Jackson ex dem. Low v. Reynolds — 1 Cai. 20

Majority

p. 34

Jackson, ex dem. Nicholas Low and others, against James Reynolds.

Headnote

If the plaintiff in ejectment count upon demises by persons who are dead, the defendant, after entering into the consent rule, may apply to have their names struck out of the declaration, and that without costs, the necessity of the application arising from the plaintiff.

On an affidavit- stating the death of one of the les» [*21] sors of *the plaintiff, from belief, information, diligent search, and inquiry,

Riggs,

on the behalf of the defendant, moved, to strike out

of the declaration one count wholly,^[1] and in all others the name of Drake, with costs.

Howell, contra.

The application now comes too late, being after entering into the consent rule:^[2] at all events, the affidavit should state that the fact was unknown at that time. In addition to this he mentioned, that from the counter affidavit which he held, it appeared the defendant had heretofore consented to give up possession, having failed to try according to stipulation.

The motion must- be granted. It has been before decided, that a defendant may thus come in and

p. 35

move, on the death of a party before the commencement, of the suit. As to the objection, that the application is out of season, the answer is, that it is never out of season when, on the ground of an original irregularity in the plaintiff himself. Therefore, the not coming in earlier cannot be urged.^[1] The affidavit of the defendant furnishes such evidence of the facts as is prima facie sufficient; and if not true, ought to have been denied by the plaintiff, especially as it is in his power; for the attorney of the lessor may, nay, certainly must, know if Ms client is alive. As to the costs it does not necessarily follow that the attorney of the plaintiff must know of the death of one of the lessors. He may have examined into the title on behalf of one person, acting for others equally interested, and seeing a number of names necessary to be made parties, he might have thought them all in existence, and the affidavit of the defendant be the first notice of the death of any. one entitled. The costs ought to be paid if the fact was known sooner: and the application for the object of this motion ought to be made as soon as the right to apply was discovered; we grant the motion but without costs.

Howell then asked for the costs of amending.

said, they would reserve their determination on that point till the next day, when they denied them saying the plaintiff was irregular from the beginning; and though he might not have been in fault, there is no reason for allowing him costs, when it is to have his proceedings rectified that the defendant comes before the court.

Motion granted without costs to either party.

[1] [1] When a party seeks to set aside proceedings for mere irregularity, he must apply at the first opportunity. Nichols v. Nichols, 10 Wend. 560 ; Leavitt v. Woods, 10 Id. 558; McEvers v. Mackler, 1 J. C. 248, Jones v. Dunning, 2 Id. 74; Giles v. Caines, 3 Cai. R. 107 ; Anonymous, 5 Wend. 82 . But this rule does not apply to motions for relief affecting the substantial rights of parties. Doty v. Russell, 5 Wend. 129 .