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ALBANY,
Auguft 1803.

Brandt
V.

Buckhouts.

The rule for consolidating applies only to

feveral actions

on one policy,

and does not

extend to feve

veral policies on one risk tho' the question be

the fame on all, because the contracts are Teveral.

Woods hoped the court would order the plaintiff to stipulate.

Per 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,
pay the plaintiff his costs of opposing.

and

Radcliff and Livingston, justices, absent.

Peter A. Camman against the New-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. The 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 be cause 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 independent 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.

By the practice of the English courts, if the defendant be held to bail in two actions which might be joined, the plaintiff will be obliged to confolidate and have to pay the cofts of the application. Cecil v. Briggs D. & E. 639.

James Shuter against Richard S. Hallett. 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 defendant had joined, but not being returned, another was sued out in November last, and as there were no hopes of the first being returned, the parties agreed that the testimony taken on the second, which was on the same interrogatories, should be read in evidence on the trial. After this the cause was duly noticed, but the judge refused to let it come on, as the counsel for the defendant had joined in the commission.

Per curiam. The commission is as much the defendant's 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.t

Radcliff and Livingston, justices, absent.

Bethuel Way and Hannah his wife,

against

Nicholas Bradt.

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IT was said by the court, in this suit, that when a Judge Cofts. on a circuit has not time to try a cause, the costs must abide the event of the suit.

Radcliff and Livingston, justices, absent;

Ebenezer Weed, by Noah Weed, his guardian.

against Caleb Ellis.

The

A younger itfae tried, no

short,

proof that an older might

Per curiam. A younger issue being tried, is not always conclusive that a cause might have been brought on. court will sometimes take up a cause they may think when they will not enter into a long one.

Radcliff and Livingston, justices, absent.

Joseph Grover against Benjamin Green. THE defendant was attending a reference, under a rule of the court of common pleas for Cayuga, in a suit wherein

† See Brain vs. Rodelicks and Shivers, ante 73

have been
heard.

Court will not discharge on motion, a per

fon arrested

while attend

ing a reference

under an order of the common

ALBANY,
August 1803.

Grover

V.

Green.

pleas, if there

be not a notice of applying; but will only grant a rule to Thew caufe.

When a de

fendant com

he was plaintiff, and the present plaintiff defendant, when he (Green) was arrested by Grover, on a writ out of this

court.

Emmott moved for a rule that the defendant be discharg ed out of custody on common bail, the plaintiff having abused the process of the court, but no notice had been given of the motion.

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Per curiam. By this means any body may get himself discharged.

Emmott. If the affidavit be false, the party may be indicted for perjury.

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Per curiam. But the plaintiff may lose his debt. Take a rule to shew cause the first day of next term why he should not be discharged, and in the mean time let ceedings be staid.

pro

Radcliff and Livingston, justices, absent,

Hugh Lackey and Joshua Briggs against Daniel
McDonald.

THE plaintiffs, in July 1802, had stipulated to try this for which he is cause at the next circuit court, and did not do so.

mits a crime

fentenced to

the ftare prifon, the plaintiff may difconainue without payment of cofts.

M. B. Hildreth, on this ground, now moved for judg ment as in case of nonsuit.

Schoenhoven read an affidavit, which was not denied, .stating 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 curiæ, 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. Webb, after issue joined the defendant abandoned the possession, and the les sor of the plaintiff having entered, did not notice the cause for trial. The defendant then moved for judgment as in case of nonsuit, but the court denied his motion, and gave 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 his own act deprived the plaintiffs of that

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Auguft 1803.

Lackey &
Briggs

femedy which they might have had against his person; his ALBANY, Body is out of their reach, and that by his own act. It is not therefore necessary that they should proceed and incur expences for nothing, as there is not any property from Whence they can be reimbursed. The plaintiffs therefore are entitled to discontinue; and without costs.

Radcliff and Livingston, justices, absent.

Rachel Malin against Ephraim Kinney.

The same against Nathan Lane.

THESE causes were noticed for trial at the circuit held for Ontario in June 1802. The defendants attended with their witnesses, but the plaintiff not Bringing on the causes, the defendants agreed to waive taking advantage of it, provided the plaintiff would consent that the two above suits should abide the decision of a case made in one by the same plaintiff against George Brown, which turned on the same point, and had; together with another of the same sort, been tried. The plaintiff acceded to the proposition, but at the last 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 not proceeding to trial in 1802, but those also for not trying at the last circuit. He Contended that as the agreement was done away on the application of the plaintiff, the defendant had a right to those costs which he waived only in consequence of that agreement: The agreement was the consideration of the waiver, and the consideration being taken away, he had a right to insist on not waiving. Then as to the costs of the last circuit, it was clear he was entitled, because, as the plaintiff had been released and had not tried, it was manifest he Was in default and costs due.

Stuart contra, shewed on affidavit, that the rule to discharge the agreement was made at the latter part of the last term, and that from the late information he received of it, he could not avail himself, at the last circuit, of the 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

V.

McDonald.

If a plaintiff
get relieved

from his
tion he reftores

own ftipula

the defendant

to all rights as the ftipulation

he flood when

was entered into.

ALBANY,

Auguft 1803.

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Malin

V.

Kinney.

On ici. fa. notice of entry of

the rule to ap

need not be

given, as the fervice of the

fei. fa. is notice

of itself, and

the default may

be entered on expiration of the rule; but judgment cannot be entered

An ap

1802, and those of the last circuit. Four causes were de-
pending: 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.
plication 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 excuse 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 Livingston, justices, absent.

Ambrose Spencer against Samuel B Webb, on Scire Facias.

THE facts, as they appeared by affidavit, were as follows:

The defendant was served with a scire facias on Tues

pear and plead day 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 will be fet afide,. judgment also. The plaintiff swore to a just and material and the default defence, and that he had paid the plaintiff six hundred dolftand. No de- lars which had not been allowed him, and offered to let the judgment stand as a security.

till four days

after, if it be, the judgment

if regular,

fault ever fet

afide when regular, except accounted for to fatisfaction of the court.

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On these grounds Van Vecten 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

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