Edmund Kirby v. Samuel Cogswell

Edmund Kirby v. Samuel Cogswell. This was an action on a promissory note by the indorsee against the maker. It appeared on the trial, which took place during the last Albany circuit, that the plaintiff was one of a firm, and had indorsed the note, in the name of the house, to himself, and now sued in his individual capacity. On this account, an objection was taken, the defendant insisting that the plaintiff could not by his indorsement in the style of the co-partnership, transfer to himself, in his private character, the note so as to give a right of action.— This, however, being overruled by his honour, Mr, Justice Kent, the defendant, within the time limited by rule, made a case, and served it on the plaintiff’s attorney. He, observing it to be incorrect, made another, detailing the facts accurately, and also served his, titling it an “ amended case.” On the of November last, being the first day of November term, the plaintiff filed his certificate of trial, nisi pr'ms record, with the postea indorsed, jury process, and entered a rule nisi for judgment. On the 8th of November, the defendant taking no notice of the case intended as an amendment, obtained, on his own statement of facts, a certificate from Mr. Justice Kent, to stay proceedings. This, with a 'copy of his case, but without any notice of motion, he served the next day on the plaintiff’s attorney, observing to him, at the same time, that the amendments, according to the practice of the court, ought to have been proposed and not sent in the shape of a new case. The plaintiff’s attorney then offered to make a fair statement, as should be agreed on, alleging his ignorance of the strict rules of making a case. The defendant’s attorney seeming to evade this, the plaintiff on the 16th of November served a copy of a bill of costs in the suit, with regular notice of taxation, which he proceeded to execute, signed judgment, and issued a fieri facias. Van Antwerp now moved to set aside the judgment and all subsequent proceedings, insisting that the certificate of the judge was a complete stay, without any notice of motion annexed; for the plaintiff had, as weH as the defendant, a right to bring on the argument on the case. See Milward v. Hallett, ante, p. 261. [MAJORITY — Per Curiam.] Per Curiam. The question is, as to the operation of a certificate of probable cause to stay proceedings. The 4th rule of January, 1799, settles, that. at the time of service of the order, it must be accompanied with a notice of motion. The right of the opposite party to notice for argument, does not take away the necessity of notice ; for the mere certificate itself is no stay. The defendant, therefore, cart take nothing by his motion, and must pay the costs of the present application.