
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807,
    Hickman v. Armstrong.
    A defendant was served with process while attending a muster of the militia, in his proper beat, contrary to act of assembly of 1794, and he did not appear according to the exigency of the process; in consequence of which, judgment was obtained against him. On motion, the District Court set aside the judgment as illegal; and on appeal, four judges to two, decided that the judgment was properly reversed, and that in such case it maybe done at any time before the rights of third persons attach under the judgment.
    Appeal from the decision of Brevard, J., in Sumter district, on a motion to quash the writ, and set aside proceedings in this case, on the ground that the defendant had been served with the process, while he was on duty attending a muster of the militia, under a clause in the militia act of 1794, which enacts, “ that no civil officer whatsoever, shall on any pretence, execute any process, unless for treason, felony, or breach of the peace, on any person whatsoever, at any muster, or other time, when such person shall be obliged to bear arms, in pursuance of the directions of said act, nor in going to, or returning from, any muster or place of rendezvous, or within twenty-four hours after such person shall be discharged, under the penalty of £5, sterling ; and the service of any such pro - cess shall be void, to all intents and purposes.” The defendant did not appear at the court, at which he was notified by the copy writ served on him to appear; nor was any appearance entered for him, or any motion then made in his behalf; in consequence of which an order for judgment was afterwards obtained, and the cause was docketed on the docket of writs of enquiry.
    At the following court, Richardson moved to set aside the proceedings, and contended that, inasmuch as the affidavits submit, ted to the court, upon which he founded his motion, proved the defendant, when served with the process in this case, was on duty, attending at a muster; and as the act declares void, to all intents and purposes, the service of any such process under such circumstances, the proceedings were without any foundation, and ought to be set aside.
    Branding, on the contrary, for the plaintiff,
    argued that any man may waive or relinquish a privilege introduced for his own advantage, and as well by forbearing to claim it, as by expressly renoun-eing it. Forbearing to exercise, or to take the benefit of a prlvi-lege, within a reasonable time, amounts to a waiver, or abandon. merit of such privilege. Suppose the defendant had expressly agreed to accept the service of the writ 1 Suppose he had expressly agreed to waive this privilege1? Can it bo said that he had no right to do so I If he could waive his privilege by an express agree, ment, may not a waiver be implied from circumstances, and presumptive evidence ? To avoid delay, and iuconvenieuce, the ad. Vantage ought to be taken within a reasonable time. What is a reasonable time, is a question of law. Great inconvenience Would result, if, at any time, after judgment and' execution, the defendant may come forward and set aside all the proceedings for a cause which neither the sheriff nor the plaintiff might know any thing of. On many accounts, the objection to such a service ought to be taken at the appearance court, or court to which the writ may be returnable. It would be both more reasonable, and more consistent with the course of judicial proceedings, than to do it at any subsequent period. The decision- of the District Court was against the motion.
    
      Note. Stat. 29, c. 2, c. 7, sec. 6, declares that service of civil process, on the ¡Lord’s day, shall be void, to all intents and purposes. And it has been adjudged, that such service cannot be made good by any subsequent waiver of the defendant, or even assent to waive the objection. See 3 East. 155. Taylor v. Philips. Vid. 8 D. and E. 86. Sed. Vid 5 D. and E. 74.
    The motion in this court was to reverse the decision of the District Court; and the same arguments were repeated for and against the motion, which had been used in the District Court. *
   Trezevant, J.,

delivered the opinion of a majority of the court,

Wilds, J., dissented at first, but did not.deíiver any opinion to the contrary. The service was void, by the act of assembly. The defendant did no act from which his assent to the service can be implied. The objection was taken in time. It may be made at any time before third persons acquire a right founded on the proceedings against him, or are exposed to be affected by setting aside such proceedings. As between the parties themselves, the proceedings may be set aside at any time.

Motion granted.  