Gillespie v. White, 16 Johns. 117

Gillespie v. White

16 Johns. 117 | N.Y. Sup. Ct. | 1819

Spencer, J.

The plaintiff relies on two grounds for reversing the judgment: 1. That the ca. sa. did not lie four days, exclusively, before the return day, in the sheriff’s office; and, 2. That there is no averment in the declaration that a ji,fa. had been issued against the principal.

*120Without entering into the question, whether the bail can p]ea¿ that a ca. set. against the principal did not lie four days in the sherifl’s office. The replication states that fact; it gives us the means of computing; it was delivered to the sheriff on the 15th, returnable on the 19th of September, and was then returned non est inventus; there are four days exclusive of the return day. It is the practice of this Court and the King’s Bench, where any act is to be done within a specified number of days, to consider the day on which notice is given, and the day on which the act is to be done, the one inclusive, and the other exclusive, without any particular designation that the one or the other shall be exclusive. The terms of the rule of the Mayor’s Court, as stated in the plea, according to my apprehension, require the writ of ca. sa. to lie four days in the sheriff’s office, exclusive of the return day. The expression, four days exclusively before the return, mean only exclusive of the return day. This construction has been put upon the rule by the Court which is acting under it; and I do not feel disposed to say that the construction is wrong; indeed, I think it right.

The second exception is unfounded ; the statute 1 JV. R. L. 602. requires a Ji. fa. to be first issued where the defendant enters special bail; this, we have decided, is for the benefit of the principal himself, and he alone can take advantage of that writ not being first issued. If a judgment is more than a year and a day old, there must be a sci.fa. to revive it; and yet the bail cannot take advantage of a ca. sa. issued on such a judgment to ground proceeding against them, without a sci.fa.

Judgment affirmed.