Brown v. Van Deuzer
New York Supreme Court
IN ERROR, from the court of common pleas of Orange county. The plaintiff in error brought an action of debt in thp court below, against one Reynolds and the defendant in error; and the former was'returned not found, and the latter in custody, &c.
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IN ERROR, from the court of common pleas of Orange county. The plaintiff in error brought an action of debt in thp court below, against one Reynolds and the defendant in error; and the former was'returned not found, and the latter in custody, &c. The declaration was on a recognisance taken the 29th of July, 1809, before a justice, in the penalty of 50 dollars, to the plaintiff) and which recited that the plaintiff had sued Reynolds before the justice, in an action of trespass, and that it. put in a plea of title, in writing; the condition of the recognisance was, that if B. should sue JR.…
1Per curiam
The question arising upon the trial was, whether the plaintiff Brown had sued out a writ before the September term of the common pleas, according to the condition of the re*53cognisance. This was a question of fact triable by jury, and not by record, notwithstanding the averment of proul patet per record~um. The entry on the record could not be conclusive of that fact; for then, as was observed in the case of Conry v. Jacob, (1 Sid. 220.) upon a similar question, it would be in the power of an attorney to make an entry upon record of the issuing of the writ, though the writ had never issued.…
2Cited by5 opinions
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