Hawley v. Castle

Connecticut Superior Court

Hawley v. Castle

1 Kirby 218

DecidedFebruary 15, 1787

StatusPublished

This text of 1 Kirby 218 (Hawley v. Castle) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hawley v. Castle, 1 Kirby 218 (Colo. Ct. App. 1787).

Pincite

Opinion

By the whole Court.

The declaration is ill. — The counting is of a joint tenancy, or tenancy in common. The conclusion and demand is — “ That the defendants refuse to make partition thereof, and prevent the same being done — to the plaintiff’s damage £70 — and for the recovery thereof, with cost, this suit is brought,” etc.— Here is no demand of partition, without which the action is nugatory and vain. This omission is not cured by verdict.

The defendants then moved, that cost might be taxed in their favor. But,

By the Ooubt. It cannot; for the defendants might have taken this advantage, by demurrer, at the beginning of the suit; and after having led the plaintiff through a trial, on the merits of the cause, if the defendants will then defeat him, by a defect which they might have availed themselves of at an early stage of the suit, they shall not be allowed their cost. — This rule has been settled on full deliberation.

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By the whole Court.

The declaration is ill. — The counting is of a joint tenancy, or tenancy in common. The conclusion and demand is — “ That the defendants refuse to make partition thereof, and prevent the same being done — to the plaintiff’s damage £70 — and for the recovery thereof, with cost, this suit is brought,” etc.— Here is no demand of partition, without which the action is nugatory and vain. This omission is not cured by verdict.

The defendants then moved, that cost might be taxed in their favor. But,

By the Ooubt. It cannot; for the defendants might have taken this advantage, by demurrer, at the beginning of the suit; and after having led the plaintiff through a trial, on the merits of the cause, if the defendants will then defeat him, by a defect which they might have availed themselves of at an early stage of the suit, they shall not be allowed their cost. — This rule has been settled on full deliberation.

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Bluebook (online)

1 Kirby 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawley-v-castle-connsuperct-1787.