Smith v. Fowle
New York Supreme Court
This was a motion for judgment for the frivolousness of a demurrer to the plaintiff’s declaration, the commencement of which was thus: “ J. T. S., the plaintiff in this suit by. R. L. his attorney, complains of G. M. F. and A. C. D. defendants, in custody, &c. according to the statute, of a plea of trespass on the case on promises, for that whereas,” &c.
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This was a motion for judgment for the frivolousness of a demurrer to the plaintiff’s declaration, the commencement of which was thus: “ J. T. S., the plaintiff in this suit by. R. L. his attorney, complains of G. M. F. and A. C. D. defendants, in custody, &c. according to the statute, of a plea of trespass on the case on promises, for that whereas,” &c. The defendants demurred and assigned several special causes ; the substance of which is, that the plaintiff has not stated in his declaration that the suit was commenced by filing a declaration and entering a rule to plead according to the…
1Opinion of the Court
By the Court,
Savage, Ch, J.
By the revised statutes, 2 R. S. 347, § 1, personal actions against individuals not privileged from arrest may be commenced in two ways: 1. By the issuing and service of a capias ad respondendum ; 2. By filing in the clerk’s office a declaration entering a rule to plead, and serving a copy of such declaration and notice of such rule personally on the defendant. This mode may be adopted against any person, whether privileged or not. This is all which it is material to state in deciding the demurrer now before the court.
The plaintiff is to file a declaration. What is…
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