Charles M. Graham against Richard M. Wood- ALBANY, hull. THIS was an action brought against the defendant, for faying, that the plaintiff had been guilty of perjury. To this the defendant had pleaded the general issue, and a justification, fetting forth a particular perjury committed in an examination before Thomas Cooper, Efquire, one of the mafters in chancery. Feb. 1804. Graham v. Woodbull. In flander for faying of the plaintiff that he was perjured, and a particu lar perjury pleaded in juf the court will, on The affidavit of the abfence of the witnefs by whom it was to be proved, payment of Hoffman moved for liberty to plead another plea, or to tification, the give notice of special matter, to be given in evidence on general iffue, in addition to the pleas already pleaded. application was founded on an affidavit ftating the above facts, and also, that the pleas were delivered in Auguft laft, give leave to a and iffue foon after joined; that at the time of pleading the mend by plead above pleas, one Gleeson, who could have proved the truth perjury, on of the above juftification, was in New-York, or its vicinity, costs. and the defendant relied on being able to produce him at the trial; but, that fince that time, Gleeson had quitted this ftate, and was gone, the defendant knew not whither; that the charge of perjury was true, and that under the idea of being able to have the benefit of Gleefon's evidence, the defendant had not given notice of justifying by proof of another perjury by the plaintiff before the recorder of NewYork, in an application for relief under the infolvent law. Bogert contra. The defendant's plea of juftification is confined to that before the master. The other may, even allowing it to be true, have taken place long fince. The queftion, therefore is, whether the court will allow a fubfequent perjury, admitting it to have been committed, to justify a former charge of perjury. This is an action of flander, and out of the general rule of amending and adding pleas. Hoffman in reply. The declaration is general; and for any thing that appears, both perjuries might have preceded the action, nay, cotemporaneous, as they might be in relation to the fame difcharge. We only afk to amend on the ufual terms of paying cofts.. After fome little converfation on the bench, in which it was conceived, this practice might poffibly lead to hunting for inftances of perjury, the court granted the motion on Feb. 1804. ALBANY, payment of cofts, faying, they could not make any diftinetion between actions of flander, and other cafes. Arden & Clofe v. Rice & others. If a caufe be important or intricate it is cause for a Ambrose Spencer against Ezra Sampson. THIS was an application on the part of the plaintiff for a ftruck jury, in an action on the cafe for a libel. The affidavit on which it was founded stated, that the words spoken ftruck jury In of the plaintiff, were concerning him in his official character as attorney general, were false, and that the caufe was at truth ought to iffue. actions for words to obtain it, the be denied. and the caufe at if W. W. Van Nefs opposed the motion, and urged, that to fue, ut femb. entitle to a ftruck jury, the cause ought to be important and intricate that though he might allow the importance of every cause relating to character, yet, its intricacy he must deny, and both these circumstances are neceffary by our ftatute. S. P. and for want of thofe circumstances le refufed. If the court be fatisfied, a demurrer is Per curiam. The words of the ftatute are, «intricate important." It is of great confequence to this court to pro tect its officers, and those of the 'public in the discharge of their duty. Take your rule. Foot against Harry Croswell THIS was a fimilar application: the affidavit ftated the action to be for libellous words spoken of the plaintiff, exhibiting him in an odious point of view, as guilty of fwindling that a right determination was important to his character in fociety, and iffue joined. : Per curiam. The plaintiff can take nothing by his motion, his affidavit is defective, in not stating that the words were spoken of him in his official character of district attor ney, and in not swearing to their falsehood. Richard D. Arden and Epiphalet W. Close a gainst Randal Rice, Consider White, and Hen ry Townsend. THIS caufe had been noticed by the plaintiffs for argu ment, at the laft term, on a general demurrer filed by the de put in merely fendants to the declaration; the court had, on the statement for delay, and the oppofite of the plaintiffs' counfel, that the demurrer wa merely for fide has notic ed the demur- delay, overruled it, and granted a rule for judgment, the Feb. 1864. counsel pledging himself to open the rule any day on an af- ALBANY. fidavit of good cause of demurrer, or of merits. On fervice of the rule for judgment, the defendants gave a cognovit, on which the plaintiff entered up his judgment in the last vaca- Van Wagenen tion. Gilchrift V. and Moore. Lawrence V. Foot moved to fet afide the judgment, contending that it Van Wagenen. Could not be entered but in term. Some little variance of opinion exifting on the bench, refpecting the practice, on this point it ftood over till the laft day of term, when the court thus decided. ment, who does not appear, the demurrer will be overruled, and rant for argu judgment or dered, the par Per curiam. By the 8th rule of April '96, judgment, after a rule for a default entered, may be entered at any time after 4 days in term have intervened. The rule of July term, 1796, or- ty obtaining it, ftating himself dering all rules for judgment to be entered in 'term, and not ready to oper the rule if good in vacation, was abolished,in April term 1799, and reftor- caufe of demur. ed the first rule. There is no good reason why 4 days in term shewn. Judgfhould be given in this cafe to the defendants, any more entered upon a than on a warrant of attorney to confess judgment. The de- cognovit, in fendants take nothing by their motion. Spencer J. diffented, on the ground that the practice had been different, Robert Gilchrist against Peter Van Wagenen and John I. Moore. rer or meritsbe ment may be vacation. [ Augustine H. Lawrence v. Peter Van Wagenen. THIS was an application by the attorney of the plaintiffs, for liberty to file special bail in both fuits, to enable torney has been him to furrender the defendant. The circumstances as disclosed on affidavit, were thefe: The defendant, Van Waganer, had been arrested in both actions, one of which was for 4000 dollars, and the other Where an at from peculiar circumstances, induced to au thorife the sheriff to discharge a prifoner, on a fingle bail, who afterwards turns out in folvent, the no oppontion bona fide, 31 for 400 dollars, at a very late hour of the night, and was, by the officer who took him, carried to the house of the plain- court will, if tiff's attorney, who was then in bed. Being called up, the de- be made, and the attorney's fendant requested him to take asbail one John S. Moore, conduct appear who was at first refused. But on the defendant's representing the diftreffed ftate his family would be in, and the fhock would be to his credit, fhould he go to jail, the attorney, on ftatute, to put in fpecial bail, receiving faithful affurances, that fufficient bail fhould be for the purpofe put in by nine o'clock the next morning, agreed to accept furrender of low him, after it filing commen bail under the of obtaining a Feb. 1804. body, to fave ALBANY, John S. Moore, as bail for that night, and the defendant was, accordingly, fuffered to go at large. The defendant, Ex parte Peter however, inftead of putting in fatisfactory bail, as he had Reynolds. promifed, went immediately on board a veffel that he ownthe defendant's ed, which was bound for the Weft-Indies, though he knew at the time that Moore, who has fince been declared a bankrupt, was then infolvent. On this the plaintiffs' attorney filed common bail in each of the fuits, according to the provisions of the statute; but having been threatened by the plaintiffs with being called on for the amount of their debts, Boyd made the application above mentioned, which, pot being oppofed, was granted. himfell from liability. ALOITE AB ODE BIAN If a man be turned out of poffeffion, by a THIS was an application for a writ of reftitution. The facts are stated in the opinion of the court, which was delimiftake in ex-vered by, ecuting a writ of poffeffion against him, in ther, the court tion, grant re reftitation. Spencer J. It appears by the affidavit of the deponent, Itead of ano- (and the allegation is uncontroverted) that in October laft, will, on mo- upon a writ of habere facias poffeffionem iffued out of this lief, and order court, in the cafe of John Jackson ex dem' Nicholas Low and others, the deponent was turned out of poffeffion of a house and 50 acres of land, being part of lot No. 37, in Romulus, in the county of Cayuga; that the poffeffion held by him, was delivered by the agent of Mr. Low; that the deponent was, prior to the commencement of the ejectment against James Reynolds, in peaceable poffeffion of the land from which he was expelled; that the object of the suit against James Reynolds was, for the recovery of different lands which he held on another part of the lot, and that the two poffeffions were feparate and distinct. It is a fettled rule of practice, that no tenant, who was in poffeffion anterior to the commencement of an ejectment, can be difpoffeffed upon a judgment, and writ of poffeffion, in which he is no party. It is the opinion of the court, that Peter Reynolds is entitled to relief, and that a writ of reftitu tion iffue to re-inftate him in the poffeffion of the premises, from which he has been thus irregularly oufted. ALBANY, Jack Lon V. Elisha Durkee against Ichabod Bracket, q. t. THIS was an application for a rule or certiorari, to be directed to the juftice of the peace, before whom the cause was tried, requiring him to certify, whether Ichabod Brack- Stiles & Griffin et, the plaintiff before him, was not by him, permitted to be fworn as a witness, and testify in his own cause. * As no bill of excep will be without re If a justice of the peace, in a caufe before him, admit a plaintiff to be fworn and tef tify as a wit caufe, this certiorari, as Harrifon in fupport of the motion. tions will lie in this cafe, the injury medy, unless the court, by virtue of their fuperintending ju- nefs in his own rifdiction, please to interpofe. This they have authority to court will do, from their general controling power. This differs from grant a rule or the applications to return evidence, becaufe, there it would the party may be advifed, to be to affume a right to determine on facts, matters cognize able by a jury alone. The granting of a certiorari, is not confined to reasons that appear on the record. In 4 Vin. 342. Letter D. pl. 7. title certiorari, the writ was allowed to inquire, whether the defendant, who had pleaded his protection, as the King's fervant, was attending on the King, for his own business, or the King's. Henry contra. This is in substance to bring up the fact; and this court has decided, it will not oblige a juftice to return evidence. have that mat ter returned. *1 Rev. Laws 376 The words of the act are, When any one who is impleaded before any judges or juftices, doth allege an exTherefore, ception. &c. query as to this and fee 2d Init. Per curiam. Take your rule or certiorari as you may be 427. (2), advised. James Jackson, on the demise of Stephen Hogeboom against John Stiles, and Austin Griffin, tenant in possession. IN this, and feveral other actions under demifes from the fame leffor, the tenants moved to set aside the rules which had been entered to appear, and enter into confent rules, or that judgment go against the casual ejector. The notice of motion ftated, that the applications would be grounded on an inspection of the declarations, notices, and affidavits on file, by which it would appear, that three of the notices were directed in blank, and one to James Perkins, inftead of the tenant, James Kerman. Harrison. In Ejectment, the declaration is analigous to procefs, and ought, therefore, to be governed by the fame In eje&ment, On a motion to fet afide, the rule to appear and enter, &c. if the application be found ed on irregu fupported by larities to be infpection of the declaration &c. on file, & the plaintiff produce affidavit of due fer vice &c. it will be presumed that all was re |