Van Dyck v. Van Beuren — 2 Cai. 103

Majority

p. 102

Van Dyck, q. t., against Van Beuren and Vosburgh.

Headnote

When the court is divided, judgment must go according to the verdict. But if an intimation for a special verdict has been given, and the bench be afterwards full, a second argument will be ordered, if the special verdict be not agreed to.

A CASE had been made in this cause for the opinion of the court, but they being divided, no decision was made, and the plaintiff, having entered up judgment on his verdict, sued out an execution.

Williams moved to set aside this execution, on an affidavit stating that the application to this court was undetermined.

p. 103

Van Ness, contra,

read an affidavit, stating the division of the court, and that by the rules of practice he was there fore entitled to the benefits of his verdict.

We admit the-general position, but as two of the judges whq sat when this case was argued were disposed to recommend a special verdict, unless the parties now agree to one, we shall order a stay of proceedings till a further argument.

1ST. B. — It was mentioned to the court, that a case was now pending in error, between the same parties, in which the very point now in question would receive a determination.