author: Livingston, J., Radcliff, J.,

text:
    Bogert and Lewis, Executors of Bogert, against Hildreth, Sheriff of Montgomery.
    In an action for an escape from prison in one county, that the judgment on which the suit against the prisoner was founded is of record in another county, is not such a substratum as makes the action local where the judgment is recorded.

      Qucere, if the county where an escape happens be not the proper county for the venue?

    This was an action for an escape from execution. The v'enue was laid in the city of New-York.
    The defendant, at a former term, on an affidavit stating the cause of action (if any) to have arisen in the county of Montgomery, and adding that his witnesses; who were numerous, resided in that county, moved -to change the venue from New-York to Montgomery.
    It was then contended, that this action was so far local that the plaintiff was bound to lay the venue in the county where the prisoner had escaped; but the court was of . opinion that the suit was transitory; that the plaintiffs had a right to lay the venue where they pleased, in the first instance, and the defendant enjoyed the common privilege of changing it on the usual affidavit. A rule was, therefore, made, that the venue should be changed from the city of TSTew-York to Montgome^, unless the plaintiffs, within twenty days, should stipulate to give, on trial, material “evidence, arising in the city of New-York. The plaintiffs did stipulate accordingly, and transmitted a notice of it to [*2] the "^defendant’s attorney, by mail, to Johnstown, in Montgomery county; four days after which, and before, according to the course of the mail, the defendant could have received the notice, he pleaded in bar fresh pursuit and recaption before action .brought.

      Riggs

    now moved, that the plaintiff be discharged from his stipulation, on the grounds, first, that the substratum of the action being the judgment against M’Donald, which was filed in New-York, the cause of action arose there; and, secondly, that the defendant, having pleaded before he received notice of the stipulation, had waived the rule for changing the venue.

       See Mellor v. Barber, 3 D. & E. 387. Pinkney v. Collins, 1 D.&E. 671. Clissold v. Clissold, Ibid. 647.

        Talmash v. Penner, 3 Bos. & Pull. 12; pleading, pending a rule nisi to change the venue no waiver, and the venue changed. Nor taki ng out a summons for further time to plead. Wilson v. Karris, 2 Bos. & Pull. 320. Ship ley v. Cooper, 7 D. & E. 698. Moses v. Stevenson, 1 Taun. 68. Post, vol. II p. 379.

   Livingston, J.,

delivered the opinion of the court. This is a motion to vacate a rule entered the last term, “ for changing the venue to Montgomery, unless the plaintiffs would undertake to give evidence material to the issue Arising in the city and county of New-York.” It is now said,- that the court committed an error in changing the venue; because, there being matter of law and matter in pais, material to the issue, in different counties,-the plaintiff • might elect to lay his action in either; and that, in such cases, it cannot be changed, unless for urgent or particular reasons. This rule, when well understood, is a salutary one, but it does not apply to this case ; it means, that-when official acts are done by the defendants in several counties, some of which are matters of record, and others of fact, there the plaintiff has his election. Thus, in the case of Griffith v. Walker, 1 Wils. 386, which was an action against the sheriffs of Eadnorshire, for a false return to a scire facias, the venue of which was laid in Herefordshire, it was alleged, on demurrer, that the action ought to have been laid in Eadnor, because, whatever acts the sheriff does officially, must be done in his own county, or at least, the law supposes them done there; but the court said, the sheriff may endorse his writ anywhere; and, as it is alleged that he did this in Herefordshire, the plaintiff has his election to lay his action where he can prove the fact done. Here the return was matter of record, but it is not on that account merely that this election is given, but because the sheriff was the party who made that return, which was the gist of the suit. If this return had, afterwards, been filed (as was no doubt the case) in the office of the court of king’s bench, it would not have justified the laying of the venue in that *county. In the case before us, it is said that [*3] the judgment roll against the party who escaped, is filed in an office kept in the city and county of Hew-York, and, therefore, the venue cannot be changed. This judgment was no act of the sheriff’s, and, therefore, not like the case of a return made by him in a particular county. Nor is it the ground of this action, which is, emphatically, the escape from the gaol of Montgomery.

A principal reason for permitting a plaintiff to retain the venue where he has laid it, arises from the circumstance of ■ his having material witnesses there. This rule should not be abused by too much refinement. If the recovery against the party who has escaped must bé given in evidence on the trial, it may be done by exemplification, which is the proper way; and this maybe carried'without expense to Montgomery. Bulwer's Case, in 7 Co. 1, only determines, and that on demurrer, that an action for maliciously outlawing the plaintiff might be laid in the county where the copias uilagatum was executed; and not necessarily in Middlesex, where the wrong was commenced by issuing the copias ad satisfaciendum. This decides nothing; for although the plaintiff may, in many cases, in the first instance, choose his venue, it does not follow that the defendant shall not change it, or that the court would not, in that very case, have changed it, on the common affidavit. The case of Cameron v. Gray, in 6 Term Rep. 363, is subsequent to the revolution, nor can the facts be all disclosed. Lord Kenyon would hardly have said (and yet such is the effect of that decision) that all actions for infractions of patent rights are local, and must be tried at Westminster, solely because the patent, which is its substratum issued there. If this be his meaning, we are at liberty, considering the date of this case, to differ from his lordship; and it appears to us, with due deference, that the county in which the right of the patentee was invaded, was the proper theatre of trial; for there, and not elsewhere, the cause of action arose. So, in an action for an escape, unless particularly circumstanced, many reasons occur why a trial should be had in the county from which the prisoner fled. A sheriff ought not lightly to be called out of his county; the witnesses also must, generally speaking, be there; nor should a public officer be subject to the oppression and'expense of attending, with his witnesses, at a distance. Yet we are now called [*4] on, not only to sanction *this practice in one case, but to render it universal and permanent; of, in other words, to declare that every sheriff, however distant he may reside, shall answer, in Albany or. Mew-York, for escapes, for no other reason than because the judgment or writ, on which the person was arrested, is to be found in one of those counties. It is astonishing that actions of this kind have ever been regarded as transitory: this, however, without any decision on the point, appears to be the case. -Why they should be local, has already been suggested. Much vexation must be the consequence, if we decide (which will be the effect of a vacatur) this rule, that in no case shall a sheriff have a trial of this kind in his own county, because a judgment, which can be proved without the personal attendance of any one, has been rendered elsewhere. Actions of this nature are within the .reason of the “ act for the more easy pleading in certain suits rendering local certain suits against sheriffs and other public officers;’’ and it would be a good rule, in which I should heartily concur, to make all actions of this kind triable in the county to which the officer belongs, unless strong circumstances rendered it improper. Upon the whole, we are well satisfied with our decision at the last term. It was full as favorable to the plaintiff as he had any reason-to expect, and ought not to be disturbed.

Radcliff, J.,

Motion denied.

       See Gilbert v. Martin, 1 Lev. 114, 286, Mayor of Berwick v. Ewart, 1 Black. 1069.

       Motion to change the venue. Rolle, J., “ An escape in one place is an escape all England over, and not local.” Wright v. Martin, Styles, 107. See Platt x. Sheriffs of London, Plowd. 35.
      See also Harris v. Wilson, 2 Wend. Rep. 627
      A motion to change the venue must be made at the earliest practicable day, and in such season that, if it be denied, the plaintiff will not lose a trial in a county where the venue is laid; if made at a later term it will be denied for that cause; and ignorance of the practice on part of the defendant’s attorney will not excuse the delay. Moreland v. Sandford, 1 Denio, 660.
      In an action against a public officer for acts done by him by virtue of hia office, the venue will be changed on his application to the county where the fact complained of happened; but if there be a dispute whether the action be or be not local, the motion will be disposed of upon the usual ground. Allen v. Forshay, 12 Wen. 217.
      English and American decisions, as to change of venue, referred to, (1 Dunl Pr. 497 to 414.) 1 Cow. 48, n. a.
      In general, costs are not granted upon denying motion to change the venue. Sill v. Trumbull, 1 Cow. 589.
      But where the motion is denied, because the move" 8 papers are- defective, costs will be allowed. Ib.
      See Hogan's N. Y. Digest, tit Escape and Venue.

       Who referred, to the following authorities: 7 Co. 1. Bulwer's Case, Cro. Eliz. 574. Wils. 336. Plowd. 37. b. Sty. 107. 2 Bl. Rep. 240. 2 I. & E. 238. Ibid. 275. 6 D. & E. 363.

         To facilitate the ends of justice is the principle on which courts, ¡a transitory actions, change the venue. Therefore, if the cause of action wholly arise, or the defendant’s witnesses reside, in another county, (Allen v. Brace, post, 107. Low v. Hallett, 2 Caines, 374. Metcalf v. Clark and Watkins, 5 Johns. Rep. 361. Foster v. Taylor, 1 D. & E. 781. Holmes v. Wainwright, 3 East, 329,) the venue will be changed. Though it is said that the defendant must also stipulate to give evidence of some material fact happening in the county to which he moves to carry the suit. • Gowley v. Shoemaker, 1 Johns. Cas. 392. When, therefore, the defendant’s witnesses reside in a county adjoining, or near to that in which the venue is laid, it will not be changed. Mumford v. Camaan, 3 Caines’ Rep. 139. Gerard v. Floyd, 1 Sid. 185. And as the power which the court exercises over venues is the result of its equitable jurisdiction, when the plaintiff offers to bear the expense of conveying the defendant’s witnesses to' the place of trial, (Worthy v. Gilbert, 4 Johns. Rep. 492,) or his witnesses reside where the venue is laid. Dm Boys v. Fronk, 3 Caines’ Rep. 95. Manning v. Downing, 2 Johns. Rep 453. Stoutenbergh v. Legge and others, 2 Johns. Rep. 481,) or in a thin ■ county, (Spencer v. Hulbert, 2 Caines’ Rep. 374. Clark v. Feed, cited 1 l East, 33. S. C. 1 N. R. 310,) or the plaintiff show the defendant’s affidavit to be untrue, from the cause of action arising in more counties Jinn one, and will undertake to give ni aterial evidence in one or the other, (Hunt v. Bridg

        ford, 1 Taun. 259,) the venue will not be changed. See Woods v. Van Ranken, post, 122.
      The New York Code of Procedure (secs. 123-6) provides: Actions for the following causes, must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in the cases provided by statute:
      1. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property:
      2. For the partition of real property:
      3. For the foreclosure of a mortgage of real property:
      4. For the recovery of personal property, distrained for any cause.
      Actions for the following causes, must be tried in the county where the cause or some part thereof arose, subject to the like power of the court, to change the place of trial in the cases provided by statute:
      1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offence committed on a lake, river, or other stream of water situated in two or more counties, the action maybe brought, in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed:
      2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a. person, who by liis command or in his aid, shall do anything touching the duties of such officer.
      In all other cases, the action shall be tried in the county in which the parties or any of them shall reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial, in the cases provided by statute.
      If the county designated for that purpose in the complaint, be not the proper county, the action may, notwithstanding, be tried therein, unless the deferida! t, before the time for answering expire, demand, in writing, that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section.
      The court may change the place of trial in the following cases:
      1. When the county designated for that purpose in the complaint is not the proper county:
      2. When there is reason to believe that an impartial trial cannot be had therein:
      3. When the convenience of witnesses and the ends of justice would be promoted by the change.
      When the place of trial is changed, all other proceedipgs shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing duly filed, or order of the court, and the papers shall be filed or transferred accordingly.


source: Caselaw Access Project

author:
      Per Curiam.
     Per Curiam.

license: Public Domain

text:
    Townsend against The New-York Insurance Company.
    If notice of applying for a commission specify names of commissioners, and the party served do not then object, he is concluded. ■

      Queers, whether costs should not follow on applications for time ?
    Motion for a commission to examine.'
    This cause had been once deferred, for want of testi[*5] many, to acquire which a ^commission had issued.
    The defendants, afterwards, but previous to the last circuit, gave notice to the plaintiff that they should, on affidavits, (the copies of which were.annexed,) move for a commission to examine witnesses, and specified the names of the commissioners. At the time of serving this notice, the defendants offered to stipulate not to delay the cause. The plaintiff did not assent to join in the commission, and, in a few days, gave the regular notice for trial. At the circuit an application was made to postpone the cause, on the usual affidavit of the want of that testimony, to obtain which, the commission noticed was to be sued out. The plaintiff’s counsel objecting, he had till the next day to produce an affidavit of a former delay. Not doing this, -the cause stood over of course.

      Hoffman now moved for the commission.

      Hamilton objected to its being directed to the commissioners named.
   Per Curiam.

The commissioners having been named in the notice of the motion, and the plaintiff having neither joined nor objected, is now concluded.

Hamilton

then argued against the application, because it was uncertain how long it would tie up the cause, and. the defendants had not entered into any stipulation.

Per Curiam.

It is unnecessary, for they take the commission at their peril; let it issue.

Hamilton asked for the costs of the circuit.

The Court ordered them, and seemed to think that in all cases of delay, costs should follow.

On payment of costs of the circuit, motion granted.

         The objections should be made by affidavit, stating the facts on which grounded. Biays v. Merrihew, 3 Johns. Rep. 261.

       When party applying for commission must pay costs. La Farge v. Luce, 2 Wend. 242. Jones v. Ives, 1 Wend. 283. Burr v. Skinner, 1 J. 0. 291.
      When a commission will stay proceedings, and when stay will be vacated. Beall v. Day, 1 Wend. 513. McVicar v. Woolcot, 3 Cai. R. 321. Nichol v. Col. Ins. Co., 1 Id. 345. Pell v. Bunker, 2 Id. 46. Ferris v. Smith, 2 Id. 253. Shuter v. Hallet, 1 Id. 115. Kirby v. Watkins, 1 Id. 503. Coles v. Thompson, 1 Id. 511. Brain v. Rodelies, 1 Id. 73. Burr v. Skinner, 1 J. C. 391. Rush v. Cobbet, 2 Id. 70. Maynard v. Chapin, 1 Wend. 520. Bourherean v. La Guen, 2 J. R. 196. Bank of Charleston v. Hurlbut, 1 Sand. 717. 1 Code Rep. 128, S. C. Voss v. Fielden, 2 Sand. 690.


text:
    Clarksow against Gifford.
    In covenant of seisin, the venue will be changed to where the lands lie.
    Harison moved, on the usual affidavit, to change the venue.

      Evertson.

    This action is founded on a specialty: in suits of this sort, the court does not change the venue.

      Harison, in reply.
    The action is on a covenant of seisin, affecting, or, as the technical phrase is, savouring, of the realty.

         The common law principle is, that demands arising from privity of es-(ate, are, in their nature, local, and must be sued for where the estate lies. Debt, therefore, for rent, as incident to the reversion, is local, (Thrale v. Cornwall, 1 Wils. 165,) if brought by the assignee of the lessor. So covenant if against tho assignee of the lessee by the lessor, (Stevenson v. Lamboard, 2 East, 575,) or by the assignee of the reversion against tho assignee of the lessee, or vice versa, the assignee of the lessee against the assignee of the reversion. Eor the only chain which connects these parties is the estate. But where the debt springs from privity of contract, as debihim ef contractus sum mllius loci, the action is transitory. Therefore between lessor and lessee. (Bulwer's Case, 7 Term Rep. 2. a) But as the statute (1 Rev. laws, 105,) has transferred the privity of contract with respect to covenants which subsisted between lessor and lessee, to the assignee of the reversion and the lessee, those express covenants which run with the land, and were, by the common law, local, are now transitory. See Thursby v. Plant, 2 Saund. 237, notes (5) and (6). Case for a nuisance is local. Warren v. Webb, 1 Taun. 379.
      See New York Code of Procedure, secs. 123 to 126, as given ante, p. 4.

   Motion granted.


author: Per Curiam.

text:
    *Griswold and another against Stoughton.
    If a default be regularly entered, and no excuse shown how it was incurred though the subsequent proceedings be set aside for irregularity, the default will stand, and plaintiff may perfect his judgment.
    Though a default has been regularly entered, a rule for judgment is necessary, so that the clerk assess
    Assumpsit on a promissory note. The plaintiffs had proceeded under the statute, by filing common bail for the defendant, and had affixed the declaration with the demand oí a plea in the clerk’s office, without service ón the defendant, who lives in the city of New York.
    Judgment by default having been obtained,

      Pendleton

    moved to set it aside, on an affidavit stating • that no rules had been entered, either for interlocutory judgment, or for the clerk to assess damages on the note, offering at the same time to pay costs and put in special bail.

      Biggs, contra.
    The proceedings are regular to the default ; the affidavit states no excuse for that; and though the subsequent steps are not according to strict practice, the defendant being in default, and that default regularly entered, is not entitled to favor. The utmost, therefore, the court will do, is to vacate the proceedings from the default.
   Per Curiam.

As the default is not accounted for by the affidavit, it is unimpeached, and therefore must stand: but as the subsequent proceedings are irregular, they must be set a side, with the usual liberty, however, for the plaintiffs to perfect their judgment this term, if they can.

Proceedings subsequent to the default set aside.


text:
    Manhattan Company against Herbert.
    Trial by record to be on notice. See Knap v. Mead, Col. Cas. 122.
    Hopkins moved for a rule to bring on a trial by record.
   Per Curiam.

Trials by record are to be brought on by notice, in the same manner as cases for argument.

       The New York Code of Procedure (secs. 252 and 256) provides: An issue of law must be tried by the court, unless it be referred, as provided in sections 210 and 211. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided in sections 210 and 211.
      At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk at least four days before the court with a note of the issue containing the title of the action, the names of the attorneys and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.


text:
    Livingston against Delafield.
    After stipulation, the court will, on special circumstances, allow a second excuse, and not grant judgment as in case of non-suit.
    This cause had been put off on the usual affidavit of absence of a witness, in expectation of whose return the plain tiff had stipulated to try peremptorily. On his not doing so, the defendant had, on a former day, moved for judgment as in case of nonsuit, for not proceeding to trial; but not succeeding, and the cause not having been brought on according to the second stipulation, the motion was now repeated.
    On the part of the plaintiff, an affidavit was read, [*7] stating that the witness *was a seafaring man, and had never been within the state of blew-York since the suit commenced, and that the stipulation to try was in expectation of his return.
   Per Curiam.

The witness having been constantly out of the state ever since the suit was commenced, and being a seafearing man, some indulgence is due from his way of life. The defendant, therefore, can take nothing by hia motion.

Motion denied.

         A second stipulation is always allowed, if the motion for judgment as in case of nonsuit, for failing to try according to the first stipulation, be not made in the term next after the default. Haskins v. Sebor, Caines’ Prac. 514. Or if the defendant be the cause of not trying. Coles v. Thompson, 2 Caines, 47. When witnesses are absent, and their return not immediately expected, a peremptory stipulation is not exacted. Gardner v. Moses, 1 Taun. 118. See also Farnham v. M‘ Clare, 7 Wend. Rep. 483; Jackson v. Wakeman, 2 Cowen Rep. 578; Nixon v. Hallet, 2 Johnson’s Cases, 218; Haskins v. Sebor, 2 Johnson's Cases, 217.


text:
    Bedle et Ux. against Willett.
    Notice to refer a cause must contain, the referees’ names. See the act, 1 Rev. Laws of N. Y., 347, 348.
   The Court said, that notice of a motion to refer must contain the names of the referees. They are never nominated by the court. But the making the motion is not confined to the first day of term; notice may be given after-wards, on showing a reasonable cause for the omission.

       The New York Code of Procedure (see. 273) provides: In all cases of reference, the parties, except when an infant may be a party, may agree upon a suitable person, or persons, not exceeding three, and the reference shall be ordered accordingly; and, if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception.


author: The Court

text:
    Seaman against Davenport and others, Tenants in Possession.
    In partition, rule to appear and plead are not of course, but must be moved for.
    In partition, after service of the petition and notice.

      Hopkins moved for a rule to appear and answer.
   The Court

at first thought this a rule of course; but on the counsel’s observing that proof of service was by the act required to be made to the satisfaction of the court, and that the manner of the service would, according to the act, vary in particular cases, the court seemed to coincide, but said that the rule must' be drawn up as the party should be advised.

Motion granted.

       Tho New York Code of Proceedure (secs. 69 and 448) provides: The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this state, hereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.
      The provisions of the Revised Statutes relating to the partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common, shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject-matter of the action, without regard to its form.


text:
    Church against The United Insurance Company.
    Misprision of clerk in drawing up a rule amended on application, and the plaintiff noticing to the adverse party the error, may nave the same benefit as if the rule had been right.
    The plaintiff had obtained, in last January term; an order of court for the verdict recovered in this cause to stand, and judgment to be given accordingly, unless the defendant should, fourteen days before the next “ sittings" in Hew York, give notice to the plaintiff that a commission issued in the suit had been returned, in which case there should be a new trial, and the plaintiff at liberty to amend, &c.
    The clerk had drawn up the rule before the next [*8] “ circuit.” The plaintiff had given ^immediate notice of the mistake to the defendant's attorney, and that he should be prepared to try the cause at the sittings. The defendant not having noticed the return of the commission,

      Hamilton

    moved that the rule be amended to “sittings,” and be made absolute for judgment:

         See post, Seaman v. Drake, 9.

   Motion granted.


text:
    James Everitt, Surrogate of Orange County, ads. The People of the State of New York, ex relat. Charles Beach.
    Peremptory mandamus set aside on motion, if unfairly issued.
    A rule was obtained in July term, 1802, that the defendant show cause, by October term, why a mandamus should not issue, compelling him to proceed in a'cause then depending before him, concerning the will of Thomas Beach.
    A return was made to this rule, which, from the defendant’s counsel being unavoidably detained on his way to Albany, was not filed until the third day of October term.
    On the first day of October term, the relator attended, and obtained a rule for the mandamus: and on the third day, on filing the return, that rule was vacated.
    Notice of the vacatur was given to the person who had acted in his behalf, and had obtained the first rule; but the relator had previously left Albany, and the mandamus issued.
    At the last term counsel was employed to move to set this mandumus aside; on his way to Albany, he met the attorney for Beach, when it was agreed that all further proceedings should be stayed until the present term. No further attention was paid to the cause.
    The relator attended at Albany the close of the term, employed other counsel, and obtained a rule for a peremptory mandamus, which was issued.

      Hoffman,

      on the above facts, moved to enter a vacatur on the rule for the pei’emptory mandamus, and to set aside the mandamus itself, which was
   Ordered accordingly.


author:
      The Court

      Per Curiam.

text:
    *Seaman and others against Drake.
    If the principal be discharged under the insolvent law or bankrupt act, and his bail afterwards be fixed, they may, notwithstanding, have an exomretur entered on payment of costs.
    A motion had been made last term, on the part of the defendant’s bail, to vacate the judgment and all subsequent proceedings. The facts of the case were these:
    In April term, 1800, final judgment had been regularly entered, and a copias ad satisfaciendum against the body had issued. In July term following the-writ was returned cepi corpus in custodiara; on which the defendant applied to set aside the judgment and execution on an affidavit of merits, and that his attorney, who resided two hundred miles back, did not know of the alteration in the rules of practice, by which the defendant was to plead in twenty days, and nol as before, in the next term. A rule nisi, for setting aside the judgment on payment of costs, and stipulating to plead in twenty days.
    Ko plea being given, in October term, 1801, judgment was confirmed, the roll carried in, costs taxed, judgment docketed, and the roll marked as filed, but the clerk had omitted to sign it. A copias ad satisfaciendam was issued, directed to the sheriff of New-York, and returned not found. In January term, 1802, another copias, but not a testatum, was directed to the sheriff of Ulster, on which nothing was done. In April term, 1802, a copias ad respondendum was issued against the bail on their recognizance. In July term, 1802, an alias. In September, 1802, apluries. In October term, 1802, an alias pluries, which, in January term, 1803, was returned taken. The application of last term was then made on three grounds: first, thatthe proceedings were irregular, the roll not having been signed by the clerk,,pursuant to the law of the 24th March, 1801, c. 75, s. 7.
    Secondly, that there was no testatum copias issued to the sheriff of Ulster.

      Thirdly, that the principal had been discharged under the insolvent Jaw.

      Hopkins

    now moved for leave to enter an exoncretur on the bail piece, and produced the discharge of the principal under the insolvent law of the state. By this it appeared that the defendant’s estate had been assigned by order of the court of common pleas of the county, on the 25th of September, 1801, and the defendant discharged the same day.
    Golden, contra.
    The bail are too late in their application for relief. Process against the bail was returned cepi cor- , pus on the first day of January term last. They were, therefore, in eight days after absolutely fixed.
   The Court

then said, on the first point, we consider the omission of the clerk’s signature as an error of our officer. This ought not to prejudice the plaintiff, defendant, or any other person. The judgment was docketed as the statute requires, and therefore, the world has the due and legal notice of its existence. On these principles, we, the last term, ordered an amendment nunc pro tune, and the same must be done now, by ordering the signature of the clerk to be added in the same *manner. On the [*10] other two points we will, as the counsel request it, hear them at a future day.

Per Curiam.

On Friday, in the second week of the last term, a motion was made to set a side the ca. sa. issued in this cause, on two grounds: 1. Because it ought to have been a testatum writ, it having issued into a county different from that in which the venue was laid; 2. Because the roll was not signed by the clerk, and the record was, therefore, incomplete, and the judgment irregular.

The second objection we considered as a mere clerical omission, and it was disposed of at once, by permitting the clerk to add his signature to the roll nunc pro tune. The consideration of the first objection, on account of the pressure of business, was postponed till the present term; and it being evident that the object of the motion was the relief of the bail, the proceedings against them were in the mean time directed to stay.

Another motion is now made for a rule that an exoneretur be entered on the bail piece, founded on the irregularity of the ca. sa. as above stated, and also on the further fact that the principal was insolvent, and was discharged under the insolvent act on the 25th September, 1801. The ca. sa. was returned non est in July term last, and the action against the bail is still pending.

It is now objected, that the hail ought not to be permitted to avail themselves of the defendant’s discharge, because it was not a ground on which the motion depended at the last term. But this cannot be a good reason to charge the bail, if they are otherwise entitled to relief.

In the case of Van Ahtyne ads. Brinkerhoff, we [*11] permitted *an exoneretwr to be entered on an application from bail, under similar circumstances. In that case the principal was also discharged under the insolvent act, before the bail were fixed in law. The suit, however, proceeded against the bail, and the eight days after the return of the copias against them had expired before they made their application for relief. We decided, that as they were entitled to have the exoneretur entered before they were fixed, and had barely omitted to have it done, they had not forfeited that right while the action was pending against them, and that the only consequence was that they subjected themselves to the payment of costs.

The facts in this case in support of the motion made this term are similar, and we think the former decision was equitable and proper in favor of bail, and ought to govern the present. It is, therefore, unnecessary to give an opinion on the first objection made on the former motion.

Let the egconeretur be entered on the payment of costs.

        Suydam v. M'Coon, Col. Cas. 59.

       31st March, 1801, c. 105, s 3.

        Scoffield at Ux. v. Lcdie, 2 Johns. Cas. 75.

       July term, 1802.

       The engagement of bail being alternative either to pay the debt or surrender the principal, though in strictness they be confined, for the latter, to eight days in term after the return of the writ against them, (Strong v. Barber, 1 Johns. Cases, 329. Elliot v. Hay, Ibid. 334,) yet, as it will be allowed at any Vane pending the suit, and this though they be indemnified, (Browne-low v. Forbes, 2 Johns. Rep. 101,) they will have the benefit, of a surrender by an exoneretwr wherever the law has rendered the surrender impossible, Wood v. Mitchell, 6 D. & E. 247. Merrick v. Vaucher, Ibid. 50. Cathcart v. Cannon, Col. Cas 60,) unless they be indemnified. (Coles v. De Hayne, 6 D & E. 246.) An exoneretwr will also be ordered, when the principal is discharged from the debt, either by having been taken on a ca. sa. and liberated, (Milner and others v. Green, 2 Johns. Cases, 283,) or by vourso of law
        (Kane v. Ingraham, Ibid. 403,) and this to prevent circuity. The power which bail have to relieve themselves by a surrender, is preserved to both, when sued jointly, so long as it remains in either; and each will be entitled to avail himself of it, for their mutual benefit; (Ballard and Parkman v. Kibba and Ludlow, Col. Cas. 51,) nor does the principal’s being in custody as a felon prejudice their right. (Bignell v. Forest, 4 Johns. Rep. 482.) But by the death of the principal it is lost. (Olcott v. Lilly, 4 Johns. Rep. 407.)

        а) Those of the suit against themselves.

       In the course of the argument a case of Riddles v. Mitchell, manucaptor of Cuyler, was alluded to. Erom the relation of the counsel in that cause, the facts were as follows:
      Riddles v. Mitchell.
      The original action was brought in the mayor’s court of the city of NewVork, and judgment obtained therein. The defendant brought a writ of error returnable to this court. Pending the writ of error, the defendant in the original suit was discharged under the insolvent law. Errors not being duly assigned, the defendant nonprossed the writ, issued a ca. sa. in this court, and upon a return of a non est inventus, brought an action of debt against the bail on their recognizance in the original suit. After declaration, plea, and demurrer, the defendant applied to the court to stay proceedings. It was contended, on the part of the present plaintiff, that the defendant came too late with this application, having pleaded to the action. But the court, on the authority of a case in Carthew, ordered the proceedings to be stayed.

       As to relief of hail after discharge of principal, see also, Campbell v. Palmer, 6 Cow. 596. Cunningham v. Brown,, 5 Id. 289. Franklin v. Thurber, 1 Id. 421. Mechanics’ Bank v. Hanard, 9 Johns. Rep. 392. Post v. Riley, 18 John. 54. Trumbull v. Haley, 21 Wend. 670. White v. Blake, 22 Id. 612. Russell v. Champion, 9 Wend. 462. See Hogan’s N. Y. Digest, tit. Bail.

        Dodson v. King, 515. But the case seems by no means analogous. A surrender had been actually made before the return of the latitat on which the bail had been arrested.


text:
    Hallet against Cotton.
    On moving for a new trial, the court will not order the amount of the verdict, or sum admitted due, to be brought in, though the bail have become insolvent, and obtained their certificates under the bankrupt law.
    This cause was tried at the sittings after January term last, when the jury found a verdict for the plaintiff for 86(3 dollars and 20 cents. The defendant obtained an order for a stay of further proceedings until the next term, for the purpose of then moving for a new trial.

      Hawes

    now moved, on the part of the plaintiff, for an order, that the defendant bring into court the sum found by the jury, with costs of suit; and that in default [*12] thereof, the order *to stay proceedings be dis charged.
    In support of the application he read an affidavit stating, “ that since this cause has been at issue, the special bail has been declared bankrupt, and discharged under the bankrupt law of the United States. That, on the trial of this cause, a balance was admitted by the defendant’s counsel to be due to the plaintiff of about 500 dollars. That, at the sittings in November last, on the application of the defendant, this cause was put off for that court, on the condition of payment of costs; but that those costs, although repeatedly demanded, were not yet paid.” A further affirmation of the plaintiff was read, stating “that from the circumstances of the defendant he was in danger of losing his said debt, unless the money was brought into court, or the rule to stay proceedings discharged.” A copy of this affidavit, it was acknowledged, had not been served.
    He argued that a motion for a new trial was an application to the equitable discretion of the court, to relieve from what, in the opinion of the party, was an erroneous or oppressive verdict. That it was a maxim of law, founded on principles of equal justice, “ that he who seeks equity should do equity.” From the affidavit it appeared, that the defendant had admitted on the trial that the plaintiff was entitled to recover about 500 dollars, which sum entitled him also to full costs. Before, therefore, the court would suffer the defendant to be heard on a motion for a new trial, they would require him to do what he acknowledged to be just. The bankruptcy, and discharge of the bail, and the circumstances of the defendant, were additional reasons for requiring the defendant to bring the money into court, to abide the event of the suit. That, from the great number of cases now before the court, it was not in the least probable that the case to be made in this cause could come on in its order,' and a decision be had thereon, in a shorter time than six or nine months; before which period the defendant, from his present circumstances, would doubtless be a bankrupt, or, as his bail were already bankrupt, he might abscond. Under such circumstances, delay was equally prejudicial as a denial of justice. It also appeared that the defendant was now in contempt, and liable to an attachment for non-payment of costs incurred on putting off the trial of this cause, at a former sitting. That it was a standing rule of . the mayor’s court of the city of Uew-York, *that [*13] “ upon every motion for a new trial, the defendant should, within eight days, bring into court the sum recovered by the verdict, with costs; and that in default thereof, the plaintiff have leave to proceed.” That, although this court might not be disposed to go the length of establishing such a rule in all cases, it was believed the peculiar circumstances of this cause were of a nature that would induce them not to hesitate in making the order now requested; or at least, for such sum as was admitted to be due, with costs.

      Bogert

    said the object of the motion was nerfectly new and unprecedented.
   Per Curiam.

The practice of the mayor’s court, in obliging the amount of the verdict to be brought into court on a motion for a new trial, has never been adopted here. The insolvency of the bail is certainly not a sufficient ground to induce us to make such an order; and a copj of the affirmation, respecting the defendant’s circumstances, has never been served on him; of that, therefore, we can take no notice. But let it be understood, we do not mean to say that had it been otherwise we would have granted the motion.,

Buie refused.

       But on a tender of it with costs up to the time, entry of judgment, and all further proceedings will he stayed. Hatfield v. Brown, 1 Johns. Rep. 506.

       See Gillespie ads. Pfister & M' Comb, as to insolvency in cases of security for costs. Coi. Cas. 119.

        Card ads. Fitzroy and others, Col. Cas. 63, whenever a special motion to to be made on the affidavit, a copy must be served. See also Grove v. Cumpbell, Ib. 114, that supplementary affidavits to rebut those in answer cannot be received. See post, 173, Deas v. Smith, note there.

       See Bird, Savage & Bird v. Pierpont, 3 Caines, 106.

       The New York Code of Procedure (secs. 264, 265) provides: Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or an order that the cause be reserved for argument or further consideration. The justice trying the cause may, in his discretion, and upon such terms as may he just, stay the entry of judgment and further proceedings, until the hearing and final decision of a motion for new trial, or to set aside the verdict or judgment, upon the grounds of surprise or irregularity, or upon a case or bill of exceptions.
      The court shall have power to order a verdict to be entered, subject to the opinion of the court thereon. The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or as being against evidence, or for insufficient evidence, or for excessive damages; but such motions in actions hereafter tried, shall only be heard upon the minutes at the son e term or circuit at which the trial is had, and if not heard at the same term or circuit in actions hereafter tried, the motion must be made upon a case or bill of exceptions, or upon appeal. When such motion is heard and decided upon the minutes of the judge, an appeal may be taken from such decision, and in case of appeal, a case or bill of exceptions must be prepared and settled in the usual form, and upon which case or bill of exceptions the argument of the appeal must be had.
      After the trial of a cause, either party may, in the manner prescribed by law and the rules of the court in which the action is pending, make and settle a case Or bill of exceptions, which when settled shall be filed, and when filed after judgment, shall be attached to and become a part of the judgment roll.
      Motions for a new trial on a.case or bill of exceptions, motions for judgment on a special verdict or case reserved subject to the'opinion of the court, shall in the first instance be heard and decided'at a special term, unless the justice trying the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general term of such court, and the court shall hear and decide the same.


text:
    Gilbert against Brazier.
    Party on. whom a fine is levied, not liable to the costs of levy.
    A question was made in this cause whether the sheriff is entitled to fees on levying a fine ?
   Per Curiam.

The statute directing the mode of making

the levy, declares it shall be done without fee or reward. The fee bill gives a fee, but does not say by whom it shall be paid. We all know how it has been; the fee has been charged by the sheriff in his accounts. This, we think, is the regular practice; for it cannot be demanded from the person who has been obliged to pay the fine.


text:
    Vandyck against Van Beuren and Vosburg.
    Liberty to turn a case into a special verdict stays execution.
   Per Curiam.

Wherever a case is made, with liberty to turn it into a special verdict, execution must stay, of course, till the next term after the decision is given: that if either party be dissatisfied, there may be timé to make up the special verdict.,

         If there be a special verdict, and a case made also, the party must elect on which to proceed, as he will not be permitted to argue on both. Sleght v. Rhinelander, 1 Johns. Rep. 192.

       See Rule 20 of New York Supreme Court, and New York Code oí Procedure, sec. 26Í,


author:
Radcliff, ,J.
      Per Curiam.

text:
    *Heyl against Burling.
    A mate of a vessel having a right to a certain quantity out of a cargo, by way of privilege, cannot, after a sale of the whole cargo by the consignee, pick out any specific parts, and sell them. A right of privilege in a cargo does not give such an interest as will enable the purchaser of it to maintain trover, if the consignee has not assented to the selection of those parts which are taken in satisfaction; for, in trover, property and possession must be shown. A release, executed to a witness, after his having deposed, does not make him competent.
    Trover to recover the value of two logs of mahogany, part of a cargo consigned to one Isaac Roget. The cause was tried at the New-York sittings, in June, 1802, before Mr. Justice Radcliff, when a verdict was found for the defendant.
    Several exceptions having been taken at the trial, a case was made from whence it appeared that the plaintiff had adduced in his behalf, one Mackworth, who testified to the purchase of the logs by the plaintiff, for 100 dollars, from Bonsall, the mate of the vessel in which the cargo was shipped.
    Charles Smith, a further witness on the part of the plaintiff, stated that he was at the purchase, which took place on a Saturday. That the logs were pointed out, agreed for, and immediately marked by the plaintiff, in the presence of the captain of the vessel, before whom and the mate, the plaintiff, on the Monday following, took possesBion of them, and afterwards removed them to a saw yard. That he, the witness, took them from the yard, and left them for Heyl at Whitehall. That the captain, at the time of the removal of the logs, sent a person to see that they were those which had been sold, and had the proper marks. This person examined the logs and took their numbers. That on the logs being afterwards missed, he, the witness, went, in company with the plaintiff, to the defendant’s yard, where he saw them. That the plaintiff immediately claimed them as his, and demanded them of the defendant, .who refused to deliver them up. That Eoget, while the logs were on the wharf, consented to the plaintiff’s taking them away, and made no objections to the sale of the mate.
    The witness mentioned that when he was first examined, he had said that the plaintiff had agreed for the logs at the rate of one shilling and sixpence per foot, in explanation of which he stated, that, as the logs were not then measured, the price was subsequently changed by the plaintiff and mate into a gross sum of 100 dollars, in order to get rid of the trouble of admeasurement.
    The plaintiff here rested his case.
    The defendant called Jeremiah Marshall, a public measurer of timber, who stated *that he was em- [*15] ployed by Eoget to measure a cargo of mahogany consigned to him, as he the witness, understood from Eoget, the captain, and mate of the vessel; that, after the first day’s work was done, the mate pointed out a log of mahogany, part of the cargo, (and which had been measured, marked, and numbered Mo. 21,) as being one of three logs, which belonged to him; that the witness, on the next day, before they began to discharge any of the mahogany, requested the mate to mention when they came to the other logs which belonged to him, in order that they might be put into a different bill; upon which the mate said, that he did not own any three particular logs, but that he had a right to make choice of three ; that the witness might measure the whole together, as he had been directed, and that he, the mate, would settle with Eoget for the interest he had therein. In consequence of this, the account of the measurement of all the mahogany was kept in one bill, and delivered to Eoget, who paid for it.
    After Marshall had given his testimony, Smith said, that the logs bought by the plaintiff had, at the time of purchase, been measured, as he saw the measurer’s marks upon them.
    The defendant then offered Eoget, who was objected to by the plaintiff’s counsel, as incompetent; but on being released by the defendant, was admitted, the point of his ad missibility being saved.
    Eoget’s testimony was, that he never authorized the mate to sell any of the cargo. That the whole consignment was sold by him to the defendant, before the taking away of the logs. That he never gave any authority to the plaintiff to take away the mahogany, nor ever had any knowledge of the claim of the mate to any three particular logs, until after the defendant had purchased the whole cargo, and until after the plaintiff had taken from the cargo which lay all togather upon the wharf, the three logs he had purchased.
    The plaintiff’s counsel then offered to prove declarations and admissions of the captain, as well before as after the sale of the mahogany by the mate to the plaintiff, _ [*16] that such sale was by *his, the captain’s, knowledge and consent; insisting he stood in the relation of agent for the consignee; but the testimony was rejected. This point also, at the request of the plaintiff’s counsel, saved by the judge.
    The defendant then read a deposition of a clerk in the counting-house of Eoget, stating that he was on the wharf at the foot of Eector-street, when the plaintiff and several other persons were removing three logs of mahogany, Mo. 21, 50, and 52, which the witness forbade, informing them Eoget had sold the logs to the defendant; that the witness knew the whole cargo, comprising the three logs above mentioned, were consigned to Bogét, who had accounted for the same to the consignor; and that the whole were sold , to, and paid for by, the defendant.
    Against these facts, the plaintiff, to prove his interest in the logs, and Boget’s consent to the sale, offered a deposition made by the mate-, and duly taken. This was insisted upon as proper testimony, there being no evidence that the mate had warranted the logs to the plaintiff, as his property: but the judge deeming it inadmissible, unless the mate was released, the plaintiff produced a release. The witness to its execution being called upon to prove it, testified, that he. was present at the time the deposition was taken, and on his return to his office, being an attorney, and acting in behalf of the attorney for the plaintiff, fearful lest an objection might be taken to the interest of the witness, he drew ' a release, and the same was executed by the plaintiff, and delivered to the mate in his office, who left it with the witness, for the purpose of being used on the trial. That this was done in the course of half an hour after the deposition was taken; and before the plaintiff, witness and mate had separated, after they had left the place of examination. That the defendant’s attorney cross-examined the mate, and such cross-examination was .in writing, at the end of the mate’s testimony, as proven on the part of the plaintiff; and a consent was subscribed to such examination by the de fendant’s attorney, as follows:
    “We, the subscribers, attorneys for the plaintiff and de fendant respectively, do consent that the above deposition be *read in evidence upon the trial of this [*17] cause; saving and reserving the exceptions to the admissibility of the testimony.”
    Under these circumstances, the deposition was again offered, but rejected, reserving the point.
    The judge charged, that it was absolutely necessary the plaintiff should show an acquiescence on the part of Boget to the sale by the mate; and that the consent oí the captain, or Ms acts, and those of the mate, were not binding without such acquiescence.

      Woods,

    for the plaintiff, now moved to set aside the verdict for misdirection, as well as for the rejection of proper testimony, and for a new trial.
    A release to Bonsall, the mate and vendor of the plaintiff, was, he argued, totally unnecessary; the court ought not to have asked it, as he was competent, being equally liable,  howsoever the cause was determined; first, to Boget, the consignee, and also to the plaintiff, as purchaser." Peake’s Law of Ev. 113. And peculiarly so, as Bonsall had sold without any warranty; and, therefore, had never asserted any interest in himself. Peake, 118. “If a vendor of an estate covenant for the title, or warrant the premises, he cannot be a witness to support the title of the vendee, in an action against him, by a third person, for the premises. 2 Roll. Abr. 685, pi. 1. But a vendor, who does not covenant for the title, or enter into any warranty, is a good witness. Busby v. Greenslate, 1 Stra. 445.” But if the court should be of opinion a release was necessary, such a release was given and offered. The circumstance of its being after the examination, is immaterial, from the peculiar facts stated in the case. If Boget, the consignee, was competent, being released by the defendant, Bonsall, the vendor, was as much so, on a release from the plaintiff. Besides, the declarations and admissions of the captain were full evidence for the plaintiff. He was the agent of the consignor; and, as in that capacity he consented to the sale t'a the plaintiff, it bound Boget, and confirmed the sale by Bonsall; the ^rejecting, therefore, these declarations and ad- [*18] missions, was contrary to law. From the facts, it appears the plaintiff had peaceable possession under a good title; and, at all events, his possession alone was enough to prevent the defendant from taking the logs out of that possession; for it was as much continued while the logs lay at Whitehall, as if in the plaintiff’s yard; having been left there by him.

      Boyd,

    for the defendant. There is not an equal liability in Bonsall. He is not liable to the defendant; for there is no privity between them. The defendant purchased of Boget, and Boget is liable to him, not the mate; for he is liable only to the purchaser, the plaintiff; and, therefore, liable to only one of the parties in the cause. Therefore, admitting the principle of equal liability,.it does not apply; as to the release being given after the deposition offered, the testimony was properly rejected. The reason why a release is necessary, is to do away the effect of the influence of interest; but, if it be given after the testimony, the interest has already had its effect. The declarations and admissions of the captain could not be received; for he is not the agent of the consignee, and his agency for the consignor terminates on delivery; which had here taken place, and a sale been made to the defendant. He denied, therefore, the possession of the plaintiff; as it had been transferred, by the consignee, to Burling; and as to the warranty, in sales of chattels, it was not necessary.

      Woods, in reply, insisted on his first positions.

        Milward v. Hallett, 2 Caines, 77, S. P.

         It is supposed Evans v. Williams is the case alluded to, (7 D. & E. 481, n. c.)

       The old cases make a distinction between sales of chattels in possession and out of possession. That in the first instance, an express warranty is not necessary; in the second, it is. Medina v. Stoughton, 1 Salk. 210. But this has been denied to be law. Pasley v. Freeman, 3 D. & E. 57, 58. See 1 Lex. Mer. Am. 372.

         The reason of these determinations is, that, with respect to purchases )f lands, the maxim of “caveat emptor” applies; in those of chattel interests, it does not. Money had and received will not lie to recover back the consideration paid for an assignment of a mortgage, which turns out to be a forgery, if bona fide transferred, and the assignor has not covenanted for the goodness of the title. Bree v. Holbech, Doug. 655. But see 2 Ch. Cas 19, and Hardinge v. Nelthorpe, Nels. Ch. Rep. 118.

       The principle is, that the liability must be immediate to the parties in the suit, and not a remote, circuitous liability. Ball v Bostwick, 1 Stra. 575.

   Radcliff, ,J.

I understood the mate’s claim to be fouud* ed on his office, as a privilege annexed.

Per Curiam.

The facts of this case arise merely from the depositions of witnesses. Thom these it appears that the plaintiff purchased of one Bonsall, the mate of a vessel, three logs of mahogany; that, at this time, the captain and consignee were present, as is stated by the witnesses of the plaintiff. On the case, as presented to us, there is some degree of contradiction in the testimony, which, as it was laid before the jury, they, no doubt, duly estimated. In this action, property and possession must be shown., The only evidence of this property and possession is from the testimony of Mackworth and Smith. They state, that the price contracted for, between Bonsall and the plaintiff, was one hundred dollars; and Smith, ás a reason for a [*19] gross sum being ^agreed upon, adds, “ that it was to save the trouble of having the mahogany measured.” Marshall, the'public measurer, deposes, that he did measure the whole cargo, and that the mate sold them, after whey were so measured. That, at the mate’s request, the «marge of measuring was debited to Eoget, the consignee, who paid for it; and that the mate himself acknowledged ¿e did not own any three particular logs, but that he had A right to make choice of three, and would settle for it with Eoget. After this testimony is delivered, Smith recollects that the mahogany had been measured, and that he saw the measurer’s marks bn the logs; though, before that, he assigns its non-measurement as a specific reason for a gross price of one hundred dollars being agreed as the purchase-money. After this, a release being produced from Burling, the defendant, Eoget, the consignee, was admitted very properly as a witness, and he is followed by his clerk. Under these circumstances, it must be taken for granted that the jury weighed Smith’s credibility; and if so, there could be no doubt that there was neither property nor possession in the plaintiff. It is urged as a reason for a new trial, that the judge’s charge precluded certain testimony; or, at least, prevented the jury from weighing it; for, the judge charged that it was necessary to show an acquiescence in Eoget. But it must be presumed to have been understood by the jury, that Eoget’s acquiescence was' necessary for Heyl to show property in himself; and, on this point, we think that the mate, Bonsall, must have shown property, as the consignment was to Eoget entirely.. The testimony of Smith was wry properly disregarded, and the verdict ought to stand. The release of Bonsall, being after his examination, and when the interest he had must have had its full influence and operation on his testimony, came too late, and could not be received.

New trial refused.

         To maintain the action of trover, there must be a right of possession and a right of property. The right to the possession must be immediate, (Gordon v. Harper, 2 Esp. Rep. 465,) that is, the plaintiff must be entitled to the possession of the goods at the time of the action brought; but, it is not necessary that actual possession should ever have been enjoyed;, a possession in law is sufficient. Hudson v. Hudson, Latch, 214. Flewellin v. Rave, 1 Bulst. 68. The right of property may be absolute, Pyne v. Dor, 1 D. & E. 55 ; Blaker v. Anscombe, 1 N. R. 25,) or special, as that of a bailee, (Arnold v. Jefferson, 1 Ld. Raym. 275,) or a carrier, (Goodwin v. Richardson, I Roll. Abr. 4,) or a sheriff, (Wilbraham v. Snow, 2 Saund. 47,) but the right of property and possession must unite in the plaintiff. Gordon v. Harper, ub. sup. See also Webb v. Fox, 7 D. & B. 391. In addition to these requisites in the plaintiff, the subject matter of the suit must be a personalty. Eiwes v. Shaw, 3 East, 51. Quaere, whether, in regard to the subject, Todd V. Crookshanks, 3 Johns. Rep. 432, be reconcilable with Goggerley v. Cuthbert, . N. R. 170. Observe, that possession alone gives a right of property against wrongdoers, and all the world except the ^ght owner. Armory v. Delamirie, 1 Stra. 505. Webb v. Fox, ub. sup.

       See also McDonald v. Hewett, 15 J. R. 349.

         A release to render a witness competent must destroy, in regard to the object of controversy, his liability to both parties, and that, as well in equity as at law. Cheyne v. Koops, 4 Esp. Rep. 112. See Heermance v. Venoy. 6 Johns. Rep. 5, as to competence of vendors.


text:
    Jackson, on the demise of Jauncey, against Cooper and Styles.
    In ejectment against several defendants, though they sever in their pleadings, and enter into separate consent rules, the notices and pleadings must be entitled against all, as at the commencement, but each party must be served with a separate notice, &c.
    This was an action of ejectment, in which the defendants severed in their appearances, entered into separate consent rules, and pleaded separately.
    The plaintiff had, in a former term, obtained leave to amend, by altering the name of the lessor of the [*20] plaintiff from John to * William Jauncey; but the notices on which the motibn was founded, were entitled as above, against both defendants.

      Benson

    now moved to set aside the proceedings for irregularity, contending that, as the defendants had severed, the original suit became divided into two distinct causes. That, therefore, there should have been two separate notices, each entitled against one defendant, and served on the different attorneys of the defendants. For there was not then any suit, in existence, such as that in which the notices purported to be given.

      Hopkins,

    contra, insisted the notice was perfectly regular, and likened it to the case of a suit against two, where one is outlawed, yet the proceedings are entitled against both.

       So where one of several defendants is proceeded against under the statute, (1 Rov. Laws, 363, 513,) the papers are entitled against all. Dando v. Tremper, 2 Johns. Rep. 87.

   Per Curiam.

The objection taken against the notices and rules is, that, as the defendants appeared by distinct attorneys, and entered into separate consent rules, these oircumstanees required separate and distinct proceedings, and ought to have been entered and entitled as separate; that is, that the notices should have been separate, addressed to each party, and the rules entered accordingly. The notice given to Van Schaick, attorney for Cooper, is entitled against two; and it is on that notice the application is made. The court are of opinion that this is the regular way in which the notice should be entitled; though each party should be served. It does not follow, that appearing separately, and entering into separate consent rules, justifies or requires a different practice; for pleading separately does not make separate suits. The notice must be as the case was originally entitled, and a copy served on all the attorneys; for otherwise it would imply a distinct issue in each suit.

Motion refused, with costs to the plaintiff.

       Therefore, in such a case, only one venire issues, which is, “ therefore, as well to try this issue as the said other issue (or issues) above joined, between the said A. B. and the said C. D.,” (or “ and between the said A. B. and E. F.”) “let a jury,” &o.


text:
    Bell and others against Rhinelander.
    Practice on moving for partition.
   In partition, only the notice and affidavit of service is read, not the petition.


author:
      Per Curiam.

      The Court

text:
    Jackson, ex dem. Nicholas Low and others, against James Reynolds.
    If the plaintiff in ejectment count upon demises by persons who are dead, the defendant, after entering into the consent rule, may apply to have their names struck out of the declaration, and that without costs, the necessity of the application arising from the plaintiff.
    On an affidavit- stating the death of one of the les» [*21] sors of *the plaintiff, from belief, information, diligent search, and inquiry,

      Riggs,

    on the behalf of the defendant, moved, to strike out
    of the declaration one count wholly,  and in all others the name of Drake, with costs.

      Howell, contra.
    The application now comes too late, being after entering into the consent rule:
       at all events, the affidavit should state that the fact was unknown at that time. In addition to this he mentioned, that from the counter affidavit which he held, it appeared the defendant had heretofore consented to give up possession, having failed to try according to stipulation.

        а) The practice as to amendments, where, on the defendant’s application, a demise is struck out, has been settled in a recent case to be as follows: The defendant must serve a certified copy of the rule to amend on the plaintiff, which is to be deemed an actual amendment, as to all subsequent proceedings on the part of the plaintiff; and the defendant without a new copy of the declaration, must enter into the consent rule, and plead within twenty days after the service of the certified copy of the rule for the amendment, unless otherwise ordered by the court; and the rule is sufficient to authorize an actual amendment of the declaration on file, or to file a new one in its stead, whenever it may be necessary. Jackson, ex dem Kelly and Oakley, v. Bellonap, 7 Johns. Rep. 300.

       S. P. Ditz ads. Butler and others, Cole. Cas. 102.

   Per Curiam.

The motion must- be granted. It has been before decided, that a defendant may thus come in and move, on the death of a party before the commencement, of the suit. As to the objection, that the application is out of season, the answer is, that it is never out of season when, on the ground of an original irregularity in the plaintiff himself. Therefore, the not coming in earlier cannot be urged. The affidavit of the defendant furnishes such evidence of the facts as is prima facie sufficient; and if not true, ought to have been denied by the plaintiff, especially as it is in his power; for the attorney of the lessor may, nay, certainly must, know if Ms client is alive. As to the costs it does not necessarily follow that the attorney of the plaintiff must know of the death of one of the lessors. He may have examined into the title on behalf of one person, acting for others equally interested, and seeing a number of names necessary to be made parties, he might have thought them all in existence, and the affidavit of the defendant be the first notice of the death of any. one entitled. The costs ought to be paid if the fact was known sooner: and the application for the object of this motion ought to be made as soon as the right to apply was discovered; we grant the motion but without costs.

Howell then asked for the costs of amending.

The Court

said, they would reserve their determination on that point till the next day, when they denied them saying the plaintiff was irregular from the beginning; and though he might not have been in fault, there is no reason for allowing him costs, when it is to have his proceedings rectified that the defendant comes before the court.

Motion granted without costs to either party.

       When a party seeks to set aside proceedings for mere irregularity, he must apply at the first opportunity. Nichols v. Nichols, 10 Wend. 560; Leavitt v. Woods, 10 Id. 558; McEvers v. Mackler, 1 J. C. 248, Jones v. Dunning, 2 Id. 74; Giles v. Caines, 3 Cai. R. 107; Anonymous, 5 Wend. 82. But this rule does not apply to motions for relief affecting the substantial rights of parties. Doty v. Russell, 5 Wend. 129.


author:
Radcliff, J.
      Per Curiam.

text:
    *Sheffield against Watson.
    A mistake by an attorney, of a rule of practice may prevent judgment as in case of nonsuit for not going to trial, but will not excuse costs.
    Hopkins, for the defendant, moved for judgment as in case of nonsuit for not going to trial.
    Woods, contra.
    The cause was called on, but as there were other causes on the day calendar, one of which actually occupied the court the whole day, the plaintiff’s attorney, not being quite ready, thought he should be entitled to bring it on the next day, the day calendar not being gone through; but found he was put down to the bottom of the calendar for the circuit. This, therefore, is a plain mistake of the rules of practice, which ought not to injure the plaintiff.

      Hopkins.

    The plaintiff clearly was not ready; therefore equally in fault, whether the rule was as he imagined, or not.
   Radcliff, J.

Acting under that belief, he did not prepare himself.

Hopkins asked for a stipulation and costs.

Per Curiam.

The excuse is certainly not sufficient to exonerate from costs. If admitted in one case, it must be in all; and, however the good faith of the plaintiff’s com duct, and our belief of it, may deny the judgment moved for, to refuse costs would do away the effect of the rule. The plaintiff must stipulate.

On stipulation and costs, motion denied.

         See Russell v. Ball, post, 252.


text:
    Fallmer against Steele and another.
    On producing certified copy of original writ, declaration amended.
   Hopkins moved to amend a count in the declaration, in conformity to the original writ, (a certified copy of which he produced,) by striking out the words "town of Herkemer,” and inserting the “ town of German Flats.”

Ordered.

       The New York Code of Procedure (secs. 169 to 115) provide: No variance between the allegation in a pleading and the proof, shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms aa shall be just.
      Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.
      Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof.
      Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires, or, it can be so amended at anytime within twenty days after the service of the answer or demurrer to such pleading unless it be made to appear to the court that it was done for the purposes of delay and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed, and if it appear to the court that such amendment was made for such purpose the same may be stricken out and such terms imposed as to the court may seem just. In such case a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, either at a general or special term, the court may, in its discretion, if it appear that the dem'vrrer was interposed in good faith, allow the party to plead over upon such to'ms as may be just. If the demurrer be allowed for the cause mentioned in the fifth sub-division of section one hundred and forty-four, the court may, in ite discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.
      The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, when the amendment does not change substantially the claim or defence by conforming the pleading or proceeding to the facts proved.
      The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made or other act to be done after the time limited by this act, or by an order enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may in like manner and upon like * terms, permit an amendment of such proceeding, so as to make it comformable thereto.
      When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding, by any name j and when his true name shall be discovered, the pleading or proceeding may be amended accordingly.


text:
    Remsen, Administratrix, against Isaacs.
    On a non-enumerated motion for irregularity, merits cannot be entered ictq but on merits irregularity may be shown.
    Mulligan moved to set aside a report of referees fat irregularity and on merits.

      Woods, contra.
    In King v. Hughes it was determined, that if a motion be made as non-enumerated for irre[*23] gularity, the Aground of merits must be abandoned, though on the merits the irregularity may be insisted on.
   Per Curiam.

The rule is according to the decision cited. The application must be for irregularity only to bring it on as a non-enumerated motion. If merits are united, it becomes enumerated.

Motion denied.

       S. P. Foden and Slater v. Sharp, & Johns. Rep. 183. .


text:
    Hun and others against Bowne.
    If a case made do not set forth the merits of a cause as they appeared on the trial, and the amendments proposed do not reach the hands of the counsel employed within a time agreed on, and within which they might have arrived but for an accident, the court will grant a further day to amend, and perfect the case.
    Golden, for the plaintiffs, moved for leave to amend the-case made by the defendant.
    From the affidavit of the attorney for the plaintiffs, it appeared, that the defendant’s attorney had agreed to give the plaintiffs’ attorney till the 21st January last, to settle his amendments before a judge at Albany, the cause having been tried in Hew York; that by some accident the amendments proposed by the plaintiffs to the case made on the part of the defendant, had not come to the hands of the counsel who was employed to attend to the business there, until the 22d January; and further, that the case made by the defendant did not set forth the merits of the cause as they appeared on the trial.
    Hoffman, amicus.

    In Duff v. Van Zandt, on a suggestion that the case made did not contain a true statement of facts, the court granted a new trial after argument and decision.
    Boyd, contra.
    The application stated some circumstances of strict and unaccommodating conduct in the plaintiff/ attorney, which had occurred previous to the agreement mentioned in the affidavit read by Colden, and some decía* rations of the plaintiffs’ attorney, that he would hold the defendant to strict practice.
   Per Curiam.

We cannot travel back farther than the agreement stated. It appears that the defendant had given the plaintiff a time, which from accident he could not keep ; the amendments were sent with due speed, and so that they might have arrived at Albany in season, if nothing had happened to prevent it. We cannot let the plaintiff suffer by circumstances which he could not control. The verdict is in the hands of the plaintiff, and the defendant cannot be injured by a short delay.

Motion granted. .

         If the papers from whence the case is to be made be in the plaintiff’s hands, the court will order them to be furnished, and stay proceedings in the mean time. Jackson v. Platt, 2 Johns. Cas. 71. If an important fact has been omitted, leave will be given to add it. Jackson v. Barker, August, 1803, Caines’ Prac. 523.

        Foot v. Colvin, 2 J. R, 481; Jackson, v. Brownel, 3 J. R. 140; Codwin v. Harker, 1 Cai. R. 74.

       An order for time to make a case cannot be enlarged after it has expired; relief can be had by motion only. Hawkins v. Dutchess & 0. S.Co., 1 Cow. 467.


author: By the Court.

text:
    *Anonymous.
    Cases for argument must be noticed.
   By the Court.

All causes intended for argument must be duly noticed before term to the clerk, that he may enter them on the calendar. If not so noticed, they must go to the foot of the calendar, without regard to the date of their issues.

       Four day notice.

       See Code of Procedure, sec. 256, as given ante, p. 6; and Rule 37 of Supreme Court.


text:
    Halsey against J. and S. Watson.
    Court will not grant a new trial, where the evidence has been on both sides ■ In applications for new trials, on account of a subsequent discovery of material testimony, what that testimony is, must be stated, that the court may judge of its materiality.
    This was a motion for a new trial, on an affidavit of a discovery of new and material evidence. The points and substance are so fully stated in the decision of the court f-hat it is unnecessary to do more than give the judgment.
   Per Curiam.

This is a motion for a new trial, and comes before us on the ground of a discovery of material testimony since the trial of the cause. To see this, and judge whether it be material or not, it will be necessary to state the former testimony and nature of the suit.

It is assumpsit by Halsey, the plaintiff, against James and Samuel Watson, the defendants, as owners of the ship Chesapeake, founded on a neglect in not taking on board some tobacco, according to contract.

The witness, Heyer, who appears to have acted as agent for the plaintiff, states what the contract was, and the time * at which the tobacco was to be on board. This agreement appears^ to have been made on a Friday. The witness inquired of the defendant James Watson, when the tobacco should be sent down to the vessel. The answer was, “ Send it down as quick as possiblein consequence of which, it was sent the very next day.

From three witnesses it is shown, that the principal part of the tobacco was on the dock by eleven o’clock in the forenoon, and that the whole was ready to be put on board by three. These facts, then are established by three witnesses. The captain swears that, after 4 or 6 hogsheads had been brought, he requested the carmen not to bring any more, as there were appearances of a storm. This the principal carman has, in effect, denied; for he says, he was desired by those on board the ship, or the captain, to bear a hand; and that he got all the tobacco down by dinner [*2o] time. Here the ^testimony is contradictory. We are to judge, then, if the material evidence, as it is termed, that has been discovered since the trial, be really testimony or materiality. There is one person who swears as to the directions given by the captain. The court are of opinion that this is not material, so as to warrant granting a new trial. This in two points of view: the testimony goes only to impeach the credit of what has been sworn, and not to establish any new fact. It is merely contradicting former evidence. In that point of view it is not material: nor can it be so in another, unless the defendants can go further. The direction not to bring down the tobacco, was to a carman. This is not sufficient: as Watson directed it to be sent as soon as possible. It ought to have been to the owner of the tobacco: or to have shown that the request was brought home to the knowledge of the plaintiff; that it was made to a carman, is not sufficient. The defendants’ affidavit states two other witnesses, who are material; but does not say to what facts they would testify; we cannot, therefore, judge whether they are material or not. Blaclcmer, it is stated, will testify that the tobacco was not marked till Monday. This will only go to impeach the credit of the testimony; for three witnesses swear to the fact, of the marking being before one o’clock on Saturday. The captain himself does not pretend that the reason for not taking it on board was the hogsheads’ not being marked, but only. that he had not time. He does not pretend it was not ready to be taken on board.

New trial refused.

       The rule to be extracted from the cases on the subject of new trials, where evidence has been given on both sides, seems to be, that if the verdict be manifestly against the weight of ■ evidence, and will work injustice, a new trial will be granted. Berks v. Mason, Say. 264. Norris v. Freeman, 3 Wils. 39. Jackson v. Sternbergh, post, 162. If it be merely doubtful and contradictory it will not. De Fonclear v. Shottenkirk, 3 Johns Rep. 170. When the materiality of evidence is relied on, in addition to the requisites demanded by the decision in the text, the names of the witnesses must be specified, and what is expected to be proved by them; Richardson v. Backus, 1 Johns. Rep. 59, it is not enough to state what the party applying has been told they will say. Shumway v. Fowler, 4 Johns. Rep. 425. If the testimony go merely to impeach the credit of a former witness, a new trial will be denied. Bunn v. Hoyt, 3 Johns. Rep. 255." Shumway v. Fowler, ubi sup. especially so, if the witness whose credit is assailed be dead. Duryee v. Dennison, 5 Johns. Rep. 248. But if the credit given to the former witnesses arose from, ciroumstcmces which are falsified by affidavit, a new trial may be allowed Lister v. Mundell, 1 Bos. & Pull. 427. The reason of this distinction appears to be, that mere affirmations and denials by word of mouth may be fabricated; circumstances and the happening of facts cannot. See post, Steinback v. Columbian Insurance Company, 2 Caines, 133, n. (a).

      See also Jackson v. Sternbergh, 1 Cai. R. 162. Douglass v. Tousey, 2 Wend. 352. Keeler v. Firemen's Ins. Co., 3 Hill, 250. Eaton v. Benton, 2 Hill, 576. Smith v. Hicks, 5 Wend. 48. Astor v. Union Ins. Co., 1 Cow. 202. Jackson v. Loomis, 12 Wend. 21. Hollingsworth v. Napier, 3 Cai. R. 182. Carley v. Wilkins, 6 Barb. S. C. Rep. 557, 565. Esterly v. Co.*, 1 Id. 235, Fleming v. Hollenback, 7 Barb. S. Court Rep. 271.