ALBANY, Auguft 1803. Grover V. Green. pleas, if there be not a notice of applying; but will only grant a rule to fhew cause. When a defendant commits a crime for which he is fentenced to the flate prifon, the plaintiff may difcon tinue without payment of cofts. he was plaintiff, and the present plaintiff defendant, when he (Green) was arrested by Grover, on a writ out of this court. Emmott moved for a rule that the defendant be discharged out of custody on common bail, the plaintiff having abused the process of the court, but no notice had been given of the motion. Per curiam. By this means any body may get himself discharged. Emmott. If the affidavit be false, the party may be indicted for perjury. Per curiam. But the plaintiff may lose his debt. Take a rule to shew cause the first day of next term why he should not be discharged, and in the mean time let proceedings be staid. Radcliff and Livingston, justices, absent. Hugh Lackey and Joshua Briggs against Daniel THE plaintiffs, in July 1802, had stipulated to try this cause at the next circuit court, and did not do so. M. B. Hildreth, on this ground, now moved for judgment as in case of nonsuit. Schoenhoven read an affidavit, which was not denied, stating that the defendant, after the commencement of the suit, and before a trial could be had, was sentenced to the state prison, where he still remained, and prayed to discontinue without payment of costs. Van Ness, amicus curiæ, mentioned, that when the defendant rendered proceedings useless, the court was always disposed to permit a plaintiff to discontinue without costs. In Jackson on the demise of Ludlow v. Webb, after issue joined the defendant abandoned the possession, and the lessor of the plaintiff having entered, did not notice the cause for trial. The defendant then moved for judgment as in case of nonsuit, but the court denied his motion, and gave leave to discontinue without payment of costs. The Per curiam. The opinion of the court is, that sufficient has been shewn to prevent the judgment of nonsuit. defendant has by his own act deprived the plaintiffs of that August 1803. Lackey & remedy which they might have had against his person; his ALBANY, body is out of their reach, and that by his own act. It is not therefore necessary that they should proceed and incur expences for nothing, as there is not any property from whence they can be reimbursed. The plaintiffs therefore are entitled to discontinue, and without costs. Radcliff and Livingston, justices, absent. Rachel Malin against Ephraim Kinney. The same against Nathan Lane. THESE causes were noticed for trial at the circuit held for Ontario in June 1802. The defendants attended with their witnesses, but the plaintiff not bringing on the causes, the defendants agreed to waive taking advantage of it, provided the plaintiff would consent that the two above suits should abide the decision of a case made in one by the same plaintiff against George Brown, which turned on the same point, and had, together with another of the same sort, been tried. The plaintiff acceded to the proposition, but at the last term applied to the court to be released from his engagement. This the court was pleased to order. Emmott now moved for judgment of nonsuit, and that the plaintiff pay the costs not only of not proceeding to trial in 1802, but those also for not trying at the last circuit. He contended that as the agreement was done away on the application of the plaintiff, the defendant had a right to those costs which he waived only in consequence of that agreement: The agreement was the consideration of the waiver, and the consideration being taken away, he had a right to insist on not waiving. Then as to the costs of the last circuit, it was clear he was entitled; because, as the plaintiff had been released and had not tried, it was manifest he was in default and costs due. Stuart contra, shewed on affidavit, that the rule to dis charge the agreement was made at the latter part of the last term, and that from the late information he received of it, he could not avail himself, at the last circuit, of the advantage it afforded. Per curiam. The application is for judgment as in case of nonsuit, and to pay two sets of costs; those of June V. McDonald. If a plaintiff get relieved from his own ftipula tion he reitores the defendant to all rights as he stood when the ftipulation was entered into. ALBANY, Malin V. Kinney. On fci. fa. notice of entry of the rule to ap need not be given, as the fervice of the fei. fa. is notice of itself, and the default may be entered on expiration of the rule; but judgment cannot be entered 1802, and those of the last circuit. Four causes were de- Radcliff and Livingston, justices, absent Ambrose Spencer against Samuel B Webb, THE facts, as they appeared by affidavit, were as follows: The defendant was served with a scire facias on Tues pear and plead day the 3d of May last, which was returned scire feci on the 10th. On the same day the plaintiff entered a rule for the defendant to appear in four days and plead in twenty after notice, or that his default be entered: Notice of the rule was not given, nor was it put up in any conspicuous part of the clerk's office, nor was any affidavit of notice on file. Default was entered, without any such affidavit, ori the 14th of May, on which day the plaintiff entered his will be fet afide, judgment also. The plaintiff swore to a just and material defence, and that he had paid the plaintiff six hundred dol lars which had not been allowed him, and offered to let the judgment stand as a security. till four days after, if it be, the judgment and the default if regular, fault ever fet afide when regular, except accounted for to fatisfaction of the court. On these grounds Van Vecten moved to set aside the default and judgment thereon, and that the defendant be let in to plead. Spencer. There are several grounds of objection taken August 1803. Spencer V. Webb. to the proceedings. One is, that notice ought to have: beem ALBANY, given of the return of the soi. fas and off the rule entered. From the fourth rule of this court, made in April: term: 1796, it appears, that rules to appear on sci fa.. and in ejectment, are placed on the same footing. It is not ne cessary, on entering the rule, to give notice that the rule has been entered. The notices by the sci. fa. and in ejectments by the declaration are tantamount. When the attorney ap pears, then notice is required: But a soil: fa is notices in itself. The default therefore, being regularly entered, must-stand. The next question then is whether, if the proceedings are correct in entering: the default in four days, the court will let the defendant in,. on the merits? Griswold. Stoughton, decided the last term, is in pointy that as there is no account given for not appearing, the de fault is corrects, and will not be set aside. There is no excuse for not entering an appearance, and for four days ther defendant certainly slept. In Edwards ad sotm. McKinstry, Coleman's Cases of Practice 124, the court said that ade fault must always be accounted for: Graham. as: amicus curiæ observed, that it being a point of practice of some importance, he took the liberty to mention, that according to the English practice when, on a sai, fa, to revive,, two nihils were returned, judgment was signed of course on shewing the returns to the officer, Van Vecten. We are not to obtain the effect of our motion for, two: reasons. Because according to the English practice there are no rules on a sci, fa, and because no account is given for the default. As to the first, whatever the practice may be in England, our courts have established that a four, day rule is to be entered on the return of the writ, and then the ordinary rule is to be given, and if the default be not entered, the defendant may come in at any time, A scire facias is to all intents a new suit, and therefore there should be the s same practice as in other cases; there may be a plea &c. In this the default has produced no injury. There could be no judgment till next term: Therefore this rigid rule of saying that if you do not account: we will not hear you, though you give evidence of Col, Ca. Prac, 2, 3. † Ante 6. .. R ALBANY, Auguft 1803. Spencer V. Webb. reasons for our interference, can have no force when we ap ply to the discretion of the court. The power used inthese cases is founded on justice, and whenever any thing like injustice presents itself, the court will interpose and see that no advantage is taken. Here the defendant offers to let the judgment stand, therefore the plaintiff runs no risk as the defendant's lands are bound. He swears six hundred dollars have been paid on the judgment: The questioni then is, whether the defendant does not necessarily deserve favor. Whether the plaintiff shall have execution for six hundred dollars more than are due when merits are sworn to. That the plaintiff is able to repay it, is no answer: the oppression of thus wringing so much from the defendant may be intolerable. Notice, either express or constructive, is necessary to a default; here there is neither. Griswold v. Stoughton does not apply; it was a mere irregularity and no affidavit of merits. The court can not too much bear in view that no injury can result by letting the defendant in to plead. Spencer in reply. I have strong doubts whether on a scire facias there can be any defence except nul tiel record, or the judgment satisfied. Per curiam. It appears that the defendant did not enter any appearance before the expiration of the rule, nor indeed was it until some weeks after, that any appearance was entered. It is suggested in answer, that notice ought to have been served of the entry of the rule; this is on the other hand denied; and rightly. The default therefore is regular, and no reason whatever is assigned how it has been incurred. In all such cases we have determined to hold the party to his default. The frule of this court says "Upon the return of "writs of sci. fa. if the defendant be returned warned, or "the second writ be returned nihil, the defendant shall To a fci. fa. the defendant may plead in abatement, or in bar, 2 Inft. 470. But he can plead nothing in bar, which he might have pleaded to the original action. Where therefore the judgment was on a warrant of attorney, as the defendant could have had no opportunity of pleading, the court of K. B. has ordered an iffue to let in the defence of ufury. Cook v. Jones Cowp. 727. The defendant may alfo plead in abatement that there were not 15 days betwen the tefte and return. Nares v. Earl of Huntingdon. Lut. 12. and for want of thefe 15 days the fup. court has fet afide on motion the proceedings on a fei. fa. Woodman & others ad setm. Little. Col. Ca. Prac. 54. as a feire facias is a judicial writ. See Com. Di. title abatement. (H. 14.) Rule of October 1791, Col. Ca. Prac. 31. |