Majority
p. 504Miller and M’Ewen against Gregory. read an affidavit that the capias was not bailable ;• and contended that this took tfye case out of the rule which mademesne process void because more than a term intervenes between the test and return, viz. the danger of a protracted imprisonment; and he moved to amend: but,
Headnote
G(Z ila,Mj° notThe capias ad respondendum was, by mistake, made returnable on Sunday the 15th May, 1825 ; and, for this reason, Sunday being out of term, or rather after the last return day.
J. Platt moved to set it aside, and cited Bunn v. Thomas ( 2 John. Rep. 190 ;) Cramer v. Van Alstyne, (9 id. 386; and 6 Mod. 251, 252, per Holt, G. J. in Davy v. Salter..
T. J. Oakley, contra,
This makes no difference. We cannot look to see whether a long return may or may not work a long imprisonment. The form of the capias is the only thing in question. It is fully settled that mesne process against the body, returnable out of term, is void, and cannot be amended. The motion must be granted on the defendant’s stipulating not to bring fa se imprisonment.
Rule accordingly.