Volume 1 — Coleman's Cases of Practice in the Supreme Court of New York (1796–1800)

A BAIL piece had been filed, containing the name of one real person, who had at the same time filed an affidavit of justification, and of one nominal person. A rule was then taken to bring in the body, or shew cause why an attachment should not issue against the sheriff; and now

In this cause, a demurrer was filed to the replication; the defendant's attorney at the fame time, applied to the deputy clerk for leave to strike out the fimiliter, but the clerk refused to permit him to do so. Notice of trial was then given, and an inquest taken.

<p>THIS was an application by bail to furrender their principal, on the following cafe.</p> <p>In April term, 1797, Ca. fa. againft the principal was returned non ejl. On which, plaintiffs iifu-ed a cap. ad. refp. againft the bail jointly, on their recognizance. This writ was delivered to the ihe-riff of Herkimer or his deputy, early in April vacation, being returnable the laft tueiday of July then next.</p> <p>On the 7th of July the deputy, having pofleffion of the writ, but not in his pocket, met Parkman, one of the bail, and informed him of the writ; on which Parkman promifed to come to the houfe of the deputy and indorfe his appearance thereon before the return day. He accordingly came and indorfed his appearance, but at what time precifely, Chcefc-borough, the deputy, who is the witnefs, does not recolleft. By the affidavit of Parkman himfelf, it appears to have been two days after the return day of the writ. The writ was then returned, with fitch indorfement. but without any return indorfed by the Jherijf himfelf,,</p> <p>In July vacation, plaintiff iffued an al. cap, againft Ballard, to anfwer fimul cum Parkman, returnable in October term, which having been returned “ non efif plaintiffs iffued a tejlatum againft Ballard alone, returnable in January, 1798, directed to the fheriff of Onondaga, who took him.</p> <p>Auguft 28th, 1797, defendant’s attorney had delivered plaintiff’s attorney a writing intended as a plea in abatement, praying that for want of an official return, as well as on account of fuch irregular fervice of the writ on Parkman, the plaintiff’s bill might be quaihed.</p> <p>February 10th, 1798, plaintiff’s attorney delivered a copy of the declaration filed, againft the bail jointly.</p> <p>February 13th, 1798, plaintiff ’s attorney received a plea in chief, nil debet, in behalf of Ballard alone; and at the fame time another writing, intended as a plea in abatement, in behalf of Parkman feparate]y, arid fo entitled, and grounded upon the before mentioned objection, viz. the want of official return.</p> <p>The proceedings refpecling the fur-render were as follows.</p> <p>January 13th, 1798, three days before the term, the fheriff of Herkimer figned an acknowledgment, that the principal was in his euftody, on a farren-der by Parkman, in behalf of himfelf and Ballard.</p> <p>January 27th, On application of Ballard in behalf of himfelf and Parkman, his Honor Judge JBenfon made an order for a commitment.</p> <p>March gth. The íheriff figned a farther acknowledgment, that the principal was ftill remaining in his euftody when the committitur came to his hands,</p> <p>March 20th, Judge Benfon made an order for the plaintiffs to appear and ihew caufe why an exoneretur fhould not be entered. They appeared accordingly, and the cafe was adjourned over to be argued and determined in open Court.</p> <p>On this cafe the following queftions were raifed :</p> <p>I. Are the defendants now too late in their application ?</p> <p>II. Can one bail be difeharged alone when the application is for the difeharge of both ?</p> <p>III. Will the difeharge of one bail operate as a difeharge of all ? and if one is fixed, will not the other be fo likewife ? Curia ad. vult.</p>

ISSUE was joined on the 9th of June laft, and on the 19th, notice was given by defendant, that application would be made this term for a commiffion: notwithftanding which, on the 26th, the plaintiff gave notice of trial for the J uly circuit, at which time an inqueft was taken by default.

7JURR for defendant moved for leave to withdraw his demurrer and plead iffuably, on affidavit that he had merits which he did not know of till after he had filed his demurrer. Riggs infilled that as the demurrer was frivolous and only put in to obtain delay, the defendant ought not now to be permitted to withdraw if.

THIS was an application to flay proceedings on bail bond. The attorney for defendant in the original fuit, had given notice of retainer and of bail at the fame time, by leaving it at the office of plaintiff's attorney which was kept in his dwelling-houfe, when no perfon was prefent. It appeared that two terms had elapfed before the prefent fuit was commenced. It was infilled, lit, that the fervice of notice was regular, and to this point was cited 4 Burn, and Eaft, 464.

IN January Term. laft the defendant as fpeciai Bail was relieved, and an exoneretur was ordered to be entered, on payment of cofts. The cofts not having been paid, the proceedings went on ■ and now it was moved by Burr to have him relieved, on the ground that cofts never having been demanded, or a bill exhibited, there was no negleft on the part of the defendant in not having paid them.

AJuftice 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 “ before us.”

THIS was an aólion of affault and battery, and a verdift for plaintiff at the circuit, for fix cents damages and fix cents coils. A certificate was given by the judge who prefided at the trial, to entitle the plaintiffs to full colls, but it was not given at the trial.

<p>THIS was an aftion upon a bond given to the fheriff, conformably to the Aft palled April gth, 1798, entitled, “ An Aft regulating the iiber- “ ties of gaols/’</p> <p>The defendants pleaded five pleas,</p> <p> 1. Non ejl fadtwm. </p> <p>2,Performance of the condition.</p> <p>3.That the efcape was by cafo al ty, and that there was a return before fuit brought.</p> <p>4.That the penalty is for more than double the amount of the fum for which the prifoner was confined, and fo not agreeable to the ftatute.</p> <p>5. That the condition of the bond is not conformable to the ftatute.</p> <p>But the two laft pleas were added after demurrer to the fecond and third pleas, and before default or joinder.</p>

HIS was a motion for a new trial; but it was oppofed on the ground that judgment having been entered and no order obtained from a judge to flay proceedings, according to the fourth rule of January Term, 1799, the defendant was now too late.

EMOTT moved to amend the declaration after plea pleaded, which was granted, but a queftion now arofe, whether the defendant is entitled both to an imparlance and to coils: vide Str. 950. Dallas 465. where it is faid he fhall only have his election of one; but in 2 Blackft. Rep. 785. he had both.

<p>DECLARATION indorfee vs. indorfer. Plea in abatement, a former fuit by plaintiff vs. defendants, to which they had put in a plea in abatement that Francis Childs was a partner and not named, which fuit was pending at the commencement of the prefent fuit, and is fo ítill j Replication nul tiel record, and iffue.</p> <p>The principal queftion he ftated to be, whether the difcontinuance of a former fuit muft be entered before new fuit commenced, or may be entered any time before replication of nul tiel record filed ? He contended that the difcontinuance being matter of right, may be entered at any time before replication. To this point he cited 1 Cromp. 188. Barnes 257. 1 Leon. 105. Impey’s B. R, 169. t Sellon 304.</p>

T)OYD for plaintiff, moves for coils, bccaufe the defendant put off the trial at the circuit on affidavit and notice of a motion to be made at the fucceeding term for a commiffion, the iffue having been joined during the vacation.

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 plaintiff refilled 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 defendant to deposit a sum of money to the full amount as security.