is not pretended that any principle of law has been violated ALBANY, by the referees. Curia, per WOODWORTH, J. On looking into the papers upon which the Court below proceeded, we are satisfied they erred. We think that the circumstances relied upon to impeach the witness before the referees were not so strong as to call for the interference of the Court in setting aside the report. But it is equally clear that, whether the report should be set aside or not, was a question of discretion, the extent of which we cannot limit by the standard of our own opinion. It was a question upon the weight of evidence; and Courts will exercise a sound discretion on this head, in controlling the reports of referees, or the verdict of a jury. Should it appear, for instance, that a witness relied upon was shown to be totally destitute of credit, as that he was infamous, and he was not at all supported by any other evidence in the cause, the Court might in their discretion set aside a report or a verdict founded upon such testimony. So they may weigh the testimony, and if, in their view, it presents a striking preponderance on one side which has been disregarded by the referees or the jury, the Court may relieve although no rule of law have been violated. Wherever an inferior jurisdiction, having a discretion, have exercised it, this Court does not interfere by manda, A contrary practice would draw before us every investigation of fact which may arise in the Court of Common Pleas. We do not mean to say, that we would not grant a mandamus in a plain case, where the evidence is all one way, and there is nothing contradictory; where the case is so palpable as to leave no room for discretion in the Court below. But here was evidence on both sides; and it was in the sound discretion of the Court, whether they would interfere or not. mus. SUTHERLAND, J. The only question is, whether the Court below had a right to entertain the question of credibility. That Courts will review evidence upon its credibility, even before a jury, in extraordinary cases, is undoubted; and it follows of course, that they have the same power in rela Feb. 1824. Ex parte ALBANY, Waring V. Baret. tion to evidence before referees. But we will not interfere merely because we think the Court below have decided erroneously in a mere question of fact which they had a right to decide. It must, in its very nature, be a matter of discretion. Motion denied. An assignee of a chose in action on WARING against BARET. WALLIS moved for a rule that the attorneys for the plaintiff pay the defendant $100, being a part of his costs which which a suit is had been taxed in this cause, and that John Brady pay prosecuted for his benefit, on the balance. The suit was instituted upon a promissory judgment for the defendant note, negotiable, executed by the defendant to the plaintiff, is liable for the who, at the time of the commencement of the suit, and ever An attorney Since, resided without this state, and no security for costs liable for the had been filed. The note was assigned to Brady, for whose costs, in a suit benefit this suit was prosecuted. On the trial, the defenbrought by dant proved payment and had a verdict, and his costs were costs. is defendant's him for a non resident plain- taxed at $176 57. Brady was at the commencement of the suit, and still is a resident of this state. tiff, where the defendant succeeds; and this though the plaintiff be Wallis cited the 14th general rule of January term, merely nomi- 1799, to show, that the attorneys were liable; and The nal, having as signed his de- People v. Bradt, (6 John. Rep. 318;) and Ketchum v. mand to a re- Clark, (4 John. Rep. 484,) as to the liability of Brady. sident. Form of the rule in such case, that the Dexter & M. T. Reynolds, contra, contended that this attorney pay was not a case within the rule cited. The suit was commen$100, and ced for the benefit of Brady, who is liable for costs. He re signee pay the sides within the state and has so resided ever since the com balance. that the as mencement of the suit. He is the real plaintiff, and will be so regarded by the Court within the 14th general rule of January term, 1799. Curia. It is enough to subject the attorneys to the costs, that the nominal plaintiff was a non-resident of the state at the commencement of the suit. By the rule referred to, their liability is confined to 100 dollars. We grant the rule that they pay this sum; and that Brady pay the balance.(a) RULE: On filing affidavits in this cause, by which it ap pears that the plaintiff is a non-resident of the state of New York, and that he was such non-resident at the time of the commencement of this suit, and that this suit was prosecuted for the benefit of J. Brady, the assignee of the note on which the action was founded; and on motion on the part of the defendant in this cause, and after hearing counsel for D. B. & J. M. attorneys for the plaintiff in this cause, ORDERED, that D. B. & J. M. Esquires, pay to the defendant his costs accrued in this cause, to an amount not exceeding the sum of 100 dollars; and that the said J. Brady pay to the the defendant the balance of said costs, and the costs of this motion. (a) In Norton v. Rich, (20 John. 47,) there was a rule for an attachment against the assignee, in the first instance; it appearing that the taxed bill had been demanded of him. ALBANY, Palmer V. Pook. PALMER against PECK. ON certiorari to a Justice's Court. It was moved that the Justice amend his return, by stating certain things and omitting or denying others. Per Curiam. We never direct the Justice to return that to return that such a thing is so; but whether it be so or not. How far the court will order a justice to amend his return to a certiorari. They will not order him Feb. 1824. ALBANY, such a thing is true or otherwise; but merely order him to supply defects by stating whether the matters to which he is legally called upon to return, and to which he has omitted to answer, be true or false. Jackson V. Haines. Motion denied. A female les JACKSON, ex dem. ELIZABETH VROOMAN and others, against HAINES. A MOTION was made for an attachment against Elizabeth of the Vrooman, one of the lessors of the plaintiff, for non-payplaintiff in an ment of the defendant's costs, which had been taxed on a sor action of ejectment, is verdict in his favor at $33 50. not exempt from an attachment for dant's costs; Her counsel objected, that the lessor being a female is not non-payment subject to arrest and imprisonment for costs, incurred as a of the defen- lessor, unless they amount to more than 50 dollars. He rewhere they do lied upon the provision in the 34th section of the act for the amendment of the law (1 R. L. 527,) exempting females The statute, from imprisonment upon civil execution for any recovery males from which does not exceed that sum. Attachments are in the not exceed 50 dollars. exempting fe on execution, imprisonment nature of civil executions, (5 John. Rep. 115,) and the ledoes not ap- gislature so consider them in the act for relief of debtors, &c. ply to such a (1 R. L. 348, s. 1.) case. Curia. We think the statute, relied upon, does not apply to this case. It is that no female person shall be imprisoned upon execution in any civil action for debt or damages, in which the debt or damages shall not, exclusive of costs, exceed 50 dollars. The terms made use of do not reach the case; and the consequence of applying them to an attachment for costs against a female lessor, would be to deprive the defendant of all remedy. An attachment is the only process by which the costs can be collected. The law does not give an execution against the goods, so that both person and property would be exempt in all cases where the costs are not more than 50 dollars. This never could have been the intention of the legislature. Indeed, they have Feb. 1824. Roosevelt V. Gardinier. given a construction to the first section of the act for the ALBANY, relief of debtors with respect to the imprisonment of their persons, (1 R. L. 348,) the phraseology of which is much like this section; which shows that they never could have meant an absolute exemption. In 1813, (sess. 36, ch. 203, s. 49,) they passed an act declaring that nothing in the first section of the act for the relief of debtors, &c., should be constructed to embrace the imprisonment of the plaintiff or the lessors of the plaintiff for costs only. If there had otherwise being any doubt upon our minds, it would have been removed by this declaratory law. We are clear that this lessor is not exempt from the process of attachment, either by the terms or policy of the statute. Motion granted. J. S. & CORNELIUS V. S. ROOSEVELT against GARDINIER. The defendant may demand a bill of particulars be JULY 1, 1823, the defendant's attorney received a declaration containing the common counts in assumpsit, and July 12th, on a proper affidavit, he obtained from a Judge fore appear. of the Common Pleas, who was a counsellor, &c., an order "that all further proceedings be staid until the plaintiff's attorney deliver to the defendant's attorney, a bill of particulars for which this action is brought." In the title of the order, in the name of Cornelius V. S. Roosevelt, the letters V. S. were omitted. The plaintiff's attorney believing this order to be a nullity on the face of it, paid no attention to it, but proceeded and took his default. ance. An order for a bill of par ing the proceedings absolutely till bill is deliver. ed, is irregu ticulars, stay. lar. a It should be that a bill be furnished by such a day or shown A. Burr, moved to set aside this default for irregularity, cause against it. H. Bleecker, contra, contended that the order was a nul- irregular, it stays the proceedings till vacated. The law knows of but one christian name; and therefore the omission of V. S. in the name of one of the plaintiffs in the title to such an order, is not such a misentitling as will render it null. |