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Dodge agt. Averill, impleaded with Shepard and Williams.


DODGE agt. AVERILL, impleaded with SHEPARD & WILLIAMS.

In actions for a tort commenced before the Code, a defendant on whom process

was not served, and who has not appeared, can not be a witness for a co

defendant, whom he is liable to indemnify in case of recovery. He is nominally a party and interested (1 398–9).

St. Lawrence Special Term, Dec. 1849. This was a motion on the part of the defendant Averill for a commission to examine his codefendant Shepard, now living in Wisconsin. The action was trover, to recover a quantity of timber, and was commenced in November 1847, and had been referred and considerable testimony taken before the referee, and an adjournment granted for the purpose of making this motion. No process had been served upon Shepard, nor had he appeared in the cause; but he was liable to the defendant Averill, who was his vendee, for the value of the property if the plaintiff should succeed. The papers made out a strong case of necessity for the testimony of Shepard, and an excuse for not making the motion before.

It was clear from the papers, that if the plaintiff has a cause of action against Averill, he has also against Shepard. But it was contended that any defendant on whom process has not been served may be examined for a codefendant in an action for a tort.

That where there is no service upon him and the suit proceeds without him, it is not a suit against him, and there being no privity of contract nor any contribution between them, the defendant not served, was always a competent witness. But that if this were otherwise, the Code has provided for the examination of a codefendant as a witness in ordinary cases (Code, 9 397). On the other hand it was denied that a codefendant in an action for a tort can be a witness; and it was also insisted that there is no power under the Code to issue a commission to examine a coplaintiff or codefendant; those provisions only extending to witnesses and the opposing party. And again, that if this were not so, the delay in this case was fatal to the motion.

Dodge agt. Averill, impleaded with Shepard and Williams.

C. J. Myers, for the Motion.
A. B. JAMES, Contra.

HAND, Justice.-In England, one against whom process in an action for a tort is issued, although not served, is still considered a party to the suit, and as such it seems can not be examined as a witness (1 Phil. Evi., 74; Bull. N.P., 286; 2 Stark. Evi., 766; and see 2 Campb., 334 n; Gilbert Evi., 232; Bohun v. Taylor, 6 Cow., 313). Our courts have decided he may be a witness if not liable over to his codefendant upon whom service has been made, as contributor or warrantor; confining his incompetency to a fixed legal interest (Stockham v. Jones, 10 J. R., 21; Van Orden vs. Striker, 9 Wend, 286). And I am aware that Mr. Justice Spencer in Rose vs. Oliver, intimates that the party not taken, is not a party to the suit (2 J. R., 368); and the reporter has repeated this in the margin to Bohun vs. Taylor (6 Cow., 313). But in Rose v. Oliver, the declaration charged two defendants with committing the trespass together with a third named in the writ, but not taken; and that was held good after verdict; and that is all that was there decided. (And see note to 19 Vin., 476). Bleecker and Sudam, good lawyers, contended strenuously against even this position. And cited Hobart, 199, a, where it is said, “if four commit a trespass (which in its nature is joint and several), yet if the plaintiff will bring his action against one only, and declare that he with the other three did the trespass, his action shall abate.” This would have been good after verdict in this state, before the code. (And see Tory's case Styles R., 15, and Barker vs. Martin, id., 20.

SPENCER, Justice, gave the opinion in Rose v. Oliver, and thought simul cum and simul cum quodam J. S., &c., the same in effect, and then adds, " if then the two modes of declaring are substantially alike, Henly v. Broad (1 Leon., 41), is decisive that after verdict the defcet is cured.” Trespass, it is said, is in its nature joint and several, as already remarked (Brickhead vs. Archbishop of York, Hob., 199, a), and the plaintiff can treat cotrespassers as several (1 Saund. R., 291, n; Bayley v. Raby, Str., 420; Govett v. Radnidge, 3 East., 62; Mitchell v. Tarbutt,

Dodge agt. Averill, impleaded with Shepard and Williams,


5 T. R., 649). And the rule is the same in an action on the
case (Mitchell v. Tarbutt, supra). But if by his own showing
another was a party to the trespass, as declaring that those sued
simul cum, J. S. committed the trespass, the old rule was that
the action would abate (Hob., 199, a; Billings v. Crosby, Comb.,
260; Colt v. Bp. Cov. & Lick., Hob., 165). Though it seems
where the writ was against two and one only taken, the plaintiff
might declare against the one taken simul cum (Holt in Billings
v. Crosby, 19 Vin., 477). Nor would the action abate where
the plaintiff declared that the defendant together with another
person to the plaintiff unknown, committed the trespass (6 Bac.,
598; Henly v. Broad, supra). I am aware that these distinctions
have been doubted (1 Saund., 291, n. 1 Chitt. Pl., 99). And I
do not stop now to examine the rule upon this subject, but I no-
tice them to show the effect and importance formerly attached to
the joinder of a cotrespasser (And see Edwards v. Carter, 1 Str.,
473; Goldsmith v. Levy, 4 Taunt., 299; Lee's Dic., 984). But
whatever may be the rule as to declaring there is no doubt but
that the joinder prevented the defendant not served, from being
a witness for his codefendant. In Lill. Pr. Reg., it is said
“where a joint action of trespass doth lie against divers persons,
of whom some can be arrested and others can not, there the
action may be brought against those that are arrested and do
appear by their particular names, and against them that are not
arrested with a simul cum, A. B., &c., viz., to charge them that
are arrested, but not the parties in the simul cum, any farther
than only to take off their evidence at the trial.

Note. The parties in the simul cum must be all of them named in the writ, and proved to be trespassers, otherwise their evidence will not be taken off; but they may be sworn to give evidence for the defendant” (1 V., 34). And this is repeated in Viner (19 V., 477). This was admitted by the court in Jones v. Stockham to be the old rule; and Mr. Justice Spencer, at the circuit on the trial of that cause followed the rule as laid down in Buller's Nisi Prius and Lilly's Register, and rejected a codefendant upon that ground, notwithstanding what he had said six years before in Rose v. Oliver. The court, as we have seen, granted a

Clerks? Fees.

new trial on the ground that he was not interested, for it did not appear that he was liable to contribute, or as warrantor. But they did not say he was not a party, nor was the case put upon that ground. They only overrule the old rule so far as to say, that being named in the writ shall not exclude, if we have no interest. It is not necessary to see what the rule would be if the suit was commenced under the Code by $$ 135, 136, 274; for these do not apply to old suits.

Interest alone does not now exclude a witness (Code, $ 398). But if he be a party and also interested, he still remains incompetent ($ 399). Shepard, as we have seen, is a party to the action; and although usually there is no contribution among tortfeasors, yet here, as he is liable over to Averill, he comes within 399. He could not have been a witness within Stockham v. Jones (and see Curtis v. Monteith, 1 Hill, 356). I do not think $397 removes the objection. If that applies to what were actions at law at all, it is qualified by $399; certainly where the party called is liable to make good, what the codefendant calling him, may lose by the suit (Lord v. Brown, 5 Denio, 349; Stone v. Hooker, 9 Cow., 154). Motion denied.

5 How. 11-NOT IN CONFLICT, 47 Superior 525.


What fees a county clerk is entitled to under the Code, as clerk of the Supreme


At the General Term of the Supreme Court, held at Albany, in

September, 1850. PRESENT—Justices WATSON, PARKER, and WRIGHT, Mr. Stevens, in behalf of the county clerk of Albany county, submitted in writing certain questions, asking a construction of the Code as to allowances for clerks' fees.

The Court, after taking time for examination, delivered the following opinion:

Clerks' Fees.

By the Court: Parker, Justice.-In addition to the questions submitted in behalf of the clerk, there have been several applications made to us by members of the bar, growing out of differences of opinion between themselves and the clerk. It is desirable that the rights and duties of clerks under the Code should be established beyond controversy.

Sec. 312 of the Code provides as follows: “The clerk shall receive on every trial, from the party bringing it on, one dollar;

On entering a judgment upon filing a transcript, six cents;

On entering judgment, fifty cents, except in courts where the clerks are salaried officers, and in such courts, one dollar.

He shall receive no other fee for any services whatever in a civil action, except for copies of papers at the rate of five cents for every hundred words."

It is no longer the policy of the law to compensate clerks by paying them for each separate service according to its value. It was supposed that by paying them for attending trials and entering judgments, a much higher sum than would remunerate them for those services, it would be a sufficient compensation for all their other services in civil actions.

The duties of clerks are in nowise lessened or changed. They must still attend at the general and special terms and circuits. They are responsible for the keeping of the minutes, the entering of orders, and the filing, arranging and preserving of papers, and for the proper discharge of all the other duties belonging heretofore to clerks of those courts; and they are amenable to the courts, and liable to parties for a neglect of such duties.

The clerk is not entitled to charge, in any case whatever, for entering in the rough minutes, or in the books, any rule or order. Where either party desires a copy of an order, or of any other paper, the clerk may charge for the same at the rate of five cents for every hundred words. There can be no additional charge for the certificate, or for the signature to the certificate. This provision extends to every entry made, and to every paper filed.

The clerk is allowed one dollar for every trial, to be paid by the party bringing it on. This extends to trials of issues of law,

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