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of New-York.

The Bank of Buffalo v. Lowry.

The service was on the 9th of March, 1840. The action was against the defendants as the maker and endorsers of a promissory note, and the plea was served on the last day for pleading. The attorney for the defendants resided in the county of Cortland, his clients in the county of Chatauque, and the plaintiff's attorney and Buffalo. The venue was laid in the county of Niagara, the circuit in which was near at hand. On diligent inquiry the plaintiff's attorney failed to ascertain the place of residence of the defendants' attorney; and finally being satisfied that the retainer was a trick to delay the cause, treated it as a nullity and perfected judgment by default as for want of a plea. The plaintiff's attorney had failed, on search, to find that the defendants' attorney had an agent in Albany, though now, on production of the agency list, it appeared that he had an agent there. The plaintiff's attorney inquired of one of the defendants, who said he never heard of such a person as the attorney who had put in the plea. The defendants. were embarrassed in their circumstances and had been frequently sued. Had the plaintiff's attorney succeeded in ascertaining the residence of the defendants' attorney, notice of trial might have been served in time for the Niagara circuit.

M. T. Reynolds, contra.

By the Court, COWEN, J. It is impossible to resist the conclusion, that this retainer, and the proceeding upon it were for the mere purpose of delay. The retainer was of a remote and obscure attorney, who instituted a course of serving papers through a distant agency still farther calculated to conceal the place of his residence from the plaintiff's attorney, and in itself to work a delay that might have thrown the cause over the circuit, which was near at hand. The defendants' attorney swears that his retainer was bona fide, but he forbears to account for the defendants passing over a numerous and well known class of the profession residing much nearer the defendants, or the sending papers from Cortland to the city of New-York for service on an

The Bank of Buffalo v. Lowry.

agent there, when it is obvious that a direct service would have been much more convenient for him. No merits are sworn to, though one of the defendants makes an affidavit. Looking at the circumstances as matter of evidence, I am satisfied the course pursued here by the defendants and their attorney was a fraud on the rules of legal practice. This fully warranted the plaintiff's attorney in treating the retainer and plea as nullities, and proceeding as if no attorney had been retained.

I will not say that this sort of expedient by failing debtors, is absolutely null to all intents and purposes. The plaintiff's attorney must in such cases do his best to avoid the consequences of the fraud, by the ordinary service of papers and other steps, as if the defendant's conduct were bona fide; but if he cannot do so, I feel entirely justified, both on principle and authority, in saying that he may take such other method of practice as shall avoid the consequences intended to be worked by the trick. It is like the case of a party skulking to avoid the service of a rule, with the view to an attachment. The law of the court is very strong, that this must be personal, for it is in the nature of process, and the party may finally be committed. Yet where he keeps out of the way to avoid the service, you may do the best you can; and an attachment may be granted on proof that due means of service have been taken and baffled. Green v. Prosser, 2 Dowl. Pr. Cas. 99. As there remarked by Lord Lyndhurst, C. B.: "All these cases depend upon their own particular circumstances." And being satisfied on the evidence that the party kept out of the way, in consequence of which the regular mode of service failed, the court considered this equivalent to the usual mode. It is a solecism in such case, for the party to complain of injury by the step. Its real nature is to counteract his own fraud, an injury intended by him. With what propriety can he clamor for the ordinary notice, when he has done all in his power to prevent it, or defeat its effect? It may be said you must move the court in limine, for leave to disregard the retainer or plea, as you do for a substituted service. But that is not always so. A frivolous demurrer

Starr v. Francis.

interposed to prevent carrying down the cause to trial is often disregarded, and always may be treated as a nullity; and the frivolity of the demurrer shown in reply to a motion which seeks to use it, in order to set aside a trial as irregular. It is by no means an extenuation, much less a protection to fraud, that legal machinery is resorted to in its perpetration. This is the doctrine familiar to the criminal law, which treats the proceeding as absolutely void; and has even followed it with capital punishment. 2 Russ. on Cr. 143, Am. ed. of 1836.

Motion denied.

STARR VS. FRANCIS and others.

An order to stay proceedings granted to enable a defendant to move for change of venue cannot be disregarded by the plaintiffs, although its effect be to throw the cause over both circuits-the circuit in the county where the venue is laid, and in the county to which it is proposed to be changed. The remedy of the plaintiff in such case is to obtain a revocatur of the order.

M. T. Reynolds, for the defendants, moved to set aside the inquest taken in this cause at the last Oneida circuit, and to change the venue from the county of Oneida to the county of Jefferson. The declaration was in assumpsit, and was served. 11th March last. On the 30th, one of the defendants retained an attorney, who pleaded for all. Issue was joined on a special plea on the second day of April, and on the same day the cause was noticed for trial for the Oneida circuit, appointed to be held on the third Monday of April. On the third day of April, the defendants' attorney having had papers prepared for changing the venue to the county of Jefferson, served them on the plaintiff's attorney, with a commissioner's order staying proceedings, with a view to move at the present term. The affidavits on which the order was obtained, and which were sworn to on the first and third, omitted to state any excuse for not moving at the last April special term, nor did they show that the defendants VOL. XXII.

80

Starr v. Francis.

had used due diligence, &c. as required by rule 94. The Jefferson circuit was appointed for the fifteenth day of June, The effect of the order being to throw the cause over both circuits, the plaintiff's attorney disregarded it as fraudule nt and took an inquest in Oneida.

S. Stevens, contra, resisted both motions. He said the order having been obtained without a compliance with the terms of the 94th rule was void; or, if not void for that reason, it should be considered so, because the course of the defendants was evidently intended to throw the cause over the circuits.

He opposed the motion to change the venue, even if the inquest should be set aside, inasmuch as a trial had been lost by the course taken; and no excuse was offered for the delay to apply at the April special term.

Reynolds, in reply, said he would not deny that the course of a defendant in obtaining such an order might, in connection with other circumstances, so clearly betray an intent to work a fraudulent delay, that the court might feel authorized to treat it as void, and sanction a proceeding like that adopted by the plaintiff; but he denied that, on the case as it now stood, any inference of fraud could be raised. The only thing that could be seriously imputed was the accidental omission to prepare the very first opportunity, or to excuse the neglect in the papers presented—a formula required by a recent rule that both the attorney and the commissioner had overlooked.

By the Court, COWEN, J. I have inquired of my brother Bronson, who does not remember having ever holden (as was suggested on the argument of this motion) that an order to stay has been treated by him as a nullity, merely because the affidavit on which it was founded failed to conform to the requisites demanded by the ninety-fourth rule, in respect to delay. He agrees with me, that such an order though erroneous, must be respected until revoked, as it doubtless would have been by the commission on show

Anon.

ing him the papers, and calling his attention to the defect. Such should be the practice whenever an order is improvidently made a common thing; for orders are generally obtained ex parte, and often hastily at the last moment. For one, I am not prepared to say that even if obtained by the fraud of the party, an order can be treated as a nullity; certain it cannot on account of mere irregularity. It is a judicial act done in the course of the cause, open to a rehearing and an appeal to this court; and I am not aware of any case in which such an act has been holden void even for fraud. The case of judicial acts avoided on that ground, relate to collusive proceedings between third persons for instance, judgments to defraud creditors and the like. The case is altogether different from a delay sought to be worked by the trick of the party himself, or his attorney, like the fraudulent retainer of a distant attorney, at the close of the time for pleading, and on the verge of the time at which the cause might otherwise be noticed for trial.

The motion to set aside the inquest is, therefore, granted. The motion to change the venue is denied. The affidavits furnish no excuse for delay to move at the April term, by which the plaintiff has lost both circuits.

Ordinarily, costs of making the first and opposing the second motion would follow; but as each will probably be about equal, no costs are given either way.

ANON.
July, 1840.

On an attachment for not returning an execution, if the coroner returns

that the sheriff is in his custody upon an execution against his body, the court will award an alias attachment and a habeas corpus to bring up the sheriff.

ON an attachment against a sheriff for not returning an execution, the coroner returned that the sheriff was in his custody by virtue of an execution against his body. Whereupon the court directed an alias attachment to issue and awarded a writ of habeas corpus to bring up the body of the sheriff. 2 R. S. 536, § 7.

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