« ForrigeFortsett »
*. The defendant states that "he can now introduce w evidence to diminish at least the damage* reported." This is raj 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 oaly one dollar or less? If so « de minimis non curat lex," and if the discovery had been made even prior tq 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.
The People against Marry Croswell.
Lusher against Walton.
the name of the referees, from Bedie v. Willet* decided last term this is necessary.
Per curiam. If the cause contains long accounts Too cannot try it.
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.
Emmott. If die court say they will hear it, I shall waive die objection.
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, if not, an excuse must be offered. But a party's mis-apprehendmg a rule has frequendy 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.
Emmott waiving his objection as to the omission of the names.
Van Vecten read his affidavit and another in support of it.
Emmott opposed die 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 ballance 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 entide 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 die rule; but onjthat 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 ob
Jackson on the demise of Joseph Winter, against ■
Martin M'Evoy, tenant in possession.
"WOODS applied to vacate the judgment entered against n order to be
the casual ejector, and to admit Henry Masterton to be SSfewtaUa
made defendant, on such terms as the court might be pleas- ejedtment, »
'or privity mull bs
«d to Order. fhewn between
From die affidavit of Masterton, it appeared, that the suit and tenant, it
was instituted to recover possession of forty-five acres of f0r the party
land in the county of West Chester, to which he claimed Jwel^rh? cbim«
title, and has a real and substantial defence to make : that, on *J« *"$ "?•»
, . real and (abate 26th day of July last, the deponent discovered in the ftantial 4c
boofc of common rules of this court, that a rule for judgment against the casual ejector had 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' p/afntifFwas, previous to the commencement of the above wit, told by the deponent he would make, and that on march he finds no record has been filed in the above cause.
These fads 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 feirfy come up whether the deponent or Winter was really ofa'fed.
RadclifF justice. There does not appear to be any relation between Masterton and the tenant.
Woods. Perhaps the affidavit does not go quite far enough in stating that expressly, but surely it may well be gathered from the whole.
f AITANY, Angult 1803.
The hidden in-
Emmott contra. The deponent does not swear to any title, he only says he has a claim: he does not £,wear 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 shews that notice of the ejectment ought to have been given to the deponent. The tenant is not obliged to hunt out all per-011s who have claims, he can only be expected to communicate to his privies.
Per curiam. The party can take nothing by his motion.
Jackson, on the demise of Rodman, against
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 diis. The affidavit accounted for its not being noticed for die first day, by stating that it had been delivered, on the twenty-sixth of July, to a person who was then about leaving Hudson for Albany, but who had either lo»t it, or left it behind with some papers of hit own.
Van Vecten opposed the motion, by an affidavit of die indisposition of both attorney and counsel in the cause, when too late to employ others.
The cause was countermanded, but, after the circuit, began.
Per curiam. The excuse is sufficient to prevent granting die judgment applied for, but the plaintiff must pay the costs of not proceeding to trial. It was a misfortune, it is true, that die parties should have been afflicted with sickness, but it is a misfortune that ought not to fall on the defendant.
Lewi?, chief justice, abs
Practice ai to
*o theobjecls.Specified in his notice, and the pre;ent being & set aside an execution, they would not allow it to be extended to the judgment.
Lewis, chief justice, absent.
Jackson, on the demise of Elkanah Watson, against John Marsh.
W. "WOODS moved, on die common affidavit, for judgment as in case of nonsuit for not proceeding to trial.
Emmott resi.ted it by a counter affidavit, setting forth that the cause was duly noticed for Cayuga county, but, nine din before the trial, the defendant served a notice to produce papers which were in Albany.
Emmott stated some circumstances tending to shew tricking practice, but nothing of that sort appeared by the afijAmt.
Per curiam. What is the distance from the county court in Cayuga, to Albany?
Emmott One hundred and eighty mile3.
Per curiam. The plaintiff must stipulate and pay costs. There it no proof of want of time.
Lewis, chief justice, absent.
Samuel B. Webb against Thomas Wilkie.
THIS was an action on a sealed note, dated on the thirtieth of the month. The declaration stated the date to be the thirteenth. Emmot on the first day of term had obtained a nile 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 Vecten 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 »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