2 TYL 62 - James v. Smith

¶1DEBT on recognisance; default, and motion to chancer.

¶2This cause was heard on the motion to chancer, January term, 1801, and continued for the Court to advise.

¶3In the report of this cause in the first volume, p. 128. 136. there is an inaccuracy in the minute, which states, that “ at the ensuing term the Court chancered the bond of recognisance to a sum merely nominal.” At this term, after argument upon the motion to chancer, the Court intimated their intent to chancer the bond to a sum merely nominal, and the plaintiff then moved to enter a nonsuit, which was granted upon the payment of full costs.

NOTE.Note on the case of Jasper L. Drake v. Nathaniel Collins, reported vol. 1. p. 79.THE opinion of the Court, that a promissory note deposited with arbitrators, subject to their endorsement to the amount of their award, is void, delivered in this County in the case of Jasper L. Drake against Nathaniel Collins, January term, 1801, reported volume 1. p. 79. was much doubted at the time, and has since been followed by no similar decisions. It will be observed, by recurrence to that report, that the decision was not supported by the unanimous opinion of the bench. The Chief Judge and Hall, Assistant Judge, divided, whilst Smith, Assistant Judge, inclined to be in opinion with Judge Hall, that such notes are not in themselves void, but merely voidable; but eventually he esteemed it to be his duty to concur in opinion with the Chief Judge.When we consider the nature of our trials by Jury, we shall not be surprised, that, as in case of trial at Nisi Prius in elder governments, judicial opinions should sometimes be hastily and perhaps incorrectly given.At the request of several respectable members of the bar, who considered some intimation to this effect might be proper to guard junior practitioners from relying upon this questionable decision too strongly, this note is inserted byThe Reporter.