Hawley v. Hanchet

1 Cow. 152

• Court: New York Supreme Court
• Decided: August 15, 1823
• Status: Published

Opinion

Curia.

The demurrer in this case was not served, and it is a little doubtful whether it was sent for the purpose of being served, until after the verdict was recorded. Yet the' party had a right to demur at any time within the 20 days limited by the rule,

(a) (in this case 40 days, because service of the plea was upon the agent.)(b) The only question is, whether the demurrer is frivolous, and in fraud of the rule which gives the time. If so, we will disregard it. Here is a plea of nul tiel record, in the usual form. To this the plaintiff has replied, simply, that “ there is such a record,” omitting the conclusion which uniformly follows such a replication in the precedents, (c) And the demurrer is special, assigning this omission for cause. We think there is ground for the demurrer, and we cannot preclude the party from bringing up the question in this shape. Here is a formal defect, and the issue is not well joined, as to the plea of nul tiel record.

Motion granted.

9 Reg. Gen. April Term, 1796.

8 id. Jan. Term, 1799.

2 Ch. Pl. 624-5. 7 Wentw. 68. 2 Rich. C. P. 218. 1 Saund. 92; 93. Tidd's Forms, 200. Herne, 278. 2 Lutw. 1514. 1 Ch. Pl. 571. 3 Bl. Com. 330-1. Barn. 335. Salk. 566.