Legal Opinion

Malcom v. Rogers

New York Supreme Court

Decided May 15, 1823PublishedCited by 33 opinions

Writ op right, in this form: “ The People of the State of New-York, To the Sheriff of the city and county of New-York: Greeting.

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Writ op right, in this form: “ The People of the State of New-York, To the Sheriff of the city and county of New-York: Greeting. Command George P. Rogers, that justly and without delay, he render unto Richard M. Malcom, the one equal undivided tenth part; and also the one equal un- # É divided ninth part of an equal undivided tenth part of two messuages and two acres oí land, with the appurtenances, in the second ward of the city of New-York, in the county of .New-Yorlc, which the said Richard M, Malcom claims to be his right and inheritance ; and whereof he complains that . * the said George…

1Opinion of the Court

*3Radcliff, insisted that the tenant could not avail himself of a defective summons in this manner. The proper course is to object this by plea of non-summons, and support it by wager of law. But here the defendant claims a right to qualify his appearance, and comes to shew that he is under no obligation to appear. His appearance is a waiver of all defects in the return ; authorizes us to treat him as in Court, and to count against him.

Emmet, remarked that where the very question is, whether process shall issue for non-appearance, the only mode of objecting is by way of pointing out the defect…

2Cases cited2 opinions

  1. Wheeler v. LampmanNew York Supreme Court · 1817
  2. Van Bergen v. PalmerNew York Supreme Court · 1821

3Cited by33 opinions

  1. Porter v. HendersonSupreme Court of Alabama · 1919
  2. In re P.V.W.Supreme Court of Louisiana · 1982
  3. State v. FieldsLouisiana Court of Appeal · 2013
  4. Arcadia Development Corp. v. City of BloomingtonSupreme Court of Minnesota · 1964
  5. Jamison v. CravenCourt of Chancery of Delaware · 1872

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