Feb. 1804.

felf is no stay. The defendant, therefore, can take nothing ALBANY, by his motion, and must pay the cofts of the prefent appli

not revoke his own warrant,

appointing ap

of the act in

THIS was an application to make absolute a rule nifi, ob- A judge cantained last term, to confirm the report of William Popham, Abijah Hammond and Richard Hatfield, three perfons who, praifers under under the fifth section of the act incorporating the Manhat- the sth fection tan Company, had been nominated and appointed by his corporating the Honor, Mr. Justice Kent, to estimate the damage done to the Company. A pavements of the streets of New-York by the Manhattan the city of New Company, in laying down the pipes which convey water that fection, inthrough the city.

Manhattan

frecholder in

York is, under

competent to act as an ap

by laying the

pipes. Want of

in a notice of preferring a pe

Harrison, in fupport of the rule, read a petition from the praifer of the damage done Mayor, Aldermen and Commonalty of New-York, ftating, to the tree's that all the streets and highways in the city are, by law, veft- Manhattan ed in them and their fucceffors, and were fo previous to the time and place 2d of April, 1799. That the Prefident and Directors of the Manhattan Com- tition is fatal.A pany, fhortly after their incorporation, and without licence the party at iberty to come from the petitioners, had dug in feveral of the streets trenches in and oppofe for laying the water pipes of the Company, and materially s applied to, injured the pavements.

That ineffectual endeavours had been used to bring the Company to an agreement with the petitioners, and therefore they prayed perfons to be appointed to estimate, &c. He stated also, from affidavits, that on the fixth of July laft a copy of the above petition was ferved on the Manhattan Company by delivering the fame to their cafhier; that this was previous to the delivery of it to Mr. Justice Kent for his warrant, (but how long previous the affidavit did not ftate); that on the 12th day of the fame month the warrant, appointing the three perfons above named, was issued; that on the twenty-fixth day of the fame July a copy of the war

rule nifi leaves

when the court

for making it abfolute.

Feb. 1804.

ALBANY, rant was served on the cashier of the Company, and on the next day a notice that the perfons, so appointed, would meet Corporation, at 10 o'clock of the fame day to proceed in the duties affignManhattan Co. ed them.

V.

Hamilton, contra, insisted that, from the facts as they appeared on the affidavits of the other fide, it was manifeft the notice of an application to appoint persons to estimate was imperfect; it fpecified neither time nor place, when and where the Company might attend to oppose the nomination of improper perfons. That this was analogous to, and by the act intended as a substitute to a trial by jury; that, there fore, the fame rights, as would be had in that mode, ought to be preferved in this—and of those rights, that of challenge was one. He then read an affidavit by the President of the Manhattan Company, fhewing, that Mr. Hammond was a very large freeholder in New-York, and there had his principal refidence; and alfo, that the original cost of paving the places was only 3525 dollars, though the damages which had been affeffed, as a compenfation for the injury, amounted to 6881 dolls. From hence he contended, that Hammond was an interested perfon (tho' he might have acted perfectly confcientiously) as the houses of proprietors were affeffed for the pavements oppofite their lots, and the more was gotten from the Company the less would the freeholders be called on to pay. The notice, also, of attending the meeting of the perfons, appointed by the judge's warrant, was of a piece with the reft; it was, as appears by Mr. Remfen's affidavit, ferved on him, as cafhier of the Company, only ten minutes before the affeffors were to affemble. In the next place it may be a question how far any fervice was valid, which was not on the Prefident himself, he being the head of the Company. It is alfo doubtful whether the judge had any jurisdiction, the act gives him authority only when the Company and the Corporation difagree; the petition does not state this, but that they did not agree.

Harrison in reply. The act does not prescribe any time at which notice is to be given. It is evident, however, that there was no intention of furprife as there were fix days be tween the fervice of the petition and the judge's warrant

Feb. 1804.

Suppofing the analogy to trial by jury to be correct, till the ALBANY, Company were too late. The service of the petition was enough to fet them on enquiry, and they have lain by till Corporation, the whole business is finished, and then, because they think Manhattan Co themselves aggrieved, they come forward. Were a party to

be thus filent, and take the chance of a verdict, it would be too late for him to urge any challenge to a juror. The petition ftates that all endeavours to bring the Company to an agreement were ineffectual; whether this amounted to difagreeing, or only to not agreeing, and the distinction to be taken between them, he declined to argue.

Per curiam, delivered by Thompson, J. The application is to affirm the report of appraisers acting under the fifth fection of the statute incorporating the Manhattan Company. The act directs, that "in cafe of difagreement, &c. it fhall "be lawful for the Judges of the Supreme Court of this "state, or any one of them, (not being an inhabitant of the " said city,) upon the application of either party, to nomin"ate and appoint three indifferent perfons to view, examine " and furvey the faid lands, &c. and to estimate the injury "sustained as aforefaid, and to report thereupon without de"lay; and upon the coming in of fuch report, and the con"firmation thereof by the faid court, the Company fhall "pay the fum mentioned in the report," &c. On the part of the Company the first cause shewn against confirming is, that the application to Mr. Juftice Kent was made without due notice. The fecond, that one of the appraisers was interested, and, therefore, an improper perfon. The third, that the damages awarded are exceflive. As to notice it is not denied that it was neceffary, though it is infifted that which was given was sufficient. The petition appears to have been served on the cashier, and contains neither time when, nor place where the application would be made to the judge. The notice then is altogether irregular. It wants the neceffary requifites of time and place to enable the oppofite party to attend and object to the appointment of appraisers. On the fecond point the affidavit of the President shews, that one of the perfons nominated was interested; and this again proves the importance of notice, for had the company ap

V.

Feb. 1804.

V.

ALBANY, peared they might have shewn his intereft and hindered his appointment. This interest is not denied by the corporation, Corporation, they merely urge that it is alleged at too late a period. As to Manhattan Co. the damages, an injury to the amount of 6881 dollars is afsessed on that which originally cost only 3525 dollars. The corporation, it is true, fay that the streets were much injured, but this ought to have been shewn more fatisfactorily, and is fufficient to fend this matter for further inveftigation. A queftion, however, has been made, whether the Company can now avail themselves of thefe objections? They muit be at liberty fo to do now, or they would be remediless. There was not any notice given them to attend before the judge; therefore, to him they could not state their objections. Nor could they have applied to the judge who granted the warrant to make a further or other appointment, for under the words of the act, the judge cannot revoke his warrant. He, therefore, is functus officii. The only resource then is to this court. They have no authority to interfere till this application is made to confirm, and then the matter being before them, they may proceed on the objections taken. The report was returned on the last day of the last term, and from the manner in which the corporation have taken their rule, they seem to fuppofe it might now be opposed by fhewing caufe. There can be no ground, therefore, for imputing laches, as the company have come forward at the earliest period they could, after the court was in poffeffion of the cause by filing the report. But it is contended that the notice, though defective, was enough to put the Company on inquiry, and they ought to have applied to this court directly after service of the petition. The rule of practice in this court, as to defective notices, does not apply to this cafe. It is a special mode of proceeding under a particular act, and, therefore, not within our regulations as to defaults. The court are of opinion, that the report be set aside.

Kent, J. I diffent from this determination. The fact is, that the bank had notice of the petition and of the allegations of that petition. The denial of notice goes only as to time and place. The first intimation they received was on the 6th of July, and the warrant was not iffued till the 12th.

They then again, on the 26th, received a further notice, and it is not till the 28th of November, that the report is made. The Bank remained inactive, seeing the whole business progrefs, and, had its termination been favourable, they would have abided by the event; as they deem it otherwise, they now come to us. It is a rule of moral justice, that no man fhall be permitted to speculate on his own delay. It is against all rules of practice, which require due diligence. If a par-ty has a short notice of trial, it is enough to fet him on inquiry; and if he does not immediately come forward at the next term, we never set aside the verdict he has permitted to go against him. M' Evers v. Macklan and Gelston, January term,, 1800. The bank might have applied in the laft term, either to a judge or the court.

The People against the Judges of the court of Common Pleas in and for the County of Washington.

ALBANY,

Feb. 1804.

Manhattan Co,

V.

Brown,

Mandamus

lies to the court Pleas for not figning a bill of

of Common

RUSSEL moved for a peremptory mandamus to be directed to the Judges of the Common Pleas, for the county of Washington, ordering them to fign a bill of exceptions. Per curiam. Take your rule to fhew cause the first day of exceptions. next term. The practice is, not to grant a peremptory mandamus in the firft inftance.*

Manhattan Company against Brower.

cuftody, on

fig a warrant

THE defendant in this fuit being in cuftody on mefne If a perfon in process, executed a warrant of attorney to confefs judgment mefne procefs, for the amount of the debt, but it was not witnessed by any of attorney,the perfon as his attorney, acting in that capacity for him. Hoffman, on this ground, moved to have the warrant of attorney delivered up to be cancelled, and to vacate the judgment entered.

nature of which is ex

plained to him

by an attorney,

who does not

witnefs it as his attorney,

not ut femb.

Hamilton contra read some affidavits fhewing that the de- the court will fendant at the time of executing the inftrument, was per- fet it afide. fectly well apprised of its nature, which had been explained

The Reg. Brev. 182, contains a writ, grounded on the ftat. Ed. 1, commanding the judges to put their feals juxta formam ftatuti. If they make a false return, an action lies against them. See 2 Inft, 427-Show, Pa.Ca.117.