
    Rapelye & Purdy vs. Prince & Prince.
    If a person covenant for the results or consequences of a suit between others, the decree or judgment in such suit will be evidence against him, though he was not a party.
    Accordingly, where one assigned a mortgage, covenanting that it should produce and yield a given sum over and above the costs of foreclosing, and that if it did not, he would pay the deficiency: held, that the assignee having subsequently foreclosed the mortgage in chancery and sold under the decree, without making the assignor a party, these proceedings were evidence against the latter, in an action on the covenant, to show the amount of the deficiency.
    
      Held further, that the assignor was estopped by the decree from questioning the amount found due upon the mortgage, no fraud being alleged.
    The case of Douglass v. Howland, (24 Wend. 35,) commented on and explained.
    If a witness who has been duly subpoenaed, either neglect to attend, or leave court after the trial has commenced, it is in tire discretion of the judge whether he will suspend the trial until the witness can be brought in.
    The decision of a judge upon a matter resting in his discretion cannot be reviewed on bill of exceptions.
    Where a party excepts to a decision of this character, the judge should strike the exception from the bill before affixing his seal to it. Per Bronson, J.
    
      The only mode of procuring the attendance of a plaintiff for the purpose of examining him pursuant to the usury law of 1837, (Sess. L. of 37, p. 487, § 2,) is by serving him with a subpoena in due season, and paying or tendering him the fees of a witness. He is not bound to regard a mere notice to attend.
    After judgment has been perfected on a verdict rendered at the circuit, it is too late to move for a new trial on the mere ground of surprise.
    
    In general, a motion for a new trial on the ground of surprise will be heard only at the special term; and this, though a case or bill of exceptions have been made.
    If such motion be made where there is also a case or bill of exceptions, the court may, in its discretion, suspend a decision until the enumerated motion shall have been argued. Per Bronson, J.
    Where the intention is to move on the ground of newly discovered evidence, the ground of surprise may also be added, and the whole will then be heard to gether at the general term. Per Bronson, X
    Covenant, tried at the New-York circuit, in April, 1842, before Kent, C. Judge. The action was on a sealed agreement by the defendants, dated November 4th, 1837. The agreement recited that the defendant, John D. Prince, had that day assigned to the plaintiffs a mortgage bearing date December 1st, 1834, executed by Hunn C. Beach to George Hártense, together with the bond accompanying the same; and that the plaintiffs had purchased the bond and mortgage at the request of both of the defendants. The defendants then covenanted with the plaintiffs, among other things, that the bond and mortgage 11 shall, with reasonable care and diligence, produce and yield to the said ” plaintiffs “ the said principal sum of two thousand five hundred dollars with interest thereon, at the rate of seven per centum per annum from the first day of June last past, over and above the costs and expenses of suing upon or foreclosing the said indenture of mortgage; and that in the event of there happening to be any deficiency, we will pay the amount thereof ” to the plaintiffs. The declaration stated at large a foreclosure of the mortgage in chancery, and that there was a deficiency, which the defendants had not paid. The defendants pleaded non est factum, and gave notice, in several forms, of the defence of usury. To this was subjoined an affidavit by the defendant, John D. Prince, of the truth of the notice.
    On the trial, the plaintiffs proved and read in evidence the covenant declared on. They also gave in evidence the proceedings in chancery, from which it appeared that the mortgage of Beach had been foreclosed in that court, and the property sold under the final decree for the sum of $1500, and purchased by the defendant John D. Prince. It further appeared from, those proceedings that the plaintiffs had, prior to the decree, paid $130,96 to redeem the mortgaged premises from a corporation sale to satisfy a street assessment. This sum was added to the mortgage debt, and the decree directed a sale to pay the whole. After deducting costs and the price the land sold for, there was a deficiency in the necessary amount to pay the plaintiffs, which, with interest, amounted to $1673,43.
    When the plaintiffs’ proofs were through, the defendants called on the plaintiffs to testify, and the plaintiffs not answering or appearing, the defendants read a notice requiring the plaintiffs to attend the circuit at which the cause was to be tried, to be examined as witnesses on the part of the defendants ; to which notice an affidavit was annexed, stating that a copy of the notice had been served on each of the plaintiffs. The defendants thereupon moved that the plaintiffs be nonsuited for not appearing, or that an attachment should be issued against them. The judge denied the motion, and the defendants excepted. The defendants then moved the court to give leave to subpoena the plaintiffs to appear and testify ; but the judge refused, and the defendants excepted.
    The defendants requested the judge to charge that, under the testimony, the plaintiffs were only entitled to a verdict for nominal damages, on the ground that there was no legal proof of any deficiency—-that the proceedings in chancery were not binding upon the defendants, as they were not parties to the suit. The judge refused so to charge, and the defendants excepted. They then requested the judge to charge that the plaintiffs were not entitled to recover the sum which was al= 
      leged to have been paid on account of assessments upon the mortgaged premises, amounting; with interest, to $138,96.
    The judge refused, and the defendants excepted; The judge charged that the plaintiffs were entitled to a Verdict for the whole deficiency, and the defendants excepted; The' jury-found a verdict accordingly for $1673,43.-
    In addition to the motion for a new trial on the bill tif exceptions, the defendants presented affidavits stating that they were surprised Oh the trial by the non-attendance of the plaintiffs as witnesses pursuant to the notice given for that purpose, and asked a new trial on the ground of surprise. In answer to this, affidavit's were presented stating, among other things, that judgment was perfected on the verdict in August last: A question was also made whether a motion for a new trial oit the ground of surprise could be heard at the general term.-
    ¡S. Stevens for the defendants.
    
      T. Fessenden, for the plaintiffs.
   By the Court,

Bronson, J.

The defendants insist that tifié proceedings in chancery for the foreclosure of the mortgage mentioned in the covenant are not evidence against them, because they were not parties to that suit; and for this they rely bn the case of Douglassv. Howland, (24 Wend. 35.) There, One Bingham agrefed to account with the plaintiff, and to pay any balance which inight be found due from him 3 and the defendaht covenanted with the plaintiff that Bingham would perform the agreement. This accounting never took place; but an account was taken ih chaiic’ery in a siiit to which the defendant was not a party; We held the proceedings ih chancery were not evidence, or at the least; not conclusive evidence against the defendant. But it was admitted in that case that if Bingham had voluntarily accounted and struck a balance, the defendant would have been bound by it, although he had taken no part in the transaction. Such ati accounting would have been within the defendant’s undertaking, but he had not covenanted for the results of a suit in chancery. The distinction taken and sustained by authority in that case fully justifies the ruling of the judge on this trial. When one covenants for the results or consequences of a suit between other parties, the decree or judgment in such suit is evidence against him, although he was not a party. Now here the covenant plainly contemplates a foreclosure of the mortgage, and the defendants undertake to make up any deficiency there might bp on such foreclosure. They covenant that the assigned se.cprity shall produce and yield the principal sum of $2500 with interest, over and above .all cos.ts and expenses of suing upon or foreclosing the mortgage, apd that they will pay any deficiency. A proceeding in chancery is the usual mode of foreclosing mortgages, and the .defendants have, in effect, agreed that they will be bound by such foreclospre. We need not go beyond Douglass v. Howland and the cases there cited, to prove that the judge was right in holding the defendants concluded by the proceedings in chancery, which ascertained and settled the a deficiency” or balance due the plaintiffs after applying the money realized by the sale of the mortgaged premises.

This view also answers the objection that the defendants could not be charged with the amount the plaintiffs had been obliged to pay to redeem the paortgag.ed premises from the sale for a street assessment. There can b,e no doubt that this sum was properly taken into the account in chancery; but if it were otherwise, the defendants are concluded by the decree which allowed that charge. No fraud is suggested, and we cannot overhale the decree.

If a witness who had been duly subpoenaed should .either neglect to attend, or leave court after the trial had commenced, it would rest in the discretion of the judge whether he would suspend the trial until the witness could be brought in on attachment or otherwise ; and if the decision of the judge upon such a matter .could be reviewed in any form, it clearly could not be done upon a bill of exceptions. This'is enough to an - swer the exception which grew out of the absence of the plaintiffs when they were called as witnesses.

But as the question has been made and discussed at the bar as to the proper mode of bringing in the plaintiff as a witness for the defendant under our usury statute, and as the same question may often arise, it seems proper to dispose of it. When the defendant pleads or gives notice of the defence of usury, and verifies the truth of his plea or notice by affidavit, he may “ call and examine the plaintiff as a witness, in the same manner as other witnesses may be called and examined.” (Stat. of 1837, f. 487,§ 2.) It seems almost too plain for discussion that the defendant must take the same steps with the plaintiff, as he would with any other person whose attendance as a witness he wished to secure, which are, to serve him with a subpoena in due season, and pay or tender his legal fees. The defendant may call the plaintiff. How call him 1 The statute says, as a witness. And then to make the matter quite clear, it adds, “ in the same manner as other witnesses may be called.” Here the defendants had done nothing beyond giving the plaintiffs notice to attend. That they were not bound to regard.

When the defendants had found out their mistake, they wished the judge to suspend the trial until they could seek and serve a subpoena on the plaintiffs. That motion was clearly addressed to the discretion of the judge ; and his decision upon it, whether right or wrong, does not make a point upon which an exception can properly be taken. When parties except upon such matters, the judge should strike the exception out of the bill before he affixes his seial. But whether in or out, the decision of the judge upon such a question cannot be reviewed in this form.

A motion is also made for a new trial on the ground of surprise. The defendants were surprised when they discovered that they had made a mistake in not serving the plaintiffs with a subpoena. That would hardly be a sufficient ground for granting a new trial under any circumstances. But it is a full answer to this motion that judgment has been perfected on the verdict. A case or bill of exceptions may sometimes be argued after judgment, (Stat. of 1832, p. 188, § 1;) but the statute does not extend to this motion.

It must not be understood that motions of this kind will hereafter be heard at the general term. They do not belong to the calendar, but should be made at the special term. And this is so, although a case or bill of exceptions may have been made. There cannot often be any very intimate connection between the questions of law which arose on the trial, and an application for a new trial on the ground of surprise. By confining such motions to the special terms, expense and delay will be avoided. When the motion is made where there is also a case or bill of exceptions, we can, if it shall be deemed expedient, suspend a decision on the motion until the calendar cause is argued. This question of practice was not noticed in Tilden v. Gardiner, (25 Wendell, 663.) The 47th rule makes this a non-enumerated motion. The word “ surprise ” was not in the rule until 1837, and was inserted at that time for the very purpose of sending such motions to the special term. Where there is a motion for a new trial on the ground of newly discovered evidence, which must always be accompanied by a case, the ground of surprise, if it exist, may also be added, and the whole will then be heard together. This will satisfy ' the word u exclusively” in the rule. But in all other cases, a motion on the ground of surprise belongs to the special term, and must, like other motions of the same character, be made without delay.

New trial denied. 
      
      
         See Bosworth v. Perhamus, (20 Wend. 611.)
     