Small v. Edrick — 5 Wend. 137

Majority

p. 137

Small vs. Edrick.

Headnote

Matice of trial to be good must be fourteen days before court, exclusive of the day of service.

Notice of trial. The notice of trial in this case was served on the ninth day of November for the twenty-third day of the same month, and an inquest was taken at the circuit. A motion was now made to set aside the inquest for irregularity, on the ground that notice of trial was not served fourteen days before the first day of the court at which the trial was had.

C. Y. Lansing, for defendant.

J. Edwards, for plaintiff

By the Court,

The language of the statute is, “written notice of trial of every issue of fact shall in all cases be served at least fourteen days before the first day of the court at which such trial shall be intended to be had.” 2 R.

p. 138

S. 410, § 7. This act varies in its phraseology from the act of 1813, 1 R. L. 326, § 3. Ordinarily, in the'computation of time as to the service of papers, one day is included and the other is excluded, and so is the general rulé of this court, Rule 62, adopted 1st January, 1830; but that rule expressly excludes the day of service, and the statute excludes the first day of court; consequently there was in this case a notice of only thirteen days. • The motion is therefore granted, but without costs.