The motion must be denied. It was not material whether the defendant had knowledge of the defect or not, when he put in special bail. Putting in bail would have warranted the plaintiff in proceeding without any process. 'The case is not within the statute, or the rule of public policy which forbids any ministerial act in the course of a cause to be performed on Sunday. It is probably a mere clerical mistake of the return day. It was taken for granted, however, by Vanderpoel v. Wright, (1 Cowen’s Rep. 209,) that -even m that case, which was the service of a capias on Sunday, an appearance would have cured the defect.
Motion denied.