Harwood v. French

4 Cow. 501

• Court: New York Supreme Court
• Decided: August 15, 1825
• Status: Published

Opinion

Curia.

The only question is, whether the defendant, before the Justice could appeal. If he could not, it is clear that a certiorari lies. On looking into the act, we think this a case to which the remedy by appeal is inapplicable. It lies in those cases only where there is a trial, either by the Justice, or a jury. Technically speaking, here has certainly been no trial. Nor has there, we think, been one within the meaning of the act. It speaks of an issue joined by pleading, upon which alone the cause is to be heard in the Court of Common Pleas. Here was no issue ; no pleadings on which the Court of Common Pleas could proceed to a trial, properly so called. In point of form, only one party could be heard, except as to the mere question of the amount of damages. The proceeding must be in nature of an inquest. No venire could issue, or jury be convened and sworn, to pass upon any issue between the parties. The motion must be denied.

Motion denied.