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People v. Superior Court

7 Wend. 517 Court N.Y. Sup. Ct. Decision date 1832-04-19 English

Delivered by Savage, Ch. J.

Contents

Majority

p. 517
The People, on the relation of the Butchers’ and Drovers’ Bank, vs. The Superior Court of the city of N. York.

Headnote

In a suit commenced by declaration against several defendants, the plaintiff cannot proceed until all the defendants be served with the declaration.
April, 19.
Motion for a mandamus. The relators commenced a suit by declaration' against two defendants. The declaration was served on only one of them, and the plaintiffs proceeded in the suit in the same manner as they would, have done had the suit been commenced by capias, and one defendant had been returned taken, and the other not found. The court below set aside the proceedings, and a mandamus was now asked for to reinstate them.

By the Court

The motion is denied. There is no provision in the statute authorizing the suit to be prosecuted, where the declaration is served on but one defendant, as there is in the case of a suit commenced by capias against several defendants, where but one is taken.