Pettibone v. Stevens. that the defendants could not demur to a part of the count, and plead to the residue. He cited The People v. Brush, (6 Wend. 454;) Adams v. Willoughby, (6 Johns. 65;) Rickert v. Snyder, (5 Wend. 104;) Hicok v. Coates, (2 id. 419;) Jackson v. McClaskey, (id. 541 ;) Underwood v. Campbell, (13 id. 78.) E. Pearson, for the defendants, cited 1 Saund. Rep. 108; Brown v. Stebbins, (4 Hill, 154;) Douglass v. Satterlee, (11 Johns. 16, 22;) 1 Chit. Pl. 664, 586, 643. By the Court, BRONSON, J. In covenant, and in debt on bond assigning breaches of the condition, the defendant may plead to each of the breaches, or he may plead to some and demur to others. But we are not referred to any authority for applying the same rule in the action of assumpsit, and I think there is a difference in principle between the two cases. In debt or covenant, the plea of non est factum admits the breaches, and the plaintiff is only obliged to prove the making of the deed. But in assumpsit, the plea of non assumpsit puts in issue the breach or breaches as well as the contract, and the plaintiff must prove both before he can recover. As there is no necessity for pleading specially to the breaches, and as the right to do so seems not to be established by the precedents, I think such pleading should not be allowed. It can lead to nothing but useless expense and delay. If no breach is well assigned the defendant may demur to the whole declaration or count. If one breach is well assigned and others are not, the defendant may, under the plea of non assumpsit, object on the trial against receiving evidence or assessing damages on the defective breaches; and if he is overruled, he may have redress upon a case or bill of exceptions. Here the money was payable by instalments, and if the last instalment was not due when the suit was commenced, the defendant may take the objection on the trial. Motion granted. Jackson v. Ives. JACKSON vs. Ives. Notwithstanding the referees appointed in a cause have lost all power over it by granting improper adjournments or otherwise, the plaintiff cannot proceed to trial at the circuit without first obtaining leave from the court. THIS cause having been referred on the plaintiff's motion in March, 1840, was brought to a hearing before the referees on the 10th of April following, when a part of the testimony was taken. On the plaintiff's application, the referees then adjourned to the third Friday in June. Only two of the referees appeared at the adjourned day, and they granted a further adjournment to the 14th of July. The two referees again adjourned to the 14th of August, and when that day arrived they adjourned sine die. The defendant insisted that the referees had lost all jurisdiction over the cause, and he attended the adjourned meetings for the mere purpose of seeing what was done. No further proceedings took place for three years, within which time one of the referees died. The plaintiff noticed the cause for trial at the last September circuit in New-York, and took a verdict, the defendant refusing to appear. P. Cagger, for the defendant, moved to set aside the verdict for irregularity. He said the plaintiff could not try at the circuit so long as the order for a reference remained. S. J. Cowen, for the plaintiff. The referees had lost all jurisdiction over the cause. (Jackson v. Ives, 22 Wend. 637; Ex parte Rutter, 3 Hill, 464;) and the plaintiff was therefore regular in treating the reference as a nullity. By the Court, BRONSON, J. The adjournment on the plaintiff's application to a day beyond the next May term of the court was irregular, and the referees had no longer any power over the cause. Nothing but the consent of the defendant, or the order of the court, could authorize them to proceed further with Jackson v. Walker. the hearing. But I think the plaintiff could not disregard the order for a reference, and proceed to trial at the circuit, without first obtaining the leave of the court. On the death, sickness, removal or other disqualification of one or more of the referees, the usual course is to apply for the appointment of other persons in their places; and if the court had been moved in this case, we might either have renewed the powers of the referees, or appointed others to take their places. It would not have been a matter of course to revoke the order for a reference, and direct a trial at the circuit. And should such an order be deemed expedient, it would then be proper to consider on what terms it should be made. The plaintiff has subjected the defendant to the trouble and expense of attending and producing evidence before the referees, and then by his own irregularity in procuring an adjournment beyond the next term has put an end to their powers. He would probably be required to pay the costs of the reference. Other things might also be taken into the account. The plaintiff has kept the cause hanging before the referees for more than three years, and in the meantime the defendant's witnesses may have died, or removed from the state. But it is enough to say, that the plaintiff could not go on at the circuit without first obtaining a revocation of the order for a reference. Motion granted. JACKSON vs. Walker. A writ of error lies upon a judgment of this court reversing that of an inferior tribunal and awarding a venire de novo. WALKER recovered a judgment against Jackson in the superior court of the city of New-York, and on a writ of error this court reversed the judgment and awarded a venire de novo in the court below. Jackson v. Walker. S. Sherwood, in behalf of Walker, moved that the plaintiff in error perfect a judgment of reversal, or that Walker be allowed to do it, to the end that he might bring a writ of error to the court for the correction of errors. N. B. Blunt, contra, insisted that the cause should be retried in the superior court. He read an affidavit that Jackson expected on a second trial to present other questions than the one on which the judgment was reversed; and insisted that, as a venire de novo was awarded, there was no final judgment on which a writ of error would lie. The very point was decided in Houston v. Moore, (3 Wheat. 433.) By the Court, BRONSON, J. The case of Houston v. Moore decides, that when a venire de novo is awarded on the reversal of a judgment, there is no such final judgment as will warrant a writ of error under the 25th section of the United States judiciary act of 1789. But I learn from the chancellor that this question was recently before the court of errors, where we had reversed the judgment of an inferior court and awarded a venire de novo; and it was held that a writ of error would lie upon our judgment before the cause had been re-tried.(a) If a writ of error will lie, it is matter of right; and it is of no consequence that Jackson thinks he can make a better case than the one on which he rested before, and on which he obtained the reversal. Motion granted. (a) The case referred to is Van Santvoord v. St. John, (ante p. 157.) Burr v. Kernan. MERRILL vs. WILLIAMS. A plea to a declaration on a justice's judgment need not be accompanied by an affidavit. DECLARATION upon the judgment of a justice of the peace. The defendant served a plea of nil debet without an affidavit of merits. The plaintiff's attorney disregarded the plea, and entered judgment, which S. J. Cowen, for the defendant, now moved to set aside for irregularity. R. W. Peckham, for the plaintiff, said the case came within the spirit of the act of 1840, and the rule adopted under it. (Sess. L. of 1840, p. 333, § 17; 22 Wend. 644.) By the Court, BRONSON J. The statute only goes to actions upon records and written contracts. This is neither. Motion granted. BURR VS. KERNAN. The statute abolishing the rule to plead (Sess. L. 1840, p. 333, § 16) applies only to personal actions, and in cases of scire facias; but does not affect the practice in actions of ejectment. E. F. Smith, for the defendant, moved to set aside the default which the plaintiff had entered, for irregularity. It was an action of ejectment, and the plaintiff entered the rule to plead on which the default was founded, without filing any affidavit of the service of the declaration. (2 R. S. 305, 16.) H. V. D. Van Epps, contra, said no rule to plead was necessary. (Sess. L. of 1840, p. 333, § 14.) |