Blanchard v. Richly
New York Supreme Court
IN error, on certiorari, from a justice’s court. Richly sued Blanchard in the court below, in an action of assumpsit, tor work. The defendant below pleaded a former trial, for the same cause of action, before the same justice. The jus_ 7 •> J tice, in his return, stated, that knowing the facts of the former trial, and that he had nonsuited the plaintiff, he declared the nonsuit to be no bar.
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IN error, on certiorari, from a justice’s court. Richly sued Blanchard in the court below, in an action of assumpsit, tor work. The defendant below pleaded a former trial, for the same cause of action, before the same justice. The jus_ 7 •> J tice, in his return, stated, that knowing the facts of the former trial, and that he had nonsuited the plaintiff, he declared the nonsuit to be no bar. The defendant then pleaded payment, and demanded a venire, which was issued, and delivered to the defendant. The cause was adjourned, and on the day of adjournment the parties appeared; but no jury came,…
1Per curiam
The application of the defendant was to nonsuit the plaintiff on account of the venire not being returned. This motion was rightly overruled. The default would not entitle the defendant to have the plaintiff nonsuited. Another venire might have been issued, wjthin the case of Day and Wilber; (2 Caines, 137.) but this the defendant did not - ask, and his proceeding to trial would be considered a waiver of a trial by jury.
With respect to the other objection, it is true, the justice could not make any facts within his own knowledge the basis of any judicial decision. But on the defendant’s…
2Cases cited1 opinion
- Day v. WilberNew York Supreme Court · 1804
3Cited by1 opinion
- Woodcock v. GladdingsAppellate Division of the Supreme Court of the State of New York · 1902