Thorp v. Fowler

5 Cow. 446

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

Opinion

Curia.

The plaintiff moves to amend his execution, which is granted ; though the motion was clearly not necessary as to the name of the attorney. An execution may issue in the name of another attorney without any formal substitution. (Dunlap, 82.) The first execution will support the second without a sci. fa. The testatum clause may be amended, on payment of costs.

As to the motion to set aside this inquest, there has been a delay of more than seven years since it was regularly taken on notice to the defendant and his attorney. They were both put fully on inquiry; and the case is one of gross negligence. A stronger one can hardly be conceived. In the case, of an irregular notice of trial, where it was received by the attorney; and he omitted to move to set aside an inquest taken under it, till after the term next succeeding the circuit, he was holden concluded; though he supposed that no inquest would be taken ; and therefore omitted to inquire. (10 John. 486. Dunl. 675.) True, this is not a mere case of irregularity; but the principle is much the same. The defendant, if we are to believe his affidavit of merits, has had the strongest motives for inquiry for more than seven years. He has manifested a most stupid and wilful disregard of his rights.

Motion to set aside inquest, denied with costs.

Motion to amend, granted.