Benedict & Burnham Manufacturing Co. v. Thayer

1. We think that the words omitted from the execution were not oí substance, and that the amendment should have been granted as a matter of course.

The order refusing leave to amend must therefore be reversed.

2. The order denying the second motion for leave to amend was proper, fox the reason that an appeal was then pending from

- the denial of the first motion.

That appeal should he dismissed, without costs.

3. We think the court below erred in discharging the prisoner on the writ oí hateas corpus. The execution was not void, and the omission of the words referred to should have been disregarded. Further, the defendant’s remedy was not by habeas corpus, but by special motion, on which the court could act freely with respect to an amendment.

The order discharging the prisoner should therefore be reversed, and the prisoner remanded to the custody of the sheriff.

No. 1. Order reversed, and motion to amend execution granted, without costs.

No. 2. Appeal dismissed, without costs.

No. 3. Order reversed, with ten dollars costs and disbursements ; order made remanding the prisoner to the custody of the sheriff under execution.