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Carmer v. Weeks

3 Johns. 246 Court N.Y. Sup. Ct. English

Delivered by Kent, Ch. J.

Contents

Majority

p. 246
Carmer against Weeks and Tompkins, bail of Stagg.
NEW-YORK,
May, 1808.

Headnote

There ñeeclnot between* the2*3 teste and return charge*' ball,t0 where the proceedmgs are not by original ^ut"
J* STRONG moved to set aside the proceedings aSa^nst ^e defendants in this cause, for irregularity. He read an affidavit stating, that the judgment in the original cause was entered on the 6th day of February last, that a ca. sa, was issued on the same dav, tested the 4th day of . February, which was the 4th day of the term, and returnable on the 11th. On the 12th of February the ca. sa. was returned non est inventus. It did not appear how long it had Iain in the sheriff’s office. A capias ad respondendum against the defendants, as bail, was served on the 13th of February, (the last day of the term) in the afternoon, after the clerk’s office was shut, so that the principal could not be surrendered on that day. The proceedings were after-wards stayed by an order of a judge, until the second Monday of this term.
The counsel contended, that by the act concerning writs of error, &c.[1] in all proceedings by original, there must be 15 days between the teste and return of the ca. sai or if the proceedings are by bill, according to the English practice, there should be 8 days between the teste and return. He cited 1 Sell. Prac. 550. Salk. 601, 602. Ld. Raym. 1177. 1 Black. Rep. 74 .
D. B. Ogden, contra.
This point was expressly decided in the case of Cook and others v. Campbell & Lorraine.[2]

Though the court in that case intimated the opinion stated, yet it was reconsidered on a further argument the next day, and the point was not finally decided. The question is still open.

Ogden. The only question is whether the English rule of practice as to 15 or 8 days between the teste and return of a ca. sa. to charge bail, is to be adopted. In the present case the proceedings were by bill.

There is no rule of practice established in

this court, requiring eight days between the teste and feturn of a ca. sa. nor do' we see any reason which should render such a rule necessary.

Rule refused.