the plaintiff, from belief, information, diligent search and
Riggs, on the behalf of the defendant, moved to strike out
of the declaration one count wholly, and in all the others the
name of Drake.
Howel contra. The application now comes too late, being
after entering into the consent rule: at all events the affidavit
Íhould state that the fact was unknown at that time. In ad-
dition to this he mentioned, that from the counter affidavit
which he held, it appeared the defendant had heretofore con-
£nted to give up poffeffion, having failed to try according to

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Per curiam, The motion must be granted. It has been before decided, that a defendant may thus come in and move, on the death of a party before the commencement of the fuit. As to the objection that the application is out of seafon, the answer is, that it is never out of season when on the ground of an original irregularity in the plaintiff himself." Therefore the not coming in earlier cannot be urged. The affidavit furmishes such evidence of the facts as are prima facie fufficient; and if not true ought to have been denied by the plaintiff, tipecially as it is in his power: for the attorney of the leffor may, may certainly must, know if his client is alive.

Howell hoped the costs would not be allowed.

Percuriam. It does not neceffarily follow that the attorney of the plaintiff must know of the death of one of the leffors. He may have examined into the title on behalf of one person ading for others equally interested, and feeing a number of mmes neceffary to be made parties, he may think them all in exilence, and the affidavit of the defendant be the first notice of the death of any one entitled. The costs ought to be paid if the fact was known fooner: and the application for the obit of this motion ought to be made as soon as the right to apply was discovered. The court, however, referved the confiltration of costs till the next day, when they denied them,

fijing the plaintiff was irregular from the beginning; and

though he might not have been in fault, there is no reason for allowing him costs, when it is to have his proceedings rectified, that the defendant comes before the court.

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Sheffield against Watson.

HOPKINS for the defendant moved for judgment as in cafe of nonfuit fer not going to trial.

Woods contra. The cause was called on, but as there were other causes on the day calendar, one of which actually occupied the court the whole day, the plaintiff’s attorney not being quite ready, thought he should be entitled to bring it on the next day, the day calendar not being gone through; but found he was put down to the bottom of the calendar for the circuit. This therefore is a plain mistake 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. Acting under that belief, he did not prepare himself.

Hopkins hoped the plaintiff would be ordered to stipulate and pay costs.

Per curiam. The excuse is certainly not sufficient to exonerate from costs. If admitted in one cafe, it must be in all; and however the good faith of the plaintiff’s conduct, and our belief of it, may deny the judgment moved for, to refuse costs would do away the effect of the rule. The plaintiff must ftipulate.

Fallmer against Steele and another.

HOPKINS moved to amend a count in the declaration, in conformity to the original writ, (a certified copy of which he produced) by striking out the words “town of Herkemer,” and inferting the “town of German Flatts.” Ordered.

Maria Remsen, administratrix, against Joshua

On a non-enumerated motion

for irregularity,

merits cannot be entered into, but on merits irre£y may be



MULLIGAN moved to set afide a report of referees for irregularity and on merits.

Woods contra. In King v. Hughes it was determined, that if a motion be made as non-enumerated for irregularity, the

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ground of merits must be abandoned, though on the merits NEw-YQRK, the irregularity may be infifted on. May 1803. Per curiam. The rule is according to the decision cited. Maria Remsen The application must be for irregularity only to bring it on as a non-enumerated motion. If merits are united, it be

comes enumerated,

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Hun and others against Bowne.

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

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

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

Percuriam. We cannot travel back farther than the agreement flated. It appears that the defendant had given the plaintiff a time, which from accident he could not keep; the amendments were sent with due speed, and so that they might hite arrived at Albany in season if nothing had happened to Preventit. We cannot let the plaintiff fuffer by circumstances which he could not controul. The verdict is in the hands of :plaintiff, and the defendant cannot be injured by a short Clay,

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BY the court. All causes intended for argument must be cafes for argu- duly noticed before term to the clerk, that he may enter them £" * on the calendar. lf not fo noticed, they must go to the foot

of the calendar, without regard to the date of their iflues.

John Halsey against James and Samuel Watson.

court will not THIS was a motion for a new trial, on an affidavit of a
£ discovery of new and material evidence. The points and
videncehas been substance are so well and accurately condenfed in the decision
£ of the court, that it is unneceffary to do more than state the
new trials, on judgment.
£ E iam. This is a motion for a new trial, and comes
fequent discove- e1 Curian S-a no * c
£of £l before us on the ground of a discovery of material testimony
testimony, what - - -
that testimony fince the trial of the cause. To fee this, and judge whether
: ''. it be material or not, it will be necessary to state the former
court mayjudge testimony and nature of the fuit.
#;" " It is affumpfit by Halsey the plaintiff, against James and Sa-
muel Watson, the defendants, as owners of the ship Chesapeake,
founded on a neglect in not taking on board fome tobacco, ac-
cording to contract. The witness, Heyer, who appears to have
acted as agent for the plaintiff, states what the contract was, and
the time at which it was to be on board. This agreement ap-
pears to have been made on a Friday. The witness enquired
of the defendant James Watson, when the tobacco should be
fent down to the veffel. The answer was, Send it down as
quick as poffible: in consequence of which, it was sent the
very next day. From three witnefes it is shewn, 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. These facts, then, are established by three
witnesses. The captain fuears that, after 4 or 6 hogsheads had
been brought, he requested the carmen not to bring any more, as
there were appearances of a ftorm. This the principal car-
man has, in effect, denied ; for he fays, he was defired by
those on board the ship, or the captain, to bear a hand; and

that he got all the tobacco down by dinner time. Here the



trimony is contradićtory. We are to judge then, if the ma- s: trial evidence, as it is termed, that has been discovered fince Q-2the trial, be really testimony of materiality. There is one Halfey perion who wears, as to the directions given by the captain. J. & swar. The court are of opinion, that this is not material, fo as to —warrant granting a new trial. This in two points of view: The testimony goes only to impeach the credit of what has been from, and not to establish any new fact. It is merely conditingformer evidence. In that point of view it is not matrial: nor can it be fo in another, unless the defendants an go further. The direction not to bring down the tobacco, was to a carman. This is not fufficient; as Watson difeded it to be ent as foon as poffible. It ought to have been to the owner of the tobacco: or to have fiewn, th: the requet was brought home to the knowledge of the plaintiff: that it was made to a carman, is not fufficient. The defendant, affiliwit lates two other witneffes who are material ; but does not fay to what facts they would testify; we cannot therefore judge whether they are material or not. Blackmer, it is flated, will testify, that the tobacco was not marked till Monday. This will only go to impeach the credit of the testimony; for, three witneffes fivear to the fact of the marking being before one o'clock on Saturday. The captain himself does not pretend that the reason for not taking it on board, was the hogsheads 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 refused.

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