BREED against COOK AND CADWell. IN ERROR, on certiorari to a justice's Court. NEW-YORK, BREED V. COOK. Where, on the sale of goods, vendor the The defendants in error brought an action in the Court be- the vendee delow against the plaintiff in error, for part of the price of a horse livers to the sold by them to him. The price of the horse was 65 dollars; promissory note in part payment for which the defendant below delivered to the of a third perplaintiffs a promissory note for 23 dollars, drawn by one Fill- son, which he more, payable in six months, to the defendant or bearer. When dorse, it is to be the note became due, Fillmore was utterly insolvent. en considered as payment, and to the the note was or It was proved, on the part of the defendant below, that at the the vendor cantime of the sale of the horse, the plaintiffs requested him to en- resort not, afterwards, dorse the note; this he refused to do, and stated that the maker vendee, unless of the note was as well known to the plaintiffs as to him; and forged, or there that the plaintiffs, after inquiring into the solvency of the maker, was fraud finally agreed to take the note without endorsement. The jus- tion on his part tice decided, that the plaintiffs *below not having made any [* 242] special contract to take the note at their own risk, the de- as to the solven fendant was liable for the amount of it, and rendered judg- (a) ment accordingly. Per Curiam. The justice erred. Admitting the rule of law to be as he apprehended, yet he clearly misapplied it; for the evidence in this case showed very satisfactorily that the vendors agreed to take the note at their own risk. The purchaser told them expressly that he would not endorse it, and there is no pretence of fraud. The decision in the case of Whitbeck v. Van Ness, (11 Johns. Rep. 409.) gives the true rule on this point, which is, that if a vendor of goods receive from the purchaser the note of a third person, at the time of the sale, (such note not being forged, and there being no fraud or misrepresentation on the part of the purchaser, as to the solvency of the maker,) it is deemed to have been accepted by the vendor, in payment and satisfaction, unless the contrary be expressly proved. Judgment reversed. (a) Butler v. Haight, 8 Wendell's Rep. 535. Ren v. Barker, 3 Cow. Rep. 272. Mulden v. Whitlock, 1 Id. 290. Porter v. Talcott, Id. 359. Smith v. Rogers, 17 Johns. Rep. 340. misrepresenta cy of the maker. 191 NEW-YORK, GILBERT V. VANDERPOOL. Where process is issued Court against he is an attor GILBERT against VANDERPOOL And Beekman. IN ERROR, on certiorari to a justice's Court. The defendants in error brought an action in the Court beout of a justice's low against the plaintiff in error, who was an attorney of this an attorney or Court. The summons was issued during the term of this counsellor, and Court, and was returnable on a day subsequent to the last day served during the term of the of term. On the return of the summons, the parties appeared, Court of which and the defendant pleaded that he was an attorney of the Suney or counsel- preme Court, which was sitting at the time the summons was lor, the defend issued and served, and claimed his exemption under the proant may plead his privilege in viso in the 8th section of the act concerning costs, (1 N. R. [* 243] L. 345.) (b) which takes away the privilege of an attorney or abatement, al counsellor, in cases of debts to the amount of 25 dollars, though the pro"unless it shall appear that the Court wherein he shall be such able after the attorney or counsellor shall be then sitting." The justice overruled the plea. A trial was then had on the general A plea in a- issue, and judgment was rendered in favor of the plaintiffs justice's Court below. cess was return end of the term. (a) batement. in a need not be verified by affidavit PLATT, J., delivered the opinion of the Court. Two questions are presented for our consideration in this case: 1. Whether the defendant below was entitled to exemption from this suit upon the facts stated in his plea; and, 2. Whether the justice was bound to receive or notice the plea in abatement, without affidavits of its truth. On the first question, we are of opinion that, according to the true construction of the 8th section of the act concerning costs, an attorney or counsellor of any Court of record is exempt from the service of process issued out of a justice's Court, during the sitting of the Court, of which he is an attorney or counsellor. The term of such Court may continue until the day before the return day of the summons; and then the defendant would have only one, instead of six days, to prepare for his defence; the legal intendment being that the attorney or counsel is occupied exclusively in the business of the term during its continuance. The statute has modified the common law privilege, by subjecting attorneys and counsellors, during vacation, to the jurisdiction of justices; but the effect of the proviso is to leave them completely under the protection of their common law privileges during the terms of their Courts. On the second question, also, the opinion of the Court is in favor of the defendant below. The 23d section of the act for the amendment of the law, (1 N. R. L. 524.) (c) requiring dilatory pleas to be verified by affidavit, is expressly made applicable to May, 1818. HUBBARD v. SPENCER. [ *244 Courts of record only. A justice's Court, in the sense of that NEW-YORK, statute, is not a Court of record. The statute says, "that no dilatory plea shall be received in any Court of record, unless the party offering such plea do, by affidavit, prove the truth thereof, &c." This is said in reference to the practice of all Courts of record of receiving written pleas, in vacation or in term, by filing them in the clerk's office, and has no reference to a justice's Court, where the pleadings are generally ore tenus, and are never required to be in writing, and where the pleadings are always in open Court. That a defendant might make, an oral plea in abatement, and yet be required to verify it by an affidavit, that is, an oath in writing, was never intended by the legislature. A plea in abatement in a justice's Court, like every other plea, must be proved, unless admitted; and in this case the trial and proof of all disputed facts was immediately to follow the plea. The reason, therefore, for requiring an affidavit to verify a dilatory plea, in Courts of record, does not apply to a justice's Court. In the one case, the effect of a plea in abatement, if frivolous, is to delay a trial on the merits, for a term, at least in the other case, the plea in abatement, and the plea on respondeas ouster, are all tried at the same sitting. Besides, the affidavit (if any were necessary) was waived in this case, as the plaintiffs made no objection to the plea on that ground. The plaintiffs and the justice seem to have put the cause on the single point, that, as the return day of the summons was after the term of the Supreme Court, the attorney was amenable to the justice's Court, although the process was issued and served during the term. On that point the justice erred, and the judgment for the plaintiffs below ought to be reversed. Judgment reversed HUBBARD against SPENCER. became discon Where a cause IN ERROR, on certiorari to a justice's Court. in a justice's The defendant in error brought an action of debt in the Court, having Court below against the plaintiff in error, on a judgment ren- been adjourned, dered by another justice in favor of the former against the *lat- [* 245] ter. Moss, who gave the judgment, testified, on the part of the tinued, by the plaintiff below, that Hubbard, the defendant below, had been non-appearance brought before him on a warrant at the suit of Spencer, the the adjourned plaintiff; that the cause was adjourned until the 30th of Decem- day, and more of the plaintiff at than a month after, a person who had been authorized by the defendant to appear for him at the adjourned day, and confess judgment, came before the justice, and without the knowledge of the defendant, confessed a judgment for the plaintiff, as of the day to which the cause was adjourned, it was held, that this judgment being void, the defendant might avail himself of the irregularity in an action upon it. (a) VOL. XV. (a) Relyea v. Ramsay, 2 Wendell's Rep. 602. 193 HUBBARD V. SPENCER. NEW-YORK, ber, 1815, on which day neither of the parties appeared, nor any May, 1818. person on their behalf; that in February next, thereafter, the plaintiff appeared before him as of the day to which the cause had been adjourned; that one Sherrill was introduced as a witness, who swore that previous to the 30th of December, Hubbard, the defendant, authorized him to confess a judgment in favor of the plaintiff, at the time to which the cause had been adjourned; that Sherrill, on being questioned, said, that he thought his authority to confess the judgment extended to the present time, and that he, therefore, confessed a judgment before the witness for 17 dollars and 88 cents, with costs, and that the witness entered the judgment as of the 30th of December, preceding. This was the only testimony given; and it did not appear that the defendant ever had any knowledge of the judgment before Moss, until the trial in this cause. The justice who tried this cause gave judgment for Spencer, the plaintiff below, for the amount of the judgment before Moss, with [* 246] costs. PLATT, J., delivered the opinion of the Court. The suit originally instituted before Moss was unequivocally discontinued by the non-appearance of the plaintiff in that suit, on the 30th of December, 1815; and the parties then stood in the same situation as if it never had existed. According to the testimony of Moss himself, the judgment before him was entered nunc pro tunc, nearly two months after the discontinuance of the suit; and the only color for that extraordinary proceeding was, that the defendant had authorized his attorney, Sherrill, to appear at the adjourned day, and confess a judgment on the suit then pending, coupled with the opinion of Sherrill, that a power to confess a judgment at the adjourned day, was sufficient authority to confess a judgment in February, after the parties were out of Court, so as to have it entered as of the 30th of December, preceding. I think such a proceeding is not to be endured. The foundation of this suit is a judgment against a man who was not in Court, *who was not under process of any kind, and in fact had no notice of the proceeding against him. Although he authorized Sherrill to confess a judgment in December, non constat, but that he had paid the debt, or had a good defence against the claim in February following. It is against the first principles of justice to conclude the rights of a person by a proceeding to which he was not privy, and against which he had no opportunity of defending himself. The only question is, whether we can notice the illegality of that proceeding in this collateral way. In my opinion, there is ground to infer a fraudulent connivance between the plaintiff and Sherrill, who confessed the judgment before Moss; but I am also of opinion that Moss had no jurisdiction when he received the plea of confession, and, therefore, his judgment, nunc pro tunc, was void. The justice was limited, by * May, 1818. CANIFF statute, to a certain course of proceedings; and it would NEW-YORK be preposterous to give such a construction to the statute as would authorize what was done in this instance. It must, therefore, be regarded as a proceeding coram non judice, and void; and hence it follows that the judgment in this suit has no foundation, and must be reversed. V. MYERS. Judgment reversed. CANIFF against MYERS. Where a par the execution of IN ERROR, on certiorari to a justice's Court. The plaintiff in error brought an action in the Court below ty appears by attorney, in a against the defendant in error, and on the return of the process, justice's Court, the attorney is one Barnes appeared as attorney for the plaintiff. The defenda competent ant objected to him, and demanded his authority; on which witness to prove Barnes produced a written power, purporting to be signed the power to and sealed by the plaintiff, and to which the attorney was himself. (a) the only subscribing witness. Barnes offered himself as a witness to prove the execution of it, but was objected to by the defendant, and excluded by the justice, who gave judgment of nonsuit, in which he included all the costs on both sides. Per Curiam. As between the plaintiff and defendant, the attorney was a competent witness to prove the authority to himself to appear as attorney in the suit. He acquired no right to costs in consequence of swearing to the execution of the power, and, therefore, had no interest. The justice also erred in giving judgment against the plaintiff for his own costs. Judgment reversed. (b) (a) Gaul v. Groat, 1 Cowen, 113. Tullock v. Cunningham, Id. 256. Pixley v. Butts, 2 id. 421. (b) Vide Timmmerman v. Morrison, 14 Johns. Rep. 369. [* 247 ; 195 |