Jackson ex rel. Loop v. Harrington — 4 Cow. 537

Majority

p. 537

Jackson, ex dem. Loop and others, against Harrington.

D. Kellogg, for the defendant,

moved to strike this cause from the calendar for the- term, on the ground that the plaintiff’s attorney had not served the amended case when he gave notice of argument, nor afterwards. The ° ° ’ plain tiff’s attorney had made and served a case on the defendant’s attorney, who had served the plaintiff’s attorney with amendments, to which the plaintiff’s attorney did not , . .., , . „ „ , ohject, nor did he give any notice of referring the case to

Headnote

wleet tied _ by lapso tho ámendme,nts af°scr" vod, or by arrangoment botiosrmmtP”¡ drawn out, copied and serVed at or bofore giving notice of argu* ment, in tho same manner as where it is settled by a judge.

Otherwise, it will, on motion, be stricken from the calendes of the term.

p. 538

be settled by the Circuit Judge, who tried the cause. Ha relied on Peck v. Peck, ( 14 John. Rep. 219 ,) and Delama ter v. Smith, ( 16 John. Rep. 2 .)

A. Gibbs, contra, said it was not necessary to serve a case, where the party making it adopted the amendments served, as in this instance.

The rule of the Court, extends merely to cases settled by a Judge. He cited Rule 6, Jan. Term, 1799, and Rule of Jan. Term, 1816. Here, the party is in full possession of the case, without service of a copy. The case is within the reason of Van Buskirk v. Burr, ( 20 John. Rep. 275 ,) where the Court held, that demurrer books need not be served till the argument comes on. He also cited Jackson v. Case, ( 12 John. Rep. 431 ,) and relied on Peck v. Peck, (14 id. 219,) as showing that the rule, upon which the defendant’s counsel applied, ivas confined to cases settled by the Judge.

There was, perhaps, some reason to suppose so from the authorities; but we think the practice should be the same, without regard to the manner of settling the case. This will preclude all disputes upon the argument as to the frame of it. The transcriber may mistake the precise import or place of the proposed amendment; but if the case be copied and served, at least as early as the notice of argument, it gives a fair chance for correction, before the cause is called upon the calendar. We deny this motion without costs; but in future, the course must be the same in regard to cases amended or settled by agreement, or by the lapse of time, as those settled by the Judge. In all these cases, they must be drawn out, copied and served at or before giving notice of argument.

Motion denied