dissent">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,(y)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,(z) and Burk v. Barnard,(a) 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,(b)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,(c)the execution was tested proper1y upon its fac~, though, beii~g issued. *315In 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(d)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^

2 Caines 63.

2 John. Rep. 190.

4 id. 309.

2 Ld. Raymd. 775.

16 John. 145.

2 Bl. Rep. 918

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