Bogart v. Brinkerhoff — 2 Cow. 587

Majority

p. 587

Bogart against Brinkerhoff.

Headnote

The two terms within allowed to declare on 6 hateas corpus must be reckoned inclusive of the term at which tail is put in.

Motion to set aside declaration served after that time; but because the plaintiff showed a good excuse for the delay, the motion was denied.

And so the plaintiff does not absolutely lose his right to declare, though two terms pass.

Slander in the New York Common Pleas, removed by habeas corpus, returnable in May term, 1823. Special bail was put in on the 6th August last, and notice thereof given

p. 588

to the plaintiff’s attorney, the next day. The plaintiff did not serYe a declaration till in February term, 1824, so that two terms, including August term, (when bail was put in,) had elapsed since the defendant had put in bail. 'On the copy of declaration being left at the office of the defendant’s attorney, he declined receiving it. On these facts,

C. S. Woodhull,

moved to set aside the declaration, and that proceedings on the part of the plaintiff be perpetually stayed.

He insisted that the two terms after the return óf the habeas corpus, within which the plaintiff was bound to declare, included the term at which bail is put in. (1 Dunl. Pr. 228. Sheridan’s Pr. 487. Wyche’s Pr. 290. 2 Archb. Pr. 173. 1 Tidd’s Pr. 350. 2 Sell. Pr. 274. Cheetham v. Lewis, 3 Caines’ Rep. 256 . Drake v. Hunt, Col. Cas. 43. Smith v. James, 6 T. R. 752. Hutton v. Stoubridge, 1 Str. 631. Clark v. Harbin, Barnes’ Notes, 90.) In Bank of Orange v. Van Aukin, (1 Cowen’s Rep. 58,) bail was probably not put in before August term; and the only question there was as to the manner of service.

D. Brush, contra,

contended that the term of putting in bail is to be excluded.

He also read an affidavit excusing the delay, stating that the reason why he did not declare within two terms inclusive was, that the late Judge Van Ness, who was counsel in the cause, had a paper material to enable him to declare; that the paper was with Judge Van Ness at his death. This fact, and supposing there was a perfect understanding between him and the defendant’s attorney, and also supposing that the term of putting in bail was exclusive., induced him to delay declaring til! the 13th March.

The term at which bail is put in must be reckon- ■ ed inclusive; and the plaintiff was, in strictness, too late ; ' but as a very satisfactory excuse is given for the delay, the motion must be denied, without costs.

Motion denied.