Gordon v. Bowne — 1 Cai. 513

p. 648

Gordon, survivor of Munro and Gordon, against Bowne.

Headnote

Where a plaintiff has neglected to file a copias and enter an appearance for two terms, though there be an affidavit swearing to an agreement that all the proceedings should be considered as of a third term antecedent, the court will not give leave to file the copias and enter the appearance nunc pro tune as of the third term past, especially if it appear that it be asked with a view to prevent a set-off of a note falling due since the tiiird, and before the second term, but will order the copias, &c., to be as of the second term past. Endorsing an appearance on a writ of a term past, is not evidence of an agreement that the proceedings shall be considered as of that term.

This was an application for leave to file the copias, and enter the defendant’s appearance nunc pro tune, as of the last August term.

The facts, as they appeared on the several and long affidavits read, were, that the plaintiff and his partner were the assured on a policy of insurance, underwritten by the defendant; that being in embarrassed circumstances,

p. 649

and unable to meet * their payments, they en- [*514] tered into a composition with their creditors, of whom the defendant was one, to pay them, on receiving a release from all demands, fifteen shillings in the pound; ten shillings to be paid by approved endorsed notes, and the remaining five shillings by their own; the endorsers to receive an assignment of a part of the property of the plaintiff and his partner,, by way of security against their endorsements; that, in pursuance of this agreement, the defendant received his two notes of ten shillings, and five shillings in the pound, executed a release, and the policy in question was assigned to persons for whose benefit the present action was brought; that the note for ten shillings in the pound was duly paid by the assignees of the policy. The attorney for the plaintiff called on the defendant, a few days before August term, to inform him of the intended suit, when the defendant assured the attorney, that the matter would be accommodated, and, if not, that he would consent to proceedings being as of August term; that a copias was afterwards sued out on the second of August last, returnable the sixth, but not served till after August term, at which time the defendant endorsed his appearance, and, as the plaintiff’s attorney verily believed, with intent, that all proceedings should be deemed as of August term; that the declaration was titled as of August term, though the copias has not yet been filed; that since August, the plaintiff has become a bankrupt, and that the defendant had pleaded, giving a notice of setting off a note which fell due on the 8th of September last, and was the very note for five shillings in the pound given by the plaintiff and his partner, in composition for their debts.

Hoffman

insisted that the endorsement of the writ by the defendant, was tantamount to a written agreement, as it was evidence in writing of the agreement, which was further corroborated by the pleadings.

Cur. ad. vuli.

delivered the judgment of the court. The defendant resists the application, relying principally on this; that he holds, to nearly the amount of the plaintiff's demand, a note against him due on the 8th oi [*515] September *last, which he intends to set off. The object of the plaintiff’s motion is, if possible, to exclude this effect; on this ground, that his demand is assigned for the benefit of certain persons who have paid debts for him, incurred by endorsements to his compounding creditors. The defendant denies notice of such assignment ; both parties admit the insolvency of the plaintiff. The verbal agreement between the attorney for the plaintiff and the defendant cannot be attended to; a rule of this court forbids such' agreement being alleged.

There has been loches on the part of the plaintiff in not entertaining his suit as of August term, and to avoid that loches, the court is now applied to. In granting favors of this kind, the court ought to be careful not to do injustice, and it appears to them, that granting the rule as applied for, might have that effect; for, most certainly, the defendant’s claim to offset is better founded than that of the assignees to recover. Let a rule be entered, that the plaintiff have leave to file his writ, and enter the defendant’s appearance, as of the last term.

I am sorry to be under the necessity of differing from the court; but I think the endorsement of appearance is evidence of an agreement as strong as if it had been reduced to writing, and sufficiently indicatory of the intent of the parties, to avoid any of the consequences, against which the rule in question was framed. How far the defendant may, by filing the copias, and entering an appearance of August term, be precluded from a set-off or by the present rule entitled to it, is unnecessary to determine. My opinion is, that the plaintiff ought t<? nave the effect of' his motion.

I concur in the opinion last given. I deem

it a point of moral rectitude to enforce all agreements, when the evidence is such as is not contravened by any rule of law. But as the judgment of the court is, to deny the full extent of the plaintiff’s application, he can take no more than has already been pronounced.^[1]

Buie to file the writ, and enter the áppearance as of last term.

(a) (a) See Palmer v. Berrian, 3 Caines’ Rep. 131 , and note i,here.