Gibbons v. Larcom

New York Supreme Court

Gibbons v. Larcom

3 Wend. 303

DecidedOctober 15, 1829

StatusPublished

This text of 3 Wend. 303 (Gibbons v. Larcom) 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

Gibbons v. Larcom, 3 Wend. 303 (N.Y. Super. Ct. 1829).

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Opinion

By the Court,

Mabcy. J.

It is not necessary by the practice of the king’s bench in England, that a writ of execution should be made returnable in the term next after that in which it is tested ; if a term intervene., it is pot material. [304]*304(Archbold, tit. Execution, teste &c.) But we have a statutory regUlati0n which conflicts with this practice, (1 R. L., 318,) regulating the teste and return of process in this court. ^ bas been supposed by counsel, that this statute related only to mesne process; this court however regarded it otherwise in Gordon v. Valentine, (16 Johns. R. 145,) where e. Jifa. and ca. sa. tested otherwise than directed by the statute, were held to be irregular. This provision in the new revision of the statutes, (2 R. S. 197,) is explicitly applicable to final as well as to mesne process. The motion is granted unless the plaintiff pays the costs of this motion, in which case he has leave to amend.

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By the Court,

Mabcy. J.

It is not necessary by the practice of the king’s bench in England, that a writ of execution should be made returnable in the term next after that in which it is tested ; if a term intervene., it is pot material. [304]*304(Archbold, tit. Execution, teste &c.) But we have a statutory regUlati0n which conflicts with this practice, (1 R. L., 318,) regulating the teste and return of process in this court. ^ bas been supposed by counsel, that this statute related only to mesne process; this court however regarded it otherwise in Gordon v. Valentine, (16 Johns. R. 145,) where e. Jifa. and ca. sa. tested otherwise than directed by the statute, were held to be irregular. This provision in the new revision of the statutes, (2 R. S. 197,) is explicitly applicable to final as well as to mesne process. The motion is granted unless the plaintiff pays the costs of this motion, in which case he has leave to amend.

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Bluebook (online)

3 Wend. 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbons-v-larcom-nysupct-1829.