Kilpatrick v. Carr

3 Abb. Pr. 117

• Court: New York Court of Common Pleas
• Decided: May 15, 1856
• Status: Published

Opinion

INGRAHAM, F., J.

The affidavits in this case cannot be referred to, in the decision of the appeal. We are bound by the return, and cannot look at matters not contained therein.

The defendant demanded atrial by jury. On the adjourned day the defendant did not appear, and an inquest was taken before the justice without a jury. The defendant’s excuse is contained in an affidavit, and cannot be available to him on this appeal, if it was sufficient., Even if we could use such affidavits, it appears by them that he did not pay the fees until it was too late to issue the venire for the jury, and his subsequent payment of the fee to the clerk did not entitle him to an adjournment. The statute requires the fee to be paid when the service was rendered, and unless such fee is paid before the time has elapsed within which the law requires the act to be done, it is too late. (laws of 1849, 204, § 11.)

(We omit some remarks upon a question arising upon the merits.)

Judgment affirmed.