Majority
p. 303Gibbons, executrix, vs. Larcom. insisted that a term may intervene between the teste and return of a ca. sa. without affecting its regularity ; though it would be otherwise in the case of mesne process. (2 Bacon’s Abr. tit. Execution, C. 1. 1 Archbold’s Pr. 259. 1 Sellon, 521.)
Headnote
a ca. sa. with a term intertweerfits testé and return, is inre2ulai"Motion to set aside capias ad satisfaciendum for irregular!ty. The ca. sa. was issued on the 29th day of July last, tested on the 16th day of May, and returnable on the third Monday of October then next. The defendant was arrested on it on the 14th day of August.
Lansing <§- Frothingham, for defendant, cited 1 R. L. 318.
J. Edwards, for plaintiff,
By the Court,
It is not necessary by the practice of the king’s bench in England, that a writ of execution should be made returnable in the term next after that in which it is tested ; if a term intervene., it is pot material.
p. 304
(Archbold, tit. Execution, teste &c.) But we have a statutory regUlati0n which conflicts with this practice, (1 R. L., 318,) regulating the teste and return of process in this court. ^ bas been supposed by counsel, that this statute related only to mesne process; this court however regarded it otherwise in Gordon v. Valentine, (16 Johns. R. 145,) where e. Jifa. and ca. sa. tested otherwise than directed by the statute, were held to be irregular. This provision in the new revision of the statutes, (2 R. S. 197,) is explicitly applicable to final as well as to mesne process. The motion is granted unless the plaintiff pays the costs of this motion, in which case he has leave to amend.