Roosevelt v. Fulton

New York Supreme Court

Roosevelt v. Fulton

6 Cow. 48

DecidedAugust 15, 1826

StatusPublished

This text of 6 Cow. 48 (Roosevelt v. Fulton) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roosevelt v. Fulton, 6 Cow. 48 (N.Y. Super. Ct. 1826).

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Opinion

Curia.

The questions properly in the bill of exceptions can not be heard now. The only point which we can decide on non-enumcrated motion, is, whether the ve-nire was regular, being in the general form ; and we think it was. Because a jury are required by law to find any matter specially, it does not follow that the venire should contain that matter. Wherever there is an issue or issues of fact, the venire is general, “ to make a jury between the parties, in such a plea, because they have put themselves upon that jury.” This reaches every case except the single one cited from Archbold by the counsel, where there is a demurrer or default as well as an issue of fact. There the venire cannot say, generally, the parties have put themselves on a jury. This is only true of part. Hence the venire tam quam, which is almost the only exception. There are many other cases in which the jury are required to find specially, without any special venire. In replevin, they are required, if the distress was for rent, to inquire of two things ; the amount in arrear, and the value of the goods distrained. This, too, is by statute; but a special ve-nire was, we presume, never thought of in such a case.

Motion denied.

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Curia.

The questions properly in the bill of exceptions can not be heard now. The only point which we can decide on non-enumcrated motion, is, whether the ve-nire was regular, being in the general form ; and we think it was. Because a jury are required by law to find any matter specially, it does not follow that the venire should contain that matter. Wherever there is an issue or issues of fact, the venire is general, “ to make a jury between the parties, in such a plea, because they have put themselves upon that jury.” This reaches every case except the single one cited from Archbold by the counsel, where there is a demurrer or default as well as an issue of fact. There the venire cannot say, generally, the parties have put themselves on a jury. This is only true of part. Hence the venire tam quam, which is almost the only exception. There are many other cases in which the jury are required to find specially, without any special venire. In replevin, they are required, if the distress was for rent, to inquire of two things ; the amount in arrear, and the value of the goods distrained. This, too, is by statute; but a special ve-nire was, we presume, never thought of in such a case.

Motion denied.

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Bluebook (online)

6 Cow. 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roosevelt-v-fulton-nysupct-1826.