Majority
p. 306The People vs. Ten Eyck, sheriff of Albany.
Headnote
On a rule a= sheriff for bringing in the body, notice must be served tvventy ^ays" previous to the caL°e.3heWm'=Proceedings on attachment. On the twenty-first day of lasti the defendant, as sheriff of the city and county of Albany, was served with notice of a rule to bring in the bod- ...... . . ... , les of the defendants m a certain cause, within twenty days a^ter serv*ce 0l' notice of the rule, or shew cause by the first day of the then next term, why an attachment should not issue against him. The first day of the then next term was on the fourth day of August, only fourteen days after the service of the notice. On the twenty-third day of August, a rule for attachment was asked for and granted. The attachment issued, and the defendant, being brought into court, objected that it had issued irregularly, inasmuch as twenty days had not intervened between the service of the notice and the day for shewing cause.
C. Y, Lansing, for defendant.
W. P. Hawes, for plaintiff.
By the Court,
Although the rule for the attachment was not obtained until more than twenty days had expired after the service of the notice on the sheriff still the attachment issued irregularly. The sheriff had not twen
p. 307
ty days after the service of the notice on him, before he was required to shew cause ; he must, therefore, be discharged from the attachment, and the plaintiff obtaining the attachment must pay the costs of this proceeding.