
    
      S. H. Butler v. Edmund Corbitt.
    
    The plaintiff is in Court for a year and a day after the service of his process,- and that period should be considered as beginning from the return day of the' process.
    Though the Court will not interpolate a new motion for a party, so as to enable him to attain an ulterior end, it is not inclined to refuse a motion actually made' by him, because the particular reason assigned, in the way of argument, is insufficient, while a good one is apparent.
    Where a bail process was served at a time which, though within a year and a day, was long after the term to which, on its face, it was returnable, and no alias had been issued — the Court held that though the plaintiff’s case was connected with the jurisdiction, his process was fwnckis officio for the purpose of warranting the capture of the defendant — nor was he under the protect tion of the Act of 1792, which enacts that “all process lodged for service, and actually served for the Circuit Courts, after the time prescribed for the return of process,” shall be a good service for the next succeeding term.
    
      Before O’Neall, J. at Barnwell, Fall Term, 1847.
    This was a bail sum. pro. issued and lodged with the sheriff 16th July, 1846, and served by arresting the defendant, on the 9th October, 1847.
    There was a motion made to set aside the service, on the ground that the plaintiff was entirely out of Court when service was made ; but as the process was returnable to October Term, 1846, the plaintiff was not out of Court, until a year and a day from the return, which had not expired. — • His Honor thought the motion, therefore, on that ground, ought not to prevail.
    He considered no other objection — no other objection is taken in the ground of appeal.
    
      Ground of Appeal.
    
    Because, the process having been issued and entered 16th July, 1846, and not served until 9th October, 1847, it is respectfully submitted that the plaintiff was entirely out of Court, and should have issued his process anew.
    Owens, for the motion.
    Cited Act of 1792, 7 Stat. at L. ' 281; 3 McC. 281, and 3 McC. 507.
    A. P. Aldrich, contra.
    
    Cited Bank v. De La Torre, 2 Spears, 501, and Perry v. Aiken, 3 Rich. 60.
   Withers, J.

delivered the opinion of the Court.

The motion below, renewed here, was to set aside the service of process upon defendant, because the plaintiff was out of Court. The motion was refused upon the ground taken to sustain it; and so far as the reason assigned is concerned, we do not find error in the Circuit decision; for the plaintiff was in Court for the space of a year and a day, and that period should be considered as beginning from the return day of the process; and so considered, the service was within the year and day. But there is ground enough, upon another reason, why the service should be regarded as illegal; and though we would not interpolate a new motion for a party, so as to enable him to attain an ulterior end, we are not inclined to refuse a motion actually made by him, because the particular reason assigned by him, in the way of argument, is insufficient, while a good one is apparent.

The process actually served, was served at a time which, though within a year and a day, was long after the term to which, on its face, it was returnable, and no alias had been issued. Though the plaintiff’s case was connected with the jurisdiction, his process was functus officio for the purpose of warranting the capture of defendant. Nor was he under the protection of the A. A. 1792, 7 Stat. 281, sec. 9, which enacts “ that all process lodged for service and actually served, (or copies left at the defendant’s place of abode,) for the Circuit Courts, after the time prescribed for the return of process,” shall be a good service for the next succeeding term. The exigency contemplated by this legislation appears in no particular in the present case; and so the defendant was illegally served.

The motion is, therefore, granted: and it is ordered that the service of the process upon the defendant be set aside.

Richardson, J. O’Neall, J. Evans, J. Wardlaw, J. and Frost, J. concurred.

Motion granted.  