Cornell v. Moulton
New York Supreme Court
Error to Orleans C. P. Moulton sued Cornell before a justice of the peace by summons issued on the 14th of February, 1845, returnable on the 21st day of that month, and which the justice, as he stated in his return to the certiorari, delivered on thé day it was issued to a constable to be served. The summons was duly returned as having been served by copy on the 15th of the month. The plaintiff appeared on the return day but the defendant did not appear.
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Error to Orleans C. P. Moulton sued Cornell before a justice of the peace by summons issued on the 14th of February, 1845, returnable on the 21st day of that month, and which the justice, as he stated in his return to the certiorari, delivered on thé day it was issued to a constable to be served. The summons was duly returned as having been served by copy on the 15th of the month. The plaintiff appeared on the return day but the defendant did not appear. The plaintiff thereupon ap* plied for a second summons, which was on that day issued and delivered to a constable to be served, returnable…
1Opinion of the Court
By the Court, Bronson, Ch. J.
As no time of payment is mentioned in the note, it was payable immediately. (See Wenman v. Mohawk Ins. Co. 13 Wend. 267.) The remaining questions are, 1. When was the suit commenced? and 2. When did the six years expire?
Two questions are made on the commencement of the suit. Upon process by summons, the suit is considered as commenced, so as to save the statute, when the process is delivered to the constable. (2 R. S. 227, § 12.) But it is said, that there was no legal evidence before the justice that the first summons was delivered to the constable before the…
2Cases cited2 opinions
- Wenman v. Mohawk InsuranceNew York Supreme Court · 1835
- Wilcox v. WoodNew York Supreme Court · 1832
3Cited by38 opinions
- Burnet v. Willingham Loan & Trust Co.Supreme Court of the United States · 1931
- Aultman Taylor Co. v. . SymeNew York Court of Appeals · 1900
- Bemis v. LeonardMassachusetts Supreme Judicial Court · 1875
- Griffith v. BogertSupreme Court of the United States · 1856
- Sands v. St. JohnNew York Supreme Court · 1862
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