Corporation v. Manhattan Co.

one of the persons nominated was interested; and this again proves the importance of notice, for had the [*510] Company appeared *they might have shown his interest, and hindered his appointment. This interest is not denied by the corporation; they merely urge that it is alleged at too late a period. As to the damages, an injury to the amount of 6,881 dollars is assessed on that which originally cost only 3,525 dollars. The corporation, it is true, say that the streets were much injured, but this ought to have been shown more satisfactorily, and is sufficient to send this matter for further investigation. A question, however, has been made, whether the Company can now avail themselves of these objections? They must be at liberty so to do now, or they would be remediless. There was not any notice given them to attend before the judge; therefore, to him they could not state their objections. Nor could they have applied to the judge who granted the warrant, to make a further or other appointment, for under the words of the act, the judge cannot revoke his warrant. He, therefore, is functus officii. The only resource, then, is to this court. They have no authority to interfere till this application is made to confirm, and then, the matter being before them, they may proceed on the objections taken. The report was returned on the last day of the last term, and from the manner in which the corporation have taken their rule, they seem to suppose it might now be opposed by showing cause. There can be no ground, therefore, for imputing laches, as the company have come forward at the earliest period they could, after the court was in possession of the cause by filing the report. But it is contended that the notice, though defective, was enough to put the Company on inquiry, and they ought to have applied to this court directly after service of the petition. The rule of practice in this court, as to defective notices, does not apply to this case. It is a special mode of proceeding under a particular act, and therefore,

People v. Judges of Washington.

not within our regulations as to defaults. The court are of opinion that the report be set aside.

KENT, J, I dissent from this determination. The fact is, that the bank had notice of the petition, and of the allegations of that petition. The denial of notice goes only as to time and place. The first intimation they received was on the 6th of July, and the warrant was not issued till the 12th. They then again, on the 26th, re- [*511] ceived a further notice, and it is not till the 28th of November that the report is made. The bank remained inactive, seeing the whole business progress, and, had its termination been favorable, they would have abided by the event; as they deem it otherwise, they now come to us. It is a rule of moral justice, that no man shall be permitted to speculate on his own delay. It is against all rules of practice, which require due diligence. If a party has a short notice of trial, it is enough to set him on inquiry; and if he does not immediately come forward at the next term, we never set aside the verdict he has permitted to go against him. MEvers v. Macklan and Gelston, January term, 1800. The bank might have applied in the last term either to a judge or the court.

Report set aside.

THE PEOPLE against THE JUDGES OF THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF WASHINGTON. Mandamus lies to the court of common pleas for not signing a bill of exceptions.

RUSSEL moved for a peremptory mandamus(a) to be di(a) As to affidavit for. Haight v. Turner, 2 Johns. Rep. 371. When rule to show cause only. People v. Judges of Cayuga, 2 Johns. Cas. 68. When to forbid judgment. People v. Sessions of Chenango, 1 Johns. Cas. 179.

People v. Judges of Washington.

rected to the judges of the common pleas for the county of Washington, ordering them to sign a bill of exceptions.

Per Curiam. Take your rule to show cause the first day of next term.[1] The practice is, not to grant a peremptory mandamus in the first instance.(a)

Rule to show cause granted.

S. C. 2 Johns. People v. Judges

S. C. with opinion of Kent, J., 2 Caines' Cas. in Error, 319. When to compel judgment. Fish v. Weatherwax, 2 Johns. Cas. 215. Haight v. Turner, ubi sup. When not. Jansen v. Judges of Ulster, Cole. 117. Cas. 72. When to sign bill of exceptions, and when not. of West Chester, Cole. 135. S. C. 2 Johns Cas. 118. Sikes v. Ransom, 6 Johns. Rep. 279. When to correct and compel proceedings. The King v. Justices of Wiltshire, East, 683, and 10 East, 401. The King v. London Court of Requests 8 East, 292. Rex v. Justices of Leicester, 1 East, (n) 686. When not for allowing an account. Adams v. Supervisors of Columbia County, 8 Johns. Rep. 323. The King v. Justices of Kent, 11 East, 229. When to restore an attorney, or officer. The People v. Justices .C. B. of Delaware, 1 Johns. Cas. 181. The King v. Company Free Fishers, &c., 8. East, 353. The King v. Commissary, &e, of Bishop of Winchester, 8 East, 573. Rex v. Clarke, East, 75. When to grant administration. The King v. Inhabitants of Horsely, 8 East, 408. When to inspect books. The King v. Lucas, 10 East, 235. When to give benefit of an insolvent act. Ex parte John King, 7 East, 91. When not to commissioners of bankrupt to certify conformity. Ex parte John King, 8 East, 92. When not as prospective. The King v. Chapelwardens of Haworth, 12 East, 556. When not as too late. The King v. Justices of Lancashire, 12 East, 366. When peremptory. People v. Judges and Supervisors of Ulster, 1 Johns. Rep. 64. People v. Collins, ▾ Johns. Rep. 549. Form of writ. The King v. Bishop of Oxford, 8 East, 345. [1] As to compelling the judge to sign a bill of exceptions see Graham's Prac. p. 327; 2 Rev. Stat. 422, sec. 75; 2 Caines, 373; 2 Johns. Cas. 118; 6 J. R. 279; 5 Wend. 132.

(a) The Reg. Brev. 182, contains a writ grounded on the stat. Edw. I commanding the judges to put their seals juxta formam statuti. If they make a false return, an action lies against them. See 2 Inst. 427. Show. Pa. Cas. 117.

Manhattan Co. v. Brower.

MANHATTAN COMPANY against BROWER.

If a person in custody on mesne process sign a warrant of attorney, the nature of which is explained to him by an attorney, who does not witness it as his attorney, the court will not ut semb. set it aside.

THE defendant in this suit being in custody on mesne process, executed a warrant of attorney to confess judg ment for the amount of the debt, but it was not witnessed by any person as his attorney, acting in that capacity for

him.

Hoffman, on this ground, moved to have the warrant of attorney delivered up to be cancelled, and to vacate the judgment entered.

Hamilton, contra, read some affidavits, showing that the defendant, at the time of executing the instrument, was perfectly well apprised of its nature, which had

been explained *to him by an attorney, though not [*512] actually his attorney, or the attorney of the plaintiffs, and that the whole transaction was bona fide, and without surprise.

The inclination of the court appearing to be against the application, the proceedings having been within the spirit of the rule relied on; and it being suggested at the bar, that it was doubtful whether the English rules of E. 15 Car. II. and E. 4 Geo. II. had ever been made rules of this court, though the practice was acknowledged to have been in conformity to their regulations, (a)

Hoffman consented to withdraw his motion, and let the

(a) In all cases not provided for by the rules of the supreme court, the practice of the K. B. is said to be adopted. Dubois 7. Philips, 5 Johns. Rep. 235.

Boss v. Hubble.

judgment stand as a security for the debt, the plaintiffs delivering a declaration, and agreeing to go to trial on the merits.(a)

Motion withdrawn.

ROSS AND OTHERS against HUBBLE, AND JEMIMA, his wife, administratrix of PATERSON.

Where it is necessary only to endorse an appearance on the writ, bail not being required, it is the duty of the clerk of the court to enter the appearance of record. If judgment be signed before it is so entered, it is good, and the court will order the appearance to be entered nunc pro tunc.

THIS was a motion to set aside the default entered in the cause, and all subsequent proceedings, with costs.

The affidavits contained a variety of unimportant facts, but the only question worth noticing, which was relied on, was one of practice, whether it was regular to a writ, which was in trespass only, and returned(b) with the names of the defendants endorsed, to enter their appearance in the clerk's office, after judgment was signed.

It was contended that as the court would order it to be done on application, it was in fact, doing no more than that which the court would sanction.

Per Curiam. It is said that no appearance of the defendants, by special or common bail, or an entry of an appear

(a) In Hutson v. Hutson, 7 D. & E. 8, court of K. B. held, that the benefit of the English rule referred to, could not be waived by a prisoner, and that the presence of the plaintiff's attorney was insufficient, though acting for the prisoner at his request and entreaty, and though pressed to send for another attorney, to witness the instrument, with the nature of which the defendant was perfectly acquainted.

(b) If the writ be not returned, nor bail filed, nor an appearance entered, it is irregular to enter a rule for pleading, because the court is not possessed of the cause; the rule, and proceedings on it will, therefore, be set aside. Howell v. Denniston, 3 Caines' Rep. 96.