Brown v. Van Deuzer

New York Supreme Court

Brown v. Van Deuzer

10 Johns. 51

CourtNew York Supreme Court

DecidedJanuary 15, 1813

StatusPublished

Cited by5 cases

This text of 10 Johns. 51 (Brown v. Van Deuzer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Van Deuzer, 10 Johns. 51 (N.Y. Super. Ct. 1813).

Pincite

Opinion

Per Curiam.

The question arising upon the trial was, whether the plaintiff Brown had sued out a writ before the September term of the common pleas, according to the condition of the re[53]*53cognisance. This was a question of fact triable by jury, and not by record, notwithstanding the averment of proul patet per record~um. The entry on the record could not be conclusive of that fact; for then, as was observed in the case of Conry v. Jacob, (1 Sid. 220.) upon a similar question, it would be in the power of an attorney to make an entry upon record of the issuing of the writ, though the writ had never issued. Such an entry is like a comrwittitur entered of record. It does not estop the party to deny the fact, and it shall be tried per pais, and the record is but evidence and not conclusive. (Keeling, Ch. J. in Middleton v. Manucaptors of Sylvester, 1 Sid. 216.) In this case, there was not only a record of the award of the writ, which was sufficient to satisfy the unnecessary averment in the declaration, but parol proof was also offered to show the fact, and that the deputy sheriff had made attempts to serve the writ, and that he was now dead and the writ lost. There does not appear to be any good objection to this testimony. It went to supply the non-production of the writ, and ought to have been received. It was not analogous to those cases in which the record is the sole and exclusive test of a fact.

Judgment reversed.

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The question arising upon the trial was, whether the plaintiff Brown had sued out a writ before the September term of the common pleas, according to the condition of the re[53]*53cognisance. This was a question of fact triable by jury, and not by record, notwithstanding the averment of proul patet per record~um. The entry on the record could not be conclusive of that fact; for then, as was observed in the case of Conry v. Jacob, (1 Sid. 220.) upon a similar question, it would be in the power of an attorney to make an entry upon record of the issuing of the writ, though the writ had never issued. Such an entry is like a comrwittitur entered of record. It does not estop the party to deny the fact, and it shall be tried per pais, and the record is but evidence and not conclusive. (Keeling, Ch. J. in Middleton v. Manucaptors of Sylvester, 1 Sid. 216.) In this case, there was not only a record of the award of the writ, which was sufficient to satisfy the unnecessary averment in the declaration, but parol proof was also offered to show the fact, and that the deputy sheriff had made attempts to serve the writ, and that he was now dead and the writ lost. There does not appear to be any good objection to this testimony. It went to supply the non-production of the writ, and ought to have been received. It was not analogous to those cases in which the record is the sole and exclusive test of a fact.

Judgment reversed.

Cite This Page — Counsel Stack

Bluebook (online)

10 Johns. 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-van-deuzer-nysupct-1813.

Opinion

Related

Cite This Page — Counsel Stack