Clark v. Frost — 3 Cai. 125

Majority

p. 125

Deodatus Clark against Isaac Frost and Wife.

ALBANY,

August, 1805.

Headnote

Affidavits or documents in support of a deponent’s character, which has been impeached, may be read, though copies have not been served; but if they only in a collateral way establish his character, by proving the truth of the ground of motion, which has been contradicted, they are inadmissible. An affidavit by a third person, of facts

SIMONDS, on an application to set aside a default and all subsequent proceedings, relied on an affidavit made by the defendants’ son, setting forth' an agreement to stop all further measures in conáequence of a settlement then made, and shewing, as a cause for the deposition being by the son, that his parents were so old and infirm they could not go to a commissioner to be sworn, but that he, the deponent, having been employed to take care of their interests, was perfectly acquainted with the merits of the cause, and all that had taken place.: ' "

Gold, in opposition,

read four depositions flatly contradicting the settlement, and inability of the defendants ; and also stating the deponent on their behalf, to be a person totally devoid of all credit. He also contended that the motion ought to be founded on the affidavit of the party, therefore, that by the son ought not to have been read.

Shnonds, in reply,

offered affidavits to support the character of the son, by shewing the settlement he mentioned had actually taken place.

We will allow affidavits, or other documents, to be adduced to establish the general reputation of a

p. 126

in the knowledge of a party, on which the application is founded, can not be read, as it ought to be by the party himself; and if he be unable to attend a commissioner ought to go to his house.

person' whose character has been impeached, but we cannot hear any thing supplementary read, to substantiate the ground of motion. Copies of all that is relied on for such a purpose, should be served. In the present instance, the incapacity of the defendants is denied; and when a third person makes an affidavit, á sufficient reason should be shewn, why it was not by the defendant himself. Besides, a commissioner ought to have gone to their house ; and was die affidavit of their son to be received, it would still be insufficient; for it should háve set forth what settlement was made, as it might have been conditional. Take nothing by your motion, and pay the cost's of resisting,

If, after joinder in error, it be discovered, that the justice has neglected to make a return to the certiorari, and he has quitted the state, the court can not norpross the writ, but will give leave to take out execution in the court below, and for the plaintiff here, to discontinue without costs.