In this ease the four clear juridical days, Which are allowed for bringing d writ of error, had not elapsed when execution issued. But here is no irregularity. Though the defendant has four days to bring error, the plaintiff may, in the mean time, issue execution, at his peril, Which is subject to be superseded, by filing a Writ of error, and putting in bail. (Brisban & Brannon v. Caines, 11 John. Rep. 197.) But it is objected, that here is no writ of error ; and this draws in question the construction of the statute. (Sess. 38, ch. 38, s. 1.) As far as we can learn, the practice under this act has been, to issue out of this Court all writá formerly issuing out of Chancery, returnable here, as well, original writs, properly so called, as writs of error. We are of Opinion, that this is the correct practice. The words ef the statute are, original writs for the commencement of any suit or proceeding. It is imperative ; they shall hereof ter issue out of and under the seal of the Court, in which such writs may be returnable. This was, undoubtedly, the commencement of a proceeding, within the words of the act.
A rule to show cause, &c.
On the nth of May, the time appointed in the rule .to show cause, Blunt moved to make the rule for a mandamus absolute.
Greenwood, produced the answer of the Judges, which did not vary materially from the facts, as they appeared on moving for the first rule. It appeared, however, that shortly after the writ of error, which issued out of Chancery, had been filed, the attorney for the defendant, supposing it might be defective, had procured a writ of error to be issued out of this Court, and filed with the Clerk, in the Court below, upon which, bail was put in. It farther appeared, that after the trial, the bill of exceptions had been drawn up by the attorney for the defendant, and amendments proposed by the attorney for the plaintiff; in consequence of which it was not settled and signed by the Judge who tried the cause, until the lQth of January, more than a week after the trial.
Greenwood, now referred to Wathen et al. v. Beaumont et al. (11 East, 271,) where it was holden, that Sundays and Holy days were excluded from the computation of time given to plead upon a sci.fa. though these may not happen on the last day. He also referred to Roberts v. Stacy, (13 East, 21,) which decides that the first and last days, as well as Sundays, 9-re excluded, in counting time, upon a rule for judgment. (b) The principle of these decisions, he said, would give the
T. A. Emmet, referred to the case of Doe v. Finely, (4 Taunt. 289,) as onp which he should use in his reply. He mentioned this case now, that the counsel opposed to the motion, might have an pppprtunity to answer it.
Fessenden, for the defendant, said he supposed, that court-, se^ answering a rule to show cause, had the right of reply, which he should claim to exercise, if he thought it necessary ; to which the Court agreed. He insisted that the writ of error, out of Chancery, was not a mere nullity. It was voidable only, not void. If voidable, it would operate as a supersedeas till set aside ; and the Court below had no right to question its regularity. The statute does not declare, that an original writ, issued out of Chancery, shall be void. This Court have decided that a writ, though not tested in the name of the Chief Justice, is voidable, and may be amended. (U. Slates v. Hanford, 19 John. 173.) Yet this test is absolutely required by the Constitution.
But the counsel and attornies in the Court below, did what was equivalent to an order to stay proceedings, in that Court. A bill of exceptions was drawn up, and amendments interchanged. The attorney for the plaintiff appearing, and ta'king part in settling the bill, was calculated to mislead,the attorney for the defendant, who was thereby prevented from obtaining an order. This Court have decided, that where the counsel for the parties submit to the Court a motion in arrest of judgment, it operates, per se, as a stay of proceedings. What the parties have done here is the same in effect. But if not, the Court below had a right to relieve against this strict practice, on the ground of misapprehension. (The Mayor, &c. of New York v. Sands, 2 Caine's Rep. 378.) The same thing is done at every term of this Court. Here ample bail is given, and no evil can arise in allowing, full operation to the second writ of error. In granting a mandamus, this Court'exprcisp a discretionary power ; and
Blunt fy T. A. Emmet, contra, said that the writ of error was void. And there had been no surprise, to warrant the interference of the Court below. The writ issued out of a Court having no authority to grant it. Suppose it had issued from one of the United States’ Courts, would the Judges have been bound to obey it ? The judgment having been perfected, it passed beyond the control of the Court below. Nor does the answer of the Judges put their proceeding upon the ground of discretion. True, a writ may be amended in the test, because it issues out of a proper Court; but you cannot amend the fact, that it issued out of the Court of Chancery. It is as much void to all intents, as if it had been issued by the Common Pleas of Chenango. Nor is this case like submitting a motion in arrest of judgment; for that comes before the Court in due and proper course ; and the submission would, in its nature, stay the proceedings. As to the disposition of the money when collected, they submitted it to the Court.
The facts shewn for cause, appear to be precisely the same, to every material purpose, as on granting the rule to shew cause ; and we see no sufficient reason for changing the opinion which we then expressed. The Court below misapprehended the practice, in supposing that execution could not go, within the four days. The plaintiff had a qualified right to his fi. fa. The words of the statute, undoubtedly, embrace writs of error ; and this construction is ■conformable to the general practice and understanding of the bar. Here there was no writ of error, and no bail. All is void. But a second and valid writ of error has been filed, and bail put in. This was not till after the fieri facias was executed ; and therefore, does not operate as a superset
Rule absolute, but without costs.(e)
(b).
In rules plead, in actions in general, a Sunday or Holyday reckons as a day, unless it be the last. (Roberts v. Quickenden, 11 East, 272, note c. Cock v. Bunn, 6 John. Rep. 327.) One day is reckoned inclusive, and the other exclusive; so that where notice of the rule Jo plead is served the 1 st September, the defendant has all the 21 st day in which to plead, and the default cannot be entered till the 22nd. (Hoffman v. Duel, 5 John. Rep. 232.) And where the time for pleading is extended by an order, until such a day, it includes that day; so that the default cannpt be entered till the next. (Thomas v. Douglass, 2 John. Cas. 226.)
(c).
Blanchard v. Myers, 9 John. Rep. 66. Meriton v. Stevens, Willes, 271,
(d).
In Meriton v. Stevens, a similar rule was made m the Court heloy, without the consent of parties.
(e).
The form of the mandamus, thereupon issued, was thus:
The People of the State of New-York :—To the Judges of the Court of Common Pleas of the city of New-York, Greeting : Wheve(L. S.~) as Edmund M. Blunt, lately recovered a judgment for the sum of nine hundred and ninety-seven dollars and eighty-two cents, against one Isaac Greenwood, which said judgment was entered of record, in the said Court of Common Pleas, on the eleventh day of January last, and upon which said judgment a fieri facias was issued ; and, afterwards, a levy made by virtue of the said fieri facias, upon the goods aqd chattels of the said Isaac, to wit, on the seventeenth day of said January ; and whereas, we have been informed, from the complaint of the said Edmund, that a rule was granted by you, during the last February term of the said Court of Common Pleas, setting aside the said fieri facias, to the great damage and grievance of the said Edmund:
We, therefore, being willing that due and speedy justice should be done to the said Edmund, in this behalf, as it is reasonable, do command you, firmly enj oining you, that immediately after the receipt of this our writ, you do, without delay, vacate, and cause to be vacated, the said rule granted by you at the last February term of the said Court of Common Pleas, that the «ame complaint may not, by your default, be again repeated to us : and how you shall have executed this our writ, make known to us, before our Justices of opr Supreme Court of Judicature, at the Academy in the town of Utica, in the county of Oneida, on the first Monday of August next, then and there returning this our writ, upon peril, that may fall thereon. Witness, John Savage, Esquire, Chief Justice, at the City Hall of the city of New-York, the seventeenth day of May, in the year of our Lord one thousand eight hundred and twenty .three,
Fairlie, Bloodgoof & Breese, Clerks~
J. Bhmt,A tt’y.