The attachment in this case was irregularly issued, and must be set aside. The order for the attachment must have been entered at Albany, on the 24th of August, after the opening of the register’s office on that day. And yet, in the morning of that day, the complainant says he saw one of the defendant’s solicitors and informed him that he had issued an attachment against the defendant. The attachment, therefore, must have been issued before the order which authorized the issuing of such a.process was entered. And as no costs were legally due at that time upon the attachment thus irregularly issued, the solicitor should have recalled it, and not allowed the defendant to be arrested thereon after the notice of appearance was received.
Again ; the subpoena which was made returnable on Sunday was irregular, and did not warrant the entering of the order for an attachment, even if no notice of appearance, had been given. This court, although legally open on all other days, cannot be opened or held on Sundajr, for any purpose whatever. (2 R. S. 275, § 7.) It is therefore irregular to make any process returnable on that day. Sunday is expressly excepted in the 19th rule, which authorizes process to be made returnable on any day, either in vacation or term, unless otherwise directed.
As the complainant’s solicitor insisted upon strict practice, in this case for the purpose of getting costs, which had arisen from the accidental delay of the solicitors of the defendautsin serving their notice of appearance, and has himself made a fatal slip, his client must be charged with the costs of this application, and the costs on the- attachment. The order for setting aside the attachment as irregular must contain a clause restraining the defendants from bringing any action at law for the illegal arrest. It is not necessary that the order should be, in its terms,'conditional, as this court *543has jurisdiction to restrain a proceeding elsewhere for any abuse of its process, and to compel the party injured thereby to come here for compensation. (Aston v. Heron, 2 Mylne & Keene, 390. Nugent v. Nugent, 2 Moll. Rep. 378.)