er appear in four days, or judgment shall be entered by de«fault.". Therefore the entry of the default is perfectly consistent with the practice of the court, and must remain: But as judgment ought not to have been signed till four days after, and it appears to have been done on the very day, that is irregular, and therefore must be set aside. Radcliff and Livingston, justices, absent. William Neilson Catharine Cox, Magdalene Beekman, Abraham H. THIS was an application on a point of practice in partition. The defendants had not appeared, and as the act does not specify any mode of compelling them to come in, Woods, on behalf of Riggs, moved that the following rule be made absolute, which the court, after perusal, was pleased to order. RULE. New-York Supreme Court." William Neilson, V. Catharine Cox, Magdalene In Partition. The defendants having neglected to answer or plead to the petition of the plaintiff, within the time allowed them by a rule of this court for that purpose, and it appearing by the said petition, that the plaintiff is seised in fee simple, as tenant in common, of two undivided fifth parts of the premises in the said petition mentioned, and that the defendant Catharine Cox is seised in fee simple, as tenant in common, of one equal undivided fifth part thereof, and that the defendant Magdalene Beekman is seised in fee simple, as tenant in common, of one equal undivided fifth part thereof, and that the defendants Abraham H. Beekman and Johannah his wife, in right of the said Johannah, are seised in fee simple of one equal undivided fifth part thereof, which not being denied, THE COURT DOTH THEREFORE deterMINE the rights of the said parties to be, as in the said petition is stated, whereupon and on motion of Mr. Riggs, attorney ALBANY, August 1803, Neillon V. for the plaintiff, Ir is ORDERED, that partition of the said premises be made between the said parties, according to their said respective rights, and it is ordered, that A. B. Cox & others. C. D. & E. F. being three respectable freeholders of the city of New-York, be, and they are hereby appointed commis sioners to make the said partition among the said parties quality and quantity relatively considered, according to the respective rights of the parties aforesaid. To change the venue in a tranfitory action, very fpecial cause mult be fhewn. N. B. The commissioners are named by the party to the court, and if approved of, appointed according to the nomination. Radcliff and Livingston, justices, absent. John Woods against Maus R. Van Ranken. VAN VECTEN moved to change the venue from NewYork to Albany, in an action on the following promissory. note: "On or before the 18th day of February next, for value received, I promise to pay at the Bank of Albany, to Maus "R. Van Ranken or order, seven hundred and twenty-five "dollars. Witness my hand this 9th day of August 1802. "DERICK TEN BROECK." The deposition, on which he moved, stated it to have been given on a usurious consideration, but did not set forth in what the usury consisted, nor between whom it had passed. Woods read an affidavit made by the agent of the plaintiff, who was the second indorsee, denying all usury in himself or any one else to his knowledge, and that the note was taken in part payment for a bonâ fide sale of goods in NewYork. In addition to this, Woods insisted on the general rule, that in transitory actions the venue is never changed except on very cogent and strong circumstances. He also relied on the deficiency of the defendant's affidavit. Per curiam. This is an application to change the venue in a transitory action; special cause ought therefore to have been shewn. We are of opinion that what has been done is not sufficient to take the case out of the general rule adopted with respect to suits of this nature. The defendant ought to have offered as much to change, as the opposite party would have been obliged to alledge in order to retain Supposing therefore that to be the criterion, he ought to ALBANY, August 1803. Woods V. shew when the usury originated, and that the witnesses resided here; but the affidavit does not state when the usury took place nor that the cause of action arose in Albany. For though the note is apparently made here, and payable Van Ranken. at the Bank of Albany, it was negociated in New-York, and the presumption is, it was made where it was passed. The doctrine now acted upon is established 1 D. and E. 781. It is necessary to shew that the cause of action arose and that material testimony is to be given in the place where the venue is to be removed. The defendant therefore can take nothing by his motion. Radcliff and Livingston, justices, absent. Cyrus Jackson against Rodolphus Mann. WOODWORTH moved for judgment as in case of nonsuit, for not proceeding to trial according to notice, on an affidavit stating that the cause being duly noticed, the defendant issued and served subpoenas on his witnesses, after which the notice was countermanded. Schoenhoven contra, read an affidavit setting forth that the plaintiff, for want of a material witness, who could not be then found, was unable to proceed to trial, and that notice of countermand had been given four days before the circuit court; he therefore insisted there was no ground for the application, and that from the principle of Brant v. Buckhout, the defendant could, not only take nothing by his motion, but the plaintiff was entitled to his costs for opposing. Woodworth distinguished this from the case mentioned, by the defendant's having been here put to costs. Per curiam. The only question here is, who shall pay the expence. The plaintiff must certainly bear the charges of his own countermand: That and the notice are equally his acts; the expences therefore incurred after notice, always fall to him when he countermands. The judg ment of nonsuit must therefore be refused, but the plaintiff to pay the defendant the costs of subpoenaing his witnesses prior to the countermand. Radcliff and Livingston, justices, absent. See Ante 4, and the opinion of Radcliff, J. in which the principles of the English practice are concifely and accurately stated. If a plaintai for trial, and countermand the defendant the intermedi ate cofts of fubpoenaing his witneffes. † Ante. 113. ALBANY, August 1803. Martin 3. Bradley & others. Debt will not lic against the adminiftrators of a fheriff, for an efcape in the life time of their intellate. Walter Martin against Daniel Bradley, Bildad Beach and Nabby Beach, Administrators of Elnathan Beach, late Sheriff of Onondaga. THIS was an action of debt against the administrators of the sheriff of Onondaga for an escape in the life time of their intestate. The defendant put in a general demurrer to the declaration. Henry in support of the demurrer. The present question will give but little trouble to the court, for as it is debt for an escape against the administrators of a sheriff, it will be brought to a single point, whether this suit does not fall within the rule of "actio personalis moritur cum personâ.” It is founded on a tort, arising ex delicto of the intestate. 3 Black. Com. 302 is express that it is not maintainable, because the right against the intestate is derived ex delicto, and therefore dies with the person. In the case of Hambly v. Trott Cowp. 375 Lord Mansfield in settling the meaning and extent of the rule now insisted on, specifies the action of escape against a sheriff, as one which, from its cause, dies with the person. It is an injury ex maleficio, from which the intestate derived no advantage to himself, and this is the principle on which his personal representative is not answerable. Ibid. 376. The same doctrine is to be found in Fitzh. N. B. 121 A. n. c. In Berwick v. Andrews 6 Mod. 126.* case 171. In Dyer. 271. a.† the same principle is acknowledged, for it is there ruled, that debt for an escape will not lie against an heir. And in Whitacres v. Onelsey and others executors, it was held that it could not be sup ported against the warden of the fleet. From these authorities it is evident the action cannot be maintained. Russel contra, merely referred the court to 1 Com. Di. title administration B. 14 and the authorities there, to prove It was not the point in queftion, but a dictum of Powell, J. which Holt faid he had known adjudged contrary. The law however is clearly as in Hambly v. Trott. That was against the heir of the gaoler. Dyer, 32% 31 that when the ground of complaint rested on tort or misfeazance, there was a remedy against the administrators.* ALBANY, Auguft 1803. Martin V. thers. Per curiam. The law has been settled, both from the time of Dyer and Fitzherbert, as stated by the counsel for Bradley and othe defendant, judgment must therefore be in favor of the demurrer. The People against Cornelius Shaw. ON certiorari to a conviction for forcible entry and detainer before the justices in Renselaer County. The return to the writ was "Renselaer County State of New-York, } 2 An indictment for forcible entry and detainer, muft ftate a feifin in at the time of the profecutor the entry, and alfo fhew an defendant. To entry by the entitle to cofts on quashing an in ictment it that the party indictment. must appear traversed the This court may grant re-refti AN inquisition of the people of the state of New-York taken at "Hoasick in the county of Renselaer on the twenty fourth ❝ day of March in the year of our Lord one thousand eight * hundred and one and in the 25th year of the Indepen"dence of the United States of America by the oaths of "Daniel &c. good and lawful men of the said county be*fore John Cumstock esquire one of the justices assigned "to keep the peace in the said county and also to hear and "determine divers felonies trespasses and other misde- tution, "meanors in the said county committed; who say upon "their oaths aforesaid that Samuel Millerman of the town " of Hoasick aforesaid yeoman long since lawfully and "peaceably was seised in his demesne as of fee of and in "one messuage consisting of a dwelling house with the "appurtenances in Hoasick in the county aforesaid and "Cornelius Shaw of the said town of Hoasick and county ❝aforesaid labourer on the fourteenth day of instant March " at the said town of Hoasick and county aforesaid with "strong hand and armed force the said messuage or free❝ hold aforesaid did without law or right detain and him "the said Samuel Millerman thereof and with strong hand " and armed force so did keep out from the said messuage "with the appurtenances aforesaid from the said fourteenth ❝ day of inst. March in this present year of our Lord one "thousand eight hundred and one until the day of the taking ❝ of this inquisition with like strong hand and armed force There is not any fuch authority. The reference alluded to must be that citing Dyer 14. a, in marg, but it does not warrant the position. |