Case v. Belknap

5 Cow. 422

• Court: New York Supreme Court
• Decided: May 15, 1826
• Status: Published

Opinion

Per Curiam.

The noticing of the cause for trial in Or-laid there. In the cases cited, it does not appear that they ange, is, at least, prima facie evidence, that the venue was had been noticed for trial.

Ross then read an affidavit to show that the defendant wag insolvent; but not that he had been discharged under the insolvent act; and cited 1 John. 141, 143.

Curia.

Had the defendant been discharged under the insolvent act, after suit brought, we should allow you to discontinue without costs. But we cannot try the fact of insolvency on this motion by mere affidavit. Besides, you do not seek to discontinue.

Ross then read an affidavit showing that, on coming to the circuit, the plaintiff was surprised by a defect of testimony, which he could not supply during the circuit, and cited 1 John. Gas. 30. „

Curia.

For this reason, we excuse you from stipulatmg; but not from costs. (Jackson v. Haight, 1 Cain. 93.)

Rule accordingly.