Open main menu

Page:United States Reports, Volume 2.djvu/386

This page needs to be proofread.

glo Casts ruled and adjudgpd in the 1797. of the Alia: Capris: is a fuflicient reafou to rejeét the plaintilPa laws motion. _ The rules difcl1arged.* Hsncocx Adminiltrator on-jb: Hnateas. ‘

 YHE defendant had given a Promilfory Note to the plain-

tiff for a fpecilic fum, on which, in dil`l`erent modes, there had been feveral partial payments. Before any fettlcment of accounts, however, the defendant entered into an agreement, that judgment {hould be entered againlt him by an Attorney, •‘ for the amount that maybe due". In pdrfuance of this agree- ment judgment was corafelled, generallp, on the r2t.h of Illnrrb 1796; and on the I4th of May followtng, without any previ- ous trial, writ of enquiry, or notice to the defendant, a Fi.Fa. was ilfuecl and levied, for the full amount of the Promilfory Note. Tlmruu, thereupon, obtained a rule to fhew caufe why the defendant fhould not be allowed a fet·o&` for the amount of his payments, and that, in the meantime, proceedings on the exe- cution be (layed. The rule was afterwards oppofed by Lee, the Attorney- General, who contended, that the regular relief was by appli- cation to the equity {ide of the Court, for an injunflion; which ` would

  • The eaufe (which was Indebitnrus Arrumprir) tame on fortrial

before (nusa and Peraas, _‘}’u.m`ee.r, at April term r7g8, when, after the opening was commenced by Rowlc, for the Plaintill,—it was dill covered, that the plea of *‘ non as.rumpis" was entered in rborr, and that the Statute of Limitations had, alfo, been pleaded; though the Jury were only fwom to try Ibe issue, and not tb: issues, joined he- tween the parties. Crusn, justice. The whole proceeding is to my mind unintelligi- ble antl irregular. There is only one of the parties to the coutraft, and only one ofthe defendants named in the wr.t, before the Court; ahd no procefs ofoutlawry has been profecuted againll the others: how {hall we proceed to give judgment? Again : to what is the plea of mm orsumpsit robe applied ? Is it, that the appearing defendant did not alfume himfelf, or that he did nnt jointly allume with the other defendants? `And how comes the plea of the Statute ot Limitations to he added, without the leave of the Court? But the counful will have time to relleft upon thelb difficulties. For, the Jury are not fworn, even in this irregular {late of the record, to try the ill`ues be- twee the parties; an l, therelore, the Court, un its own authority, will direct the ]uror lall qualided to be withdrawn. A juror was, accordingly, withdrawn, and the action continued ‘till the next term.