« ForrigeFortsett »
Woods hoped the court would order the plaintiff to stipulate.
Pct curiam. He is not bound to stipulate.
Spencer prayed costs for resisting the application.
Per curiam. Let the Plaintiff take them.
Ordered, That the defendant take nothing by his motion, and pay the plaintiff his costs of opposing.
Radcliff and Livingston, justices, absent Peter A. Camman against theNew-York Insurance
. Company. THE plaintiff had, for himself and several other persons with whom he was variously interested, effected eleven policies on distinct parts of the cargo of the same vessel. The name of the plaintiff was in each insurance, but associated with different parties, according as he was connected. Tbe point in dispute was the same in all.
Hoffman moved to consolidate the actions, or to stay proceedings in ten of the suits till the eleventh was determined; the defendants being willing to pay on the residue, if that should be determined against them. The object of his endeavor was, as he said, to save the enormous costs which would otherwise accrue.
L. Ogden. The contracts are several; and though a number of actions on one policy will be consolidated, that is because the contract is one, and therefore the very reason of the practice in such a case, is sufficient to overrule the present application.
An application was made by myself to this court, for leave to consolidate five actions on five promissory notes to the same plaintiff, and refused, because of the diversity of the contracts.*
Per curiam. The contracts being separate and independen it is not a case for consolidation, and not to be distinguished from that of the notes. There never was an instance of consolidating different policies.
Radcliff and Livingston, justices, absent.
_ held to ♦ By the praaice of the Engllfh courts, if the defendant n<;d ^ bail in two anions which might be joined, the plaintiff wnll«OI?», eonfolidate and Iutc to pay the coftj cf the application. Cecil v. B f V. & £. 639.
James Shuter against Richard S. Hallett. $t**"Z
D. L. OGDEN moved for a rule to vacate the rule for a commission which had issued in this cause in the spring of 1802. The facts, as appeared by affidavit, were these:
A commission had issued at that time, in which the de- if the defendfendant had joined, but not being returned, another was sued TM'*comniffiout in November last, and as there were no hopes of the first °":,the C0UI?
r will not on tie
being returned, the parties agreed that the testimony taken plaintiff's apt
, ii-i 1 . , , . plication va
on the second, which was on the same interrogatories, should cate the rule by
be read in evidence on the trial. After this the cause was duly g^'nted' but
noticed, but the judge refused to let it come on, as the coun- J*"1 gnn\ onc
se! for the defendant had joined in the commission. tri»' notwith
_ . ,_ ... , Handing the
Per curiam. The commission is as much the defendant s commiflioro as the plaintiff's, and he may take the benefit of it on trial. We cannot therefore vacate the rule, but the plaintiff may have one to proceed to trial notwithstanding the commission.!
Radcliff and Livingston, justices, absent.
Bethuel "Way and Hannah his wife, against Nicholas Bradt.' IT was said by the court, in this suit, that when a Judge CoSti on a circuit has not time to try a cause, the costs must abide ioeerent of the suit.
Radcliff and Livingston, justices, absent:
Ebenezer Weed, by Noah Weed, his guardian. against Caleb Ellis. Per curiam. A younger issue being tried, is not always A younger iiconclushre that a cause might have been brought on. The TM^tcn.,'t" * tourt will sometimes take up a cause they may think short, older might when they will not enter into a long one. heard.
Radcliff and Livingston, justices, absent.
. Court will noc
Joseph Grover against Benjamin Green. dtfeharge on
"• & J motion, a per
THE defendant was attending a reference, under a rule fo" ,rrefted.
« ... while attend
•f the court of common pleas for Cayuga, in a suit wherein ing a reference ligua^'3. he was IJaintifl' and ^ present plaintiff .defendant, when he (Green) was arrested by Grower, on a wjpt o.ut .of j^bis court. Emmott moved for a ride that the defendant be dischargr pifij*, if^e ed out ^ custody on .common bail, the plaintiff having Sapping?'" abusedthe process of the court, but no notice had been hutj^iiiopry given of .the motion.
r '° under an order
t See Br3in Ti. Roddick* and Shiteri, ante 73» of fhe "X""1""
o&Ysaiui?. Per curiam. By this means any body may get himself
Emmott. If the affidavit be false, the party may beindidled for perjury.
Per curiam. But the plaintiff may Jose his debt. Take a rule to shew pause the first day of n^t term why he should not be discharged, and in the mean time let proceedings be staid.
Radqliff and Livingston, justices, absent.
Hugh Lackey and Joshua Briggs against Daniel M'Donald. rtndantcom- THE plaintiffs, in July .1802, had stipulated to try this JSr'whfthhe is cause at the next circuit court, and .did not do so. tbc'fta"11 ri- ^' ®* Hildreth, on tms ground, now moved for judg
fon, the plain- ment as in case of nonsuit.
tiff may difcon- _. • _.. ... .
limie without 'bchoenhoven read an affidavit, which was not denied, .stat
cottT.^ ° 'ng that the defendant, after the commencement of the suit,.
and before a trial could be had, was sentenced to the state
prison, where he still .remained, and prayed to discontinue
without payment of costs.
Van Ness, amicus curiae, mentioned, that when the defendant rendered proceedings useless, the court was always disposed to permit a plaintiff to discontinue without costs. In Jackson on the demise of Ludlow v. }Vebb, after issue joined the defendant abandoned the possession, and the les^ i*or of the plaintiff having entered, did not notice the.cau^e for trial. The defendant then moved for judgment as ip •case .of ..nonsuit, but the. court denied his motion, and g3ve leave to discontinue without payment of costs.
Per curiam. The opinion of the court is, that sufficient has been shewn to prevent the judgment,of nonsuit. The defendant .has by Jus .gwji ad deprived, thapjaintifs of that fereefy which titey might nave had against Ris person; his ALBANY, Bmt^ otit of theft redcfc, afrtd ftrf bf his own act. It is ^^f> tot therefore neCeSsary that they shotrfd proceed ahd incur uBcJl,)* Ifcpertces for notfnng, as there fs n6t ariy property from '•
#He«cethey can be ferriArifsetf. The plaintiffs therefore ire etttHled to ti&cotitfrru'e,- and xfritiicnii costs:
Radclfff ahd Livirtgstoriy justice^,- absent.
Racfre] Malir* against Ephrarm Kinney. The safrie agdirist Nathan L&ffe. THESE causes Were noticed for trial at Ore circuit held p£wf for Ontario in June 1802. The defendants attended with J^^,,. fitw witnesses, brit the illaintiff ridt Bringing oh the cati- tion he reftoiw
■" 1" r 6 6 the defendant
tts, die defendants agreed to watte taking advantage of it, to all rights a* provided the plaintiff' would consent that the two above suits the ftipuiation ifcottM abide the decision of i case made in one By the sarfie ^J0,eDter,<i pk'mtiff against George Brown, which turned on the sarfie point, arid had; together with another of the same sort, been tried. The plaintiff acceded to the ptbposition, but at the hat term applied to the court to be released from his engagement. This the court was pleased to order.
Emmott now moved for judgment of nonsuit, and that the plaintiff pay the costs hot only of hot proceeding to trial in 1802, but those also for not trying at the last circuit. He tbhtended that as the agreement was dorfe away on the apjtocariori of the plaintiff, the defendant had i tight td those toSri which he waived only in consequence of that agreement: The agreement was the consideration of the Waiver, and die consideration beihg taken away, he had a right to IniiStbn not waiving. Then as to the costs bf the last circuit, ft was clear he Was entitled; because, as the plaintiff ka3 Been released arid had ndt tried, ft was manifest he was in default ahd c'dsts due.
Stuart c'ontrA, shewed dn affidavit, that the rule to distliarge the agreement was made at the latter part df the last term, and that from the late information he received of it, he could not avail himself, at the last circuit, 'of die advantage it afforded.
Per curiam. The application is for judgment as In case of nonsuit, and to pay two sets of costs; those of June
On id. fa. notice of entry of the rule to appear and plead need not be Riven, as the fcrvice of the ft-i. fa. is notice nf itf.'lf, and the default may be entered on expiration of the rule; but judgment cannot be entered till four days after, if it be, the judgment w!llbefetaUd<",. and the default if regular, ftand. No default ever fet atide when regular, except accounted for to fitisfa<5tion of the court.
1802, and those of the last circuit. Four causes were depending: Two were tried, and, after the court rose, there was,a stipulation that the two causes not tried, should abide the same event as those which had been tried. An application was made in May last to be relieved; that the two causes not tried might be restored, and the plaintiff not bound by his stipulation: This was ordered, and the causes restored as in June 1802. If the plaintiff was relieved, the defendant was also; and then the stipulation being vacated, the causes must stand in the same situation as in June 1802. If the defendant had then applied, nothing appears why the rule should not then have been granted, at least a rule to stipulate and pay costs. The only reason to e*cuse now offered is, that the plaintiff did not receive notice of his own rule. Both circuits mentioned have passed without trial; therefore the defendant must have the effecT; of his motion, unless the plaintiff stipulate to try the cause at the next circuit, and pay the costs of that in June last.
Radcliff and Livings.ton, justices, absentAmbrose Spencer against Samuel B Webb,
on Scire Facias. THE fafts, as they appeared by affidavit, were as follows:
The defendant was served with a scire facias on Tuesday the 3d of May last, which was returned scire feci on the 10th. On the same day the plaintiff entered a rule for the defendant to appear in four days and plead in twenty after notice, or that his default be entered: Notice of the rule was not given, nor was it put up in any conspicuous part of the clerk's office, nor was any affidavit of notice on file. Default was entered, without any such affidavit, on the 14th of May, on which day the plaintiff entered his judgment also. The plaintiff swore to a just and material defence, and that he had paid the plaintiff six hundred dollars which had not been allowed him, and offered'to let the judgment stand as a security.
On these grounds Van Ve£ten moved to set aside the default and judgment thereon, and that the defendant be let in to plead.
Spencer. There are several grounds of objection taken