Wright v. Jeffrey — 5 Cow. 15

Majority

p. 15

Wright against Jeffrey.

Headnote

Putting in special bail without process, warrants the plaintiff’s proceeding against the defendant, as if process had been served.

And where the capias ad respondendum was returnable on Sunday; yet held, that putting in special bail, tho’ without knowledge of the defect, was a waiver of it.

And so, it seems, even if it had been served on Sun. day.

The capias ad respondendum was returnable on Sunday ; and, without knowing this fact, the defendant had put in special bail.

H. Stephens, for the defendant

moved to set aside the capias, and all subsequent proceedings.

J. C. Wright, contra.

The motion must be denied. It was not material whether the defendant had knowledge of the defect or not, when he put in special bail. Putting in bail would have warranted the plaintiff in proceeding without any process. 'The case is not within the statute, or the rule of public policy which forbids any ministerial act in the course of a cause to be performed on Sunday. It is probably a mere clerical mistake of the return day. It was taken for granted, however, by Vanderpoel v. Wright, (1 Cowen’s Rep. 209,) that -even m that case, which was the service of a capias on Sunday, an appearance would have cured the defect.

Motion denied.