Ogdensburgh Bank v. Tift — 1 Hill & Den. 222

Majority

p. 222

Ogdensburgh Bank vs. Tift.

Headnote

A motion for judgment as in ease of nonsuit was denied, but without costs, where the defendant had prevented a trial by entering a ne recipiatur which the circuit judge refused to Vacate; the plaintiff’s attorney now swearing that he was unaware of the rule requiring the circuit roll to be filed the first day of the circuit, and it not appearing that any of the defendant’s witnesses had left court before the cause was reached.

p. 223

It seems, that if the excuse now offered for not filing the circuit roll had been made.' to. appear on the motion for vacatur before the circuit judge, the present motion would have been denied with costs.

Quere, whether the practice of entering a ne recipiatur is not abolished, as to cases’ within the act of 1840 dispensing with both circuit roll and postea.

Motion for judgment as in case of nonsuit, for not proceeding to trial at the last St. Lawrence' circuit. The cause was duly noticed for Tuesday, the first day of the circuit, and placed upon the calendar hy the plaintiff’s attorney, who omitted to file the circuit roll till Thursday, when the cause was called for trial. He was not aware that the practice required the circuit roll to be filed the first day. Just before the cause was called, the defendant’s attorney served the plaintiff’s attorney with notice that a rule for a ne recipiatur had been entered, as it in fact had been on the day before (Wednesday). The plaintiff’s counsel moved to vacate the rule, which was denied, because it had been regularly entered. The plaintiff’s attorney now made affidavit, that the defendant ivas present and attended the court with several persons, whom deponent understood to be his witnesses; and that when the cause was called and the objection made to bring it on by reason of the rule for a ne recipiatur, the said witnesses were present, and the deponent verily believed that no witness attending on the part of the defendant had departed the court at the time of calling said cause. No affidavit was made in behalf of the defendant showing that any one of his witnesses had departed.

J. A. Spencer, for the motion.

B. Perkins, contra.

It is supposed by the counsel for the plaintiffs, that since the nisi prius record has been dispensed with by 2 R. S. 331, 2d ed., § 5, 6, which substitutes a circuit roll, the ne recipiatur for omitting to file

p. 224

the latter is no longer applicable. But all the statute does is to alter the form. The reason for filing the roll on the first day is not changed. Whether the practice in question may be affected by the present statute dispensing with both roll and postea, (Sess. Laws, 1840, 334, § 21,) it is not necessary to say.

The particular time, however, at which the pleadings, in whatever form, áre to be furnished for use at the circuit, has long ceased to be a matter of much moment. Each party obtains a copy of them in the course of the cause before, the circuit comes, and these are a sufficient guide to an understanding of the issue. This court, therefore, without denying the right to a ne recipiatur, (Sage v. Robbins, 8 Cowen, 110,) yet where an excuse was presented by the plaintiff, such as would have warranted the circuit judge in ordering a vacatur, refused to allow the defendant any farther advantage than he derived from putting off the cause at the circuit. (Thompson ads. Jackson, ex dem. Thompson, 1 Wendell, 76.) There, a motion for judgment as in case of nonsuit,' was denied; and Sutherland, J., intimated that in future they would compel defendants, in like cases, to pay the costs of such motions. No doubt, in nearly all cases, every substantial object is answered, by,handing a copy of the pleadings to the clerk when the cause is called" on for trial. The excuse now offered might have been sufficient to warrant the circuit judge in vacating the rule; but non constat that it was presented to him, or even mentioned to the defendant’s counsel at the circuit; and it may, therefore, be too severe to charge the defendant with costs. Let them abide the event.

Motion denied.