Judah v. Stagg's exr's.

In Swift v. Blair, 12 Wendell, 278, the executrix refused to arbitrate-not to refer; and on that ground the motion for costs was denied. But according to the affidavit of Cole, one of the administrators, the validity of the claim was substantially admitted, and there was no occasion for either a reference or a suit against the administrators to establish the demand. As there were then no assets, the plaintiff was entitled to nothing more than a reasonable assurance, that the debt would be paid in the due course of administration. Besides the suit seems to have been brought, before any answer had been given to the equitable proposition, that the plaintiff should first proceed against the principal debtor-the administrators holding themselves responsible for any balance that might not be collected in that way. There is some conflict in the affidavits; but the plaintiff, at the most, has only made out a balanced case on the question of costs, and that is not enough.

Motion denied.

JUDAH VS. STAGG'S EXECUTORS.

Where a judgment obtained by executors is reversed on error brought, the plaintiff is entitled to costs, but the judgment for costs must be de bonis testatoris.

It seems the executors would be thus liable for the costs in error, although they would not be subject to costs in the court below.

COSTS against executors in error. The executors sued Judah in the marine court of the city of New-York, where they were non-suited. On certiorari, the superior court of the city of New-York reversed the judgment. Judah then brought error to this court, where the judgment of the superior court was reversed, and that of the marine court affirmed. The plaintiff in error perfected the judgment of reversal with costs against the defendants in error, which they now move to set aside, on the ground that executors are not liable for costs.

Reynolds v. Woods,

C. Stevens, for the executors.

D. Burwell, contra.

By the Court, BRONSON, J. The statute exempting executors from costs in suits brought against them, does not extend to proceedings in error. 2 R. S. 90, § 41. The whole judgment was reversed, and a new trial was not ordered. In such cases, the statute is general, that the plaintiff in error shall recover costs, without any exception in favor of executors. 2 R. S. 618. §31. We are not authorized to make an exception which the legislature has not thought proper to make. Administrators of Kellogg v. Wilcocks, 2 John. 377. Hogeboom v. Clark, 17 John. 268. It seems, however, that the costs can only be levied de bonis testatoris. Gleason v. Clark, 1 Wendell, 303. The remark in that case, that an executor is only liable for costs in error in cases where he would be subject to costs in the court below, though such is the rule in England, is not in accordance with the prior decisions of this court. The plaintiff in error was entitled to costs, and for aught that appears the judgment has been entered that they be levied of the goods of the testator,

Motion denied.

REYNOLDS vs. WOODS.

A copy of a promissory note attached to a declaration containing the common counts, with a notice to the defendant that the suit is brought against him as a party to the note, is not enough to authorize the plaintiff to disregard an order for a bill of particulars: to justify such a course the note must be stated to be the only demand on which the plaintiff claims to

recover.

M. T. Reynolds, for the defendant, moved to set aside the default and subsequent proceedings on the part of the plaintiff. The declaration was in assumpsit, and contained the common counts, with a notice that "this suit is brought against you as a party to a promissory note, of which the

Garrett v. Teller.

following is a copy," setting out the note.

The defendant

obtained and served an alternative order for a bill of particulars, staying the plaintiff's proceedings in the mean time, and subsequently an order absolute. The plaintiff disregarded the orders, on the ground that the notice served with the declaration was a bill of particulars, entered default, and proceeded to judgment and execution.

A. Sheldon, for the plaintiff, opposed the motion, and relied on the case of Payne v. Smith, 19 Wendell, 122.

By the Court, BRONSON, J. If the plaintiff wishes to avoid delay, he can easily do it by delivering a bill of particulars with his declaration. But it must either be a bill of particulars, in terms, as was the case in Payne v. Smith, or it must in some other way be plainly stated that the specified demand is the only one on which the plaintiff claims to recover. The notice in this case does not come up to that standard. It is only such a notice as is usually given where the action is brought against several parties to a bill or note who could not be jointly sued at the common law. It was not a bill of particulars, and the plaintiff was consequently irregular in disregarding the orders, and proceeding to judgment.

Motion granted.

GARRETT US. TELLER.

A plaintiff cannot disregard a plea, and treat it as a nullity, for the want of being accompanied with an affidavit of merits, unless it appear by the declaration or the plaintiff's bill of particulars that the written instrument or record declared upon is the only cause of action upon which the plaintiff relies.

A notice attached to a declaration on the common counts, that the suit is brought against the defendant as a party to two promissory notes, of which copies are given, is not such a specification of the only cause of action on which a recovery is claimed, as will authorize a plaintiff to treat a plea as a nullity, which is not verified by affidavit.

Garrett v. Teller.

C. D. Witt, for the defendant, moved to set aside the default and subsequent proceedings. The action was commenced in July last. Declaration in assumpsit on the common counts, to which was annexed a notice that "this suit is brought against you as a party to two promissory notes, of which the following are copies"-then followed copies of the notes. The defendant's attorney tendered a plea of the general issue in due time, but the plaintiff's attorney refused to receive it because it was not accompanied by an affidavit of merits, pursuant to the first rule of May term, 1840.* He entered default, and proceeded to judgment.

J. Edwards, for the plaintiff.

*GENERAL RULES, ADOPTED MAY TERM, 1840.

1. In actions upon any written instrument or record which shall be described in, or a copy of which shall be served with the declaration, the plaintiff may disregard any plea in bar concluding to the country, unless the same shall be accompanied by an affidavit that the defendant has fully and fairly stated the case to of, his counsel, and that he has a good and substantial defence on the merits to the whole, or some part of the plaintiff's demand on the hill of exchange, promissory note, or other written instrument, or the judgment, recognizance or other record on which the action is brought, as he is advised by his counsel and verily believes to be true. The plaintiff may also disregard any plea in bar concluding with a verification, unless the same shall be accompanied by an affidavit that the defendant verily believes the plea to be true in substance and matter of fact. When a sufficient reason is shown why the affidavit is not made by the defendant, the same may be made by his counsel, attorney, or agent, stating\ particularly his means of knowledge in relation to the defence or plea.

This rule shall only apply in cases where it shall appear by the declaration or the plaintiff's bill of particulars, that the written instrument or record is the only cause of action on which the plaintiff relies.

II. On special motions upon notice, when costs shall be allowed to the moving party, the whole amount of such costs shall be ten dollars; and when costs shall be allowed to the opposing party, the whole amount of such costs shall be seven dollars: but "in peculiar and important cases" the gross amount of costs allowed to either party may be increased to a sum not exceeding twenty dollars.

III. The following clause shall be added to the 31st general rule of this court: "But the judge, on granting the order, may limit its effect, by declaring how far it shall operate as a stay of proceedings. When the discovery shall not be made in proper time, and no sufficient cause shall be shown, the judge may make such order for nonsuiting the plaintiff, striking out the defendant's plea or notice, or debarring him from any particular defence, as

Jenkins v. Bloodgood.

By the Court, BRONSON, J. The rule referred to by the plaintiff is expressly limited to cases where it shall appear by the declaration, or the plaintiff's bill of particulars, that the written instrument or record is the only cause of action on which the plaintiff relies." There can be no hardship in requiring, as we intend to do, a strict compliance with the rule. The notice did not amount to a bill of particulars, and the plaintiff had no right to disregard the plea.

Motion granted.*

JENKINS VS. BLOODGOOD.

Where the defendant before the expiration of the rule to plead in two suits brought against him, obtained an order to stay until a motion could be made to consolidate, and the motion was made and granted after the rules to plead had expired, and the plaintiff forthwith entered the defendant's default for not pleading, IT WAS HELD, that the default was regularly entered, and that the plaintiff was entitled to retain it, notwithstanding that on the same day, though after the entry of the default, the defendant served a demurrer; the court holding that the defendant should have pleaded before the motion was made for consolidation.

W. Parmelee, for the defendant, moved to set aside the default and subsequent proceedings, for irregularity. Two suits were brought by the plaintiff against the defendant, in which the declarations were served, in one, on the 9th, and in the other, on the 11th of July last. On the 23d of July the defendant served papers for a motion to consolidate the suits, with a judge's order to stay the plaintiff's proceedings until the motion should be made. On the 7th August the motion was made and granted. The plaintiff thereupon on

the circumstances of the case may reem to require; and on filing such order at the next general or special term, an order of the court to the same effect may be entered as a matter of course.

IV. Service of papers by enclosing the same in a wrapper, directed to the attorney of the other party at his place of residence, putting the same in the post office and paying postage, shall be equivalent to service upon an agent.

V. These rules shall take effect on the first day of July next.