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to the proceedings. One is, that notice ought to have been ALBANY,

Augutl 1803 given of the return of the sci. fa and of the rule entered. From the fourth rule of this court, made in April term

Spencer 1796," it appears, that rules to appear on sci. fa, and in ejectment, are placed on the same footing. It is not necessary, on entering the rule, to give notice that the rule has been entered. The notices by the sci: fa. and in ejectment, by the declaration are tartamount. When the attorney appears, theri nocice is required': But a sci. fa. is notice in itself. The default therefore, being regularly entered, must stand. The next question then is whether, if the proceedings are correct in entering the default in four days, the court will let the defendant in, on the merits? Griswold v. Stoughton,t decided the last term, is in point, tilat as there is no account given for not appeating, the dea fault is cotrect, and will not be set aside. There is no excuse for not entering an appearance, and for four days the defendant certainly slept. In' Edwards ad sctm M-Kinstry, Coleman's Cases of Practice 124, the court said that af de fault must always be accounted for.

Graham as amicus curiæ observed, that it being a point of practice of some importance, he took the liberty to meno tion, that according to the English practice when; on a sci. fa. to revive, two nihils were returned, judgment was signed of course on shewing the returns to the officer.

Van Vecten. We are not to obtain the effect of our motion for two' reasons. Because according to the English practice there are no rules on a sci. fa. and because no account is given for the default. As to the first, whatever the practice may be in England, our courts have established that a four day rule is to be entered on the return of the writ, and then the ordinary rule is to be given, and if the default be not entered, the defendant may come in at any time. A scire facias is to all intents a new suit, and therePore there should be the same practice as in other cases; there may be a plea &c. In this the default has produced no injury. There could be no judgment till next term: Therefore this rigid rule of saying that if you do not account we will not hear you, though you give evidence of:

Col. Ca. Prac. 3, 3. Anteó.

ALBANY; reasons for our interference, can have no force when we apo August 1803.

ply to the discretion of the court. The power used inncer

these cases is founded on justice, and whenever any thing Webb:

like injustice presents itself, the court will interpose and
see that no advantage is taken. Here the defendant offers to
let the judgment stand, therefore the plaintiff runs no risk
as the defendant's lands are bound. He swears six hun.
dred dollars have been paid on the judgment: The question
then is, whether the defendant does not necessarily deserve
favor. Whether the plaintiff shall have execution for six
hundred dollars more than are due when merits are sworn
to. That the plaintiff is able to repay it, is no answer: the
oppression of thus wringing so much from the defendant
may be intolerable. Notice, either express or constructive,
is necessary to a default; here there is neither. Griswold
v. Stoughton does not apply; it was a mere irregularity and
no affidavit of merits. The court can not too much bear in
view that no injury can result by letting the defendant in to
plead.

Spencer in reply. I have strong doubts whether on a scire facias there can be any defence* except nul tiel record, or the judgment satisfied.

Per curiam. It appears that the defendant did not enter any appearance before the expiration of the rule, nor indeed was it until some weeks after, that any appearance was entered. It is suggested in answer, that notice ought to have been served of the entry of the rule; this is on the other hand denied; and rightly. The default therefore is regular, and no reason whatever is assigned how it has been incurred. In all such cases we have determined to hold the party to his default. The frule of this court says « Upon the return of « writs of sci. fa. if the defendant be returned warned, or « the second writ be returned nihil, the defendant shall

• To a (cl. fa. the defendant may plead in abatement, or in bar. Inne 470. But he can plead pothing in bar, which he might have pleads. the original action. Where therefore the judgment was on a wartar attorney, as the defendant could have had no opportunity of pleading, court of K. B. has ordered an issue to let in the defence of usury. Coo Jones Cowp. 727. The defendant may also plead in abatchien there were not 15 days betwen the telle and return. Nares V. Huntingdon. Lut. r2. and for want of thcfe 15 days the sup. court, alde on motion the proccedings on a fci. fa. Woodman & others Little. Col. Ca. Prac. 54. as a scire facias is a judicial writ. 50 Di. title abatement. (H. 14.) t Rule of O&ober 1791, Col Ca.

atement that

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appear in four days, or judgment shall be entered by dea fault." Therefore the entry of the default is perfectly consistent with the practice of the court, and must remain: Bat as judgment ought not to have been signed till four days after, and it appears to have been done on the very day, that is irregular, and therefore must be set aside.

Radcliff and Livingston, justices, absent.

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e defendants do not appear

on motion

rtition as

tition.

William Neilson

against
Catharine Cox, Magdalene Beekman, Abraham H.

Beekman, and Johannah his Wife.
THIS was an application on a point of practice in par-

In partition, if tition. The defendants had not appeared, and as the act does not specify any mode of compelling them to come in, the court will Woods, on behalf of Riggs, moved that the following rule

make an order be made absolute, which the court, after perusal, was pleased

prayed. to order.

RU L E. New-York Supreme Court.

In Partition.

Rule in parWilliam Neilson, The defendants having negv.

lected to answer or plead to Catharine Cox, Magdalene Sthe petition of the plaintiff,

Beekman, Abraham H. / within the time allowed them Beekman and Johannah by a rule of this court for his wife.

J that purpose, and it appearing by the said petition, that the plaintiff is seised in fee simple, as tenant in common, of two undivided fifth parts of the premises in the said petition mentioned, and that the defendant Catharine Cox is seised in fee simple, as tenant in common, of one equal undivided fifth part thereof, and that the defendant Magdalene Beekman is seised in fee simple, as tenant in common, of one equal undivided fifth part thereof, and that the defendants Abraham H. Beekman and Johannah his wife, in right of the said Johannah, are seised in fee simple of one equal undivided fifth part thereof, which not being denied, THE COURT DOTH THEREFORE DETERMINE the rights of the said parties to be,'as in the said petition is stated, whereupon and op motion of Mr. Riggs, attorney

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ALBANY, for the plaintiff, IT IS ORDERED, that partition of the said August 1803.

premises be made between the said parties, according Nilson

to their said respective rights, and it is ordered, that A, B. Cox & others. C. D. & E. F. being three respectable freeholders of the city

of New-York, be, and they are hereby appointed commissioners to make the said partition among the said parties, quality and quantity relatively considered, according to the respective rights of the parties aforesaid.

N. B. The commissioners are named by the party to the court, and if approved of, appointed according to the nomination.

Radcliff and Livingston, justices, absent:

tion

be thewn.

John Woods against Maus R. Van Ranken.

VAN VECTEN moved to change the venue from NewTo charge the venue in a York to Albany, in an action on the following promissory tranfitory ac

note: “On or before the 18th day of February next, for value cial cause mult « received, I promise to pay at the Bank of Albany, to Maus

“ R. Van Ranken or order, seven hundred and twenty-five « dollars. Witness my hand this 9th day of August 1802.

« DERICK TEN BROECK.” The deposition, on which he moved, stated it to have been given on a usurious consideration, but did not set forth in what the usury consisted, nor between whom it had passed.

Woods read an affidavit made by the agent of the plaintiffs who was the second indorsee, denying all usury in himself or any one else to his knowledge, and that the note was taken in part payment for a bonâ fide sale of goods in NewYork. In addition to this, Woods insisted on the general rule, that in transitory actions the venue is never changed except on very cogent and strong circumstances. He also relied on the deficiency of the defendant's affidavit.

Per curiam. This is an application to change the venue in a transitory action; special cause ought therefore to have been shewn. We are of opinion that what has been done is not sufficient to take the case out of the general rule adopted with respect to suits of this nature. The defendant ought to have offered as much to change, as the opposite party would have been obliged to alledge in order to retain. Supposing therefore that to be the criterion, he ought to

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shew when the usury originated, and that the witnesses resided here; but the affidavit does not state when the usury tooś place nor that the cause of action arose in Albany. For though the note is apparently made here, and payable at the Bank of Albany, it was negociated in New York, and the presumption is, it was made where it was passed. The doctrine now acted upon is established 1 D. and E. 781. It is necessary to shew that the cause of action arose* and that material testimony is to be given in the place where the venue is to be removed. The defendant therefore can take nothing by his motion.

Radcliff and Livingston, justices, absent.

witnefics.

+ Ante. 113.

Cyrus Jackson against Rodolphus Mann. WOODWORTH moved for judgment as in case of non- If a plaintail

notice his cause suit, for not proceeding to trial according to notice, on an

for trial, and

and the de. afterwards affidavit stating that the cause being duly noticed, the de

countermand fendant issued and served subpoenas on his witnesses, after

it, be must pay

the defendant which the notice was countermanded.

the intermediSehoenhoven contra, read an affidavit setting forth that the dangdut sorriso forth that the ate cofts of sub

poenaing his plaintiff, for want of a material witness, who could not be then found, was unable to proceed to trial, and that notice of countermand had been given four days before the circuit court; he therefore insisted there was no ground for the application, and that from the principle of Brant v. Buckhout,t the de- + A fendant could, not only take nothing by his motion, but the plaintiff was entitled to his costs for opposing.

Woodworth distinguished this from the case mentioned, by the defendant's having been here put to costs.

Per curiam. The only question here is, who shall pay the expence. The plaintiff must certainly bear the charges of his own countermand: That and the notice are equally his acts; the expences therefore incurred after notice, always fall to him when he countermands. The judgment of nonsuit must therefore be refused, but the plaintiff to pay the defendant the costs of subpoenaing his witnesses prior to the countermand.

Radcliff and Livingston, justices, absent.

• Scc Ante 4, and the opinion of Radcliff, J. in which the principles of the Englisk practice are concisely and accurately Ilated.

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