Willson agt. Henderson. scinded as to him, and the rescission is sought in each case only as to and against the single defendant with whom it was made. The particular matter in litigation, as to each, is peculiar to his own case, and no one subject or cause of action is common or of joint interest to them all. (Brinkerhoff agt. Brown, 6 Johns. Ch. Rep. 156.) And the numerous cases there cited seem to me conclusive of the principle of this case. Judgment must go for defendant, with liberty to plaintiffs to amend, so as to separate him from all defendants except Goodman & Co., who, as trustees, may properly be united in a suit against each defendant by the cestui que trust, at the option of the plaintiff, (2 Paige, 278,) on the usual terms. SUPREME COURT. WILLIAM H. WILLSON agt. JOSEPH C. HENDERSON. The court will never allow a party to be prejudiced by its own delay. The delay of the court in announcing its decision on a motion, will not be allowed to operate to the prejudice of the party in whose favor the decision is made. The court having determined the question, must give effect to the decision as of the time when the motion was made. Where a motion to change the venue was made by the defendant, and during the time the question was held under advisement, the plaintiff took an inquest on a regular call of the calendar, there being no stay of proceedings; held, that the plaintiff was irregular. The plaintiff took the risk of having his proceedings set aside if the motion was decided against him. Albany Special Term, March, 1857. MOTION to set aside judgment for irregularity. The plaintiff resides in Canada; the defendant in the city of Albany. The suit was commenced in November, 1856, and the venue was laid in St. Lawrence. Before the time for answering ex Willson agt. Henderson. pired, the defendant demanded that the trial be had in the proper county. Subsequently, the defendant put in his answer, to which the plaintiff served a reply. The plaintiff then noticed the cause for trial at the St. Lawrence circuit, to be held on the 17th of February. The defendant served papers and gave notice of a motion to be made on the 29th of January, at a special term, to be held at Sandy Hill, to change the place of trial to the county of Albany. The motion was made on the day mentioned in the notice, but the decision was reserved. On the 24th of February the defendant's at torney received from Mr. Justice ROSEKRANS the papers upon the motion, with an order changing the place of trial from St. Lawrence to Albany. The order bears date the 29th of January, 1857. A copy of this order was sent by mail to the plaintiff's attorneys on the same day. On the 19th of February, the cause having been reached on the circuit calendar, was moved for trial, and no one appearing for the defendant, the plaintiff took an inquest; and on the 26th of February, judgment was perfected. The defendant moved to set aside the inquest and all subsequent proceedings for irregularity. S. G. COURTNEY, for plaintiff. JOHN H. REYNOLDS, for defendant. HARRIS, Justice. There being no stay of proceedings in the case, the plaintiff was at liberty to proceed with the trial, and to take his inquest, but he did so at the risk of having his proceedings set aside, if the motion to change the place of trial should be granted. It is a familiar rule that the court will never allow a party to be prejudiced by its own delay. Hence the practice of allowing a judgment to be entered nunc pro tunc, in case of the death of a party while the cause was sub judice. Had the motion to change the place of trial been denied, the inquest would have been regular. But the motion having been granted, the order took effect as of the time it was made. The delay of the court in announcing its decision Kelsey and Davis agt. Covert. will not be allowed to operate to the prejudice of the party in whose favor the decision is made. It is now adjudged that on the 29th of January, when the motion was made, the defendant was entitled to have the venue in the action changed to Albany. The defendant had done all that was required of him. It was the fault of the court that the venue was not then changed. The decision was delayed because the court was not advised what should be done. This delay must not be charged to the account of the defendant. The court having determined the question, must give effect to the decision as of the time when the defendant became entitled to it. The venue was, therefore, in effect, changed from the time the motion was made. (See Crawford agt. Wilson, 4 Barb. 524, and cases there cited.) It follows that the proceedings at the St. Lawrence circuit, after the motion to change the venue was made, were irregular. This motion must, therefore, be granted, with costs. SUPREME COURT. WILLIAM H. KELSEY and GEORGE J. DAVIS agt. JOHN M. COVERT, survivor, &c. The notice in the summons, in an action upon an undertaking of bail given to procure the discharge of a party from arrest in a civil action, must be that prescribed by the 2d subd. of § 129 of the Code. Such an undertaking is not for the payment of money; and the 1st subd. of § 129 is only applicable to an action to enforce a contract for the payment of money. The proceedings to obtain judgment in an action on such an undertaking, on default of the defendant to answer, must be according to the 2d subd. of § 246 of the Code; and the court may order the damages to be assessed by a jury. Serving notice of a motion in an action, on the plaintiff's attorney, signed by an attorney, as "att'y. for the def't." is a sufficient notice of appearance by the defendant. Like notice of the assessment of damages by a jury, on a writ of inquiry, is neces Kelsey and Davis agt. Covert. sary, as is required on an assessment by the clerk, where the defendant has appeared in the action. Steuben Special Term, Nov. 1857. MOTION by defendant to set aside the assessment of damages and subsequent proceedings, for irregularity. J. KERSHNER, for defendant. T. R. STRONG, Justice. The notice in the summons in this action is that prescribed by the 2d subd. of § 129 of the Code, that if the defendant shall fail to answer, the plaintiff will apply to the court for the relief demanded in the complaint. It is the proper notice in the case, as the undertaking of bail on which the action is founded is not for the payment of money, but is that the defendant in the action in which it was given. shall, at all times, render himself amenable to the process of the court during the pendency of that action, and to such as might be issued to enforce the judgment therein. (Code, § 187.) It is stated therein, that the bail undertake, in a specified sum, but that is to fix an amount beyond which the bail will not be liable; they do not agree to pay that sum, nor are they liable to pay it, unless the damages from their principal not rendering himself amenable to process shall equal that amount. The extent of liability is those damages. The notice in the 1st subd. of § 129, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer, is proper only when the action is to enforce a contract for the payment of money. The case is, therefore, within the 2d subd. of § 246, as to proceedings to obtain judgment on default of the defendant to answer, and the court might, as was done on the application of the plaintiff, order the damages to be assessed by a jury. The damages were thus assessed upon a writ of inquiry, but without the service of any previous notice of the execution of Kelsey and Davis agt. Covert. the writ, and for the omission to give such notice the defendant seeks to have the assessment of damages and subsequent proceedings set aside as irregular. The defendant had, before the expiration of the time to answer, served a notice of motion in the action on the plaintiff's attorney, signed by an attorney, as "att'y. for the def't, J. M. Covert," and this was a sufficient notice of appearance. The plaintiff's attorney had also recognized and treated the defendant's attorney as such in the action. I am satisfied that notice to the defendant's attorney of the execution of the writ of inquiry was necessary. Notice, in this case, might not have been of any particular benefit to the defendant, but no distinction can be made between cases governed by the same provision-one general rule must obtain in respect to all actions for assault and battery, slander, &c., as well as actions like the present. It is obviously just that notice should be given in most cases, that the defendant may have an opportunity to be heard as to the damages, and I cannot think it is contemplated by any part of the Code that notice may be dispensed with. The defendant has a right to mitigate the damages, in cases appear on the assessment and where matter in mitigation exists, in like manner as before the Code. There does not appear to be any express provision in the Code for such notice, but there is nothing inconsistent with it, and I think that under § 469, providing that the rules and practice in force at the adoption of the Code where consistent with it, should continue in force, subject to the power of the respective courts to relax, modify or alter the same, rule 21 of the rules of 1847, as to this point, is in force, and applicable to the case. By that rule, the same notice, in cases where notice is necessary, that is where the defendant has appeared in the action, of executing the writ of inquiry, shall be given as is required on assessment by the clerk. The object of this provision was to make the practice uniform as to notice in cases of assessments by the clerk and assessments by jury, and it will accord with the spirit of the rule to preserve that uniformity by following us to assessments by jury the as |