NEW-YORK, A. M'Gregor V. C. Loveland. If after fuit brought the fum be reduced by a partial payment below 250 dollars, and a cog A. M'Gregor against C. Loveland. THIS was a queftion of practice fubmitted to the decision of the court on the following statement: The above fuits were brought on notes exceeding two hundred and fifty dollars each; afterwards a fum of money was novit be taken paid, and fecurity given by Loveland the indorfer, by which for fuch refidue, the amount was reduced below 250 dollars: cognovits were Supreme Court cofts cannot be then given for the refidue by each defendant. It was understood at the time, by the defendant's attorney, that the judgments should carry Supreme Court cofts. Query. May not the clerk tax them accordingly? claimed. Practice as to cofts or a con Per curiam. No: the plaintiff fhould have taken his cognovit and entered his judgment for a fum above 250 dollars, to entitle to Supreme Court cofts; they cannot otherwife be allowed. The following question was also fubmitted: Several fuits are confolidated by rule on a policy of affurfolidation rule. ance; if the leading fuit fhould recover more than 250 dollars, and the other fuits lefs, will the party be entitled, by virtue of the confolidation rule, to Supreme Court cofts on the fuits that are under 250 dollars? If a fuit be compromised be James and Samuel Watson against Frederick THIS, and three other fuits were commenced, against the above defendants and several others, on a policy of infurance tween the par- on the brig Defiance, and a confolidation rule figned and enties, without the knowledge tered. About a year afterwards the defendants, in the above of the attornics, fuit, compromifed with the plaintiffs who cancelled the policy and nothing faid about cofts, each as to them; of this the defendants' attorney had no informahis tion nor was there any rule to difcontinue, or other rule entered, and the other fuits proceeded. The principal caufe party pays own. V. F. Depeyfter & Co. went on to trial, and the jury found a verdict for the defend- NEW-YORK, ant, which was acquiefced in. May 1803. The defendants' attorney thereupon entered rules for judgment as in case of nonfuit in J. & S. Watfon all the causes, pursuant to the consolidation rule, and the costs were taxed and judgment rolls ready to be figned. It was now fubmitted to the court on these facts, to decide whether the rules for judgment, and the judgment for costs as in case of nonfuit, were regular or not; or, whether they ought to be fet afide. N. B. At the time of compromife nothing was faid about cofts. Hoffman, as amicus curiæ, informed the bench, that in -Wallace v. Lockwell it had been decided, that if a party compromised without knowledge of his attorney and the plaintiff went on, each paid his own costs. Per curiam. In every fuit each party is fuppofed to advance as his fuit proceeds. If each has paid cofts and then they compromife, the fuit is fettled; for the tranfaction imports no further proceeding is to be had; nothing more than a fimple discontinuance to enter on record, and nothing being faid about costs each must pay his own. The parties ought to have informed their attornies there was a compromise. Hudson against Henry. MR. Henry moved for judgment of nonfuit against the plaintiff for not proceeding to trial. Notice of the motion had been sent to the adverse attorney by the mail. Per curiam. This notice is infufficient. A letter may miscarry-or the attorney may be absent when the mail arrives, or not immediately inquire for letters, though an affidavit of a plea fent by the mail might fave a default. defendant take nothing by his motion.* Notice of motion for judg ment as in cafe of nonfuit, fent by the mailisnot good notice; though fuch a notice might fave a default. See Cole and ano. ads. StafLet the Prac. 107. Beebe ads. Paddock ibid. 135. ford. Cole. Ca. Manhattan Company against Smith in custody. THIS cafe was brought up from the Mayor's Court. The application was to prevent the difcharge of the defendant on account of the plaintiffs' not proceeding to execution in due time according to the act for the relief of debtors with refpect to the imprisonment of perfons; the counfel for the plaintiff relied on Brantingham's cafe, Cole. Cas. Prac. 42. The To an applica tion for a fuperfedeas for not having been charged on exe cution within 3 months after judgment, it is a good anfwer NEW-YORK, J. & S. Watson V. P. Depeyster & Co. that the defend ant has fince been charged. Attorney on be Court, without hearing any argument for the defendant, fald the authority cited was conclufive. Livingston J. acquiefced because it had been fo decided, but confeffed he did not believe the legiflature intended the construction put upon the act by the court, should ever be given to it. The rigour of the practice was in his opinion enough to condemn it, for he thought the neglect in the plaintiff ought to accrue to the advantage of the prifoner. Steele and ux. at the fuit of Tennent. Steele, and Fuller, his bail, at the fuit of Tennent, affignee of the fheriff of Washington. THE original fuit was trefpafs quare clausum fregit, in ing retained for which Steele and his wife had been held to bail under the ftaa defendant fhould examine tute ;* after the return of the writ the plaintiff obtained an ftate of proceed- affignment of the bail bond on which he iffued the ufual ings; though it pro is but fair prac- cefs, filed his declaration on the first of October 1802, and entice for plaintiff's attorney to dif- tered a default the eleventh of November; on the 17th the close them for partner of the plaintiff's attorney received, when in his office, want of doing notice of the retainer of an attorney on behalf of the defend : fo in a fuit ry and interlo fuit fet afide on terms. * 31st against bail, af- ants in the bail bond fuit, but no information was then given ter a default entered execution of any default having been entered. In January following of writ of inqui- final judgment was figned. On the eighth of March 1803, cutory judg the attorney for the defendants in the bail bond fuit was fervment in original ed with a notice of executing a writ of inquiry + in the original fuit; a declaration also in the fame fuit was then deliv18013 March ered, which the plaintiff's attorney fwore was merely to apprize the defendant of the nature of the demand; but the attorney of the defendant swore it was served abfolutely not on any condition, and that he did not know of the entry of the default in the bail bond fuit or that any declaration had been however if this ought not to be filed; that acting under that impreffion he did not attend the on application to the court by execution of the writ of inquiry or apply to the court laft 3. + Under f. 16 31st March of ch. 90. of 1801. Query motion. term. On these facts the defendant now moved that the default and interlocutory judgment in the original action and all the proceedings in the bail bond fuit be fet afide and the defendants in the original caufe let in to plead. Per curiam. The court are of opinion the defendant's attorney was in default. He ought to have feen that the proceed V. P. Depeyster & Co. ings in the fuit on the bail bond were regular. He fhould NEW-YORK, have called after the default and tendered cofts. We do not May 1803. fay that the not difclofing the entry of the default in the fuit J. & S. Watfon against the bail amounts to a furprife, but it would have been rather more candid to have mentioned that circumftance. Let the judgment on the bail bond ftand as fecurity and the cofts on that remain alfo. The default and fubfequent proceedings in the original fuit to be set aside on payment of the cofts of entering the judgment under the statute, and executing the writ of inquiry. The defendant to plead inftanter to the declaration filed, take short notice of trial, and pay the cofts of this application. Livingston J. I think the cofts on the bail bond ought to be paid. William Lowry against Andrew Lawrence. ON demurrer. The memorandum was of another term. Be it remembered, that heretofore, to wit, on the third Tuesday of July in July term, in the year of our Lord one thousand, eight hundred and one, &c. came William Lowry, and brought into the faid court then there, his certain bill, &c. The fuing out the writ is the commencement of the fuit, and caufe of action dent; if it must be anteceif it ap pear otherwife on the face of The declaration was on a Bill of Exchange made in 1797, the pleadings it prefented for acceptance on the first of October 1801, and is fatal on fperefused, of which notice to the defendant, who, on the 11th of October, promised. To this the defendant demurred, and fhewed for caufe, that although the faid declaration is entitled of the term of July, in the year of our Lord one thoufand, eight hundred and one, yet the said several promises and undertakings in the faid declaration mentioned, are therein ftated to have been made on the eleventh day of October, in the year laft aforefaid, which is fubfequent to the time of the exhibiting the declaration of the faid William against the said Andrew, and for that it appears by the faid declaration that the pretended caufes of action therein fpecified had not, nor had either of them accrued to the faid William at the time of the exhibiting his faid bill in manner aforefaid. The defendant infifted that, by the practice of this court, the fuing out the writ was the cial demurrer. NEW-YORK, Commencement of the action; and if fo, the declaration fhewed on the face of it, no caufe of action when the fuit was commenced. May 1803. W. Lowry V. A. Lawrence. Ogden for the plaintiff. It is contended on the part of the plaintiff that nothing appears on this record to warrant a judgment for the defendant. By the course of the court the filing of the bill is the com Johnfon & al. mencement of the action in a legal sense. 2 Burr. 950. v. Smith. See Lord Mansfield's opinion 961. Cowper 454. Fofter v. Bon ner. Cafes 33. The latitat is confidered only as process. The action is not deemed to be commenced until the bill is filed, though the real time of fuing out the latitat is allowed to be fhewn, where it becomes material; as to prevent the running of the statute of limitations, &c. If fuch a neceffity existed in this cafe the actual time of fuing out the final procefs might have been fhewn by plea. But where it does not exift the fiction of law will be preferved, and especially fo when it is in furtherance of juftice. On this occafion, the true question therefore is, when, in a legal or technical sense, The cap 1 Comyn's Di- was this action commenced? This can only be afcertained geft 103. Mod. by fhewing the time of filing the bill. The time of filing the bill may be examined into to fhew the time of commencing the action. It ought to have been fhewn by pleading in this cafe. Not being fhewn the court are at liberty to prefume that it was after the cause of action accrued. tion of the declaration is matter of fiction and not conclufive upon either party. If it be conclufive, all actions by bill of privilege; actions against attornies of the court; actions against absent or abfconding debtors, giving fecurity to appear to any declaration which may be filed by the petitioning creditor, would be defeated in all cafes in which the caufe of action accrued, during the vacation in which the declaration is filed. Because in all these cafes the declaration is entitled of the preceding term, and muft neceffarily be ftated in the memorandum to have been brought into court of that term. This doctrine involves no hardship upon the defendant; because, if in the first instance procefs be iffued before the cause of action accrued, a Judge will discharge on common bail. So if the bill be filed before caufe of action accrued, the actual time of filing it may be fhewn and pleaded in abatement or in bar. In this cafe, it does not neceffarily follow, that the cause of action did not accrue before the commencement |