Rose v. Oliver
New York Supreme Court
A CAPIAS was issued against the three defendants in this cause, in an action of trespass; on which Oliver ai\A Stevens were taken, and the other defendant, Russell, returned not found. [*]The plaintiff, in his declaration, stated the return, and declared that Oliver and Stevens, together with Russell, committed the trespass, &c. The tW’> defendants, Operand Stevens, pleaded not guilty, , , „ . , ami use jury found a verdict of guilty on that issue.
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A CAPIAS was issued against the three defendants in this cause, in an action of trespass; on which Oliver ai\A Stevens were taken, and the other defendant, Russell, returned not found. [*]The plaintiff, in his declaration, stated the return, and declared that Oliver and Stevens, together with Russell, committed the trespass, &c. The tW’> defendants, Operand Stevens, pleaded not guilty, , , „ . , ami use jury found a verdict of guilty on that issue. A motion was now made in arrest of judgment, on the ' J B gronndthat the plaintiff could not proceed in the cause, Ei.i' anyjudgment be rendered,…
1Opinion of the CourtSpencer, J.
delivered the opinion of the court..
A metió» has been made in arrest of judgment, because it appears, by the declaration, that Russell has been returned not found on the capias, and is complained of, together with the two other defeddants, as having committed the trespass; the plea is put in by the defendants, returned taken, and the verdict finds them guilty of the trespass alleged; but it is contended that the plaintiff cannot have judgment against them, as it appears by his own showing, that Russell, whom he has made a defendant, has not been brought into court, nor answered. I have said…
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