FENNER US. Bettner.

One of several defendants may bring error and assign infancy as error in fact, but the writ may be quashed at any time before joinder in error; the court, however, may permit the suit to proceed on the steps prescribed by statute being taken to procure a severance of parties. Practice in such cases.

It is too late to set aside an assignment of errors after laches on the part of the defendant in error.

A JUDGMENT having been obtained in the superior court of the city of New-York by Bettner against E. Fenner and three others, E. Fenner alone brought error. He assigned infancy for error, Oct. 4, 1839, a copy of the assignment being served the same day on the attorney for the defendant in error. On the 24th of October, the time for joining in error was extended by mutual consent of the attorneys of Fenner and Bettner; and the attorney of the latter afterwards obtained an order to stay proceedings, and moved to compel E. Fenner to discontinue, on receiving a release. That motion being denied in February last, a motion was now made that the assignment of errors be set aside, &c. or for such other rule, &c.. The notice of bringing the writ of error was entitled in the cause in the court below, naming all four of the defendants below, but was signed by the attorney of E. Fenner only, as for him.

The plaintiff in error now made an affidavit that he had applied to one of the defendants below to join him in prosecuting the writ of error, which that defendant declined to do; and that the consent of the other two defendants below could not be obtained, because they were absent from the state. It was also objected that this motion came too late.

By the Court, CowEN, J. If the assignment of errors was irregular as being variant from the writ, it is now perhaps too late to raise the objection. The motion might have been made at the December motion term. Several

Fenner v. Bettner.

other like terms have intervened, and steps have been taken in the cause by the attorney for the defendant in error, with full knowledge of the supposed irregularity.

But the assignment was not irregular. The plaintiff in error had a right to prosecute the writ as he has done in his own right, naming all the defendants, for the purpose of identifying the record; and on the return of the writ, to proceed alone by severance, pursuant to the 2 R. S. 491, 2d ed., 7 to 14 inclusive. Coming thus on his sole complaint and in his own name, he may, for aught I see, assign errors in the same form before severance. Indeed, section 7 supposes this to be so. It declares, that if the parties entitled to bring error be not all joined, the writ shall be quashed at at any time before joinder, unless one or more be allowed to proceed separately; and the motion to quash, by § 8 and 9, may be answered by showing that they have refused to join on being applied to, or that their consent could not be obtained by reason of their absence from the state. Here one (Benjamin Fenner) has refused, and two, David Rogers and Samuel D. Rogers, are absent, as appears by the affidavit of E. Fenner.

A rule must therefore be entered pursuant to section 10, directing Benj. Fenner to appear on the first day of the next August special term, and then join in the writ, or be forever precluded from bringing another writ of error. In the meantime, let all proceedings be stayed. § 9.

As to David and Samuel D. Rogers, the affidavit of E. Fenner is general, and perhaps ought not to conclude either them or the defendant in error. Therefore, let the latter shew cause on the same day of August term why the plaintiff in error should not be allowed to prosecute without them. pursuant to § 8.

Rule accordingly.

MILLER US. STOCKING.

On serving replications the plaintiff may deliver a notice of trial, but the proceeding is subject to be defeated or modified by the subsequent delivery of a bona fide demurrer and the decision thereon. If after the notice and before the trial, the defendant demur to some of the replications and issues of fact be joined on others of the pleas, the plaintiff may proceed and take a verdict, notwithstanding he has not joined in demurrer; but he holds the verdict dependent upon the event of the demurrer. Under peculiar circumstances, a notice of trial may be served as late as eleven o'clock, P. M.

J. A. SPENCER for the defendant, moved to set aside an inquest taken at the Oneida circuit which commenced on the 20th day of April last.

He read affidavits showing that the action was assumpsit; that the declaration contained several counts for lands, &c. sold and the common counts; that the defendant's attorney on the 6th of April caused to be served on the plaintiff's attorney the general issue and four special pleas; and that on the evening of the same day, the plaintiff's attorney caused replications to be served on the defendant's attorney, and a notice of trial with replications to the special pleas tending an issue to the country. The service was made by delivering the papers to a clerk of the defendant's attorney, at 11 o'clock at night, after he had retired to bed in a room adjoining the office of the defendant's attorney. On the morning of the 20th, the plaintiff's attorney caused special demurrers to three of the replications to be served on the plaintiff's attorney; who proceeded notwithstanding, and took an inquest against the defendant, without first joining in demurrer. The replications demurred to were to the three last pleas. The third plea was to the whole declaration; the two last to only part of the

counts.

The first and second pleas were to the whole declaration, and on these issues of fact were joined.

R. W. Peckham, contra, read affidavits, that the pleas were served about half past 8 o'clock P. M. of the 6th day

of April, that being the last day of noticing for trial; and that the replications and notice of trial were, as soon as practicable, though late in the evening, served by delivering copies to a clerk of the defendant's attorney then in the of fice. The affidavits also tended to show that the defendant's attorney and one of his clerks had managed to serve the copies of the pleas late in the day. The clerk had closed the office, fastening the door, and retired to bed earlier than usual, in order to prevent the service of the copies of the replications and notice of trial on him in the course of the same day, but the door being accidentally opened by another clerk, who was in the office with a light, the messenger who made service, was enabled to enter the office without violence, offering the papers first to the latter clerk; but on his denying himself to be a clerk, delivering them to the other who was in bed.

The affidavits tended to show also that the defendant's attorney had taken measures to avoid a personal service on himself in the course of the evening. They also tended to show that the special pleas, the replications to which had been demurred to, were false, and a motion was made on that ground to strike them out: which was denied on the production of the defendant's affidavit's that he believed them to be true.

It was farther insisted in answer to the present motion, that the demurrers were frivolous, and interposed merely to delay a trial; and that, at all events, the plaintiff had a right to assess contingent damages under his notice of trial, at the same time that he tried the issues of fact which remained clear of the demurrers.

Spencer, in reply, insisted that the demurrers were not frivolous; and that contingent damages could not be assessed, until after joinders in demurrer.

By the Court, COWEN, J. Whatever may be said as to the frivolity of the demurrers to the replications to the third and fourth pleas, there is at least colour for the demurrer to the last replication. I am inclined to think that, notwithstanding the lateness of the hour at which the notice of tri

Miller v. Stocking.

al was presented to the clerks, the service was, under the special circumstances of the case, sufficient. Cooper v. Carr. 8 Johns. R. 360. The office was open, the clerks were there; and the attorney himself in expectation that notice would come. Its service was, I think, quite equivalent to that in the case cited, which was at 10 in the evening on a clerk. In Bowen v. Clarke, 2 Wendell, 249, the service was neither on the attorney nor his clerk; so that it could not possibly reach the attorney till too late.

Then were the pleadings in a proper stage for a contingent assessment? It is the settled practice to serve notice of trial with replications taking issue, as was done here, though that notice is always subject to defeasance or qualification by a bona fide demurrer within twenty days. Shultys v. Owens, 14 Johns. R. 345. The question here is, to what extent such a demurrer shall operate? Hawley v. Hanchet, 1 Cowen, 152, held, on two issues of facts, tendered by two replications to two several pleas, that the plaintiff could not maintain a verdict taken on both the several issues of fact in the cause. The course there was-issues of fact by two replications, a trial on both, and then a demurrer served to one of the replications within twenty days after that had been served. The demurrer was held to supersede the verdict, which was set aside as to all the issues. The point was not raised whether the verdict could stand generally on the undisturbed issue, and as a contingent verdict on the other. Such a course would hardly have been desirable to the plaintiff after the strong intimation there given by the court, against the form of the second replication. Beside, the verdict was taken before the demurrer came. In the nature of things, such a verdict must have been without any express qualification; and was assumed to be absolute. In the case at bar, the plaintiff proceeded on an absolute notice, to be sure, but after that had been qualified by demurrers addressed to three of the issues; and the right of the plaintiff to proceed as he did, can hardly be denied, provided he had immediately joined in demurrer. Issues of fact and demurrers in the same cause at whatever stage, or in whatever department or line of pleading, make a case for VOL. XXII.

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