« ForrigeFortsett »
The following RULES Of COURT having been made since the Publication of those in Mr. ColeMan's Cases Of Practice, the Reporter thought they might be acceptable to the Profession.
r| THE court said to the clerk, that when thefee■»■ bill says that in certain cases there shall be but one taxation of costs, it means that in the case xvhere plaintiff might consolidate, and yet proceeds separately, he shall have costs taxed but in one suit, and may elect the suit. Also decided, That the plaintiff is not entitled to charge entries on roll until the cause has progressed to an issue or judgment.
Ordered, That henceforth non-enumerated ?notions shall be entitled to preference only on the first, second, third, and two last days of each term, and that on all otlier days, enumerated motions shall have the preference.
Ordered, That when a plaintiff stipulates to bring his cause to trial on payment of' costs, he shall have hventy days, after a demand made by the defendant, or anyone on his behalf, accompanied with service of a certified copy of the rule to pay the costs, and of the taxed bill, to pay the same; and the defendant, onjiUno an affidavit of such demand and non-payment, may, at the expiration of the said twenty days, enter judgment, as iri case of a nonsuit, as of the preceding term.
SUPREME COURT, Saturday,!
Ordered, That every attorney, when he gives notice of the argument of any enumerated motion, shal[ furnish the clerk residing in the city where the court shall next he held, tvith the dale thereof j who shall, by the frst day of the term, make a calendar of all causes which may he noticed, according to such dates. Causes of the same dale, shall be placed on the calendar in the order in rvhivh they are received by the clerk. Each cause shall be argued according to its standing on the calendar, if the party entitled to bring it on be ready; otherwise it shall lose its preference, and not be called again until all the others are disposed of. The attorney of cither party may give notice of the argument. If any cause be inserted on the calendar during the term, it shall not take place, whatever be its dale, of any that are on it at the opening of the court.
Ordered further, That to every case there shall be added a note of the questions to be made, and to them the argument shall be confined. If, however, any facts in the case give rise to other questions, these also may be argued, unless the adverse party object that they are facts not appearing material to a dis~ cussion of such new questions, in which case they shall be abandoned, or the case referred for amendment, if the court shall think it necessary.
ARGUED AND DETERMINED
SUPREME COURT OF JUDICATURE
STATE OF NEW-YORK,
In Acgtjst Term, in the Twenty-seventh Year of our Independence.
Jotham Post against William Wright and Robert
, , , , , , ALBANY,
N inquest had been taken in this cause, at the last Auguft 1803.
sittings, in June, at New-York,
HOFFMAN moved to set it aside, on two affidavits; one .„ .
... , . Wright & Bu
made by the plaintiff, which stated, that he verily believed chan.
n* hid a cood, substantial, and legal defence; the other by
♦J. , • , rTM . . r , , , 'If acaufc ha»
tne counsel m the cause. This last set forth, that he was been duly fet
counsel for the Humane Society of New-York, and, in that d°"ca"endir,e
capacity, obliged to visit the gaol on Monday in every week; caUed"^''dc
that this cause being noticed for trial on a Monday, he came fendant doe»
, r t.i • i • 1 a' not aPPcar nor
into court instantly after discharging his duty to the Society, hiscounfd who
*hen he found an inquest had been taken in the suit; that he, the plaintiff
on the same day, wrote to the attorney of the plaintiff, of- "VI "which"'
fering to pay all the costs of the inquest, and to engage to try the [0UrlJ'i'1
the cause in the then sittings, if the plaintiff would abandon though merits
1. . , _ , , - ° . . befworn to, if
nis inquest, which he refused to do. the abfence ot
Hoffman also observed, the calendar had been gone through bVnot account"
more than once, and that the plaintiff needed not to have lo$t ed *"•
fte sittings but for his own obstinacy.
ALBANY, Woods relied on the counter affidavit of the plaintiff's atAuguft 1803. 111
v^- Y-^/ torney, which stated, that the cause was duly set down in its
p£ft order, on the day-docket; that it was regularly called
Wright & Bu- an(i tried; that when called on,' ——- 'J i""-' • , esquire,
was in court, and in the hearing of the deponent, said he was
of counsel for the defendants', but as he did not see his clients,
nor any of their witnesses, he would not appear; that on this
the defendants were called, and an inquest taken.
Woods remarked, that, if after these facts the inquest should be set aside, there would be no. end to these applications. A defendant had only to keep himself and his witnesses, or even his counsel out of the way, and be sure to gain a term whenever he pleased.
Per curiam. All reasonable notice to attend and defend the Suit, was given. The cause was on the day-docker) artl there is no kind of excuse why the defendant was absent. He had a counsel in court, and might have been there himself, with his witnesses. The defendant therefore can take nothing by his motion.
N. B. Hoffman urged strongly the rigour of the practice, that it would operate only against the attorney of the plaintiff, that this was the first instance of such strictness. The court answered, there must be a first time in all proceedings, that they found it necessary to enforce their rulel, arid had made a determination so to do, as the only mode of having them obeyed.
Radcliff and Livingston, justices, absent.
John P. Ryers against Wiliidrh Hiltyer. It a notice of SPENCER moved, on the common affidavit, for jii< aonfuil "be ti- as 'n case °^ nons11'1 f°r not proceeding to trial, tied vcrfui in- Hoffman resisted the application, because the notice was
Head or ad fee- , fr - 'ii k- rtP*!
tam, and the titled William Hillyer against JohnP. Ryers, instead 01 r»"' ed rightly ti- liam Hillyer, ad. sctm. John P. Ryers: this lie said was fatal, iliU b^g"od.Ce there Deing n0 such suit in existence as the one in whicn ft«
notice was given, but he added, he would not have urged it
except from its being one of Mr. Colden's causes, whose stale
of health the whole court knew.
Spencer, contra, observed, that there could be no force in
the objection, unless it appeared that the party had been
mu'led:f The notice was for judgment as in case of nonsuit ALBANY,
for not proceeding to tnai, therefore it must have come from \^-^^~^y a defendant. In the neo^nlace, }t was qn an affidavit, a copy >Ry°TM whereof w^s annexed, and ,that affidavit was rightly entituled. HUlyer.
It is a mere question of jjrho shall pay costs. There has been ~ .
, ""' ''? ', "r , 1' .. , '■' •Onthefame
ao countermand, and the defendant kept all. the circuit with principle
r- •■ ■ where a notice
US Witnesses. of executing a
##nan. As thjSK.the.first default, will the court oblige .^Turfdl^
us to stipulate? lheI4.thA°M
» Jan. mil. wit
Per curiam. Stipulate to try at the next circuit for the given thecourt,
. rxr v 1 J L /, of C.B.refufe<l
aty and county of New-York, and pay the costs of the pre- to fet afide the
1- - execution of
|gTJfaBpi»catJ0ll. the writ be
JladcjifF and Lirirgstqn, justices, .absent, ^on^thfr
. day, faying it
&m£$ 3c^idt,iqLn th,e d^rrn^e pf William Rickets defendant Van .ComUandt, and JRhilip :Yan Courtlandt,. teen mSied*■"
'. r Batten «c Har
against wfon 3, Bo». a» •Matthias »Buckhout and Abraham'Buckhout.
THE issue in this cause had been joined in January 1801, if therebe*
and notice of trial given in the June following: it however proceeding to
did not come, on, in consequence of the defendants'applying antmuftavaii
ibr a commission to obtain testimony from Virginia. On the ^""g^0^ "0
arrival of the commission in that - state, it was found the tunity; if he
t 1 rr i ■ r 11 j do not it will
wirnes3had removed into Kentucky, whither he was followed, bcawaiverana and his evidence to *he interrogatories taken on a deposition, Co,^ if h'TMaf_° made before two justices of the peace. A copy of this, ac- f'r"ula^n,"n0,vc companied with an affidavit of the facts, was served on the as'" J«& °* plaintiffs' attorney in August 1802, and communication at the same time made, that a regular commission would be sued out and sent into. Kentucky. On this the plaintiffdid not notice for trial; however for not proceeding to which,
Woods now moved for judgment as in case of nonsuit!
'Spencer opposed the application, asjbejng too late, insisting it pught to have been made thet\ery §rst.t§rm after,the neglecV
Per curiam. The defendant has not accounted for his delay; if that be, not done, and the application be not immediately after the laches, the default is waived, and cannot now be taken advantage of.