Van Schaick v. Trotter

Curia. The inquest was irregular; and must be set aside with costs. Where there is an issue as to one de*-fendant, and a default as to another, the damages should be assessed against both defendants by a jury at the circuit, on a venire tam quam. The note was against all the defendants ; they were all sued; and the plaintiff could not [601] carry down the issue for trial as to both, till he had ob- . , tained judgment by default against Dunn. (17 John. 270.) The cause would then have been in a state for trying the issue as to one, and assessing the damages against both. The course taken here might, and probably would, result in a different amount of damages against different defendants, on the same joint contract. We deny the motion to set aside the default, and any of the subsequent proceedings, except the inquest. The plaintiff proceeded in good faith ; having every reason to suppose that an appearance was endorsed upon the pro» cess. If this had been done, and the clerk had inadvertently omitted to enter it, we, of course, should have allowed it tobe done nunc pro tunc. (1 Caines, 512.) It is also much a matter of course to allow common bail to be filed, where it is omitted by the plaintiff through mistake or inadvertence. (2 Cowen, 43.) Here the plaintiff was misled ; and that too, in some degree, by the act of the defendants themselves. They promised the sheriff to endorse their appearance ; but omitted to do so. The plaintiff may now enter their appearance, or file common bail nunc pro tunc, without costs. This saves the proceedings in their present situation, except as to the inquest. The issue and default both stand, upon which the plaintiff can go regularly down to the next circuit, and try his issue, joined with Trotter, and assess damages against Dunn simultaneously. Rule accordingly.