Majority
p. 95Koon vs. Moore. ALBANY, Feb. 1838
Headnote
The rule to declare expires with the actual adjournment of the term succeeding the service of the notice, and if a declaration is not served previous to that time, the plaintiff’s default may be entered.Rule to declare. In July, the plaintiff’s attorney was served with a notice of a rule to declare before the end of the next succeeding term, or that judgment of discontinuance would be entered against him. The plaintiff not having served a declaration, the defendant on the tenth day of November entered his default, the October term having been adjourned sine die on the seventh day of November. The plaintiff moved to set aside the default as irregular, contending that the October term did not end until the fourth Saturday after the commencement of that term, which was the eleventh day of November. If the default should be held regular, he then asked to be let in on the merits.
By the Court,
Each term of the court may be continued and held until and including the fifth Saturday after its commencement; but arguments can only be heard in the fifth week by consent of parties. So far as respects the issuing, teste and return of process, except subpoenas, attachments and writs of habeas corpus, the term is considered as ending on the second Saturday after its commencement. 2 R. S. 197, § 4, 5. For the purpose of entering rules for judgment, and rules for other proceedings
p. 96
specified period. For all other purposes than those above specified, the term means the actual sitting of the court, and it ends on the final adjournment. The notice to declare expires with the next succeeding term after it is given, or in other words, with the final adjournment of the court, whenever that may take place. The plaintiff’s default for want of a declaration was not entered until after the close of the term, and was consequently regular. But the plaintiff will be relieved on payment of costs. in court, the term is deemed to continue until and including Saturday of the fourth week, whether the court so long sits or not. Statutes, ~ess. of 1833, p. 395, § 5. There is nothing in the statutes requiring the court to he held for any
Order accordingly.