Opinion
August Term, 1858.
In the twenty days within which, under the 8th sec. 59th ch. Rev. Code, a ca sa. must be executed, Sunday was held to be inclusive.
THIS was a motion to dismiss a capias ad satisfaciendum heard before PERSON, Judge, at the last Spring Term of Henderson Superior Court.
J. W. Woodfin, for the plaintiff,
Dickson, for the defendant.
The only question in this case, was whether a capias ad satisfaciendum, executed on the defendant twenty days before the term of the Court to which the same was returnable, is inclusive or exclusive of sunday.
His Honor being of opinion that sunday was to be counted as one of the twenty days, refused to dismiss the proceeding, from which the defendant appealed.
The only question presented for our decision is, whether the twenty days, within which, under 8th sec. 59th ch. Rev. Code, a capias ad satisfaciendum must be served before the term of the County Court to which it is made returnable, is inclusive, or exclusive, of sundays. The process cannot be executed on a sunday, but we cannot perceive any good reason why that day may not be computed in the time allowed to the defendant for preparing to take the benefit of the act for the relief of insolvent debtors at the next term of the court; and such, we believe, has always been the construction put upon this, and all other acts of a similar kind. Thus, by the act of 1777, Rev. Code, ch. 31, sec. 50, a writ of capias ad respondendum, issued from the county court, must be executed on the defendant five days before the term to which it is to be returned, and it has always been considered that served on wednesday before the monday on which it is returnable, is sufficient, and it is manifest that sunday is included in the time.
It is an additional argument in favor of this construction, that when sundays are to be excluded, as in the case of the return day of warrants issued by justices of the peace out of court, the Legislature so declares in express terms. See Rev. Code, ch. 62, sec. 7.
PER CURIAM, Judgment affirmed.