4. The defendant states that he can now introduce " evidence to diminish at least the damages reported." This is very 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 only one dollar or less? If so " de minimis non curat lex,” and if the discovery had been made even prior to 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 Harry Croswell.

THE defendant had been convicted before his honor chief justice Lewis at the last circuit, held in and for the county of Columbia, on an indictment for a libel on the President of the United States. The proceedings were originally commenced before the justices in the general sessions, from whence they were removed into this court, and went down to the circuit in the usual manner. On his conviction recognizances were taken for his appearance the first day of term to receive judgment, but his counsel considering the chief justice to have totally misdirected the jury, were rather at a loss how to bring the matter before this court. It was resolved by the bench that on the cause being brought up and sent down to the circuit, the suit, though in its nature a criminal prosecution, took the course of a civil action; that within the first four days of the term ensuing the conviction, a motion in arrest of judgment might be made, or the parties may make a case, and bring every thing fully before the court. This measure they advised, as being in the present instance more explicit, and it being adopted, they gave day till the fourth day of next term, taking recognizances from the defendant and two others for his due appearance, himself in 500 dollars, his

sureties in 250 dollars each.

Lusher against Walton.

VAN VECTEN. This is a motion for a rule to refer. The affidavit states there are long accounts to adjust. Emmott. I must oppose it. The notice does not mention

ALBANY,

August 1803.

Lufher
V.

Walton.

of a rule, or ignorance of a late determi

the name of the referees, from Bedle v. Willet* decided last term this is necessary.

Per curiam. If the cause contains long accounts you cannot try it.

Spencer observed to the court that a cause could not be referred at the circuit; but from the case cited, the applination may be cation might be renewed the next non-enumerated day.

offered as ex

cufes for not

noticing for

Emmott. If the court say they will hear it, I shall waive

the first day of the objection.

term. If the ground of oppofing a reference be that a point of law will arife, it ought to be ftated expreffly what, and that it is" as advifed by counsel."

Ante. 7.

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-apprehending a rule has frequently 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 the 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 ap pear there was a final closure of accounts, so as to entitle 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 the rule; but on that 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

jection is waived, the plaintiffs' affidavit is insufficient and the defendant must take his rule.

Lewis, chief justice, absent.

Jackson on the demise of Joseph Winter, against

Martin M'Evoy, tenant in possession. WOODS applied to vacate the judgment entered against the casual ejector, and to admit Henry Masterton to be made defendant, on such terms as the court might be pleased to order.

ALBANY, Augult 1803.

Lufher

V.

Walton.

In order to be admitted as a ejectment, a

defendant in

privity must be
Thewn between
the applicant

and tenant. It
for the party
is not enough
applying to

fwear he claims
title and has a
real and fub-

fence.

From the affidavit of Masterton, it appeared, that the suit was instituted to recover possession of forty-five acres of land in the county of West Chester, to which he claimed title, and has a real and substantial defence to make: that, on the 26th day of July last, the deponent discovered in the ftantial de book 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 plaintiff was, previous to the commencement of the above suit, told by the deponent he would make, and that on search he finds no record has been filed in the above cause.

These facts 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 fairly come up whether the deponent or Winter was really

entitled.

Radcliff justice. There does not appear to be any rela

tion 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.

Emmott contra. The deponent does not swear to any
title, he only says he has a claim: he does not swear 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 judg-
ment, 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 persons who have claims, he can only be ex-
pected to communicate to his privies.
Per curiam. The party can take nothing by his motion.
Lewis, chief justice, absent.

Jackson, on the demise of Rodman, against
Adam Brown.

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 this. The affidavit accounted for its not being noticed for the 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 lost it, or left it behind with some papers of his

own.

Van Vecten opposed the motion, by an affidavit of the 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 the judgment applied for, but the plaintiff must pay the costs of not proceeding to trial. It was a misfortune, it is true, that the parties should have been afflicted with sickness, but it is a misfortune that ought not to fall on the defendant.

Lewis, chief justice, absent.

Alexander against Esten, Administrator. THE court ruled that it was the practice to confine a party

to the objects specified in, his notice, and the present being to 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 the common affidavit, for judgment as in case of nonsuit for not proceeding to trial.

Emmott resisted it by a counter affidavit, setting forth that the cause was duly noticed for Cayuga county, but, nine days 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 affidavit.

Per curiam. What is the distance from the county court in Cayuga, to Albany?

Emmott. One hundred and eighty miles.

Per curiam. The plaintiff must stipulate and pay costs. There is 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 rule 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.

1

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 in 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

ALBANY,

Auguit 1803.

Alexander

V.

Efter.

Nine days no

tice is enough in Cayuga to

produce papers in Albany, 185 miles distant.

Whenever a plaintiff amends his de claration, the

defendant has an election to. plead de novo.