Kirby v. Cogswell — 1 Cai. 505

Majority

p. 636

Kirby against Cogswell.

Headnote

kn endorsee of a firm of which he is a member may, on an endorsement made by himself in the style of the partnership, maintain an action against the maker of a promissory note. A judge’s certificate of probable cause, does not stay proceedings unless accompanied with notice of motion.

This was an action on a promissory note by the endorsee against the maker. It appeared on the trial, which took place during the last Albany circuit, that the plaintiff was one of a firm, and had endorsed the note, in [*506] the name of the house, *to himself, and now sued in his individual capacity. On this account, an objection was taken, the defendant insisting that the plaintiff could not, by his endorsement in the style of the copartnership, transfer to himself,^[1] in his private character, the note so as to give a right of action. This, however, being overruled, the defendant, within the time limited by a rule, made a case, and served it on the plaintiff’s attorney. He,

p. 637

observing it to be incorrect, made another, detailing the facts accurately, and also served his, titling it an “amended case.” Milward v. Hallett, see ante, 344.

On the first day of November term, the plaintiff filed his certificate of trial, nisiprius record, with the postea endorsed, and entered a rule nisi for judgment.

On the 8th of November, the defendant, taking no notice of the case intended as an amendment, obtained, on his own statement of facts, a certificate from Mr. Justice Kent to stay proceedings. This, with a copy of his case, but without any notice of motion he served the next day on the plaintiff’s attorney, observing to him, at the same time, that the amendments according to the practice of the court, ought to have been proposed and not sent in the shape of a new case. The plaintiff’s attorney then offered to make a fair statement, as should be agreed on, alleging his ignorance of the strict rules of making a case. The defendant’s attorney seeming to evade this, the plaintiff, on the 16th of November, served a copy of a bill of costs in the suit, with regular notice of taxation, which he proceeded to execute, signed judgment, and issued a fieri facias.

Van Antwerp

now moved to set aside the judgment, and all subsequent proceedings, insisting that the certificate of the judge was a complete stay, without any notice of motion annexed, for the plaintiff had, as well as the defendant, a right to bring on the argument upon the case made.

The question is, as to the operation of a certificate of probable cause to stay proceedings.^[1] The

(a) (a) The necessity of accompanying a certificate of probable cause, with a notice of motion, is settled by the case in the text. On a non-enumeratod motion it suspends the proceedings, during the term for which the notice is given, (4th Rule, January, 1199,) if the certificate be in general terms. If only till the 4th day of term, and there be then such a press of business, that the non-enumerated lay over, the certificate is by operation of law enlarged till the next non-enumerated day. Caines’ Prac. 35. Where a certificate is granted after the 4th day of term, it enlarges the time for *638 moving in arrest of judgment to any other day. Bayard v. Malcolm, 1 Johns.’Rep. 310 . If the motion be enumerated, it suspends the cause till heard, or the certificate be vacated. Jackson v. Brownell, 3 Caines’ Rep. 151 . To give effect to the certificate, a copy should be served; a mere notice oí it is not enough. Cheetham v. Lewis, 2 Johns. Rep. 104 . To bring a party into contempt for disobeying the certificate, the original should be shown at the time of serving the copy. Howland v. Ralph,. 3 Johns. Rep. 20 . There is no difference in the practice .under an order to stay proceedings, and a certificate- of probable cause. As to staying proceedings on making a case see also Graham’s Prac., 2d ed. 334; 2 Wend. 246 ; 1 Cowen, 598; Code of Procedure, secs. 401, 264, and 348; and ante, p.

p. 638

4th rule of January, 1799, settles that, at the time of service of the order, it must be accompanied - with a notice of motion. The right of the opposite party .to notice for argument, does not take away the necessity of no-[*507] tice, for the mere certificate itself *is no stay. The defendant, therefore, can take nothing by his motion and must pay the costs of the present application.

Motion denied, with costs.