Garlock v. Dunkle.

venue to Montgomery, accompanied with an order to stay proceedings. The circuit in Jefferson was appointed to be held on the fifteenth day of June. A circuit court was held in Montgomery commencing on the eleventh day of May which was ended, and the next circuit in that county would not be held until the autumn of 1840. The defendant swore that he did not know it was necessary for him to employ an attorney until the rule to plead was about to expire. The granting of the motion was opposed on the ground that if the venue was changed the plaintiff would lose a trial and a term, and that therefore within the meaning of the cases decided by this court, the motion ought not to be granted. The counsel for the plaintiff relied upon the following cases: Chapin v. De Graff, 4 Cowen, 554; Lee v. Chapman, 11 Wendell, 186; Haywood v. Thayer, 10 id. 571; Kent v. Dodge, 3 Johns. 447; Dlavan v. Baldwin, 3 Caines, 104; Smith v. Prior, 9 Wendell, 498.

J. Genter, for the motion.

H. Adams, contra.

By the Court, COWEN, J. Several cases are cited which say that the venue shall not be changed when the effect will be to work the loss of a circuit or a term. But none of them can be understood as applying to a case where no greater delay is occasioned than what must have arisen had notice been given the first opportunity. The meaning is not that the mere loss of a trial or term shall be a ground for denying the motion. The delay of both is often a necessary consequence of a change. The objection applies only when the loss arises from the defendant's neglect: as if a special term be suffered to elapse, in consequence of which the original circuit or the circuit in the county to which the venue is sought to be changed, and at which the plaintiff might have tried his cause, has passed. The mere abstract circumstance that the circuit where the venue was laid is prior in time to that in the county to which it is sought to be changed, cannot be received as an objection

Garlock v. Dunkle.

without entirely subverting the right to change the venue altogether. If otherwise, the plaintiff may always select some early circuit in some county of the state, and thus cut off the right to a trial in the county where the witnesses reside. The question is, would the defendant's delay to move the earliest opportunity work the mischief? That is a thing he may avoid, and shall be holden to do so, if practicable. But he cannot avoid a delay necessarily arrising from the course of the circuits, the time when the plaintiff may choose to commence his suit, and the place where he may lay his venue. I have thought it necessary to say so much, because some of the cases before and even after Chapin v. De Groff, 4 Cowen, 554, which I think goes far enough, may leave it to be inferred that the loss of a trial or term by the course of the courts, or even by the plaintiff so timing the commencement of the suit as himself to work the loss shall cut off the right to change. Whereas the question is one of laches on the side of the defendant; not laches only, but such as works the delay. If unexcused laches carry the plaintiff over the circuit either in the county where he lays the venue, or in the county to which the venue is sought to be changed, then I agree that the motion should fail. In the case before us, it does neither. The declaration was not served till the 7th of May, and no motion could be made till the 2d of June, perhaps later. The motion failing, or succeeding, no trial could be had in Jefferson according to the ordinary course. The preparation of papers at an earlier or later day could have made no difference in this respect. The Montgomery spring circuit has already passed, and none will return for that county till the autumn. All this must have been so, even had the papers been prepared the day after the suit was commenced. The Mongomery circuit commenced May 11th. Now the only advantage the plaintiff could have obtained by an immediate notice, say on the 8th, the day after the suit brought, would have. been the chance of stipulating to change and demanding that the defendant should take three or four days notice of trial, if his case were within the rule of Smith v. Prior, 9 Wendell, 498. It was doubtless with a view, among other VOL. XXII. 78

Garlock v. Dunkle.

things, to enable the plaintiff to consent to a proposed change and demand the acceptance of a short notice of trial, that the 94th rule required preparation to move the earliest practicable opportunity. But the defendant testified in the affidavit on which the commissioner granted the order in question that he did not suppose it necessary to retain an attorney till about the time when the days for pleading expired. He was pressed with his private business as a farmer, and was summoned as a juror to attend the Montgomery circuit. Of course he knew nothing of our rules and cases requiring him to hasten the motion, which was in consequence not ready to be noticed till the 27th of May, when it was noticed for the 4th of June. But had he presented no excuse, the plaintiff did not himself move in season to be ready for the Montgomery circuit. He delayed to begin till the 7th of May, and had the defendant pleaded that very day, and the change been assented to, it would have left but four days to notice the cause for trial in Montgomery. It was the plaintiff's own laches or misfortune which narrowed his time. And surely Smith v. Prior could never have been intended of a case where the plaintiff himself has omitted to declare till too late to notice for the circuit at which the cause should be tried. Had this declaration been served early in April, the case cited might apply, supposing the defendant's delay to stand unexcused.

On the whole, I admit that, in consequence of this motion. being granted the plaintiff must lose a circuit and a term; but the loss does not form an objection within the meaning of our rules of practice. It results from the motion, not the defendant's unexcused delay in preparing for it.

Motion granted.

ANON.

The retainer of an attorney at a distance from the residence of the defendant and of the plaintiff's attorney to put in a plea, when it is manifestly done for the purpose of disabling the plaintiff's attorney from noticing the cause for trial at the circuit immediately after the joining of the issue, is a fraud upon the practice of the court, and a default entered as for not pleading, will be sustained as regular, notwithstanding a plea is served previous to the expiration of the time to plead.

S. Stevens, for the defendant, moved to set aside a default entered as for not pleading, after the plaintiff's attorneys had received a plea of the general issue. The action was on a promissory note, and on the day the rule for pleading expired, the plea was served on the agent of the plaintiff's attorneys. The defendant is an attorney of this court residing in the same village with the plaintiff's attorneys in the county of Saratoga. The plea served was in the handwriting of the defendant, but had the name of an attorney subscribed to it residing at Ogdensburgh, in the county of St. Lawrence. When the plea was served, there was not sufficient time for good service of notice of trial on the agent of the defendant's attorney for the next circuit to be holden in the county where the venue was laid, and there was a failure to serve notice of trial on the defendant personally, although it was attempted to be done. Under these circumstances, the plaintiff's attorneys entered the defendant's default as for not pleading. The defendant stated business engagements at Albany as an excuse for retaining an attorney, and swore to merits.

W. A. Beach, contra, read affidavits, showing that had the defendant pleaded in person, or by an attorney residing in Saratoga, or in any of the adjoining counties, due notice of trial might have been given.

By the Court, COWEN, J. I have uniformly refused to set aside defaults for irregularity, taken under circumstances like these. Where the retainer and course of proceeding on the part of the defendant have been out of the ordinary

Anon.

and natural course of business, and have been obviously intended to work extraordinary delay, the plaintiff's attorney may treat the retainer as a nullity, as he may the service of a plea interposed in furtherance of the original purpose, and calculated to effect it. He to be sure acts at the peril of being able to show a clear case. Such I think the one before me. No reason is assigned for retaining an attorney at Ogdensburgh, when there were many near the defendant's residence, the defendant himself being an attorney; nor can any reason be imagined except that of delay. I know, it is said, in these cases, that a man has a right to retain as his attorney whom he pleases. That is true. So a man may assign his property to whom he pleases; but if it appear satisfactorily that he did so with a view to hinder or delay creditors, the act is fraudulent and void in respect to creditors, both at common law and by statute. A man has a right to interpose any defence by way of special plea; but if the plea be false or frivolous, we strike it out as working a fraudulent delay. A man had a right to invite his neighbor of another state to come over the line, but on finding that he induced him to come over under a false pretence, with a view to arrest him, we set aside the proceeding as fraudulent. Acts, though valid in the abstract, are, almost without exception, treated by the law as nullities, when done in fraud of third persons. Even judgments and decrees obtained with that view are often avoided. They may be disregarded by creditors as utterly void. The principle extends to every transaction as well in the course of legal business as any other, unless it be some judicial act between the parties to a cause, or their privies, as a judgment or order.

In the case at bar, however, there is an affidavit of merits; and the default may be set aside on terms which will prevent the delay which was evidently contemplated. These are payment of the costs of the default and this motion, and consenting to refer the cause to the judge of the fourth circuit, if the plaintiff shall elect that it be so referred.

Rule accordingly.