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Bander agt, Bander.

of any instalment, the whole amount of the note became due, there was no severance as to time, with respect to the debts becoming payable, and as by the first default the whole became one debt, interest became payable from that time.

In this case, the interest is not by the terms of the note made payable on the whole principal sum annually. If the words payable "in ten annual instalments" had been omitted and the words “ten years,” or words expressing any other period of time had been substituted, there would have been no ground for insisting that the interest on the whole principal sum of the note was payable annually. In that case the interest would not have been payable until the principal fell due. If the parties had intended that the interest on the whole of the principal debt should be paid annually, they ought to have expressed such intention by the use of appropriate words. If the parties had inserted after the word “use” the words “on the whole principal sum, to be paid annually,” such intention would have been clearly manifested. I think that the words “ with use," which convey the same meaning as “with interest” refer to the words“ payable in ten annual instalments,” the last antecedent; and that the true interpretation of the note is, that interest was to be payable on the several instalments as they respectively became due, and not annually on the whole principal sum remaining unpaid. If the words “ with use” referred to the principal sum, a different construction could not be given to the note, as they are not followed by appropriate words declaring that the interest should be paid annually; or by words from which the intention of the parties, that the interest should be so paid, could be clearly inferred. The principle that the interest on a promissory note, payable with interest, is not payable until the principal becomes due, where the note is silent as to the time when the interest is to be paid, must control the construction of the note in this case. The note in question contains no words declaring when the interest shall be paid, and as there is no rule of law which requires interest to be paid annually where the parties have omitted to declare when it shall be paid; I must decide that the interest on the note is not

Esmond agt. Van Benschoten.

payable annually on the whole principal sum; but only on the several instalments as they respectively fall due. If this construction is not in conformity with the actual agreement of the parties which was made and intended to be carried into effect when the note was given, the remedy of the plaintiff is by an application to the equitable jurisdiction of the Supreme Court to reform the note, so as to make it correspond with the agreement which was actually made in relation to the interest (15 Wend. 82).

Judgment must be entered in favor of the plaintiff for the amount remaining unpaid of the instalments of the note which have already become due, with interest on the same up to this day.

SUPREME COURT.

ESMOND agt. VAN BENSCHOTEN. By noticing a cause for trial a party waives the right of moving subsequently

to strike out redundant matter from his adversary's pleading, under $ 160 of the Code.

Saratoga Special Term, June 1850. WILLARD, Justice.-A motion to strike out irrelevant or redundant matter, from a pleading, under § 160 of the Code, answers in place of an exception for impertinence under the former chancery practice. Although the distinction between law and equity has been abolished, still it will rarely happen, except in those causes of action which were formerly of equitable cognizance, that redundant or impertinent matter will be inserted. The objection for insufficiency will generally be taken by demurrer; for redundancy, a demurrer will not in general afford an appropriate remedy, and resort must be had to a motion.

It is urged that the defendant having noticed the cause for trial after receiving the reply, has waived his right to move to strike out a part of the pleading. The 43d rule requires the motion to be made before demurring or answering the pleading,

Evertson agt. Thomas.

and within twenty days from the service of the pleading. This motion was made within the twenty days but not until after both parties had noticed the cause for trial. By noticing the cause for trial, each party admits that his adversary's pleading is sufficient to raise an issue either of law or fact. He waives the right of moving subsequently to strike out redundant matter.

But aside from this and other formal objections, I think the motion should be denied on the merits. It was competent for the parties to agree by parol upon a time and place for the delivery of the writings and completing the contract. This is not contrary to any thing set up in the original contract. The original contract was silent on that subject. In such case I understand that it is competent for the parties to agree by parol on a place of performance (Franchet vs. Leash, 5 Cow. 506). The motion must be denied with five dollars costs.

SUPREME COURT.

Evertson agt. THOMAS.

The facts require to be shown to entitle a creditor to an order for publication,

in place of personal service, against a non resident defendant, should be

stated positively and not on information and belief. An order resting on such insufficient proof will be set aside ou motion.

Albany Special Term, August 1850. Motion to set aside an order for publication against a non resident defendant, made by a justice of this court at chambers, under § 135, sub. 3, of the Code, on the ground that the affidavit on which it was made was defective in not proving positively that the defendant had property in this state. That part of the affidavit in question was as follows: “That the said John Thomas has property within the state of New York as this deponent has been informed and believes, that he the said John Thomas is, as this deponent has been informed and believes, interested and has an interest in real estate in the county of Albany and in other counties in said state of New York.”

Evertson agt. Thomas.

J. K. Porter, for Defendant
H. C. Van Vorst, for Plaintiff.

PARKER, Justice.—The affidavit is defective in not showing that the defendant has property within the state of New York. It is not enough to state this on information and belief. That is no proof of the fact. A person may give such testimony who has no personal knowledge on the subject. Mere hearsay and belief founded on it are not evidence. In ex parte Haynes (18 Wend. 611), an attachment had been issued on an affidavit in which the witnesses stated, that they were informed and believed that the debtor was a non resident, but the Supreme Court held the affidavit insufficient and set aside the attachment. (See also Smith vs. Luce, 14 Wend. 637; Ex parte Robinson, 21 Wend. 672; Kingsland vs. Cowman, 5 Hill, 611. In re Bliss, 7 Hill, 187; Thatcher vs. Purcell, 6 Wheaton, 119; Williamson vs. Doe, 7 Black. f R. 12; In re Faulkner, 4 Hill, 598; Brisbane vs. Peabody, 3 How. Pr. R. 109).

It will appear by these cases, how careful the courts have been, to see that the statute is strictly complied with, in proceedings which subject property to seizure and sale, without a personal service of process on the owner. The duty to protect against injustice is certainly none the less obligatory under the Code, which authorizes the recovery of judgment in so many cases on a mere publication of notice, substituted in place of personal service.

The practitioner will find it necessary to be exceedingly careful, that the affidavits on which he proceeds are in conformity to the requirements of the statute, if he will secure a valid judgment.

The motion must be granted.

6 How. 47-FOLLOWED, 34 Superior 476.

People ex rel. Cahoon and Kelsey, agt. Dodge.

SUPREME COURT.

PEOPLE ex rel. CAHOON & KELSEY, agt. EDWIN DODGE, County

Judge of the County of St. Lawrence.

Where a cause which had been taken up by appeal from a Justices' Court to the

County Court before the Code, was tried after the Code by the county judge, without a jury, by consent of the parties; who made his decision therein, but was accidentally prevented from filing it until after the expiration of twenty days; it was held that he had power to do so after that period; and that, as filing the decision (or depositing it with the clerk) after it was completed, was a mere ministerial act; a mandamus would issue to compel him

to do so. The statute prescribing the time for making and filing a decision on a trial of an issue of fact by the court is directory.

St. Lawrence Special Term, Feb. 1850. C. G. Myers moved for an alternative mandamus to compel the county judge to file his decision in the case of Cahoon & Kelsey v. Northam. It appeared by the moving affidavits that the cause came to the County Court by appeal from a justice's judgment, and by consent of parties, was tried by the judge of that court without a jury. The appeal was brought in 1847. The affidavit also stated, upon information and belief, that the judge had decided

the case.

Myers said that he understood Judge Dodge had made his decision in writing, but was accidentally prevented from filing it until twenty days after the term of the court at which the cause was tried, and had doubts as to his power to file it after that period.

B. PERKINS submitted that the county judge had no jurisdiction of the matter, or power to make and file his decision after the twenty days had expired (Code, 267). That even if a justice of the Supreme Court could do so, the County Court was now one of special and limited jurisdiction, and that the practice prescribed by the statute must be followed to give and retain jurisdiction. He also submitted that a mandamus would not lie to compel a judge to act in such cases.

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