Paine v. Chase — 4 Hill & Den. 563

Majority

p. 563

Paine vs. Chase and others.

Headnote

Where, in A suit against the maker and endorsers of a promissory note, one bf thé defendants suffered judgment by default, and the others pleaded the general issue; held, that the plaintiff was not at liberty to sever as to the latter and proceed to trial against one only.

Motion to set aside inquest. The action was against Chase, Tracy, McClary and Bigelow, and was commenced by declaration containing the common money counts. A notice was attached to the declaration stating that the suit was instituted to recover the amount due on a promissory note made by Chase and endorsed by the other defendants. Chase and Tracy pleaded the general issue, and Bigelow suffered judgment by default. Notice of trial and inquest was served for the Seneca circuit in November, which was afterwards countermanded as to Tracy, and an inquest taken against Chase only. Chase’s counsel objected that an inquest could not regularly be taken against him alone; but the circuit judge overruled the objection.

JV. Hill, Jr., for the motion,

said the act of 1835, p. 248,.

p. 564

§ 2, on which the plaintiff must rely, gave the right to sever in two cases only : 1. Where the trial is put off by some of the defendants ; and 2. Where a default is obtained against some of the defendants. In either case) the plaintiff is to proceed in respect tb the other parties as if the suit had been commenced against them alone;

S. J. Cowen, contra, cited Bank of Genesee v. Field, ( 19 Wend. 643 .)

By the Court,

It is not denied that judgment by default was properly taken against Bigelow. By the second alternative of the second section of the statute, (Sess. L. 1835) p. 248,) on his suffering a default, the plaintiff was entitled to go on against him alone; in other words, to sever, and go to a trial as to the other parties—that is, all of such parties. Then the other alternative is, that if the trial be put off by any of the parties, the plaintiff may try as to the others. The cause was not so put off. There is no third alternative on which the plaintiff could sever at the trial, as he did in this case. He was irregulars

Motion granted.

Cases cited

Bank of Genessee v. Field 19 Wend. 643 N.Y. Sup. Ct. p. 564