Schenck v. Woolsey

3 Cai. Cas. 100, 1 Cole. & Cai. Cas. 453

• Court: New York Supreme Court
• Decided: May 15, 1805
• Status: Published

Opinion

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 parol evidence might, or might riot 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 labor, 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 meritorious defence, the court grant the application upon payment of costs.