Sacket v. Billinghurst , 7 Cow. 520 ( 1827 )

Curia.

It was the duty of the O. P. clerk to return the habeas corpus at the return day. At any rate, the plaintiff’s attorney was not in fault for the omission. The attorneys for both parties have treated it as returned; the plaintiff’s by his rules and procedendo; the defendant’s by filing the bail piece, though too late to save his default, if the writ had been returned; yet standing by and not questioning the proceedings. Strictly, it should have been returned before the plaintiff could proceed upon it; but the defendant ought not to be allowed to turn this process to the purposes of delay and injustice. It was his writ. It was sued out at his instance, for the purpose of removing the cause; and he acted upon it as a writ returned. We think,' under the circumstances of this case, we may allow the plaintiff to perfect his proceedings by filing the hopeas corpus and return, nunc pro tunc, on payment of the costs of these motions,

Amendment granted.