Paul v. Graves

5 Wend. 76

• Court: New York Supreme Court
• Decided: August 5, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

It appears to me indispensable ,|mt (j)e declaration should be entitled specially, as when the cause of action accrues on a particular day in term, notwithstanding that it. be filed in vacation; and although it may seem incongruous to entitle a declaration as of a particular day in term, when in fact the day of the filing is not in term, yet to preserve the regularity of legal proceedings, and at the same lime carry into effect, the provisions'of the revised statutes on this subject, such course is unavoidable. Where thetefore, as in this case, the cause of action accrues in vacation, and the declaration is filed before the next term, it should he entitled as of the preceding term; as, for instance, “Of January term, to wit, the thirteenth day of March, in the temí of January, in the year, &c.” Uu-less this course be adopted, the consequence will be that, the record, when made up, will on its face be erroneous ; it will purport to be a record in a suit commenced previous to the cause of action accruing; and although the time and manner of the commencement of the suit might be shewn by alleging diminution and obtaining the proceedings to be certified by certiorari, still it is preferable that the course which has been suggested should he adopted. It is the duly of the court to frame its practice in conformity to the provisions of the statutes, and we have concluded to adopt in this particular the form above suggested. As the practice on this point has hitherto not been settled, the motion in this case is denied, and the plaintiff is permitted to amend without costs.