Majority
p. 185Stone vs. Martin.
Headnote
Final procesa (c. g. a ca. sa.) returnable on Sunday, or out of term, is amendable. But mesne process against the person returnable out of term is void Per Bhonbon,C. J.The plaintiff was nonsuited on the trial of an action of ejectment: he made a bill of exceptions which was settled and signed; but not having obtained an order to stay proceedings, the defendant perfected a judgment for costs. An alias ca. sa. was issued on the judgment to the sheriff of Oswego, tested the first Monday, and made returnable the eleventh day of January last, which was Sunday. The defendant’s attorney fell into the error by consulting a counting house almanac in which the eleventh day of January was put down as being Suturday. The plaintiff was arrested on the ca. sa., and gave bail for the jail limits.
A. Taber, for the plaintiff,
moved to set aside the ca. sa. for irregularity, and that the plaintiff be discharged out of custody. He said that the writ, being returnable on Sunday, was void, and was not amendable. He cited Grah,. Pr. 118; 2 R. S. 424, §§ 1 to 3; 20 John. 140 ; 3 East, 155; 4 Cowen, 49.
R. W. Peckham, for the defendant, cited 6 Cowen, 50.
The writ was irregular in consequence of the mistake in the return day; but it is amendable. The distinction is between mesne and final process. Mesne process against the body, returnable out of term, is void, and cannot be amended. (Miller v. Gregory, 4 Cowen, 504. And see Chandler v. Brecknell, id. 49.) But final process against the body, returnable out of term, is voidable only, and may be amended. (Cramer v. Van Allstyne, 9 John. 386 .) The legislature has made the same distinction. (2 R. S. 424, § 1 to 3.) If there were nothing else in the case, the defendant would be allowed to amend on payment of the costs of the motion.
p. 186
But the plaintiff wants' relief; and on grounds which it is unnecessary to mention, the ca. sa. will be set aside, and the limit bond ordered to be given up, on the plaintiff’s stipulating not to bring any action; and the costs of the motion will be left to abide the event of the suit.
Ordered accordingly