In AUGUST TERM, in the TWENTY-SEVENTH YEAR of our INDEPENDENCE. Jotham Post against William Wright and Robert A Buchan. ALBANY, N- inquest had been taken in this cause, at the last Auguft 1803. sitttings, in June, at New-York. HOFFMAN moved to set it aside, on two affidavits; one made by the plaintiff, which stated, that he verily believed he had a good, substantial, and legal defence; the other by the counsel in the cause. This last set forth, that he was counsel for the Humane Society of New-York, and, in that capacity, obliged to visit the gaol on Monday in every week; that this cause being noticed for trial on a Monday, he came into court instantly after discharging his duty to the Society, when he found an inquest had been taken in the suit; that he, on the same day, wrote to the attorney of the plaintiff, offering to pay all the costs of the inquest, and to engage to try the cause in the then sittings, if the plaintiff would abandon his inquest, which he refused to do. Poft Wright & Bu chan. day-calendar, If a caufe has been duly fet down upon the and on being called, the de fendant does not appear nor his counfel who the plaintiff may take an in is then in court, queft, which the court will though merits not fet alidé be sworn to, if the abfence of the defendant Hoffman also observed, the calendar had been gone through be not account mfore than once, and that the plaintiff needed not to have lost the sittings but for his own obstinacy. ed for. ALBANY, Auguft 1803. Woods relied on the counter affidavit of the plaintiff's attorney, which stated, that the cause was duly set down in its order, on the day-docket; that it was regularly called Wright & Bu and tried; that when called on, Poft V. chan. If a notice of motion for nonfuit be titled verfus inftead of ad fectam, and the affidavit annex. ed rightly titled the notice will be good. -, esquire, was in court, and in the hearing of the deponent, said he was of counsel for the defendants, but as he did not see his clients, nor any of their witnesses, he would not appear; that on this the defendants were called, and an inquest taken. Woods remarked, that, if after these facts the inquest should be set aside, there would be no end to these applications. A defendant had only to keep himself and his witnesses, or even his counsel out of the way, and be sure to gain a term whenever he pleased. Per curiam. All reasonable notice to attend and defend the suit, was given. The cause was on the day-docket, and there is no kind of excuse why the defendant was absent. He had a counsel in court, and might have been there himself, with his witnesses. The defendant therefore can take nothing by his motion. N. B. Hoffman urged strongly the rigour of the practice, that it would operate only against the attorney of the plaintiff, that this was the first instance of such strictness. The court answered, there must be a first time in all proceedings, that they found it necessary to enforce their rules, and had made a determination so to do, as the only mode of having them obeyed. Radcliff and Livingston, justices, absent. John P. Ryers against William Hillyer. SPENCER moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial. Hoffman resisted the application, because the notice was titled William Hillyer against John P. Ryers, instead of William Hillyer, ad. sctm. John P. Ryers: this he said was fatal, there being no such suit in existence as the one in which the notice was given, but he added, he would not have urged it except from its being one of Mr. Colden's causes, whose state of health the whole court knew. Spencer, contra, observed, that there could be no force in the objection, unless it appeared that the party had been misled: The notice was for judgment as in case of nonsuit for not proceeding to trial, therefore it must have come from a defendant. In the next place, it was on an affidavit, a copy whereof was annexed, and that affidavit was rightly entituled. It is a mere question of who shall pay costs. There has been no countermand, and the defendant kept all the circuit with his witnesses. . ALBANY, Ryers V. Hillyer, On the fame principle where a notice of executing a writ of enquiry Hoffman. As this is the first default, will the court oblige "on Tuesday us to stipulate? · Per curiam. Stipulate to try at the next circuit for the city and county of New-York, and pay the costs of the present application. the 14th, of Jan. inft."was given the court, to fet afide the of C.B. refufed execution of the writ be Radcliff and Livingston, justices, absent. caufe the 14th, was on a thurfday, faying it. was clear the James Brandt, on the demise of William Rickets defendant Van Courtlandt, and Philip Van Courtlandt, against Matthias Buckhout and Abraham Buckhout. THE issue in this cause had been joined in January 1801, and notice of trial given in the June following; it however did not come on, in consequence of the defendants' applying for a commission to obtain testimony from Virginia. On the arrival of the commission in that state, it was found the witness had removed into Kentucky, whither he was followed, and his evidence to the interrogatories taken on a deposition, made before two justices of the peace. A copy of this, accompanied with an affidavit of the facts, was served on the plaintiffs' attorney in August 1802, and communication at the same time made, that a regular commission would be sued out and sent into Kentucky. On this the plaintiff did not notice for trial; however for not proceeding to which, Woods now moved for judgment as in case of nonsuit. Spencer opposed the application, as being too late, insisting it ought to have been made the very first term after the neglect. Per curiam. The defendant has not accounted for his delay; if that be not done, and the application be not immedi ately after the laches, the default is waived, and cannot now be taken advantage of. could not have been mifled. Batten & Harrifon 3, Bos. & Pull. F. If there be a proceeding to neglect in not trial, defeudant muft avail int the first opportunity; if he do not it will bea waiver and coll i he affubject him to terwards move for judgment as in cafe of nonfuit. ALBANY, Brandt V. Buckhouts. х The rule for consolidating applies only to feveral actions on one policy, and does not extend to feve veral policies on one risk tho' the question be the fame on all, because the contracts are feveral. Woods hoped the court would order the plaintiff to sti pulate. Per curiam. He is not bound to stipulate. Spencer prayed costs for resisting the application. Ordered, That the defendant take nothing by his motion. and Radcliff and Livingston, justices, absent. Peter A. Camman against the New-York Insurance THE plaintiff had, for himself and several other persons with whom he was variously interested, effected eleven policies on distinct parts of the cargo of the same vessel. The name of the plaintiff was in each insurance, but associated with different parties, according as he was connected. The point in dispute was the same in all. Hoffman moved to consolidate the actions, or to stay proceedings in ten of the suits till the eleventh was determined; the defendants being willing to pay on the residue, if that should be determined against them. The object of his endeavor was, as he said, to save the enormous costs which would otherwise accrue. L. Ogden. The contracts are several; and though a num◄ ber of actions on one policy will be consolidated, that is because the contract is one, and therefore the very reason of the practice in such a case, is sufficient to overrule the present application. An application was made by myself to this court, for leave to consolidate five actions on five promissory notes to the same plaintiff, and refused, because of the diversity of the con tracts.* Per curiam. The contracts being separate and independent it is not a case for consolidation, and not to be distinguished from that of the notes. There never was an instance of consolidating different policies. Radcliff and Livingston, justices, absent. By the practice of the English courts, if the defendant be held to bail in two actions which might be joined, the plaintiff will be obliged to confolidate and have to pay the cofts of the application. Cecil v. Briggs 2 D. & E. 639. r. James Shuter against Richard S. Hallett. D. L. OGDEN moved for a rule to vacate the rule for a commission which had issued in this cause in the spring of 1802. The facts, as appeared by affidavit, were these: A commission had issued at that time, in which the defendant had joined, but not being returned, another was sued out in November last, and as there were no hopes of the first being returned, the parties agreed that the testimony taken on the second, which was on the same interrogatories, should be read in evidence on the trial. After this the cause was duly noticed, but the judge refused to let it come on, as the counsel for the defendant had joined in the commission. Per curiam. The commission is as much the defendant's as the plaintiff's, and he may take the benefit of it on trial. We cannot therefore vacate the rule, but the plaintiff may have one to proceed to trial notwithstanding the commission.t Radcliff and Livingston, justices, absent. Bethuel Way and Hannah his wife, against Nicholas Bradt. IT was said by the court, in this suit, that when a Judge Coats on a circuit has not time to try a cause, the costs must abide the event of the suit. Radcliff and Livingston, justices, absent. Ebenezer Weed, by Noah Weed, his guardian. against Caleb Ellis. The Per curiam. A younger issue being tried, is not always conclusive that a cause might have been brought on. court will sometimes take up a cause they may think short, when they will not enter into a long one. Radcliff and Livingston, justices, absent. Joseph Grover against Benjamin Green. THE defendant was attending a reference, under a rule of the court of common pleas for Cayuga, in a suit wherein See Brain vs. Rodelicks and Shivers, ante 73 A younger if fue tried, no have been Court will not discharge on motion, a per fon arrelled while attend ing a reference under an order of the commON |