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the plaintiff, from belief, information, diligent fearch and NEW-YORK, enquiry, 'Ma>' >*°3

Riggs, on the behalf of the defendant, moved to ftrike out jackfon of the declaration one count wholly, and in all the others the v

_ _ , Reynolds.

name of Drake.

Howd contra. The application now comes too late, being If the plaintiff in after entering into the confent rule: at all events the affidavit e)eamem count

_.,-,, r_ . ,. _ upondemifesby

fhould ftate that the iact was unknown at that time. In ad- perfon. who are dit/on to this he mentioned, that from the counter affidavit jead' **? dci,:n"

'r dant, alter en

which he held, it appeared the defendant had heretofore con- tering into the fentcd to give up poffeffion, having failed to try according to n^^pp^t'o

Stipulation, havctheirnames

Per curiam. The motion muft be granted. It has been dc*r»d£3 before decided, that a defendant may thus come in and move, tnat w'thout on the death of a parry before the commencement of the fuit. n°yof theappul As to the objection that the application is out of feafon, the ?tion ari""g anfVer is, that it is never out of feafon when on the ground tiff. of an original irregularity in the plaintiff himfelf.* Therefore » See Ditz ads. the not coming in earlier cannot be urged. The affidavit fur- Butler & others, nifties fuch evidence of the facts as are prima facie fufficient; 102. and if not true ought to have been denied by the plaintiff, especially as it is in his power: for the attorney of the leffor may, nay certainly muft, know if his client is alive. Howell hoped the cofts would not be allowed. Per curiam. It does not neceffarily follow that the attorney of the plaintiff muft know of the death of one of the leffors. He may have examined into the title on behalf of one perfon acting for others equally interefted, and feeing a number of names neceflary to be made parties, he may think them all in exiftence, and the affidavit of the defendant be the firft notice of the death of any one entitled. The cofts ought to be paid if the fact was known fooner: and the application for the object of this motion ought to be made as foon as the right to apply was difcovered. The court, however, referved the confideration of cofts till the next day, when they denied them, faying the plaintiff was irregular from the beginning; and though he might not have been in fault, there is no reafon for allowing him cofts, when it is to have his proceedings rectified, that the defendant comes before the court.

NEW-YORK,

May 1803. Sheffield againfl Watfon.

Sheffield

v. HOPKINS for the defendant moved for judgment as h*

Watfon. cafc 0f nonfu;t for not going to trial.

".. . , Woods contra. The caufe was called on, but as there were

A nuftake by an *

attorney, of a other caufes on the day calendar, one of which actually occupy "prevem" Picd tnc court the wholc diYt tne plaintiff's attorney not being judgment as m quite ready, thought he fhould be entitled to bring it on the fofnotgoi^to ncxt dav» thc dav calendar not being gone through; but trial, but will found he was put down to the bottom of the calendar for the circuit. This therefore is a plain miftake of the rules of practice, which ought not to injure the plaintiff.

Hopkins. The plaintiff clearly was not ready; therefore equally in fault, whether the rule was as he imagined, or not. Radcliff J. A&ing under that belief, he did not prepare himfelf.

Hopkins hoped the plaintiff would be ordered to ftipulate and pay colts.

Per curiam. The excufe is certainly not fufficient to exonerate from cofts. If admitted in one cafe, it muft be in all*, and however the good faith of the plaintiff's conduft, and our belief of it, may deny the judgment moved for, to refufe cofts would do away the effect of the rule. The plaintiff muft ftipulate.

Fallmer againfl Steele and anpther.

On producing HOPKINS moved to amend a count in the declaration, in

original wrft,° conformity to the original writ, (a certified copy of which he

declaration a- produced) by ftriking out the words "town of Herkemer/'

and inferting the " town of German Flatts." Ordered.

Maria Remfen, adminiflratrix, againfl Tofhua

On a non-enu- -r r

nitrated motion llaaCS.

for irregularity,

entered into.but MULLIGAN moved to fet afide a report of referees for on merit* irre- irregularity and on merits.

Sewn. Woods contra. In King v. Hughes it was determined, that

if a motion be made as non-enumerated for irregularity, the ground of merits muft be abandoned, though on the merits New-YORK, the irregularity may be infifted 0x1. M*y l8o3

Per curiam. The rule is according to the decifion cited. Maria Remfen The application muft be for irregularity only to brine it on v

j „ ., . , . t Tolhua lfaacs.

as a non-enumerated motion. It merits are united, it be

comes enumerated.

Hun and others againft Bowne.

COLDEN for the plaintiffs moved for leave to amend the Amending of cafe made by the defendant. From the affidavit of the attorney clfe m2de" for the plaintiffs, it appeared, that the defendant's attorney had agreed to give the plaintiff's attorney till the 21ft January laft, to fettle his amendments before a Judge at Albany, the caufe having been tried in New-York: that by fome accident the amendments propofed by the plaintiffs to the cafe made on the part of the defendant, had not come to the hands of the counsel who was employed to attend to the bufinefs there, until the 22d January : and further, that the cafe made by the defendant did not fet forth the merits of the caufe as they appeared on the trial.

Hoffman amicus. In Duff v. Van Zandt, on a fuggeftion that the cafe made did not contain a true ftatement of facts, the court granted a new trial after argument and decifion.

Boyd contra ftated fome circumftances of ftrict and unaccommodating conduct in the plaintiff's attorney, which had occurred previous to the agreement mentioned in the affidavit read by Colden, and fome declarations of the plaintiff's attorney, that he would hold the defendant to ftrict practice.

Per curiam. We cannot travel back farther than the agreement ftated. It appears that the defendant had given the plaintiff a time, which from accident he could not keep: the amendments were fent with due fpeed, and fo that they might have arrived at Albany in feafon if nothing had happened to prevent it. We cannot let the plaintiff fuffer by circumftances which he could not controul. The verdict is in the hands of the plaintiff, and the defendant cannot be injured by a fhort delav.

NEW-YORK,

May j8°3- Anonymous.

Anonymous. ■ ,

BY the court. All caufes intended for argument muft be

Cafes for argu- duly noticed before term to the clerk, that he may enter them

noticed? Uft on the calenc,ar- lf not fo noticed, they muft go to the foot of the calendar, without regard to the date of their iffues.

John Halfey againft James and Samuel Watfon.

Court will not THIS was a motion for a new trial, on an affidavit of a ^Twhererfi-"- difcovery of new and material evidence. The points and. vidcncchasbecn fubllance are fo well and accurately condenfed in the declfion appSionffo'i" of tlie court, that it is unncceffary to do more than ftate the

new trials, on judgment.

fequcnt difcove- Per curiam. This is a motion for a new trial, and comes ry of material before us on the ground of a difcovery of material teftimony that teftimony fince the trial of the caufe. To fee this, and judge whether is, muft be flat- jt ^e material or not, it will be neceffary to ftate the former

ed, that the * . .'

court mayjudge teftimony ana nature or the luit.

of its materia- jt -1S aflumpGt by Halfey the plaintiff, againft James and Samuel Watfon, the defendants, as owners of the ftiip Chefapeake, founded on a neglect in not taking on board fome tobacco, according to contract. The witnefs, Heyer, who appears to have acted as agent for the plaintiff, ftates what the contract was, and the time at which it was to be on board. This agreement appears to have been made on a Friday. The witnefs enquired of the defendant James Watfon, when the tobacco fhould be fent down to the veffel. The anfwer was, Send it down as quick as poflible: in confequence of which, it was fent the very next day. From three witnefles it is (hewn, that the principal part of the tobacco was on the dock by eleven o'clock in the forenoon, and that the whole was ready to be put on board by three. Thefe facts, then, are eftablifhed by three witnefles. The captain fwears that, after 4 or 6 hogfheads had been brought, he requefted the carmen not to bring any more, as there were appearances of a ftorm. This the principal carman has, in effect, denied; for he fays, he was defired by thofe on board the fhip, or the captain, to bear a hand; and that he got all the tobacco down by dinner time. Here the tefHsnony is contradictory. We are to judge then, if the ma- NEW-YORK, terial evidence, as it is termed, that has been difcovered fince v^v^^ the trial, be really teftimony of materiality. There is one Halfey perfon who fwears, as to the directions given by the captain. , & s. Watfc*

The ccrort are oS opinion, that this is not material, fo as to —.

warrant granting a new trial. This in two points of view: The teftimony goes only to impeach the credit of what has been fvorn, and not to eftablifli any new fact. It is merely contradicting former evidence. In that point of view it is not matma!: nor can it be fo in another, unlefs the defendants can go further. The direction not to bring down the tobacco, was to a carman. This is not fufficient; as Watfon directed it to be fent as foon as poffible. It ought to have been to the owner of the tobacco: or to have ftiewn, th~£ the reqneft was brought home to the knowledge of the plaintiff: that it was made to a carman, is not fufficient. The defendant's affidavit ftates two other witnefles who are material; bnt does not fay to what facts they would teftify: we cannot therefore judge whether they are material or not. Blackmer, it is dated, will teftify, that the tobacco was not marked till Monday. This will only go to impeach the credit of the teftimony •, for, three witnefles fwear to the fact of the marking bemgbefore one o'clock on Saturday. The captain himftlf does not pretend that the reafon for not taking it on board, was the hogfheads not being marked, but only that he had not time. He does not pretend it was not ready to be taken on board. New trial refufed.

Ephraim Hart againft David Hofack,

ASSUMPSIT for money lent and advanced, for money An acconmab'.e

,.,.., _. - . . , receipt given i<T

had and received; plea, non aftumplit and payment, with anotebonwnotice of fet-ofF. The plaintiff proved, and gave in evidence *d> filoul<1 J*

* r ° taken up wh-ti

the following promiflory note: the note » fet

"Sixty days after date, I promife to pay Dr. David Ho- $d-fomAMnJ,iU

fack, or order, three hundred and feventy-tivc dollars, value years, put with

ree'd. N. York, 6th February, 1800. Eph'm. Hart." ^jTofcThow

The plaintiff alfo proved, that he paid this note when it he would like

1 1 * 11.. 1 j • • 1 „ the rtrofeflion.

was due; and in addition proved, and gave m evidence ant{ot TOaj.c aa the following accountable receipt: etraion to hi

0 * row a ftudent,

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