Church v. The United Insurance Company.

CHURCH against THE UNITED INSURANCE COMPANY.

Misprision of clerk in drawing up a rule amended on application, and the plaintiff noticing to the adverse party the error, may have the same benefit as if the rule had been right.

THE plaintiff had obtained, in last January term, an or der of court for the verdict recovered in this cause to stand, and judgment to be given accordingly, unless the defendant should, fourteen days before the next "sittings" in New York, give notice to the plaintiff that a commission issued in the suit had been returned, in which case there should be a new trial, and the plaintiff at liberty to amend, &c.

The clerk(a) had drawn up the rule before the next [*8] "circuit." The plaintiff had given *immediate notice of the mistake to the defendant's attorney, and that he should be prepared to try the cause at the sittings. The defendant not having noticed the return of the commission,

Hamilton moved that the rule be amended to "sittings," and be made absolute for judgment.

Motion granted.

distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this state, hereafter, but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.

The provisions of the Revised Statutes relating to the partition of lands, tenements and hereditaments, held or possessed by joint tenants or tenants in common, shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject-matter of the action, without regard to its form.

(a) See post, Seaman v. Drake, 9.

Everitt v. The People.

JAMES EVERITT, Surrogate of Orange County, ads. THE PEOPLE OF THE STATE OF NEW YORK, ex relat. CHARLES BEACH.

Peremptory mandamus set aside on motion, if unfairly issued.

A RULE was obtained in July term, 1802, that the defendant show cause, by October term, why a mandamus should not issue, compelling him to proceed in a cause then depending before him, concerning the will of Thomas Beach.

A return was made to this rule, which, from the defendant's counsel being unavoidably detained on his way to Albany, was not filed until the third day of October term.

On the first day of October term, the relator attended, and obtained a rule for the mandamus: and on the third day, on filing the return, that rule was vacated.

Notice of the vacatur was given to the person who had acted in his behalf, and had obtained the first rule; but the relator had previously left Albany, and the mandamus issued.

At the last term counsel was employed to move to set this mandumus aside; on his way to Albany, he met the attorney for Beach, when it was agreed that all further proceedings should be stayed until the present term. No further attention was paid to the cause.

The relator attended at Albany the close of the term, employed other counsel, and obtained a rule for a peremptory mandamus, which was issued.

Hoffman, on the above facts, moved to enter a vacatur on the rule for the peremptory mandamus, and to set aside the mandamus itself, which was

Ordered accordingly.

Seaman v. Drake.

[*9]

*SEAMAN and others against DRAKE.

If the principal be discharged under the insolvent law or bankrupt act, and his bail afterwards be fixed, they may, notwithstanding, have an exoneretur entered on payment of costs.

A MOTION had been made last term, on the part of the defendant's bail, to vacate the judgment and all subsequent proceedings. The facts of the case were these:

In April term, 1800, final judgment had been regularly entered, and a capias ad satisfaciendum against the body had issued. In July term following the writ was returned cepi corpus in custodiam; on which the defendant applied to set aside the judgment and execution on an affidavit of merits, and that his attorney, who resided two hundred miles back, did not know of the alteration in the rules of practice, by which the defendant was to plead in twenty days, and not as before, in the next term. A rule nisi, for setting aside the judgment on payment of costs, and stipulating to plead in twenty days.

No plea being given, in October term, 1801, judgment was confirmed, the roll carried in, costs taxed, judgment docketed, and the roll marked as filed, but the clerk had omitted to sign it. A capias ad satisfaciendam was issued, directed to the sheriff of New-York, and returned not found. In January term, 1802, another capias, but not a testatum, was directed to the sheriff of Ulster, on which nothing was done. In April term, 1802, a capias ad respondendum was issued against the bail on their recognizance. In July term, .1802, an alias. In September, 1802, a pluries. In October term, 1802, an alias pluries, which, in January term, 1803, was returned taken. The application of last term was then made on three grounds: first, thatthe proceedings were irregular, the roll not having been signed by the clerk, pursu ant to the law of the 24th March, 1801, c. 75, s. 7.

Secondly, that there was no testatum capias issued to the sheriff of Ulster.

Seaman v. Drake.

Thirdly, that the principal had been discharged under the insolvent law.

The Court then said, on the first point, we consider the omission of the clerk's signature as an error of our officer.(a) This ought not to prejudice the plaintiff, defendant, or any other person. The judgment was docketed as the statute requires, (b) and therefore, the world has the due and legal notice of its existence. On these principles, we, the last term, ordered an amendment nunc pro tunc, and the same must be done now, by ordering the signature of

the clerk to be added in the same *manner. On the [*10] other two points we will, as the counsel request it, hear them at a future day.

Hopkins now moved for leave to enter an exoneretur on the bail piece, and produced the discharge of the principal under the insolvent law of the state. By this it appeared that the defendant's estate had been assigned by order of the court of common pleas of the county, on the 25th of September, 1801, and the defendant discharged the same day.

Colden, contra. The bail are too late in their application for relief. Process against the bail was returned cepi corpus on the first day of January term last. They were, therefore, in eight days after absolutely fixed.

Per Curiam. On Friday, in the second week of the last term, a motion was made to set a side the ca. sa. issued in this cause, on two grounds: 1. Because it ought to have been a testatum writ, it having issued into a county different from that in which the venue was laid; 2. Because the roll was not signed by the clerk, (c) and the record was, therefore, incomplete, and the judgment irregular.

The second objection we considered as a mere clerical omission, and it was disposed of at once, by permitting the clerk to add his signature to the roll nunc pro tunc. The

(a) Suydam v. M Coon, Col. Cas. 59. (b) 31st March, 1801, c. 105, s. 3. (c) Scoffield et Ux. v. Lodie, 2 Johns. Cas. 75.

Seaman v. Drake.

consideration of the first objection, on account of the pressure of business, was postponed till the present term; and it being evident that the object of the motion was the relief of the bail, the proceedings against them were in the mean time directed to stay.

Another motion is now made for a rule that an exoneretur be entered on the bail piece, founded on the irregularity of the ca. sa. as above stated, and also on the further fact that the principal was insolvent, and was discharged under the insolvent act on the 25th September, 1801. The ca. sa. was returned non est in July term last, and the action against the bail is still pending.

It is now objected, that the bail ought not to be permitted to avail themselves of the defendant's discharge, because it was not a ground on which the motion depended at the last term. But this cannot be a good reason to charge the bail, if they are otherwise entitled to relief.

In the case of Van Alstyne ads. Brinkerhoff,(a) we [*11] permitted *an exoneretur to be entered on an application from bail, under similar circumstances. In that case the principal was also discharged under the insol vent act, before the bail were fixed in law. The suit, how eight days after

ever, proceeded against the bail, and the the return of the capias against them had expired before they made their application for relief. We decided, that as they were entitled to have the exoneretur(b) entered be

(a) July term, 1802.

(b) The engagement of bail being alternative either to pay the debt or surrender the principal, though in strictness they be confined, for the latter, to eight days in term after the return of the writ against them, (Strong v. Barber, 1 Johns. Cases, 329. Elliot v. Hay, Ibid. 334,) yet, as it will be allowed at any time pending the suit, and this though they be indemnified, (Brownelow v. Forbes, 2 Johns. Rep. 101,) they will have the benefit of a surrender by an exoneretur wherever the law has rendered the surrender impossible, (Wood v. Mitchell, 6 D. & E. 247. Merrick v. Vaucher, Ibid. 50. Cathcart

v. Cannon, Col. Cas. 60,) unless they be indemnified. (Coles v. De Hayne, 6 D & E. 246.) An exoneretur will also be ordered, when the principal is discharged from the debt, either by having been taken on a ca. sa. and liberated, (Milner and others v. Green, 2 Johns. Cases, 283,) or by course of law,