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Jackson, on the demise of Hogeboom, against John Stiles, Austin Griffin, tenant in possession.

A TITLE to the premises in question had been awarded to the lessor of the plaintiff by the commissioners appointed to settle disputes to land, in the county of Onondago, and he hid served declarations on the tenants, with the usual notices annexed. The declarations however, contained blanks for the towns and counties, which at the time of service, were not filled up, nor were they, in the copies annexed to the affidavits of service, and filed with them, on which the n>ual rule was entered. The declarations were served on the tenants within the three years allowed by law for prosecuting the titles awarded, but they were now elapsed.

Spencer, on these circumstances being disclosed by the affidavit of the plaintiff's lessor, stating also the services bring been made with the full intent of carrying into effect the actions instituted, moved for a rule against the tenants, to shew cause, by the first day of next term, why the declarations should not be respectively amended, by the insertion of the names of the towns and counties, and that fixing op the rule in the clerk's office, should be deemed good service.

Emmott. Are the tenants to take notice of declarations which are mere nullities, void in themselves, and to which they are not parties? They have not appeared, they are not in court, and John Stiles is the only defendant to the suit, that can be known by the record.

Per curiam. Notice having been served on the tenants, it was enough to put them on enquiry. There is time enough for them to come in if they please. Take the effect of your motion.

Cole against Stafford. IN this cause the exoneration of bail, whose principal had been relieved under the insolvent law, was opposed on ;he ground of the discharge not having been duly stamped according to the act then in force.

ALBANY,

Aujuft 1803.

Jackfon

v.

Stiles.

After fervice of
a declaration in
ejectment on
a tenant,
though it may
be a totally in-
formal one, it
is diffident to
fet him on en-
quiry, and if a
rule to fliew
caufe why the
plaintiff Ihould
not amend be
granted, affix-
ing in the
clerk's office
is good service
on the tenant.
If proceedings
be commenced
far lands 'to
which a title
is awarded by
the commis-
sioners for set-
tling difputes
to lands in
Onondago,
within three
years after, It
is sufficient,
though they
may be faulty,
and! require
amendment af-
ter the three
years, to enti-
tle the plaintiff
to proceed.

The want of a ftamp to an insolvent's discharge cannot be urged as a reafon to (hew it not duly obtained and prevent the exoneration of his bail. Fraud only can affect it.

[merged small][graphic]

A motion can-
not be nude to
let afide a
writ of inqui-
ry, in the pos-
session of the
plaintiff, not
returned, and
on which no
inquifition has
been taken,
but if a jury
has been em-
pannelled un-
der it, and has
given a verdict
on a hearing
contrary to the
terms of a
written agree-
ment, the
court will
give leave to
issue a writ of
inquiry dc
novo.

Per curiam. We cannot go into it •, the act makes the discharge conclusive except in cases of fraud; the matter t was before the court below, and they were the proper judges whether every thing was regular or not.

Garrit Abeel against Wolcott, who is impleaded with Van Norden.

VAN VECTEN, on behalf of the plaintiff, moved that the writ of inquiry, and proceedings stated in the affidavit on which he applied, should be set aside, and a writ of inquiry issue de novo. The affidavit set forth, that by an agreement in writing entered into between the attornies of the parties, it was stipulated that on the execution of the writ of inquiry, every defence which could have been made, had a trial taken place, should be availed of, that both sides should have the same liberty of excepting to the admissibility of evidence, reduce their objections to writing and make a case in the same manner as if the cause had been heard at the circuit. That the evidence of each party having been gone through and closed, the attorney for the 'plaintiff went home, after which the jury called in the defendant Wokott's attorney, and asked him if a verdict should go against Wolcot, whether he could recover his proportion against Van Norden? and whether, if it sholud be against the plaintiff, he could carry it before the supreme court? To the first of which questions, Wolcott's attorney answered no; and to the latter, yes; in consequence of which a verdict was rendered against the plaintiff, but the writ has never been returned, but has been handed to the plaintiff's attorney, without any inquisition annexed.

Per curiam. The application is to set aside a writ of inquiry, when there is none before the court. There is no return, no inquisition, and nothing to set aside. There was a written agreement, which does not appear to have been complied with. The plaintiff is in possession of hi< own writ of enquiry, and we see no objection to his issuing a new one, for as the writ is not before us, we cannot grant him the effect of hi* motion as to setting it aside.

Jackson on the demise of Finch and others, against ^^Z]. Johannis Kough. ^Jr-s^^S

DECLARATIONS had been served in these causes J1*50" ■early six years ago. Kough.

Van Vecten moved to amend by inserting several de-"

"After six year»

mises from different lessors. . service ofdccia

Metcalf opposed it on the ground that it might vary the j^ment"coSrt

, j r will on u*rm»

tenant s defence. give leave to

Van Vecten observed, that in the Warren-Bush cases, amend by ad

'. ding new da

the same thing had been done. If the defendant relin- mi»a.
quish his defence, then all the costs heretofore incurred
are to be paid; if he abide by it, then there is no injury
done. The costs in the first case must be paid up to the
day. This the plaintiff is willing to do, and accept any
plea so that the cause might be brought on at the next cir-
cuit.
Per curiam. Amend on those terms.

Wilhelnras Van Der Mark against James Jackson on

the demise of Ostrander. - The defends

IN error. Judgment having been entered in the Courtin crror cann,ot

* ° ° non pros* tlt«

of Common Pleas for the county of Ulster on a verdict plaintiff's writ for the now defendants, the present plaintiff brought his turned. writ of error returnable in this court. To this the Clerk of the Common Pleas made his return in the manner, said to have been usually practised in that county, by annexing a transcript of the record, and delivered it to the now plaintiff's attorney, who sent it back with directions to annex the original record. This was not done but the writ re-delivered to the plaintiff's attorney with only the tranicript returned.

The defendant, without any senrice of a scire facias quarc executionem non, and, without giving any rule to assign errors, nonprossed the plaintiffs writ, before it had been returned and filed, served him with a copy of a bill of costs, and sued out a writ of possession.

Gardiner, on affidavit of these facts, moved to set aside the judgment of nonpros for irregularity, and that 'if any writ of possession had been issued, a writ of re-restitution be awarded.

Augifsfifo'. ^cr cu"am> As tne wit was never returned, this V—^-v"**--' court was never in possession of the cause; whatejrer has

jac^son been done here, must therefore be set aside.' Take your

Kough. rule^

• s«e Lcith v. Bcriah Plielps against Trisdale Eddy.

TMni*"i*A.i WOODWORTH, on an affidavit statingthat issue had

c°?"h Smith been joined in this cause in November 1801, and noticed

for trial at the last circuit for the county of Columbia, bat Ifadefendant , , „ . , '. ''

move forjudg- not brought on, moved for judgment as m case of non

Bient of non-
suit contrary to SUlt.

courtf wuithe Williams read a counter deposition acknowledging the no?h*kcosuTMf VoZ tlce> Dut adding that the attorney for the defendant did not f°»int- attend; that his counsel however was there, with whose con

sent, an agreement was made between the agent for the defendant and the plaintiff's attorney,that the cause should not be brought on before the Friday in the second week of the circuit, on the Thursday next preceding which day, the court adjourned; that it was impossible to bring on the trial during the circuit, because, in consequence of the agreement entered into, the plaintiff had sent his witnesses home, and they were not to return till the Friday appointed.

Per curiam. Let the defendant take nothing by hi* motion, and pay the plaintiff his costs for opposing.

Service on

John Russcl against Jonathan Ball and others. THE court ruled in this cause, that service on the agent guu. Costs, of an attorney plaintiff, is as good as in any other suit, and that it need not be personal. Also that though unavoidable occurrences may prevent judgment, as in case of nonsuit, yet they will not, separately considered, excusf from payment of costs; for the misfortune of the plaintiff ought to be borne by himself,. and not work a prejudice to the defendant.

Jackson on the demise of Green and others, against Limit, areai- Robert Billings.

iS."ta c°xcc": THE defendant was a prisoner with the privilege of the «uchmcntfo?limits of thc S*01 °f New-York. While so in confinement,

•Oftl.

Herrick

Attachments were issued asrainst him in this and fifteen *LEAN7'

_° August 1803.

other suits, for contempts in not paying costs pursuant to an order of court- On their being lodged against him, the Sheriff committed him to close custody, under an idea Manlvthat an attachment for a contempt was in all cases a criminal process, and the defendant therefore not entitled to the indulgence of the limits.

The case was now submitted to the court, whether the defendant was within the meaning of the privilege. The court were unanimously of opinion that he was, on giving *uch security as the law requires.

Gardner Herrick against Samuel Manly.

THIS was an action of trespass for false imprisonment. dcUvt"s to » Tbe defendant pleaded not guilty. The cause was tried ^^against on the twenty-fifth of May, one thousandeighthundredand *he. da^dant

J •" ° in his own suit,

three, before Mr. Justice Kent, at the Rensselaer circuit. °" which the

defendant is

The plaintiff called Samuel Hawley, a constable, and prov- taken and imcd, by him, that he arrested and imprisoned the plaintiff order and diby order of the defendant. The counsel for the defendant Saimiff.cannot then asked the witness, by whose authority he made J^^ h?^jjTM such arrest and imprisonment? whether it was not by 'hcrdefendant

. *or 'a'5c impn

virtue of an execution issued by a justice of the peace, sonment.under

, ,. ... , , • t , . . _ . tic general is

deuvered to him as constable, against the now plaintiff, m sue, give the favor of the now defendant? His honor the judge over- hi 'evidence t>y ruled these questions, being of opinion, that it was suffi- S/i cient for the plaintiff to prove that Hawley imprisoned him JJ" 5tatute for by order of the defendant j and that it was not competent pleading in cer

1 tain suits, but

for the defendant to explain by*the same, or any other wit- he may do it in

... <• 1 1 1 • 1 order to shew

Bess, either the cause 01 the arrest, or the authority by that the defenwhich it was made. The defendant's counsel then stated, ^'ted"" w» and offered to prove, that Manly recovered judgment {jj^^; of against Herrick before a justice; that execution issued » fupcrior au

... thonty,

against the defendant on that judgment, and was delivered by Manly to Hawley, the constable; that Manly requested Hawley to imprison Herrick on the writ thus delivered, which he did; and that Herrick was liable to be imprisoned on the execution. These facts, it was contended, might properly be given in evidence, under the general issue, in

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