author: Radcliff, J.

text:
    The People against Rust.
    An indictment against an attorney, for extorting more than his legal fee» must state the sum due, and the specific excess.
    The defendant had been convicted at the general sessions in Montgomery of extortion in his office, as an attorney of the Court of Common Pleas in that county, and sentenced to pay a fine of 100 dollars.

      *The cause was brought up on a writ of error.

      Emott,

    for the defendant, took a variety of exceptions.
    1. That it is not shown with sufficient certainty before whom the court was held. The record states the indictment to have been “before the justices of the said peoph, in Montgomery aforesaid, and assigned to hear and determine divers felonies committed and done in the said county.” But the act by which their authority is created says, “ the justices of the peace of the said counties,” &c., shall have power to hold the general sessions. 1 Bev. Laws, 395, s. 6. This tribunal, then, as stated, is not such a one as is created by the statute. It is a general principle, not here complied with, that particular authorities must be specifically shown. 4 Hawk. b. 2, c. 25, s, 123. That the nature of the commission ought to be set out and manifested, whereas here it was not apparent, and must be the result of implication alone.
    2. There has been a mistrial; there is no issue joined for the jury to try: the record is cometh, &c., “and having heard the said indictment read, the said Amaziah saith he is not guilty thereof." This applies to the indictment, and not to the offence.
    3. The time at which the court was held is stated so as to vitiate the indictment. It is said to have been on a Saturday ; the first meeting ought to have been shown to have been on a Tuesday, in conformity to the act, and the continuances from thence to the Saturday, regularly set forth. The words of the act are “in the county of Montgomery, at the court-house in the said county, the Court of Common Pleas on the second Tuesdays of February, June and October, and the Court of General Sessions on the said second Tuesdays of February and October.” The caption is, “at the General Sessions holden on Saturday, the fourteenth day of February.” This is fatal. It is necessary to state that the sessions commenced on the day appointed *by law, and were continued [*135] to the day at which mentioned to have been hold-en. For this doctrine the court may refer to The King v. Fearnley, 1 D. & E. 316, where, and also in The Queen v. Shetford, 3 Ld. Raym. 41, they will see precedents in point.
    4. There is not sufficient certainty as to place. The indictment says “holden at the town of Johnstown,” but the words of the act are “at the court-house in the said county.” The court-house is the very spot assigned by the law, and for what appears, it may not be in Johnstown. It should have been, “in the county of Montgomery, at the court-house of and for the said county, in the town of Johnstown.” 4 Hawk. 77, b. 2, c. 25, s. 128, is to the same point.

    5. There is a total want of proper continuances. It appears by the act that the sessions are to be holden on the second Tuesdays in February and October: the continuance on the record is to Wednesday, the fourteenth day of October, on which day the venire is made returnable. The day appointed by law was Tuesday; and that, in 1801, was the thirteenth, and not the fourteenth of the month. It was to the Tuesday, the thirteenth, that the court ought to have been continued, and from thence to the day of trial, é Hawk. 170, b. 2, c. 27, s. 87, 89. Ibid. s. 90. This ia fatal, for a discontinuance is never aided by a-ppearance. Ibid. s. 102.
    6. The indictment is wholly defective for want of certainty. The special matter of the whole fact must be set forth with such precision, that it can sufficiently appear to the court that the indictors have not gone upon insufficient premises. Nothing material is to be taken *by intendment or implication. The indictment [*136] is laid under the fee bill, and, therefore, clearly bad, fur it has not charged the fact to have been knowingly or wilfully done. These are the' words of the statute, 2 Eev. Laws N. Y., 88, and are indispensable. To show that the very words of the law should be pursued, and that the court cannot, from any circumstances, or by intendment, supply the defect, there are two authorities exactly in point. Jackson and Randall’s Case, 1 Leach, 305; Cox’s Case, Ibid. 82. At common law this does not hold good, for then falsely will imply wilfully; but, under a statute, there can be no such implication. In such cases it is also necessary that the specific charge should be stated: in the present case it is necessary, not only for the sake of certainty, but because the statute declares the offence to be for taking a greater reward than it allows “for any of the services aforesaid.” If the sum taken be not for the services “ aforesaid,’ it is not an offence, and therefore it should be clearly stated, If the indictment be not for an excess in the money exacted for those services, it is bad. It should also have stated the party aggrieved by the crime, and for this reason; the statute is to him remedial, and gives him treble damages. A further defect is, that the judgment does not follow the act. The law ordains that the culprit “ shall pay to the party grieved treble damages, and such fine to the people of the state of New York, as the court shall think proper to impose.” The sentence is only for a fine; totally omitting the treble damages to the party grieved, for whose compensation the act was principally intended. Under the statute for the prevention and punishment of extortion, (1 Rev. Laws U. Y., 120,) the indictment can as little be supported. An attorney is not an officer within that law. An officer is an agent for the public, an attorney is only a private agent. If, however, he is an officer, then it was necessary to lay the offence as done by color of his office, and for doing his office. This is an objection even at common law, for there it must be charged cabre officii. Bains’s Case, 6 Mod. 193. Hor does it appear that the money was taken in the cause; if it was, it might not have been for costs.
    The charge, therefore, wants legal precision. The [*187] * Queen v. The Clerk of the Peace of Cumberland, 11 Mod. 82. In that case it was laid as here, and Lord Holt held it insufficient. That it must be so, is evident from this, that it is necessary to show how much was due. This is not done, and on that account therefore, the indictment must fall. Lake’s Case, 3 Leon. 268; Com. Dig. Extortion, C. Baynes’s Case, 2 Salk. 680; 1 Holt, 512, 517. The Queen v. Clerk of Cumberland, 11 Mod. 80, 83.

      Metcalfe, District Attorney, contra.
    The first objection that has been taken, is to the caption, in omitting, after the word “justices,” to add “of the peace.” This exception, it is presumed, cannot be supported. On considering the nature of the offence, and how it became cognizable before the sessions, the jurisdiction will appear to have been sufficiently set out. The clause is descriptive of their sessions jurisdiction, and that was the only one they were then exercising. What are now called justices of the peace, assigned, &c., were originally no more than conservators of the peace, and chosen by the peo ole. By 1 Edw. III. c. 16, they were made officers of the crown, but still nothing more than conservators, as they antecedently were. It was not till the 31th Edw. III. c. 1, that they obtained their power to hear and determine, &c. It is from hence that all their sessions power was derived, and independent of that act they had not power to try. 1 Black. Comm. 349-354. As then, the authority of justices does not enable them to hear and determine, &c., and this authority is the only one by which they, have cognizance of the offence in the indictment, it comprehends all their sessions power on the point in question, and to state that is fully sufficient. It is not necessary to state more than will give jurisdiction over the offence. Suppose any other subsequent authority had been conferred, would it have been incumbent to set forth that? The words of the caption are, “assigned to hear and determine divers felonies, trespasses and other misdemeanors this, then, is a competent description of the persons before whom the indictment was tried. It states their mode of creation, and the jurisdiction of the particular *offence to have been delegated. The book refer- [*138] red to, (Hawk. b. 2, c. 25, s. 123, p. 3b'0,) does not make good the exception. There is no case decided that in an indictment at the sessions it is material to insert “ossigned to keep the peace?' This power is distinct from that to try, and, therefore, on a case under the latter, the former need not be specified.
    In answer to the second objection that the issue was not properly joined, and therefore a mistrial, it is useless to argue. Three precedents (and all others it is presumed are the same way) sufficiently prove that the due forms of law have been observed. Cro. Cir. Comp. 83. Trcm. P. C. 8vo. translated edition, 117; Ibid. 133.
    As to the want of certainty in not setting forth the specific charge, and the fee due, this general principle may be replied. It is necessary only that the charge contain the manner and substance of the fact. Hawk. b. 2, c. 25, s. 54 ■ — 68. The indictment does do all this, and when compared with others will be found to contain as much certainty as is common. It sets forth the person, time, place, sum taken, manner, occasion and intent. But it is asserted, the party injured is not set forth. The reverse of this we contend to be the fact. Mention is made of the suit, specifying the time when judgment was obtained, naming the parties plaintiff and defendants; that Bust conducted it as an ■attorney for the plaintiff, and received so much money over and above what was due. This, then, is a sufficient description of the person from whom received, and the party aggrieved. The offence is stated to be that the eleven dollars were extorsively “ exacted, demanded, extorted and received over and above his fees.” For this an authority may be found in Hawk. b. 2, c. 25, s. 57. It is there said an indictment for extortion, charging a bailiff of a hundred with taking colore officii fifty shillings, is good, without showing for what he took it; especially after verdict.
    The law never can intend that every circumstance, whether it go to the charge or not, shall be enumerated. Those only are requisite which . are connected with the crime; such as to make up the offence. Here he is charged with taking more than due. It is not necessary to go [*139] *'into a calculation and state each sum. This may be necessary to be shown to a jury, but not to appear on a record. All the cases in Hawkins turn on the principle stated, and leave out indifferent matters, specifying only those that constitute the offence, and without which the prisoner would have been innocent. To the same effect is 4 Com. Dig. 391. Gf. Certainty to a general intent is sufficient. The same in Rex v. Brunsden, Cro. Car. 438; S. C. 448. To a general indictment against a sheriff’s officer, charging him with having taken twenty shillings, many exceptions were taken, but on this point not one. Rex v. Cover, 1 Sid. 91. S. C. 1 Keb. 357, the case cited from Hawkins. The court will find the same doctrine in 11 Vin. Abr. 471, pl. 4. 14 Vin Abr. 363. pl. 8. n. Rex v. Cover. Rex v. Reffit, 7 Mod. 220. But should it even be admitted that the charge is insufficiently madq niter a verdict it is too late to be insisted on. Every circumstance that might have been fatal on demurrer cannot be taken advantage of after trial and conviction. A verdict cures many defects; and particularly those which must have been removed before the party could have been found guilty. Rex v. Cover, cited in 3 Bac. Abr. 554. No authority has been adduced to show that it is necessary to set forth the specific charge. There is no book which will warrant it, and it is repugnant to the cases of Rex v. Brunsden and Rex v. Cover. If they are law, the exception is good for nothing. Besides, the overcharge might be a sum in gross; for a regular bill might be made out for 25 dollars, and 30 be received. This will evince that it might be impossible to point out the identical charge in which he was guilty of extorting. As to not stating the due fee, this has ever been considered as an immaterial allegation; it is only a circumstance attached to the offence, and it is enough if it appear in evidence. But though the omission be a defect, it is cured by the verdict. The case in 3 Leon. 268 (Balees Case) is the only one that can be found to maintain the exception. It seems, however, to have turned altogether on the words of a particular statute ; that of 25 Edw. III. c. 9. made against clergymen who took more than their fee for giving absolution. By looking at the act it will be found to have required a more than ordinary degree of "x'certainty in the proceedings, [*140] and the court probably felt themselves under its influence. That the statute demanded a greater precision than the common law must necessarily be inferred from its being passed; for had it been otherwise, it never would have been .enacted. This is evident from the decision in Rex v. Reffit and Pott's Case. In those a verdict was had on a general indictment, like the present, and the court held it well, saying they could not then go into the exception. In Rex v. Baines, as appears by Holt’s report of it, 512, there was no determination on the point now objected. It was an indictment for taking eight shillings for a sub

      poena of only twelve lines. The charge was “ for divers misdemeanors in the execution of his office in the articles following, viz.” So that the offences were laid under a videlicit, and a mere recital. Holt said that it was nor charged for what fees, whether as cleric, or in what capacity ; it was alleged to have been done in” the execution of his office. Powell, one of the judges who rvas against the articles, mentioned the case in 3 Leon, but the other judge took no notice of it, and it does not appear to have been at all rested upon. The court will never require impossibilities. If this objection should prevail, in many instances an attorney could never be indicted. Suppose he should refuse, a copy of his bill and destroy it. To be sure the court might order a copy to be produced: but then, no other than tlae party injured could call upon him; so that this would confine the proceedings to the person injured, and lessen the generality of the remedy. What if the attorney choose to be in contempt ? He would put himself beyond the ordinary course of law. In Rex v. Reffit, and Rex v. Cover, a fee was due for one of the services; it was not set out, and yet the conviction deemed good. For if stated it would not enable the court to form a better judgment of the nature of the offence; it would give them no greater information than they now have; unless every specific service is to bo charged, then what was due, and then what was received. The objection is not now tenable; for though it might have been good on demurrer, it is cured by the verdict, the inference being that all the facts were proved. [*141] From whence the conclusion must be that he *extorted, and this word is used in the charge. But, if these objections be done away, it is still urged that we have not laid it to have been done under color of his office, and that the money is not stated to have been received in the cause, or for fees. This latter exception is not true in fact. The indictment sets it forth with all convenient, though not with all possible, certainty. It states the suit • that Rust was the attorney for the plaintiff; that being so, and while prosecuting the suit for the plaintiff as such attorney, he extorted from one of the defendants eleven dollars more than were due in the suit, and more than were due to him, and the other officers and ministers of the court, for their respective services in the said suit. This, therefore, is substantially good. 1 Trem. 8vo. ed. of English translation, 115. 4 Went. Plead. 146.
      Colore officii, though inserted in the precedents in one or two reports, may be dispensed with. If it appear that the party charged with the offence was acting in his office, it is sufficient. In the part of Hawkins relied on, b. 2, c. 25, s. 57, after enumerating the technical terms that could not be omitted, it does not say that colore officii is indispensable. Rex v Baines states the objection, but it was not acceded to. The indictment says that he was acting as an attorney; this is fully enough. As to the argument that the proceedings are not good under either of the acts of the legislature, it may be very briefly answered, that it is immaterial whether it be so or not, if good at common law : to which its conclusion against the peace, &c. cannot be objected. The whole tenor of the indictment shows the money was taken by color of his office. It is doubted, however, whether an attorney-be such an officer as is inteuded by the act of the 7th January, 1788, “for prevention and punishment of extortion.” Attorneys are always stated to be officers of the court, and taken to be ministerial officers. They are licensed, regulated, and liable to punishment by the court, and therefore creatures of it. The act mentions sheriff, or other officer whatsoever, ministerial or judical; if, then, an attorney be an officer, the indictment will be good under that law, because the words knowingly and wilfully are not in it. The *fee bill (2 Eev. Laws, 88,) has these terms. It [*142] is not denied but that the indictment would have been more formal had it contained these words; yet in Hawk, b; 2, c. 25, s. 96, it is mentioned that if a statute contain the word unlawfully, you.must use it, or some'other tantamount. Therefore, it is not necessary to use every adjective the act may contain. The words of the indictment, and those of the law, when compared, will be found to be co-significant, The question then is, whether the words, taken collectively, do not sufficiently indicate that the money was received knowingly and wilfully ? whether they do not import as much ? This, however, is a public statute, and it is not necessary to recite it. This principle is equally applicable whether the fact charged be prohibited by one or more statutes. The averment, therefore, against the form of the statute is ex ábundanti, and not fatal. Two words are also said to be omitted, which are essential to the description of the offence of extortion. At common law these words are not required. This is a misdemeanor, not originating on any statute; it is the old common law offence; the words of the statute only show what would be extortion, and the court will please to observe that cabre officii can apply only where no fee is allowed at all; which is a different species of extortion from the present. That 'the judgment ought to have been for treble damages can be enforced as an argument against the proceedings only if, they be deemed to be on the statute, but if held to be at common law, it cannot prevail. The authority cited on the opposite side from Oro. Car. 448, is in point to this, though it has been mistaken by the party by whom used. Another reference may be made to show an exception cannot be taken for not giving damages. 2 Stra. 1048,
      11 quad convictas est,” was adjudged enough, because every thing the law ordains is implied and results from the words; but what rests in discretion m.ust be inserted. Nor is it necessary, though the act order fine and imprisonment, that both should be inflicted; its being a fine only, does not vitiate. In General Gordon's Case the same thing was determined by this court.
    *There is no authority to support the objection [*143] on account of omitting to say “at the courthouse;” and that which is taken against the continuances is equally untenable. The sessions may adjourn to any day within the sessions in the same manner as they may make their process returnable; in conformity to which the continuance to the venire is so made. That the party aggrieved is not mentioned has already been answered, and of this the whole indictment is a complete refutation. If this indictment prevail, deleterious consequences, it is said, will ensue, and that indictments can be thus preferred will be a doctrine dangerous to the profession. There is no man, continued the district attorney, who more wishes its well being than myself, but neither its interest nor its honor require that practices like these should go unpunished. The court, therefore, though called on to require more certainty in this indictment than any other, cannot be influenced by the considerations suggested; it is not by law necessary, and that is sufficient.

      Emott, in reply.
    The court will perceive that the charge may affect the defendant most seriously; it is not only the fine he has to pay, but it may go to striking him off the rolls, and depriving him of the means of subsistence. The sum does not induce him to come here, but, that he might have the means of support. The indictment is not pretended to have been framed on a bill of Rust’s, but on an estimate made by the parties who met together, calculating what he ought to have received, and then, because in their opinion he had taken too much, they proceed in this rigorous manner. It perhaps would have been full as effectual for the purposes of justice if they had left the punishment to the court of which he is an attorney. Two kind of errors are insisted upon. One goes to the form, and that, we contend, is materially defective. This, an inspection of the record and authorities will prove. From Hawk. b. 2, c, 25, s. 123, and the cases there cited, two general rules may be drawn. That the nature of the commission ought to be set forth, and the authority to hold the court apparent on the record. It is not stated that the justices were of the peace for the county. Therefore, notwithstanding [*144] Blackstone, when we look at our law, we *find they must be of justices of the peace for the county. If you pursue the words of the indictment, the same want of precision is continued. Before Abraham, &c., and others, “justices of the said people in the county of Montgomery aforesaid.” There is a wide difference between justices in and justices of a county. Suppose a magistrate from another county to go there, he would be a justice in,

       but not (^Montgomery, and could not have a right to be one of the sessions of that county. It does not follow that they are the right justices, because styled justices of the people. The justices of this court are justices of the people, but they could not go to Montgomery and hold the sessions. Nor is this cured by its being stated “ assigned to hear,” &c., for if there was a special commission to try particular offences, they would under that be assigned to hear, and have authority to hear and determine according to their commission, but not as justices of the peace of the county. No answer has been made to the exception against the time at which the court was holden; it should have been shown that the court was holden on the Tuesday, and then adjourned; this not being done, the omission is material and not cured. Rex v. Warre, 2 Stra. 698. As to place there is a total failure. The act fixing the place at which the sessions are to be held, does not notice Johnstown; it mentions the court-house of the county: the location of that was a private law; it ought, then, to have appeared, that the court-house was at Johnstown, that the sessions were held there, and not elsewhere; for, if the sessions ■were at Johnstown, and the court-house in any other town, the court could have no authority. Another idea presents itself respecting the adjournment; suppose it had gone beyond the week in which the second Tuesday fell, there would doubtless be a.want of due continuances, and the contrary does not appear now.(a) The court will recollect that this indictment was not necessary for the ends of justice, as the court of which Bust is an attorney, is competent to every purpose for which it can be asked/ The fee bill creates the offence, and from Jaclcson and Randall's Case, and Cox’s Case, before *cited, it is indispen- [*145] sable to pursue the words of the statute, knowingly and toilfully'' The very charge must be specifically stated, for it is only in overcharges of a particular nature, mentioned by the act, that the offence is comprehended. The words of the law are, “ the sum of money herein before allowed." If, then, not in one of the sums before allowed, it is not an offence within the act. It might be an overcharge for a letter. Admitting the demand to be unreasonable, it is possible it was not within those mentioned by the fee bill. If it was, then the conviction is clearly bad, for the court should have gone on to give treble damages.^) They are the first object of the law, as a compensation to the party aggrieved; the fine alone is a matter of discretion ; the words are, “ and such fine to the people of the state of New-York, as the court, &c., shall think proper.” So by color of his office, is equally necessary under the other act, for the words of the law have made it- a constituent part of the offence; but it is conceived that attorneys are not either ministerial or judicial officers, within the meaning of that law. If the proceedings are to be taken at common law, then it is indispensable that cabre officii should be expressed. Baines's Case is full to this. The manner of stating the charge really amounts to nothing. That he extorted “ eleven dollars over and above the fees usually paid for such like services, and due in the suit aforesaid, and more than was legally due to the said Amaziah Bust and the other officers and ministers of the said court, for their respective services in the said suit,” over and above the fees usually paid; this does not say they were received in the. cause, but only that they were received from one of the defendants. Should, however, the court imply the money was received in the cause, it does not appear to have been for costs: there is not a word to show it. The excess might have been for a part of the debt. I£ the court adopt the common presumption that he was acting in good faith, though too much has been taken, it ■will not be supposed for fees; especially as they are stated not to be due, and the debt not alleged to have been paid.
    Nay, suppose the judgment had been long stand-[*146] ing, the eleven dollars *might be for interest. It is possible this extra sum might have been received, every word of the indictment in that respect true, and yet the defendant not guilty of extortion. He may have paid to another person; the sheriff may have demanded it; a thousand cases might be put to show the want of precision. The proceedings mention such, like services, without stating any before.

      Metcalfe.

    It sets forth that he obtained a judgment.

      Emott.

    Allowed; but that is not material. In 11 Mod. The Queen v. Clerk of Cumberland, the same observation waa made by Holt. He says, “he took ten shillings more than his fee; why this may be, for perhaps he had another demand upon himand the indictment held not good. The authority in 3 Leon., requiring the sum actually due to be specified, is acknowledged by the district attorney to be against him. The case in Holt is full for the purpose cited; the exceptions being confirmed by reason and settled adjudications, are well taken, and the indictment never can stand.

      Cur. ad. vult.

        а) This is necessary only in cases where the indictment, &a, is at a day without the period of the original sessions or jurisdiction. Therefore, under commissions of Oyer and Terminer, which are pro han vice, if there be an indictment found after the first day, the adjournments till the day on which the indictment was taken must be shown. 2 Hale’s P. C. 24. Sampson’s Case, W. Jones, 420. So, on an indictment at an adjourned sessions, the day the original sessions began must be stated. Rex v. Fisher, 2 Stra. 865, But this need not be done when the sessions is by statute for a certain length of time, within which the indictment is found, as was the case here; for by the 10th section of the act of the legislature, appointing the sessions in question, they are directed to be held from the Tuesday to the next Saturday, inclusive; a continuance, therefore, would be superfluous, because the whole sessions are, in law, but as one day. St. Andrews Holborn v. St. Clemer. Danes, 2 Salk. 606. The authorities from D. & E. and Ld. Raym. do not apply.

       The indictment went further, and said “ in and for the said county.”

       The case there put, is of leaving out the county. ,

         The indictment there charged him with “extortion, viz: ttat ne exacted and forced from such person more than his just fees.”

       In the seventh edition the precedents are from. 353 to 360, inclusive.

         The extortion was under pretence of getting a discharge, not under color of office; therefore, could not he so laid.

       It is supposed Rex v. Luckup is the case alluded to. It does not, how* ever, «seem perfectly analogous.

      а) In this the learned counsel is mistaken; a justice of the peace, in the eye of the law, is a justice only in his own county.

        Wightman v. Mullens, 2 Stra. 1226. “ One of the king’s justices does not import one of the justices of K B., for every justice of the peace is a justice of the king. ’

       That was an indictment stated to be held “ adfestum Epiphanii' instead ef Epiphaniae, and in the Roman calendar there is a saint Epiphanius.

       The act being a public act, the judges are bouid to notice the time, it being laid within the period ordained.

        Quwre, if this is to be done without action and trial by jury. Bu/mpsietf» (fosse, Cro Car. 448. Bao v. Lamferne, W. Jones, 319.

   Radcliff, J.

now delivered the opinion of the court. This is a case on error, from the sessions in Montgomery, The plaintiff was indicted in the sessions for extortion, as an attorney of the court of common pleas for that county. General errors have been assigned, and a number of objections taken to the indictment and to the record, some of which are objections of form, and others of substance.

For the purpose of the opinion we shall give, it will be sufficient to state the part of the indictment on which it is founded, and which we deem to be defective in substance.

The indctment states, that he was an attorney of the court, &o. and that on the 12th of February, 1709, he obtained a judgment in favor of one Ichabod Roberts v. Alexander Campbell and John Hamilton, jun, and that he did extort and receive from the said Alexander, eleven dollars over and above the fees usually paid for such like services, and due in the suit aforesaid, and more than was legally due to him and the other officers and ministers of the said court, for their respective services in the said suit, &c.

The fact thus charged may be true, and the plaintiff may still be innocent of the offence. The indictment does not ^specify how much was received on his [*147] own account, and how much for the officers and members of the court. It may be that the excess, on which the charge of extortion depended, was occasioned by the charges made by the other officers, and incorporated into his bill, as for sheriff's fees, clerk's and icitnesses, &c. In these respects the indictment is not sufficiently particular; the offence is not alleged with sufficient precision and ccrfcainty; therefore, without examining the other objections, we are of opinion, that for this cause the judgment ought to be reversed.

Judgment of reversal.

Lewis Ch. J. absent.


source: Caselaw Access Project

author: Livingston, J.

license: Public Domain

text:
    Combs against Wyckoff.

      If a party to a suit referred, cannot produce Ms witnesses by the time of hearing, a judge at chambers in vacation, or the court, if sitting, will stay proceedings. Defendant’s attorney having nominated referees, and the party not having objected, he cannot, on that ground, move to set aside a report. The court will not notice any agreement in a cause between the attorneys, unless reduced to writing.
    This was an action for damages in not delivering a boat alleged to have been purchased by the plaintiff.

      Woods

    moved to set aside the report of the referees on an affidavit by the attorney in the cause, stating that the witnesses of the defendant were seafaring men; that there had been an express agreement between the deponent and the plaintiff’s attorney, that the referees should not make up their report until the testimony on the part of the defendant could be obtained; yet, notwithstanding this agreement, the referees had reported without waiting for the evidence on which the defendant relied; that a sum had been allowed the plaintiff for a loss, said to have been sustained by not being enabled to carry a quantity of wood to New-York, though it was proved, and even admitted, that a part of the wood was previously sold by the plaintiff; and the residue might have been conveyed to New-York had he thought fit; that the referees were nominated by the deponent without the knowledge of the defendant, Between whom and one of them a quarrel had taken place, which was not made up; that by the next circuit the defendant hoped to be able to procure testimony which would at least diminish the damages against him.

      Skinner, contra,
    read Ms own. deposition setting forth that he did not recollect the agreement above mentioned, and that_ at least it was not in -writing; that the referees met several times, and were as often adjourned at the request of the defendant’s attorney under the pretence of not being *able to procure the attendance [*148] of his witnesses; that at the last meeting the defendant’s attorney declined summing up, and so far from any enmity existing betwen the defendant and one of his referees, the very party named as being inimical was his special bail.
   Livingston, J.

delivered the opinion of the court. The defendant moves to set aside the report of referees, alleging,

1. That it was agreed by the plaintiff’s attorney, that no report should be made until the defendant’s witnesses could be procured, which was afterwards disregarded.

This agreement not being in writing, and being denied by the plaintiff’s attorney, must be laid out of sight. The court cannot too frequently inculcate the necessity of reducing to writing all agreements between gentlemen of the bar. Many mistakes, much misunderstanding and controversy will by this measure be avoided. In the present case it appears that two months elapsed before the report was made, which was allowing sufficient time for the defendant to produce his witnesses. If they were abroad, he might have applied to the court (for a term intervened between the appointment and report of the referees) for an order on them not to proceed for a reasonable time, which would have been granted, or a judge at his chambers would have ordered the proceedings to stay until application should be made to the court,

2. Another objection is, that a sum was allowed, which was not proved to be due. Of this allegation there is no satisfactory proof, and therefore we can take no notice of it.

3. A third objection is, an emnity between the defendant and one of the referees.

This reference, it is observed, was on a nomination by the defendant’s attorney, and although he might have been ignorant of the quarrel spoken of, the defendant by his acquiescence in the appointment, and submitting the cause to his decision, cannot now avail himself of this challenge. He should have applied to the court to remove him and appoint another. It is somewhat remarkable, however, that the referee who is repugnant or hostile to the defendant, should be his special bail in this very cause. [*149] *4. The defendant states that “ he can now introduce evidence to diminish at least the damages reported.” This is very loose, to say the least. Why was not this testimony obtained before ? and to what extent will the damages be reduced, if it be offered now ? Will it justify a diminution of only one dollar, or less? If so “rife minimis non curat lex," and if the discovery had been .made even prior to the report it would be no reason for disturbing it. Let the defendant take nothing by his motion, and pay the costs of this application.

Motion denied, with costs.

         S. P. Bain v. Green, 2 Caines’ Rep. 95. Brandt v. Berrian, 3 Caines’ Rep. 131. Parker v. Root, 7 Johns. Rep. 320. The rule extends to parties in the suit; Shadwick v. Phillips, 3 Caines’ Rep. 129, and though the agreement be admitted, the rule will be enforced, unless expressly waived. 2 Caines’ R. 95. 3 Caines’ R. 131. See also Griswold v. Lawrence, 1 J. R. 507.

       S. P. Sands ads. Bird and others, Col. Cases, 105.
      See as to adjournment before referees; Jacksons v. Ives, 22 Wend. 637 ; Ex parte Rutler, 3 Hill, 464; Graham v. Morton, 6 Wend. 552; Langley v.
        Hickman, 1 Sand. 681; Cleveland v. Hunter, 1 Wen. 104; Sudam v. Swart. 20 J. R. 476.

        а) When a report was made without giving time to adduce testimony in proof of items agreed to be admitted, but at the meeting refused to be allowed, the court set aside the report, though the agreement was by paroL Forbes v. Tracy & Tracy, Caines' Prac. 495. S. C. by the name of Forbes v. Tracy and another, 2 Johns. Cases, 224.

       It has been since ruled that when parties elect to act for themselves in the nomination of referees, without the intervention of the court, a motion to set aside the report will not be heard, Miller & Underhill v. Vaughan, 1 Johns. Rep. 315, though accompanied by an affidavit of merits. Stephenson v. Beech t, ibid. 492.

       A motion to set aside a report of referees ought to be made in the term next after the report, Comstock v. Rathbone, 1 Johns Rep. 138, and when on the merits, is an enumerated motion. Clinton v. Elmendorf, 3 Johns. Rep. 143. Note, the marginal statement of this ease in the report ia right, that in the index wrong." See the point as ruled above. Caines’ Prao. 494. Though it is not necessary that the report should have been filed, provided it has been delivered to the party who urges that as an objeetic a. Thompson v. Tompkins, 1 Johns. Cases. 238.


author: The Court

text:
    The People against Croswell.
    If an indictment be removed from the sessions into this court, any exceptions may be taken to the charge of the judge by making a case, and bringing it before the court, in the same manner as in civil proceedings.
    The defendant had been convicted at the last circuit, for the county of Columbia, before Lewis, Ch. J. on an indictment for a libel on the President of the United States. The proceedings were originally commenced before the justices in the general sessions, from whence they were removed into this court, and went down to the circuit in the usual manner. On conviction of the defendant, recognizances were taken for his appearance the first day of term to receive judgment, but his counsel, considering the chief justice to have totally misdirected the jury, were rather at a loss how to bring the matter before this court.
   The Court

said, that on the cause being brought up and sent down to the circuit, the suit, though in its nature a criminal prosecution, took the course of a civil action; that within the first four days of the term ensuing the conviction, a motion in arrest of judgment might be made, or the parties may make a case, and bring every thing fully before the court. This measuré they advised, as being in the present instance more explicit, and it being adopted, they gave day till the fourth day of next term, taking recogni • zances from the defendant and two others for his due appearance, himself in 500 dollars, his sureties in 250 dollars each.


author:
      Per Curiam.

      Per Curiam.

      Per Curiam.

text:
    Lusher against Walton.
    Notice to refer must contain the names of referees. Misapprehension of a rule, or ignorance of a late determination, may be offered as excuses for not noticing for the first day of term. If the ground of opposing a reference be that a point of law will arise, it ought to be' stated expressly what, and that it is “as advised by counsel.”
    Van Vechten. This is a motion for a rule to refer. The affidavit states that there are long accounts to adjust.

      Emott.

    The notice does not mention *the names ,'f the referees; from Bedle v. Willet, ante 7, decided last term, this is necessary.

      Spencer

    observed to the court, that a cause could not be referred at the circuit; but from the case cited, the application might be renewed the next non-enumerated day.

      Emott.

    If the court say they will hear it, I shall waive the objection.

       A rule for that purpose is a nullity. Williams v. Green, 3 Caines' Rep. 129.

   Per Curiam.

If the cause contains long accounts you cannot try it.

Per Curiam.

The omission must be accounted for, and therefore we cannot say we will hear it. All notices must be for the first day; see ante, 73, n. , if not, an excuse must be offered. But a party’s misapprehending a rule has frequently been received as an excuse. The decision quoted has altered the former practice, and if the party will swear he did not know it, he may apply again

Mnott,

waiving, his objection as to the omission of the names, opposed the rule on a deposition by the plaintiff stating that an account between him and the defendant had been long ago settled, on which there appeared a certain balance due, for which the present action was brought, and that he believed the matter in dispute involved points of law.

Per Curiam.

From the plaintiff’s affidavit it does not appear there was a final closure of accounts, so as to entitle to oppose the rule; besides, there are two affidavits against him; the weight of evidence must, therefore, preponderate, and his single affidavit must give way. His second ground for resisting the application is, that on the examination questions of law will arise. This, if properly stated, would have been a good reason for denying the rule; but on that point the affidavit is defective: it states his information and belief that it will arise; it ought to have said that “he is advised by his counsel,” and even then to have set forth the particular and specific point, to satisfy us that it did exist. For these reasons, therefore, as the first taken objection *is waived, [*151] the plaintiff’s affidavit is insufficient, and the defendant must take his rule.

Motion granted.

Lewis, Ch. J., absent.

       Code of Procedure, sec. 271: DeHart v. Covenhoven, 2 J. C. 402. Adams v. Bayles, 2 J. R. 374; Anon. 5 Cow. 423.

      а) See Codwise & Ludlow v. Hacker, 2 Caines’ Rep. 261. Hobson & Todd v. Seymour, Caines’ Prac. 485.

       In Low v. Hallet, 3 Caines’ Rep. 82, the court thought “ as advised by counsel” equivalent to a specification of the points of law that would arise. In Adams v. Bayles, 2 Johns. Rep. 374, from the report, and in which it i¡ to be observed the opposition was by the reporter himself, neither the points of law, nor advice of counsel, were stated by the affidavit. In Salisbury v. Scott, 6 Johns. Rep. 329, the court seem to have fully adopted the principle of this decision as to the form of the affidavit to oppose a reference. It is true that in Low v. Sallett, in addition to the words “as advised by counsel,” the affidavit contained those of “and verily believed.” Whether these' minute diversities will reconcile the decisions, the reader will judge. Sea the conclusion of note (a), p. 157. See also Shaw v. Ayres, 4 Cow. 52.


author:
Radcliff, J.
      Per Curiam.

text:
    Jackson, on the demise of Winter, against M'Evoy, tenant in possession.
    In order to be admitted as a defendant in ejectment, a privity must be shown between the applicant and tenant. It is not enough for the party applying to swear he claims title, and has a real and substantial defence.
    Woods applied to vacate the judgment entered against the casual ejector, and to admit Henry Masterton to be made defendant, on such terms as the court might be pleased to order.
    The affidavit of Masterton set forth that the suit was instituted to recover possession of forty-five acres of land in the county of West Chester, to which he claimed title, and has a real and substantial defence to malee; that, on the 26th day of July last, the deponent discovered in the book of common rules of this court, that a rule for judgment against the casual ejector has been entered in the above cause, on the 12th day of May preceding; that the tenant in possession never informed the deponent of any declaration in the said suit having been served upon him, till a long time after the rule for -judgment had been entered ; that the deponent believed the knowledge of it was withheld from him, owing to a good understanding between the lessor of the plaintiff and the tenant in possession, to prevent that defence being made which the lessor of the plaintiff was, previous to the commencement of the above suit, told by the deponent he would make, and that on search he finds no record has been filed in the above cause.
    These facts and allegations, he contended, were tantamount to a positive assertion of title; that it was impossible without one to have a real and substantial defence. That nothing would be lost by the plaintiff, as a trial might be had at the circuit in September. That the question would then fairly come up whether the deponent or Winter was really entitled.

      Woods.

    Perhaps the affidavit does not go quite far enough in stating that expressly, but surely it may well be gathered from the whole.

      *Emott, contra.
    The deponent does not swear [*152] to any title; he only says he has a claim; he does not swear that he is the landlord; not even that there is a privity between him and the tenant. If, then¡ there is no title, if he is not landlord, and if there is no privity, how can he be made a defendant? If a man may thus come in and vacate a judgment, without any complaint from the tenant, there is not one which may not be set aside. There is nothing stated which shows that notice of the ejectment ought to have been given to the deponent. The tenant is not obliged to hunt out all persons who have claims; he can only be expected to communicate to his privies.
   Radcliff, J.

There does not appear to be any relation between Masterton and the tenant.

Per Curiam.

The party can take nothing by his motion.

Motion denied.

Lewis, Ch. J., absent.

         The claim of the landlord to defend, is thought to be by statute. 1 Rev. Laws, 145, s. 30. Lord Holt says it is of right, Fenwick's Case, 1 Salk. 257, but though before the statute a landlord might have been let in to defend, the second provision of the section seems new. It has been determined that neither a devisee, where the ejectment is by the heir, nor a mortgagee, who has never received rent, Bull N. P. 95, nor a cestui que trust; who has never been in possession, Lovelock v. Doncaster, 3 D. & E. 783, are ’andlords within the statute; that a devisee in trust, Nonis v. Doncaster, 4 D. & E. 122, a mortgagee, Doe v. Cooper, 8 D. & E. 645, though the report does not say he had ever received rent, and a lord claiming by escheat, Fairclaim v. Shamtitle, 3 Burr. 1290, are landlords within. From this last cited case, it would seem, that all who stand behind the tenant may come in to defend for their own interests. See Jackson, ex dem. Cantine and others, v. Stiles, (George Clark, tenant,) 4 Johns. Rep. 493, as to admitting alien landlords.

        Slites v. Jackson, 1 Wend. Rep. 316; 6 Cow. 589; 5 Id. 447; Jackson v. Flint, 2 Cow. 594; 11 Johns. Rep. 407; Jackson v. Babcock, 17 Johns. Rep 112; N. Y. Code, s. 122.


author: Per Curiam.

text:
    Jackson, on the demise of Rodman, against Brown.
    The sudden indisposition of counsel and attorney, is an excuse for not proceeding to trial, but will not exempt from costs.
    Spencer
    moved for judgment as in case of nonsuit, for not proceeding to trial. The notice was served on the first day of term, for argument on this. . The affidavit accounted for its not being noticed for the first day, by stating that it had been delivered, on the 26th of July, to a person who was then about leaving Hudson for Albany, but who had either lost it, or left it behind with some papers of his own.

      Van Vechten

    opposed the motion, by an affidavit of the indisposition of both attorney and counsel in the cause, when too late to employ others.
    The cause was countermanded, but, after the circuit,
   Per Curiam.

The excuse is sufficient to prevent granting the judgment applied for, but the plaintiff must pay the costs of not proceeding to trial. It was a misfortune, it is true, that the parties should have been afflicted with sickness, but it is a misfortune that ought not to fall on the defendant.

Motion denied on paying costs.

Lewis, Ch. J., absent.

         Rogers r. Harrison, 2 Caines’ Rep. 379. Steinbach v. Hallett, 1 Johns Rep. 141.


text:
    Alexander against Esten, Administrator.
    A motion cannot be extended, to objects not specified in the notice,
   The Court ruled that it was the practice to coniine a party *to the objects specified in his [*153] notice, and the present being to set aside an execution, they would not allow it to be extended to the judgmental.

Lewis, Ch. J., absent.

        Ferguson v. Jones, 12 Wend. 241; 1 Cow. 135, note [1].


author:
Court.

      Per Curiam.

text:
    Jackson, on the demise of Watson, against Marsh.
    Nine days’ notice is enough to produce in Cayuga papers in Albany, 180 miles distant.
    W. Woods moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial.

      Emott

    resisted it on an affidavit, setting forth that the cause was duly noticed for Cayuga county; but, nine days before the trial, the defendant served a notice to produce papers which were in Albany.
    He also stated some circumstances tending to show tricking practice, but nothing of that sort appeared by the affidavit.

      Emott.

    One hundred and eighty miles.
   Court.

What is the distance from the county court in Cayuga to Albany ?

Per Curiam.

The plaintiff must stipulate and pay costs. There is no proof of want of time.

On stipulating and paying costs,

Judgment of nonsuit refused.

Lewis, Ch. J., absent.


text:
    Webb against Wilkie.
    Whenever a plaintiff amende his declaration, the defendant has an election to plead de rump. •

    This was an action on a sealed note, dated on the thirtieth of the month. The declaration stated the date to be the thirteenth.

      Mnott,

    on the first day of term, had obtained a rule to amend the declaration by striking out the word “thirteenth,” and inserting the word “ thirtieth.” No person appearing to oppose, the motion was granted of course and without imposing terms.

      Van Vechten

    now applied to vacate that rule, and that it be ordered that the amendment be on the usual terms. This, he said, was necessary, because the plea of non est factum, which was then proper, might now be highly the reverse. The court was always disposed to set things right, if it lay in their power. They never could mean that the plaintiff, who had been guilty of a mistake in his declaration, should have liberty to amend that, and the defendant be held to a plea that might be inapplicable. Besides, there was ample time *to give a [*154] plea before the next circuit, and surely the court will not shut out the defendant from pleading de novo> when his first plea was the result of the plaintiff’s misstatement.

         These are, that the defendant be at liberty to abide by his plea, or to plead de nova, Bogert and M'Donald, Caines’ Prac. 120, in which case he is entitled to an imparlance, Holmes and another v. Lansing, Cole. Cas. 92, and costs up to the time of plea pleaded. So if he relinguisli his defence, he is entitled to costs. Wimple and another v. M'Dougal, Cole. Cas. 49. See Jackson v. Kough, post, 251.
      See Code of Procedure, secs, 172, 173.

   Per Curiam.

Let the former rule be vacated, and the plaintiff amend on the usual terms.

. Motion granted.


text:
    Gilliland against Morrell.
    All irregularities are waived by a defendant if he appear on trial. On judgment for non-suit nisi, the defendant should make a demand of his costs, with a copy of his rule annexed; and if not paid in 20 days, he may enter his judgment; if he do not so, the plaintiff will be regular in noticing for trial.
    Van Vechten moved to set aside the verdict in this cause, and grant a new trial, on an affidavit which stated, that in October, 1802, a motion was made on the part of the defendant for judgment as in case of non-suit; which, no one appearing to oppose, was granted as of course. That the judgment, thus taken, was, in the same term, set aside by the plaintiff, on the usual .terms of stipulating to try the next circuit, and paying the costs of not proceeding to trial. That the stipulation was entered into, the costs taxed, and demanded, but not paid, and now continued unsatisfied; that, therefore, and as the defendant’s only witness could not be found, he did not attend by himself or attorney at the last circuit in April. That the defendant had a good and substantial defence, as informed by hia counsel, which he verily believed to be true; that on the merits, the plaintiff could not recover, and that a material witness was wanting, without w-hose testimony the defendant could not proceed to trial, but which he could procure by the next circuit.
    Woodworth, contra,
    produced a certificate from the clerk of the circuit court, that the trial of the above cause was had on the eight day of April last, when Mr. Yan Yechten appeared for Mr. Fisk, attorney for the defendant. On thin he contended every irregularity was waived, and the verdict must stand, otherwise the chance of a verdict might be taken at any time after a little advantage obtained, and in case of a want of success, a motion to set it aside resort ed to.
   Per Curiam.

This is an application to set aside a verdict. There are many facts stated. With respect [*155] to the entry of *the rule for setting aside the judgment as in case of nonsuit, there may be some doubt. The clerk finds no rule entered, but as there was a stipulation filed, the court take it for granted that it was on the usual terms. It is necessary, however, that in all cases of stipulation, there should be a demand of costs; this demand should be accompanied with a copy of the rule, and if the costs be not paid in twenty days after, then the party may enter up judgment of nonsuit, and take the effect of his application. The defendant swears that he did present a bill of costs, but does not say it was with a copy of the rule annexed; this, too, was on the agent, and not on the party, or his attorney. The defendant, therefore, has not been correct in his proceedings, and if the 'demand was not regular, the plaintiff was regular in noticing his cause for last April, and bringing it on to trial. But, admitting that in so doing he had been guilty of an irregularity, the defendant’s appearing on the trial is a waiver of all advantage to which he might otherwise have been entitled. It was decided last term, in the case of Brain v. Rodelicks and Shivers, that if a party appear, he waives all irregularity. But it has been shown there was not any; and if there was, the conduct of the defendant has placed the case in the same situation as if there was not. The plaintiff, therefore, is regular. Against this is read an affidavit of merits; on such an affidavit the court will not set aside a regular verdict.. There is no irregularity; the defendant appeared, and has shown no excuse why he did not defend ; for if his witness could not have been obtained, the court, on the common affidavit, would have put off the trial. The defendant must take nothing by his motion.

Motion denied.

Lewis, Ch. J. absent.

       See Lowne v. Roose, 6 Cow. 394; Shattuck v. Chamberlin, 4 Id. 14. Chadderton v. Barkers, 6 Wen. 521; Howard v. M'Knight, 25 Wen. 688.

       S. P. See Day v. Wilber, 2 Caines’ Rep. 134.

       The rule as to paying of costs seems to be, that when a pari ■» asks a favor of the court, which is granted on payment of costs hy Mm, he must seek the opposite side and tender the costs instanter. Pugsley v. Van Alen, 8 Johns. Rep. 352. When the application is for a right, which is allowed, and costs ordered to be paid by the opposite parrty, they must be demanded with a copy of the rule annexed. When the application is for a right, which is refused, on payment of costs, &c., by the other party, they must be souglii ss in the case in the text.


text:
    Cogswell against Vanderbergh.
    When proceedings have been regular, a mere affidavit of merits is not sufficient ground to set them aside. In such a case, if there has been a mistake on which the judgment has been taken, the defendant will be relieved only on costs and terms,
    Woodworth, on the part of the defendant, moved to set aside the default, and all subsequent proceedings on two affidavits, made by the defendant and another person, stating that a copias ad respondendum, in this suit, was duly issued and served in the month of November last; that ii February following, the defendant called on the [*156] plaintiff, and ^offered to pay part of the debt if ho could have time for the residue; that this being agreed to, the defendant paid 300 dollars, and the plaintiff promised to stay all proceedings; the defendant’s affidavit further showed that he had frequently called on the plaintiff to settle the residue, but that he was either from home, or engaged in company, and had, notwithstanding his agreement to stop the suit, gone on, obtained a judgment by default, and taken out execution; that the defendant, relying on the agreement, had not employed any attorney, and the execution was for more than was due, credit not having been given the defendant for an account which he had against the plaintiff. The affidavit, Woodworth said in addition to its being supported by the deposition of another person, carried internal evidence of its truth. It was not natural to suppose that a man should pay, after an arrest, so large a sum, on account of the debt, under no kind of agreement, but leave himself open to an execution for the residue the very next moment. He, therefore, hoped the court would set aside the whole proceedings, as being in violation of every principle of good faith.

      Van Antwerp, contra,
    read a long affidavit by the plaintiff, denying the receipt of the money on any condition, and swearing to the justness of his execution; but the denial rested on his own testimony alone.
   Per Curiam.

This is an application to set aside the judgment, and all subsequent proceedings. The affidavits are very lengthy, and so far as they relate to merits, we put them totally out of view, for on that point they cannot be received, the plaintiff having been perfectly regular, according to the rules of this court. But the motion is made on the further ground of surprise. To this effect the defendant has sworn, and his testimony is corroborated by that of another witness to the same effect. On the other band may be opposed the positive denial of the plaintiff. If the weight of testimony be to decide, it will be found with the defendant. There has at least been a misunderstanding in this business. The defendant thought he paid his money that the suit might not go on, and therefore, did not make any defence. It is evident some great mistake has *been made; the plaintiff) however, is [*157] perfectly regular, and as each side may have thought himself right, the judgment and proceeedings must be set aside on payment of costs, pleading issuable, and taking notice of trial for the next circuit.

Judgment and proceedings set a side on terms.

         Whether regular proceedings shall be set aside on merits has, in our practice, been vexata questio. It is certain that the rule of “putting merits totally out of view” on such an occasion was acknowledged more than once before the decision in the text, Edwards ads. M'Kinsiry, Col. Cas. 124, and even in the case of bail desiring to stand in the place of their principal. Lansing ads. Gorham, ibid. 116. Subsequent decisions seemed to confirm its strength, Beekman v. Franker, 3 Caines’ Rep. 95, by their very exceptions; as when in favor of an administratrix, Smith v. Nitchie, Caines’ Prac. 221, since reported 2 Johns. Cases, 287, when from the mistake of the attorney either as to the time of pleading, Russell v. Ball, Caines’ Prac. 221, or of the term in which the writ was returnable, Gardinier v. Crocker, 3 Caines’ Rep. 139, merits were allowed to relax, and, if strongly made out, to supersede the rule. Giles v. Caines, 3 Caines’ Rep. 107. What it now is, may perhaps be gathered, by observing that where there are merits, and a trial has not been lost, a regular default will be set aside on payment of costs. Jackson v. Stiles, 4 Johns. Rep. 486. Davenport v. Ferris, 6 Johns. Rep. 131. Even where a trial has been lost, and a writ of inquiry executed, if from a mistake on a doubtful point, Bennett v. Fuller, 4 Johns. Rep. 486, or in favor of administrators or executors, to prevent their being charged * honis propriis, Phillips v. Hawley, 6 Johns. Rep. 129. Fenton v. Garlick, ibid, 287, the above rule as to merits will not prevail. In what the merits consist ought, however, to be set forth in the affidavit on which the motion is made, Wilkes v. Hotchkiss, 5 Johns. Rep. 360, or stated as “being a good and substantial defence on the merits, as advised by counsel.” Cannon v. Titus, ibid. 355. See the observations on these words when used in opposing a reference, ante, p. 151, n. (b), and the regard to be had to merits as laid down in Caines’ Prac. 222. .


author: Thompson, J.,

text:
    Hoffman and Seton against Smith.
    Want of funds belonging to the drawer excuses notice of non-payment, as well when the bill is accepted, as when not. A professional man, not employed by a party, is a good witness against him. If a defendant read part of an answer of the plaintiff to a bill of discovery, quc&re, whether the whole is made evidence ?
    This was an action by the second endorsee against 'the marker of a promissory note, dated the 11th June, 1795, payable one year after date.
    The facts were briefly these: the note was originally payable to one Thomas Cooper, who endorsed it to Nicholas Hoffman. When it fell due, Smith, the maker, being unable to take it up, gave N. Hoffman a bill of exchange on William W. Burrows, of Philadelphia, for the amount, which, when paid, was to be in satisfaction. In the mean time, it was agreed by all parties, that the note should be left in the hands of N. Hoffman, Cooper consenting to remain liable, if the bill of exchange was not paid. After these transactions, N. Hoffman being largely indebted to the plaintiffs, endorsed the note over to them on account. The bill of exchange was presented, and accepted, but not paid, upon which the plaintiffs commenced the present action. * The defendant pleaded the general issue, payment, and gave notice of special matter
    At the trial, the hand-writing of the different parties being admitted, the plaintiffs there rested their cause. .
    The defendant then read in evidence a copy of a bill in chancery, filed by himself against the plaintiffs, for a discovery and injunction, setting forth the preceding facts, and charging a want of notice of the non-payment of the bill of exchange, in consequence of which he became discharged, and N. Hoffman responsible to him for the amount, which he was entitled to set off against the note; for being endorsed after due, it was liable to all the equi< ties of the maker against the endorser. The defendant also read in evidence such part of the answer of the plaintiffs to the *above bill, as confessed the [*158] facts above stated, and the want of notice; on which he rested his cause, and moved for a nonsuit, the plaintiffs not having proved notice to him of the non payment of the bill.
    The plaintiffs’ counsel then proposed reading the residue of the answer, which, on the part of the defendant, was objected to, but overruled. On its being read, it appeared that Burrows had no funds in his hands at the time this bill, with many others, was drawn, but that he had accepted them to support the credit of the defendant, on his engaging to provide for their due payment. That the defendant had confessed this, and acknowledged he knew the bill was dishonored, as he had been unable to furnish the means he had promised. The answer further stated, that Burrows paid his acceptances, lent to the defendant till he was totally ruined, in consequence of which he became and continues wholly insolvent, having, however, large demands against the defendant still unpaid. The plaintiffs proved also, by the evidence of Mr. Troup, who had been professionally employed by Burrows against the defendant, that the debt due from the defendant to Burrows now exceeded 20,000 dollars.
    The judge charged, that the acceptance of the bill was prima facie evidence of funds in the hands of the acceptor, and made it incumbent on the plaintiffs to show the want of them, which, in his opinion, had been done. That if the jury should concur with him, they ought to find for the plaintiffs, but if they thought the want of funds not sufficiently established, they should find for the defc ndant.
    The jury brought in their verdict for the plaintiffs.

      It was now submitted to the court, without argument, whether the defendant was not entitled to a new trial on the following grounds:
    1. That after acceptance of a bill of exchange, notice of non-payment is always necessary, and the want of it .discharges the drawer.
    2. That the want of funds could not, after acceptance, excuse the not giving notice of non-payment ; [*159] and that *such want of funds was not sufficiently proved in this case, as the testimony of Mr. Troup, and that part of the answer in chancery which related to the deficiency of funds, were improperly received, and ought to have been excluded.

         Banks v. Colwell, cited 3 D. & E. 81. Brown v. Davis, ibid. Beck v. Robley, 1 H. Black. 89, n. (a). Sebring & Van Wyck v. Rathbun, 1 Johns. Cases, 331. Lansing r. Gaine & Ten Eyck, 2 Johns. Rep. 300. Hendricks v. Judah, 1 Johns. Rep. 319. Furman v. Haskin, 2 Caines’ Rep. 368.

       See Bickerdike v. Boleman, 1 D. & E. 410, 411, what is said on this point by Buller, J.

       Where the answer of either plaintiff or defendant is given in evidence against him, though the party adducing it may read only so much as suits his purpose, yet the whole is made testimony, if insisted on by the party against whom it is used. Lynch v. Clerke, 3 Salk. 154. Earl of Bath v. Bathersea, 5 Mod. 10. Glib. Ev. 51. But this does not extend to making those matters evidence in his favor which are stated in his answer merely as hearsay; Roe v. Ferrans, 2 Bos. & Pull. 542, nor, as it would scum, to those cases where the answer does not go to support the issue, but merely to establish a collateral point. Therefore, where the answer was introduced to prove the incompetence of a witness, by showing he had an annuity out of the land in question, the court refused to order the whole to be read. Sparin v. Drax, 2 Bac. Abr. by Gwillim, 622. In order to make an answer evidence the bill must be produced, to evince there is a lis pendens. Id. Ibid.

   Thompson, J.,

delivered the opinion of the [*160] court. *The notice to the drawer of non-payment, although in general requisite, was not necessary in this case, because the drawer had no effects in the hands of the drawee, and, therefore, could receive no injury from the want of it. The reason for notice failing, the necessity of giving it is superseded. The acceptance by the drawer made no alteration in the rule. Notice of nonpayment was not necessary because of no use to the drawer. Walwyn v. St. Quintin, 1 B. & P. 652. The proof of the want of funds was conclusive; it arose from the repeated confession of the defendant himself. Hor was there anj weight in the objection to the competency of Mr. Troup’s testimony, his information being received in the character of a friend, and not in that of counsel. The want of funds in the hands of Mr. Burrows was sufficiently proved, independent of any facts contained in the plaintiffs’ answer- to the defendant’s bill in chancery. Wilson v. Rastall, 4 D. & E. 759.

It is, therefore, unnecessary to say, whether the whole answer ought to have been received as evidence or not.

Motion denied.

         The rule dispensing with notice where there are no funds, was introduced for the purpose of defeating speculations on the chance of an exoneration in law, from the want of notice, by a set of men who drew bills without having any funds to answer them in the hands of the drawee. That it was ever adopted has been a source of frequent regret, though it has, by successive decisions, been fully established. But any effects in the hands of the drawee, at the time of drawing, entitle to notice, Orr v. M'Ginnis,7 East, 359, though the drawer be indebted to him more than the amount o! the bill. Blackhan v. Doren, 2 Camp. 503. See Rogers v. Stephens, 2 D. & E. 713. Wilkes v. Jacks, Peake, 202. De Berdt.v. Atkinson, 2 II. Black. 336. Corney v. Da Costa, 1 Esp. Rep. 302. Nicholson v. Gouthit, 2 H. Black. 609. Staples v. Okines, 1 Esp. Rep. 332. Dennis v. Morris, 3 Esp. Rep. 158. Legge v. Thorpe, 2 Camp. 310. S. C. 12 East, 171. Robinson v. Ames, 20 J. R. 146. Agon v. McManus, 11 Id. 180. Cruger v. Armstrong 3 J. C. 5. Anth. N. P. 55, n, [a].


author:
      Per Curiam.
     Kent, J.,

text:
    Hawkins and others against Bradford.
    On a reference, if a receipt given after the rule made, be offered in evidence on the part of the defendant, and objected to by the plaintiff, the special matter and facts should not be returned to the court, but the referees should admit it and make the report upon it, that the party aggrieved may bring it fully before the court. Quaere, if a special return of facts without a decision be, in any case, a report within the meaning of the rule.
    Van Vechten moved for a rule against the referees in this suit, to show cause why an attachment should not issue against them for not making up their report, or that they be ordered so to do. The affidavit .on which the application was founded set forth that at the meeting of the [*161] referees, *after the counsel of the plaintiffs had opened their case, and stated the nature of their demand, the counsel for the defendant presented a plea to the referees on receipt of which they refused to hear any testimony on the part of the plaintiffs, and neither reported any thing due to them, nor did they make any report in favor of the defendant.
    Spencer, contra,
    resisted the application, and submitted to the court a special statement of the matter in the nature of a report. The facts as there stated were, that after the due assembling of the referees, &c., they called on the counsel of the plaintiffs to specify his clients’ demand, which, excepting the question of interest, was originally admitted by the defendant’s counsel to amount to about 1,400 dollars, but that there was a defence, which would supersede the necessity of proving the exact sum claimed, though it might be ascertained by the books and bills before the referees; that the defence was, payment of 1,469 dollars in full satisfaction, for proof of which a receipt was offered in evidence, and an acknowledgment, under the hand of the plaintiffs’ attorney, admitting certain things which the subscribing witness would have sworn to, if present. That the plaintiffs objected to the admission of this testimony, but before the question of admissibility could be argued, the defendant produced- the following plea: “And now at this day, that is to say, on the 19th day of July, 1803, before George Hale, Samuel Edmonds, and Roswell Hotchkis, referees herein appointed, it being the first day and time of their meeting hereon and upon the matters referred to them in the above cause, comes the said John, by Erastus Root, his counsel, and says that the said Joseph, &c., ought not further to maintain their said action against him the said John, because he says, that after the 14th day of May last past, from which day, day was given to the said referees to make their report until the first Monday in August next, before the justices of the supreme court, &c., at the city-hall of the city of Albany aforesaid, the aforesaid action was continued, to wit, on the 28th day of May, in the year aforesaid, at the city of Albany, in the county of Albany aforesaid, the said John did pay to the said Joseph, &c., the sum of one ^thousand four hundred and sixty-nine dolías in [*162] full satisfaction, and discharge of all and singular the matters and things, and the sums of money due to the said plaintiffs, and for the recovery whereof this aforesaid action hath been brought and prosecuted, and which said sum of one thousand four hundred and sixty-nine dollars was then and there accepted, taken and received by the above plaintiffs, in full satisfaction and discharge of all and singular the matters and things, and of the sums of money due to them, and for the recovery whereof this aforesaid action hath been brought and prosecuted, and this, &c., wherefore,” &c. That thereon the referees adjourned the further hearing, and returned the said plea.
    This was a report; it was all the referees could do, as they could not undertake to decide whether the plea was good or not, that being matter of law.
   Per Curiam.

The motion is that the referees be ordered to make a report, they having, instead of that, made a special return of all the facts, to which they have annexed the plea of the defendant, offered to them at the hearing. The application must be granted; therefore, let the rule bq that the referees report by the first day of next term.

Kent, J.,

observed, that the bench were of opinion the referees should, in making up their report, allow the receipt, if they believed it genuine, and to have been fairly obtained, in order that the plaintiff, on whose affidavit the application was made, might, if he thought himself aggrieved, or that it was improper to allow a receipt given after the rule to refer, apply to the court to set aside the report on that ground, at which time the question might be fully' argu^d.

fggP The Court desired , that all cases submitted to them without argument should • be so endorsed, because ~ they might otherwise be laid aside under an idea that an argument would take place.

       Attachment is the proper course to compel a report, where referees refuse to make one. Thompson and others v. Parker, 3 Johns. Rep. 260.

       See Code of Procedure, sea 212.


author: *Thompson, J.

text:
    Jackson, on the demise of Le Roy and others, against Sternbergh.
    Though there has been evidence on both sides, a new trial will be granted, if it appear that justice has not been done.
    This was an action of ejectment, brought for the recovery of lands situated in Scoharie, in a patent [163] granted *to Myndert Schuyler and others,' tried at the Scoharie circuit, on the 30th of May, 1802, before Mr. Justice Thompson.

    On the trial it was admitted by both parties, that the title to the premises in question was once vested in Rip Van ¡Óam; and that it was included within the equal one seventh part of the said patent, which fell to the share of Van Dam, who was one of the patentees.
    Also that the title of Van Dam to the whole of the equal and undivided one seventh part of the said patent, which included the premises in question, was legally conveyed by him to Johannes Schaeffer, Henrick Schaeffer, Teunis Swart, and Henrick Van Valkenbergh.

      The plaintiffs gave in evidence a deed from them to Jonas Le Roy, .-dated January, 1780-31, releasing “ all the one full and equal seventh part of all the undivided lands between Scoharie river and the hills, from Fox’s creek to a place where two rivulets or runs of water come in one, and fall ,or run in Scoharie river, by north of Garlickt Town.” After this, was adduced the will of Jonas Le Roy, made in January, 1749-50, by which he devised the one half of the lands owned- by him in Scoharie, to Levinus Le Roy, and the .other half to David Le Roy, after the death of Maria, his wife. It was then proved that David died, leaving an only son, named William, one of the lessors of the plaintiff, in behalf of whom, Adam B. Vroman further testified that, about fourteen years since, the defendant himself showed the corners of the lot called No. 156, and its boundaries, 'which included the premises in question, and said it was Le Roy’s lot. That one of the lessors, Levinus Le Roy, about- the same time, requested the witness to take charge of this lot, and see that there was no waste of timber. That it had always been called Le Roy’s lot. That it had never been cleared or fenced till about four or five years since.
    Peter Becker deposed, that Le Roy’s lot lay north of Fox’s creek, and south of Crab’s hill, between the hills and Scoharie creek, but he did not know whether lot No. 156, *lay on the hills or not. It was proved [*164] by three witnesses that the defendant had sworn, before a magistrate, on a certain occasion, that he had been in possession of the premises eight or nine years, that he held the west end of the lot under one Henry Lawyer, and the east end he claimed in his own right, amounting to about fifteen or nineteen acres, and also that the defendant said it had once been Le Roy’s lot.
    Thomas Machín, a surveyor, swore, that in June, 1801, he surveyed lot 156, at the request of one of the lessors, and that, according to his survey, the premises were included in that lot.

      On the part of the defendant it was contended, that the premises in question lay on the hills, and were not included in the boundaries above mentioned, to prove which several witnesses were examined.
    Nicholas Sternbergh swore he was seventy-nine years old, and was brought up near the premises; that forty or fifty years ago Jonas Le Boy, under whom the lessors of the plaintiff derived their title, showed him the bounds of the land above described ; that he, the witness, was well acquainted with the premises in dispute, and knew they do not lay within those bounds, and Jonas Le Boy had told the witness, that his (Le Boy’s) deed did not cover the premises; that he was easterly to the hills only.
    Peter Mann, a surveyor, deposed that he run out lot 156. and the premises were not included in it.
    Nicholas Sternbergh and David Sternbergh deposed, that they were acquainted with the premises in question, and that they are situated upon what are commonly called the hills, and are not included in the bounds of Jonas Le Boy’s deed. One witness swore that the defendant had from time to time, for forty or fifty years past, cut wood for fire and fences on the premises; and another witness testified that the defendant had cleared and cultivated the premises for' about twenty years last past.
    On this evidence the jury found for the plaintiff.

      Tiffany

    moved to set aside the verdict as contrary to law, evidence, and the sense of the court, and to grant a new trial.
    Gibhard, contra.
   *Thompson, J.

delivered theopinion of the court. The plaintiff deduced a title to a certain piece or tract of land, lying in Schuyler’s patent, and which was known and distinguished by lot No. 156, and bounded as follows: “ All the one full and equal seventh part of all the undivided lands between Scoharie river and the hills, fiwn Fox's creek to aplace where two rivulets or runs of water conx in one, and fall or run in Scoharie river, by north of Gfarlickl Town'' The only inquiry on the trial was, whether the prenii.es in question were comprised within the boundaries above mentioned.

The jury found a verdict for the plaintiff, and application is now made for a new trial.

The description of the premises to which the plaintiff deduced a title, is vague and uncertain; they are described as lying beiwec.¡,' Scoharie river and the hills, from Fox's creek to aplace whera ¡wo rivulets or runs of water comem one, and fall or run in Scoharie river, by north of Qarlickt Toiun." This uncertainty may account, in some measure, for the different results in theyvrveys made by the opposite parties, and for the contradiction which appears in the testimony. The plaintiff’s eastern boundary appears to be the hills; and the inquiry was, where is the dividing line between the flats and the hills ? TK> testimony on the part of the plaintiff, except that of Adam B. Yroman, is principally as to general reputation, that this was called Le Boy’s lot. Mr, Yroman, however, swears, vlrnt the defendant showed him the corners of lot 156, and the boundaries, and he, the witness, said, they included the premises in question. On the part of the defendant, Nicholas Sternbergh swore, that the plaintiffs’ ancestor, under whom they' claimed as much as forty or fifty years since, ^pointed out to [*167] him his boundaries, and that they did not include the premises; that he was born and brought up in that neighborhood, and had always been well acquainted with the premises; that Jonas Leroy, the ancestor of the plaintiff, expressly declared to him, when he was pointing out his boundaries, that his deed did not cover that' land, which is now in dispute. It appeared also from the testimony of two other witnesses that the lands in dispute lay on what always has been called the hills, and that the defendant has occasionally cut timber on the premises, for forty or fifty years past. The testimony is certainly very contradictory, but none of the witnesses appear to have been impeached. Their testimony, however, may make a very different impression when put on paper, from what it would to hear them examined. Judging only from the case, the weight of evidence is with the defendant. And although this of itself is not a sufficient ground for granting a new trial in all cases, yet from the whole that appears, there is well founded reason to believe justice has not been done; and that another examination of the cause ought to be made before the possession is changed; we are therefore, of opinion, that a new trial ought to be granted on payment of costs.

New trial granted.

       See ante, p. 25, n. (a).


text:
    Renaudet against Crocken.
    If a trespass be committed in a town, which before action brought is subdivided, the trespass may be laid as in the original township. A surveyor acting under an appointment by an attorney, may testify without producing the power. An agent who has promised to refund money, reeeiyed on account of his principal in case a verdict pass against him in any particular suit, is a good witness in that very cause.
    This was an action of trespass quetre clausum fregit, tried at the May circuit for the county of Saratoga, in the year 1803, before Mr. Justice Kent. The only questions raised for the determination of the court were,
    1. Whether, if a trespass he committed in a part of a town, which, by a division made before the commencement of the action, is annexed to another township, the plaintiff can declare as for a trespass committed in the township where the locus in quo was originally situated ?
    2. Whether a surveyor, acting under the authority of a person appointed by virtue of a power of substitution in a letter of attorney, ought to be admitted to testify to tho facts of such survey, without showing the letter of attorney, though it was acknowledged to exist?
    *3. Whether an agent, having received several [*168] sums of money on account of trespasses alleged to have been committed on the lands of his principal, and which he promised to refund if he did not recover in the present action, was a competent witness.
    The fourth was merely as to the weight of testimony.
   Livingston, J.

delivered the opinion of the court. 1. The trespass having been committed in 1797, at a place then within the town of Saratoga, the plaintiff had a right to allege it was done in that town, according to the truth of the case, without regard to its subsequent division. The j ndge, therefore, properly overruled this objection.

2. It was not necessary to produce the plaintiff’s letter of attorney to Beriah Palmer. The object of Baldwin’s testimony was to show that Jacobs lived on a lot of the plaintiff’s, and acknowledged his right; that it was then regarded as the plaintiff’s, taken care of as his, and possessed under him; whether this had been done under a power or not, was immaterial. The ownership and possession of, or under him were the important facts to be established.

3. Beriah Palmer was a competent witness, notwithstanding the agreement he may have made to refund the moneys he had received from other trespassers, in case the plaintiff failed in this suit. Such moneys/ must have been received for the plaintiff; and he only, and not the witness, would be affected by such refunding.

4. If the jury believed the plaintiff’s witnesses, and w'e are to presume they did, the verdict is not against evidence and ought not to be disturbed.

Judgment for the plaintiff.

         The witness was equally liable to both parties; to the plaintiff, in case of a recovery, for money received to his use; on the other hand, to the trespassers in the same form of action, if the verdict was against him. See Milward v. Hallett, 2 Caines’ Rep. 84, n.
      See New York Code of Procedure, secs. 398, 399.


text:
    Pettingal, qui tam, against Brown.
    In a qui tam notion under the statute of usury brought after lapse of a year, to recover the excess of interest paid, the borrower is, after having discharged the principal, a good witness.
    This was an action of debt, under the statute for preventing usury, brought in the common pleas for the county of Oneida, to recover the excess of interest paid over and above the legal rate allowed.
    The facts were, that one Joseph Loomis borrowed a sum of money from the defendant, and by way of security assigned to him a lease as a pledge, accompanied by a promissory note (intended to operate as a bill of sale) [*169] *for a horse and a cow. On repayment, the assignment and note were, by an agreement executed by both parties, to be void. They were, therefore, on the loan being returned, given up, and the agreement cancelled by tearing off the names and seals affixed.
    The year limited by the act (1 Rev. Laws of N. Y. 57, 82,) for the party paying to bring his action having elapsed, the suit was by a third person.
    To prove the usurious contract, and payment, Loomis the borrower was called on the part of the plaintiff: he was objected to by the defendant’s counsel as incompetent, and his testimony being • deemed inadmissible, the defendant obtained a verdict.
    For thus excluding the evidence of Loomis, .he plaintiff tendered a bill of exceptions, on which the proceedings were brought up, and the question now was on the competency of Loomis the borrower.

      Gold, for the plaintiff.
    The only question "for the court to determine is, whether, after a man has fairly.discharged, to its utmost extent, a usurious contract, by payment both of principal and interest, he shall not, in an action given by the statute to a third person, be competent to prove the usury. It is to be observed he can have no species of interest; the money is paid; the debt,.therefore, cannot be avoided, nor is he interested in the event of the suit, .for as it is brought by another person, it can be only to the advantage of him, and those for whom he proceeds, that it can enure. This point is settled in the case of Abrams v. Bunn, 4 Burr. 2251, so far as it is an authority in this court. The objection that a witness shall not be permitted to testify any thing which may invalidate an instrument .to which he has subscribed his name has, by later decisions, been restrained to negotiable paper alone. Baker v. Bent, 3 D. & E. 27, overruling in that' respect the judgment of Walton v. Shelly, 1D & E. 296. Therefore, the present case is clearly out of any of those reasonings on policy, &c. because the instruments were not negotiable, and were satisfied. Indeed how far they ought under any circumstance to prevail may be a question since the determination in *Jordaine v. Lashbroke and another, 7 D. & [*170] B. 601. If the question be open in this court, it may be, with great justice, contended, that the case of Walton v. Shelly is an enroachment upon the landmarks of evidence, but howsoever that may be, the present is a very different question, for it does not go to the ivalidating any instrument, the money on those given having been paid, and the whole coming within the authority of Abrams v. Bunn.

    Brees, contra,
    Public policy requires that no person who has signed an instrument shall be, in any cause, admitted as a witness. to invalidate it; because no man shall be allowed to testify against his own act. By this very court, in an action by the assignees of a certificated bankrupt to recover back the amount of a note given on a usurious consideration, the bankrupt was, in July term, 1802, held an incompetent witness to prove the usury. He was there clearly disinterested; his property was assigned to his assignees, and had they recovered, the amount of the verdict would have gone to his creditors. The case in Burrows applies to transactions where a written security is not given: there the borrower may be a witness ; and to the same effect is 2 Hawk. 386; 3 Woodd. 393. B ut where the contract is by writing, no one whose name is upon it can be received. Walton v. Shelly, 1 D. & E. 296. 2 Hawk. 387. 3 Woodd. 303. The point, therefore, upon the authority of Lord Mansfield, may be considered to be at rest. The distinctions since taken are subsequent to the revolution, and, therefore, not binding here. In them it is also to be observed that the judges are far from being consistent. Buller, 3 D. & E. 36, restrains their admissibility to cases of negotiable paper; Lord Kenyon, 7 D. & E. is for receiving in all cases the testimony of witnesses who have no direct interest; Ashhurst, J. however, totally dissenting. It is true the reasoning from policy may have been stronger in the case of negotiable paper, but as the law now stands, and the assignment of dioses in action constantly practiced, the principle has of late been much narrowed. If a [*171] written contract *(not negotiable) be assigned, the assignee “ may sue in the name of the original claimant, and such original claimant, shall not be permitted (at law) to undo his own transfer, or to obstruct the suit of the plaintiff." 2 Woodd. 388.

      Gold,

    in reply, was stopped by the court.

       The decision there was, that the payee of a bill of exchange may, in nil action by an endorsee against the acceptor, prove the bill “ void in ita creation.” Quœre, whether this distinction be not perfectly sound; for tho contract remains ? Robinson v. Bland, 2 Burr. 1077.

   Per Curiam.

We are unanimous that the judgment of the court below be reversed. This case does not come within any of those cited in favor of the defendant. The paper here is not only satisfied but destroyed. The action is not to annul the security, or take away a fair consideration from the defendant. There is no question of interest. For that, to render a witness incompetent, it has before been settled, that the interest must be in the event of the suit. By this determination neither public policy, nor the interest of the witness, can be affected ; he, therefore, was fully competent.

Judgment reversed.


text:
    Jackson, on the demise of Williams and others against Chamberlin and others.
    When a plaintiff resists a motion as in case of nonsuit for not going to trial, if he insists on his having been unable to try his cause, and others have been heard, he must show that they were older issues.
    Bhssel moved for judgment as in case of nonsuit, for not proceeding to trial. The affidavit stated, that issue was joined previous to June, 1802.

      Van Vetchen

    read an affidavit, setting forth that thirty-five cases were on the calendar, of which only thirteen were tried, but from the length of those, and the criminal business before the. court, the present action could not be heard.
   Per Curiam.

As many causes were tried, it is incumbent on the plaintiff to show that those issues were older than his. Let the defendant take the effects of his motion, unless the plaintiff stipulate and pay costs.

Motion granted, nisi.

Lewis, Ch. J. absent.

       See M'Vieker v. Alden, ante, 58 ; Weed v. Ellis, ante, 115 ; Jackson v. Valentine, 3 Caines’ Rep. 128; Hawk v. Taylor, 10 Wen: 592.