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NEW-YORK,
May 1803.

Griswold & an.

V.

Stoughton.

Grifwold and another against Stoughton.

ASSUMPSIT on a promiffory note. The plaintiffs had 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 regularly enter on the defendant, who lives in the city of New-York. Judgcufe fhewn how ment by default having been obtained,

ed, and no ex

it was incurred,

tho' the fubfe

Pendleton moved to set it aside on an affidavit stating that quent proceed- no rules had been entered, either for interlocutory judgment, ings be fet afide or for the clerk to report damages on the note, offering at the for irregularity, the default will fame time to pay costs, and put in special bail.

ftand, and plaintiff may perfec his judgment. See Rule 8th of April 1796. Cole. Ca. Prac.

5.

Trial by record to be on notice.

Riggs contra. The proceedings are regular to the default: the affidavit states no excufe for that; and though the fubfequent steps are not according to strict practice, the defendant, being in default, and that default regularly entered, is not entitled to favour. The utmoft, 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 muft ftand: but as the fubfequent proceedings are irregular, they must be fet afide, with the usual liberty, however, for the plaintiffs to perfect their judgment this term, if they can.

Manhattan Company against Herbert.

HOPKINS moved for a rule to bring on a trial by record. By the court. Trials by record are to be brought on by noMead, Cole. Ca. tice, in the fame manner as cafes for argument.

See Knap v.

Prac. 122.

After ftipula

circumstances

allow a fecond

Livingston against Delafield.

THIS cause had been put off on the ufual affidavit of abtion, the court fence of a witnefs, in expectation of whofe return the plaintiff will on fpecial had ftipulated to try peremptorily: on his not doing fo, the excufe, and not defendant had, on a former day, moved for judgment, as in grant judgment cafe of nonfuit, for not proceeding to trial; but not fucceeding, and the caufe not having been brought on according to the fecond ftipulation, the motion was now repeated. On the part of the plaintiff, an affidavit was read, stating that the wit

as in cafe of non

fuit.

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 1803. tion to try was in expectation of his return.

Per curiam. The witnefs having been conftantly out of the ftate ever fince the fuit was commenced, and being a seafaring man, fome indulgence is due from his way of life. The defendant therefore can take nothing by his motion.

Bedle & ux. against Willett.

BY the court. The notice of a motion to refer must contain the names of the referees. The court never nominates them. But the making the motion is not confined to the first day of term: notice may be given afterwards, on fhewing a reasonable caufe for the omiffion.

Edmund Seaman against John Davenport and others, tenants in poffeffion.

Livingston

V.

Delafield.

Practice on referring a caufe. See the Act, I

Rev. Laws N.

Y. 347, 8.

IN partition, after service of the petition and notice, Hop- Practice in parkins moved for a rule to appear and answer. The court at tition. first thought this a rule of course; but on the counsel'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 act, vary in particular cafes, the court feemed to coincide, but faid that the rule must be drawn up as the party fhould be advised.

John B. Church against the United Infurance

Company.

ing up a rule

plication, and

THE plaintiff had obtained, in last January term, an order Mifprifion of of court for the verdict recovered in this caufe to ftand, and clerk in drawjudgment to be given accordingly, unless the defendant should, amended on apfourteen days before the next "fittings" in New-York, give the plaintiff nonotice to the plaintiff that a commiffion iffued in the fuit had ticing to the adbeen returned, in which cafe there should be a new trial, and 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 been right.

verfe party the

error, may have

as if the rule had

NEW-YORK, immediate notice of the mistake to the defendant's attorney, May 1803. and that he fhould be prepared to try the caufe at the fittings. John B. Church The defendant not having noticed the return of the commiffion,

V.

U.Infurance Co.

Peremptory mandamus fet

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.

HOFFMAN moved to enter a vacatur on a rule for a peremptory mandamus, and fet afide the mandamus which had tion, if unfairly been iffued on the following facts:

afide on mo

iffued.

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

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

On the first 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 first rule ; but Beach had previously left Albany, and the mandamus iffued.

At the laft term Mr. Colden was charged with the business, to make the proper application to the court, and to oppose 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 stayed until the present term. Mr. Colden therefore did not further attend to the

caufe.

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

Seaman and others against Drake.

NEW-YORK,
May 1803.

V.

Drake.

A MOTION had been made laft term on the part of the Seaman & al. defendant's bail to vacate the judgment and all fubfequent proceedings. The facts of the cafe were these :

If the principal be difcharged under the infol

bankrupt act, and his bail af

vent law or

terwards be fix

have an exone

retur entered

on payment of cofts.

In April term 1800, final judgment had been regularly entered, and a capias ad fatisfaciendum against the body had iffued. In July term following, the writ was returned cepi corpus in cuftodiam; on which the defendant applied to fet afide the judgment and execution on an affidavit of merits, ed, they may and that his attorney, who refided two hundred miles back, notwithstanding did not know of the alteration in the rules of practice, by which the defendant was to plead in twenty days, and not as before, in the next term. The judgment was accordingly fet afide on payment of costs, and a ftipulation to plead in twenty days. No plea being given, in October term 1801 judgment was confirmed. The roll had been carried in, costs taxed, judgment docketed, and the roll marked as filed, but the clerk had omitted to fign it. A capias ad fatisfaciendum was iffued, directed to the fheriff of New-York, and returned not found. In January term 1802, another capias, but not a teftatum, was directed to the fheriff of Ulfter, on which nothing was done. In April term 1802, a capias ad refpondendum was iffued against the bail on their recognizance. In July term 1802, another. In September 1802, another. In October term 1802, another. In January term 1803, returned taken. The application first mentioned was then made on three grounds: First, That the proceedings were irregular, the roll not having been figned by the clerk pursuant to the law of 24th March 1801, ch. 75, f. 7. Secondly, that there was no teftatum capias iffued to the fheriff of Ulfter. Thirdly, that the principal had been discharged under the infolvent law.

1801, ch. 105.

Per curiam. On the first point, we confider the omiffion 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 * 31st March therefore the world has the due and legal notice of its exif- f. tence. On these principles, we, the last term, ordered an amendment nunc pro tunc, and the fame must be done now, by ordering the fignature of the clerk to be added in the fame

C

3.

NEW-YORK, manner. On the other two points we will, as the counsel requeft it, hear them at a future day.

May 1803. Seaman & al.

V.

Drake.

July term 1808.

Hopkins now moved for leave to enter an exoneretur on the bail piece, and produced the discharge of the principal under the infolvent law of the state. 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. Process against the bail was returned cepi corpus on the first 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 cause on two grounds: 1. Because it ought to have been a teftatum writ, it having iffued into a county different from that in which the venue was laid. 2. Because 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 omiffion, 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 first objection, on account of the preffure of business was poftponed till the present term; and it being evident that the object of the motion was the relief of the bail, the proceedings against them were in the mean time directed to stay.

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 stated, and alfo on the further fact that the principal was infolvent, and was discharged under the infolvent act on the 25th September 1801. The ca. fa. was returned non eft in July term laft, and the action against the bail is ftill pending.

It is now objected, that the bail ought not to be permitted to avail themselves of the defendant's discharge, because it was not a ground on which the motion depended at the last term. But this cannot be a good reason to charge the bail if they are otherwise entitled to relief.

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

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