
    Stretter et al. vs. Fisher et al.
    A capias made returnable more them sixty clays &om its teste, is irregular. (See Rule 98.) Ho costs will be given on setting aside such a writ, where it was issued before the new rules were published, and in ignorance thereof
    
      September Special Term, 1847.
    
      Dutclvess county.
    
    
      Motion to set aside capias, on the ground that more than sixty days intervened between he teste and return.—The capias was tested 30th of July, 1847; returnable the 3d Tuesday of October next. The Defendant relies on rule 98; the Plaintiffs’ attorney swears that the rules were not published until August, and that he was ignorant of the rule, and relies on the 57th section of'the Judiciary Act.
    J. Dean, for Deft.
    
    C. Swan, for Plff.
    
   Barculo, Justice.

Independent of the rules, the capias was right. But the rules went into effect the 14th of July, and therefore the return day being more than sixty days after the teste, renders the. writ erroneous. It must be set aside, but without costs.  