Bank of Orange v. Van Aukin

1 Cow. 58

• Court: New York Supreme Court
• Decided: May 15, 1823
• Status: Published

Opinion

Blunt, referred to that case, and also to Checiham v. Lewis, (3 Caines’ Rep. 256 ;) and contended that the two terms having elapsed on the 20th, when the defendant’s attorney received the copy of the declaration and notice of the rule to plead, he was not bound to answer it.

J. 0. Hoffman, jun. contra. The term continues during three weeks, for all purposes except the test and return of process ; to which the Court agreed. (Sess. 36, ch. 3, s. 1, 1 R. L. 318.)

(a)

Blunt, remarked, that this might be the case, so long as tiie Court continued their session in the third week ; but they, in fact, adjourned at the last January term, on Saturday of the second week.

Curia.,

Filing a declaration is a compliance with the rule, especially where there is a bona fide attempt, as in this case, to serve it. Here, then, was a declaring within the two terms, the declaration being filed, and a copy mailed to the defendant’s attorney, before the end of the second week in term. The plaintiff is therefore regular ; but as the defendant swears to merits, we grant the motion, on payment of costs.

Rule accordingly.

By the Judiciary act of 1823, (Sess. 46, ch. 182, s. 1,) the terms, except for the purposes of test and return, may be continued four weeks.