Corlies & Corlies v. Holmes & Robinson

20 Wend. 681

Opinion

By the Court, Bronson, J.

The statute undoubtedly extends to all writs, whether original or judicial, and to every warrant or •summons, by which a man is called into court to answer in a civil action as a party ; and to executions against the body ; and it makes no difference whether the process be bailable or not. But) although suits may now be commenced by the filing and service of a declaration, 2 R. S. 347, § 1, 2,1 am unable to say that this case comes within the prohibition of the statute. A declaration has never been regarded in the law as “ civil process.” It is not a writ or command, addressed by public authority to an officer or minister of justice ; and the mere delivery of a declaration on the day of election, whether by an officer or any one else, would not be likely to disturb or overawe an elector in the exercise of his privilege. The case cited by the plaintiffs’ counsel, is decisive against the motion. See also Wheeler v. Bartlett, 1 Edw. V. C. Rep. 323.

It is said that an elector might be disturbed in his feelings by the service of a declaration on the day of election. The remark would be equally true, if applied to the service of an execution upon his property ; and yet that is not forbidden. The statute only extends to process which is served on the person of the elector.

Motion denied.