Willoughby v. Carleton — 9 Johns. 136

Majority

p. 136

Willoughby against Carleton.

NEW YORK,

May. 1812.

Headnote

Where after issuejoined, the cause was ad-request'of the atids request^ a second adjournmentwas "granted, on absence of maeí it'wafheid" that any ob-adjournment the'plaintiff^ the day and going to trial °Thedecis¡on proportion of fence of each party, is not requisite, if there is no dispute between them; nor are the fence viewers, in such case, to settle the costs and expenses of repairing the fence.

Parol proof of a written notice to repair is sufficient.

A deed cannot be proved by the grantee, -without accounting for the absence of the subscribing witnesses. ■

IN error, on certiorari, from a justice’s court.

» Carleton brought an action against Willoughby, for work and la-hour in putting up a fence, being the division fence between their lands, and the proportion belonging to Willoughby, which he had neglected to mend, for more than a month after request. Plea, the ° , * general issue, and set-off. The justice adjourned the cause, at the request of the defendant, to the 1st January, when the parties appeared; and the plaintiff requested an adjournment, on account 0f the non-attendance of a witness who had been subpoenaed. The defendant objected, but the justice granted the adjournment, on the plaintiff’s oath, and giving security. There was a trial by jury* The justice ruled that it was not necessary for Carleton to show, that the proportions of the fence to each party had been settled by fence viewers, because it did not appear that any dis-P«te had arisen. He also decided, that it was not requisite that COsts and expenses of the fence should be settled by the * . / . fence viewers, but might be proved by witnesses, lhe justice

p. 137

also admitted parol proof of a written request given to the defendant for a month, to mend the fence, though no notice had been given to produce the writing. The defendant, Willoughby, offered to prove that he had sold the land adjoining the land of the plaintiff at the time of the notice, and produced the deed, and the grantee, to prove it; but the justice ruled that the subscribing witness was necessary, and the evidence offered was rejected. The juiy found a verdict for the plaintiff, for 7 dollars, on which the justice gave judgment.

There is no well founded objection to the judgment below. 1. Whatever objection there might have been to the second adjournment, on the strict construction of the act, the granting it was reasonable and just, under the circumstances of the case,^[1] and the objection was waived by the appearance of the defendant, afterwards, on the day of adjournment and going to trial on the merits. This cured the irregularity, according to the ' case of Dunham v. Heyden. ( 7 Johns. Rep. 381 .)

2. The justice was correct in ruling that a decision of the fence viewers, as to each party’s proportion of the fence, was not requisite, if no dispute existed as to the proportions; nor were the costs and expenses of repairing the fence to be settled, in this case, by the fence viewers.

3. The admission of parol proof of the written notice to the defendant to repair, was also correct. Tower v. Wilson, ( 3 Caines’ Rep. 174 .)

4. The defendant was not entitled to prove his deed by the grantee, without accounting for the absence of the subscribing witnesses. The grantee had the strongest interest in the question to be put; and it showed the danger of departing from the general rule, as to the proof of deeds.

Judgment affirmed.

* See Powers v. Lockwood. ante, p. 153.