Van Vechten v. Paddock , 12 Johns. 178 ( 1815 )

Thompson, Ch. J.

delivered the opinion of the court. The only question in this case is, whether this suit was duly and legally commenced, so as to preclude the sheriff from pleading a voluntary return. The statute (2 N. R. L. 194.) prohibiting the service of process on Sunday, does not, literally, extend to this case. Nor was it necessary that it should, for according to my understanding of the law on the subject, no process can be legally issued on Sunday, The same principles of policy, as well as of religion and morality, would interdict the issuing as well as the service of process on Sunday. And had not the common law made it illegal, it is most likely that the statute would have also extended to this case. It is a maxim of the law, that Sunday is dies non juridicus, And usage. and the history of the law, show that courts cannot sit on Sunday. In Mackally’s case, (9 Coke, 68.) a distinction was taken between judicial and ministerial acts. The former, it was said, could not, though the latter might, be performed on Sunday. This case, however, was decided before the statute 29 Car I. which made void the service of process on Sunday. In Becloe v. Alpe, (Sir William Jones, 126.) it was said by the court, that Sunday was not a dies juridicus for the awarding of any judicial process, nor for entering any judgment of record. And the awarding of process, and the giving of judgment, are judicial acts, and therefore cannot be supposed to be done but whilst the court is actually sitting. (3 Burr. 1600.) Hence it is that a writ tested on Sunday is considered void.

In the case of Taylor & Philips, (3 East, 156.) Lord Ellenborough said, the statute 29 Car. I. was founded on public policy, and the regularity or irregularity of the proceedings contrary to it, could not depend on the assent of the party, or be waived by him. And if considerations of policy are to be taken into view, they will apply with'equal force to the issuing of process. For this may, and, indeed, in judgment of law must, necessarily impose upon the officers of the court the duty of keeping their offices open on Sunday. The clerk, if called upon, would be bound to issue the process, and the coroner bound to receive it. For if it is the right of the party to issue process, it is the duty of the officers of the court to lend Mm their aid, if necessary. If it depends on the will and pleasure of these officers whether they will lend their aid or not, parties may not be placed on the same footing with respect to their remedy against a sheriff in cases like this. Although it has been repeatedly said by this court that the issuing of the writ is, to every material purpose, the commencement of a suit; (3 Johns. Cas. 146. 1. Caines, 71.) yet this must be understood as applicable to cases where the writ might be executed, or some efficient act done under it, which could not have been done here, as it is not pretended that it could have been served on Sunday. The court are, therefore, of opinion, that there was not such a commencement of a suit against the sheriff as to deprive him of the defence set up of a voluntary return of the prisoner. A judgment of nonsuit must be entered, according to the stipulation in the case.