Van Vechten v. Paddock — 12 Johns. 178

Majority

p. 178

J. Van Vechten against Paddock, Sheriff, &c.

Headnote

Process can mute” nor *&- *dü,y. °An/m~ er ^pif executo ^/liberties of the gaol, went beyond the liberties on the piamtiff, turned, on the edmupdaymjAs aiieriffVor1'the liveredait to* the coroner, not to be such a commencement of a suit sS^as 6 Ws^pleadinga tnmnbeftfre'e* smt brought.

THIS was an action of debt, for the escape of Isaac Rath bun, from the gaol liberties of the county of Jefferson, of Which the defendant was sheriff. The declaration was in the usual f°rm* The defendant pleaded nil debet, and subjoined to his P^ea’ a n°tice, that he should give in evidence, at the trial, in bar of the action, a voluntary return of the prisoner within the liberties* and custody of the sheriff, before the suit was brought, which notice was verified by an affidavit of the truth of the facts stated in it. It appeared that Rathbun escaped and went beyond the liberties on Sunday, the 19th September, 1812, and went to Rackets’ Harbour, and on the same day, while Rathbun was a*; that place, and without the liberties, a copias was made out and delivered to a coroner of the county, to be served, before he returned into the liberties, which he, afterwards, did on the same day, before the copias was actually served on the defendant, and before midnight;.

It wag agreed, that if the cotirt should be of opinion that "the plaintiff -was entitled to recover, a judgment should be entered for 929 dollars and 28 cents, with a stay of execution for the usual time, for the defendant to collect the amount from the sureties; but if the court should be of opinion that the plaintiff Was.not entitled to recover, then a judgment of non-suit should be entered.

A. Van Vechten, for the plaintiff.

Was the delivery of th,e writ to the coroner on Sunday, a valid commencement of a suit against the defendant, so as to make him liable for the escape ? The prohibition of judicial proceedings on a Sunday, is derived from the canon law, from which it was adopted by the English parliament. Anciently, or before the canon, all daySj ^G administration of justice, were regarded alike.^[8] But the prohibition extends to judicial acts only ; not to such r J J as are purely ministerial. Lord Coke makes this distinction, and gives the reason, in Mackally’s case,^[9] “ that no judicial act ought to be done on Sunday, but ministerial acts may be law

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fully executed on Sunday ; for otherwise, peradventure, they can never be executed; and God permits things of necessity to be done on that day.” This doctrine is also recognised in Waite v. the Hundred of Stoke.^[8] Until the statute of the 29 Car. II. c. 7 s. 6. arrests on a Sunday were valid. In regard to process, the issuing the writ is the only judicial act; and that has relation to the teste of the writ, which is a day in term.^[9]

The act for suppressing immorality, (sess. 36. c. 24. s. 5. 2. N. R. L. 195.) prohibits only the serving of process on Sunday. It is silent as to the delivery of it to the ministerial officers.

If the court do not allow the issuing the writ or commencement of the action on Sunday, in such cases, then these bonds, and the law, as to escapes, will be suspended on Sundays, and debtors may freely go and return from prison or the liberties, on those days.

There is no justice or reason in the objection. The party says, “ It is true, I have violated my legal, moral, and religious obligations; but as you delivered your writ on Sunday, you are without remedy, and I shall escape with impunity.”

Sterling and N. Williams, contra.

It is true, that the issuing the writ is the commencement of the action.^[10] The teste of a writ on Sunday is void; and the act of filling it up and delivering it to the coroner, must be equally void. The 5th section of the act for suppressing immorality, declares “ that no person, upon Sunday, shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, &c. except in cases of treason, felony, and breach of the peace; but that the service thereof is void.” This is taken from the 6th section of the 29 Car. II. c. 7. and in the construction of that act, it has been holden, that not only the arrest, but the whole proceeding, is void, so as to subject the party arresting to an action for false imprisonment.^[6] The act ought to have a liberal construction, to effectuate the intent of the legislature. Process means proceeding; and in Taylor’s case,^[7] it was held that a declaration in ejectment could not be served on Sunday ; for it is a process, though not a judicial one. So service of a notice of a plea filed, on Sunday, was held to be void; and Lord El~ Mnhorough said, “ All notices on which rules are made are pro

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cess, in respect to the subject matter; though not with respect to the writ.^[8]

Again, the issuing of process on Sunday, is void by the common law, Sunday is no day in law. Dies dominicas non est juridicus.^[9] In Hoyle v. Cornwallis,^[10] the distinction taken in -T , 77 . . . . . . Mactcally’s case, between judicial and ministerial acts, was , -, overruled*

A coroner is not obliged to receive a writ on a Sunday. It wou[(j. be inconsistent to say, that a writ may be issued on Sunday, when the clerk is not bound to issue, nor the officer to receive it, on that day. It would be against all the principles on which the act of the legislature is founded, to suppose the office of the clerk to be open on Sunday, for issuing of writs, and the sheriff’s office open for receiving them. . .

Van Vechten, in reply.

The issuing of the writ being a judicial act, must have reference to its teste, which'is a day in term. The filling it up is an act of the clerk. The case of Hoyle v. Cornwallis is not analogous. The time of serving a declaration is immaterial. It may as well be on one day as another, and the party is not prejudiced by a delay; and its service is tantamount to the service of a writ. In the present ease, the delivery of the process to the coroner on a Sunday is a necessary act; for if it is not delivered on that day, it would, in effect, be useless and inoperative. To say that the coroner is not bound to receive the writ on a Sunday, is begging the question.

delivered the opinion of the court. The only question in this case is, whether this suit was duly and legally commenced, so as to preclude the sheriff from pleading a voluntary return. The statute (2 N. R. L. 194.) prohibiting the service of process on Sunday, does not, literally, extend to this case. Nor was it necessary that it should, for according to my understanding of the law on the subject, no process can be legally issued on Sunday, The same principles of policy, as well as of religion and morality, would interdict the issuing as well as the service of process on Sunday. And had not the common law made it illegal, it is most likely that the statute would have also extended to this case. It is a maxim of the law, that Sunday is dies non juridicus, And usage.

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and the history of the law, show that courts cannot sit on Sun day. In Mackally’s case, (9 Coke, 68.) a distinction was taken between judicial and ministerial acts. The former, it was said, could not, though the latter might, be performed on Sunday. This case, however, was decided before the statute 29 Car I. which made void the service of process on Sunday. In Becloe v. Alpe, (Sir William Jones, 126.) it was said by the court, that Sunday was not a dies juridicus for the awarding of any judicial process, nor for entering any judgment of record. And the awarding of process, and the giving of judgment, are judicial acts, and therefore cannot be supposed to be done but whilst the court is actually sitting. (3 Burr. 1600.) Hence it is that a writ tested on Sunday is considered void.

In the case of Taylor & Philips, (3 East, 156.) Lord Ellen borough said, the statute 29 Car. I. was founded on public policy, and the regularity or irregularity of the proceedings contrary to it, could not depend on the assent of the party, or be waived by him. And if considerations of policy are to be taken into view, they will apply with'equal force to the issuing of process. For this may, and, indeed, in judgment of law must, necessarily impose upon the officers of the court the duty of keeping their offices open on Sunday. The clerk, if called upon, would be bound to issue the process, and the coroner bound to receive it. For if it is the right of the party to issue process, it is the duty of the officers of the court to lend Mm their aid, if necessary. If it depends on the will and pleasure of these officers whether they will lend their aid or not, parties may not be placed on the same footing with respect to their remedy against a sheriff in cases like this. Although it has been repeatedly said by this court that the issuing of the writ is, to every material purpose, the commencement of a suit; ( 3 Johns. Cas. 146 . 1. Caines, 71.) yet this must be understood as applicable to cases where the writ might be executed, or some efficient act done under it, which could not have been done here, as it is not pretended that it could have been served on Sunday. The court are, therefore, of opinion, that there was not such a commencement of a suit against the sheriff as to deprive him of the defence set up of a voluntary return of the prisoner. A judgment of nonsuit must be entered, according to the stipulation in the case.