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, feeing the whole business progrefs, and, had its terinination been favourable, they would have abided by the event; as they deem it otherwife, 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 party has a fhort 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 last 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, Manhattan Co, V. Brown. Mandamus to the court lies to mou Pleas for not figning a bill of 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. THE defendant in this fuit being in cuftody on mefne procefs, executed a warrant of attorney to confefs judgment for the amount of the debt, but it was not witnessed by any 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. If a perfon in meine procefs, of attorney,the cuftody, on ign a warrant nature of which is ex plained to him by an attorney, who does not witness 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- fer it afide. fectly well apprised of its nature, which had been explained The Reg. Brev. 182, contains a writ, grounded on the stat. Ed. 1, commanding the judges to put their feals juxta formam ftatuti. If they make a falfe return, an action lies against them. See 2 Inft, 427--Show. Pa.Ca.117. Feb. 1804. ALBANY, to him, by an attorney, though not actually his attorney, or the attorney of the plaintiffs, and that the whole tranfaction was bona fide, and without surprise. Rofs, &c. Hubble & wife Where it is The inclination of the court appearing to be against the application, the proceedings having been within the spirit of the rule relied on; and, it being fuggested at the bar, that it was doubtful, whether the English rules of E. 15. Car. 2. and E. 4. G. 2, had ever been made a rule of this court, though the practice was acknowledged to have been in conformity to its regulation, Hoffman confented to withdraw his motion, and let the judgment ftand as a fecurity for the debt, the plaintiffs delivering a declaration, and agreeing to go to trial on the merits.* Stephen Ross and others against Nehemiah Hubble and Jemima, his wife, administratrix of Ichabod Paterson. THIS was a motion to fet afide the default entered in nece"ary only the cause, and all subsequent proceedings with costs. to indorfe an appearance on the writ, bail not being required, it is the duty of the clerk of the court to enter the appearaance of re cord. If judgment be figned before it is fo entered, it is good, and the court will order the appearance to be entered nunc pro tunc. The affidavits contained a variety of unimportant facts, but the only queftion, worth noticing, which was relied on, was one of practice, whether it was regular to a writ, which was in trefpafs only, and returned with the names of the defendants indorfed, to enter their appearance in the clerk's office, after judgment was figned. It was contended that, as the court would order it to be done on application, it was, in fact, doing no more than that, which the court would fanction. Per curiam. It is faid that no appearance of the defendants, by special or common bail, or an entry of appearance was of record, when the default and judgment were returned. As the procefs in the caufe did not require bail, the defendants indorfed their appearance on the capias. It was the bufinefs of the clerk, and not of the attorney, to have In Hutfon v. Hutfon 7 D. & E. 8, court of King's Bench, held that the benefit of the English rules referred to, could not be waved by a prifoner, and that the prefence of the plaintiff's attorney was infufficient, tho' acting for the prifoner at his request and entreaty, and though pressed to fend for another attorney, to witnefs the inftrument, with the nature of which the defendant was perfectly acquainted, Feb. 1804. David Gordon entered their appearance. This may be done nunc pro tunc. ALBANY, The laches of the clerk ought never to prejudice the attor ney. We, therefore, deny the motion with cofts of oppofing. Henry Waterbury and another against John De lafield. a V. Walter Bowne. Where a fuit folidated, and a has been con commiffion fu ed out in the confolidated caufe, in which the defendant has joined, the THIS was the principal fuit in feveral actions on a policy of infurance, in which a confolidation rule had been granted. A commiffion to examine had been taken out, titled in confolidated caufe; in the commission, the defendant joined and titled his cross interrogatories in the fame manner. Hoffman moved to read, in the principal caufe, the evidence court will altaken under commiffion, titled in that which had been dence taken confolidated. The court, after fome words by Pendleton in oppofition, granted the motion, with cofts to abide the event of the fuit. In the matter of Paul Richard Randall, an absent debtor. low the evi- . under it, to be read in th trial of the prin cipal fuit. If the truf cftate admit THE attornies of the debtor, who was ftill abroad, ap- tees of an abplied to have the fum of five thousand five hundred dollars fent debtor's paid to them by the trustees of the creditors, on a petition there will be a. furplus after ftating, that after payment of all demands then established, payment of all and keeping in hand a sufficient fum to answer any which might appear, there would remain, of the money, now in the Manhattan bank, to the credit of the debtor's eftate, very large furplus. a These facts being admitted by the trustees, the court was pleased to grant the prayer of the petition. demands, the court will, on petition, order a part to be paid to the debtor, or his agent. David Gordon, survivor of John Munro and Da- Wherea vid Gordon, against Walter Bowne. plaintiff has neglected to file a capias an appearance THIS was an application for leave to file the capias, and and enter enter the defendant's appearance nunc pro tunc as of the for two terms, laft Auguft term. though there be an affidavit fwearing to an agreement that a all the proceed The facts as they appeared on the feveral and long affidavits read, were, that the plaintiffs were the afflured on policy of infurance, underwritten by the defendant; being in embarraffed circumftances, and unable to that, ings fhould be confidered as of meet antcedent, the a third term ALBANY, their payments, they entered into a compofition with their V. court will not appearance nunc pro tunc Feb. 1804. creditors, of whom the defendant was one, to pay them, on David Gordon receiving a release from all demands, fifteen fhillings in the Walter Bowne, pound; ten fhillings to be paid by approved indorsed notes, and the remaining five fhillings, by their own; the indorfers give leave to to receive an affignment of a part of the property of the file the capias and enter the of the plaintiff and his partner, by way of security against their indorsements; that in pursuance of this agreement, as of the third the defendant received his two notes of ten fhillings and five term paft, effhillings in the pound, executed a release, and the policy in be alked with a queftion was affigned to perfons for whofe benefit the prevent a fetoff, of fent action was brought; that the note for ten fhillings in a note falling the pound was duly paid by the affignees of the policy. The third, and be attorney for the plaintiff called on the defendant, a few term, but will days before August term, to inform him of the intended &c. to be as of fuit, when the defendant affured the attorney, that the matterm paft. In- ter would be accommodated, and, if not, that he would condorling an ap- fent to proceedings being as of Auguft term; that a capias pecially if it appear that it view to pre due fince the fore the fecond order the capias the fecond pearance on a greement that the proceedings dered as of that term, writ of a term was afterwards fued out on the second of August last, repaft, is not evi. dence of an a- turnable the fixth, but not served till after August term, at which time the defendant indorsed his appearance, and as srl be confi- the plaintiff's attorney verily believed with intent, that all proceedings fhould be deemed as of Auguft term; that the declaration was titled as of Auguft term, though the capias has not been yet filed; that fince August, the plaintiff has become a bankrupt, and that the defendant had pleaded, giving a notice of setting off a note which fell due on the 8th of September laft, and was the very note for five fhillings in the pound given by the plaintiff and his partner, in compofition for their debts. Hoffman infifted, that the indorsement of the writ by the defendant, was tantamount to a written agreement, as it was evidence in writing of the agreement, which was further coroborated by the pleadings. Curia advifare vult. Spencer J. delivered the judgment of the court. The defendant refifts the application, relying principally on this: that he holds to nearly the amount of the plaintiff's demand, a note against him due on the 8th of September Feb. 1804. Mafters V. Edwards. laft, which he intends to fet off. The object of the plaintiff's ALBANY, motion, is, if poffible, to exclude this effect; on this ground, that his demand is affigned for the benefit of certain perfons who have paid debts for him, incurred by indorfements to his compounding creditors. The defendant denies notice of fuch affignment; both parties admit the insolvency of the plaintiff. The verbal agreement between the attorney for the plaintiff and the defendant, cannot be attended to; a rule of this court forbids fuch agreement being alleged. . There has been laches on the part of the plaintiff, in not entering his fuit as of August term, and to avoid that laches, the court is now applied to. In granting favors of this kind, the court ought to be careful not to do injustice, and it appears to them, that granting the rule as applied for, might have that effect; for, most certainly, the defendant's claim to offset, is better founded, than that of the affignees to recover. Let a rule be entered, that the plaintiff have leave to file his writ, and enter the defendant's appearance, as of the laft term. Thompson J. I am forry to be under a neceffity of differing from the court; but I think the indorsement of appearance is evidence of an agreement as ftrong as if it had been reduced to writing, and fufficiently indicatory of the intent of the parties, to avoid any of the confequences against which the rule in queftion was framed. How far the defendant may, by filing the capias, and entering an appearance of August term, be precluded from a fet-off, or by the prefent rule entitled to it, is unneceffary to determine. My opinion is, that the plaintiff ought to have the effect of his motion. Kent J. I concur in the opinion laft given. I deem it a point of moral rectitude to enforce all agreements, when the evidence is fuch, as is not contravened by any rule of law. But as the judgment of the court is, to deny the full extent of the plaintiff's application, he can take no more than has already been pronounced. Masters versus Edwards. THE defendant had been furrendered in exoneration of If a defendant be discharged |