Campbell v. Munger — 1 Cole. & Cai. Cas. 200

Majority

p. 200

Robert Campbell v. Timothy Munger and others.

Headnote

THIS was a motion for judgment as in case of nonsuit for not proceeding to trial. The affidavit, on which it was grounded, stated, that issue was joined in January term, 1802; that the cause was duly noticed for the circuit in the same year ; that it was not then tried,, and was noticed again for the circuit in May last, when it was not brought on, though it was one of the oldest issues on the calendar, and no countermand of trial had been given.

Van Antwerp resisted the application,

on a deposition made by himself, admitting the notice for the last circuit, but setting forth also, that this cause, as well as another at the suit of one Elijah Montgomery against the same defendants, were actions of trespass quare clausum fregit, involving the same question and same defence; that on the trial of the said cause, Elijah Montgomery became nonsuit at the direction of his honour, Mr. Justice Kent, to which direction an exception was then taken, and, by consent of the defendant’s attorney, the making up of the case was postponed till this term ; that it was understood and • agreed, between the deponent and the defendant’s attorney, that the decision in one of the causes should be conclusive in the others ; and thereon, shortly after the trial, so as above said, to

p. 201

have been had in the other cause, the witnesses for both parties were dismissed and that it was very doubtful whether a trial in this present action could have been had.

delivered by Livingston,!. This is a motion for a nonsuit, for not proceeding to trial at the last circuit in Saratoga. It appears, that this, as well as another action of Elijah Montgo mery, against the same defendants, was noticed for trial at that circuit; that they were all actions of guare clausum fregit, involving the same questions and the same defence. The action of Montgomery was tried, and the plaintiff nonsuited, by direction of Judge Kent. To his opinion an exception was taken by the plaintiff’s counsel. The plaintiff’s attorney upon this, thought it unnecessary, until the opinion given by the judge could be reviewed by this court, to bring on the trial of this cause; and he swears that “ it “was understood and agreed, between the defend- “ ant’s attorney and himself, that a decision in the “ cause tried should be conclusive in the other, and “ that, thereupon, shortly after the trial, the witnesses “ of both parties were dismissed.”

Without relying much on the agreement of the attornies, which was not in writing, the court think the plaintiff has accounted satisfactorily for not bringing this cause to trial. He noticed it in good faith, and appears to have been prepared to try it, but finding the opinion of the judge against him in another cause embracing the same questions, and depending

p. 202

on the same evidence, it would have been folly in him ' " to proceed in the others until the judgment of this court could be had. We think, therefore, that he ought not to stipulate, and that the costs for not proceeding to trial abide the event of the first.