Majority
p. 102Samuel Bayard against Samuel B. and Richard M. Malcom. NEW-YORK, May, 1805.
Headnote
Forgetting the commencement of the term, if the excuse be bona fide, is sufficient for not noticinmg for the first day. If a counsel has a known partner who transacts the attorney’s business, an excuse arising from the personal conduct of the counsel, may be availed of in a suit in which the partner’s name only, appears on the record.THE notice of motion was not for the first day of term,
Munro
accounted for this by an affidavit, stating that he had absolutely forgotten the day on which the term commenced, imagining it to be one week later than it really was.
p. 103
Harison, contra,
objected to the reception of this excuse, as Mr. Towt was the attorney on the record, therefore for him the forgetfulness of Mr. Munro could afford no excuse.
There can be no doubt of the mistake, nor, but that the whole is in good faith.
Though Mr. Towt appears the attorney on record, every one knows the connexion between him and Mr. Munro. He is to be supposed to act only under the direction of Mr. Munro.