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Green agt. Telfair.

duce them to agree upon a common result, may be repeatedly and earnestly urged upon them, should be left to feel that they act with entire freedom in their deliberations. That, should they continue to disagree, they are not to be exposed to unreasonable inconvenience, nor to receive the animadversion of the court.

In view of these relations, between the court and the jury, it is very evident that my esteemed associate, actuated by a laudable desire to avoid the necessity of another trial, and in his haste to close the circuit, has inadvertently stepped quite beyond the line of duty-when he told the jury that exceptions had been taken by both parties, and that a verdict of some sort was necessary, before a final decision of these questions could be had—it might well have been inferred by the jury, that it was a matter of no great importance what their verdict should be. Perhaps this is the most natural interpretation to be put upon the language of the judge upon this subject. And again, when he told the jury, that for five years he had discharged but one jury, on account of their being unable to agree, it was a significant hint, that though they were then at the close of the circuit, and of the week, yet, however desirable or important it might be for them to return home, they should be kept together until they were able to render a verdict. This intimation was still more distinctly expressed when the judge informed the jury of his intention to return home, leaving them in charge of an officer, and to come back on Monday to receive their verdict. It is not surprising that, though after several hours deliberation, the jury had declared that it was impossible for them to agree, such motives as those to which I have alluded should have the effect to produce a verdict in half an hour. But a verdict thus obtained ought not, I think, to be conclusive upon the parties. It is not what the law contemplates—the free and independent judgment of twelve indifferent men, acting without constraint, and with sole regard to the obligation they had taken upon themselves to render a true verdict according to the evi. dence.

I think sound policy, and a faithful maintenance of the right

Condert agt. Lias.

of trial by jury, requires that this verdict should not be allowed to stand. The motion to vacate it must, therefore, be granted. The costs of the motion are to abide the event of the suit.

NEW-YORK COMMON PLEAS.

CONDERT, respondent, agt. Lias, appellant.

On moving to dismiss an appeal from a justice's judgment, because the return

has not been filed, the moving party has only to show the proper service upon the opposite party of the notice, of ten days, required by the rule. That is, he need not show affirmatively that the return has not been filed, as required by § 160 of the Code, (within thirty days.)

General Term, May, 1855.
INGRAHAM and Daly, Judges.

This was an appeal from a judgment of the district court of the city of New-York for the second district.

The respondent moved to dismiss the appeal, and read a notice of motion to the effect that the appellant was required to procure the return to be filed on or before the fourth Wednesday of May, 1855, or the respondent would, on that day, move the court, at the general term, for an order dismissing the appeal.

I. T. WILLIAMS, for the appellant,

Objected, that the notice did not comply with the rule, which provides that the notice shall require the return to be filed within ten days thereafter.

INGRAHA, .irst Judge. When was the notice served ?

CONDERT, in person,

Condert agt. Lias.

On the 16th day of May, twelve days ago.

INGRAHAM. That is a compliance with the rule.

WILLIAMS then objected, that there was no evidence that the time prescribed in § 160 of the Code had expired.

INGRAHAM. That must be shown in opposition to the motion. The rule is express on that subject: it only requires the notice; and it has been the uniform practice of this court to require nothing more. The motion must be granted, unless the appellant procure the return to be made so as to bring it to hearing at the next term, and pay the costs of this motion.

WILLIAMS. If this has been the practice of this court, I submit, with great deference, that it is not what the bar have a right to understand the practice to be from the reading of the rule. The section of the Code referred to in this rule, gives the justice thirty days to make and file his return. The rule then provides, that if the justice do not file his return within this period, the respondent may move to dismiss the appeal. A party moving should show himself in a position to move: he asks affirmative relief, and should show affirmatively his right to such relief. If the court could, in such a case, indulge in any presumption, it would be in favor of an officer, especially a judicial officer. The court will presume that an officer has done his duty until the contrary appears.

It is not pretended here that there is any evidence whatever before the court that the thirty days have expired. If this be a case where the court will require us to show that we are not in fault, in order that we may not be mulcted in costs, then there should be some good reason for making this case an exception to a rule as ancient and as universal as any known rule of law. There is not a circumstance within the knowledge of this court, that shows, or tends to show, that the notice of appeal in this action was served more than twelve days ago. And if the court have a rule which compels them to grant this

Reilay & Wood agt. Thomas & Parker, Jr.

motion, as already intimated by his honor, the first judge, that rule requires immediate revision. It is, however, submitted, with great confidence, that such is not the fair construction of the rule; but, on the contrary, the rule itself requires that it should be shown that the time prescribed by the Code had expired.

Daly, J. (After consulting with the first judge.) We don't see how we can change the ruling in this case. Let the order be entered as indicated by the first judge.

SUPREME COURT.

John G. REILAY and HIRAM Wood agt. ANSEL THOMAS and

WILLIAM PARKER, JR.

To a mere answer, which sets up no counter-claim, but merely defensive,

such as alleged payment of a note before its transfer,-no reply or demurrer is necessary; and none is admissible. (See 9 How. Pr. Rep. 143, to the same point.)

New-York Special Term, October, 1854.
Complaint. '

The complaint of the above-named plaintiffs against the above-named defendants in this action, respectfully states and shows to this court.

1st. That the plaintiffs now are, and, for some time past, have been, co-partners in trade, doing business under the name and style of “ Reilay & Wood."

20. That on or about the 10th day of January, 1854, at the city of New York, the above-named defendant Ansel Thomas, at the city of New York, duly made his promissory note, in writing, of that date, whereby, for value received, he promised to pay, four months after the date thereof, to the order of the

Reilay & Wood agt. Thomas & Parker, Jr.

defendant William Parker, jr., at the Greenwich Bank, tne sum of $127 20-100.

3d. That before the maturity of the said note, the said defendant William Parker, jr., duly endorsed the same to the plaintiffs ; that when the said note became due and payable, it was cluly presented for payment to the defendant Ansel Thomas, at the said Greenwich Bank, and payment thereof was duly demanded, but the same was not paid, nor any part thereof; and that the same was thereupon duly protested for non-payment, and that due notice thereof was given to the defendant William Parker, jr.

4th. And the plaintiffs further say, that they are now the lawful owners and holders of said note, and that the defendants are, and each of them is, justly indebted to the plaintiffs thereon in the sum of $127 20-100, and the interest thereon from the 13th day of May, 1854, together with seventy-five cents fees and expenses of protesting said note.

Wherefore the plaintiffs demand judgment against the said defendants respectively, for the said principal sum and interest, and fees of protest, besides the costs of this action.

The separate answer of Ansel Thomas, one of the defendants in this action, states, and shows to this court.

1st. This defendant admits that he made and executed the promissory note set forth in said complaint, and delivered the same to the said William Parker, jr.

2d. This defendant further says, that he paid and fully satisfied the said promissory note to the said Parker; that such payment and satisfaction of the said promissory note was made to the said Parker, while he, said Parker, was, as defendant is informed and believes, the owner and holder thereof—the same having been made in the month of February, 1854.

3d. The defendant is ignorant, and has not knowledge sufficient to form a belief, as to whether the said Parker endorsed the said promissory note to the said plaintiffs, as stated in the complaint.

4th. This defendant believes, and therefore insists and charges, that said plaintiffs are not bona fide holders of the said

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