Ogdensburgh Bank v. Tift , 1 Hill & Den. 222 ( 1841 )

By the Court, Cowen, J.

It is supposed by the counsel for the plaintiffs, that since the nisi prius record has been dispensed with by 2 R. S. 331, 2d ed., § 5, 6, which substitutes a circuit roll, the ne recipiatur for omitting to file the latter is no longer applicable. But all the statute does is to alter the form. The reason for filing the roll on the first day is not changed. Whether the practice in question may be affected by the present statute dispensing with both roll and postea, (Sess. Laws, 1840, 334, § 21,) it is not necessary to say.

The particular time, however, at which the pleadings, in whatever form, áre to be furnished for use at the circuit, has long ceased to be a matter of much moment. Each party obtains a copy of them in the course of the cause before, the circuit comes, and these are a sufficient guide to an understanding of the issue. This court, therefore, without denying the right to a ne recipiatur, (Sage v. Robbins, 8 Cowen, 110,) yet where an excuse was presented by the plaintiff, such as would have warranted the circuit judge in ordering a vacatur, refused to allow the defendant any farther advantage than he derived from putting off the cause at the circuit. (Thompson ads. Jackson, ex dem. Thompson, 1 Wendell, 76.) There, a motion for judgment as in case of nonsuit,' was denied; and Sutherland, J., intimated that in future they would compel defendants, in like cases, to pay the costs of such motions. No doubt, in nearly all cases, every substantial object is answered, by,handing a copy of the pleadings to the clerk when the cause is called" on for trial. The excuse now offered might have been sufficient to warrant the circuit judge in vacating the rule; but non constat that it was presented to him, or even mentioned to the defendant’s counsel at the circuit; and it may, therefore, be too severe to charge the defendant with costs. Let them abide the event.

Motion denied.