Volume 1 — Coleman & Caines's Cases

THE defendant, having been surrendered in discharge of his bail, and thereupon committed to custody, the plaintiff proceeded to judgment, but suffered more than three months to elapse after judgment was entered, without charging the defendant in execution.

THIS action was originally commenced in the mayor’s court of the city of Nevj-York, and removed by habeas corpus. Bail had been regularly filed, and Munro for the defendant, moved the last April term, that the plaintiff be nonprossed for not declaring. He cited 2 Cramp= #072,410» 2 Salk. 455. Gilberts Law of Distresses. 139. Cur. ad. vult.

A BAIL piece had been filedj containing the name of one real person, who had, at the same time, filed an affidavit of justification, and of one nominal person» Á rule was then taken to bring in the body, or show cause why ah attachment should not issue against the sheriff - and now Wood for the plaintiff, moved that the rule be made absolute»

A RLE A was drawn and signed, but the defendant’s attorney forgot to file it, and a copy without signature was served. . A default for not pleading was entered during the last vacation, subsequent to the delivery of the plea.

<p>IN this cause, a demurrer was filed to the replication ; the defendant’s attorney, at the same time, applied to the deputy clerk for leave to strike out the similiter, but the clerk refused to permit him to do so. Notice of trial was then given, and an inquest taken.</p>

THIS was an action on bail-bond. The defendant pleaded comperuit ad diem ; plaintiff replied nut tiel record; and issue being taken thereon, day was given, by rule entered in vacation, to produce the record on the first day of this term. And now, on this day, being the quarto die post,

THE plaintiff had filed his declaration in vacation; and the rule to plead having expired, he entered interlocutory judgment the last term, without having first entered a default.

VAN VECHTEN, for the plaintiff, moved for leave to amend the declaration in ejectment, by adding a count on the demise of a person not originally named as a lessor. He mentioned the case of Jackson ex dem. Quackenbos v. Dennis, where this was allowed.

THIS was an application by bail to surrender their' principal, on the following case: In April term, 1797, ca. sa. against the principal was returned non est. On which, the plaintiffs issued a cap. ad resp. against the bail jointly, on their recognizance. This writ was delivered to the sheriff of Herkimer, or his deputy, early in April vacation, being returnable the last Tuesday of July then next.

AT a previous term, Woods had moved for and obtained a rule to stay, proceedings on a writ of error in this court, until the common pleas in West- Chester could be moved for leave to file a plaint mine pro tune, the want of which had been the error assigned here. Application had been made to that court for such purpose, and was refused by them, on which Woods obtained the rule here to show cause why a mandamus should not issue to compel them to allow such application; and now

OGILVIE moved that Amos Wilcocks be admitted to defend' jointly, on his affidavit that the defendants hold of him as their landlord.

MOTION .by Boyd, to stay proceedings on bail-bond. It appeared that the copias in the original suit had been returned in January term last, and that a declaration was filed the 14th of June following j no • bail to the action then being put in. Process issued ° 1 _ on the bail-bond in the last vacation, and on the 10th of August, the defendant was arrested thereon.

THE principal being confined in the county of Herkimer on a charge of felony, application was made for a committitur to one of the judges of that county in April vacation, 1798, and before the return of the copias against the bail) which was refused. let September following, the principal was convicted, and sentenced to be imprisoned at hard labor in the state-prison for life. On these facts a rule was taken to show cause why an exoneretur should not be entered.

SLEIGHT, the plaintifl’s attorney, received a notice of retainer from Smith, in July ; in September following he received a like notice from Bowman, and twice seemed to recognize him, as the attorney in the suit, though he never served him with any declaration, but served it on Smithy and entered a default for want of a plea, which Bowman now moved to set aside on the above statement of facts.

AFTER imparlance, but before judgment, I. S. one of the defendants died ; judgment was then entered against both and execution issued against the survivor, without any suggestion oiyhe record of the death of the other defendant; and oil error coram vobis, a rule had been taken to .show cause why the record should not be amended by suggesting the death of I. S. * .

HERE were 18 separate causes on one policy, lit July term last, on the refusal of the plaintiffs to enter into the consolidation rule, the court granted imparlances in all the causes but one, and the like in Odor her-term, and noy/ Boyd for the defendant makes application for further imparlances.

<p>Motion for like judgment for like cause.</p>

THE original suit was instituted against five ; the sheriff returned four, taken, and as to one, non est / but by mistake took bail bond for the appearance of all. The four who were taken entered special bail, and gave notice, to which there was no exception. The plaintiff then instituted the present suit on the bail bond against the whole. And now,

THE defendant was convicted under the statute, at che last court of oyer and terminer in Dutchess, of perjury, and absconded before judgment. After-wards he voluntarily surrendered himself, but judgment was not pronounced.

IN this cause the plaintiff had proceeded to outlawry, when he received a notice of retaiher from S, ¡S. for the defendant, who, in his notice signed for or on behalf of the defendant, and said verbally, that he did not mean to appear as attorney. At the last term S. had obtained a rule that all proceedings should be set aside ; but no bail had been entered. 7

THE declaration in this cause consisted of a single count in debt on judgment, rendered in the state of Georgia, to which the defendant pleaded? 1st. Nul tiel record, and 2d. Nil debet, with notice of special matter. It was then moved that the defendant show cause why one of the pleas should not be struck out.

ISSUE was joined on the 9th of June last, and on the 19th, notice was given by the defendant, that application would be made this term for a commission : notwithstanding which, on the 26th, the plaintiff gave notice of trial for the July circuit, at which time an inquest was taken by default.

<p>THIS was an application to stay proceedings on ' bail-bond. The attorney for the defendant in the original suit, had given notice of retainer and of bail at the same time, by leaving it at the office of the plaintiff’s attorney (which was kept in his dwelling-house) when no person was present. It appeared that two terms had elapsed before the present suit was commenced.</p> <p>It was insisted, 1st, that the service of notice was ¡regular, and to this point was cited 4 Durn. & East, 464. And 2d, that the plaintiff had been negligent in delaying so long to put the bail-bond in suit. Barnes’’ Notes, 11)3.</p>

MUNRO, indorsee of a bill of exchange drawn by MiKinley £s? Co. sued out an attachment under the act passed 4th April, 1786, for relief against absconding and absent debtors, and seized a vessel, the pro- ■ 1 perty of McKinley EsP Co. Afterwards Munro,received the amount of the bill from Wheeler, his indorsor, but it was agreed between Munro and Wheeler, that the proceedings should still go on for the benefit of the latter, and Munro be considered as his trustee.

THE sheriff was brought in, upon an attachment, and the plaintiff in the original suit having filed interrogatories within the four days allowed him, and the sheriff having also filed his answers, as taken by the clerk, the following judgment was entered :

IN January term last, the defendant, as special bail, was relieved, and an éxoneretur was ordered to be entered, on payment of costs. The costs not having been paid, the proceedings went on ; and now it was moved by Burr to have him relieved, on the ground that costs never having been demanded, nor a bill exhibited, there was no neglect on the part of the defendant in not having paid them.

<p>PROCEEDINGS in ejectment for the Holland Company lands, so called, in the county of Ontario,. as for a vacant possession.</p>

A JUSTICE of the peace was brought up on attachment for a contempt in not having made return to a certiorari directed to him, and made returnable 66 before usP

THIS was an action of assault and battery, and a verdict for the plaintiff at the circuit, for six cents damages and six cents costs. A certificate was given by .the judge who presided at the trial, to entitle the plaintiffs to full costs, but it' was- not given at the trial.

THIS was an action upon a bond given to the she - riff, conformably to the act passed April 5th, 1798, •entitled, “ An act regulating the liberties of gaols.5’ The defendants pleaded five pleas; 1. Non est factum. 2. Performance of the condition. 3. That the escape was by casualty, and that there was a return before suit brought. 4. That the penalty is for more than double the amount of the sum for which the prisoner was confined, and so not agreeable to the statute. 5.

THE sheriff, on the quarto die post, ■ had not returned the writ, and the demandant obtained a rule that he return it, sedente curia, or show cause why an attachment should not issue ; and now, the writ being returned,

<p>THIS was a motion for a new trial; but it was opposed on the ground that judgment having been entered, and no order obtained from a judge to stay proceedings, according to the fourth rule of January term, 1799, the defendant was now too late.</p>

EMOTT moved to amend the declaration after plea pleaded, which was granted, but a question now arose, whether the defendant is entitled both to an imparlance and to costs : vide Str. 950. Dallas, 465. where it is said he shall only have his election of one; but in 2 Blackst. Rep. 785. he had both.

DECLARATION indorsee v. indorsor. Plea in abatement, a former suit by plaintiff v. defendants, to which they had put in a plea in abatement that Francis Childs was a partner and not named, which suit was pending at the commencement of the present suit, and is so still; replication nul tiel record, and issue.

BOYD, for the plaintiff, moves for costs, because the defendant put off the trial at the circuit on affidavit and notice of a motion to be made at the succeeding term fof a commission, the issue having been joined during the vacation.

RULES had been obtained at last October term to stay proceedings on bail-bond suits, the opposite party not having appeared to object. At last January term an application was made to set those rules aside, on the ground that no regular notice of them had been served.

A QUESTION arose in this cause'on the consolidation rule, whether on judgment being rendered in one cause, the plaintiff was entitled to judgment in the other causes immediately ?

THE Attorney General, on affidavit that Butler, one of the lessors of the plaintiff, is dead, and was so when the suit was instituted, now moves, previous to joining in the consent rule, to have the first and second count, in which he is averred to be the lessor, struck out of the declaration.

IN this case a verdict was entered for the plaintiff^ subject to the opinion of the court on the following facts : On the 20th of August, 1799, the defendant was arrested by virtue of a copias tested of July term, and returnable at October; but the note on which the writ issued did not fall due until the 21st, and was not payable till the 24th of August.

WOR.TMAN, for the defendant, moved to postpone the meeting of referees till the return of a witness from abroad, who was expected in two months.

<p>WRIT returnable April term last; declaration filed 6th of May; 11th of June notice of bail; 13th, exception filed ;. on the 11th of July the rule for bringing in the body had expired, and the plaintiff refused to accept of additional bail unless they would justify; on the same day notice of the second bail was given, and an offer made by the defendant to deposit a sum of money to the full amount as security. Two more bail were then put in, with notice of justification on the 19th of July, but they now justified in open court. The defendant also swore to merits.</p> <p>On the above statement of facts a motion was now made for an attachment against the sheriff. Sellon’s Practice, 214. was cited to show that where a trial is lost, an attachment is to go and to remain as a security; vide to the same point, 4. Durn. & East, 352,</p> <p>On the other side it was said, the case in Scllon was where an attachment had already issued.</p>

IN this case a plea was sent by the mail, and the atttorney for the defendant swore that he believed it was received by the attorney for the plaintiff, who, notwithstanding entered judgment for want of a plea: and now

MOTION to stay proceedings on the recogniz-Jhce, and for leave to enter an exoneretur on the bail-piece. It appeared that the defendant was arrested on the recognizance on the 17th of April; that he fell sick on the 21st, and lay ill 10 days ; that on the 26th the principal was surrendered by an agent of the defendant, he being so unwell as to be unable to do it personally. It was objected, 1.

A CASE was submitted without argument, consisting of the following facts : A declaration Was served on the tenant in possession, who, shortly afterwards, quitted, and another came in; then some person, acting as the agent of the plaintiff, caused a second declaration to be served upon the new tenant; this being done without the knowledge of the plaintiff’s attorney, he proceeded under the first declaration, and took judgment against the casual ejector; and now

RADCLIFF, for the tenant in a writ of right, moved, that the demandant, having noticed the cause for the last circuit, and having omitted to bring it on, should stipulate to try at the next circuit, or that judgment of nonsuit be entered for not having tried it at the last, and also that the demandant, in the event of his stipulating, pay costs of the last circuit and of this motion, since the continuance is matter of indulgence to him. 2 Cromp. Pr. 468, 9. 2 Black.

D. TEN BROECK moved to set aside the proceedings on the bail-bond, on the ground that the plaintiff had settled with the defendant in the original cause, before the commencement of this suit, and had directed, the attorney to stay proceedings, but who, notwithstanding,- proceeded..

<p>D. TEN BROECK moved to set aside a default entered agaiinst the tenant, for not pleading.</p>

<p>AN application was made in behalf of the debtor, that the trustees be laid under a rule to report within eight days.</p>

FOOT moved to set aside the default and to be let in to defend, upon an affidavit of merits, and that the omission to plead was occasioned by urgent business. He stated that it was a case of bail, and, therefore, is to be considered as one which comes recommended to the grace of the court.

ON Certiorari. JEmott, in behalf of the justice, moved to quash the writ, .because it required him, among other things, to return the testimony. It was admitted that no notice had been given the opposite party, but it was contended that none was necessary.

PENDLETON moved that the plaintiffs file security for costs before they be allowed to proceed in the suit, on affidavit that one of the plaintiffs had removed to Alezo-Jersey since the commencement of the suit, arid that the other was confined in gaol for debt; and further, that the defendant was informed, and believed, that the cause of action was assigned.

IT appeared that the plaintiff’s attorney, at the time of delivering a new declaration after the consent rules were exchanged, not having received a plea, entered a rule in the cause against the tenant, to plead in twenty days; which not being done, he proceeded to enter a default against the casual ejector.

D. TEN BROECIC moved for an attachment absolute against a witness, on affidavit that he was regularly summoned and money tendered him for his expenses, which he did not object to for its insufficiency, but nevertheless refused to attend. He cited 1 Black. 49. 2 Str. 1150.

<p>D. TEN BROECK moved to change the venue, on affidavit that the cause of action arose out of the county.</p>

EMOTT, for the tenant, moved on the first day of term, that the demandants be called, or that for non-appearance their defaults be entered. And now, it being the quarto die post, he again moved that the demandant be called to appear and excuse his default, or that he be nonsuited. To show that this was the correct practice, he cited 7 Vin. Abr. 436, 437, D. 9, 10.

ON a motion to set aside a default, and that the defendant have leave to plead, on the sole ground that he has merits, and that the plaintiff has not lost a trial, the court said,

<p>VAN VECHTEN moved to set aside the attachments, which, in these two cases, had been granted for costs of putting off the trials, and that there be a retaxation.</p> <p>He contended that attachments are ordinarily granted on rules to show cause, and are never made absolute in the first instance, excepting in very flagrant cases; and that if the party answer he shall be discharged from the attachment; and cited 1 Bac. Abr. 183. B. 2 Hawk. Plea. Cr. 214. He further insisted, that there must be a demand made of the costs after the bill has been regularly taxed, and at the time of serving the rule to show cause, before the party can be considered as in contempt. He cited 1 Barnes, 120. 1 Lilly’s Abr. 162. Besides, he insisted, that,' according to 1 Salk eld, 83. no attachment, will ever lie for the costs of putting off a trial.</p>

ON certiorari. Notice of the rule for the defendant to join in error in eight days, or that the plaintiff would be heard ex parte, had been served in April vacation, 1798, and it was now moved for affirmance,

THIS was a motion to change, the venue in an ac- , tian of slander, from the county of Albany to Washington ; founded on the affidavit of the defendant’s attorney, stating that the cause of action arose in Washington, and not elsewhere, See. as the plaintiff had informed him, and he verily believed to be true.

IN error on certiorari. The cause was at issue in law in July vacation, 1799, but the plaintiff’s attorney suffered October term to pass without having noticed it for argument. The defendant’s attorney then served a notice to argue the cause in January term.

P. W. YATES moved to set aside interlocutory judgment, because the sheriff, before whom the inquisition was taken, had admitted improper and re jected proper evidence.

ON affidavit that a bill of exceptions had been regularly tendered to the judges of the court of common pleas of the county of West- Chester, who had refused to complete the same, a motion was now made for a mandamus to compel them to affix their seal to the bill of exceptions, or show cause.

ON a trial by record of an action brought upon a judgment rendered in the circuit court of the United States, for the commonwealth of Massachusetts, office copies were offered in evidence.

A BOND had been executed by Eden to Wardell, conditioned for the payment of 50,000 dollars; which, iSn the 17th of July last, was assigned for a valuable consideration to Nathaniel Olcott, and by him, on the 1st of August, to Solomon Rowe, and by him, on the 7th of October, to the Bank of New-York. On the 7th day of October, Olcott became a bankrupt, and on the next day Rowe died insolvent.

THIS cause was tried at the sittings after January term last, when the jury found a verdict for the plaintiff for 866 dollars 20 cents. The defendant obtained a judge’s order for a stay of further proceedings, until the next term, for the purpose of then moving for a new trial.

<p>HOPKINS, for the defendant, moved for judgment as in case of nonsuit, for not going to trial.</p>

IN this cause, it was necessary to examine a witness in the Havanna; and, as that port was open only to certain privileged vessels, in April, 1802, a yule for a commission was granted before issue joined, to prevent losing an opportunity of transmission which then presented itself.

<p>AN inquest had been taken in this cause, at the last sittings, in June, at New- York,</p>

THE defendant had, after due notice, obtained a rule in the last term for a commission, in which the. plaintiff did not join, to examine a person in Port Republican., and since then had not given any notice of further proceedings under the commission. On these facts

<p>IN error on a certiorari from a justice’s court. The declaration was for ten dollars, deposited in the hands of the defendant below as a stake on a wager. The demand at the trial was for 25 dollars due on a note, on which five had been paid, and the judgment was for fifteen dollars.</p>

THIS was a question of costs, by consent suf* íñitted to the court. The facts were, that in an action in the common pleas on a bill penal for 60 dollars, to secure two instalments, the defendant pleaded ñon ést jhctum, with notice of setting off a receipt, which was allowed as tó ciñe instalment, and left á balance under 25 dollars due to the plaintiff. The point Was, whether the plaintiff should pay costg tó the defendant ?

<p>JONES, on a mere notice of motion and affidavit of service, moved to add a new count, in a declaration in ejectment, on the demise of a new lessor. It was opposed. But,</p>

ON certiorari from a justice’s court, in trespass tyuare clausum fregit, the errors relied on were, 1st. That the verdict being for one mill, no judgment could be, or in fact was rendered upon it. 2d. That as no costs were found by the jury, the justice was not warranted in giving judgment for any.

RUSSEL, on an affidavit stating that in the present suit the recovery had been less than $250 ; that the verdict had been set aside on payment of costs, which had been taxed at those of this court, and paid over, moved, on the part of the defendant, that the taxation should be reviewed, and every thing received beyond the costs of the common pleas, returned.

EVERTSON moved to set aside the declaration, and stay all further proceedings, because, though the writ was returnable in November, 1803, the plaintiff had not filed and delivered his declaration till September last. He contended, that by the rules of the common law, a plaintiff was obliged to declare within the year, and if he did not do so, he was ipso facto out of court. If some limitation of this sort was not in force, a cause might be hung up ad infinitum.

<p>THE plaintiffs had, under the act authorising proceedings against absent debtors, procured, on the usual oath, an attachment against the property of the defendants, who resided in Massachusetts.—> They, by affidavit, set forth, that they never had any dealings with the plaintiffs, who, as shippers of property on board the ship Ocean, belonging to the defendants, claimed compensation for damage the goods had sustained in consequence of the vessel’s having been run ashore when going up the harbour of Liverpoolby alleged negligence or misbehaviour of the captain, whereas the injury, if any, arose from the conduct of the pilot.</p>

HOPKINS, in consequence of the death of a witness to be examined on a commission sent to England, and sued out early in the last spring, moved, on behalf of the defendant, to amend by inserting the name of a new witness, who could prove the fact the testimony of the deceased would have gone to establish, or to be at liberty to issue a new commission.

IN debt on recognizance of bail, the defendants pleaded, 1st. JVul tiel record. 2d. That the ca. sa. against the principal was not duly issued. The plaintiffs replied, taking issue on both pleas. Under these circumstances, the plaintiffs gave notice of bringing on the trial by record, and th‘e defendants of setting aside the whole proceedings, for irregularity in the ca. sa.

THE court having on a former day allowed the plaintiffs to show that they had such a demand against the defendants as would warrant the attachment,