Pixley against Winchell

Pixley against Winchell. UTICA, August, 1827. fe/idanT6 afppears, though voidfan^hVis fact°at the time of appearance; will not wards set that, quentTproceedingsasid& The caF^as a& respondendum was tested August term, 1826, and returnable the 28th. of October, instant. The defendant put in special bail; neither he nor his attorney knowing anything of the irregularity. On the plaintiff’s declaring, the defendant and his attorney discovered it; now) t^ie next term a®;er discovery, G. C. Bronson moved to set aside the capias and subsequent proceedings. W. H. Maynard, contra, said, the defendant was too late with his motion, after putting in bail. (17 John. 63; Str. 155; 1 H. Bl. 222; 1 B. & P. 250; 5 East, 255.) Bronson said, it is never too late to take advantage of an irregularity like this, so long as the party knows nothing of it. The process is a nullity. [MAJORITY — Curia.] Curia. "Without saying whether this writ is absolutely void, we are clear that it cannot be set aside at this stage of the cause. The defendant has taken a step, by which he is regularly in court, whether there be any process or not. We will not interfere, merely because the party acted in ignorance, that the process was void. Motion denied.