Bank of Orange v. Van Aukin — 1 Cow. 58

Majority

p. 58

Bank of Orange against Van Aukin.

Headnote

On removing a cause by I-Iab. Corpus, must declare within t-,0 return^of1 the writ tion, and a bona fide attempt to serve it as by mail-the 3 Cflefem uent’s attordaring- within third11 wéek^is term time for excepMhetest and return of wu!~-. But so here the before^ that time? tyuere.

Blunt, for the defendant, moved to set aside the default . . and all subsequent proceedings for irregularity. Phis cause was commenced in the Orange Common Pleas, and brought here by Habeas Corpus, returnable the first Monday of AuSusit 1822 ; shortly after which the defendant put in special bail. On Wednesday of the second week of January term, thereafter, (January 15th) a declaration was filed and a rule pjeac] entered, and a copy, with notice of the rule, mailed * 7 1 ^7 y to (he defendant’s attorney, where it arrived on the 20th of January, (Monday the 3d week of term ;) but the Court adjourned the Saturday preceding. The defendant disregarded the plaintiff’s proceedings, and default was taken for not pMading, in April last; and the question was, whether this was a declaring within two terms, according to the rule in Drake v. Hunt, (Col. Cas. 43,) so that the defendant was bound to plead,

Blunt, referred to that case, and also to Checiham v. Lewis, ( 3 Caines’ Rep. 256 ;) and contended that the two terms having elapsed on the 20th, when the defendant’s attorney received the copy of the declaration and notice of the rule to plead, he was not bound to answer it.

J. 0. Hoffman, jun. contra. The term continues during three weeks, for all purposes except the test and return of process ; to which the Court agreed. (Sess. 36, ch. 3, s. 1, 1 R. L. 318.)^[1]

Blunt, remarked, that this might be the case, so long as tiie Court continued their session in the third week ; but they, in fact, adjourned at the last January term, on Saturday of the second week.

Filing a declaration is a compliance with the rule, especially where there is a bona fide attempt, as in this case, to serve it. Here, then, was a declaring within the two terms, the declaration being filed, and a copy mailed to the defendant’s attorney, before the end of the second week in term. The plaintiff is therefore regular ; but as the defendant swears to merits, we grant the motion, on payment of costs.

Rule accordingly.

(a) (a) By the Judiciary act of 1823, (Sess. 46, ch. 182, s. 1,) the terms, except for the purposes of test and return, may be continued four weeks.