Majority
p. 571Haywood vs. Thayer. ALBANY, Sept 1833.
Headnote
Where the object of an order enlarging the time to plead manifestly is, to throw a plaintiff over the circuit, a motion to change the venue, made in the mean time, will be denied.Commissioners should hold parties to the shortest possible time for pleading; and where an enlargement of the rule to plead is asked for, and the effect of such enlargement will probably be the loss of a trial, unless short notice be accepted, such notice should be made a condition of the order.
The defendant moved to change the venue. The declaration was served on the eighth day of August. On the seventeenth of the same month the defendant made an affidavit to found this motion. On the twenty-third day of August, his attorney made an affidavit that he intended to move to change the venue, and obtained an order from a commissioner enlarging the time to plead until the twenty-fifth day of September, and gave notice of this motion for the nineteenth day of September.
Jl. Taber, for plaintiff
objected that this was manifestly an attempt to throw the plaintiff over a circuit, and that the motion therefore ought to be denied.
The objection was sustained by the court, Mr. Justice Sutherland remarking that here the time to plead was enlarged 28 days without any reason whatever shewn for it; that commissioners ought to confine parties to the shortest possible time for pleading, when applied to for an enlargement of the rule to plead ; and where the effect of such enlargement will probably be a loss of trial, unless short notice of trial be accepted, they should impose the acceptance of such notice as a condition.
Motion denied.