Same v. Gardner

1 Cow. 137

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

Opinion

Writ of right. The alias summons, directed to issue in this cause at the last term, being now properly served and returned as directe-', (ante, p. 13, 14) S. M. Hopkins, on the first day

(a) of this term, appeared for the demandant and prayed that the appearance might be entered. The tenant had till the quarto die post to appear, when Mr. Gerard appeared for him, the demandant counted, and the tenant was allowed a special imparlance to the next term.

Rule accordingly.(b)

Vid. ante, 8, note (g)

6) Ante, 13. S. C. Though these real actions have, heretofore, been comparatively of rare occurrence, and their practice but little studied, yet as the country advances in age, they will probably multiply. Indeed, I think I have observed this increase within the few years since I came to the bar. These considerations induced me, in noticing the points decided in the two last causes, (ante, 1 & 13) to be somewhat minute as to the proceedings of counsel at the bar, in the minor particulars of their practice, as well as in giving tire form of the writ, return and count. Besides, these forms have, with us, features peculiar to themselves, arising from the office whence the writ issues, our statute of descents, officers and civil divisions, The same motive induces me to detail the proceedings, m the same causes, at this place. The student will find the proceedings in an English writ 0f v;g]^ (at the Lancaster summer assises, 57 Geo. 3. 1817, before Baron Wood,) in Holt's N. P. Rep. 657 to 675. Mr. Holt gives—the original writ —the reco/d at the assizes, containing, the placita, count, two pleas, replica-Hons, issues, award of summons for the grand assise, and award of venire ^ one *sswes which was to be tried by the country. He then gives the form of a rule for judgment, as in case of non-suit, which was discharged, with the form of a rule at the assises, by consent, to form the „ran¿ assise. The proceedings and evidence, at the assizes, are then givb ... . ,• , , ., , & en> UP to ™e verdict, which was for the tenant.