salkeld, Holt, and 7 Modern.

On the whole, therefore, I am of opinion, that the ca. sa. being tested out of term, was void, and ho justification to the Sheriff, for imprisoning. Fom ; and that the defendant is entitled to judgment.

Judgment for the plaintiff^ 
      
      
        Cramer v. Van Alstine, 9 John. 386.
     
      
       2 Caines 63.
     
      
       2 John. Rep. 190.
     
      
       4 id. 309.
     
      
       2 Ld. Raymd. 775.
     
      
       16 John. 145.
     
      
       2 Bl. Rep. 918
     