Gould v. Spencer

1 Cole. & Cai. Cas. 373 | N.Y. Sup. Ct. | 1804

Concurrence Opinion

Livingston, J.

I concur in the decision of the court on the question in this case. But I do not say, if two persona be attorneys on the writ, one may go on with the proceedings in his name singly. Were one to die, then the right to carry on the suit would survive. On the points now .before us, I consider the appointment of Mr. Woodworth ■ to the place of Attorney-General, as a species of civil ■death. Therefore, on the present occasion, I agree with ■the opinions of my brethren. The defendants can take nothing by their motion.

Motion refused.

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Lead Opinion

Per Guriam.

If the proceedings were not correct by being in the name of one attorney only, yet the defendants show no excuse for not applying at an earlier day of this term. This is fatal to their motion. Besides, it is sufficient if one of the attorneys appearing on the writ, continue to endorse and sign the proceedings. It must be presumed the defendants *were not misled, but knew they were the parties meant by the- original suit. As to the second objection, there is no force in it. The settled practice is to allow of notice of inquiry being given at any time after default, and it is enough if the interlocutory judgment be entered at any day before execution of the writ of inquiry.