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EX PARTE THE NEW-YORK AND SHAWANGUNK MINING

COMPANY.

August, 1840.

In a suit commenced previous to the act of 1840, a plaintiff is not obliged to wait thirty days from the entry of the judgment, before issuing an execution.

APPLICATION was made in this case for a mandamus, to the New York common pleas, directing that court to set aside certain executions issued against the relators on the ground that the same had been issued before the expiration of thirty days from the entry of the judgments upon which the executions had been issued, Statutes, 1840, p. 334, $ 24. It was shown in the common pleas, on the behalf-of the plaintiffs in answer to a motion on the part of the defendants to set aside the executions, that the suits in which the executions had been issued were commenced previous to the passage of the act above referred to, and the common pleas refused to set aside the execution. The motion for a mandamus was denied.

BROWNELL vs. MARSH.
Sept. 1840.

An affidavit of merits in which the defendant deposes that he has fully and fairly stated this case, or his case to counsel, is a sufficient compliance with the 61st rule of this court; an affidavit that he has stated his defence is not enough.

ON motion to change the venue in this cause, and on motions in several other suits where an affidavit of merits was necessary, it was objected that the affidavit did not conform to the 61st rule, which requires the party to swear "that he has fully and fairly stated the case to his counsel." The affidavits were, that the defendant had stated his case, this case and his defence to counsel.

By the Court, BRONSON, J. An affidavit that the party has fully and fairly stated this case, or his case, to counsel,

Jackson v. Ives.

fairly implies that he has stated the whole case, and is a sufficient compliance, in that particular, with the 61st rule. But an affidavit that he has stated his defence to counsel, only implies that he has stated one side of the case, and is therefore insufficient.

Orders accordingly.

JACKSON VS. IVES.

A discovery of books of account will not be ordered after the cause has proceeded to a hearing before referees, and evidence given on both sides, unless under very special circumstances, and the delay in asking for the discovery is fully explained.

Referees have not the power to grant an adjournment beyond a general term of this court; and it seems that adjournments granted by two referees when the third referee does not attend, are irregular.

DISCOVERY of books, and adjournments by referees. The defendant pleaded the general issue and gave notice of set off, and furnished a bill of the particulars of his set off under a judge's order. On the 3d of March last, the cause was referred to three referees. It was brought to a hearing on the 10th day of April, and after both parties had given their evidence, the plaintiff moved for an adjournment beyond the May Term of this court, for the purpose of procuring an inspection of the defendant's books of account in relation to the set off of which he had given evidence. The defendant opposed the motion to adjourn, but an adjournment was ordered by the referees to the third Friday in June. On the 8th June the plaintiff obtained a judge's order that the defendant produce and deposite his books of account with the clerk, or show cause &c., and on the 15th June the order was made absolute-the books not having been produced. On the adjourned day in June, the plaintiff and only two of the referees appeared, when a further adjournment was granted to the 14th July, and on the last mentioned day only two referees attended, and a further adjournment was had until the 24th day of August. The defendant did not appear on either of the adjourned

Jackson v. Ives.

days; he insisted that by adjourning over a term the cause was discontinued, or at least that the power of the referees was at an end. 2 R. S. 384, § 43. Before the 24th of August arrived, the plaintiff obtained a judge's order staying proceedings, for the purpose of enabling him to make this motion. He now moves for an order that the defendant produce the books by a certain day, or be debarred of his defence, and that the referees exclude the proof given of his set off.

W. W. Frothingham, for the plaintiff.

C. Stevens, for the defendant.

By the Court, BRONSON, J. The first adjournment beyond the then next term of this court, exceeded the power expressly conferred on the referees. 2 R. S. 384, § 43; and the two last adjournments, which were ordered when only two of the referees were present, seem to have been unauthorized. Ibid. § 46, and Harris v. Norton, 7 Wend. 534. But without enquiring into the effect of these irregularities, if they must be deemed such, I think the plaintiff now comes too late for a discovery. He not only had notice, but a bill of the particulars of the defendant's set off, and without then asking a discovery to enable him to prepare for trial, rule 28, 29, he proceeded to a hearing; and now, after both parties have given their evidence, he seeks an inspection of the defendant's books of account. Such a course may open the whole controversy, and can hardly fail to prove unreasonably burdensome to the defendant. I do not say that a discovery can never be had at this stage of the cause; but it should only be granted, if at all, under very special circumstances. The delay in asking for it should be fully explained, and it should plainly appear that the ends of justice make a discovery indispensable. Nothing short of this will justify a departure from the general rule of refusing a discovery when it is not asked for at the proper time. In this case no reason is assigned why the plaintiff did not ask an inspection of the books before proceeding to the hearing, nor is it shown that the ends of jus

Doan v. Hine's adm'rs.

tice will be promoted by granting the motion.

It looks very

much as though the plaintiff was fishing for evidence, and attempting indirectly to obtain a re-hearing of the cause. Motion denied.

DOAN VS. HINE'S ADMINISTRATORS.

Costs were refused againt administrators who had suffered a judgment by default, notwithstanding that the creditor had presented his claim within the prescribed period, made affidavit of the existence of the debt, and offered to refer, where it appeared that the administrators admitted their liability, but requested a suit to be brought against a co-maker of the note, the claim in question, for whom they alleged the intestate had become bound solely as surety, offering to pay any deficiency there might be after the prosecution of such suit.

The provision for a reference in these cases was made for the benefit of the creditor, as well as the representatives of the deceased.

COSTS against administrators. The plaintiff was the payee and owner of the joint and several promissory note for $500, made by Jeremiah Hine, the intestate, and by Charles W. Hine. On the first day of May last, and within the time prescribed by the statute for presenting claims, 2 R. S. 88, § 34, the plaintiff served the administrators with a copy of the note, and his own affidavit of the amount justly due, § 35, and required payment. He also tendered a stipulation to refer the matter in pursuance of the 36th section of the statute, if the administrators had any doubt concerning the justice of the claim. Cole, the administrator to whom the papers were presented, said he wanted a few day's time to consult his counsel, which was granted. He finally refused (as the plaintiff states,) to do any thing about the matter, and about one month after the papers were served, an action was brought against the administrators to recover the note, and judgment passed against them by default. Cole, in his affidavit, stated that before the suit was commenced, he called on the plaintiff and informed him that the administrators had no reason to doubt that the note was given as the plaintiff alleged, and that the amount claimed was due and unpaid; but that the note was given for the

Doan v. Hine's adm'rs.

debt of Charles W. Hine-that the intestate had only signed as surety-that the principal was abundantly able to pay, and insisted that the plaintiff ought to collect the money from him. That he requested the plaintiff to proceed against Charles, and told him that the administrators would hold themselves responsible for any balance which might not be collected in that way. Nothing further was heard from the plaintiff until this suit was commenced, which was eight or ten days afterwards. The administrators had at the time no assets in their hands from which the debt could have been paid.

C. Stevens, for the plaintiff, moved for costs against the administrators.

A. Taber opposed the motion, and cited Swift v. Blair, 12 Wendell, 278. 7 id. 522.

By the Court, BRONSON, J. If the defendants, after taking a reasonable time for inquiry, had refused either to acknowledge the justice of the claim, or to refer the matter in pursuance of the statute, and had then suffered judgment by default, the plaintiff would, I think, be entitled to costs. The provision for a reference was made for the benefit of the creditor, as well as the representatives of the deceased, and a refusal to refer is made one ground for awarding costs. 2 R. S. 90, § 41. I do not say that the executor or administrator is bound to refer under all possible circumstances; but as a general rule, he ought not to decline that mode of testing the validity of a demand which he is not prepared to admit. There were evidently no special reasons in this case for desiring a trial according to the course of the common law, for the defendants suffered judgment to pass against them by default.

Although the defendants at the time had no assets in their hands for the payment of the debt, the plaintiff had a right to know whether it would be paid in the due course of administration, to the end that he might take the proper legal measures for asserting his claim, if its justice was denied.

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