Hallet against Cotton

Hallet against Cotton. On moving for a new trial, the court will not order the amount of the verdict, or sum admitted due, to be brought in, though the bail have become insolvent, and obtained their certificates under the bankrupt law. This cause was tried at the sittings after January term last, when the jury found a verdict for the plaintiff for 86(3 dollars and 20 cents. The defendant obtained an order for a stay of further proceedings until the next term, for the purpose of then moving for a new trial. Hawes now moved, on the part of the plaintiff, for an order, that the defendant bring into court the sum found by the jury, with costs of suit; and that in default [*12] thereof, the order *to stay proceedings be dis charged. In support of the application he read an affidavit stating, “ that since this cause has been at issue, the special bail has been declared bankrupt, and discharged under the bankrupt law of the United States. That, on the trial of this cause, a balance was admitted by the defendant’s counsel to be due to the plaintiff of about 500 dollars. That, at the sittings in November last, on the application of the defendant, this cause was put off for that court, on the condition of payment of costs; but that those costs, although repeatedly demanded, were not yet paid.” A further affirmation of the plaintiff was read, stating “that from the circumstances of the defendant he was in danger of losing his said debt, unless the money was brought into court, or the rule to stay proceedings discharged.” A copy of this affidavit, it was acknowledged, had not been served. He argued that a motion for a new trial was an application to the equitable discretion of the court, to relieve from what, in the opinion of the party, was an erroneous or oppressive verdict. That it was a maxim of law, founded on principles of equal justice, “ that he who seeks equity should do equity.” From the affidavit it appeared, that the defendant had admitted on the trial that the plaintiff was entitled to recover about 500 dollars, which sum entitled him also to full costs. Before, therefore, the court would suffer the defendant to be heard on a motion for a new trial, they would require him to do what he acknowledged to be just. The bankruptcy, and discharge of the bail, and the circumstances of the defendant, were additional reasons for requiring the defendant to bring the money into court, to abide the event of the suit. That, from the great number of cases now before the court, it was not in the least probable that the case to be made in this cause could come on in its order,' and a decision be had thereon, in a shorter time than six or nine months; before which period the defendant, from his present circumstances, would doubtless be a bankrupt, or, as his bail were already bankrupt, he might abscond. Under such circumstances, delay was equally prejudicial as a denial of justice. It also appeared that the defendant was now in contempt, and liable to an attachment for non-payment of costs incurred on putting off the trial of this cause, at a former sitting. That it was a standing rule of . the mayor’s court of the city of Uew-York, *that [*13] “ upon every motion for a new trial, the defendant should, within eight days, bring into court the sum recovered by the verdict, with costs; and that in default thereof, the plaintiff have leave to proceed.” That, although this court might not be disposed to go the length of establishing such a rule in all cases, it was believed the peculiar circumstances of this cause were of a nature that would induce them not to hesitate in making the order now requested; or at least, for such sum as was admitted to be due, with costs. Bogert said the object of the motion was nerfectly new and unprecedented. [MAJORITY — Per Curiam.] Per Curiam. The practice of the mayor’s court, in obliging the amount of the verdict to be brought into court on a motion for a new trial, has never been adopted here. The insolvency of the bail is certainly not a sufficient ground to induce us to make such an order; and a copj of the affirmation, respecting the defendant’s circumstances, has never been served on him; of that, therefore, we can take no notice. But let it be understood, we do not mean to say that had it been otherwise we would have granted the motion., Buie refused. But on a tender of it with costs up to the time, entry of judgment, and all further proceedings will he stayed. Hatfield v. Brown, 1 Johns. Rep. 506. See Gillespie ads. Pfister & M' Comb, as to insolvency in cases of security for costs. Coi. Cas. 119. Card ads. Fitzroy and others, Col. Cas. 63, whenever a special motion to to be made on the affidavit, a copy must be served. See also Grove v. Cumpbell, Ib. 114, that supplementary affidavits to rebut those in answer cannot be received. See post, 173, Deas v. Smith, note there. See Bird, Savage & Bird v. Pierpont, 3 Caines, 106. The New York Code of Procedure (secs. 264, 265) provides: Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or an order that the cause be reserved for argument or further consideration. The justice trying the cause may, in his discretion, and upon such terms as may he just, stay the entry of judgment and further proceedings, until the hearing and final decision of a motion for new trial, or to set aside the verdict or judgment, upon the grounds of surprise or irregularity, or upon a case or bill of exceptions. The court shall have power to order a verdict to be entered, subject to the opinion of the court thereon. The judge who tries the cause may, in his discretion, entertain a motion to be made on his minutes to set aside a verdict and grant a new trial upon exceptions, or as being against evidence, or for insufficient evidence, or for excessive damages; but such motions in actions hereafter tried, shall only be heard upon the minutes at the son e term or circuit at which the trial is had, and if not heard at the same term or circuit in actions hereafter tried, the motion must be made upon a case or bill of exceptions, or upon appeal. When such motion is heard and decided upon the minutes of the judge, an appeal may be taken from such decision, and in case of appeal, a case or bill of exceptions must be prepared and settled in the usual form, and upon which case or bill of exceptions the argument of the appeal must be had. After the trial of a cause, either party may, in the manner prescribed by law and the rules of the court in which the action is pending, make and settle a case Or bill of exceptions, which when settled shall be filed, and when filed after judgment, shall be attached to and become a part of the judgment roll. Motions for a new trial on a.case or bill of exceptions, motions for judgment on a special verdict or case reserved subject to the'opinion of the court, shall in the first instance be heard and decided'at a special term, unless the justice trying the cause shall direct it to be heard in the first instance at a general term. If such order is granted, directing it to be heard at a general term, such motion may then be noticed and brought on to argument by either party at a general term of such court, and the court shall hear and decide the same.