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the plaintiff, from belief, information, diligent fearch and NEW-YORK, enquiry,

Riggs, on the behalf of the defendant, moved to ftrike out of the declaration one count wholly, and in all the others the name of Drake.

May 1803.

Jackfon

V.

Reynolds.

If the plaintiff in ejectment count upon demifes by

Howel contra. The application now comes too late, being after entering into the confent rule: at all events the affidavit should state that the fact was unknown at that time. In ad- perfons who are dition to this he mentioned, that from the counter affidavit dead, the defenwhich he held, it appeared the defendant had heretofore confented to give up poffeffion, having failed to try according to ftipulation.

dant, after entering into the confent rule, may may apply to have their names ftruck out of the

that without cofts, the necef

fity of the application arifing from the plain

Per curiam. The motion must be granted. It has been declaration, and 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 feafon, the answer is, that it is never out of season when on the ground tiff. of an original irregularity in the plaintiff himself. Therefore See Ditz ads. the not coming in earlier cannot be urged. The affidavit fur- Butler & others, nishes fuch evidence of the facts as are prima facie fufficient; 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 must 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 interested, and seeing a number of names neceffary to be made parties, he may think them all in existence, and the affidavit of the defendant be the first 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 discovered. 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 reason for allowing him cofts, when it is to have his proceedings rectified, that the defendant comes before the court.

Cole. Ca. Prac.

102.

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On a non-enumerated motion for irregularity,. merits cannot be entered into, but

Sheffield against Watson.

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

Woods contra. The caufe 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 cofts.

Per curiam. The excufe is certainly not fufficient to exonerate from cofts. If admitted in one case, 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 cofts would do away the effect of the rule. The plaintiff must stipulate.

Fallmer against Steele and another.

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

Maria Remfen, adminiftratrix, against Joshua
Ifaacs.

MULLIGAN moved to fet afide a report of referees for

on merits irre- irregularity and on merits.
gularity may be
fhewn.

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-YORK, the irregularity may be infifted on.

Per curiam. The rule is according to the decifion cited. The application must be for irregularity only to bring it on as a non-enumerated motion. If merits are united, it becomes enumerated.

Hun and others against Bowne.

May 1803.

Maria Remfen

V.

Joshua Ifaacs.

cafe made.

COLDEN for the plaintiffs moved for leave to amend the Amending of cafe 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 settle his amendments before a Judge at Albany, the cause 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 business there, until the 22d January: and further, that the cafe made by the defendant did not fet forth the merits of the cause as they appeared on the trial.

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

Boyd contra stated some circumstances 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 some 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 speed, and so that they might have arrived at Albany in feason if nothing had happened to prevent it. We cannot let the plaintiff fuffer by circumstances which he could not controul. The verdict is in the hands of the plaintiff, and the defendant cannot be injured by a short delay.

NEW-YORK,
May 1803.

Anonymous.

Cafes for argument must be noticed.

Court will not grant a new tri

Anonymous.

BY the court. All caufes intended for argument must be duly noticed before term to the clerk, that he may enter them on the calendar. If not fo noticed, they must go to the foot of the calendar, without regard to the date of their iffues.

John Halfey against James and Samuel Watson.

THIS was a motion for a new trial, on an affidavit of a al, where the e- difcovery of new and material evidence. The points and vidence has been fubftance are so well and accurately condenfed in the decifion on both fides. In of the court, that it is unneceffary to do more than state the applications for

new trials, on judgment.

account of a fubfequent difcove

Per curiam. This is a motion for a new trial, and comes ry of material before us on the ground of a discovery of material testimony teftimony, what

that teftimony fince the trial of the cause.

ed, that the

To fee this, and judge whether

is, must be ftat- it be material or not, it will be neceffary to state the former court may judge teftimony and nature of the fuit.

of its materia

lity.

It is affumpfit by Halsey the plaintiff, against James and Samuel Watson, the defendants, as owners of the ship Chesapeake, founded on a neglect in not taking on board fome tobacco, according to contract. The witness, 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 answer was, Send it down as quick as poffible: in confequence of which, it was fent the very next day. From three witneffes it is fhewn, 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 established by three witneffes. The captain fwears that, after 4 or 6 hogfheads had been brought, he requested 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 ship, or the captain, to bear a hand; and that he got all the tobacco down by dinner time. Here the

Halley

V.

teftimony is contradictory. We are to judge then, if the ma- NEW-YORK, May 1803. terial evidence, as it is termed, that has been difcovered fince the trial, be really teftimony of materiality. There is one perfon who fwears, as to the directions given by the captain. J. & S. Watfon. 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 teftimony goes only to impeach the credit of what has been fworn, and not to establish any new fact. It is merely contradicting former evidence. In that point of view it is not material: nor can it be fo in another, unless the defendants can go further. The direction not to bring down the tobacco, was to a carman. This is not fufficient; as Watson directed it to be sent as foon as poffible. It ought to have been to the owner of the tobacco: or to have fhewn, the the requeft 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 witneffes who are material; but does not fay to what facts they would teftify: we cannot therefore judge whether they are material or not. Blackmer, it is ftated, will teftify, that the tobacco was not marked till Monday. This will only go to impeach the credit of the teftimony; for, three witneffes fwear to the fact of the marking being before one o'clock on Saturday. The captain himfelf does not pretend that the reason 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 against David Hofack.

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a note borrow

ASSUMPSIT for money lent and advanced, for money An accountable had and received; plea, non affumpfit and payment, with notice of fet-off. The plaintiff proved, and gave in evidence ed, fhould be the following promiffory note :

"Sixty days after date, I promife to pay Dr. David Hofack, or order, three hundred and feventy-five dollars, value rec'd. N. York, 6th February, 1800. Eph'm. Hart."

taken up when the note is fet

tied.

A child of fourteen years, put with a phyfician on trial, to fee how

he would like

cannot make an election to be

The plaintiff alfo proved, that he paid this note when it was due; and in addition proved, and gave in evidence the profeflion, the following accountable receipt: E

come a ftudent,

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