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NEW-YORK,
May 18oz. - -
Q: Grifwold and another against Stoughton.
Grifwold & an.
V. ASSUMPSIT on a promiffory note. The plaintiffs had
Stoughton.

proceeded under the act of the Legislature, and had entered If a default be the demand of a plea in the clerk's office, without ferving it £: on the defendant, who lives in the city of New-York. Judgcure hewn how ment by default having been obtained, £ Pendleton moved to set it afide on an affidavit flating that guent proceed- no rules had been entered, either for interlocutory judgment, # or for the clerk to report damages on the note, offering at the the default will fame time to pay costs, and put in fpecial bail. £ Riggs contra. The proceedings are regular to the default: may perfect his judgment the affidavit states no excufe for that; and though the fubse# * quent steps are not according to strict practice, the defendant, Cole. Ca. Prac. being in default, and that default regularly entered, is not en5. titled to favour. The utmost, therefore, the court will do, is to vacate the proceedings from the default. Per curiam. As the default is not accounted for by the affidavit, it is unimpeached, and therefore must stand: but as the fubsequent proceedings are irregular, they must be set afide, with the usual liberty, however, for the plaintiffs to per

fect their judgment this term, if they can.

Manhattan Company against Herbert.

Trial by £rd HOPKINS moved for a rule to bring on a trial by record.

b notice. • to £ v. By the court. Trials by record are to be brought on by no

£" tice, in the same manner as cases for argument. Prac. 122.

Livingfton against Delafield.

After flipula- THIS cause had been put off on the usual affidavit of ab# £ fence of a witness, in expectation of whose return the plaintiff

£ had ftipulated to try peremptorily: on his not doing so, the

£ £ defendant had, on a former day, moved for judgment, as in

£ case of nonfuit, for not proceeding to trial; but not succeed

as in case of non- . •

fuit. ing, and the cause not having been brought on according to the fecond stipulation, the motion was now repeated. On the

part of the plaintiff, an affidavit was read, fiating that the wit

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nefs was a feafaring man, and had never been within the ftate New.YORK, of New-York fince the fuit commenced, and that the ftipula- May l8°3\ tion to try was in expectation of his return. Uvingfton

Per curiam. The witnefs having been conftantly out of the T

ftate ever fince vnefuit was commenced, and being a feafaring '_"

man, fortve indulgence is due from his way of life. The defendant therefore can take nothing by his motion.

Bedle & ux. againft Willett.

BY the court. The notice of a motion to refer muft con

r . r mt_ • Practice on re

tain the names or the reterees. 1 he court never nominates ferring a caufe.

them. But the making the motion is not confined to the firft £" th5 Aa'J

, n Rev- Law* N.

day of term: notice may be given afterwards, on fhewing a Y. 347,8. reafonable caufe for the omiilion.

Edmund Seaman againft John Davenport and others, tenants in pofleflion.

IN partition, after fervice of the petition and notice, Hop- pra<a;Ce in parkins moved for a rule to appear and anfwer. The court at tJtionfir/r thought this a rule of courfe •, but on the counfel's obferving, that proof of fervice was by the act required to be made to the fatisfaction of the court, and that the manner of the fervice would, according to the aft, vary in particular cafes, the court feemed to coincide, but faid that the rule muft be drawn up as the party mould be advifed.

John B. Church againft the United Infurance
Company.

THE plaintiff had obtained, in laft January term, an order Mifpriflon of of court for the verdift recovered in this caufe to ftand, and flcrk in dr:i1T"

ing up a rule

judgment to be given accordingly, unlefs the defendant mould, amended onapfourteen days before the next "fittings" in New-York, give ^Siiffinotice to the plaintiff that a commifiion iffued in the fuit had ticing to the adbeen returned, in which cafe there ihould be a new trial, and error, mayhave the plaintiff at liberty to amend, &c. The clerk had drawn the fame benefit up the rule before the next " circuit." The plaintiff had given blcn r;g]lt-<'

NEW-YORK, immediate notice of the miftake to the defendant's attorney,

^L lJ^\, and that he ftiould be prepared to try the caufe at the fittings.

John B. church The defendant not having noticed the return of the com

IT . r '• „ miflion,
U.InfuranccCo. *

Hamilton moved, that the rule be amended to "fittings,"

and be made abfolute for judgment. Ordered accordingly.

James Everitt, Surrogate of Orange County,

ads.

The People of the State of New-York, ex. rel.

Charles Beach.

Peremptory HOFFMAN moved to enter a vacatur on a rule for a pe

afide on mo- remptory mandamus, and fet alkie the mandamus which had iffri! unfairly been i^"ued on tne following facts .'

A rule was obtained in July term 1802, that defendant fhew caufe, by October term, why a mandamus fhould not iflue, compelling him to proceed in a caufe then depending before him, concerning the will of Thomas Beach.

A return was made to this rule, which, from the defendant's counfel being unavoidably detained on his way to Albany, was not filed until the third day of the October term.

On the firft day of October term, Charles Beach attended, and obtained a rule for the mandamus: and on the third day, on filing the return, that rule was vacated.

Notice of the vacatur was given to the perfon who had acted in behalf of Beach, and obtained the firft rule; but Beach had previoufly left Albany, and the mandamus iflued.

At the laft term Mr. Colden was charged with the bufinefs, to make the propef application to the court, and to oppofe a peremptory mandamus. On Mr. Colden's way to Albany, he met Mr. Morton, the attorney for Beach, when it was agreed, that all further proceedings fhould be ftayed until the prefent term. Mr. Colden therefore did not further attend to the caufe.

The relator Beach attended at Albany the clofe of the term, employed other counfel, and obtained a rule for a peremptory mandamus, which has been ifiucd. Motion granted.

Seaman and others againft Drake. ^jTM1?'

A MOTION had been made laft term on the part of the Seamavn & ^ defendant's bail to vacate the judgment and all fubfequent pro- Drake, ceedings. The. facb of the cafe were thefe: ■

In A^v'u term 1800, final judgment had been regularly en- £ ^^g"1 tered, tnd a capias ad fatisfaciendum againll the body had if- under the infolfued. In July term following, the writ was returned cepi bankruJT afl, corpus in cuftodiam j on which the defendant applied to fet »»d ni« ba"1 ala&de the judgment and execution on an affidavit of merits, edTMthcy may" and that his attorney, who refided two hundred miles back, notwithftanding

... ., e 1 1 1 > f ~. . "aTe »n eione

did not know of the alteration in the rules of practice, by retur entered which the defendant was to plead in twenty days, and not as onpaymemof before, in the next term. The judgment was accordingly fet afide on payment of cofts, and a ftipulation to plead in twenty days. No plea being given, in Ocrober term 1801 judgment was confirmed. The roll had been carried in, cofts taxed, judgment docketed, and the roll marked as filed, but the clerk had omitted to fign it. A capias ad fatisfaciendum was iflued, dire&ed to the {herifF of New-York, and returned not found. In January term 1802, another capias, but not a teftatum, was dirt£ted to the fheriff of Ulfter, on which nothing was done. In Apri\ term 1R02, a capias ad refpondendum was iflued againft the bail on their recognizance. In July term 1802, another. In September 1802, another. In October term 1'802, another. In January term 1S03, returned taken. The application firft mentioned was then made on three grounds: Firft, That the proceedings were irregular, the roll not having been figned by the clerk purfuant to the law of 24th March 1801, ch. 75, f. 7. Secondly, that there was no teftatum capias iflued to the fheriff of Ulfter. Thirdly, that the principal had been difcharged under the infolvent law.

Per curiam. On the firft point, we confidcr the omiflion of the clerk's fignature as an error of our officer. This ought not to prejudice the plaintiff, defendant, or any other perfon. The judgment was docketed as the ftatute requires,* and * 3xft March

e ■ ti. ,1 ... . e ■/> 1801, ch. lOJ.

therefore the world has the due and legal notice of its exil- r. 3.
tence. On thefe principles, we, the laft term, ordered an
amendment nunc pro tunc, and the fame mult be done now,
by ordering the fignature of the clerk to be added in the fame

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manner. On the other two points we will, as the counfel requeft it, hear them at a future day.

Hopkins now moved for leave to enter an exoneretnr on the bail piece, and produced the difcharge of the principal under the infolvent law of the ftate. By this it appeared, that the defendant's eftate had been affigned by order of the court of common pleas of the county on the 25th of September 1801, and the defendant difcharged by the fame court on that day.

Colden contra. The bail are too late in their application for relief. Procefs againft the bail was returned cepi corpus on the firft day of January term laft. They were therefore in eight days after abfolutely fixed.

Per curiam. On Friday, in the fecond week of the laft term, a motion was made to fet afide the ca. fa. iffued in this caufe on two grounds: 1. Becaufc it ought to have been a? Ujlatum writ, it having iffued into a county different from that in which the venue was laid. 2. Becaufe the roll was not figned by the clerk, and the record was therefore incomplete, and the judgment irregular.

The fecond objection we confidered as a mere clerical omiflion, and it was difpofed of at once by permitting the clerk to add his fignature to the roll nunc pro tunc. The confideration of the firft objection, on account of the prefiure of bufinefs was poftponed till the prefent term; and it being evident that the object of the motion was the relief of the bail, the proceedings againft them were in the mean time directed to ftay.

Another motion is now made for a rule that an exoneretur be entered on the bail piece, founded on the irregularity of the ca. fa. as above ftated, and alfo on the further fact that the principal was infolvent, and was difcharged under the infolvent act on the 25th September 1801. The ca. fa. was returned non efl in July term laft, and the action againft the bail is ftill pending.

It is now objected, that the bail ought not to be permitted to avail themfelves of the defendant's difcharge, becaufe it was not a ground on which the motion depended at the laft term. But this cannot be a good reafon to charge the bail if they are otherwife entitled to relief.

In the cafe of Van Alftyne ads. Brinkerhoff, we permitted

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