Kinney v. Emery, 37 N.J. Eq. 339

The Chancellor.

The subpoena to answer was made returnable on the 30th of May, which is one of the legal holidays on which it is provided bylaw, “no court shall be held except iu the cases where,” at the passage of the act, “ it would sit on the first day of the week.” Rev. p. 481. The defendants now move to quash the writ on the ground that it was returnable on that day. No action of any kind is required of a defendant in a subpoena on the return-day of the writ. He is not required to appear or enter an appearance then. On the contrary, he is informed by the note at the bottom of the writ that nothing is required of him at that time. By the act respecting the court of chancery it is provided that to every subpoena ad respondendum a notice shall be added that the defendant is not required to appear at Trenton in person, at the return-day, but if he intend to make a defence it is only necessary for him to answer, plead or demur to the bill within the time required by law. Rev. p. 105 § 8. This direction is exactly in accordance with the practice as it existed when the act was passed. Of course if the defendant does not intend to make defence, the fact that the return-day of the subpoena is a legal holiday, on which the court cannot sit, cannot be of the slightest importance or concern to him. And if he does, the fact can do him no wrong in any way. To hold the writ in this case valid is not violative even of the terms of the act. The act provides that the court shall not be held on the holiday, but it is not necessary to make a subpoena to answer returnable on some day on which court is held. The chancery act provides that the court shall be considered always open for the return of such writs. Rev. p. 104 § 3. The motion is denied, but without costs.

Delivery of process by post on Sunday is not service, .Peg. v. Leominster, 2 B. & 8. 391; see Central Bank v. Alden, 41 How. Pr. 102. Process cannot be served on Thanksgiving, Gladwin v. Lewis, 6 Conn. 49; it may be served on the Fourth of July, Horn v. Perry, 11 W. Va. 694; or a deposition be taken, Bogers v. Brooks, SO Ark. 612; and a notice to a sheriff for failing to return an execution may be served on election day, Stephens v. Hume, 1 Litt. 6; or a judicial sale held, King v. Platt, 37 N. Y. 155; and a subpoena and injunction served, Wheeler v. Bartlett, 1 Fdw. Ch. 323; see Meeks v. Noxon, 1 Abb. Pr. 280; Bierce v. Smith, 2 Abb. Pr. 411; an attachment may be served on Christinas, Irish v. Wright, 8 Bob. (La.) 438. An execution cannot be levied on Sunday, Peirce v. Hill, 9 Porter 151 ; Bland v. Whitfield, 1 Jones 122; Fox v. Abel, 2 Conn. 541; see Percival v. Slump, 9 Fxch. 167; nor an inquiry executed, Hoyle v. Cornwallis, 1 Stra. .387; Butler v. Kelsey, 15 Johns. 177; nor a sequestration, Foy v. Harper, 3 La. An. 275; nor a distress, Mayfield v. White, 1 Browne (Pa.) 241; nor an attachment for contempt, Cecil v. Nottingham, 12 Mod. 348. See Walsh v. Jordan, Sm. & Bat. 433. A writ cannot be returnable or returned on Sunday, Swan v. Broome, 3 Burr. 1595; Prime v. Mason, 11 Mod. 120; Peck v. Carell, 16 Mich. 9; Could v. Spencer, 5 Paige 541; Arctic Fire Ins. Co. v. Hicks, 7 Abb. Pr. 204; Hm-vey v. Brood, 6 Mod. 148; but is amendable, Boyd v. Vanderkemp, 1 Barb. Ch. 273 ; nor will a false return on Monday avail, Smith v. Noe, 30 Ind. 117; nor can objections be made to an assessment taken on Saturday under a notice to be heard on Sunday, Louden v. Fast Saginaw, 41 Mich. 18; Burton v. Chicago, 53 Ill. 87; Case v. Fowler, 65 Ind. 29; nor a foreclosure sale be held, Sayles v. Smith, 12 Wend. 57; a sale falling on Thanksgiving, which was designated after the sale had been advertised, may be adjourned on Thanksgiving to a subsequent day, White v. Zusl, 1 Slew. Fq. 107; an administrator’s account cannot be settled, McBee v. McBee, 34 Ala. 165; a poor debtor cannot be discharged on Fast Day, Fstes v. Mitchell, 14 Allen 156; but costs may be taxed in a British province on Good Friday, Cillmore v. Gilbert, 2 Allen (N. B.) 50. Sunday laid under a videlicet in pleading, although judicially noticed, is not material unless • exception be taken, Dawkins v. Smithwiclc, 4 Fla. 158; see Hoyle v. Cornwallis, 1 Stra. 387; so if by error a creditor’s bill allege that his judgment was recovered on Sunday, it may be amended, Ayres v. Valentine, 2 Edw. Ch. 451; and so may an incorrect copy of a summons that is tested on Sunday, Corrall v. Foullces, 5 1). & L. 590; or a misentry in a justice’s judgment, York v. Ackerman, Pen. *900 ; and in an action on a note dated on Sunday, it is competent to allege and prove that it was in fact executed and delivered on a different day, Aldridge v. Bank, 17 Ala. 45 ; Finney v. Callendar, 8 Minn. 4í; Kepner v. Keefer, 6 Waits 231; Bay v. Catlett, 12 B. Mon. 536. A pleading may be filed on the following day if the last day for filing it falls on a holiday, as Christmas, Feuchiwanger v. McCool, 2 Stew. Eg. 151; or New Years, Catherwood v. Shepard,, 30 La. Ann. 677; see Siegbertv. Stiles, 39 Wis. 533 ; or the last day for obtaining an appeal, Garland y. Holmes, 12 Bob. (La.) 421; see Cooney v. Burt, 123 Mass. 579; Goswiler’s Estate, 2 P. & W: (Pa.) 200 ; Buckstaff v. HanviUe, 14 Wis. 77 ; Bussell v. Pickering, 17 Ill. 31; Bodge’s Case, 7 Cow. 147; People v. Luther, 1 Wend. 42. The time for pleading expired on May 25th ; the queen’s birthday fell on the 24th (which was Sunday), and was kept on the 25th, and all the offices were closed. A judgment signed on the 26th on the opening of the offices, was held good, Wilkinson v. Britton, 1 Scott N. B. 348, 1 Mann. & Qr. 557; see Asmóle v. Goodwin, 2 Salk. 624; Wheeler v. Green, 7 Bowl. 194; Catherwood v. Shepard, 30 La. Ann. 677; a warrant of arrest in a civil case cannot be issued and served on Sunday, Moore v. Hogan, 2 Buv. 437. Bail above may be put in on-the Feast of the Purification, Baddely v. Adams, 5 T. B. 170; see Broome v. Wellington, 1 Sandf. 664 ; and if a rule to plead expires on that day, the defendant is bound to plead on or before that day, Mesuire v. Britten, 2 H. Bl. 616; see Cock v. Bunn, 6 Johns. 326; but a judgment for want of a plea cannot be signed, Harrison v. Smith, 9 B. & C. 243; nor on Washington’s Birthday, Hemmens v. Bentley, 32 Mich. 89. An adjournment to take depositions the next day cannot be made on Sunday, Kirkpatrick v. Balt. & O. B. B., 3 Cent. L. J. 792; but it seems the examination would have stood over without an adjournment, Cheeseborough v. Van Ness, 12 Ga. 380; see Speidell v. Fash, 1 Cow. 234; depositions taken on a holiday, against objection, are invalid, Wilson v. Bayley, IS Vr. 134- Whether an affidavit, which appears by the jurat to have been sworn in court on Sunday, is void, Williamson v. Boe, 3 B. & L. 328. Thanksgiving is not to be excluded from the forty-eight hours within which a defendant must make his challenges, after having been served with the panel of jurors, State v. Green, 66 Mo. 631. See Franklin v. Holden, 7 B. 1. 215. A clerk may file the transcript of a judgment on Christmas, and the credit- or’s lien acquired thereby is valid, Worthington’s Case, 7 Biss. 455, reversing S. C., 3 Cent. L. J. 526 ; but a cause cannot be tried and judgment rendered on February 22d, Lampe v. Manning, 38 Wis. 673; see Perkins v. Jones, 28 Wis. 243 ; although a criminal was, against his protest, tried on New Years, Dv-nlap v. State, 9 Tex, Gt. App. 179; Pender v. State, 12 Tex. Ct. App. 496; see State v. MeQimsey, 80 H. C. 377 ; Society v. Commonwealth, 52 Pa. St. 125 ; People v. Lightner, 49 Cal. 226; Bass v. Irvin, Ifi Ga. 436; Chapman v. State, 5 Blackf. Ill; Jones v. Johnson, 61 Ind. 257. A confession of judgment and praecipe for a fi.fa. handed to a prothonotary on Sunday, who entered the judgment and issued the execution the next day, was held valid, Kauffman’s Appeal, 70 Pa. St. 261; and a judgment confessed 'on a warrant which is dated on Sunday, Baker v. I/ukens, 35 Pa. St. 146; and a replevin bond executed on Sunday, but not delivered until Monday, is valid, Prather v. Harlan, 6 Bush 187. Where there is conflicting evidence whether a judgment was actually rendered on Sunday or not, it will be sustained, Bishop v. Carter, 29 Iowa 165. As to other acts on holidays, see Hagerty v. Engle, 14 Vr. 299; Commercial Ins. Co. v. Union Ins. Co,, 19 How. 320; Slate v. Sehnierle, 5 Rich. 299. The Fourth of July is a holiday, Swinney v. Johnson, 18 Ark. 534; Munro v. Allaire, 2 Caines 183; Cuyler v. Stevens, 4 Wend. 566 ; see Huge v. State, 62 Ind. 388; and Christmas, Beithmiller v. People, 44 Mich. 280; Tassell y. Lewis, 1 Ld. Baym. 743. As to Commencement, see City Bank v. Cutter, 3 Pick. 414; and Saturday for a Jew, Lindo v. Unsworth, 2 Camp. 602; Isaacs v. Beth Hamedash Soc., 1 Hilt. 469; Stansbury v. Marks, 2 Dali. 213; Simon v. Gratz, 2 P. & W. (Pa.) 412; Society v. Com., 52 Pa. St. 125 ; Marks v. Wilson, 11 Abb. Pr. 87. Whether holidays are, by usage, included in contracts &e., Beg. v. Stoke, 5 A. & E. (N. 8.) 303 ; Cochran v. Belberg, 3 Esp. 121; School District v. Gage, 39 Mich. 484; Hosley v. Black, 28 N. Y. 438; Brooks v. Minturn, 1 Cal. 481; Bigncy v. White, 4 Daly 400. Exceptions to judicial proceedings on Sunday may he waived, Venable v. Baptist Church, 25 Kan. 177; Comer v. Jackson, 50 Ala. 384; Wright v. Jeffrey, 5 Cow. 15; Grider v. Apperson, 38 Ark. 388; Pierce v. Behfuss, 35 Mich. 53 ; Roberts v. Bower, 5 Hun 558 ; see Hanson v. Shackelton, 4 Dowl. 48; Vanderpool v. Wright, 1 Cow. 209 ; Taylor v. Phillips, 3 East 155; Louden v. Eust Saginaw, 41 Mich. 18.—Rep.

Case Details

Case Name: Kinney v. Emery

Court Name: New Jersey Court of Chancery

Date Published: Oct 15, 1883

Citation: 37 N.J. Eq. 339

Court Abbreviation: N.J. Ct. of Ch.