Gould v. Spencer — 2 Cai. 109

Majority

p. 108

Gould ads. Spencer. The Same ads. Tillotson. Ward ads. Spencer. The Same ads. Tillotson.

Headnote

If the names of two attorneys appear on the writ, subsequent proceedings may be in the name of one alone. Interlocutory judgment may be entered at any day after default, and before writ of inquiry executed.

In these actions, which were for libellous publications on the plaintiffs, in a paper entitled “ The Corrector,” judgments had been entered on default, and writs of inquiry executed.

James S. Smith, moved to set aside the defaults,

and inquisition of damages on an affidavit made by himself, stating, that by the writs sued out in these causes, Woodworth and Osborn appear to have been the attorneys on record for the plaintiffs,^[1] but that the declarations were endorsed

p. 109

with the name of Osborn only. That the rules also, which had been entered in these causes, were signed by the name of Osborn only, and this, without any order of court obtained for that purpose ; and that the interlocutory judgments had been entered only four days before execution of the writs of inquiry.

Woodworth, (Atlorney-Gfeneral,) contra,

insisted, that when a plaintiff nominates two or three attorneys, whose names appear on the writ, any one may alone sign and endorse all proceedings in the suit. Otherwise, in case of death, a new attorney must be appointed. But in the present case it was known, that after suing out the writs in these causes, he was nominated to the office he held, and therefore could not act as an attorney where the people are not concerned. On the last point, if the notices be regular, the entry of the judgment may be any time before inquiry executed.

If the proceedings were not correct by being in the name of one attorney only, yet the defendants show no excuse for not applying at an earlier day of this term. This is fatal to their motion. Besides, it is sufficient if one of the attorneys appearing on the writ, continue to endorse and sign the proceedings. It must be presumed the defendants *were not misled, but knew they were the parties meant by the- original suit. As to the second objection, there is no force in it. The settled practice is to allow of notice of inquiry being given at any time after default, and it is enough if the interlocutory judgment be entered at any day before execution of the writ of inquiry.

I concur in the decision of the court on the question in this case. But I do not say, if two persona be attorneys on the writ, one may go on with the proceedings in his name singly. Were one to die, then the right to carry on the suit would survive. On the points now

Concurrence

p. 110

.before us, I consider the appointment of Mr. Woodworth ■ to the place of Attorney-General, as a species of civil ■death. Therefore, on the present occasion, I agree with ■the opinions of my brethren. The defendants can take nothing by their motion.

Motion refused.