Smith v. Storm

1 Wend. 37 | N.Y. Sup. Ct. | 1828

By the Court,

Savage, C. J.

The capias is defective in various particulars; but the defendant having filed special bail, cannot avail himself of such defects. (5 Cowen, 15, and 6 Cowen, 267.) The more important question is, wheth-1 er, in analogy to the practice of setting aside judgments en - terec^ on bonds and warrants of attorney given by a defendant in custody of a sheriff, in cases where an attorney does not attend and subscribe his name to the execution of the papers* this'judgment ought not to be set aside. In England such judgments are not permitted to stand, (2 Archbold’s Pr. 6, 13; 2 Taunton, 49, 360; and 7 Taunton, 701, 703 ;) and the practice of the K. B. has. been recognized by this court. (1 Caines, 511. Yet the court are not disposed to extend the principle of those decisions to cases, other than the signing of bonds and warrants. They find the rule established in the cases referred to,- and will not disturb it, though they perceive no good reason for its adoption, as the presence of an attorney, on lhe part of the defendant, generally is more a matter of form than substance; and as this case does not technically come within the scope of any decided cases, and it is conclusively shewn, on the part of the plaintiff, that the arrangement made by the defendant was voluntary, and that there was no duress in fact, the court will not set aside the judgment.

Motion denied, with costs;