term of office had expired: Smith v. Bondurant, 74 Geo. 416; see Cary v. State, 76 Ala. 78.

Executions. In The Etna Insurance Company v. Stoddard, 6 Wall. 556, an order of sale on a decree of foreclosure of a mortgage, was issued by the clerk of the co .rt without the seal of the court attached. The instrument was a mere copy of the decree with the clerk's certificate without the seal of the court appended, certifying that it was a true copy of the original. In an action of ejectment, this certified copy was offered in evidence by the defendant, who claimed under the sale made by the sheriff under this copy. The court refused to allow it in evidence, and gave judgment for the plaintiff, who was the judgment defendant in the decree, or one claiming under him. On appeal, the judgment was affirmed. The statute authorizing a sale by virtue of a copy of the decree, provided that "a copy of the order of sale and judgment shall be issued and certified by the clerk under the seal of the court to the sheriff, who shall thereupon proceed to sell the mortgaged premises," etc. The court said: "Though the order of sale here desc ibed may not come under the name of any of the recognized common law writs of execution, as capias, fieri facias, or others yet it comes clearly within the function and supplies the purpose of an execution, that is, a process issuing from a court to enforce its judgment. The statute recognizes it as such, and requires that it shall issue under the seal of the court. The sheriff to whom it is directed, is required to proceed as upon execution.' If the debt is not satisfied by the sale of the property specifically mentioned in the order, it then operates as a fieri facias, under which the sheriff is directed to levy the residue, of any other propVOL. XXXVI.—42

This was a the Supreme it in Rose v.

erty of the defendant. It is, therefore, to all intents and purposes an execution, and the statute expressly requires that it must issue under the seal of the court. Without the seal it is void. We cannot distinguish it from any other writ or process in this particular. It is equally clear that under the Indiana statute, the sheriff could not sell without this order, certified under the seal of the court, and placed in his hands. This is his authority, and if it is for any reason void, his acts purporting to be done under it, are also void." case from Indiana, and Court refused to follow Ingram, 98 Ind. 276. Other courts have decided that the seal upon an execution is matter of substance and not amendable: Bailey v. Smith, 12 Me. 196; Tibbetts v. Shaw, 19 Id. 204; Witherel v. Randall, 30 Id. 168; Hall v. Jones, 9 Pick. 446; Swett v. Putrick, 2 Fairf. 179; Hutchins v. Edson, 1 N. H. 139; Shackleford v. M' Rea, 3 Hawks. 226; Seawell v. Bank of Cape Fear, 3 Dev. 279; Boal v. King, 6 Ohio, 11. Where, after the lapse of a long period, a writ is offered in evidence, a very slight and indistinct impression will be presumed to have been made by a seal: Heighway v. Pendleton, 15 Ohio, 755.

"So long as a seal is required to be affixed to writs and executions, though we may not be able to discover its real use, yet we must not dispense with what the law requires:" Porter v. Haskell, 11 Me. 177, quoted in State v. Flemming, 66 Id. 142.

A distinction has sometimes been made between original and judicial writs, using the latter term to distinguish such writs as issue during the progress of a suit from those by which suits are commenced. And it has been said, that while executions and other strictly judicial writs may be amended

by having the seal of the court affixed to them, original writs cannot be thus amended. This is the distinction referred to, in Bailey v. Smith, 12 Me. 196; and see Sawyer v. Baker, 3 Id. 29, but which was overruled in Porter v. Haskell, 11 Id. 177, and disapproved in State v. Flemming, 66 Id. 142.

The Supreme Court of Indiana refused to place the construction, upon the statute in force in that State with reference to issuing executions, which was placed upon it in the case of The Eina Insurance Co. v. Stoddard, 6 Wall. 556. It held, that the statute of 8 Henry IV, c. 12, authorizing the amendment of "writs," was in force in that State, and authorized the affixing of the seal, by the clerk, after a sale of the property. "There are cases which hold, that writs without a seal are not void, but voidable only, and that they may be amended, after they have been served, by attaching the seal. We incline to follow that line of decisions which holds, that process, without the proper seal, is voidable only, and therefore amendable, as being more in consonance with the general spirit of the law, which regards substance more than form. Much hardship and injury might accrue to purchasers of property on execution or their vendees, if the sale happened to be made on an execution to which the seal, by inad vertence of the clerk, had not been affixed, if the defect could not be amended by affixing the seal:" Hunter v. The Burnsville Turnpike Co., 56 Ind. 213. So, in Purcell v. McFarland, 1 Iredell's L. 34, it was held, that where the clerk of a superior court had omitted to affix the seal to writs of fi. fa. and vend. ex. the court might, at a subsequent term, order the clerk to affix the seal to the executions, nunc pro tunc, in order to protect the purchaser of land sold under them.

See

also Clark v. Hellen, 1 Iredell's L 421. In Arnold v. Nye, 23 Mich. 286, Judge COOLEY said: "The want of a seal, if one was really wanting, might have been supplied on motion to amend, and did not render the execution void." Other cases are to the same effect: Jackson v. Brown, 4 Cow. 550; People v. Dunning, 1 Wend. 16; Ross v. Luther, 4 Cowen, 158; Dever v. Akin, 40 Ga. 429; Bridewell v. Mooney, 25 Ark. 524; Corwith v. State Bank of Illinois, 18 Wis. 560; Sabin v. Austin, 19 Id. 421; Rose v. Ingram, 98 Ind. 276. Freeman prefers the latter line of cases: Freeman on Executions, ?? 46 and 70.

If the rights of innocent purchasers would be affected by the amendment, it would, perhaps, not be allowed: Purcell v. McFarland, 1 Iredell's L. 35.

Summons. In Indiana the code provides that" no summons, or service thereof, shall be set aside, or adjudged insufficient, when there is sufficient substance about either to inform the party on whom it may be served, that there is an action instituted against him in court." A summons was issued and served, without the seal of the court out of which it was issued, and it was held, that this was not a good cause for review of the judgment. The summons was not void, "though perhaps voidable, and therefore amendable, and that, until set aside in a proper application for that purpose, they and each of them may well be held to be sufficient. The court below, of its own motion, or upon the motion of any interested party, may at any time cause the proper seal to be affixed to the summons, and thus validate and render it effectual ab initio, for all purposes:" Boyd v. Fitch, 71 Ind. 306. The court has the right to order the clerk to affix the seal nunc pro tune, to such a summons issued previous to, and re

turnable at, a former term, after judgment has been entered and after the term has closed: The State v. Davis, 73 Ind. 359.

Other courts, however, hold such powers void, and all proceedings thereunder also void: Woolford v. Dugan, 2 Ark. 131. See Williams v. Vanmetre, 19 Ill. 293; Wheaton v. Thompson, 20 Minn. 196; Reeder v. Murray, 3 Ark. 450.

Venire for grand jury. In Maine it was held, that if a venire issue for a grand jury without the seal of the court, a plea setting up such facts is sufficient to abate the indictment, and the defect, or absence of the seal, is one which cannot be cured by amendment, nor can it be remedied by a special statute, passed for that purpose. The court said: "Is the defect amendable? We think not. Every indictment to be valid, must be found by a grand jury legally selected, and competent to act at the time the indictment is found. To put the seal upon these venires now would not make sealed instruments of them at the time they were served. They have performed their office and are functi officio. To seal them now and then hold that they were legal instruments when served, and when they had no seals upon them, would seem more like trifling than the performance of a grave and important duty." The statute in question applied only to those venires issued from a particular court of a particular county at a particular term. It was held that the effect of the act was to render valid an invalid indictment already found; and was also a suspension of the general law of the State for individual cases or a particular locality. For both reasons the act was void. Such an act is, in principle, as objectionable as a bill of attainder, or an ex post facto law: State v. Flemming, 66 Me. 142.

Writs of attachment. In Foss v. Isett, 4 G. Green (Ia.), 76, a writ of attachment was issued by the clerk of the court without the seal of the court, and on motion to amend the writ by attaching the seal, the court allowed it; but on appeal, this was held error sufficient to reverse the law. "Before the property of the defendant could be seized, it was indispensable that the plaintiff should obtain a writ. A paper issued by the clerk in the form of a writ is no writ, unless it has impressed upon it the seal of the court from whence it issues. Without this seal, it is no more for the purpose of a writ than blank paper. Could it be amended? Not at all; for there is nothing to amend. It lacks the essential ingredient of a writ, and is not amendable. It is the seal, other things being right, which makes it a writ, gives it force, efficacy, and life. The property which had been seized upon this void paper, could not be held in custody upon a writ issued after it was attached, which would be the case if the seal could be subsequently affixed. The numerous authorities cited by the counsel for appellee are not applicable to the question presented by this record. Neither are the provisions of the code broad enough to cover the case. This was not properly an amendment which was proposed. It was the creation of a new writ. This could be done, but not so as to operate retrospectively upon any prior proceedings. With the seal, it became for the first time a writ, and the party to make it available should proceed upon it de novo." See Barber v. Swan, 4 G. Green (Ia.), 352.

Fuss v. Isett, supra, was followed in Shaffer v. Sundwall, 33 Iowa, 579, where it was held that a writ issued from the Circuit court having the seal of the District court impressed upon

it, was void, and the defect could not be cured by amendment. The revised code of Iowa, enacted after these cases were decided, provides, in the chapter relating to attachments, that "this chapter shall be liberally construed, and the plaintiff, at any time when objection is made thereto, shall be permitted to amend any defect in the petition, affidavit, bond, writ, or other proceeding; and no attachment shall be quashed, dismissed, or the property attached released, if the defect in any of the proceedings has or can be amended so as to show that a legal cause for the attachment exists at the time it was issued," etc. Under this section, the Iowa Supreme Court has held that a writ of attachment sealed with the wrong seal, may be amended by attaching the proper seal: Murdough v. McPherrin, 49 Iowa, 479. See Magoon v. Gillett, 54 Id. 55.

The New York code provides that "the court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case," etc. This was considered broad enough to allow a seal, omitted in issuing a writ of attachment, to be supplied: Talcott v. Rosenberg, 8 Abb. Pr. (N. S.) 287.

A mere scroll used by the notary for a seal, is not a sufficient authentication of an affidavit for a writ of attachment: Hinckley ▼. O'Farrel, 4 Blackf. 185. That such an affidavit cannot be amended under the usual statutes allowing amendment of pleadings, it has been held, in Watt v. Carnes, 4 Heisk. 532. But see supra. Although somewhat out of order, we may state that in Maloney v. Woodin,

11 Hun, 202, the seal of a surrogate was affixed pending the trial.

Warrants. In Hunter v. The Burnsville Turnpike Company, 56 Ind. 212, it was said, in referring to the right to attach the seal to an execution after sale, "So, too, a sheriff who arrests a party on criminal process, perfect in all respects except the seal, would be liable to an action of trespass, unless the defect could be amended." In Dominick v. Eacker, 3 Barb. 17, a sheriff was sued in trespass for arresting the plaintiff under process to which the seal of the wrong court was affixed, which was held by the court to be equivalent to having no seal affixed. But it was held, that the process was amendable, and that the defendant could justify under it.

Other cases hold that a warrant without the seal is void, and the officer holding it acts at his peril; and if killed in making the arrest by the person he is endeavoring to arrest, the offense is only manslaughter, the same as if an arrest was attempted without a warrant, where the person resisting was not guilty of an offense: Tackett v. State, 3 Yerg. 392; Bell v. Farnsworth, 11 Humph. 609. See Galvin v. State, 6 Coldw. 291.

Writ of error. A writ of error issued without the seal of the court issuing it is void: Overton v. Cheek, 22 How. 46. Such a writ cannot be amended by attaching the seal, even though it had been placed within the proper clerk's office within the required time: Mayor, etc., of Washington v. Dennison, 6 Wall. 495. So on appeal, if the transcript have not the seal of the court below, the appeal will be dismissed: Jones v. Frost, 42 Ind. 543; Hinton v. Brown, 1 Blackf. 429; Sanford v. Sinton, 34 Ind. 539; Vanliew v. State, 10 Id. 384.

W. W. THORNTON.
Crawfordsville, Ind.