May 1803. NEW-YORK, this practice in one cafe, but to render it univerfal and permanent; or, in other words, to declare, that every sheriff, Bogert & anoth. however diftant he may refide, fhall answer in Albany or V. Hildreth. New-York for escapes, for no other reason than because the judgment or writ on which the perfon was arrested is to be found in one of thofe counties. It is aftonishing that actions of this kind have ever been regarded as tranfitory: this, however, without any decifion on the point, appears to be the cafe. Why they should be local, has already been suggested. Much vexation must be the confequence if we decide (which will be the effect of a vacatur) this rule, that in no case shall a fheriff have a trial of this kind in his own county, because a judgment, which can be proved without the personal attendance of any one, has been rendered elsewhere. Actions of this nature are within the reason of the "act for the more eafy pleading in certain fuits rendering local certain fuits against sheriffs and other public officers ;" and it would be a Livington J. good rule, in which I* fhould heartily concur, to make all the opinion of actions of this kind triable in the county to which the officer belongs, unless strong circumftances rendered it improper. Upon the whole, we are well fatisfied with our decifion the laft term. It was full as favourable to the plaintiff as he had any reafon to expect, and ought not to be disturbed. who delivered the court. + His Honour referred to the following autho rities: 7 Co. I. Cro. Eliz. 574 Radcliff J.+ concurred, observing, however, that according to the English practice he took the rule to be, that where evidence material to the plaintiff's action arises in different Bulwer's cafe, counties, the plaintiff has a right to elect the county in which Wil. 336. Plow. to lay his venue, and to keep it there; that the rule is the 37. b. Styl. 107. fame, whether the evidence consist of matters in pais in each 2 Bl. Rep. 240. 2 D. & E. 238. county, or of record in one and in pais in another. Pursuing that practice, the plaintiffs would be entitled to retain the venue in New-York. But he thought this a question in which we had a right to prescribe a rule for ourselves. Applications to change the venue muft in general rest in the direction of the court, and be regulated by the circumstances of the cafe. Ibid. 275. 6 D. & E. 363. Townsend against New-York Infurance Com pany. MOTION for a commiffion to examine. This caufe had been once deferred for want of testimony, to acquire which a 1 Townsend V. N. Y. Inf. Com. commiffion had iffued. The defendants afterwards, but pre- NEW-YORK, Hamilton objected to its being directed to the commiffioners By the court. The commiffioners having been named in the notice of the motion, and the plaintiff having neither joined nor objected, is now concluded. Hamilton then argued against the application, because it was uncertain how long it would tie up the cause, and the defendants had not entered into any stipulation. By the court. It is unneceffary, for they take the commiffion at their peril: let it iffue. Hamilton hoped that it would be on paying the costs of the circuit. The court ordered them, and feemed to think, that in all cafes of delay, cofts fhould follow. Clarkson against Gifford. commiffioners, Query whether cofts fhould not follow on applications for time? HARRISON moved, on the ufual affidavit, to change the In covenant of venue. Evertfon. This action is founded on a specialty: in fuits Motion granted, feifin, the venue may be changed to where the lands lie. NEW-YORK, Grifwold & 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. Judged, and no excufe fhewn how ment by default having been obtained, it was incurred, tho' the fubfe Pendleton moved to fet it afide on an affidavit ftating 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 perfect 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 ftates 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 must stand: but as the fubfequent proceedings are irregular, they must be set 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 excufe, and not Livingston against Delafield. THIS caufe had been put off on the usual affidavit of abtion, the court fence of a witnefs, in expectation of whofe return the plaintiff will on fpecial circumstances had ftipulated to try peremptorily on his not doing fo, the allow a fecond 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 second stipulation, the motion was now repeated. On the part of the plaintiff, an affidavit was read, ftating that the wit as in cafe of nonfuit. nefs was a feafaring man, and had never been within the state 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 feafaring man, fome indulgence is due from his way of life. fendant therefore can take nothing by his motion. Bedle & ux. against Willett. The de 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 firft 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. 7 Practice on referring a cause. See the Act, 1 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 courfe; but on the counsel's obferving, that proof of service 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 should be advised. John B. Church against the United Infurance Company. THE plaintiff had obtained, in last January term, an order Misprifion of of court for the verdict recovered in this cause to stand, and clerk in drawing up a rule judgment to be given accordingly, unless the defendant fhould, amended on fourteen days before the next "fittings" in New-York, give plication, and notice to the plaintiff that a commiffion iffued in the fuit had ticing to the adverfe party the been returned, in which cafe there should be a new trial and error, may have 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. as if the rule had May 1803. NEW-YORK, immediate notice of the mistake to the defendant's attorney, and that he should be prepared to try the cause at the fittings. John B. Church The defendant not having noticed the return of the com V. U.Infurance Co. Peremptory mandamus fet miffion, 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. 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 person who had acted in behalf of Beach, and obtained the first rule; but Beach had previously left Albany, and the mandamus issued. 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 counfel, and obtained a rule for a peremptory mandamus, which has been iffued. Motion granted. |