Malcom v. Gardner, 1 Cow. 13

Malcom v. Gardner

1 Cow. 13 | N.Y. Sup. Ct. | 1823

Curia.

We think that ¿oron and place, as they are used in this statute, mean the same thing, and refer to any small subdivision answering to a town, or being substantially the same. That it is the same, for thé purposes of election, is one instance. In this view of the case, proclamation should have been made at the church nearest the land in the 1 Oth ward, if there be any church in that ward ; and, if there be none, this should be stated in the return, to warrant a proclamation out of the ward.

The Court granted leave to amend in this case, also, but as there was in truth a church in the 10th ward, Radcliff took a rule for an alias sum/mons, which was entered jp the minutes of the Court, thus ;

“ Richard M. Malcom, demandant, 1 v. > Thomas Gardner, tenant. )

Map 8th, 1823. Op a writ of right. The demandant, Richard M. Malcom, being, &c. {appearance, asante, p. 12) and the Sheriff’s return on the writ, in this cause, being inspected by the Court, and being in the words and figures following : {The whole return is then set forth verbatim;) and the Court being of opinion that the proclamation in the said return mentioned was not made according to law, it is thereupon, on like motion, ordered, that an alias summons, in this cause, issue to the Sheriff of the city and county of New-York, returnable in this Court, on the first Monday of August next, at the Academy, &c.”(c)

Returns are nothing else but the Sheriff’s answer, touching that which they are commanded to do by the King’s writ. They must be made according to the-ancient course and according to the precedents, and by *15the usual words, otherwise, they are not good. (Dalt. Sheriff. 162.) And vid. ib. 162 to 178, and also Imp. Sheriff, 380 to 488, where almost every variety of return is given and considered. Every return ought to answer the point of the writ, and, it is said, ought to be certain to every intent, as a declaration ought to be ; and the Sheriif is bound to take knowledge of the law in making his return ; but as the return of the Sheriff is only to ascertain to the Court the truth of tire matter, it requires not such precise certainty as is required in pleading. (Imp. Sheriff, 378. Vid. 8 Co. 127,128.)