Paul Schenk and Henry Ten Broeck v. Melanchton Lloyd Woolsey

Paul Schenk and Henry Ten Broeck v. Melanchton Lloyd Woolsey. IN scire facias, to revive two judgments, one for £4,224, the other for £l,718, obtained in 1783, inquests had been taken at the sittings in December, 1803. D. A. Ogden, under an agreement that the application should be considered as in time, moved to set them aside on affidavits, which contained in substance these facts. The defendant, who lives at Platsburg in the comity of Clinton, was in 1785* duly discharged under the then insolvent law of the state. In February, 1803, the declarations were filed, to which payment was pleaded, with notices subjoined of giving the discharge, &c. in evidence ; but as, on procuring a copy of the proceedings under the insolvent law, the discharge itself could not be found, the attorney of the defendant wrote to him in the August following, communicating this circumstance, and requesting him to make inquiry after it. On the cause being noticed for trial on the 12th of December in that year, the defendant’s attorney again wrote to him, repeating the contents of his former letter; and urging him to attend personally, that measures might be taken to procure the discharge, or substantiate by paroi evidence its former existence and loss. The first of these letters did not reach the defendant till the middle of September, the. latter not till the 29th of November, then next. To each of these the defendant replied, stating that in consequence of a fractured leg, he was utterly unable to travel, and desiring the trial to be postponed till the February following, as, by that time, he hoped to be able to procure the discharge, which had been given to Mr. Du Boys, the then sheriff of Dutchess, to warrant his release from confinement. The first of these answers never came to hand, and the latter which was received bore date on the 18th of December; but though the discharge itself was not found, the attorney employed for the insolvent, who was also assignee of his estate, swore that the discharge had been . obtained on a due and full adherence to the requisites of the act, and that he was then petitioning congress for the lands to which the defendant was entitled, as an officer in the revoe lutionary army, in consequence of their having passed by the assignment of the insolvent’s estate. None of these circumstances, however, appeared when the inquests were taken ; for the counsel of the defendant, when the causes were called on, refused to answer the court whether there was any defence, thinking that he was not bound to do so, and in consequence of this silence the inquests were taken. * [MAJORITY — Per Curiam,] Per Curiam, delivered by Spencer, J. The inquest is regular. Counsel, if present, ought to answer whether he believes there is a defence. The time at which a trial shall come on, is not the privilege of a defendant, but is adopted from a regard to the seniority of issues. Infinite delay would take place in cases where no dispute exists, if the counsel were to be mute when required to state whether there be a defence. It appears, however, that the defendant has been discharged under an insolvent act, and by accident has not been able to produce his discharge to his attorney. But though the court will not decide in this way, whether paroi evidence might or might not be given of its loss and contents, yet they will regard the peculiar situation of parties. In this case the defendant lives remote, and was from that circumstance, and infirmity, prevented from attending to these suits at an earlier period. The moral obligation, under which the defendant is supposed to labour of paying his debts, is not to operate with the court, unless a new liability has been incurred. From the misconception of counsel, the remote distance of the defendant, his infirmities, and his having a méritorious defence, the court grant the application upon payment of costs.