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Borst v. Griffin

5 Wend. 84 Court N.Y. Sup. Ct. Decision date 1830-08-05 English

Delivered by Marcy, J.

Contents

Majority

p. 84
Borst vs. Griffin.

Headnote

A declaration in ejectment may be filed at any time during a term, and the notice to appear, need not be for a day in the two first weeks.
When the twentieth day of the rule to plead happens on a Sunday, the de. fendant has the whole of the next day to plead in.
Motion to set aside proceedings for irregularity. This is an action of ejectment to recover dower in pursuance of the provisions of the revised statutes, 2 R. S. 303, 4. The notice subjoined to the declaration stated that the declaration would be filed on the 24th May, which was the twenty second day of term. The default of the defendant was entered on Monday the 14th June. The defendant insisted that the declaration in this case was in the nature of process, and therefore ought to have been made returnable within the two first weeks of term, and that the 13th June, being Sunday, the default was prematurely entered on the 14th June.
J. McKown, for defendant.
M. T. Reynolds, for plaintiff.

By the Court,

The declaration in this case is in the nature of process, but is not process within the meaning of the statute referred to, requiring process to be made returnable within the two first weeks of term ; the statute speaks of the issuing teste and return of process, which language is applicable only to writs. The default, however, was prematurely entered, and the motion is therefore granted.