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Lusher v. Walton

1 Cai. 149 Court If the court say they will hear it, I shall waive the objection. English

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Majority

p. 204
Lusher against Walton.

Headnote

Notice to refer must contain the names of referees. Misapprehension of a rule, or ignorance of a late determination, may be offered as excuses for not noticing for the first day of term. If the ground of opposing a reference be that a point of law will arise, it ought to be' stated expressly what, and that it is “as advised by counsel.”
Van Vechten. This is a motion for a rule to refer. The affidavit states that there are long accounts to adjust.
Emott.
The notice does not mention *the names ,'f the referees; from Bedle v. Willet, ante 7, decided last term, this is necessary.
Spencer
observed to the court, that a cause could not be referred at the circuit;[1] but from the case cited, the application might be renewed the next non-enumerated day.
If the court say they will hear it, I shall waive the objection.

If the cause contains long accounts you cannot try it.

The omission must be accounted for, and therefore we cannot say we will hear it. All notices must be for the first day; see ante, 73, n.[2] , if not, an excuse

p. 205
must be offered. But a party’s misapprehending a rule has frequently been received as an excuse. The decision quoted has altered the former practice, and if the party will swear he did not know it, he may apply again

Mnott,

waiving, his objection as to the omission of the names, opposed the rule on a deposition by the plaintiff stating that an account between him and the defendant had been long ago settled, on which there appeared a certain balance due, for which the present action was brought, and that he believed the matter in dispute involved points of law.

From the plaintiff’s affidavit it does not appear there was a final closure of accounts,[2] so as to entitle to oppose the rule; besides, there are two affidavits against him; the weight of evidence must, therefore, preponderate, and his single affidavit must give way. His second ground for resisting the application is, that on the examination questions of law will arise. This, if properly stated, would have been a good reason for denying the rule;[1] but on that point the affidavit is defective: it states his information and belief that it will arise; it ought to have said that “he is advised by his counsel,” and even then to have set forth the particular and specific point, to satisfy us that it did exist. For these reasons, therefore, as the first taken objection *is waived, [*151] the plaintiff’s affidavit is insufficient, and the defendant must take his rule.

Motion granted.[3]

Lewis, Ch. J., absent.

[1] [1] Code of Procedure, sec. 271: DeHart v. Covenhoven, 2 J. C. 402. Adams v. Bayles, 2 J. R. 374; Anon. 5 Cow. 423 .

(a) (a) а) See Codwise & Ludlow v. Hacker, 2 Caines’ Rep. 261 . Hobson & Todd v. Seymour, Caines’ Prac. 485.

(b) (b) In Low v. Hallet, 3 Caines’ Rep. 82 , the court thought “ as advised by counsel” equivalent to a specification of the points of law that would arise. In Adams v. Bayles, 2 Johns. Rep. 374 , from the report, and in which it i¡ to be observed the opposition was by the reporter himself, neither the points *206 of law, nor advice of counsel, were stated by the affidavit. In Salisbury v. Scott, 6 Johns. Rep. 329 , the court seem to have fully adopted the principle of this decision as to the form of the affidavit to oppose a reference. It is true that in Low v. Sallett, in addition to the words “as advised by counsel,” the affidavit contained those of “and verily believed.” Whether these' minute diversities will reconcile the decisions, the reader will judge. Sea the conclusion of note (a), p. 157. See also Shaw v. Ayres, 4 Cow. 52 .