author: Spencer, J.

text:
    Jackson ex dem’ Russel and others against Stiles Dockstader, tenant, Same against Same, Freelick, tenant.
    TO set aside the default arid.proceedings in these causes, the defendants relied on an affidavit of their attorneys’ clerk, stating a service of notice of appearance and the consent rule, by leaving them, on the 17th of January 1804, between the hours of 2 and 4 in the afternoon, at the office of J. V. Henry, the agent lor the attorney of the plaintiffs, and that there were good and Substantial ¿efenceg> Qn the other hand, from the depositions of the plaintiffs’ attorney it appeared, that Mr. Henry was not appointed their agent, till July 1804, that notice of appearance, &c. had not been received, that in one suit, a writ of possession had been sued out, in May term of that year, and executed in the vacation following, and that in the other, the tenant had compromised and bought the land of the lessor, of the plaintiff.

      Where there is an affidavit of notice of appearance which is denied on the other side, a regular default and subsequent proceedings will not be set aside on stating a substantial defence, without shewing merits, or a mistake.
    NEW-YORK,
    May, 1805.
   Spencer, J.

The affidavits go only to there being defences, but this is no evidence of merits. The proceedings have been perfectly regular on the part of the plaintiffs, and nothing appears from whence a mistake could have arisen. The applications must therefore be denied.


source: Caselaw Access Project

author:
      Per curiam.
     Thompson, J.

license: Public Domain

text:
    Peter Brooks against Abijah Hunt.
    The defendant is entitled to move for judgment as in case of nonsuit whenever there is, after issue joined, time to notice for the next circuit, but if he has obtained time to plead, and from the nature of his plea, distant witnesses may be needed, on which point it is necessary that the plaintiff’s attorney consult with his client, who live, at some distance, though a stipulation may be excused, costs of applying must be paid.
    ISSUE had been joined on the first of March last, but the cause, the venue of which was laid in the county of Albany, had not been brought on at the last April circuit.

      Sanford, On these facts, moved for judgment as in case of-non-suit#

      Paris, contra,
    shewed, that the defendant had delayed the cause by obtaining time to plead till the first day of March, that from the matter of the plea then delivered, there was reason to
    , , believe it would be necessary to sufthana witnesses irom New-York, and that from the short interval between the receipt of the plea and the circuit, .he had no opportunity of consulting with (_jle plaintiff who resided in the most westerly part of Montgom- . , , , . , ery. from these circumstances he argued that the motion ought tobe denied without cither costs, or stipulation.

      Sanford, in reply.
    The words of the statute are that where iSSUe is Joined and the plaintiff “ neglect to bring such issue to be J , , . , , j “ tried according to the course and practice of the court, the de-fencjant shall be entitled to judgment as in case of nonsuit. From .... the 1st day of Ma, ch, to the circuit m Ap.nl was time enough to notice,

         1 Rev. Laws 353. See. 12.

   Per curiam.

The defendant had a right to move, and therefore, t^10US^ we ^eny bis motion, it must be on payment of costs ; but, from the circumstances of the case, the plaintiff is excuse» from stipulating.

NEW-YORK,

May, 1805.

Thompson, J.

I do not think this according to practice. The cause was long enough at issue to allow of a notice, and he ought therefore to stipulate.

*⅞* It was said by the bench, that in all cases the period within which costs are to be paid, is twenty days.


author: Kent, C. J.

text:
    Myndert Lansing against David Horner.
    If to set aside a default, &c. a defendant rely on the having forwarded notice of retainer, &c to the agent of his attorney, and plaintiff's attorney swear he never has received them, the court will not grant the application, unless the agent swear the papers never come to hand. See Spencer v. Hulbert 2 vol. 374. S.P.
    EMOTT,movedto setaside a default entered 21st January last a judgment and execution thereon, upon the affidavit of the defendant swearing to merits, and, one from his attorney stating that notice of retainer and of special bailhad been in due time transmitted with the bail piece by the mail, to his agent in Albany, desiring him to serve them on the attorney of the plaintiff, and that he himself had never received a declaration.
    Bleecker, contra,
    read an affidavit, setting forth that he had never received any notice of retainer or bail, and that he had proceeded regularly.
   Kent, C. J.

As the papers were sent to the party’s own agent, why does not he shew that he has not received them ? This was his duty, and the not doing so is a palpable neglect. There is also a laches in not applying last term. The defendant can take nothing by his motion.


author: Kent, C. J. ’

text:
    Lewis Du Boys against Henry Fronk.
    The residence of witnesses is a good cause for changing the venue, unless the plaintiff shew his residence where it is laid.

      Sanford, moved to change the venue in an action of covenant, from Dutchess to Montgomery on an affidavit, stating that he had a great number of witnesses, all of whom, excepting one in Mensellaer, resided in Montgomery.

      G. Fan JVess, contra.
    The action is transitory,
   Kent, C. J. ’

We last term decided, that where the body of ' witnesses resided in a county, different from that in which the •renue was laid, v/e would change it on the application of the defendant, unless the plaintiff shew that he has witnesses where the venue is laid. Take your motion.


text:
    Cornelius C. Beekman against Benjamin Franker.
    A regular default &c will not be set aside on account of the ignorance of the defendant, that it was necessary to employ an attorney, though there be merits.
   IT was ruled that ignorance of the necessity of employing an attorney, previous to the trial of the cause» is not sufficient to induce the court i0 set aside a regular default and subsequent pro»

NEW-YORK,

May, 1805.

Ceedings, though accompanied with- a strong affidavit of merits.


author: Kent, G. J.

text:
    James Woods against Ephraim Hart.
    If any one mix with a jury on a writ of inquiry the inquisition will be set aside, each party paying his own costs.
    BOGERT, moved to set aside the inquisition assessing very small damages, on account of the sheriff’s having permitted a person to remain and converse with the jury, whilst deliberating on their verdict, though known to be inimical to the plaintiffs and rejected as a juror on that account.
    Hoffman, contra.
    On inquests, after a default, confessing a dause of action, there never is the same regularity, as on a trial where the very right is questioned. It is not alleged that the man who remained with the jury spoke adversely of the plaintiff, or used any means to lessen the amount of damages.

      Sogert, in reply,
    On an inquisition, the law is as jealous of the conduct of jurors as on a trial, 4 D. & E.

       473. The oath of the constable is the same, and shews the same conduct is required in one case as the other.

        Stainton v. Bcale.

   Kent, G. J.

No one ought tq mix with a jury whilst deliberating. They should, to preserve the purity of justice, be kept by themselves, and on this point there is no difference between an inquiry before the sheriff, and a trial. The inquisition must therefore be set aside, each party paying his own costs. We order it thus, because neither is to blame ; and, were wfe to direct them to abide the event of the suit, it would in fact, as there has been a default, be saying the defendant is to pay them. This casef therefore, is to be distinguished from that of granting a new trial after verdict, for the misbehaviour of the jury. There, each of the litigants has a chance in his favor, and ordering the costs on such an occasion to abide the event of the suit, does not necessarily impose them on either. Here the event is known-


text:
    James Howell against Daniel Denniston.
    If a rule to plead be given on the return day of the writ, but before it is returned or bail entered, a default and all subsequent pro ceedings thereon will be set aside as being had before defendant was in court. On a motion for irregularity, the want of merita is immaterial.

      THE plaintiff in this cause filed his declaration de bene cssc,. anci entered his rule to plead on the return day of the writ on . . . which the defendant was taken, but the writ was not jn fact re-tuvner] till seven days afterwards. 1

    Blq,ke,
    on these grounds moved to set aside the default and all subsequent proceedings. He argued, 'that to entitle the plaintiff to take default, he must himself be regular, and within the rules of practice. That, by these, the defendant was not in court, at the period when the rule to plead was entered. It was a demand, therefore, when there was no one to answer, and a plea cannot be required but of a party in court. The foundation of the proceedings had being the default, if that was bad, the whole must fall.
    NEW-YORK,
    May, 1805.

      Emott contra,
    read an affidavit shewing, that though the rule to plead was entered before the writ was returned, yet the default , „„ . ,, was not entered till more than 20 days after the writ was actually filed, and that the defendant had confessed he had no defence. __ , , , . . , , , He contended that the return ot the writ made good the entry of the rule by relation. Therefore, the instant it was on file, the defendant was to be considered as in court from the day of the return, and the want of merits was acknowledged.
   Kent, C. J.

The rule to plead was irregularly entered ; because, until the writ be returned, bail filed, or an appearance en= tered, there is no basis for a proceeding, and the court has no cognizance of the cause, so as to authorize pleadings. With respect to their being no merits, we never regard that, when the application is for irregularity.


author: Thomson, J.

text:
    Matthias and James Bruen against Adams and Merrill.
    If delay appear to be the object of a defendant, of which the having filed a frivolous demurrer is a cause of suspicion, the court will not set aside an inquest taken, though the defendant swear the action is for more than is due; he ought to state “ that “ he has a de. “ fence as ad “ vised by his “ counsel."
    WOODS moved to set aside, an inquest taken early in the last New-York sittings, in the absence of the defendants’ attorney, on an affidavit stating, that, the demand was for more than was actually due, and the cause stood so low down in the calendar as No. 116.

      T. L. Ogden contra,
    read a deposition shewing, that the attorney for the defendants had acknowledged delay would be desirable, under their then embarrassed circumstances, and that a frivolous demurrer had already been filed and overruled. He contended also that the affidavit of the defendants was insufficient, in not expressly averring there was a defence.

      Woods in reply.
    The same thing is in substance done. All inquests at a circuit are at the peril of the party. Roosevelt v. Kemper, 2 N. Y. T. R. 30.
   Thomson, J.

The practice, I adopted was, that if the defendant’s counsel said there was a defence, I did not allow it to be taken.

NEW-YORK,

May, 1805.

Per curiam.

The affidavit is defective, in not saying there is a defence “ as advised by counsel.” In this case there has been a frivolous demurrer, and that is a very suspicious circumstance. ^ie defendants, therefore, take nothing by their motion.


author: Per curiam.

text:
    Jonathan Holmes against Elisha Williams.
    If an action of false imprisonment be brought for taking the plaintiff in execution on a ca. sa. in which the costs are by mistake larger than those actually awarded,’ the court will give leave to amend the execution ; and the papers on which the application is made, may be titled as in the suit for false imprisonment.
    THE defendant, in a suit against the plaintiff, the venue of which was laid in Albany, had obtained a judgment in which the costs awarded were 9 dollars 12 cents, and on the supposition, that the original ca, sa. had issued into Columbia, sued out a testatum ca. sa. inserting 14 dollars 44 cents. The now plaintiff having been taken on this writ brought the present action for false imprisonment.

      Williams on an affidavit disclosing the above facts, and adding that he did not personally issue the execution or ever see it, or knew of the mistake till the sixth day of the present month, moved to amend the testatum ca. sa. by expunging the 14 dollars 44 cents and inserting 9 dollars 12 cents.

      Van Wyck contra.
    This is an application in one suit, to amend mistakes and errors in another. If the amendment is to be in the cause of Williams v. Holmes, the papers ought not to be intituled in that of Holmes v. Williams. The motion goes to take away the basis and foundation of our action.
   Per curiam.

Take your motion.


text:
    Robert G. Shawe and Christopher Barker against Robert Colfax, William Colfax and Alexander Richards.
    If all the defendants in a suit be not brought in, and those who are, give a rule to declare, the plaintiff must either do so or obtain a further time, to entitle to which from time to time, shewing that he is proceeding to outlawry against , those not found, is sufficient: but if he do neither the one nor the other, he will be liable to a nonpross by those brought in.

      ON the last day of February term, the defendants, Robert Colfax and Alexander Richards, entered a default against the plaintiffs for not declaring.

      Hopkins

    moved to set it aside, together with the subsequent, proceedings on these facts.
    In Mo-oember term last, the capias issued, was returned “ taken,” as to Robert Colfax and Alexander Richards, and “ not found,” as to William Colfax, to arrest whom, several ineffectual attempts had been made, as he resided in JVew-Jersey, and either did not come into Hew-York at all, or did it so secretly as to avoid the process sued out, but an that account, the idea of proceeding it him, was not relinquished, on the contrary, an alias capias ⅛ 3 ícen sued out, under the belief, that he had received informa-of the former writ, but, before it was issued, a rule to declare .inst the other two defendants had been served, upon which the ..resent default had been entered.
    NEW-YORK,
    May, 1805.
    He argued that at common law, the plaintiff could not pro-ceed till all the defendants were brought in; and though by statute, a different practice might be pursued, still it was at the election of the plaintiff', and therefore, no advantage could be taken of the omission. For this he cited Tidd’s Practice 376 — 9.

      D. A. Ogden, contra.
    Had the proceeding been by original, the authority relied on might have applied, but as it is by bill, the plaintiffs have placed themselves in the same situation, as if all the defendants had appeared. If necessary that ail the defendants should be brought in, the plaintiffs should have obtained an order to enlarge the time for declaring. According to the practice now contended for, a defendant may be kept under bail for his life.

      Hopkins in reply.
    Whether the proceeding is by bill, or original, is immaterial. The distinction is whether the suit be in tresspass or on contract. In the former they may sever, in the latter they cannot; as they therefore must be proceeded against jointly, they cannot seperately nonpross. Suppose the only solvent defendant not to be taken, must a plaintiff go on against a person from whom nothing can be recovered ? The inconvenience alone, of such a principle, is a sufficient argument against it.

       Act for the amendment of the laws 1 Rev. Raws 353.

   Per curiam.

The plaintiffs should have applied for further time to declare, and shewn either that they were endeavouring to bring all the defendants into court, or pursuing one to outlawry. That would have been a good ground to enlarge the rule from time to time. Not having done so, and being authorised by our act to proceed against the defendants brought in, the plaintiffs were liable to be nonprossed equally as if all the defendants hud been before us.


author: Livingston J.

text:
    Robinson and Hartshorne against Fisher.
    In assumpsit a plea that the promife was by the defendant and one of the plaintiffs jointly, and not by the defendant separately, must be pleaded in abatement: if it be pleaded in bar, the plaintiff may treat it as a nullity for want of the affidavit, and enter a default as for want a plea.

      TO a declaration on a promissary note, the defendant pleaded n bar, that the assumpsit was by him and Robinson jointly, and not by him separately. The plaintiffs’ attorney considering the, plea a nullity, entered a default.

      Woods,

    moved to set it aside, and cited in support of the plea a precedent in 3 Went. 114. He said also, no plea .could be treated as a nullity, unless it appeared on the face of it to be frivolous. In all other cases the court would drive the defendant to his demurrer,

      G. Ogden, contra.
    The matter of this plea is clearly in abate- . ment; and if so, might for want of being verified by affidavit, be treated as a nullity. 1 Sell. 301.

       See Mainwaring v. Newman, 2 Bos. & Pull. 120, in which such a plea as the present, was held good, on demurrer, on the authority of Moffat v. Van Millingen & ors. East. 27. G, 3. B. R. declaring that the matter was not pleadable in abatement.

   Per curiam, delivered by

Livingston J.

This is a dilatory P^ea’ L'-le definition of which is, that it only delays the suit by questioning the propriety of the remedy, rather than by denying ^1<3 'njury. Thus the injury complained of here, is not denied, but that it was committed with another. If it be a plea of this description, it wants the verification required by statute, and is therefore bad. Even as a plea in bar, I should not be for countenancing it, for it is totally out of the usual form of general issue which it was intended to try, and which would have answered as well, and furnished a record in the common form.


text:
    Paul Schenck and Henry Ten Broeck against Melancthon Lloyd Woolsey.
    NEW-YORK,
    May, 1805.
    On a sci. fa. to revive a judgment of twenty years standing, if an inquest has been taken because the defendant’s counsel was not prepared to adduce his discharge, long since obtained under an insolvent law, and the defendant himself, from remoteness of distance and bodily infirmity, could not attend: thethe inquest to let in a proof of it, though the defendant be shewn to be a sufficient ability to pay: for a court of law connot notice the moral obligation to pay debts, from which a debtor has been by law discharged, unless a new liability has been incurred, but this will be done only on payment of costs. A counsel at ni. pri. must, if asked, answer whether his client has a defence or not.

      IN scire facias, to revive two judgments, one for the £ 4124, the other for £ 1718, obtained in 1783, inquests had been taken at the sittings in December 1803.

      D. A. Ogden,

    under an agreement that the application should be considered as in time, moved to set them aside on affidavits, which contained in substance these facts.
    The defendant, who lives at Platsburg in the county of Clinton, was in 1785, duly discharged under the then insolvent law of the state. In February 1803, the declarations were filed, to which payment was pleaded, with notices subjoined of giving the discharge, &c. in evidence ; but as, on procuring a copy of the proCeedings under the insolvent law, the discharge itself could not be found, the attorney ol the defendant wrote to him in the August following, communicating this circumstance, and requesting him
      m make inquiry after it. On the cause being noticed for tria] on the 12th of December in that year, the defendant’s- attorney again wrote to him, repeating the contents of his former letter; and urging him to personally attend, that measures might be taken to procure the discharge, or substantiate by parol evidence its former existence and loss. The first of these letters did not reach the defendant till the middle of September, the latter not till the 29th of November, then next. To each of these the defendant replied, stating that in consequence of a fractured leg, he was uterly unable to travel, and desiring the trial to be postponed till the February following, as, by that time, he hoped to be able to procure the discharge, which had been given to Mr. Du Boys, then sheriff of Du'chess, to warrant his release from confinement, The first of these answers never came to hand, and the latter, which was received, bore date on the 18th of December ; but though the discharge itself was not found, the attorney employed for the insolvent, who was also assignee of his estate, swore that the discharge had been obtained on a due, and full adherence to the requisites of the act, and that he was then petitioning congress for the lands to which the defendant was entitled, as an officer in the revolutionary army, in consequence of their having passed by the assignment of the insolvent’s estate. None of these circumstances, however, appeared when the inquests were taken ; for the counsel of the defendant, when the causes were called on, refused to answer the court whether there was any de-fence ; thinking that he was not bound to do so, and in consequence of this silence the inquests were taken.
    This detail, Ogden insisted, furnished indisputable evidence that there was a good and substantial defence, according to the affidavit of the defendant, and that the court had not, at the circuit, any right to oblige either the counsel to assume the responsibility of answering for a defence, or the defendant to disclose the nature of that on which he relied. That a discharge had been fairly obtained was evident, and had the cause been tried, would have been substantiated by parol evidence, though the discharge itself might not have been produced.

      Evertson, contra.
    The practice of taking inquests is necessary to expedite justice, and is the right of the plaintiff. Every fact now shewn was in the power of the defendant at the time that inquest was taken, and might have been then availed of. The nature of the defence is stricti juris, and therefore not to be favoured, for though in law the debt is gone, the moral duty still remains, and the plaintiff swears he believes the defendant to be of sufficient ability. At all events the apparent laches was enough to prevent the granting the motion.
   Per curiam, delivered by

Spencer, J.

The inquest is regular. Counsel, if present ought to answer whether he believes there is a defence. The time at which a trial shall come on, is not the privilege of a defendant, but is adopted from a regard to the seniority of issues. Infinite delay would take place in cases where no dispute exists, if the counsel were to be mute when required to state whether there be a defence. It appears, however, that the defendant has been discharged under an insolvent act, and by accident has not been able to produce his discharge to his attorney. But though the court will not decide, in this way, whether parol evidence might, or might riot be given of its loss and contents, yet they will regard the peculiar situation of parties. In this case the defendant lives remote, and was from that circumstance and infirmity, prevented from attending to these suits at an earlier period. The moral obligation, under which the defendant is supposed to labor, of paying his debts, is not to operate with the court, unless a new liability has been incurred. From the misconception of counsel, the remote distance of the defendant, his infirmities and his having a meritorious defence, the court grant the application upon payment of costs.


text:
    Anonymous.
    The court will not permit the general issue to be withdrawn to let in a plea in abatement delivered in time.
   The court refused to permit the general issue to be withdrawn to let in a plea of coverture in abatement, delivered after service of the general issue, though the defendant swore the general issue was pleaded without his knowledge, by a person he never meant to retain as attorney, and the plea in abatement was delivered in due time.


text:
    Samuel Bayard against Samuel B. and Richard M. Malcom.
    NEW-YORK,
    May, 1805.
    Forgetting the commencement of the term, if the excuse be bona fide, is sufficient for not noticinmg for the first day. If a counsel has a known partner who transacts the attorney’s business, an excuse arising from the personal conduct of the counsel, may be availed of in a suit in which the partner’s name only, appears on the record.
    THE notice of motion was not for the first day of term,

      Munro

    accounted for this by an affidavit, stating that he had absolutely forgotten the day on which the term commenced, imagining it to be one week later than it really was.

      Harison, contra,
    objected to the reception of this excuse, as Mr. Towt was the attorney on the record, therefore for him the forgetfulness of Mr. Munro could afford no excuse.
   Per curiam.

There can be no doubt of the mistake, nor, but that the whole is in good faith.

Though Mr. Towt appears the attorney on record, every one knows the connexion between him and Mr. Munro. He is to be supposed to act only under the direction of Mr. Munro.


text:
    Samuel Stryker against Thomas Turnbull, Robert Denton and Bernardus Voorhees.
    NEW-YORK,
    May, 1805.
    A town contributing to the expense of a suit is a ground for moving for a foreign jury, and the court will easily be induced to grant it in Long-Island causes, which involve a right of fishing.
    HARISON,
    on behalf of the defendants, moved for a foreign and struck jury, to be taken from the city and county of New-York, on an affidavit, stating that the suit was prosecuted at the joint expense of the inhabitants of the town of Gravesend in King's county, who had combined for the maintenance of a supposed right, claimed by them as inhabitants of the said town, of erecting huts for the purpose of fishing, upon the lands of the defendants; of taking and heaping up sea. weed, and carrying it away at their pleasure, and that other claims and disputes, in some respects, of a similar nature, exist in the neighbouring county °f Richmond.

      Baldwin, contra.
    The same principle would warrant the application in most insurance causes. Those, interested in a point, contribute their quotas towards the defence. No more is done here. But why not take the jury from Queen's, or any other county in Long-Island?

   Kent, C. J.

This is a cause in which the right of fishery will come in question. Where the counties are so small as those mentioned, an impartial trial cannot be had, on a claim of a general nature. New-York is as near as any other, and where a right of fishery, or any similar claim is to be litigated, it is in my opinion, sufficient to take the matter from a Long-Island jury.

The expense is at the door of the party who applies, and the contribution to support the suit, shews strongly the disposition of the county.


text:
    The People against Jesse Burdock and Jonathan Case.
    If a record of an incictment be lost, the court will grant leave to file one nunc pro tunc.
   AN indictment found against the defendants for a forcible entry and detainer, in April term, 1798, had, on being removed into this court, been quashed, and restitution ordered, but the record of it could not, on search in the clerk’s office, be found.

Riker applied for leave to file a record nunc pro tunc, on an affidavit by the attorney employed in the prosecution, disclosing the above facts, and that, on an examination, of his register, he found not only that a record had been duly filed, but that he actually obtained an exemplification of it, which had been lost.

Granted Accordingly.


author: Kent, C. J. Livingston, J. Spencer, J. Thompson, J. Tompkins, J.

text:
    Daniel Delavan against Jonas C. Baldwin.
    NEW-YORK,
    May, 1805.
    After issue joined, the defendant may move to change the venue, when all his witnesses reside in the county to which it is to be changed.
    MOTION by the defendant, to change the venue from the city and county of New-York to Onandaga.

    In November last, at which time the plaintiff was entitled to ennter a default for want of a plea, notice of a similar motion was given, but from the papers not having been received in season, by the agent of Baldwin's attorney, the application was not then made. In April a plea of the general issue was given and received.
    Hopkins,
    on these facts, argued, that though the general rule .as to changing the venue by a defendant, was? that it should not be granted after plea pleaded, yet as the plaintiff might in an indirect way, at any time do it, by moving to amend, there could be no reason why a similar indulgence should not be accorded to the defendant. In addition to this, the defendant swears, that the cause of action, if any, arose in Onondaga, in which county the witnesses resided, by whom he could prove the facts contained in the notice subjoined to his plea. Foster v. Taylor 1 D. & E. 781 is in point.

      Munro contra.
    The defendant is too late.

        Dickenson v. Fisher 2 Stra. 858.

        Savery v. Serle. Say. 150. Griffith v. Hollier, Ibid. 294.

   Kent, C. J.

I am of opinion the venue ought to be changed as there has been no loss of trial, and there will be no delay. This I think ought to be the regulating principle, as these applications are to the discretion of the court.

Livingston, J.

I am against departing from the practice, by which defendants are restricted from making these motions after Nor do I think there is a sufficient reason for plea pleaded. not having asked for this favor in November last. But what weighs greatly with me is, that the application is on the eve of a circuit, and may impose rather hard terms on the plaintiff, r

Spencer, J.

I concur in the sentiments of my brother Livingston.

Thompson, J.

The only difficulty in my mind, was with regard to this request being after issue joined, subsequent to which, all increase of expenses ought, if possible, to be avoided. But as no delay will be created, I think we ought to grant the rule, and had the plaintiff shewn any hardship likely to arise from it, we might have imposed such terms as to prevent any injury a The laches I consider to have been entirely waived by accepting a plea.

Tompkins, J.

That is the opinion I entertain. When a plaintiff receives a plea which he is not obliged to take, he cures the antecedent laches. I agree therefore with the Chief Justice and Mr. Justice Thompson.


text:
    James Roosevelt against Daniel S. Dean.
    All objections to the bringing on a motion must be made before the grounds of it are entered into: if not, they will be considered as waived.
    The court will infer that what ought to be inserted in an affidavit, and does not appear, did not exist.
    AFTER a lengthy and desultory argument, the counsel for the plaintiff took an exception to the titling the notice of motion, and affidavit on which founded.
   Per curiam.

All objections of this sort ought to be submitted as preliminary questions. We are not to sit here, have the grounds of motion laboriously investigated on a long discussion, and then have a matter of mere form pressed upon us. The entering into the argument is a waiver of all objections against its coming on.

*** The court in this cause said, that when an affidavit does not state that which ought to be alleged in support of the motion, the presumption is, it could not be asserted, and the inference of the bench will be against the party guilty of the omission.


text:
    Jackson ex dem’ Rachael Lewis and others against John Van Loon.
    NEW-YORK,
    May, 1805
    A commission to be executed out of this state, may be directed to persons residing within it.

      WOODWORTH, moved for a commission to be directed to persons in this state, to take the examination of witnesses in Pennsylvania.

      The court will not grant a rule on a justice ordering him to return the conduct of the jury,

      Higgs

    against its being allowed, urged the direction.
   Per curiam.

The act does not specify, that the commissioners should live in the state to which the commission is addressed. Take your motion.

       For the amendment of the law. 1 Rev. Laws 351. Sec. 11.


text:
    Anonymous.
    THE application was for a rule ordering a justice to return certain parts of the conduct of the jury, which it was said amounted to misbehaviour.
   Per curiam.

The justice is not answerable for this, nor was it a matter before him. We cannot order him to return that, over which he had no judicial control, and which was never submit-J ted to him.


text:
    Radcliff and Davis against the Marine Insurance Company.
    Practice as to orders for staying proceedings.
   THESE points Were ruled. 1st, A judge may grant and annul his own order to stayproceedings on a case made, as well in term as in vacation, and this, though a rule for judgment be entered ; the decision in Shephard ads. Case, Cole. 90, applying to judgments perfected. 2d. If a judge has granted an order to stay proceedings on a case made, on account of an improper item allowed by a jury, and be declare this to have been his only reason, the court may, on such item being relinquished, vacate the order.


text:
    Bird Savage and Bird against Pierpoint.
    NEW-YORK,
    May, 1805.
    Though the sum for which a verdict is rendered be due, the court will not after a case made and an order to stay proceedings, permit judgment to be entered up for the pm-pose of binding the lands of the defendant.
    A CASE having been made, after a verdict in this cause for a very considerable sum, the justice of the demand to which was not so much questioned, as whether it should be paid to the plaintiffs, or the assignee of one of them.

      Radcliff,

    on an affidavit shewing that the debt was actually due, moved’ for liberty to enter up judgment, in order to bind the lands of the defendant.

      Riggs & Hoffman, contra.
    It is only by statute, that real estate is subjected to judgments. The present application is, for the court to make a new law, and render it liable for ver-diets. Admitting the debt to be due to one man, it is no reason for giving a judgment to another. It may as well be asked on suing out the writ. It is in effect requiring the court to decide that the defendant should give a mortgage, before it is determined the plaintiff has any right. The real creditor may be satisfied with personal security, or without any.
    Benson, in reply,
    urged the possible lapse of time before a decision, and that granting the motion would be of no inconvenience, as it did not take any thing out of the pocket of the defendant, and this consideration would sufficiently distinguish this case from those where it was asked to order the amount of the verdict to be brought into court in money.
   Per curiam.

We are all of opinion that you can take nothing by your motion. There would be no limitation to this kind of practice. It would be asked in every cause, and in every stage. A verdict is no evidence of right; in many cases no more than filing the declaration. To the country at large such a principle would operate very injuriously. In the English courts such a measure has never been attempted, though from the practice of directing, in important cases, two and even three arguments, the delay must sometimes be very great. It is a mere matter of possibility where t he justice of the case is. To make a rule here, we mu-.t do so in all cases, and the result would be, that wherever there was a certificate to stay proceedings, it would be followed by a judgment. The plaintiffs shew no right to the debt, though it may be due, and as to the sum, 100 dollars to some persons, are of as much importance as 1000 dollars to others. We therefore deny the application, with costs for resisting.


text:
    Giles against Caines.
    NEW-YORK,
    May, 1805.
    , An irregularity not known, is not waived by a subsequent step taken by the opposite party who may enter a default on the former irregularity if done so soon as known. Though the rule is that an application to set aside a default coomes to late if the judgment on it be perfected, yet, on a strong case of merits, it may be done on payment of costs, if the irregularity be merely the want of filing a paper served.

      AFTER noticing for trial, it was discovered that the defendant’s attorney had not filed the plea, a copy of which he had delivered, the plaintiff therefore entered a default as for want of a plea- To set aside this, the defendant noticed for the first day of term, but having obtained no order to stay proceedings, and not bringing on the motion upon that day, the plaintiff duly executed a writ of inquiry. On these facts, and a strong affidavit of a good and substantial defence upon the merits,

      Caines

    tuoyed, to set apíde *he default and all subseouent proceed-fogs. There was a distinction to be taken he said, between the cif-cumstances here, and those in Shephard ads. Case, Cole. 90. There, the plaintiff had done no act to waive the default, and therefore as it stood in full force, his perfecting his judgment afterwards was regular; butinthepresent instance, he had, byjoining issue and notice for trial waived the mere form of filing the plea, and had no default on which to rest. He had himself, knocked away the fonndaton, on which he stood. As to the want of filing the plea, that ’ or* was a mere form, and the court would order it to be done on the suggestion of the plaintiff himself. Cohan ads. Kifl, Cole. 45.

      Évertson contra.
    This is not to be distinguished from Shephard ads. Case. The plaintiff could rot Waive that which he did not know.
   Per curiam.

The omission of filing the plea, not being known when issue was joined, or the cause noticed, cannot be cured by those acts. The principle therefore of Shephard ads. Case, applies. Though there is a strong affidavit of merits, we can relieve only on terms; those must be payment of costs, and filing the plea instanter.


author:
      Per curiam.
     Livingston, J.

text:
    Wiliam Neilson and others against the Columbian Insurance Compony.
    NEW-YORK,
    May, 1805.
    If the articles complained in the memorandum in a policy respecting corn &c physically exist the underwriter is not liable for a total loss on account of their being perfectly rotten. When the assured rests on a loss of voyage to warrant his recovery he should shew it most clearly, and of this a survey is always a proof of good faith.
    UPON a policy on two thousand three hundred bushels of corn, from New-York to Madeira, with the usual memorandum excludin grain &c. from average unless general, effected on account of Joaquim de Barros, a Portugese, resident at Bonavista, and master of the vessel in which laden.
    The ship, after a passage of more than 40 days, in which, she was under a necessity of throwing overboard 500 bushels of her cargo, arrived at the north side of the island, where she was obliged to come to as a southerly wind then blowing, rendered it impossible to go round to the harbour of Funchall. While thus at an chor, a vessel hove in sight, from whose manoeuvres imagining b her a privateer or pirate, they weighed and stood to the east-ward the strange sail following the same course. During the night they lost sight of her. but whilst keeping on they concluded, from the state the vessel and crew, in consequence of the bad weather they had experienced, to run for the Capede Verds, as they were in want of water, and might fall in with the privateer in attempting to regain their port of destination, which, even after making it. they would be unable, from the continuance of the south wind, to enter. In two days from the making this determination ; they fell in with the trade winds, and in 9 or 50, after putting about for the Cape de Verds, reached Bonavista, where, upon opening the hatches, the com was found so damaged and offensive, that it was forbidden to be landed, but was sold, as it lay on board for about 400 dollars. Here they remained 30 days, received some partial supplies from other vessels ; but not having it in their power to procure materials or workmen; to repair the sea-damage sustained on the voyage, the captain sailed for Bravo to refit. This island however, he was unable to fetch, and therefore, made for St. Vincent's, another of the Cape de Verds, at which he repaired the residue of the injuries his ship had suffered in her quarterboards and seams, and from the loss of her main and jib boom. This being accomplished the vessel sailed on a voyage to Lisbon, and no claim was ever made against the underwriter on her.
    The point ought also to be specifically submitted to the jury.
    It was in evidence, that with a south wind, the assured might in 3 or 4 days after leaving Made, a have reached Lisbon, ox Mogadore; that in going to Btmcrvh.a she must have passed the Canaries, that at either of these places she might hare been repaired and that the winds at Madeira and along the coast to the Cape de Verds, were as variable as at New-York. The testimony however, against this was, that after falling in with the trade winds, it was impossible to reach Lesbon ; that the supposition of a war between Spain and Portugal, prevented touching at the Canaries. and the constant hostilities between the Moors and Portuguese forbade the going to Mogadore,

    Upon this evidence the judge charged, that if. on reaching it:, port of destination, the grain was ‘‘ of no value as nutriment “ for men.” it made the loss total. But, that he left it to them to determine, whether the vessel could, or ought to have gone to any port nearer then Bonavista, where she might have been repaired. That if this could have been done, and the vessel had afterwards arrived at Madeira, the loss would have been a general average only.
    The jury found a verdict for a total loss, to set aside which, the defendants now applied, for misdirection and as being contrary to evidence.

      Bogert,
    Bogert, in support of the motion. Under the clause contained thpolicy, the insurers were protected from all average losses' except such as might be general. For the decay of those arti-cles’ specified in the memorandum, the underwriter is never liable ; were he to be so, a deterioration to half the value would be cause of abandonment. A proposition that is not to be maintained. Nothing short of the annihilation of the subject matter, can make the loss total, and it is immaterial whether the commodity be at a port of necessity, or that of its destination. Cocking v. Frazer, Park 114. But, without recurring to the English authorities, the decision in this court, in Maggrath and Higgins v. jB. Church, 1 JV. Y. T. B. 196, is in point. To capacitate the assured to recover, except for an average loss, it must be shewn that the voyage was defeated, by the vessel’s not being in a condition to proceed. The case ought to have been submitted on this alone; and then we say, the evidence will not support the verdict. The whole tenor of the master’s conduct shews an en-deavour to create a pretext for defeating the voyage, that he might claim a total loss.

      T. L. Ogden and Hoffman contra.
    We admit that no intrinsic damage will warrant a claim on the underwriter. But if the voyage be defeated, then whether the article be perfectly sound, or perfectly rotten, he is liable. It was certainly justifiable to leave Madeira on sight of a vessel apparently hostile. On the third day after this, the trade winds were fallen in with, and rendered it impossible to do otherwise than bear away. This, and the other circumstances, excuse the not going to any place nearer than Bonavista. The impossibility of repairs there, defeated the Voyage ; it was there broken up, and -the cargo sold. That the vessel was afterwards made fit for sea, is no argument against this conclusion; for if it be allowed, nothing short of the destruction of the ship would be a loss of voyage. A reparation at any indefinite period of time, would be a bar to a recovery.

      Pendleton, in reply,
    was stopped by the court.
   Per curiam.

A new trial must be awarded with costs to abide the event of the suit. The charge of the judge, as stated in the case was clearly wrong. So long as the corn physically existed, there could not be a total loss. Though good for nothing, the defendants were not liable, being protected by. the clause in the memorandum. The direction was contrary to our determination in Maggrath and Higgins v. Church. It ought also to have been left to the jury, as a material point whether the vessel could not have been repaired at the Cape de Verd Islands, so as to perform her voyage. This does not appear to have been distinctly submitted.

Livingston, J.

I think when the underwritten wishes a jury to find for him, on account of a loss of voyage from the vessel’s not being able to reach her port, or for want of repairs, it ought to be very fully shewn. There was no survey in this case ; and though I do not say, that fact is absolutely necessary, yet it is always a circumstance evincive of good faith.


text:
    Barent G. Staats against the Executors of Ten Eyck.
    NEW-YORK,
    May, 1805
    Under a covenant of ownership, seisin, power to sell, and for peaceable enjoyment, if the vendee be evicted, he can recover only the value of the land at the time of the purchase, with interest for so long a time as he pays mesne profits, and the costs of the ejectment that may be brought against him, but not those of the action for mesne profit.
    Kirb. Rep. 3.
    ON the 7th of January 1793, the testator, Barent Ten Eyck, by indenture of release, in consideration of £.700, granted, bargained, and sold to the plaintiff, and one Dudley Walsh in fee, two lots of ground in the city of Albany covenanting, “ That he “ the grantor was the true and lawful owner, that he was lawfully " and rightfully seised in his own right of a good and indefeasible " estate of inheritance in the premises, that he had full power " to sell in fee simple, and that the grantees should for ever “ peaceably hold and enjoy the premises without the interruption " or eviction of any person whatever, lawfully claiming the same.” In the month of May following, Walsh, for a valuable tion conveyed his moiety of these lots to Staats, who, on the 30th of October 1802, after due possession, by lease and release granted one of them to Margaret Chim in fee, and covenanted to warrant and defend her in the peaceable possession thereof. In August 1803, an ejectment was brought against Margaret Chim, in which a judgment was obtained for a moiety of the lot sold to her, execution sued out, and this followed by a recovery in an action for the mesne profits. The value of the lot, from the moiety of which Margaret Chim was thus evicted, was at the time of the sale by Ten Eyck, £. 300, and that was the consideration paid for it. Margaret Chim, being thus evicted, brought her action against the plaintiff, and recovered for the moiety she had lost.
    Upon these facts, which were submitted without argument, the following questions were raised for the determination of the court, 1st, Whether the plaintiff was entitled, under the covenants in Ten Eyck's release, to recover any more than a moiety of the consideration money paid for the lot from which Margaret Chim was evicted? 2d, Whether the interest of that consideration, and the increased value of the premises from the date of the deed to M. Clum, ought to be added ? 3d. Whether the plaintiff was entitled to any retribution for the costs and damages he had sustained by the eviction and recoveries before mentioned ?
   Kent, C. J.

This case resolves itself into these two points for inquiry. 1st, Whether, upon the covenants, the plaintiff be entitled to recover the value of the moiety of one lot at the time of eviction, or only at the time of the purchase, and to be ascertained by the consideration given? 2d, If the latter be the rule of damages, then, whether the plaintiff be also entitled to recover interest upon the purchase money, and the costs of the eviction ?

1 — There are two covenants contained in the deed ; the one,, that the testator was seised in fee, and had good right to convey ; the other, that the grantee should hold the land free from any lawful disturbance or eviction. The present case does not state distinctly, whether the eviction was founded upon an absolute title to a moiety of one lot, or upon some temporary in-cumbrance. But I conclude from the manner of stating^ the questions, and so I shall assume the fact to be, that the testator was not seised of the moiety so recovered when he made the conveyance, and had no right to convey it. The last covenant cannot then, in this case, have any greater operation than the first, and I shall consider the question as if it depended upon the first covenant merely.

At common law, upon a writ of luarrantia charta, the demandant recovered in compensation, only for the land at the time of the warranty made, and although the land had become of increased value afterward, by the discovery of a mine, or by buildings, or otherwise, yet the warrantor was not to render in value according to the state of things, but as the land was when the warranty was made. Bro. abr. tit. Voucher pl. 69. Ibid. tit. recouver in value. pl. 59 22 Vin. 144, 5, 6. Tb. pl. 1, 2, 9. Ub. pl. 1, 2, 3. 1 Reeves’ Eng. Law, 448. This recompense in value, on excambium as it was anciently termed, consisted of lands of the warrantor, on which his heir inherited from him, of equal value with the land from which the feofee was evicted. Glanville G. 3. c. 4. Bracton 384. a. b. That this was the ancient, and uniform rule of the English law, is a point as I apprehend, not to be questioned yet, in the early ages of the feudal law on the continent, as it appears. Feudorum lib. 2 tit. 25, the lord was bound to recompense - his vassal on eviction, with other lands equal to the value of the feud at the time of eviction ; "feudum restituat ejusdem estimatio-nisguodíl erat temfiare rei judicata. But here is no evidence that this rule ever prevailed in England, nor do I find, in any case, that the Jaw has been altered since the introduction of personal covenants, to the disuse of the ancient warranty. These covenants have been deemed preferable, because they secure a more easy, certain, and effectual recovery. But the change in the remedy did not affect the established measure of compensation, nor are we at liberty now to substitute a new rule of damages from mere speculative reasoning, and that top of doubtful solidity. In warranties upon the sale of chattels the law is the same as upon the sale of lands, and the buyer recovers back only the original price. 1 H. Black. 17. This is also the rule in Scotland, as to chattels. 1 Ersk. 206. Our law preserves in all its branches symmetry and harmony upon this subject. In the modern case of Flureau v. Thornhill, 2 Black. rep. 1078, the court of K. B. laid down this doctrine^ that upon a contract for a purchase of land, if the title prove bad, and the vendor is without fraud incapable of making a good of the purchaser is not entitled to damages for the fancied good are, of his bargain. The return of the deposit money with interest and costs was all that was to be expected.

Upon the sale .of lands the purchaser usually examines the title for himself, and in case of good faith between the parties {and of such cases only I now speak) the seller discloses his proofs and knowledge of the title. The want of title is therefore, usually a case of mutual error, and it would he ruinous and oppressive, to make the seller respond for any accidental or extra-dinary rise in the value of the land. Still more burthensome would the rule seem to be if that risp was owing to the taste, fortune or luxury of the purchaser. No man could venture to sell van acre of ground to a wealthy purchaser, without the hazard of absolute ruin. The hardship of this doctrine has been ably exposed by lord Kaimes in his examination of a decision in the Scotch law, that the vendor was bound to pay according to the increased value of the land, 1 Kaimes’ Eq. 284 to 303. 1 Ersk. 206.

If the question was now res integra, and we were in search of a fit rule for the occasion, I know of none less exceptionable than the one already established. By the civil law the seller was bound to restore the value of the subject at the time of eviction, but had been from any cause sunk below its original price, the seller was entitled to avail himself of this and pay no more than the thing was then worth ; for the Roman law, with ° its usual and admirable equity made the rule equal and impar-tial in its operation. It did not force the seller to bear the risk of the rise of the commodity without also taking his chance of its fall. Dig. lib. 21. tit. 2, l. 71, ibid. l. 66, §. 3. Ibid. l. 64. §. 1. So far the rule in that law appeared at least clear and consistent, but with respect to beneficial improvements made by the purchaser, the divisions in the Code and Pandects are jarring and inconsistent with each other, and betray evident perplexity on this difficult question. Dig. lib. 19. tit. 1. 45. §. 1. Cod. lib. 8. tit. 45, l. q. and Perezius thereon. The more just opinion seems to be, that the claimant himself, and not the seller ought to pay for them, for nemo debet locufiletari aliené jacturá and this rule has, according to lord Hardwicke, been several times adopted and applied by the English court of chancery. East In. Com. v. Vincent. 2 Atk. 38. While on this question, I hope it may not be deemed together impertinent to observe, that in the late digest of the Hindu law, compiled under the auspices of sir William Jones, the question before us, is stated and solved with a precision, at least equal to that in the Roman code, and it is in exact conformity with the English law. On a sale declared void by the judge for want of ownership, the seller is to pay the price to the Buyer, and what price asks the Hindu commentator ? Is it the price actually received, or the present value of the thing ? The answer is, the price for which it was sold ; the price agreed on at the time of the sale, and received by the seller, and this price shall be recovered, altho’ the value may have been diminished. 1 Colebrook's digest 478, 9. Before I conclude this head, I ought to observe, that in the present case it does not appear that any beneficial improvements have been made upon the premises since the purchase by the plaintiff, and although some of my observations have been more general than the precise facts in the case required, yet the opinion of the court is not intended to be given or to reach beyond the case before us.

2 — The next point arising in this case is, whether the plaintiff is entitled to recover interest upon the purchase money, and the costs of eviction ? It is evident, that originally the vendee recovered only what was deemed equivalent to the purchase money without interest; for he recovered other lands equal only in value to the lands sold, at the time of the sale. The rule would have been the same at this day, had not the action for mesne profits been introduced, which takes away from the purchaser the intermediate profits of the land. As long as he was permitted to reap the rents and profits, they formed a just compensation for the use of this money. Whether the action for mesne profits was not been carried too far in our law, by extending it to all cases, instead of confining it to a mala fide possession, it is now too late to inquire. I should have strong doubts at least, upon the present rule, if the question was new, but considering it as the established rule, that the action for mesne profits lies generally, I am of opinion that the seller is as generally bound to answer for the interest of the purchase money, and that the interest ought to be commensurate, in point of time, with the legal claim to the mesne profits. This right to interest, rests on very plain principles. The vendor has the use of the purchase money, and the vendee looses the equivalent by the loss of the mesne profits. The interest ought to commence from the time of the loss of the mesne profits. That time is not specifically stated in the present case, and the presumption is, that they were recovered from the date of the plaintiff’s purchase, and from that time, I think, the interest ought to be calculated on the consideration sum.

As to the costs of suit attending the eviction stated in the case, it is very clear that the defendants are responsible under the covenant, for the testator was bound to defend and protect the plaintiff and his assigns in the title he had conveyed. At common law, he might have been couched to come in, and been substituted as a real defendant in the suit. But the defendants are not answerable for the costs of the suit for mesne profits, as there the testator was not bound to defend.

My opinion accordingly is, that the plaintiff in the present case is entitled to recover the consideration paid for the moiety of the lot evicted, together with interest thereon from the date of the purchase, and the costs of suit in ejectment for the recovery of the same.

Livingstone J. ' To find a proper rule of damage in a case like this, is a work of some difficulty; no one, will be entirely free from objection, or notat times work injustice. To refund the consideration, even with interest, may be a very inadequate compensation, when the property is greatly enhanced in value, and when the same money might have been laid out to equal advantage elsewhere. Yet to make this increased value the criterion where there has been no fraud, may also be attended with injustice, if not rain. A piece of land is bought, solely for the purposes of agriculture ; by some Unforeseen turn of fortune, it becomes the site of a populous city, after which an eviction takes place. Every One must perceive the injustice of calling on a bona fide vendor to refund its present value, and that few fortunes could bear the demand. Who for the sake of one hundred pounds would assume the hazard of repaying as many thousands, to which value the property might rise, by causes not foreseen by either party, and which increase in worth, would confer no right on the grantor to demand a further sum of the grantee. The safest general rule in all actions on contract, is to limit the recovery as much as possible to an indemnity for the actual injury sustained, without regard to the profits, which the plaintiff has failed to make, unless it shall clearly appear, from the agreement, that tire acquisition of certain profits depended oh the defendant’s punctual performance, and that he had assumed to make good such a loss also. To prevent an immoderate assessment of damages, when ho fraud had been practised. Justinian directed that the thing, which was the objéct of Contract, should never be válüed at more than double its cost. This rule, a writer on civil law, applies to a case like the one before us ; that is, to the purchases Of land which had become of four times its original values When ail eviction took place ; but, according to this rule, the party could hot recover more than twice the sum he had paid. This law is considered by Pothier as arbitrary, sd far as it confines the reduction of the damages to precisely double the value óf thé thing, and is riot binding in France ; but its principle which does not allow an innocent patty to be rendered liable beyond the sum on which he may reasonably have calculated, being founded in natural law and equity, Origin in his Opinion to be followed, and care taken that damages in the cases be not excessive. Rather than adhere to the rule of Justinian, or leave the matter to the opinion of a jury, as to which may, or may hot he excéssive, some more certain standard should be fixed on. However inadequate a return of the purchase money must be in many cases, it is the safest measure that can be followed as a general rule. This is all that one party has received, and all the actual injury occasioned by the other. Í speak now of a case, and such is the present, where the grantee has not improved the property by buildings or otherwise, but where the and has risen in value from extensive causes. What may be a proper course, when dwelling houses or other buildings, and improvements have been erected, we are not now determining. Why should a purchaser of land recover more than he has paid, arty more than the vendee of a house or a Ship ? If these articles rise in value, the vendors would hardly, if there be no fraud, be liable to damages beyond the prices they had received with interest and costs, unless the plaintiffs could shew some further actual injury which they had sustained in consequence of the bargain. The English books afford but little light on this point, although it is understood to be the rule in Great-Britain to give only the consideration of the deed; The only thing to be found any ways relating to the subject, is ill the year books in Hilary term, 6 Edward II. Part 1. 187. It is there said, that in a writ of dower after the land had been been improved by the feoffee, they shall be extended or set off to the widow, according to the value at the time of alienation, and the reason assigned by Hargrave in his notes on Coke on Littleton, which is not however found in the year Book, is “ that the heir not being bound to warrant, except acording to “ the value of the land at the time of the feoffment, it is un- " reasonable the widow should recover more of the feoffee than " he could, in case of eviction, of the feoffor.” In Connecticut, on the contrary, damages are ascertained by the value at the time of eviction, because of land’s increasing worth, which is the very reason perhaps it should be otherwise. And although the English practice be adverted to by the court in giving its opinion, it is Supposed to be founded on the permanent value of their lands ; but when we recollect that this has been the rule in Great-Britain, at least from the commencement of the fourteenth century, since which time lands have greatly advanced in price, we must attribute its origin to some Other cause ; probably to its intrinsic justice and merit. Even in Connecticut, the rule applies only to actions on covenant of warranty, and probably not to those on covenant of seisin, because, in the latter case ft is supposed the party may immediately acquaint himself with the strength of his title, and bring his action as soon as he discovers it is defective. This reason is not very satisfactory, for with all his diligence a long time may elapse before his title is called in "question, or doubts or suspicions raised about its validity.

Without saying then, what ought to be the rule, where the estate has been improved after purchase, my opinion is, that where there has been no fraud, and none is alleged here, the party evicted can recover only the sum paid, with interest- from the time of payment, where, as is also the case here, the purchaser derived no benefit from the property owing to a defective title. The plaintiff must also be reimbursed the costs sustained by the action of ejectment. It was his duty to defend the property, and the costs to which he has been exposed being an actual, not an imaginary loss, arising from the defendant’s Want of title, he ought to be made whole. In costs are included reasonable fees of counsel, as well as those Which arc taxable. If a grantee be desirous of receiving the value of land at, the time of eviction, he may by apt covenants in the deed, if a grantor will consent, secure such benefit to himself.

The other judges concurred.


author: Thompson J. Livingston, J.

text:
    James Jackson ex dem’ Christopher and John Vought against Barnabas Wood.
    NEW-YORK,
    May, 1805.
    Braine's patent is bounded by the line of by the line of the manor of Rensellaer.

    THE only question in this Cause was respecting the location of Braine’s patent, granted in the year 1752. If it extended to the line °f the manor of Rensellaer, the plaintiff would be entitled to recover, if there should be a gore between Braine’s patent and and the manor line, then the premises would be covered by that under which the defendant claimed.
   Per curiam delivered by

Thompson J.

I think Braine's patents is bounded on the manor line. This grant is not designated with reference to any adjoining patent. The Only expressions which give it locality, are those which describe it, as part of Butler’s Indian purchase in 1733, that it had been formerly surveyed by Edward, Collins for Richard Riggs, and that it began at the south west corner of a tract of land near the township of Schenectady, formerly surveyed for James Delancey and others. It appears that Collins’ survey is lost, and all that we know of the locality of Rigg's tract is, that it contained 2,000 acres lying in Albany county, near or upon the Norman’s kill, and within Butler's purchase. It also appears that the Survey for Delancey and others, referred to in Braine's patent, is lost, and We are therefore obliged to resort back to the cotemporary acts of the parties, to determine at this day the true location of Braine's patent. For when a grant does not contain within itself the requisite evidence of its location, the neat best evidence of the intention of the parties is those concurrent acts in pais, by which the bonds were reduced to certainty, and possession given. We have the testi-many of two witnesses, who were present and took a part in the survey of the patent, which was made by the surveyor general, the year before the' patent bears date, under a warrant issued at the instance of Braine. These witnesses refer back to a survey corresponding, in point of time with the one ordered, and they state that Braine, and the surveyor general were present. From the testimony of one of these witnesses, who was a chain bearer, it appears, that the patent was located on the manor line, as to the southern boundary. The beginning in the grant, is described to be at the southern corner of the tract surveyed to James Delancey and others, which tract, from the evidence in the case, appears to have been on the manor line. The petition of Mr, Duane in the year 1674 (from whom it was allowed on the argument that the defendant derives his title) admits the manor line as to the western boundary of Braine’s patent. This shews his understanding at that time respecting the location. The grant to him, the following year, erecting his township, recog-nises also the same location, and may be deemed in some measure expressive of the sense of government on the subject. It is of considerable importance in locating Braine’s patent, to ascertain the southwest corner of the Schenectady patent, and true southern boundary of that of Corysbush. The Schenectady patent purports to extend 462 chains south of the Mohawk river ; Corysbush runs on the line of this patent to the southwest corner thereof, and then extends on the same course 198 chains further, at which place begins Braine’s patent. The place recognised and possessed as the southwest corner of the Schenectady patent is more than 462 chains south of the Mohawk river. It appears however by the testimony of Cockburn, that at the termination of the 462 chains, there is no marked tree or monument, but that the tree marked and recognised as the southwest corner, is further south. He also says, that at the termination of the 160 chains, which is the length given of the Corysbush line, there appear to be no marked trees, but that about a quarter of a mile further south, there is a line of marked trees, across the south end of Corysbush patent. If the south west corner of the Schenectady patent be correctly located at the place now recognised as such, and not, controlled by the length of chains given in the grant, and the line of marked trees across. the south end of Corysbush patent, as mentioned by the witnesses, be the true line (both of which, from the testimony in, the case, I am inclined to think ought to be considered as settled according to the present location) then giving to Braine's patent its length of chains, it will extend down to, the manor line, and no gore be left. But if the testimony of Peak, the chain bearer is to be credited, it will I think, remove every- doubt with respect to the location of Braine's patent. The survey referred to by him must have been made before the issuing of the patent, and the one on which the grant was founded. The time spoken of is about the date of the patent, and the internal evidence arising from the recitals in the grant, speaks a language not to be contradicted. The petition of Braine, the warrant of surrey, and the return to that survey are all recited. These were acts of government, and must be considered as satisfactory evidence, that the grant was made upon actual survey. Peak says, the survey he attended began at a beach tree on the manor line. If this be the survey upon which the patent issued, which I think must have been the case, the conclusion is irresistible that Braine's patent is bounded on the manor line. From this brief review of the material parts of the case, I arri satisfied that Braine's patent was located in the year 1751, under the authority of government, and with the consent of the gran-, tee upon the very lines now set up by the plaintiff; and that-this location received the subseqent acquiescence of government, and was generally known and agreed to until about the year 1766. Under these circumstances I am of opinion, and sq are the court, that the location was binding upon the parties to it, and consequently that the plaintiff is entitled to judgment.

Livingston, J.

Gave no opinion, having been concerned.


author: Tomkins J.

text:
    William Ruan against Christopher R. Perry.
    NEW-YORK,
    May, 1805.
    Tresspass will not be against a naval officer for bringing to, and taking out of her comfe a neurral vessel, if it be. done in pursuance of instructions from the secretary of the navy, although in consequence of being so taken out of her courses he be captured by another nation, & condemned as prize, unless there appears to be collusion between the captors and the defendant. If an action be bro't, charging the defendant with fraud from mere circumstances, evidence of general character is admissible. It is for the jury to determine, whether circumstances of general conduct shew a fraudulent intent.

      THIS was an action of tresspass brought against the defendant who was commander of the United States' frigate General Green, for seizing and taking the Danish schooner William and Mary and her cargo, the property of the plaintiff.
    The declaration contained two counts. One charging the defendant with sejzing, arresting, and for a long time detaining the. vessel and cargo, and conveying them towards Jacmel in Hispaniola, out of the course of the voyage on which bound, by means whereof they were attacked, seized and carried away as prize, by persons on board a French barge, in the service of Toussaint, in consequence of which, they became totally lost to the plaintiff. The other with doing the same, ape} delivering up the vessel and cargo to the barge of Toussaint by which See.
    The cause was tried before Mr. Justice Livingston, at the New-York sittings in January 1805. At the trial the plaintiff examined his captain as a witness, and read the deposition of one of the crew of t he schooner, from which it appeared that the vessel and cargo, both the bond fide properly of the plaintiff, a Danish subject, sailed from St. Croix bound to Acquim, a port in Hispaniola, about ten leagues from Jaemel, and had arrived within 4 or 5 leagues of their destination, when they were brought to by the General Green, a boat from which boarded the William and Mary, took possession of her, ordered out all her hands but .the mate, and carried them on board the defendant’s ship. That, immediately after this was done, the frigate proceeded in company with the schooner towards Jacmel, and Laving arrived that place, fired some guns, within an hour after which, an armed barge came out from that port, commanded by a white officer in uniform, said to be Toussaint’s, and manned with negroes. That the officer came on board the frigate, delivered letters to the defendant, and received some from him. That the French officer commanding the barge, the master of the William and Mary, and the captain of another Danish vessel brought to by the defendant, dined with him. That about two hours after ner was over, the defendant gave back the papers of the William and Mary to her captain, and sent him in the frigate’s boat on board his own vessel, along side of which he arrived about the same time as the French barge, which had quitted the General Green a little before the departure of her own boat. That finding the French were getting on board the schooner, the captain of her claimed protection from the American officer who had conducted him from the frigate, but he without replying, went back to his own ship then lying within gunshot. Upon this the schooner and her cargo were, by the crew of the barge who had taken possession of her, carried into Hispaniola where they were shortly after condemned as prize to a privateer, to which the barge that had taken them belonged. That the mate the William & Mary was claimed by the defendant as an American, and given up. That within a few days after, the General Green being still off Jacmel, 55 bags of coffee were brought on board, weighing 1000lbs. which, as was understood and believed in the ship, was a present to the defendant from Toussaint. On the cross examination of the master of the William & Mary it appeared, that another Danish schooner, which had also been brought to by the General Green, had escaped capture by following the advice of the defendant in keeping under his lee, and that the witness himself entertained no idea of being captured, till he saw the Frenchmen getting into his vessel. On the part of the defendant was exhibited a part of his instructions from the navy department, by which he was directed, in order to carry into effect the act “ for suspending the commercial intercourse between the a United States and France, and the dependencies thereof” to take and send in vessels covered by Danish and other papers, if suspected to be really American. Testimony of the defendant’s general character was then offered, and objected to, but admitted, because the imputation of a gross fraud was attempted to be proved by mere circumstances, and therefore evidence of general character, certainly admissible. The defendant then adduced testimony, fully establishing a fair and good reputation. The learned judge summed up in favor of the defendant, and charged the jury that if such light circumstances as those relied on, were to render officers in our navy responsible for claims like the present, the service of the country would be greatly injured. That the defendant was by his instructions warranted in examining the William & Mary, and not liable for taking her out of her course during the time necessary for that purpose. That it was doubtful whether capt. Perry had a right to afford protection against the barge of Toussaint; but allowing he had, he certainly was not bound to do so, but if they thought that there was any collusion between the defendant and Toussaint, they ought to decide in favor of the plaintiff. The jury having found a verdict for the defendant, it was submitted without argument to the court, whether it ought not to be set aside and a new trial granted, on some one, or all of the following grounds. 1st, Because the evidence of character was inadmissible. 2d, Because the judge misdirected the jury. 3d, Because the verdict was against evidence.
   Per curiam delivered by

Tomkins J.

Under the instructions of the defendant, he was authorized to detain a vessel a sufficient length of time to perform the duties enjoined upon him by government. In suspicious cases, and for the purpose of examination he had a right, not only to detain vessels whilst he was examining the papers and the crew, but, upon reasonable suspicion, to divert them from the course of the voyage, and to send them into port. What length of time might be sufficient to detect the frauds, which his instructions were intended to prevent, must depend upon the circumstances in each particular case; and I am not inclined to believe that the detention in the present case was unreasonable, fraudulent, or collusive.- If it was, the defendant is undoubtedly liable. But that question was fairly submitted to the jury, and their decision of it I am not disposed to disturb. The judge directed them, that if they should be of opinion that captain Perry acted in collusion with the Frenchmen, they should find for the plaintiff.

This direction was undoubtedly proper, and affords no ground to support the point of misdirection by the judge.

The evidence of character was also in my opinion properly admitted. In actions of tort, and especially charging a defendant with gross depravity and fraud upon circumstances merely, as was the case here, evidence of uniform integrity and good character is oftentimes the only testimony which a defendant can oppose to suspicious circumstances.

I cannot say I am dissatisfied with the verdict of the jury or that the same is against the weight of evidence ; and am therefore of opinion the postea ought to be delivered to the defendant.


text:
    Deodatus Clark against Isaac Frost and Wife.
    ALBANY,
    August, 1805.
    Affidavits or documents in support of a deponent’s character, which has been impeached, may be read, though copies have not been served; but if they only in a collateral way establish his character, by proving the truth of the ground of motion, which has been contradicted, they are inadmissible. An affidavit by a third person, of facts in the knowledge of a party, on which the application is founded, can not be read, as it ought to be by the party himself; and if he be unable to attend a commissioner ought to go to his house.

      SIMONDS, on an application to set aside a default and all subsequent proceedings, relied on an affidavit made by the defendants’ son, setting forth' an agreement to stop all further measures in conáequence of a settlement then made, and shewing, as a cause for the deposition being by the son, that his parents were so old and infirm they could not go to a commissioner to be sworn, but that he, the deponent, having been employed to take care of their interests, was perfectly acquainted with the merits of the cause, and all that had taken place.: ' "

      Gold, in opposition,
    read four depositions flatly contradicting the settlement, and inability of the defendants ; and also stating the deponent on their behalf, to be a person totally devoid of all credit. He also contended that the motion ought to be founded on the affidavit of the party, therefore, that by the son ought not to have been read.
    Shnonds, in reply,
    offered affidavits to support the character of the son, by shewing the settlement he mentioned had actually taken place.
   Per curiam.

We will allow affidavits, or other documents, to be adduced to establish the general reputation of a person' whose character has been impeached, but we cannot hear any thing supplementary read, to substantiate the ground of motion. Copies of all that is relied on for such a purpose, should be served. In the present instance, the incapacity of the defendants is denied; and when a third person makes an affidavit, á sufficient reason should be shewn, why it was not by the defendant himself. Besides, a commissioner ought to have gone to their house ; and was die affidavit of their son to be received, it would still be insufficient; for it should háve set forth what settlement was made, as it might have been conditional. Take nothing by your motion, and pay the cost's of resisting,

If, after joinder in error, it be discovered, that the justice has neglected to make a return to the certiorari, and he has quitted the state, the court can not norpross the writ, but will give leave to take out execution in the court below, and for the plaintiff here, to discontinue without costs.


text:
    Elijah Ranney against Joseph Crary.
    IN a former term this cause had, after joinder m error, brought up for argument, but the court observing that the justice had made no return to the certiorari attached to directed a rule, ordering one by the first day of the next term. Before a service of this could be effected, the justice had quitted the state, and had never returned within it.

      Brees, for the defendant,
    now moved to nonpross the writ, and have his costs- allowed.
   Per curiam.

Why did you join in error? Your costs are of your own seeking, and without any fault in the plaintiff. You may sue out execution on your judgment below ; but the plaintiff must have liberty to discontinue without costs.


text:
    Reed against Bogardus.
    Circuit costs.
   WHERE a judge cannot try a cause, or a circuit falls through, the costs abide the event of the suit.


text:
    John Holmes against Elisha Williams.
    ALBANY,
    August, 1805.
    Service, by leaving at the house of an agent, should state his absence.
    THE affidavit of service of notice, stated it to have been, by leaving it at the dwelling-house of the agent of’the-attorney.
   Per curiam.

It is not sufficient. You ought to have stated that the agent was absent, and to whom delivered.


text:
    Garrit Bogert against David Bancroft.
    A notice signed by a counsel for the attorney on record, is good, if the attorney has absconded ; but generally, all notices, &c. must be in the name of the attorney in the suit.
    WILLIAMS moved in this cause, on a notice signed by himself, “ for A. B.” the attorney.

      W. P. Van Ness

    excepted to the signature, as not being that of the attorney himself.

      Williams in reply.
    He is in embarrassed circumstances, and could not be found. But independent of this, the signature is sufficient. Stipulations signed by counsel alone, have been held good : so his subscription to a case made at a circuit, is sufficient.

         Wilcox v. Woodhull.

   Per curiam.

Under the circumstances of this case, we think the signature sufficient. But we do not by this mean to say, that subjoining the name of a counsel in the cause, is, in these incidental proceedings, adequate to that of the attorney. We rather think it is not.


text:
    Jackson ex dem’ Fisher against Ferguson.
    The court will not indulge to the next non.enumerated day to prepare affidavits in opposition, unless the party asking the indulgence, can allege some reason, why he was not prepared.
    ON a motion for judgment, as in case of nonsuit, after due service, and when the attorney was in court, the counsel for the plaintiff asked till the next nomenumerated day, to pre-rue an affidavit in opposition.
   Per curiam.

To entitle to such a favour, some reason should be offered, evincing why the affidavit could not be prepared; because the period of service ordered by the rules of the court, is otherwise presumed sufficient to enable the party to be ready. The effect of the motion cannot, therefore, be delayed.


author: Per curiam,

text:
    The President and Directors of the New-Windsor Turnpike Road against Wilson.
    ALBANY,
    August, 1805.
    The court will not change the venue in a turnpike cause, on an affidavit stating the dispositions of the county to be unfavourable to turnpikes, though it may be a good reason for applying for a struck jury.
    FISK, in an action for running a road parallel to that of the corporation, in order to draw off and injure the toll, moved to change the venue from Orange to New-York, on an affidavit stating, that from the prejudices of the county against turnpike roads, an impartial trial could not be had.
   Per curiam,

stopping Henry. It is impossible to conceive, that in so large a county as Orange, twelve indifferent men can not be obtained to try a cause against an individual, for his sole act. I,n such small counties as Rich mond, where fishery rights are concerned, in which almost the whole community is interested, the general dispositions of the people may warrant the application; but if it be allowed in the present instance, on every turnpike cause we shall have similar requests. Why not go into Dutchess, if it were necessary to take the trial to another county ? The present motion must be denied, though the reason on which it is founded, might be a good reason for asking a struck jury.


text:
    Jackson, ex dem’ Root, against Stiles, Vanbuskerk Tenant.
    Depositions before commissioners, &c. must be signed by them with their names of office.
   IT was ruled in this cause that the jurats of affidavits taken before judges of the Common Pleas, or commissioners, must be signed by them, with the addition of their official descriptions — judges of the Common Pleas to stile themselves such, and commissioners to specify that they are so.


text:
    Brooks against Hunt.
    The affidavit to ground motion for judgments as in case of non-suit, must shew where the venue was laid.
    HENRY moved for judgment as in case of nonsuit on an affidavit, merely stating for “ not bringing the cause to “ trial at the last circuit in and for the county of Montgom-" ery," accorading to the practice of the court,

      Paris contra,
    objected that it did not specify where the venue was laid.

      Henry

    insisted it appeared from irresistible implication, to have been in Montgomery.

       This ingredient is not required by the English practice. See Tidd's Forms, 194. 1 Sell. Prac. 365. c.

   Per curiam,

The affidavit is defective. Had this cause been with a venue in NeW-York, the same mode of swearing would have entitled you to your judgment. We are not to infer facts from affidavits, when the party has it in his power to state them positively. The motion must be denied.


text:
    Jackson ex dem’ Cobley against Valentine.
    ALBANY,
    August, 1805.
    Neither judgment as in case of nonsuit, nor costs, nor stipulation, where, from all antecedent causes believing they could not come on, a young issue got an unexpected chance of trial.
   WHERE on the last day but one of a circuit, there appear so many old causes to be tried, that the judge himself is of opinion it seemed impossible a young issue could be brought on, and, from this conviction, so many of the suitors go home that an unexpected opportunity otters ox trying a cause, the plaintiff in which, had, with his witnesses, left the circuit, the court said, he was not in default, and, on a motion for judgment as in case of nonsuit, not only refused the application, but excused from costs and stipulation.

To gain a priority on a motion for judgment upon a frivolous demurrer, the notice must state the frivolousness as the ground of application.


text:
    Kibbe and Titus against Stoddard.
    EMOTT moved in this cause for judgment on afrivolous .demurrer, on which account he claimed a priority, upon a simple notice of bringing on the cause to argument.
   Per curiam.

Your notice should have stated that you meant to apply on account of the frivolousness of the demurrer, otherwise you cannot gain any preference. '


text:
    Williams against Green.
    Rule for reference at a circuit is void, award of course set aside, but as act of court, without costs.
   IT was ruled that a circuit court cannot order a cause to be referred under the statute. That any award, therefore, under a rule for a reference granted at a circuit, must be .set aside, but without costs, as the rule, though a nullity, ⅛ an act of the court.

       Act for the amendment of the law. 1 Rev. Laws 346. Sec. 2.


text:
    Coffin, Executor, against Tracy.
    Confessing a judgment in a justice’s court, will not give it jurisdiction in a suit by an executor.
    IN ERROR from a £10 court, the defendant relied on the now plaintiff’s having confessed judgment in the inferior tribunal, and therefore this case was distinguishable from those, in which the court had determined an executor could not sue before a justice of the peace.
   Per curiam.

Consent will take away error, but neither that nor confession will give jurisdiction.

N. B. This cause was tried in the court below before the act of the last session.


author:
Thompson J. Spencer, J. TompkiNs, J.
      Livingston, J.

text:
    Shadwick against Phillips.
    ALBANY,
    August, 1805.
    The rule respecting reducing agreements into writing, extends to parties in the suit, as well as to attornies.
   ON an application for judgment as in case of nonsuit for not proceeding to trial, the affidavit stated that the plaintiff, as he was going to subpnsna his witnesses, met the defendant, who said he could not procure his in time, and begged him not to bring on the suit. This he consented to, and the verbal agreement thus made, it was insisted, took the case out of the operation of the twelfth rule of April 1796, which it was argued, was obligatory only on officers or the court.

Thompson J.

The simple question is as to the validity of the agreement; whether the court is not bound to notice it, though not reduced to writing? Our rule is, “That no “ private agreement or consent between the parties Skc. “ shall be alleged or suggested by either of them against “ the other, unless the same shall be reduced,” &c. We think that it ought to extend to parties, as well as attornies in the suit. Such must have been the intention of the court; otherwise it would have been restrained to such as were entered into between attornies. The words of the rule warrant our determination. It is as necessary between parties- as their attornies, and enforcing this construction will prevent much altercation. There is no difficulty in reducing any agreement into writing. In the present instance, indeed, the existence of the engagement is not contradicted, but it is not admitted; and if it be of no validity, it was unnecessary it should be denied. There may be a hardship in this case, but the court cannot violate what they think a proper and correct rule to enforce. But even the hardship will in some degree disappear, if we advert to the affidavits, which state that the parties informed their attornies of the arrangement. It was therefore their duty to go on, notwithstanding what passed between their clients.

Spencer, J.

I cannot coincide in this decision. It is true, with the general law of the land no man is supposed to be unacquainted, and therefore ignorance of it is no .excuse. But this presumptive knowledge is not to be extend? ed to our private rules of court. Our officers, indeed, may be supposed connusant of them, for they are intended to be always present here in person. In the case now before us, the rule operates most unjustly. A plaintiff on the way to subpoena his witnesses, meets a defendant, and to oblige him, because he could not be ready with his, consents not to bring on the cause, and merely on account of this agreement not being reduced to writing, he is now to be nonsuit-ed. I think the practitioners in this court were the subject matter of the rule, and it ought to affect them-only.

TompkiNs, J.

I fully concur in the opinion last given.

Livingston, J.

I did not intend to have given my reasons for coinciding with the decision pronounced by Mr. Justice Thompson. But to me it appears of more importance that the rule should apply to parties than attornies. The latter, if they abide honorably by their engagements, know exactly the extent of them, and to what they apply; but a suitor can hardly ever determine the effect of his own words, and we shall have eternal disputes upon how far they mean to go. The construction now made is clearly within the letter of the rule, and were it to be made anew, I should be for its comporting with the present decision.

Kent, C. J. The defendant takes nothing by his motion.

       Cole 9.


text:
    Fall and Smith, Overseers of the Poor of New-Windsor, against John Belknap.
    Practice on arguments.
   IF an affidavit of service state, that the party did serve his opponent with notice of bringing on the cause to argument, it is, without setting forth or producing the notice itself, sufficient to entitle to judgment, if the opposite side' do not attend.


text:
    Brandt, ex dem’ Palmer, against Berrian.
    Though agreements be not in writing, yet if they be not on that accont resisted but admitted, the court will give effect to them.
    THIS was an application for the' costs of the last circuit at West-Chester, upon an affidavit, that just as the plaintiff was ready for trial, the defendant verbally agreed to leave the matter to arbitration, which he had since refused to do, though, from a reliance on his promise, the cause was not brought on. °

      Munro

    _ admitted all the facts, but said he was not author-ised to consent to the motion.
   Per curiam.

When an agreement, though by parol, is admitted, and its being merely verbal not urged against it, or relied on, it ought to have its effect. But in this case, the plaintiff is premature in his application. He must wait .till the costs of suit are taxed, and then he will be entitled to them.


text:
    Jackson, ex dem' Rosekrans, against Howd.
    ALBANY,
    August, 1805.
    Affidavit of service stating it from informa tion of a clerk who had indorsed the papers served, and had quitted the state, is good.

      THE affidavit of service was by the attorney on informa-don from his clerk that it had been duly made, according to an indorsement' on the notice produced, made by the clerk who had quilted this State, and gone into Connecticut, where he then was.
    Where an agreement entered into after notice of motion, does not reach the end of the application, it will not be construed to be a waiver of it; and if from misapprehension, it be so considered, and a default entered, on expiration of an order to stay proceedings, subsequent to which the motion is made and obtained, the default, though regular, will be set aside on costs and terms.
   Per curiam.

The affidavit is sufficient, and as full as the circumstances of the case would admit.


text:
    Stephen Olney against Ebenezer Bacon.
    ALBANY,
    August, 1805.
    AN order had been obtained, on behalf of the plaintiff, to stay proceedings till the fourth day of last term, for the purpose of affording an opportunity to move for a rule, directing the justice, in the court below, to amend his return, by inserting a written document adduced in testimony before him. By some accident, the attorney entrusted with the papers, did not arrive in New-York till after the fourth day, and on the sixth, the defendant entered a default against the plaintiff for not assigning errors according to notice, after which, the plaintiff, on the last day of the term, obtained his rule to amend, no oneappearing to oppose.
    Woodworth,
    on these facts detailed by affidavit, moved to set aside the default and subsequent proceedings.

      Foote contra,
    relied on a stipulation entered into between the attornies in the cause, by which it was agreed, that the written evidence referred to in the return was the order or draft therein mentioned. This he contended was adequate to the amendment to be moved for, and superseded the necessity of application j therefore, errors not being assigned at the time the order expired, the defendant was regular in his default.

      Woodworth in reply.
    The stipulation reached only to the identity of the paper, the mere production of which was not evidence, and the object of the motion was to procure a return of it, to shew it was no testimony, without being corroborated by witnesses. Besides, when a party does not appear to oppose, he waives all objections. Ekhart v. Dearman, 2 N. Y. T. R. 379.
   Per curiam.

The stipulation- was- defective, for the object of the plaintiff could not have been obtained by it; nor does it state to have been made with a view of superseding the necessity of an application- to- the court.- But the order to stay proceedings, having in fact expired before the default for not assigning errors was entered, the defendant Was regular; though, as there has been some misapprehension, and a delay from accident, it must be set aside on pay-mentor costs and assigning errors in twenty days.


text:
    Teunis Quick against Benajah Merrill.
    Notice of bail imports notice of retainer as attorney.
    If the misprision in entituling a cause do not mislead, or be not such as is likely to do so, it will not prejudice.
    IT did not appear that notice of retainer of attorney for the defendant, had been received, but notice of bail was admitted, an exception to which was taken, (on amotion to set aside a default, and other proceedings, accompanied by an affidavit of merits,) that it was entituled “ Benajah Merrill ads. Jeunis Quick and the want of notice of retainer was also urged.

   Per curiam.

Notice of bail, necessarily imports a notice of retainer as attorney. As to the title of the notice, the ruling principle is, that if the party served be not misled, or the papers be not such as evidently may mislead, a mere clerical misprision shall not prejudice. It does not appear, that there was any other cause depending against Merrill. In liberal practice, the notice ought to have been received, and the objections must therefore be overruled.


text:
    Abraham Boyce against Reuben Morgan.
    The issuing of the warrant or summons in a justice's court is the com-is the commencement of the suit.
   IN ERROR on certiorari, upon an agreement entered into, on the 28th of December, not to sue a third person, the gravamen was laid, that he since that time had sued, and the summons was dated on the day of the agreement, On this, the defendant below insisted on a nonsuit ; but the plaintiff refusing to submit to it, a verdict was given in his favour. It was now contended, that the levying the plaint was the commencement of the suit; but the court, on the authority of Lowry v. Lawrence, 1 N. Y. T. R. 69, ruled, that issuing the summons, or warrant, was the beginning of the action, and reversed the judgment; the suit appearing on the face of the record, to have been instituted previous to any cause of action accrued.