Opinion
FEBRUARY TERM, 1858.
Where in a nil dicit action, the writ, which should have recited, that the court to which it was returnable, was to be holden on the third Monday of February, in fact recited that it was to be holden on the second Monday of February: Held, that the court could not amend the writ and render judgment, but that the action must be dismissed; since the service of the writ gave the court no jurisdiction of the defendant, or of the case, which it could exercise without danger of injustice.
IN this case, which was a nil dicit, it was suggested to the court, that the writ recited that the court to which it was returnable was to be holden on the second Monday of February, 1858, whereas by law it was to be holden on the third Monday of February, 1858.
Van Zandt, for the plaintiff.
We cannot amend this writ, because the defendant is not before us, and it may be presumed, because misinformed by the writ served upon him of the time when the court sat, and when it was necessary that he should appear. He may have come according to the exigency of the writ, to answer to it, and finding that no court sat on the day named in it, have departed under the supposition that the matter no farther required his attention. The service of this writ has given us no jurisdiction of the defendant, or of this case, which we can exercise without danger of injustice. The case of Bell v. Austen, 13 Pick. 90, seems to be precisely in point; and this action must be dismissed.