Thorp v. Fowler
New York Supreme Court
Motion to set aside an inquest taken in this cause, at the Ontario circuit, in 1818, with the execution. The cause was regularly noticed for trial at that circuit, hy serving the notice on the defendant’s attorney, who resided at Buffalo.
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Motion to set aside an inquest taken in this cause, at the Ontario circuit, in 1818, with the execution. The cause was regularly noticed for trial at that circuit, hy serving the notice on the defendant’s attorney, who resided at Buffalo. He sent an .affidavit to counsel at Canandaigua to put off the trial; and hearing nothing more of the cause till last March, when a testatum fi. fa. was levied on the defendant’s property both he and the defendant supposed that the suit was abandoned. There was an affidavit of merits; the defence lying in set off alone. The judgment was perfected Sept. 5th,…
1Opinion of the Court
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.
*447As 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…
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