Cogswell v. Vanderbergh — 1 Cole. & Cai. Cas. 214

Majority

p. 214

Salmon Cogswell v. Evert Vanderbergh.

Headnote

WOODWORTH, on the part of the defendant, moved to set aside the default, and all subsequent proceedings on two -affidavits, made by the defendant and another person, stating that a copias ad respondendum in this suit, was duly issued and served in the month of November last; that in February following, the defendant called on the plaintiff, and offered to pay part of the debt, if he could have time for the residue ; that this being agreed to, the defendant paid 300 dollars, and the plaintiff promised to stay all proceedings ; |he defendant’s affidavit further showed that he had frequently called on the plaintiff to settle the residue, but that he vyas either from home, or engaged in company, and had, notwithstanding his agreement to stop the suit, gone on, obtained a judgment by default, and taken out execution; that the defendant, relying on the agreement, had not employed any attorney, and the execution was for mqre than w^s due, credit not having been given the defendant for an account which he had against the plaintiff. The affidavit,

p. 215

PFoodworth said, in addition to its being supported by the deposition of another person, carried internal evidence of its truth. It was not natural to suppose that a man should pay, after an arrest, so large a sum, on account of the debt, under no kind of agreement, but leave himself open to an execution for the residue, the very next moment. He therefore hoped the court would set aside the whole proceedings, as being in violation of every principle of good faith.

Fan Antwerp, contra,

read a long affidavit by the plaintiff, denying the receipt of the money on any condition, and swearing to the justness of his execution: But the denial rested on his own testimony alone.

This is an application to set aside-the judgment, and all subsequent proceedings. The affidavits are very lengthy, and so far as they relate to merits, we put them totally out of view, for on that point they cannot be received, the plaintiff having been perfectly regular, according to the rules of this court. But the motion is made on the further ground of surprise. To this effect the defendant has sworn, and his testimony is corroborated by that of another witness to the same effect. On the other hand may be opposed the positive denial of the plaintiff. If the weight of testimony be to decide, it will be found with the defendant. There has at least been a misunderstanding in this business. The defendant thought he paid his money that the suit might not go en, and therefore did not make any defence. It is evident some great mistake has been made ; the plaintiff, however is perfectly regular, and as each side may have thought himself right, the judgment

p. 216

an<^ proceedings must be set aside on payment of costs, pleading issuably, and taking notice of trial for the next circuit.