Bayard v. Malcolm

1 Johns. 310

• Court: New York Supreme Court
• Decided: May 15, 1806
• Status: Published

Opinion

Per Curiam.

If the defendant file his reasons in arrest of judgment, within the first four days of the term, next after the verdict, and judgment is also stayed by a, judge’s certificate, the defendant is at liberty, at any time, or term thereafter, during the existence of the certificate, and while it is in force, to move in arrest of judgment.. According to the English practice, the certificate to stay proceedings amounts to an enlargment of the four day-rule nisi. If it were otherwise, the defendant would for ever preclude himself from making his motion, for a new trial, unless time were given by a special rule ; for that motion, according to the course of business, can never be brought on within the first four days; so that these special rules would be requisite in every case, and become rules of course ; and We may as well, at once, con- . , , -nr ■ j. • sider the certificate for staying- proceedings, as amounting to an enlargement of the rule nisi.

EL B. The counsel not agreeing to consolidate the two motions, the court said, that as the motion in arrest of judgment, was a non-enumerated motion, they would first hear the one for a new trial; afterwards, the counsel agreed to consolidate them, and the cause was argued on both ; but the court gave no opinion this Term.