ARGUED AND DETERMINED IN THE SUPREME COURT, AT SPECIAL TERM, WITH THE POINTS OF PKACTICE DECIDED, FROM (October tern, 1844, to September term, 1845. BY NATHAN HOWARD, JR., OOUNSELLOR-AT-LATV, AND DEPUTY CLEBK OF THE SUPREME COUBT. VOL. I. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS No. 144 NASSAU STREET. ALBANY: 475 BROADWAY. 1859. vl Entered, according to Act of Congress, in the year eighteen hundred and fifty-nine, BY NATHAN HOWARD, Jit, In the Clerk's Office of the District Court of the Southern District of New- York. CASES REPORTED. PAGE Adams agt. Elliott 220 Albert! agt. Peck 330 Allen agt. Collins , 251 Alston agt. Mechanics' Mutual Insurance Company 82 Anderson agt. Osborn 79 Anderson agt. Vandenburgh 212 Anthony agt. Dunbar 117 Archer agt. Douglass 93 Arnold agt. Thomas 246 Baker agt. Long Island Railroad Company 214 Baker agt. Mount 238 Baldwin agt. Tillson. 173 Ballou agt. Vandemark .' 237 Bangs agt. Strong 181 Barker agt. Gates 77 Barnard agt. Darling 223 Barnard agt. Woodworth I o I Baxter agt. Seamans 51 Belknap agt. Ives 218 Bell agt. Bell 71 Bell agt. Robinson 118 Billings agt.. Cook G7 Birdsall agt. Taylor 89 Bliss agt. Treadway 245 Bodle agt. Chenango County Mut. Ins. Co 20 Borst agt. Bovee 63 Bosher agt. Harris 206 Boughton agt. Lockwood 56 Bradt agt. Mount 33 Bromaghim agt. Gorse 53 Bross agt. Nicholson 158 Brown agt. Briggs 152 Brown agt. Torrance 23 Brown agt. Wesson 141 Bull agt. Babbitt 184 Buruhnm agt. Smith 46 Burton agt. Temple 8 Butts agt. Campbell 88 IV NEW-YORK PRACTICE REPORTS. Cases Reported. PAGE Cagger agt Gardner 142 Campbell agt. McCormick 251 Campbell agt Spencer 97, 199 Carter agt Goodrich 239 Center agt Gosling 210 Chamberlain agt Gurney '. 238 Chappell agt Matteson 248 CJaiborne agt. Boker 39 < la rk agt Fraser . 98 Clark agt Jewett 224 (.'lark agt Rawson 17 Clarke agt Gray 128 Clute agt Parker 229 Cobb agt Robinson 235 Coffing agt. Tripp 115 Cole agt. Wright 132 Colvin agt Alvord 99 Commercial Bank of Oawego agt Burckle 226 Cooper agt North 59 Corning agt. Tripp 14 Cowenhoven agt Onderdonk 60 Cowton agt Anderson 145 Cragin agt Travis 157 Crane agt Crofoot 191 Davis agt. Weyburn 153 Davis agt. Wiggins 159 Day ngt. Beach 236 Dayton agt. Vincent 6 De Dewandelaer agt. Hager 63 Deeth agt. Purdy 45 Delehanty agt Hoffman 9 Dodge agt Passage 158 Doty agt. Brown 245 Dresser agt. Brooks 169 Dresser ngt Smith 172 Danckel agt Farley 180 Dunham agt Van Arnuni 225 Dunn ngt. Mason 41 Durant agt Cook 45 Elder agt Bogardus ; 117 Feakins agt. Engel 5 Felt agt Hyde 64 Finch agt Graves 198 Fish agt Lyon 234 Fowler agt Hay 40 Freeland agt. Marvin 131 Furlong agt Munn 43 Gale agt. Hoysradt 19, 72, 197 ( inrl-iitt agt. Bradner 122 Gifford agt Babbott 64 Gilbert agt Chapman Gillespie agt Stanleas 101 Goff agt. Anderson 237 Goodenow agt Butler - - NEW-YORK PRACTICE REPORTS. V Cases Reported. PAGE Goodenow agt Livingston 232 Green agt. Russell 8 Gregory agt. Travis 92 Gurney agt. Parks 140 liaight agt. Rogers 155 Hale agt. Heyser 220 Hall agt. Gordon .' 99 Hall agt. Miller 184 Handy agt. Empie 46 Harker agt. McBride 41, 108 Harris agt. Ensign 103 Harris agt. Warren 139 Hart agt. McGarry 74 Hay agt. Fowler 127 Hayes agt. Jones 1 47 Heath agt. Wright 250 Hemingway agt. Spaulding 70 Henry agt Henry 167 Herring agt. Hallenbeck 89 How agt. Gilbert 107 Howe agt. Hasbrouck 68 Howell agt. Kinney 105 Hugenin agt. Kennedy 120 Hull agt. Halsted 174 Hull agt. Joesbury 192 Hunter agt. Schuyler 96 Hurd agt. Merritt 38, 39 Ingraham agt. Wheeler 65 In the Matter of Faulkner 207 In the Matter of Glenn 213 In the Matter of Justices of the Superior Court 200 In the Matter of Robinson 213 In the Matter of Russell 149 In the Matter of Walsworth 61 Ives agt. Vandewater 168 Jennings agt. Holbert 66 Johnson agt. Anthony 10, 173 Johnson agt. Johnson 215 Johnston agt. Davis 239 Jones agt. Van Epps 105 Jordan agt. Posey 123 Kennedy agt. Newsom 121 Kingston Bank agt. Swift 12 Knowles agt Poillon 252 Lansing agt. Mickles 248 Lawrence agt. New- Jersey Railroad and Transportation Company 250 Learned agt. Betts 7 Lee agt. Tompkins 44 Legate agu Lagrille 15 Livingston agt. Comstock 253 Livingston agt. Hicks 224 Livingston agt. Mclntyre 253 Luyster agt. Hoag 8 Lynes agt. Xoble 26 vi NEW-YORK PRACTICE REPORTS. Cases Reported. PAGE Maher agt Conwtock 87, 175 Martin agt Odell 108 Mason agt Bidleman 62 Masters gt Bailoy 42 Mather agt. Wardell 172 Mather agL Wardwell 61 McCartney agt. Betts 73 rmott agt. Davison 194 McDowell agt Appleby 229 McKnight agt. Baker 201 Medbury agt. Butternuts and Sherbourne Turnpike Company 231 Merritt agt Seacord 95 Miller agt Ames , 65 Miller agt Huntington 218 Miller agt Miller 162 Miller agt. Palmer 54 Mills agt Chapman 102 Moftat agt. Judd 193 Morrell agt Gibson 208 Moss agt Raynor 110 Muun agt Greenwood 32 Northrop agt. Wright 146 Ogden agt Beebe 69 Olmstead agt. Jones 254 Osborn agt. Van Cort 51 Otman agt. Fish 185 Overton agt. Stanley 64 Parce agt Halbert 235 Parent agt. Kellogg 70 Parow agt. Cary 66 Payn agt Parks 94 Pease agt. Blossom 222 Pentz agt Willoughby 27 People agt Backman 221 People agt Brown 67 People agt Oakes 195 People agt. Stevens i 241 People ex reL Bank of Monroe agt. Pen-in 75 People ex rel Blacksmith agt Tracy 18G People ex reL Clark agt Judges of Essex Common Pleas 114 People ex reL Coller agt Supervisors of Dutchess 163 lYuple ex rel Cook agt Judges of Niagara Common Picas 196 People ex reL Crandall agt. Babcock 5 People ex rel. Georner agt. Crosby 243 People ex reL Griffin agt Judges of New- York Common Pleas 222 People ex rel. Jones agt. Judges of Dutchess Common Pleas Ill People ex reL Kirkham agt. Cotes 160 People ex reL Koon agt. Judges of Renssolaer Common Pleas 109 People ex reL Martin agt. Mayor, Ac., of Brooklyn 53 People ex reL Onderdonk agt Molt 247 People ex reL Smith agt. Mayor, Ac., of New-York 90 People ex reL Thomson agt Supervisors of Warren 116 Pier agt Page 40 Pike agt Power 54. 103, 1 '. I Platt agt Burckle 220 NEW-YORK PRACTICE REPORTS. VU Cases Reported. Platt agt. Littell 71 Pomeroy agt. Lowusbury 30 Popham ads. Baker 166 Post agt. Haight 171 President, &c., of Chemung Canal Bank agt. Supervisors of Chemung 162 President, &c., of Dutchess County Bank agt. Ibbotson 60 Rathburn agt. Woodworth 151 Riley agt. Van Amrange '. 43 Robbins agt. Lewis 202 Robinson agt. McClellan 90 Robinson agt. Merritt 165 Robinson agt. Sinclair 107 Rose agt. Hogeboom 66 Royce agt. Mott 60 Rusk agt. Van Benschoten 149 Rust agt. Rowe 48 Sabin agt. Ames 228 Schermerhorn agt. Jones 147 Seacord agt. Burling ;..;....<..' 175 Seamans agt. Tillson 19 Sergeants agt. Baker 9 Sherman agt. Chittenden 91 Slocum agt. "Watkins ; 42 Smith agt. Bradley 244 Smith agt. Caswell. < 133 Smith agt. Frizell . . 148 Smith agt. Hunt 241 Smith agt. Reid 23 Smith agt. Roberts 42 Smith agt. Skinner 122 Snow agt. Green 216 Snyder agt. Olmstead 194 Spencer agt. Stevens 97 Spooner agt. Frost 192 Sprague agt Mumford 68 Starbuck agt. Hall 58 Steer agt. Head 15 Stephens agt. Ely 35 Stephens agt. Thompson 136 Stillman agt. Whiting 243 Stinnard agt New- York Fire Insurance Company 1 69 Stroud agt. Harp 133 Tallmadge agt. Wallis 100 Thompson agt. Gates 77 Thompson agt. Smith 218 Tinker agt. Craft 112 Titus agt. Kent 80 Tomlinson agt. Willey 247 Travis agt. Cragin 157 Travis agt. Hadden 57 Troy City Bank agt. Grant 135 Tucker agt. Black 249 Van Elten agt. Hurst 26 Van Namee agt. Jones 55 Viii NEW-YORK PRACTICE REPORTS. Cases Reported. PACK Tan Ness agt Nichols 119 Van Patten agt Austin 65 Van Schoonhoven agt. Comstock 175 Van Schoyk agt. Jacoby 49 Van Valkenburgh agt. Van Alen 86 Yarnum agt. Wheeler 11 Wade agt. Carter 17 Wade agt. Wade 7 Wagner agt. Adams 191 Waring agt. Mclntosh 21 Warren agt. Campbell 61 Waterman agt. Jones 12 Waters agt Howard 40 Watervliet Bank agt Clark 144 Watson agt. Morton 1 66 Weed agt. Halladay 78 Welling agt. Sweet 156 Weatbrook agt. Merritt 195 Wharton agt Barry 62 Wilbur agt. Ramsay 10 Wilcoxagt. Moses 143 Wilder agt. Wheeler 114, 136 Wiles agt Hill 154 Williams agt Field 214 Willoughby agt Comstock 177 Wilmarth agt. Gatfield 62 Wolfe agt. Wynkoop 56 Wright agt. Forbes 240 Young agt. Arndt 227 Young agt Carpenter 53 PRACTICE REPORTS. SUPREME COURT. PEOPLE ex rel CRANDALL agt. BABCOCK. The admission by defendant of due service of information, does not authorize the plaintiff to enter a default for want of a plea in twenty days, where by the rules the defendant is entitled to double time (40 days) to plead. October Term, 1844, NELSON, C. J., presiding. MOTION by defendant to set aside default and subsequent proceedings. Entered by the relator in twenty days after the date of ad- mission of the due service of the information, which was served through the post-office on the defendant's attorneys. The de- fendant's counsel insisted they had forty days to plead under the rules of court that the default was irregular. The relator's counsel insisted that defendant's attorneys hav- ing signed and returned an admission of due service of the information, the default was regular in being entered in twenty days after the date of such due service. BOWNE & CRIPPEN, defendants attorney. G. P. BARKER, attorney-general, for relator. Decided, that the defendant has double time to plead by the rules, the admission of due service, being nothing more than admitting due service through the post-office, it cannot take it out of the rule. Motion granted with costs. VOL. I. 1 NEW-YORK PRACTICE REPORTS. Peaking agt EngeL FEAKINS agt ENGEL. Plaintiff may amend his declaration, changing the venue, on terms, where the motion is made before the cause is reached on the calendar. He is not bound to discontinue. October Term, 1844, NELSON, C. J. } presiding. MOTION to amend the declaration, by changing the venue from Otsego to Schoharie. The declaration being for an action on the case for injuries to the person. Plaintiff's attorney supposing by a late [*6J statute the *action was transitory, the cause of action arising in the county of Schoharie. The defendant pleaded general issue. The cause was noticed for trial at Ot- sego circuit, and before being reached on the calendar, plain- tiff's attorney discovered his mistake in the venue, and of- fered defendant's attorney costs of circuit and witnesses, to allow him to change the venue to Schoharie county. Defend- ant's attorney declined the proposition, and alleged plaintiff was bound to discontinue the suit J. D. HAMMOND, attorney for plaintiff. D. LAWYER, attorney for defendant. Decided, that motion be granted, on payment of costs of op- posing motion, and costs of the plea pleaded ; defendant to have twenty days to plead to amend declaration ; no new de- claration need be served. NEW-YORK PEACTICE REPORTS. Dayton agt. Vincent. DAYTON agt. VINCENT. It seems, that where a rule for judgment as in case of nonsuit is granted on oppo- sition, the defendant should serve a copy of the rule, and demand his costs ; otherwise the plaintiff may set aside the rule on terms. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside a rule of last August term, granting judgment as in case of nonsuit, unless plaintiff stipulate and pay costs. Plaintiff's facts: Plaintiff's attorney was ignorant of the conditions of the rule for judgment as in case of a nonsuit, and depended on defendant's attorney to serve a copy, which was never done, and no costs ever demanded ; he had always been willing to comply with the conditions of the rule ; there was a dispute about the costs of the circuit ; he told defend- ant's attorney when he served a copy of the rule, he was ready to comply with the conditions of it. Defendant's facts : The motion in August was made on the usual papers, and was op- posed by plaintiff's attorney personally, and motion granted on the spot, in presence and hearing of plaintiff's attorney, costs were taxed on regular notice to plaintiff's attorney, and he opposed the taxation and knew the amount they were taxed at after twenty days, the costs not being paid, defend- ant's attorney proceeded and entered judgment. S. B. NOBLE, plaintiff s attorney. GEO. A. SHUFELT, defendant's attorney. Decision. That judgment and all subsequent proceedings be set aside on payment of the costs defendant was entitled to by the rule of August last, and costs of opposing motion, and $10 costs of making motion to stay proceedings, and also all costs of perfecting j udgment of nonsuit. NEW-YORK PRACTICE REPORTS, Wade agt Wade. DAYTON agt VINCENT. Plaintiff must stipulate and pay the costs, where the defendant haa a rule to that effect, before he can properly notice the cause for trial October Term, 1844, NELSON, C. J., presiding. [*7] *MOTION for an order directing the clerk of the cir- cuit New- York to strike this cause from the calendar, and for a perpetual stay of proceedings on part of plaintiff. Facts on both sides the same as in the last cause, the cause having been noticed for trial by plaintiff 's attorney. GEO. A. SHUFELT, defendant's attorney. S. B. NOBLE, plaintiff's attorney. Decision. That the motion be granted unless plaintiff in twenty days pay to defendant or his attorney, the costs de- fendant is entitled to under the order of 6th August, and costs of all subsequent proceedings and also $10 costs of this motion. WADE agt. WADE. Where plaintiff's attorney omitted (by mistake) to serve a copy order staying proceedings to prepare and serve a case, until judgment had been entered and notice of taxation of costs given, held, that he might have twenty days for that purpose, on payment of costs of motion : judgment to stand as security. October jftrm, 1844, NELSON, G. J., presiding. MOTION for leave to plaintiff to prepare and serve a case in this cause, and for a stay of defendant's proceedings until the order of this court thereon. Facts : Plaintiff 's attorney procured an order from the cir- NEW-YORK PRACTICE REPORTS. 7 Learned agt. Betts. cuit judge next day after the trial for this same purpose, and informed defendant's attorney of it, but did not serve a copy of said order (by mistake) until some eight days afterwards, in the meantime defendant's attorney had perfected his judg- ment, and given notice of taxation of costs. G. W. BULKLEY, plaintiff's attorney. WM. H. TOBEY, defendants attorney. Decision. Plaintiff may have twenty days to make and serve a case, and if done, defendant's proceedings to be stayed until the further order of this court. Judgment of defendant to stand as security on payment of costs of motion. LEARNED agt. BETTS et al. Two subpoenas ($2.00) and two attorney and counsel fees ($16.00) on hearing at two different times, stricken out, where the cause had but once been noticed, and adjourned twice by consent. ' October Term, 1844, NELSON, C. J., presiding. MOTION for retaxation of defendant's costs. Plaintiff objected before the taxing officer to two subpoenas and two attorney and counsel fees, on the ground that the cause had but once been noticed before the referee ; it was adjourned by consent of both parties once, no testimony hav- ing been taken, and once by the referee with consent of botli parties, after the testimony had been entered upon. Defendants offered to prove before the taxing officer, that the subpoenas and tickets were actually made as charged in the bill and objected to by plaintiff, that plaintiff's at- torney did not question the fact, but rested *his objec- [*8] tion solely on the ground they were not taxable. First adjournment was on application of plaintiff's attorney. 8 NEW-YORK PRACTICE REPORTS. Green agt. Russell. J. A. MILLARD, plaintiff's attorney. A. K. HADLEY, defendants 1 attorney. Decision. That two subpoenas $2, and two attorney and counsel fees on hearing at two different times $16, be stricken out of said bill. BURTON agt. TEMPLE. A defendant cannot be held to bail in an action of tort, where it appears that he is a householder and freeholder residing in the county. October Term, 1844, NELSON, C. J., presiding. MOTION to vacate an order of supreme court commissioner, holding defendant to bail and for his discharge from arrest. Facts : The ac etiam clause in the capias was for trespass, assault and battery, and on an affidavit of plaintiff stating the facts, an order was indorsed on capias holding defendant to bail ; the defendant is a householder and a freeholder residing in the city of Albany where the order to hold to bail was granted. CAGGER & STEVENS, defendant's attorneys. JOHN I. BURTON, attorney in propria persona. Decision. Motion granted with costs. GREEN agt. RUSSELL. If the defendant elects that he will abide by a ca.se, instead of a bill of excep- tions, on the settlement by the circuit judge, he cannot be permitted after- wards to turn it into a bill of exceptions, without leave of the plaintiff. NEW-YORK PRACTICE REPORTS. 8 Green agt. Russell. October Term, 1844, NELSON, C. J., presiding. MOTION to change the case settled in this cause into a bill of exceptions for the purpose of carrying the cause to the court of errors. Defendant's facts : Cause was once tried, and theevidenc e offered by defendant was ruled by the circuit judge as in- sufficient, a case was made, and new trial ordered by this court ; on the second trial the same evidence was offered, and again decided insufficient by the circuit judge, upon which a stipulation was obtained to make a case or bill of exceptions, and defendant again moved for a new trial, which was denied by this court, on a case made and settled by the circuit judge, after having been denied by the circuit judge, which case was drawn as a bill of exceptions, except the concluding part, and was intended to have been turned into a bill of exceptions by defendant, if plaintiff would consent, which he declined doing ; it was urged on the settlement of the case by defendant's attorneys, that the circuit judge should settle it as a bill of exceptions, which the judge declined doing without the con- sent of plaintiff's attorney, who was not present. Plain- tiff's facts: Plaintiff states that the circuit judge on the trial gave defendant liberty to give such facts of the evidence offered *as went to contradict or ex- [*9] plain the acts of affirmance proved by plaintiff, and any other evidence which would go to prove or explain such proof of plaintiff. Plaintiff's attorney refused to sign a stipu- lation that defendant might at any time thereafter turn the case into a bill of exceptions, but gave the defendant liberty to take a bill of exceptions or a case, after the same had been settled by the circuit judge as a case, if he would do it then, but defendant's attorney refused, and said he would abide by the case. BENNETT & PRITCHARD, defendants' attorneys. J. RUGER, plaintiff's attorney. Decision. Motion denied with costs. NEW-YORK PRACTICE REPORTS. Delehanty agt Hoffman. DELEHANTY agt. HOFFMAN. Where the defendant obtains an order setting aside an inquest on payment of coats, Ac., but mistaking the practice in supposing the plaintiff must make a personal demand for the costs, and the plaintiff goes on and enters judg- ment, the defendant, to avail himself of his rule, must bring the amount of judgment into court, pay all costs, and take short notice of trial. October Term, 1844, NELSON, C. J., presiding DEFENDANT moved at June special term last, and took a rule by default setting aside the inquest taken in this cause, with costs. August special term, plaintiff made a motion to open the default, which was granted, and the original motion of de- fendant to set aside the inquest was argued and granted upon payment of costs of the regular proceedings ; copy rule and notice was served on defendant's attorney previous to the 2d September, during his absence. Defendant's attorney mis- taking the practice, supposed plaintiff's attorneys must make a personal demand for the costs under said rule, and did not discover the mistake until the 27th September; he imme- diately wrote to plaintiff's attorneys, stating in what manner he was mistaken in the practice, and offered to pay said costs and go to trial, which plaintiff's attorneys declined doing. Defendant swears to merits. E. HOFFMAN, defendant 's attorney. HAMMOND & DOOLITTLE, plaintiff's attorneys. Decision. Ordered that the motion for leave for defendant to avail himself of the rule entered in August last, be denied, unless defendant within ten days bring into court the amount of the judgment and interest, and pay to plaintiff's attorneys the cost of inquest and all subsequent proceedings, and take seven days' notice of trial, and pay costs of opposing motion. NEW-YORK PRACTICE REPORTS. l(J Wilbur agt. Ramsey. SERGEANTS agt. BAKER. Plaintiff not bound to notice cause for trial after stipulation, where defendant omitted to jlead, so that a return to the certiorari, bringing the cause from the common pleas, could be filed in season for the circuit. October Term, 1844, NELSON, C. J., presiding. ^DEFENDANT moves for judgment as in case of non- [*10] suit, upon the usual affidavit after a stipulation by plaintiff. Plaintiff states that the defendant brought a writ of cer- tiorari and removed this cause from the common pleas, where it was originally commenced ; that before and at the time the circuit was held for which he had stipulated to try said cause, he ascertained that no return had been made by the clerk of the county to said writ, in consequence of a plea not having been filed by defendant, which was the reason plaintiff did not notice and try said cause, in pursuance of said stipulation. S. CRIPPEN, defendants attorney. ELIJAH BROWN, plaintiff's attorney. Motion denied, without costs. WILBUR agt. EAMSEY. The ordinary order indorsed on a writ of error, staying proceedings on the judgment and exception, &c., for the purpose of removing a cause by writ of error, is not sufficient. A proper " allowance" of the writ should be indorsed. October Term, 1844, NELSON, C. /., presiding. MOTION by defendant in error to quash or supersede the writ of error in this cause. The ground set forth (among others) upon which the mo- tion was decided, was; that there was no allowance of the 10 NEW-YORK PRACTICE REPORTS. ^ Johnson agt Anthony. writ, the indorsement on the writ was as follows : " Let all proceedings on the execution issued on the judgment within mentioned, and all proceedings upon such judgment be stayed until judgment on the within writ of error," the word "aZ- loiced" not being on the writ. BOCKES & NASH, defendant's attorneys. JOHN C. HULBERT, plalnUff's attorney. Decision. Ordered that motion be granted, unless within twenty days plaintiff in error procure the proper allowance to be indorsed on the writ of error filed with the clerk of the county, and pay cests of motion. JOHNSON agt. ANTHONY. Execution stayed, and defendant allowed to plead his discharge in bankruptcy, on payment of all costs subsequent to verdict and of opposing motion ; where verdict and judgment rendered after his discharge, upon a note given pre- viously. October Term, 1844, NELSON, C. J., presiding. MOTION to vacate execution and to discharge the judgment Defendant's facts : That he presented his petition for a dis- charge under the bankrupt act before the trial and verdict in this cause, and obtained his discharge after verdict, (this suit being on a promissory note,) was declared a bankrupt July 8, 1842, got his discharge November 17, 1842, judgment was docketed February 8, 1843, execution issued and tested 20th June, 1844, levy made on property assigned by defendant under the bankrupt act, and sale advertised. Plaintiff's facts : An execution was issued in this cause on or about 5th [*11] * April, 1843. Defendant knew of the execution, and did not make any motion to set aside or stay it ; and that defendant's discharge was fraudulently obtained, and plaintiff intends to contest it by selling the real estate ad- vertised on the execution. NEW-YORK PRACTICE REPORTS. 11 Varnum agt. Wheeler. C. F. INGALLS, defendants attorney. J. A. MILLARD, plaintiff's attorney. Decision. Ordered that the execution be stayed, and that defendant be allowed to plead his discharge in bankruptcy on paying all costs subsequent to verdict, and costs of opposing motion. Judgment herein to stand as security. VARNUM agt. WHEELER. Default for not rejoining to plaintiffs replications, opened on terms, and allowing amended special pleas served, to stand, where there was a misunderstanding in relation to a stipulation between the attorneys. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside the default of defendant Wheeler, for not rejoining to plaintiff's replications, and directing the plain- tiff's attorney to receive the special pleas, filed and served, or allowing defendant's attorney to amend his special pleas. Defendant's facts: That a stipulation was signed by plaintiff's attorney (being drawn by defendant's attorney), after the spe- cial pleas had been served, and after replications by plaintiff's attorney to said pleas ; giving the defendant's attorney a lim- ited time to rejoin to said replications, or to amend his special pleas: that defendant's attorney took the same stipulation, when the time had nearly elapsed, to plaintiff's attorney, for an extension one day longer ; that plaintiff's attorney signed it for the further time, but struck out the words "or to amend his special pleas," which was interlined in the stipulation, say- ing they were not in it when he first signed it. Defendant's attorney shows by his affidavit positively, that the words so stricken out and interlined were in the stipulation when plain- tiff's attorney first signed the same, and that the amended pleas were served in time. Plaintiffs facts : Plaintiff's attor- 11 XEW-YORK PRACTICE REPORTS. Waterman agt Jones. ney signed the stipulation the first time, after hastily looking it over, but did not see or know of any such words being in it, giving the defendant's attorney leave to amend his special pleas, otherwise he should have refused to sign it. After the time for rejoining to the replication, he entered his default, and noticed the cause for trial on the general issue. 0. F. THOMPSON, defendant' s attorney. B. F. AGAN, plaintiff 's attorney. Decision. Ordered that default be opened ; that the amended pleas served stand. The plaintiff has twenty [*12] days to reply or demur, upon "^defendant's paying costs of opposing motion, and all costs of putting in repli- cations, together with costs of default and subsequent pro- ceedings of plaintiff's to the time of service of order staying proceedings. WATERMAN & BRADLEY agt. JONES. Where judgment of nan proe. was obtained in 1818, and test. ca. sa. issued re turnable May, 1819, and nothing further done until 1844, a declaration was served, to which was annexed a copy rule setting aside defendant's judgment of ncm pros. May, 1819. The defendant was allowed an order setting aside the latter rule, and all proceedings on the part of plaintiff. October Term, 1844, NELSON, C. J., presiding. MOTION by defendant to vacate or annul the rule or order setting aside the judgment of non. pros, entered in this cause on the 15th May, 1819, and to set aside all proceedings on the part of plaintiff's subsequent to said rule. Defendant's facts : This suit was commenced by the plain- tiffs, against the defendant, about the year 1817 or 1818, and the only one ever commenced by said plaintiffs against de- fendant; that defendant's then attorney proceeded in said NEW-YORK PRACTICE REPORTS. 12 Kingston Bank agt. Swift. cause, and got a judgment of non. pros, against plaintiffs, December, 26, 1818, and issued test. ca. sa. returnable first Monday of May, 1819 ; that defendant supposed the matter was ended, and never heard anything more from it until July, 1844, he was served with a notice signed by plaintiffs' attor- ney in said cause, requiring him to appoint an attorney for himself in said suit in place of W. W. Bowen,' Esq., now dead, who was his attorney originally. After serving a notice upon plaintiffs' attorney that he had appointed another attorney, he received a declaration in said cause, to which was attached a copy rule, dated 15th May, 1819, setting aside de- fendant's judgment of non pros, and all subsequent proceed- ings with costs. Plaintiffs' facts : That plaintiffs' attorney first knew of this cause in the month of April, 1819 when plain- tiff Bradley applied to him to set aside the ca. sa. issued in said cause ; that he drew up the papers and served them, and procured the said rule of 15th May, 1819 ; that no proceed- ings were had in said cause afterwards, until the above men- tioned by defendant. D. M. CHAPIN, defendant's attorney. L. FORD, plaintiffs 1 attorney. Decision. Motion granted without costs to either party. KINGSTON BANK agt. SWIFT et al. Where plaintiffs, in a suit upon a promissory note against several defendants, took a bond from part of the defendants who claimed to be collateral sureties only, and agreed to endeavor to get pay of the other defendants, and assigned the bond and took the notes of the assignees as collateral security for the ori- ginal note in suit ; and upon the assignees' notes, plaintifls recovered judg- ment, and then transferred the bond and the original note to the assignees for their security ; held, on a motion by defendants, who gave the bond, for the 12 NEW-YORK PRACTICE REPORTS. Kingston Bank agt Swift discontinuance of the original suit, that the defendants might have leave to plead puit darien, any matters which arose after the commencement of the original suit, and plaintiff's leave to reply. October Term, 1844, NELSON, C. 7., presiding. MOTION to discontinue this suit. Defendants' facts : This suit was commenced in January, 1838, upon a promissory note, against all the defendants eight in number, as makers and indorsers, the makers and payees of said note beiug the four defendants in this motion. They pleaded in said suit general issue and notice of set-off, f*13] and gave notice to plaintiffs that they *must prove on the trial the consideration for which the note was ob- tained ; that they stood as collateral sureties to the bank, the other defendants being about to pay the same. Said bank agreed in effect to settle and discontinue said suit against them, on their giving a bond for the amount of the note, interest and costs ; it being understood that said suit was not to be discon- tinued on the records, or the said note given up, for it might injure the claim of the bank. That three of the said defend- ants (the other residing out of the state) waived their legal defences (as the bank claimed to be bona fide holders without notice), and executed said bond on aforesaid conditions, and no other. Defendants considered said suit settled. The bank agreed to endeavor to get pay of the other defendants ; and if they did, they would not have recourse to the bond given by defendants, but would give it up. It appeared that said bond was assigned on the 25th May, 1842 ; that a suit on the bond was commenced on the 26th October, 1842, by the assignees ; and two of the defendants aforesaid appeared in the suit (the other not having been served with process), and pleaded non estfactum arid notice, in which notice defendants set forth sub- stantially the above facts, and alleged in said notice that the hank received pay and satisfaction of the indebtedness from the assignees of said bond and the other parties to said note ; that the suit on the bond was never brought to trial, but was discontinued, and defendants' taxable costs paid. On the 6th NEW-YORK PRACTICE REPORTS. 13 Kingston Bank agt. Swift. of June, 1844, defendants' attorney received notice of substi- tution of another attorney for plaintiffs, and a notice of trial on the original sjiit brought upon the note. Plaintiffs' facts : After the suit on the bond was at issue, and the plaintiffs learning the nature of defendants' defence, by their notice which was pleaded to said suit on the bond, and after a full statement of facts to the counsel for plaintiffs on their part, plaintiffs were advised that the suit on the bond could not be maintained, but that they could successfully prosecute to a conclusion the above suit commenced on the note. Thereupon the suit on the bond was discontinued, and the further prose- cution of this suit undertaken. It appears also on the part of the plaintiffs, that the assignees of said bond had given two notes to the plaintiffs as collateral security for the note in this suit ; or that said two notes were turned out to said plaintiffs by one Wilbur, for whose benefit the indebtedness accrued, and were considered accommodation notes ; that the assignees of said bond were sued on said two notes in separate suits ; and on the trials, it was proven that this suit was not discon- tinued, nor any agreement made for the discontinuance thereof. Plaintiffs obtained judgment on said two promissory notes, and interest against the assignees of said bond. On a sub- sequent settlement between plaintiffs and assignees, it was agreed that *said plaintiffs should transfer the [*14] bond aforesaid to said assignees, and the note on which this suit is commenced, and also the suit to be prosecuted for the benefit of said assignees ; and said transfers were made accordingly on being indemnified by the assignees against ex- penses and costs of this suit, which was also done. The same is now prosecuted for the benefit of said assignees, they hav- ing been compelled to pay the amount of said note to plaintiffs. The assignees allege that no agreement was ever made by said plaintiffs, or any one on their behalf, for the discontinuance oi this suit. Assignees also allege that they expect to prove on the trial of this cause, that the note on which this suit is brought is a business note ; that defendants ought to pay the same. 14 NEW-YORK PRACTICE REPORTS. Corning agt Tripp. J. W. GERARD, attorney for four defendants. H. E. DAVIES, plaintiffs' attorney. Decision. Ordered that defendants have leave to plead puts darien any matters which have arisen since the commencement of this suit, and that plaintiffs have leave to reply to same ; and further ordered that the venue be changed to the city and county of New- York. Costs of motion to abide event of suit CORNING & HORNER agt. TRIPP. "Where plaintiffs entered judgment by default, the plea having been served one day too late, defendant swore to merits fully, giving particulars; the plaintiff showing regularity on his part, and that defendant was alleged to be in doubt- ful circumstances. Defendant let in on terms: judgment and execution to stand as security. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside judgment and default, and that defend- ant be permitted to come in and defend. Defendant's facts : Declaration served on defendant on the 22d July, 1844, containing common money counts. Defend- ant's attorney, on the 7th August, 1844, inclosed a plea of general issue, statute of limitations and notice of set-off, in an envelope, and directed the same to the clerk of the supreme court, Geneva, New- York, with directions to serve the same upon the agent of plaintiffs' attorney. He put same in post- office at Randolph, Cattaraugus county, New- York, and paid postage thereon. In the ordinary course of mail, it would have reached the clerk on the 9th August, 1844 : same was not received by said clerk until 14th August, 1844. On the 18th of August, 1844, judgment was entered for plaintiffs by default. Defendant's attorney would have mailed said pleas directly to plaintiffs' attorney at Albany, had he supposed there was not time for it to have reached the clerk at Geneva. NEW-YORK PRACTICE REPORTS. 14 Corning agt. Tripp. Defendant has a full affidavit of merits, and gives particular causes and grounds for defence : one is, that the same debt has been paid by him, by conveying property real and per- sonal to plaintiffs' agent or attorney, for plaintiffs, on a suit then brought against him by plaintiffs for the same indebtedness. *That plaintiffs have not given him [*15] credit for $30 paid on the 26th September, 1836, and other specifications. Plaintiffs' facts : The declaration was served on the 22d July, 1844 ; pleas and notice served on clerk at Geneva, August 14th, 1844 ; returned by plaintiffs' attorney to defendant's attorney, August 19th, 1844 ; judg- ment entered 13th August, 1844 ; execution issued and tested 13th September, 1844 : the circuit where the venue is laid is on the 9th October, 1844. The sum of $30 stated by defend- ant was credited to defendant on plaintiffs' books, and deducted from the judgment. Defendant left this state, and was said to have gone to some of the western states, in the year 1837, and returned to this state about a year ago. Plaintiffs allege he is in doubtful circumstances. C. TUCKER, defendants attorney. W. D. WHITE, plaintiffs' attorney. Decision. Motion granted on payment of costs of default and costs of opposing motion. Judgment and execution to stand as security, and cause referred. VOL. I. 2 15 NEW-YORK PRACTICE REPORTS. Steer agt. Head. LEGATE agt. LAGRILLE. Where defendant appears, he waives the irregularity of the issuing the writ with- out a clerk's name to it October Term, 1844, NELSON, C. J., presiding. MOTION to set aside writ of replevin for irregularity. On the ground of there not being added or affixed to the said writ, the names of the clerks of this court, or any or either one of said clerks. Defendant's facts : Show that the writ was returned and filed without the names of the clerks of this court or any one of them being affixed thereto. Plaintiff's facts: After the execution of said writ (and before the same was filed), plaintiff 's attorneys received a written notice of retainer from defendant's attorney, for defendant in this cause; that the word " clerk," is affixed to said writ ; that defendant was not arrested on said writ, nor any bail given or required. Defend- ant's appearance has been entered nunc pro tune, as of the day of service of notice of retainer. SAMUEL F. REYNOLDS, defendants attorney. WARD & IIOCKWOOV, plaintiff's attorneys. Decision. Motion denied with costs. STEER agt. HEAD. Facts and circumstances upon which defendant was allowed to come in and de- fend after default, by reason of not having sworn to the truth of his plea. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside default and subsequent proceedings for irregularity. NEW- YORK PRACTICE REPORTS. 16 Steer agt. Head. Defendant's facts : This is an action of debt on bond. Defendant claims the *same to be paid, except about [*16] $32, which was tendered before suit brought. Defend- ant's attorney caused a plea to be served in time, according to the practice of this court. His clerk neglected to attach the affidavit of defendant, to verify the plea (which he had ob- tained), to the plea, at the time of service on said plaintiff's attorneys. One of plaintiff's attorneys informed the clerk of defendant's attorney, that the plea was received by mail in due season ; but there was no affidavit of the truth of the plea, nor any affidavit of merits served with said plea; that plaintiff's attorney did not return the plea or inform defendant's attorney of any irregularity respecting it, but said he treated it as a nullity. The first knowledge defendant's attorney had of plaintiff's attorneys' intention to treat the plea as a nullity, was the service of a bill of costs, with notice of retaxation. Defendant's attorney offered to pay plaintiff's attorneys the costs of default and subsequent proceedings (rather than make a motion) to let the plea stand, and waited for an answer until it was too late to move at an earlier day, the plea having been served early in July last. Plaintiff's facts : Accompanying the declaration served on defendant on the first of June last, was a copy bond, with notice that said bond was the only cause of action in this cause. The time for pleading was extended for defendant's attorneys' accommodation, until some time in July last. On the 8th of July last, a letter was left by a person, a stranger to plaintiff's attorneys, in their office, who immedi- ately left before plaintiff's attorneys opened said letter. On opening the letter, it was found to be a blank envelope cover- ing the pleas in said cause, consisting of two special pleas of tender, one concluding to the country, and the other with a verification, without any affidavit of merits or of the truth of either. The next day, 9th of July, after said pleas were served, plaintiff's attorneys wrote to the clerk and law partner of de- fendant's attorney, (believing defendant's attorney to be absent from home,) and forwarded the same to him by mail, postage paid, stating in substance that plaintiff's attorneys could not 16 NEW-YORK PRACTICE REPORTS. Wade agt. Carter. accept said pleas, for the reason that no affidavit of the truth thereof accompanied the same. On the 15th of July last plaintiff's attorney entered default, and on the 18th perfected judgment. The clerk of the defendant's attorney stated to one of plaintiff 's attorneys, that he received the letter addressed to him as aforesaid. Plaintiff 's attorney told him he had not, and could not inform defendant's attorney of the objection to the acceptance of said pleas, by reason of the absence of de- fendant's attorney, but supposed it sufficient to give him (the said clerk) the information. Plaintiff's attorney denies [*17] *stating that the pleas were received by mail, for they were not. It was the mail carrier that delivered them. Plaintiff's attorneys admit the offer of defendant's attorney to pay costs of default and subsequent proceedings, to have de- fault waived, but he did not offer to verify the pleas or either of them by affidavit. L. S. CHATFIELD, defendant's attorney. BOWNE & CRIPPEN, plaintiff's attorneys. Decision. Default and all subsequent proceedings set aside on payment of costs thereof, and of opposing motion, judg- ment to stand as security and cause referred. WADE agt. CARTER et al. Where plaintiff's counsel took a rule by default, which was opened by the court, on same day, and ho was immediately notified of that fact, and that defend- ant's counsel desired to oppose the motion, and plaintiffs counsel refused to bring it on, defendants' counsel was allowed to take a rule for coats at the close of the term. October Term, 1844, NELSON, C. /"., presiding. This was a motion for a commission and rule taken by de- fault, by plaintiff 's counsel. NEW-YORK PRACTICE REPORTS. If Clark agt. Rawson. Defendant's counsel, immediately on learning the fact (the plaintiff's counsel not being found), applied to the court to open the default ; stating that plaintiff's counsel was informed soon after he took the default, that defendants wished to op- pose the motion. The court ordered the default opened, and immediate notice given to plaintiff's counsel, and if plaintiff's counsel did not get such notice in season to bring on the argu- ment at this term, that the motion stand over to next special term ; at the close of the term (last day), defendants' counsel moved for costs against plaintiff, for not bringing on the mo- tion, stating that on the same day the default was opened, he informed plaintiff's counsel, personally, who was then in Al- bany, that the default was opened, and that he wished to op- pose the motion (which was two days before the term closed), plaintiff's counsel refused to bring it on. G. BULKLEY, plaintiffs attorney. A. D. L. WHIPPLE, defendants' attorney. Decision. Motion for costs against plaintiff, granted. CLARK agt. RAWSON. Facts and circumstances upon which defendant in error was allowed to have a default and judgment for not joining in error, opened. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside writ of error, and subsequent pro- ceedings. Defendant's facts : Defendant, in December last, recovered a judgment on the reversal of a justice's judgment in the common pleas, against said plaintiff, and one Hinds, then his partner, living ; afterwards a writ of error was brought to the common pleas from this court; and notice ^thereof [*18] served on defendant's attorney, 30th December last, 18 NEW-YORK PRACTICE REPORTS. Clark agt. Rawaon. who, on the 2d January last, caused notice of retainer to be served on plaintiff's attorney by mail, that defendant or his attorney heard nothing more of said suit until August last, when they learned an execution was in sheriff's hands, to col- lect $20 costs of reversal in this court, which appeared by the execution to have been done 26th February last ; defendant swears to merits, and alleges he has been overreached in this matter in some way unknown to him, as no notice of argu- ment has ever been served on defendant or his attorney ; de- fendant would have moved before, but for the absence of a material witness, who returned 13th September last, by which he should prove notice of a retainer served on plaintiff's attor- ney. Defendant's attorney, on inquiring of the clerk of the county and his deputy, learns that no writ of error, certificate of a judge or bond, has ever been served on either of them, that they have not made any return to any writ of error, in any such cause to this court. Defendant's attorney has never received any notice of argument from plaintiff's attorney, in said suit Defendant's attorney believes plaintiff's attorney has never procured a certificate of the judge who tried the cause below, nor filed or served the same with the clerk of the county, as required by statute, defendant proves the mail- ing notice of retainer to plaintiffs attorney, directed to him at his residence, and payment of postage on the 2d January last, and also that no certificate of the presiding judge was pre- sented to the supreme court commissioner, who allowed a writ of error. Plaintiff's facts : After the judgment of reversal by the common pleas, plaintiff's attorney obtained the certificate of the first judge who heard the argument in the common pleas, dated, 20th December, 1843 ; on the 26th December, plaintiff's attorney obtained an allowance of a writ of error, and order to stay proceedings by a supreme court commis- sioner on the production of a sufficient bond. Writ was re- turnable 1st Monday of January, 1844 ; before the return day of said writ, and plaintiff's attorney thinks, on the day of its allowance, he served the same on the clerk of the county, to- gether with a sufficient bond, a certificate of counsel of this NEW-YORK PRACTICE REPORTS. 18 K^" Gale agt. Hoysradt. court, and the certificate of the first judge of the county before mentioned ; and on 30th December, 1843, plaintiff's attorney served notice of bringing the writ of error and filing the bond with the clerk of the county, and received defendant's attor- ney's admission of service of such notice, that the clerk of the county, before the return day of said writ, made a return thereto, and filed the same together with all the papers served on him in this cause, except the bond (as stated by the clerk of *the county), with the clerk of this court, [*19] which return plaintiffs' attorney has seen on file. On the 2d February, 1844, plaintiff's attorney filed assignment of errors, and entered rule to join in twenty days ; no joinder in error has ever been received by him. Plaintiff's attorney fully denies" ever in any way or manner receiving notice of retainer in this cause, from any person for defendant ; after the 20 days expired, plaintiff's attorney, on an affidavit, en- tered rule for judgment of reversal in common rule book, kept by the clerk of this court, and perfected judgment 26th February, 1844 ; on the 10th July, 1844, issued execution for costs ; on the 10th of September last, Jason Hinds, one of the plaintiffs, died. (K M. BUCKLIN, defendants attorney. D. J. WAGER, plaintiff's attorney. Decision. Ordered that the default be opened, on payment of all plaintiff's costs in this court, and costs of opposing mo- tion ; if said costs are not paid in twenty days after demand, then motion denied, with costs of opposing. GALE agt. HOYSRADT. It is necessary to call the plaintiff on the rendering of a verdict by a jury. Where the plaintiff's attorney and counsel were both in court when the verdict was NEW-YORK PRACTICE REPORTS. _ M Seatnana agt. Tillson. rendered, and the clerk thought he called plaintiff, motion to set asido the verdict for that reason waa denied. October Term, 1844, NELSON, C. /., presiding. MOTION to set aside verdict and for a new trial, on the ground of irregularity. Plaintiff's facts : This was an action of replevin, the jury rendered a verdict for plaintiff for a portion of the property, and found for the defendant as to the residue, and assessed the value in each case ; verdict received and recorded ; the plain- tiff was not in court when the verdict was rendered by the jury and received by the court; plaintiff was not called by the clerk or any other person at the time, or at any time after the jury returned into court, nor did he appear or answer at that time. Defendant's facts : The plaintiff's attorney and coun- sel were both in court when the verdict was rendered, and the plaintiff was called, and either his attorney or counsel an- swered for him. Deputy clerk who officiated as clerk, thinks he called the plaintiff, but will not state positive ; his attorney and counsel were both present when the verdict was rendered. J. H. KEYNOLDS, plaintiffs attorney. G. W. BULKLEY, defendant's attorney. Decision. Motion denied, with costs, without prejudice. SEAMANS agt Facts and circumstances upon which defendant waa allowed judgment as in case of nonsuit, after stipulation unless plaintiff paid costs of motion, and referred the cause. October Term, 1844, NELSON, C. J., presiding. [*20] *MOTION for judgment as in case of nonsuit after stip- ulation. NEW-YORK PRACTICE REPORTS. 20 Scamans agt. Tillson. Defendant's facts : Cause at issue upon issues of fact. Plain- tiff got an order for a commission to examine a witness in Michigan, July, 1843. Commission sent by mail in February, 1844, without any money to pay expenses. At the April circuit, 1844, plaintiff gave defendant a stipulation to try said cause at the September circuit following, and told defendant's attorney he would try it or discontinue the suit then, if said commission was not returned. Plaintiff did not notice the cause or try the same at said September circuit. Plaintiff's facts : The witness in Michigan was the material witness in the cause as defendant's attorney knew ; the commissioner to whom the commission was directed was owing plaintiff more than enough to pay the expenses, and was directed to apply the plaintiff's funds in his hands for the expense ; the commis- sioner had funds in his hands belonging to plaintiff Plain- tiff's attorney stipulated to try said cause only on the condition that said commission was returned in season, defendant's at- torney saying he would take no advantage of the stipulation if said commission was not returned. Plaintiff's attorney never told defendant's attorney he would try it whether the commission was returned or not. Plaintiff's attorney wrote to the commissioner in May last as to the commission, and received no answer. In July last he employed a person to go to Michigan to see what had become of the commission and papers, there being important papers with the commission which he could not do without, and could not execute a new commission. Said person has not yet returned but is ex- pected daily. JAMES HYDE, defendants attorney. C. FIELD, plaintiff's attorney. Decision. Motion granted, unless plaintiff pay costs of mo- tion and then it is referred. 20 NEW-YORE PRACTICE REPORTS. Bodle agt. The Chenango County Mutual Insurance Company. BODLE agt. THE CHENANGO COUNTY MUTUAL INSURANCE COMPANY. The insufficiency of an excuse offered to set aside a verdict. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside verdict Defendant's facts : Cause noticed for trial Cortland circuit for August 26, 1844. Defendant's attorney states his horse tired out in travelling, by which means he was unable to reach the court-house until 3 o clock P. M. He was informed a verdict had been taken in the cause half an hour previous. He endeavored to find plaintiff's attorney, to offer to pay costs, and was informed he left immediately after taking the verdict. Plaintiff 's facts : Verdict was taken after 2 [*21] *o'clock P. M., in its regular order on the calendar. Defendant's attorney arrived after 4 o'clock P. M. Plaintiff's attorney went immediately and saw defendant's attorney and informed him a verdict was taken, and asked defendant's attorney why he did not come sooner, as he knew it was an old issue. Defendant's attorney replied he stopped at a tavern about five miles back to get his dinner ; he made no other excuse, did not offer to pay costs at the time, and told his witness he could go home. GEO. M. SMITH, defendants attorney. HUMPHREY & GUSHING, plaintiff's attorneys. Decision. Motion denied with costs. NEW-YORK PRACTICE REPORTS. 21 "Waring agt. M'lntosh. WARING agt. M'INTOSH. Where there is a conflict of statements as to the true amount of a judgment which is alleged to be fraudulent as against a junior execution creditor, the court will not decide such matters upon motion, but will order a reference to a referee, to examine into, ascertain, and report the facts and amount due. October Term, 1844, NELSON, C. J], presiding. MOTION to set aside or vacate fi. fa. issued in this cause as fraudulent and void against Charles Hallock, or that the writ of fieri facias of the said Charles Hallock, be entitled to pri- ority, &c. Facts on the part of said Hallock : An alias fi.fa. was is- sued on the judgment in the above cause on or about the 3d of September, 1844, and levied on personal property of de- fendant ; the judgment record appears to be entered on a cog- novit actionem signed by the defendant in person ; judgment docketed 5th May, 1837, for $2,892 damages and $16.81 costs. The fi.fa. is directed to levy $2,908.81 and interest from May 5th, 1837, after making ^some deductions of about $628 and interest. On the 28th January, 1837, said Hallock and one Bates, then his partner, recovered a judgment in this court against defendant for $406.12 damages and costs, issued an alias fi. fa. on the 6th September, 1844, directed to levy $401.12, with interest from September 27, 1840. Plaintiff is an attorney and counsellor of this court, and acted as such for defendant at the time the judgment of said plaintiff was taken, and defendant was then in a great pecuniary embarrassment, and alleges that said judgment was confessed without any bonafide indebtedness, or if any, not more than one or two hundred dollars, and that the full amount of such indebtedness has been paid previous to the issuing of said plaintiff 's fi.fa. Hallock alleges the full amount of his judgment to be due and owing, and will be deprived of all means of collecting the same if the proceeds of defendant's property is applied on said plain- tiff 's execution. The defendant states that he owed said 22 NEW-YORK PRACTICE REPORTS Waring agt M'Intosh. plaintiff and his partner a due bill of $55.96, and some further amount for professional services performed in several 1*22] suits in which defendant *was involved, and in the course of the business, plaintiff received at different times various small and large amounts of money ; he is not otherwise indebted to said plaintiff. Since the rendition of the judgment, has said plaintiff's goods, together with money collected by plaintiff for defendant, which amounts to $553.46, and believes plaintiff's indebtedness fully paid. Plaintiff has refused to give said Hallock's attorney his account, but has told defendant he supposed there could not be due him (plain- tiff) over $300, and gave defendant a memorandum in figures, which made the amount $430.44, but did not look over his books fully, and could not say how much more was due. Plaintiff admitted to defendant's attorney that there was not as much due on the judgment as was directed to be levied, but utterly refused to give defendant's attorney any account of tho amount in fact due on said judgment. It is also alleged by said Hallock that the teste and return of the plaintiff 'sfi. fa. is erroneous. Plaintiff and his assignee's facts ; first the assign- ees : The judgment in this cause was in March, 1838, assigned by plaintiff to one Ann Haekstaff, an aged lady of some for- tune, (for whom plaintiff was counsel and agent in investing her money,) for a full and valuable consideration paid by her Said Ann Hackstaff died July, 1841. Letters testamentary were shortly after granted upon her estate to her son and plain- tifij an inventory of- her estate was taken and sworn to by said executors, in which the said judgment of plaintiff appears in the list of property of said testatrix in July, 1842. The attorney for the assignees had frequently tried to pro- cure a return of the first Ji. fa. on the judgment, in order to issue an alias thereon, but was unable to do so until about the month of August last, when an alias Ji. fa. was issued by him, and being informed that some deductions were to be made, deferred filling up the writ until he could ascertain from plaintiff the amount of such deductions, and when in conversation with said plaintiff at the time of filling up the NEW-YOKE PRACTICE REPORTS. 23 "Waring agt. M'Intosh. writ, he, through haste and inadvertence, incorrectly stated the places of teste and return thereof. He first became aware of the error on service for the papers of this motion, and too late to prepare a cross motion to amend. He was not the attorney in procuring the judgment or in issuing the original execution. Plaintiff had promised to draw affidavits for him- self and others to establish the correctness of said judgment, and that it had been recovered on good and full cause of ac- tion, and was still due with the deductions on said writ spe- cified ; he is informed and believes plaintiff has now no ' interest in the said judgment except as executor. Plaintiff's facts : Plaintiff states that this judgment was for money lent and advanced by plaintiff to defendant and for professional services, and that defendant at the time of docketing said judgment was actually indebted to him the amount *of said judgment, and was so entered up for such [*23] indebtedness, and for such as might be due. from the defendant to plaintiff, and also for such indebtedness as might accrue in favor of plaintiff and his partners ; and finds from an examination of his accounts against said defendant, that said defendant, at the time said judgment was entered, was actually indebted to him in the amount named in said judgment. At or about the time of giving said judgment, he gave up to defendant his note for $500, which had been paid by plaintiff. Plaintiff issued an execution immediately after the entry of said judgment, which was returned nulla bona. All the moneys he has received on account of said defendants have been duly credited to him ; and that giving defendant all his credits, he is actually indebted to him the amount named in the execution. Plaintiff let defendant ex- amine the books of the firm, and defendant took the memo- randum therefrom mentioned in defendant's affidavit ; the amount was only one that plaintiff's late firm had against de- fendant previous to the judgment. Plaintiff, for a valuable consideration, assigned said judgment as before stated, in the year 1838. The annexed account of plaintiff against defend- 23 NEW-YORK PRACTICE REPORTS. Smith agt. Reid. ant, shows the amount actually due from said defendant. The account added up, makes $39,978.68. SMITH BARKER, attorney for Hallock. J. C. DELAPLAINE, attorney for plaintiff's assignees. Decision. Ordered that it be referred to a referee to exam- ine into the matters involved in said motion, and to report to this court forthwith the amount actually due upon the judg- ment in this cause. Costs of motion to abide the decision of the motion, upon the coming in of the report of the referee : in the meantime, proceedings on the executions in both causes to be stayed. SMITH agt. REID. Facts and circumstances upon which defendant was allowed to come in and de- fend upon the merits before a referee, on terms, where an inquest was taken by default ; the defendant's attorneys alleging they had been misled by the court proceedings published daily in a morning newspaper. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside inquest, verdict, and subsequent pro- ceedings. Defendant's facts : On the 3d July, 1844, served plaintiff's attorneys with affidavit, order, notice of motion, and affidavit of merits, to set aside the inquest in this cause, by reason of being misled by the Horning Herald, New- York (defendant's attorneys residing in Kings county), on the 2d day of the cir- cuit, not finding this cause among those published for the day calendar of that day ; one of defendant's attorneys alleging he had been ready at all the previous circuits, and was then ready to try said cause; and plaintiff's attorney knew he [*24] *had a defence, and an affidavit of merits had been NEW-YORK PRACTICE REPORTS. 24 Smith agt. Reid. filed. An inquest was taken, and verdict for plaintiff $500, on the said 2d day of the circuit. On the 9th July, 1844, defendant's attorneys served on plaintiff's attorneys notice of tender and stipulation to pay costs of inquest and subsequent proceedings on being taxed, and to try said cause at the then circuit. On the 10th July, 1844, defendant's attorneys were served by plaintiff's attorneys with bill of costs of inquest and notice of taxation for the 15th July, 1844 : on that day, one of defendant's attorneys attended on taxation. Immediately after said costs were taxed, one of plaintiff's attorneys re- marked he could not try the cause at that circuit, one of his witnesses being absent out of town. The defendant's attorney informed plaintiff's attorney at that time in what manner he had been misled by the Herald, and insisted plaintiff's attor- ney was unkind in taking the costs from him under the cir- cumstances. Plaintiff's attorney replied he was out of town when the inquest was taken ; and as it was, he was in no hurry for the costs: defendant's attorney might pay them, taking his own time. Soon after said bill of costs was taxed, defendant in this cause became insane, and was confined in a lunatic asylum, where he is still. Defendant's attorneys were unable to get the money for the costs from defendant. Two or three weeks since, defendant's attorneys received a note from plaintiff's attorneys, requesting the costs to be paid, that they might notice the cause for the next circuit. Defendant's attorney (who had the principal charge of the cause, and who is son-in-law to defendant) was at that time obliged to go into the country, on account of sickness in his family. Before leaving, he wrote a line to plaintiff's attorneys, requesting them to notice said cause, and stating to them the fact of the insanity of defendant, and would the next week endeavor to pay the costs out of his own pocket, and pledged himself the costs should be paid if they would notice the cause. On his return, he called on plaintiff's attorneys two or three times to pay said costs, and not finding them in, was obliged again to go to his family in the country on account of continued illness ; and on his second return, called on plaintiff's attorneys to pay 24 NEW-YORK PRACTICE REPORTS. Smith agt. Reid. said costs : not finding them, called again next day and found them, offered to pay the costs, take short notice of trial, and put cause on calendar for next circuit, of which there wa^ full time. Plaintiff's attorneys refused to take the costs, or do anything in the matter defendant's attorney had re- quested. Defendant's attorney has just seen on his table (about 4th September, 1844), for the first time, a copy bill of costs, purporting to be a taxed bill, but no notice on it to that effect, nor is there any demand of payment upon [*25] it ; nor has defendant's "^attorney ever received any demand of payment of said costs, but there was an in- dorsement on said bill of costs as follows : " One of the plain- tiff 's witnesses is out of town, and, therefore, the cause could not be brought on the July circuit." Defendant is still con- fined in the lunatic asylum, and it is uncertain whether he will ever be able to transact business again ; no committee has been appointed over him. Defendant's attorneys have just been served with a bill of costs in this suit, and notice of taxation for 23d of September, 1844. Defendant swears to merits. Plaintiff's facts: Inquest taken in its regular order on the calendar at July circuit, 1844. In February at the December circuit last, plaintiff's attorney had watched this cause with his witnesses for ten days, then the cause was suddenly and un- expectedly called on, while plaintiff's witness was gone to din- ner, he was expected in court soon, and did come in a few minutes after the cause was disposed of. Defendant would not consent to any arrangement to save costs or delay, and plain- tiff's attorneys paid defendant's term costs. Very shortly af- ter the cause had gone down, one of plaintiff's attorneys made a fair arrangement, as he supposed, with one of defendant's at- torneys to put the cause again on the calendar at the same cir- cuit, and within three hours thereafter received from the other attorney of defendant, notice of motion for next special term of this court for judgment as in case of nonsuit. Plaintiff's attorney was informed soon by defendant's attorney with whom he made the arrangement, that the notice of motion was a mis- take, that he would make it all right He then drew up a NEW-YORK PRACTICE REPORTS. 25 Smith agt. Reid. stipulation to arrange the same, and plaintiff's attorney signed the same. The day prior to said motion day, plaintiff's attor- neys sent to defendant's attorneys for a copy of the stipulation ; the defendant's attorney who gave the notice of motion refused to consent to anything his partner had done, but gave no no- tice thereof to plaintiff 's attorneys, and they narrowly escaped having said motion taken by default. Plaintiff's attorneys, however, accepted defendant's stipulation to pay the costs of inquest, and made out the same and had them taxed. One of defendant's attorneys stated to the taxing officer, he did not want a copy of the taxed bill of costs to be served or any de- mand to be made ; the taxing officer struck those items out of the bill. Plaintiff's attorney supposed from the conversation then had with defendant's attorney, that he was going to pay the costs soon, and only wanted to go over to Brooklyn to get the money, to which he consented. Plaintiff's attorneys, after requesting of defendant's attorneys and sending to them a number of times to pay said costs, directed a taxed bill to be served on defendant's attorneys, which was done, July 29th, *f844. Plaintiff's attorneys do not know who [*26] indorsed on said bill that plaintiff's witness was out of town. On the 19th of September, one of defendant's attorneys called on plaintiff's attorneys, and said he intended still to pay said costs, but offered no money, and did not say he had it with him, and was informed judgment had been entered. The circuit where venue is laid commences 23d September, 1844. Defendant told one of plaintiff's attorneys personally that he himself had been misled by the report of the day calendar in the paper, and did not cast any blame on defendant's attorneys. Plaintiff's attorneys refused to open the judgment, as it was regular, for fear of a long and expensive litigation with an insane defendant, whose ability to pay may be considered doubtful. WARING & EALPH, defendant's attorneys. A. L. & H. P. ALLEN, plaintiffs attorneys. VOL. L 3 26 NEW-YORK PRACTICE REPORTS. Van Elton agt. Hurst Decision. Ordered that motion be granted so far as to per- mit defendant's attorneys on payment of costs of trial or in- quest, and subsequent proceedings, if any, and costs of oppos- ing motion, to be heard before referee on the merits ; that the referee make report to this court. Plaintiff's proceedings stayed until the coming in of the report. VAN ELTEN agt HURST & CUSHNEY. Defendants' excuse where he suffered an inquest by default ; and the terms im- posed upon allowing him to come in and defend. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside inquest, and for new trial. Defendants' facts : Defendants swear to merits ; issue was joined 30th August, 1842; inquest taken llth September, 1844 ; they received no notice from their attorney, or from any other person, to prepare for trial, and had no knowledge the cause was noticed for trial. Being so long in court, de- fendants supposed it was dropped, and would not be further prosecuted. Defendants' attorney states cause was noticed for trial, April, 1844, by plaintiff's attorney, who afterwards coun- termanded the notice ; he heard nothing more from it until he saw it on the calendar for September circuit, 1844 ; he did not recollect ever receiving any notice of trial for said Sep- tember circuit ; he told plaintiff's attorney so, who said he thought he had served notice of trial on defendants' attorney. After the inquest, defendants' attorney found a notice of trial with some chancery papers which were served at same time and filed away ; said notice of trial being with said chancery papers, escaped the notice of defendants' attorney. Defendants' attorney offered in a stipulation to plaintiff's attorney to pay costs of inquest, on having the same waived, and on [*27] giving defendants a trial ^therein. Plaintiff's facts : Inquest regularly taken on the llth September, 1844, in pursuance of a notice duly served. NEW-YORK PRACTICE REPORTS. 27 Pentz agt. Willoughby. D. PRATT, defendants' 1 attorney. W. PORTER, JR., plaintiffs attorney. Decision. Ordered that defendants have leave to come in and defend before referee, on payment of costs of circuit, in- quest, and all subsequent proceedings, and costs of opposing motion. Judgment to stand, and plaintiff at liberty to issue execution as security. PENTZ, President, &c. agt. WILLOUGHBY. Where an action was commenced on a judgment in the Superior Court, after an order staying execution upon writ of error to this court ; and on affirmance by this court, plaintiff entered judgment by default ; subsequent to which, defend- ant brought a writ of error upon the judgment of affirmance. Defendant was allowed an order staying plaintiff's proceedings upon his last judgment, until the principal case was decided in the court of errors. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside default and to stay all further proceed- ings in this cause until the decision of the principal case in the court of errors. Defendant's facts : This is an action of debt, on judgment rendered in superior court of New- York, on a bond. On said judgment a writ of error was brought to this court, and judgment on said writ affirmed, July, 1844. On said last judgment a writ of error has been brought to the court of errors, on which, is indorsed the proper orders, staying execu- tion ; this suit is brought on the judgment, upon which the said last writ of error is brought. Immediately on the deci- sion of this court, plaintiff's attorney entered defendant's default for want of a plea. Defendants offered to pay plain- tiff 's attorney costs of default on waiving same, which was refused. This case necessarily depends on the result of the 27 NEW-YORK PRACTICE REPORTS. Pentz agt Willoughby. action of the court of errors upon the judgment upon which the same is brought. Defendant swears to merits and also that the original judgment in the superior court of New-York, was in the name of Elntheros B. Comstock, President, &c., said Frederick Pentz having succeeded him in said office. When this suit was commenced, the original suit in the name of Comstock, President, &c., having been removed to this court, by writ of error, this court made an order staying plaintiff 's proceedings upon the judgment, until the decision of this court, which order was made before issue joined in this suit % . Plaintiff's facts : This is an action of debt on judg- ment in superior court of New- York, entered 17th October, 1842, for $120,000 and $257.91 damages and costs, which judgment was upon a bond given by defendant to the asso- ciation for $60,000 and interest At the time of rendering said judgment, there was due upon said bond for interest alone, $9,000, no part of which has been paid. This [*28] action was *commenced by declaration, June 2, 1843, previous to which time a writ of error was brought upon the said judgment in superior court, and an order stay- ing execution ; the bond filed upon said writ was in the penalty of a sum not amounting to $4,200 ; on the 29th July, 1844, this court affirmed the judgment of said superior court ; 12th August last, (eighteen days having previously elapsed to plead in), defendant's default was entered for not pleading, and rule for final judgment. Judgment of affirmance in this court was entered 7th of August last ; at which time there was due from defendant Willoughby, for interest, $16,200, and which is still due. One writ of error, brought by de- fendant upon said judgment of affirmance, has been quashed by the court of errors on the 23d September, 1844. Another has been issued, and was allowed 16th September, 1844, and an order made by the officer staying execution. The bond executed upon said writ is in the penalty of $5,000. Plain- tiff alleges he has a scanty security for his debt ; and that defendant, by evading the statute requiring security upon a writ of error, prevents him from realizing the just amount of NEW-YORK PRACTICE REPORTS. 28 Brown agt. Torrance. interest on defendant's bond, and charges delay to be the sole object of bringing the writ of error. F. ANTHON, defendant's attorney. E. E. MOUNT, JR., plaintiff 's attorney. Decision. Ordered that the judgment entered in this cause stand, but all proceedings upon the judgment to be stayed un- til the decision of the principal case now pending in the court of errors shall be made. Defendant to pay costs of opposing this motion. BROWN & EATON agt. TORRANCE. Facts upon which defendant set aside an execution issued upon a judgment en- tered upon a report of referees, after defendant had obtained an order setting aside the report, etc., upon terms. October Term, 1844, NELSON, C. J., presiding. MOTION to set aside execution for irregularity. Defendant's facts : Judgment was entered in July, 1844, upon an ex parte report of referees. A motion was made to this court to set aside the report and subsequent proceedings for irreg- ularity, or for other relief: upon which motion, defendant swore to merits ; and a rule was granted on the 12th August, 1844, setting aside the report and subsequent proceedings on payment of costs of hearing, and subsequent proceedings and costs of opposing motion. Within twenty days after the entry of said rule, and about a week before the twenty days ex- pired, the law partner of defendant's attorney, and counsel for defendant, called on plaintiffs' attorney, and requested him to make out his costs under said rule ; which was done. De- fendant's counsel objected to some items in said bill. Plaintiffs' attorney *said he would see one of plaintiffs [*29] 29 NEW-YORK PRACTICE REPORTS. Brown agt. Torranoe. in a few days, and procure proof to satisfy defendant's counsel of the correctness of some of the items. Defendant's counsel claimed that the bill must be taxed, and it was then so understood between them, and taxation postponed merely on account of the absence of said plaintiff. Defendant's coun- sel saw defendant, Saturday, August 31, 1844, and advised defendant to go and settle said costs by Tuesday following. Defendant's counsel would ascertain of plaintiffs' attorney when he was ready, and let him know. On Monday defend- ant's counsel saw plaintiffs' attorney, and found him ready to tax the bill. They went before a taxing officer and had the same taxed, he making some deductions. When same were taxed, defendant's counsel informed plaintiffs' attorney the de- fendant would be there the next day and settle them, to which plaintiffs' attorney did not object : the taxation was without notice. On Tuesday, September 3, 1844, next day defendant came and gave defendant's counsel the money to pay the costs ; and on the same day he tendered the amount of the taxed bill to plaintiffs' attorney, who admitted the sufficiency of the tender, but refused to receive it, as he said it was too late : it should have been made the day before. At that time no execution had been issued, and plaintiffs had not incurred any expense or liability subsequent to the taxation. De- fendant's counsel has, within a few days, ascertained the fact that an execution is issued, and now in the hands of the sher- iff. Plaintiffs' facts : The same in substance as defendant's, down to the time when defendant's counsel called on plaintiffs' attorney for the amount of the costs under the rule. After the costs were made out, defendant's counsel said they were so large, he thought defendant would rather let the judgment stand than pay them; but he would sec defendant in a few days, and let him know. About a week previous to the expiration of the twenty days, defendant's counsel called on plaintiffs' at- torney, and stated that defendant would pay said costs on taxation; and defendant's counsel proposed they should go before the taxing officer on Friday, 30th August, 1844, and get costs taxed ; to which plaintiffs' attorney assented. Plain- NEW-YORK PRACTICE REPORTS. 29 Pomeroy agt. Lownsbury. tiffe' attorney states, but for such stipulation he should have noticed the bill of costs for taxation at the regular time, and had the same taxed. On the morning of the 30th August, 1844, plaintiffs' attorney received a note from defendant's counsel, requesting a postponement of such taxation until Monday or Tuesday following. On Monday they went before the taxing officer and had the same taxed, defendant's coun- sel stating that the bill would be paid next day ; to which plaintiffs' attorney replied, " that to-morrow would not *be to-day," or words to give defendant to understand [*30] the twenty days would expire that day. After the twenty days had expired, defendant's counsel called upon plaintiff's attorney and offered to pay the said bill of costs, which plaintiffs' attorney declined to receive. Execution has been issued and delivered to the sheriff. Plaintiffs' attorney learns that defendant has confessed a judgment since this, and execution issued on it, which would cover all defendant's property. A. B. NICHOLS, defendant's attorney. H. K. VIELE, plaintiffs' attorney. Decision. Motion granted without costs. POMEROY agt. LOWNSBURY. Terms imposed on defendant, allowing a commission to issue with a stay, after plaintiff had prepared the cause, and was expecting to proceed to a hearing the next day afteY motion papers were served. October Term, 1844, NELSON, C. J., presiding. MOTION for a commission. Defendant's facts: Action assumpsit, issue joined 15th July, 1844 ; cause referred 10th August, 1844 ; noticed for hearing on the 31st August, 1844. Defendant swears to 30 NEW-YORK PRACTICE REPORTS. Pomeroy agt Lownsbury. merits in the usual manner ; and also to the materiality of the witness residing at St. Louis, Missouri, for which a commis- sion is wanted, and the particulars of the defence which he expects to prove by said witness. Defendant was unable to find out, after diligent inquiry, where witness resided, until about 26th August, 1844. Defendant is engaged in running a boat on the canal between Albany and Buffalo : he left Al- bany the latter part of July, and did not return until 30th August, 1844, and heard' nothing of the cause being noticed until the last-mentioned day. One of defendant's attorneys, on the 15th July, 1844, wrote to plaintiffs' attorneys, stating in substance the particulars of defendant's defence, and that it would be material to have the testimony of said foreign wit- ness, unless plaintiffs would admit the items of defence in- tended to be proved by him ; and thinks he also stated that defendant's attorneys did not know the residence of said witness, and urged plaintiffs' attorneys to grant some delay, in order to get the testimony of said witness, as also to procure the other witnesses in said cause, who were mostly engaged on the canal. Plaintiffs' attorneys declined to admit the items above referred to, or to grant the delay requested. Defendant's attorneys have since requested of plaintiffs' attorneys to delay noticing the cause for hearing, on the ground of the difficulty in getting the necessary testimony. This cause was noticed for hearing on the 17th August, 1844, after defendant had left Albany; and defendant's attorney did not know where to direct a communication to him, and was unable to [*31] move in the matter until defendant *returned. Plain- tiffs' facts : One of the plaintiffs' attorneys states they are attorneys for a person not named as one of the plaintiffs, but who is plaintiff in interest in this cause ; after issue joined, plaintiffs' attorneys received a letter from one of defendant's attorneys, requesting a delay in said cause until the close of the canal navigation, to enable defendant to get his witnesses, and intimated they might want the testimony of a witness by commission. Plaintiffs' attorneys after consultation with plain- tiff in interest, who was opposed to any delay, wrote to defend- NEW-YOEK PRACTICE REPORTS. 31 Pomeroj agt. Lownabury. ant's attorneys to that effect ; and requested them to bring on the motion for a commission, at the same time with the motion for reference. Cause was referred on the 10th August, 1844 ; on the 9th August, 1844, plaintiffs' attorneys received a letter from one of defendant's attorneys, who had the charge of this suit, that he was going to be absent until 27th August. 1844, requesting plaintiffs' attorneys to let the cause stand as ii did until his return, and requesting them not to notice the cause until his return. Plaintiff in interest declined giving any de- lay, plaintiff's attorneys immediately informed defendant's at- torneys of the fact, together with the reasons of said plaintiff in interest, and also informed defendant's attorneys they would put the time of hearing beyond 27th August, 1844. . On the 14th of August, 1844, plaintiffs' attorney received a letter from the other attorney for defendant, requesting the hearing to be postponed until middle of September, in order to give time for the absent attorney to return and prepare for the hearing. Plaintiff in interest refused to give any delay, and plaintiffs' attorneys so informed defendant's attorneys. Plaintiffs' attor- neys, from the two letters last mentioned, were led to believe defendant had abandoned his commission : had they thought otherwise, they should not have noticed the cause for hearing until said commission was disposed of, plaintiff in interest being urgent to have the cause progress. Plaintiffs' attorneys noticed it for hearing on the 17th August, 1844, for the 31st August, 1844. Late in the evening of 30th August, 1844, and after the plaintiff in interest had procured his witnesses and entirely prepared for the hearing, plaintiffs' attorneys were served with papers for this motion, with a stay of proceedings. DEAN & NEWLAND, defendant's attorneys. COCHRAN & EATHBUN, plaintiffs' attorneys. Decision. Motion granted, with stay until 1st January, 1845, on payment by defendant of costs of reference down to time of stay, and costs of opposing motion. 32 NEW-YORK PRACTICE REPORT& Mann agt Greenwood. [*32] *MUNN agt. GREENWOOD, &c. Facts and circumstances upon which defendant was denied a motion for judgment as in case of nonsuit, or that plaintiff pay his taxable costs, on the ground that the suit had been settled. October Term, 1844, NELSON, 0. J., presiding. MOTION for judgment as in case of nonsuit, or that plaintiff pay defendants' taxable costs in this cause. Defendants' facts : Suit commenced about 6th July, 1843 ; issue of fact joined 21st July, 1843. Plaintiff did not notice the cause for the circuit, on the 1st Monday of August, 1844 ; that issues of a later date than 21st July, 1843, were tried at said circuit. This suit is on a promissory note, signed by both defendants : the same is now pending, and in no way settled, arranged, or compromised. No costs have ever been paid defendants in this suit. Greenwood, one of said defend- ants, confessed a judgment to one Smyth, on the 8th of June, 1843 : the amount of the above-mentioned note was then as- certained, and included in said judgment for plaintiff's benefit and by consent of said Greenwood ; and said plaintiff Smyth at same time executed and delivered to said plaintiff a writing, acknowledging plaintiff to be owner of so much of said judg- ment as was due him on said note, to which plaintiff assented. On the 25th August, 1843, one Medbury paid for said Green- wood the whole amount due on said judgment. At that time, plaintiff and his attorney presented said note, on which this suit is brought, and on which said judgment was confessed, to said Greenwood for payment. The amount due plaintiff on said note was then cast up, and the same paid to said plaintiff by said Medbury, for said Greenwood, who was owing said Greenwood, and the note given up to said Greenwood by said plaintiff, who expressed himself satisfied : there was no settle- ment or arrangement of this suit at that time, in any way other than above stated. Defendants' attorney has never re- ceived any notice discontinuing this suit: should have moved NEW-YORK PRACTICE REPORTS. 32 Munn agt. Greenwood. before, but for the inability of procuring said Greenwood's affidavit, who resides at Wisconsin, and which is now procured. Five different individuals swear in substance to the same facts as above set forth in regard to the settlement of this suit. Plaintiff's facts : Some time after the note became due, Wil- liams, who was surety, gave plaintiff notice he must collect said note immediately ; or he, said /lliams, should not hold himself responsible for its payment. Plaintiff then employed his attorney to collect said note, who called on said defendant Greenwood for payment. Afterwards Greenwood confessed the judgment before mentioned, including the amount of said note ; and plaintiff took the writing from said Smyth before mentioned, and, after consulting counsel, found said Smyth would not be liable to pay him his amount of said judgment by said writing, unless the same was collected of Greenwood. Plaintiff then directed the prosecution of this suit, and the writing was given back to said Smyth. After suit was commenced, *Greenwood came to plaintiff and [*33] said he wanted to settle the suit, he did not want any more costs made about it, and wanted to get rid of it ; that he honestly owed the money due on the note, and had made ar- rangements with one Medbury to pay it and stop any further proceedings in the suit. Plaintiff received the money from said Medbury for the amount due on the note, and gave up the note to said Greenwood as before stated ; and plaintiff ob- served that it is all settled now, and nothing more to be done about it ; to which Greenwood replied, it was. Plaintiff con- sidered the suit settled : he had not agreed to pay defendant's costs, and there was nothing said about costs either way. Plaintiff's attorney corroborates the same state of facts, and, in addition, says Greenwood expressly admitted that said suit was settled. A. L. PRITCHARD, defendants' 1 attorney. JOHN HYDE, plaintiff's attorney. Decision. Motion denied with costs. 33 NEW-YORK PRACTICE REPORTS. Bradt agt. Mount BRADT agt. MOUNT. Facts and circumstances upon which plaintiff was allowed to stipulate to try a a second time, and pay costa October Term, 1844, NELSON, C. J., presiding. MOTION for judgment as in case of nonsuit. Defendant's facts: Defendant and his witnesses attended the circuit on the fourth Monday of August, 1844, prepared for trial on the second day of the circuit. Plaintiff and his attorney said they could not nor should iiot try the cause at said circuit, and proposed to defendant's attorney to let the cause go over the circuit ; as they could not get ready for trial, on account of plaintiff's not bringing with him a certain deed, having forgotten it. Defendant's attorney refused to agree to the cause going over to the next circuit, and insisted on moving for judgment as in case of nonsuit, in case it was not tried. There was, at this time, two or three causes stand- ing before this on the calendar to be tried. Defendant and plaintiff's attorney conversed together, to see if an arrange- ment could be made (as plaintiff declared and conceded he was unprepared for trial) to dispense with further attendance of defendant's witnesses, so as to lighten the amount of costs for plaintiff. Plaintiff's attorney offered, in the former part of the conversation, to stipulate and pay costs, and try at the next circuit ; to which defendant's attorney refused, on the ground that plaintiff was then under stipulation to try at the present circuit. Defendant's attorney suggested and proposed to plaintiff's attorney, the better way would be to serve him with a countermand of the notice of trial ; and he and his witnesses would then leave, but could not leave in any [*34] way or manner *that would expose the cause to be called on in their absence. Defendant's attorney un- derstood plaintiff's attorney to assent to the proposition ; and plaintiff's attorney immediately drew a paper, which defend- NEW-YORK PRACTICE REPORTS. $4 Bradt agt. Mount ant'? attorney, while he was drawing it, supposed tc be a countermand of notice of trial, and presented it, which proved to be a stipulation in these words : " I do herely stipulate not to move this cause on at the present August term ; which was dated and signed by plaintiff's attorney. Defendant's attorney expressed his surprise, and told plaintiff's attorney he thought he was going to draw a countermand. Defendant's attorney, supposing nothing unfair intended, would take the raper of fered, with the understanding that he was not to }y, considered as giving the least assent to the cause not being tried, or to any right of plaintiff to put the cause over in this 07 any man- ner, and that the same should not prejudice his motion for judgment as in case of nonsuit, which he shouLI of course make : to all, defendant's attorney understood plaintiff's at- torney as assenting. Defendant's attorney, and defendant and witnesses, then left the court. Issue was joined 23d January, 18-14 : the next circuit was on the last Monday of March, 1844. On the first day of April, 1844, said cause not having been noticed for said circuit, defendant's attorney received from plaintiff's attorney a stipulation to try at the August circuit then next ; that younger issues than the above on the calendar were tried at said August circuit. Plaintiff's facts : This is an action for use and occupation. Plaintiff was not apprised that the title to the premises, for which plaintiff is seeking to recover rent, would be disputed until the second day of said August circuit ; and it was then for the first time discovered that the grantor of plaintiff, who held the title deeds, had sent to plaintiff a wrong deed, the right deed being then with some person in the county of Otsego ; and there was not time enough to get same to be used at said August Cortland circuit, 1844. On the advice of counsel, plaintiff believes he cannot safely proceed to trial without said deed from the county of Otsego, but will be able to try at the next Cortland circuit. Plaintiff is also advised by his counsel he has a good cause of action, and that the deed of plaintiff's grantor aforesaid will come in question on the trial. Plain- tiff's attorney states, the only reason why said cause was not 34 NEW-YORK PRACTICE REPORTS. .._. Stephens agt Ely. tried at said August circuit, 1844, being the absence of the deed before mentioned, he informed defendant's attorney of the fact, and offered to stipulate and pay defendant's costs, to be taxed in preparing said cause for trial, which defendant' attorney refused. H. F. MATHER, defendants attorney. ISAAC A. GATES, plaintiff's attorney. Decision. Motion granted, unless plaintiff stipulates and pays costs. [*35] *HARRISON STEPHENS agt. SMITH ELY. Facts and circumstances upon which defendant was allowed an order setting aside verdict and judgment upon terms. October Term, 1844, NELSON, C. J"., presiding. MOTION to set aside verdict, rule for judgment, and judg- ment. Defendant's facts : Defendant swears to merits in the usual form. He omitted to pay costs on amending his plea in this cause, by the advice of his counsel ; but is willing to pay costs, if it is necessary, in order to amend. He has paid in- terest on the bond for which this suit is brought, to the amount of $438.54. The jury who assessed the damages in this cause on the 16th of Nov. 1843, did not credit the amount paid by $199.82 : consequently there is an error in the ver- dict to that amount. Defendant's attorney states this suit was commenced March, 1843 : is an action of debt on bond. De- fendant pleaded two pleas to the declaration : first, general issue, concluding to the country ; second, his discharge under the bankrupt act of the United States, concluding with a veri- fication. Plaintiff demurred to second plea, and defendant NKW-YORK PRACTICE REPORTS. 35 Stephens agt. Ely. joined in demurrer. Cause noticed for argument, October term, 1843, of this court. Plaintiff took judgment on the de- murrer by default (by reason of defendant's papers being miscarried) on the 31st October, 1843. Defendant pre- pared papers to move to set same aside, and procured the usual order to stay, except plaintiff might be at liberty to bring to trial the issue of fact at the December special term of this court, 1843. The order taken by fault in October term previous, was vacated and set aside on terms : the terms being complied with, the order became absolute, on the 16th November, 1843. The trial upon the issue of fact was brought on : the jury found the writing obligatory to be de- fendant's deed, and assessed the damages to $1,012.70. On the same day, plaintiff's attorney entered rule for judgment, nisi, &c. Defendant's attorney did not attend the trial of said issue of fact, because defendant never denied the execution of the bond, the general issue being merely pleaded as a matter of form. Defendant's attorney supposed plaintiff had no right to assess his damages by the jury, pending a stay of proceed- ings. At the July term, 1844, of this court, the issue of law on the demurrer was decided (upon the grounds expressed in the opinion of the court), judgment for plaintiff on demurrer : leave to amend on usual terms. A copy of said order was served on. defendant's attorney on the 5th August, 1844. On the 6th August, 1844, defendant's attorney procured an order for twenty days' additional time to file and serve an amended plea, and take notice of trial for September circuit, 1844. Same day served copy said order, and notice that defendant would amend his plea and pay costs, on being taxed in pur- suance of the order of this court. On the 10th August, 1844, defendant's attorney received a copy of the opinion of this court thereupon. Same *day defendant's attor- [*36J ney served notice on plaintiff's attorney, countermand- ing his former notice, so far as the payment of costs was con- cerned, on the ground this court had decided the demurrer in favor of plaintiff, on grounds not specified in the demurrer. On the 10th or llth of August, 1844, defendant's attorney ftA NEW-YORK PRACTICE REPORTS. Stephens agt Ely. filed and served an amended plea in this cause, in pursuance of the order of this court ; and same time served an affidavit of merits, and that the matters stated in the plea overruled, and also in the amended plea, were true in substance ; and that the plea overruled was pleaded in good faith, &c., con- formably to the ninety -second rule of this court. Defendant's attorney, by the eighty-eighth rule of this court, advised de- fendant he had a right to amend his plea without paying costs. Plaintiff's attorney retained said plea and affidavits until 26th August, 1844 : then returned same, with notice that he re- fused to accept said plea. Defendant's attorney immediately thereafter ascertained plaintiff's attorney had entered judg- ment for the debt mentioned in the declaration, and also for $1,534.07 damages and costs : record filed 26th August, 1844. Costs of suit were taxed and inserted in record at $90.67, without notice of taxation having been served on defendant's attorney. Plaintiff's facts: The only indorsement on the bond is a receipt of November 1, 1841, for $250.05 for six months' interest due thereon ; which sum is not included in the assessment of damages, and believes that sum to be all that has been paid by defendant on said bond. Plaintiff resides in Montreal : his attorney has not been able to communi- cate with him since the receipt of the motion papers in relation thereto. Declaration is, the usual action of debt with breaches assigned ; among them the non-payment of the semi-annual interest due May 1, 1842, and the forfeiture of the principal thereon : copy declaration served March, 1843. No plea of payment or set-off has been put in by defendant : three pleas of defendant's discharge in bankruptcy have been served. Several causes of demurrer were taken to the first plea, and the same was amended accordingly. Several causes of de- murrer were taken to the second plea, and was amended by this court on motion. The third plea, the demurrer was taken and decided for plaintiff at last July term. 26th October, 1843, notice of trial and inquest of the issue in fact was served for second Monday in November, 1843 ; at which time the issue of fact was brought to trial, and contingent damages NEW-YORK PRACTICE REPORTS. 36 Stephens agt. Ely. assessed on the issue of law. On 6th December, 1843, de- fendant's motion to set aside the plaintiff's judgment on the demurrer, taken by default at October term, 1843, was granted, OD defendant's paying costs of said judgment and subsequent proceedings thereon, and costs of opposing motion. On op- posing the motion, this court was apprised of the trial *of the issue of fact therein, and the assessment of [*37] damages on the issue in law, and the costs thereof asked for, the court stated the verdict must stand, and the costs thereof abide the event of the issue in law. Plaintiff's attorney, on receiving notice from defendant's attorney of August 6th, 1844, to amend plea and pay costs, on 7th August served defendant's attorney with a bill of costs on demurrer, and notice of taxation for 12th August. On 26th August (the day the supreme court commissioners' order expired), plaintiff's attorney had costs regularly taxed, and perfected judgment and served another bill of costs and notice of tax- ation for 30th August. Same day, costs were taxed at same amount as before. Plaintiff's attorney has been unable to find any amended plea of defendant's filed in this cause. Plaintiff's attorney insists that defendant, in avoiding two demurrers for the same cause, cannot swear to any amended plea alleging that said defendant was a bankrupt at the time of the said application in bankruptcy. Defendant's amended plea, served with papers for the motion to set aside judgment in this cause at the last term, does not conform to the decision of this court. W. SKIDMORE, defendants attorney. "W. H. TAGGARD, plaintiffs attorney. Decision. Verdict and judgment set aside on payment of costs of circuit only, with leave to defendant to plead within twenty days. VOL. I. 4 38 NEW-YORK PRACTICE REPORTS. Hurd agt Merritt [*38] *SAMUEL W. HURD agt. JOHN J. MERRITT. Cons. December Term, 1844, BRONSON, /!, presiding. MOTION by defendant for relaxation of costs. The facts in the case are as follows : The action was tort, and after issue joined, was by stipulation of parties, referred. It was stipulated that a judgment of the court might be en- tered on the report of the referees, in the same manner and to the same effect as if the cause were properly referable ; after the referees reported, the defendant served his affidavit with a view to move to set aside the report ; the plaintiff served his counter affidavit, and the referees reported a state- ment of the evidence and points made before them. The cause was put on the calendar at the last May term, and was stricken therefrom because the defendant had not served the plaintiff with a copy of the papers, which it was his duty to furnish the court pursuant to the 48th rule. Defendant ob- jected to the allowance of any costs except for the judgment record and the fees of entering up the judgment, insisting that the reference was a submission to arbitration, and that the report of the referees was a mere award of arbitrators. The court overruled the objection, and decided that costs were allowable the same as if the cause were referable ; that the plaintiff had merely opposed proceedings, which the de- fendant should not have taken. The following items were stricken out of said bill : Counsel arguing at special term, non-enumerated motion, opposed, $5 ; counsel arguing at spe- cial term, non-enumerated motion, not opposed, $2 ; attorney's fee for proof of service of notice of trial and inquest, 50cts. ; for proof of service of notice of hearing for defendant and referees, 50cts. ; for drawing subpoena writs and tickets on three adjournments of the trial before referees, $6; for service of plaintiff's counter affidavit on motion to set NEW-YORK PRACTICE REPORTS. 39 Hurd agt Merritt. *aside report of referees, 25cts. ; for proof of service [*39] of same, 50cts. ; for preparation of papers to oppose motion of defendant for leave to have referees' report evidence, plaintiff consenting that defendant's default for not giving no- tice of settling, facts should be waived, $7 ; for service of order of Judge Kent revoking a former order made by him with notice, 25cts. ; for proof of service of same, 50cts. ; re- ferees drawing and copying report of amount due plaintiff, M. T. KEYNOLDS, defendants counsel. M. MITCHELL, defendants attorney. T. NELSON, plaintiffs counsel. I *. *V W. NELSON, plaintiff ?s attorney. Decision. Motion denied .on plaintiff's deducting $22.87 from the bill as taxed. SAMUEL W. HURD agt. JOHN J. MERRITT. COOTS. December Term, 1844, BRONSON, J"., presiding. MOTION by plaintiff for a retaxation of costs, and that he be allowed. to charge in his bill of costs, interest on the report of referees from the date of their report to the date of the judgment. PER CURIAM. This was an action of tort, and the plaintiff has no right to tax interest with costs ; that the section 3d on page 508 of Session Laws of 1844, is to operate prospectively ; and that as the report of the referees in this cause was before the passage of that act, the act does not apply, although judg- ment was not perfected until the act was passed. 39 NEW-YORK PRACTICE REPORTS. Claiborne agt Boker. M. T. REYNOLDS, defendants counsel M. MITCHELL, defendant's attorney. T. NELSON, plaintiff's counsel. W. NELSON, plaintiff's attorney. Decision. Motion denied with costs. JOHN CLAIBORNE agt. HERMAN BOKER et al. Motion for judgment as in case of nonsuit, because security for costs not filed, irregular. December Tbrm, 1844, BRONSON, /"., presiding. MOTION by defendant for judgment as in case of nonsuit, by reason of the plaintiff's failing to file security for costs. PER CURIAM. Denied on the ground /that the motion is irregular. It should have been for an absolute order that plaintiffs file security for costs. P. CAGGER, plaintiff's counsel. C. G. ECKELL, defendant's attorney. A. S. GARR, plaintiff's attorney. Decision. Motion denied with costs, and ordered that plain- tiff file security for cost in twenty days. NEW-YORK PRACTICE REPORTS. 40 Pier agt. Page. *HENRY PIER agt. ALBERT PAGE. [*40] Where the circuit judge permits a cause to be passed for the day without preju- dice to the plaintiff, where he is ready when the cause is called, and the de- fendant not ; the defendant is not entitled to judgment as hi case of nonsuit, when no opportunity is afterwards afforded to try. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for judgment as in case of nonsuit The cause was called on the first day of the circuit, no one answering for defendant; plaintiff's counsel said to circuit judge, in consideration of defendant's distant residence, that he, although ready to try, would permit the cause to be passed for the day ; provided it should not prejudice the plaintiff, or in any way make plaintiff liable for defendant's costs of pre- paring for trial ; and the judge considered the cause as passed for the day only, and without prejudice to plaintiff. An in- dictment consumed the residue of the circuit, and the cause was not again called. PER CURIAM. The ordering of the judge that cause should pass without prejudice to the plaintiff excused the plaintiff for not trying. C. M. JENKINS, defendants counsel B. W. FRANKLIN, defendant's attorney. S. P. NASH, plaintiff's counsel. C. W. CAMPBELL, plaintiff's attorney. Decision. Motion denied costs to abide event. 40 NEW-YORK PRACTICE REPORTS. Fowler agt. Ha/. JAMES FOWLER agt. JAMES HAY. Defendant's counsel engaged in argument in another court when inquest was taken by plaintiff, is sufficient excuse, to set aside on terms. December Term, 1844, BRONSON, J. t presiding. MOTION by defendant to set aside inquest and subsequent proceedings. The cause was called in its regular order on the calendar and inquest taken at the New- York circuit ; defendant's coun- sel was at the time engaged in an argument in the superior court. Defendant had served and filed an affidavit of merits and when inquest was taken was after his counsel and in- tended to try. PER CURIAM. The defendant's counsel being engaged in argument, in another court, is a sufficient excuse to set aside on terms. J. T. BRADY, defendants counsel J. N. STONE, defendant's attorney. E. MORRILL, plaintiff's attorney. Decision. Motion granted on payment of costs of circuit and of opposing motion. THOMAS B. WATERS agt JOHN HOWARD et al Goers. December Term, 1844, BRONSON, J:, presiding. MOTION by plaintiff for retaxation of costs. The plaintiff attached a vessel, for materials ; a bond was NEW-YORK PRACTICE REPORTS. 40 ______^_^_ ^ _ ^^_ _ ' Barker agt. McBride. given by the defendants, to release her pursuant to statute, and the bond sued. The plaintiff inserted in his bill of costs in the suit on the bond, the costs on the attachment, which the taxing officer refused to allow, on the ground that these costs should have been assessed by the jury, as damages in the suit. PER CURIAM. *The Statute (Session Laws 1840, [*41] p. 134), is conclusive. E. C. BENEDICT, plaintiff's counsel. BURR, BENEDICT & BEEBE, plaintiff's attorneys. EB. CLARK, defendants' counsel. CLARK & PATTISON, defendants' attorneys. Decision. Motion granted no costs given where the court overrule the taxing officer. ABEL HARKER agt. ELISA MCBRIDE, &c. / Defaults taken on the first or second days of the general term in October at Rochester, in causes low down hi the calendar, will be opened on terms, where counsel opposed, residing at a distance, did not arrive in season to argue. December Term, 1844, BRONSON, J. t presiding. MOTION by plaintiff in error to open the default taken in said causes at the last October (general) term, held at Eochester. Issue joined in these causes 15th July last ; plaintiff's attor- ney had omitted to prepare for the argument on the first day of the term, believing from the dates of the issues, that the causes would stand low on the calendar, and consequently not be reached the first day ; his papers were ready, and he in- tended to have his counsel argue them, at the October term ; 41 NEW-YORK PRACTICE REPORTS. Dunn agt. Mason. he had offered defendant's attorney costs of default and subse- quent proceedings, to have default opened, and offered to argue them or submit them, at the October term. Defend- ants' counsel insisted that excuse must be given for default in not being ready (oth Hill, 509) ; defendants were not bound to waive defaults. (12 Wend. 198.) The judge said the court at every term held at Rochester had been through the calendar on the first or second day of the term. But as this seemed not to be generally known among the profession the defaults must be opened on terms. JAMES MONCRIEF, plaintiff's attorney. W. H. TAGGARD, defendants 1 attorney. Decision. Motion granted on payment of costs of October term and costs subsequent to said term and costs of opposing motion. JAMES DUNN agt GEORGE W. MASON et al If costs are asked on a motion to change venue, costs will be given against the mover. December Term, 1844, BRONSON, J., presiding. MOTION for defendants to change venue, with costs. PER CURIAM. In consequence of defendants' asking costs on this motion, they must pay costs. GRAY & HATHAWAY, defendants 1 attorneys. GEORGE B. WOOD, plaintiffs attorney. Decision. Motion granted on payment of costs of opposing motion. NEW-YORK PRACTICE REPORTS. 42 Masters agt. Bailey. ^NICHOLAS M. MASTERS et al agt. JOHN H. BAILEY, [*42] Jr. et al. Where no leave is given at the trial of the cause to turn a case into a bill of ex- ceptions, for the purpose of going to the court of errors, it cannot be given afterwards. December Term, 1844, BRONSON, J"., presiding. MOTION by defendants for leave to turn the case into a bill of exceptions. On the trial of this cause, a verdict was taken for plaintiffs, and exceptions were taking to the ruling and charge of the circuit judge, and it appears that counsel on both sides supposed the cause would be carried to the court of er- rors, for final decision. It seems defendants' attorneys pre- ferred having the cause argued before this court as a case, and it was -so settled ; but supposed there was a clause in it for leave to turn it into a bill of exceptions, until the decision of this court, when defendants' counsel learned there was none. PER CURIAM. This being rather a hard case for defend- ants, no costs are allowed. M. T. EEYNOLDS, defendants' counsel KIMBALL & HINSDALE, defendants 1 attorneys. N. HILL, JR., plaintiffs' coun < 7. McVEAN & REYNOLDS, plaintiffs' attorneys. Decision. Motion denied, without costs. 42 NEW-YORK PRACTICE REPORTS. Smith agt Roberts. JOHN F. SLOCUM agt TBUMAN WATKINS. Where plaintiff was so sick as to be unable to attend to business, when cause might hare been tried at the circuit, held sufficient excuse to stipulate. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for judgment, as in case of nonsuit. Issue was joined 4th April last ; circuit held 23d Septem- ber last. Plaintiff did not notice the cause for trial. The ex- cuse of plaintiff's attorney for not noticing was, that he was sick, and unable to attend to business ; was confined to his room for five weeks previous and up to the time of the circuit W. M. ALLEN, defendant's counsel. E. J. EICHARDSON, defendant's attorney. G. A. YEOMANS, plaintiff's attorney. PER CURIAM. Excuse is sufficient for stipulation. Decision. Motion granted, unless plaintiff stipulate and pay costs. WALTER SMITH agt DAVID EGBERTS et al., Commis- sioners, &c. Defendant, on showing an excuse for not pleading, and plaintiff not showing when the declaration was served, default was set aside, and defendant allowed to plead. December Term, 1844, BRONSON, J., presiding. MOTION by defendant to set aside default and subsequent proceedings. The defendants' grounds of defence are set out at length ; NEW-YORK PRACTICE REPORTS. 42 Furlong agt. Munn. at tlie time of service of the declaration on defendant Roberta (who was the only one served), he was confined to his house with inflammation of the eyes, and could not read, and was so confined and unable to read for more than twenty *days subsequent to the service of the declaration. [*43] The plaintiff's papers do not show the time of the ser- vice of the declaration. E. H. ROSEKRANS, defendants' counsel. ROSEKRANS & FARLIN, defendants 1 attorneys. A. T. WILSON, plaintiff's counsel and attorney. PER CURIAM. The plaintiff's opposing papers; not show- ing the time of the service of the declaration, motion must be granted. Decision. Motion granted with costs. Defendants to have ten days to plead. NANCY J. FURLONG agt. STEPHEN B. MUNN. The appraised valuation of property by appraisers at the time of the distress, is the proper sum to govern the penalty of the replevin bond. December Term, 1844, BRONSON, J., presiding. MOTION by defendant that the penalty of the replevin bond in this cause be increased, or for a new appraisement before the sheriff of New-York. Defendant's facts ; The property replevied was seized by defendant for $900 rent. It consists of millinery articles. The plaintiff stated to divers persons that the property was worth about $1,000. The appraisal before the sheriff was made by the plaintiffs attorney, who valued the property at Plaintiff's facts : Plaintiff is a sub-tenant. Her prop- 43 NEW-YORK PRACTICE REPORTS. Riley agt Van Amrange. erty and that of the original were distrained on. Her part was appraised at $293, and the other part at $600. This ap praisal, made by the appraisers on the distress, was the basis upon which plaintiff's attorney made his valuation. P. J. JOACHIMSSEN, defendant's counsel. WOODRUFF & GOODMAN, defendant's attorneys. T. HASTINGS, plaintiff's counsel. E. G. RANSOM, defendant's attorney. PER CURIAM. The appraised value is that made by the ap- praisers, who acted on the part of the defendant. The motion is denied, but as it is rather undesirable to allow the plaintiff's attorney to be a witness upon this occasion, I shall not give costs to either party. Decision. Motion denied without costs. JOSEPH S. RILEY agt. WILLIAM F. VAN AMRANGE. Where special pleas are deemed frivolous, they should bo noticed as frivolous, not demurred to. Terms upon which default opened, taken at the general term in Rochester. December Term, 1844, BRONSON, J., presiding. MOTION by defendant to set aside default, taken against him at the October (general) term. The declaration in this cause is on. a judgment against de- fendant, obtained in the state of Pennsylvania, and usual money counts and count on account stated, added. Defend- ant pleaded general issue, nul tiel record and four special pleas. Plaintiff replied, and joined issue to two pleas, and [*44J demurred and assigned causes of demurrer *to the other two. Defendant's attorney wrote to his counsel NEW-YORK PRACTICE REPORTS. 44 Lee agt. Tompkins. at Eochester, to take charge and argue the cause for him, and forwarded by mail to him the papers, but they failed to reach him until a default had been taken on the 21st October last. Defendant's attorney states he has had the whole management of the cause for defendant, and that defendant has a good de- fence on the merits to said plaintiff's cause of action, and that the pleas pleaded, and to which plaintiff has demurred, are good and sufficient in law. Plaintiff's counsel would not con- sent to open the default, because he believed the pleas de- murred to, plainly frivolous. E. TOWNSEND, defendant's counsel and attorney. E. L. JoiCE, plaintiff's counsel. PETER WILSON, plaintiff's attorney. PER CURIAM. Plaintiff ought to have noticed the pleas as frivolous. The judge also made a similar remark, as in the case of Harker agt. McBride, and hoped counsel would under- stand that it would be necessary to be ready at the commence- ment of the term, when the court was held at Eochester. Decision. Motion granted on payment of costs of default, and subsequent proceedings and costs of opposing motion. FREDERICK E. LEE agt. GEORGE C. TOMPKINS et al Where defendants, during two years succeeding the confession of judgment, repeatedly promised plaintiff to pay it, and after two years fi. fa. was first issued, a motion by defendants to set it aside for that reason was denied. December Term, 1844, BRONSON, J"., presiding. MOTION by defendants to set aside the fieri facias issued in this cause. Defendants showed that fi. fa. was issued more than two 44 NEW-YORK PRACTICE REPORTS Deeth agt. Purdy. years after judgment entered, and no sci. fa. was issued, and was the only fi. fa. ever issued. The plaintiff replied, by showing that defendants volunteered a confession of judgment in this cause, and at the same time requested no further pro- ceedings to be taken by plaintiff ; during the two years suc- ceeding the entry of judgment the defendants continually promised to pay plaintiff's claim. Plaintiff's counsel argMtt that as the suit was an amicable one, and a stay of execution was requested, and as defendants continually promised to pay plaintiff, there was no surprise on defendants, and the reason for issuing a scieri facias did not apply. (Vide 19 J. R. 173.) JOHN E. DEVELIN, defendants' counsel and attorney. I. F. COWDREY, plaintiffs counsel and attorney. Decision. Motion denied, but without costs. [*45] *SYLVANUS G. DEETH agt. EMERY PURDY et al Terms upon which plaintiff set aside an inquest, taken by defendants in a re- plevin case. December Term, 1844, BRONSON, J., presiding. MOTION by plaintiff to set aside inquest and verdict. This was an action of replevin, an inquest was taken by defendants at the New- York September circuit last Plaintiff could not try the cause on account of the absence of a mate- rial witness, and showed that no notice of trial or inquest had been served by defendants for said circuit. Plaintiff states he has a good cause of action ; showed that a stipulation was entered into between the attorneys, for the respective parties, in writing, that the cause should be considered noticed on both sides. Plaintiff's attorney did not keep a copy of it, but immediately entered it, in substance, in his register ; it NEW-YOKE PRACTICE REPORTS. 45 Durant agt. Cook. was after the time had gone by for noticing the cause, that the stipulation was entered into. P. GANSEVOORT, defendants 1 counsel. C. NAGLE, defendants' attorney. B. TOWNSEND, plaintiffs counsel. E. M. TYSEN, plaintiff's attorney. Decision. Motion granted on payment of costs of circuit and all subsequent costs, and costs of opposing motion. GEORGE W. DURANT agt. SQUARE COOK et al. Defendant's motion to set aside an inquest on terms, denied, where his affidavit of merits filed at the circuit was defective, and a copy of the same used on the motion. December Term, 1844, BRONSON, J"., presiding. MOTION by defendants to set aside inquest and subsequent proceedings. Inquest taken regularly at the last October circuit, Albany, by plaintiff. Defendants' attorney wrote to plaintiff's attorney after the cause had been noticed, to consent to have the cause set down for same day in the second week of the circuit, or to have it go over the circuit, as it stood low down on the calendar. Plaintiff's attorney declined, but thought there might be criminal business sufficient to last one week at least, and advised defendants' attorney to have some one at the fore part of the circuit to prevent a default. Defendants' attor- ney's clerk attended the first day of the circuit, and filed an affidavit of merits. On the third day of the circuit, inquest was taken by default. Defendants' counsel used on this mo- tion a copy of the affidavit of merits filed to prevent an in- quest, the substance of which is as follows, " that they have a good and substantial defence, upon the merits in the above 45 NEW-YORK PRACTICE REPORTS. Burnham agt. Smith. entitled cause, to the promissory note on which this action is brought, thereof as they are advised by their said coun- sel," &c. M. SANFORD, defendants? counsel and attorney. C. M. JENKINS, plaintiff 's counsel. J. JENKINS, plaintiff's attorney. PER CURIAM. The affidavit of merits would not be good, if made for this motion, and as there is no merits [*46] sworn to by defendants on this *motion, and the plaintiff being regular, the defendants cannot be let in on terms. Decision. Motion denied with costs, without prejudice. GIDEON BURNHAM et al. agt. EEBECCA SMITH. Where a plaintiff, after a stipulation that he would reply before trial, entered into a negotiation and promised to reply within a short time, but did not; held, that he must pay costs, on setting aside defendant's judgment for want of a reply. December Term, 1844, BRONSON, J., presiding. MOTION by plaintiff to set aside judgment for costs against plaintiff for not replying to defendant's special plea. Plaintiffs' facts : Action on a promissory note ; plea the gen- eral issue and statute of limitations. In June, 1844, the par- ties stipulate that issue should be considered as joined, and that plaintiff might put in a replication at any time before the trial. On the 7th October the defendant enters the plaintiffs' default for not replying. Defendant's facts : That subsequent to the stipulation, plaintiffs' attorney promised to put in a re- plication within a short time ; he failed to do so. A rule was entered to reply in twenty days, and not replying the default was entered. NEW-YORK PRACTICE REPORTS. 46 Handy agt. Empie. M. T. REYNOLDS, defendant's counsel. JOHN" COOKE, defendant's attorney. P. J. JOACHIMSSEN, plaintiffs' counsel. HIRAM BARNES, plaintiffs' attorney. PER CURIAM. In consequence of the plaintiffs' attorney negotiating subsequent to the stipulation, he must pay costs. Decision. Motion granted on payment of costs of default, and of entering judgment and costs of opposing motion. Plaintiffs to have leave to reply in twenty days after service of this rule. MARVIN HANDY agt. JOHN A. EMPIE. Where an individual takes a bond and mortgage to secure a debt, and subse- quently wishes to raise a part of the amount, and instead of selling the bond and mortgage, applies to the individual who executed them, and gets his prom- issory note for just the amount wanted, which note is discounted by a third person for more than 1 per cent, per annum; held, no usury. December Term, 1844, BRONSON, J!, presiding. MOTION by defendant to set aside judgment and execution on the ground of usury. Defendant's facts : Previous to March, 1839, one Demmon Lowell states he took a bond and mortgage of $1,380 from Adam Empie, to secure part of the purchase money of a farm sold by said Lowell to said A. Empie ; an instalment became due on said bond and mortgage in the spring of 1839, which said A. Empie was unable to pay, and Lowell applied to plaintiff to buy the bond and mortgage ; plaintiff declined, but proposed to said Lowell if he would get Adam Empie's note for $500, and would make a discount of $25 on it, he would let said Lowell have the money. Lowell stated the proposition to Empie, to which he agreed ; and said YOL. I. 5 47 NEW-YORK PRACTICE REPORTS. Handy agt Empie. [*47] Lowell again saw plaintiff and informed him *that A. Empie had agreed to it ; the plaintiff thereupon drew a note for $500, for said A. Empie to sign, payable to said plaintiff or bearer with interest, payable a short time after date. Lowell took the note to Empie, which was signed by him, and he thinks by Levi Empie as surety ; about 3d April, 1889, Lowell presented the note to plaintiff, who refused to cash it unless he deducted $28, to which Lowell consented and re- ceived from plaintiff $472 for the note. Adam Empie states, that on the 5th May, 1841, the interest on this note was paid to plaintiff^ and a new note of $550 given, including the prin- cipal of this note of $500 and $50 due on another note to plaintiff which $550 note was signed by Levi, David, John A., and Jacob Empie, payable to plaintiff or bearer, and the old notes given up to Levi Empie and destroyed. On or about 27th January, 1843, John A. Empie gave plaintiff a bond and warrant of attorney to secure the $550 note and interest, and judgment was thereupon entered up, which is the judgment sought to be set aside on this motion. Plaintiff's facta : Plaintiff states that Lowell offered to sell him a bond and mortgage of Adam Empie, in the spring of 1839, which he declined to buy, but remarked if he had a note he might buy it Some time after this conversation, and about the last of March, 1839, Lowell again called and offered to sell a note he had against Adam Empie and his son Levi Empie for the amount of $500. Plaintiff told him he was not in a condition then to buy, but did not know but he might raise it. Lowell urged plaintiff to buy the note, as he wanted the money very much to pay on his land ; nothing was said about a discount at that time by either ; it was agreed to settle the matter on the 5th April following ; they met on that day, and had for the first time conversation about the terms of the purchase, and they agreed on a discount at that time of $28, and plaintiff paid said Lowell $477 for the note ; the note was executed by Adam Empie and Levi E-npie makers, and drawn payable to said Lowell or bearer, and not to plaintiff or bearer. Plaintiff denies saying to Lowell that if he would procure the note of NEW-YORK PRACTICE REPORTS. 47 Handy agt. Empie. said Adam Empie for $500, and would give him a discount of $25, that plaintiff would let him have the money. Plain- tiff states that he did not write said note for Adam Empie to sign, nor direct or advise said Lowell to procure said note, but said note was taken by said Lowell on his own account, as plaintiff was informed by said Lowell and believes, toward the payment of lands sold by said Lowell to said Adam Ernpie. Plaintiff has the affidavits of four different individuals stating that Lowell's character for truth and veracity is bad. The notes were exchanged with plaintiff and judgment taken against John A. Empie, as before stated. S. P. NASH, defendants counsel. P. RANDALL, defendants attorney. C. STEVENS, plaintijfs counsel. D. LAWYER, plaintiff's attorney. *PER CURIAM. The allegation of usury all rests [*48] on the affidavit of Demmon Lowell. He is impeached. But if we give full credit to his testimony, it does not show any usury in the $500 note, which went into the judgment. Adam Empie was indebted to Lowell in nearly $1 ,400, secured by bond and mortgage. Lowell proposed to sell the mortgage to the plaintiff, but he declined purchasing it. Lowell then got a note from Empie with his sons as sureties for $500, and sold it to the plaintiff for $472. There is nothing to show that this was not a valid note in the hands of Lowell. It was given for so much of the debt due to him from Empie, and when Empie pays the note, he will have paid the whole $500 towards the mortgage debt to Lowell. Decision. Motion denied with costs. 48 NEW-YORK PRACTICE REPORTS. Rust agt. Rowo. SAMUEL RUST agt. WILLIAM ROWE. Where plaintiff served a sufficient bill of particulars, after service of notice of motion for judgment of non pros., the motion was denied, on plaintiff's paying $10 cost*. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for judgment of non pros, or discon- tinuance against the plaintiff for his neglect to comply with the peremptory order for further particulars. It appears on the part of the defendant that this is an action of assumpsit. Plaintiff furnished bill of particulars about 9th May, 1844, for $861 due plaintiff as per account stated in gross, about the month of August, 1839, and interest thereon. A further bill of particulars was served by plaintiff on the 9th September last, under an order of a judge, which was not satisfactory to defendant as to items, and another order on the 21st of September last was procured, requiring plaintiff par- ticularly to furnish bill with items, considerations, names, dates, circumstances, &c., or show cause on 25th September last ; on the 25th, plaintiff not having furnished another bill nor shown sufficient cause, an order was made requiring plain- tiff's proceedings to be stayed until such bill should be fur- nished. On the 1st of October last no further bill having been served, this motion was noticed and served on plaintiff's attor- ney. It appears on the part of the plaintiff immediately after the order of the 25th September, plaintiff set about carefully examining his account in order to furnish a different bill of particulars ; and while he was so engaged the papers for this motion were served. On the 14th November last, plaintiff's attorney served on defej&dant's attorney another bill of par- ticulars containing a literal copy of the original statement of an account between plaintiff and defendant with explanations for the balance appearing to be due plaintiff from defendant, and for which this action is brought, which account was [*49] stated and balance struck in August, 1839, *plaintiff's NEW-YORK PRACTICE REPORTS. 49 Van Schoyk agt. Jacoby. attorney offered to pay defendant's attorney costs of this motion to be taxed on the 14th November last, when the last bill of particulars was served, which defendant's attorney declined to accept, and gave plaintiff's attorney notice that he should not receive any other bill of particulars than such as conformed to the peremptory order. K. W. PECKHAM, defendant's counsel. H. S. DODGE, defendants attorney. A. TABER, plaintiff's counsel. J. M. VAN COTT, plaintiff's attorney. PER CURIAM. Since notice was given of the motion the plaintiff has served a sufficient bill of particulars. He has now confined his claim to the balance found in his favor on an ac- count stated between the parties in 1839, which account con- sisted of five items for cash lent and advanced to the defend- ant ; interest is also claimed, dates and sums are given with sufficient particularity. The motion is therefore denied on the plaintiff's paying $10 costs of the same. Rule accordingly. STEPHEN VAN SCHOYK, Plaintiff in Error, agt. SAMUEL JACOBY, Defendant in Error. A party is not entitled to a rule to assign errors, until the writ of error has been returned and filed. Until this is done, the court of review does not become possessed of the cause. December Term, 1844, BRONSON, /., presiding. MOTION by plaintiff in error to set aside judgment of non pros, and subsequent proceedings on the part of defendant in error. This action was commenced in a justice's court, and judg- ment rendered for defendant in error ; an appeal was brought 49 XKW-YORK PRACTICE REPORTS. Van Schoyk agt. Jacoby. to the court of common pleas of Delaware county, and judg- ment rendered for defendant in error, in January, 1843 ; a writ of error was brought by plaintiff in error on the last judg- ment to this court, 28th February, 1843. While proceedings were being had to bring the judgment in review before this court and on the 2 1st March last, the parties settled all claims, dues and demands between them, including said judgment, and passed receipts ; Also agreed that the writ of error in this cause should be no further prosecuted ; the writ of error and return was not filed with the clerk of this court on the date of this motion ; on the 9th September last defendant in error entered judgment against plaintiff in error, in this court. On the part of defendant in error, it appears that this judg- ment was assigned to defendant's attorney to pay for services, as attorney and counsel in this cause. Defendant's attorney gave notice to plaintiff-m error on 20th November, 1843, that said judgment and costs belonged to him, and that plaintiff in error must not settle with defendant or any other person ; that defendant's attorney should hold him liable for the whole amount On the 28th September, 1843, defendant's attorney entered a rule requiring plaintiff's attorney to tran- [*50] scribe the record and proceedings in eight days *and gave notice. It also appears that on the last December, 1843, the clerk of the county made return to said writ of error and let one of plaintiff's attorneys have it to transcribe, and then to file with the clerk of this court. On the 14th March last, defendant's attorney entered the usual rule for plaintiff to assign errors, and served notice on plaintiff's attorneys; on the 13th of May last, defendant's attorney entered plaintiff's default for not assigning errors, and on the 9th September last, perfected his judgment. A, TABER, plaintiff's counsel. LUSK & PALMER, plaintiff's attorneys. A. K. MAYNARD, defendants counsel and attorney. PER CURIAM. The defendant is not entitled to a rule to NEW-YORK PRACTICE REPORTS. 50 Royce agt. Mott. assign errors until the writ of error has been returned and filed until that is done, the court of review does not become possessed of the cause. In this case the writ of error was never returned ; and yet the defendant has ruled the plaintiff to assign errors, entered his default and perfected a judgment of non pros. This was clearly irregular, and the judgment must be set aside. The defendant had reason to believe the writ had been returned, but that only goes to the question of giving costs on this motion. So too the alleged delay of the plaintiff in moving may go to the question of costs, but the case is not put that the motion can be wholly denied on the ground of delay. There is a further objection to the judg- ment ; it was entered after the matter had been settled by the parties ; and here a question is made about the attorney's lien for costs, or his claim as assignee of the original judgment. He says, the judgment was assigned to him, but does not say when ; it is a little uncertain on the papers whether he means to assert anything more than a lien. Nothing is decided in relation to this branch of the case, should it come up again the facts will probably be more clearly set forth. Under the special circumstances of the case no costs are ordered. Decision. Ordered that the default of the plaintiff in error for not assigning errors, and all subsequent proceedings on the part of the defendant in error, including the judgment of non pros., be set aside for irregularity. AMOS ROYCE agt. WILLIAM MOTT. Where plaintiff's attorney received defendant's special pleas, which were not veri- fied, on the day that he entered default, and returned them because not served in time, held irregular: they were not returned, because they were defective. December Term, 1844, BRONSON, J., presiding. MOTION by defendant to set aside default and subsequent proceedings for irregularity. 50 NEW-YORK PRACTICE REPORTS. Royce agt. Mott Declaration in covenant, served on defendant 28th Septem- ber, 1844. On the 18th October, defendant's attorney mailed pleas and notice of retainer to plaintiff's attorney and paid postage. On the 19th October they were received by [*51] plaintiff's attorney. On the 21st October *plaintiff 's attorney returned said pleas to defendant's attorney by mail : on said pleas were indorsed, " Received per post, Oc- tober, 19, '44." In the letter, plaintiff's attorney wrote as fol- lows : " Your plea (inclosed) came after default entered, and hence same is returned you." It appears on the part of the plaintiff that default was entered on the 19th October, 1844 ; that plaintiff's attorney received on the 19th October past 12 o'clock at noon, by mail from defendant's attorney, plea of non estfactum, and special pleas and notice of retainer in the cause ; that none of the pleas were verified by affidavit. On the 21st October, the pleas were returned as before stated. On the 25th October, plaintiff executed writ of inquiry ; and on the 30th October, perfected judgment ; on request of defendant's attorney, refused to waive default. A. TABER, defendants counsel C. G. DAY, defendant's attorney. R. J. HlLTOX, plaintiff's counsel. E. QuiN, plaintiff's attorney. PER C URIAH. The pleas were not returned because they were not verified, but because they were not served in time. That was a mistake, and the plaintiff is irregular. Decision. Ordered that the default and subsequent proceed- ings on the part of plaintiff be set aside for irregularity, with $10 costs, to be paid by the plaintiff; and that the defendant have twenty days to plead. NEW-YORK PRACTICE REPORTS. 51 Osborn agt. Van Cort. it WILLIAM BAXTER agt. WILLIAM SEAMAN. Affidavits must be entitled in the suit in which relief is sought. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for retaxation of costs. Seaman, the defendant in the above suit, commenced an ac- tion of ejectment in this court against William Baxter, the plaintiff in this cause. Judgment was obtained in the eject- ment suit in favor of the defendant Baxter, against said Sea- man, Baxter then brought the above suit on the judgment ; and Seaman on affidavits entitled in the suit on the judgment, moves to retax the costs included in the judgment E. SANDFORD, defendant's counsel. WESTERN & EDWARDS, defendants attorneys. J. E. BURRILL, JR., plaintiff's counsel. H. Or. ONDERDONK, plaintiffs attorney. PER CURIAM. The affidavits must be entitled in the cause in which relief is asked. Decision. Motion denied with costs, without prejudice. WILLIAM E. OSBORN agt. CHARLES J. VAN CORT. Plaintiffs excuse, and terms upon which he was permitted to stipulate a second time. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for judgment as in case of nonsuit af- ter stipulation. 52 NEW-YORK PRACTICE REPORTS Wilmarth agt. Oatfield. The plaintiff is allowed to stipulate a second timo f*52] in this cause, *because of the sickness of a material witness residing in Tompkins county, whose attend- ance the plaintiff could not procure at the September circuit in Kings county, where the venue is laid, due diligence hav- ing been used by plaintiff to procure the attendance of the witness previous to the circuit. No costs allowed on the mo- tion, for the reason that plaintiff had tendered a second stipu- lation, and there was doubt whether or not the defendant had accepted it. The judge thought the plaintiff considered it ac- cepted. J. T. BRADY, defendant's counsel. A. J. SPOONER, defendant's attorney. CHARLES TAYLOR, plaintiff's counsel J. DIKEMAN, JR., plaintiff's attorney. Decision. Motion granted, unless plaintiff stipulate and pay costs of preparing for circuit, without costs of this motion to either party. WILLIAM WILMARTH, plaintiff in error agt. JOHN H. GAT- FIELD, defendant in error. BickneoB of attorney, sufficient excuse to open default taken at general term. December Term, 1844, BRONSON, /., presiding. MOTION by defendant in error to set aside default, taken in this cause on the 21st day of October last, (October general term.) Defendant's attorney was taken sick during the latter part of September last, and remained so that he was unable to at- tend to business, until about the 21st of October ; for that rea- son, was unable to prepare the papers in this cause, and have NEW-YORK PRACTICE REPORTS. 52 Young agt. Carpenter. them in the hands of counsel at the commencement of October term. He did not employ any other person to do it, for the reason he supposed it not possible for so late an issue as this (31st July last) to be reached on the calendar during the first week of the term. CHARLES TAYLOR, defendant's counsel. F. SAYRE, defendant's attorney. P. CAGGER, plaintiff 's counsel. A. L. BROWN, plaintiff's attorney. PER CURIAM. The sickness of defendant's attorney is suf- ficient excuse. Decision. Motion granted on payment of costs of noticing the cause, the costs of October term, subsequent proceedings and costs of opposing motion. *NATHAN YOUNG agt. JACOB CARPENTER. [*53] Terms imposed on defendant in setting aside plaintiff's judgment nisi, Ac., on filing report of referees, and allowing defendant to make a case. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for leave to make a case in this cause, to set aside the report of the referee therein, on the ground of surprise in filing report, &c. The referee made and delivered his report to plaintiff's at- torney on the llth November, 1844, and informed one of de- fendant's attorneys of it same day. Plaintiff's attorney, on the same day, filed the report and entered rule for judgment, final nisi, &c., no notice of filing said report was given to de- fendant's attorney. On the 16th November, plaintiff's attor- ney served bill of costs and notice of retaxation on defendant's attorne} 7 . 53 NEW-YORK PRACTICE REPORTS. Bromaghiro agt. Goree E. J. DILLON, defendants counsel. WARING & RALPH, defendant's attorney. CHARLES TAYLOR, plaintiff's counsel. J. DIKEMAN, JR., plaintiff's attorney. Decision. Ordered that the judgment be set aside on pay- ment of $10 costs of opposing motion, and the costs of pro- ceedings subsequent to filing the report of referee, with leave to plaintiff to serve opposing affidavits, within ten days. H4NNAH BROMAGHIM agt JOHN GORSE. Objections to defendant's bill of costs ; merely on motion for judgment as in case of nonwiit, is defending on the wrong ground : should be appeal from taxation. December Term, 1844, BRONSON, J. t presiding. MOTION by defendant for judgment as in case of nonsuit. Issue was joined on 5th August last, noticed for trial by plaintiff August 15th, for circuit held on 21st October. On the 10th October a countermand of the notice of trial was served, defendant made out his costs for preparing for trial previous to countermand, and had them taxed on notice ; costs were served and demanded of plaintiff on 28th October, and have not yet been paid. The plaintiff's papers in oppo- sition to this motion are entirely explanations of and objec- tions to the defendant's bill of costs, as taxed and served previous to countermand, and an excuse for not opposing taxation* R J. HILTON, defendant's counsel. A. BECKER, defendant's attorney. M. SANFORD, plaintiff's counsel and attorney. PEB CURIAM. Plaintiff defends on the wrong ground ; he hould have appealed from taxation. NEW-YORK PRACTICE REPORTS. 53 People agt. Mayor, &c., of Brooklyn. Decision. Motion granted, unless plaintiff pay defendant costs of preparing for circuit up to the time of countermand, to be retaxed on due notice, and also ten dollars costs of this motion. THE PEOPLE ex rel NORRIS L. MARTIN agt. THE MAYOR AND COMMON COUNCIL OF BROOKLYN. Excuse and terms for opening default taken at general term in Rochester. December Term, 1844, BRONSON, J"., presiding. MOTION by defendants to set aside default taken on the first day of the last October (general) term. This case is similar to previous motions at this term *for the same purpose. The counsel for the corpora- [*54] tion supposing the case would not be reached until late in the October term, omitted to attend, and default was taken on the first day of term. The whole calendar having been called through on the first day, and thus the counsel was surprised. N. F. WARING, defendants' counsel and attorney. J. T. BRADY, plaintiffs 1 counsel. H. B. DURYEA, plaintiff* 1 attorney. The judge repeated his former remarks to counsel in rela- tion to the term held at Rochester, that the calendar had been called through on the first or second day of the term ever since the court had been held at Rochester. Decision. Default set aside, on payment of the costs of the default and subsequent proceedings, and seven dollars costs of opposing motion. 54 NEW-YORK PRACTICE REPORTS. Pike agt. Power. JOHN MILLER agt. ISRAEL PALMER. December Term, 1844, BRONSON, J"., presiding. MOTION by defendant to change the venue. This motion was denied on the ground that plaintiff had lost a circuit by defendant's order to stay proceedings. De- fendant prepared his papers and gave notice for the motion at the October special term : the papers proved to be defect- ive ; the motion was not then made ; papers were withdrawn and corrected, and the motion made at the present term. PER CURIAM. Too late. Plaintiff has lost a circuit L. H. PALMER, defendant's counsel. T>. MANN, defendant's attorney. C. H. BRAMHALL, plaintiff's counsel and attorney. Decision. Motion denied with costs. SOLOMON M. PIKE agt. JOHN H. POWER. December Term, 1844, BRONSON, J., presiding. MOTION by plaintiff to set aside default for not declaring, &c., for irregularity. The plaintiff does not state in his affidavits that a default has been entered. F. H. HASTINGS, plaintiff's counsel. J. H. STEWART, plaintiff's attorney. A. TABER, defendant's counsel. J. H. POWER, defendant's attorney. NEW-YORK PRACTICE REPORTS. 54 Van Nameo agt. Jones. Denied on the ground that plaintiff does not show that any default has been entered in the cause. Decision. Motion denied with costs, without prejudice. *SAMUEL MILLER agt. BENJAMIN AMES. [*55] December Term, 1844, BRONSON, J., presiding. MOTION by defendant to change the venue. C. B. DRAKE, defendants attorney. CLARK & THOMPSON, plaintiff's attorneys. Denied on the ground that defendant does not disclose in his affidavit, that he stated to his counsel what he expected to prove by his witnesses. Decision. Motion denied with costs. JOSHUA VAN NAMEE et al agt. JOHN JONES. A default for not pleading opened on terms, where plaintiff was regular, for the reason that there being an open running account between the parties, it would be better to let a jury pass upon it. December Term, 1844, BRONSON, J., presiding. MOTION by defendant to set aside default for not pleading, and all subsequent proceedings on terms. It appears from defendant's papers that his excuse for not pleading to the declaration, after service upon him, was, that he was unacquainted with such business, and supposed a suit must be commenced by service of process by a sheriff. He 55 NEW-YORK PRACTICE REPORTS. Van Patten agt. Austin. swears that the suit is commenced on an open account which has been running some time between him and plaintiffs. Since suit was commenced, has had interviews with plaintiffs in re- lation to settlement ; also swears to merits. Plaintiffs state the suit is brought to recover the balance due on a bill of lumber, the amount of which defendant has repeatedly promised to pay. Since suit commenced he had requested some of the amount deducted for certain items. The clerk of plaintiffs' attorney explained to defendant the object of the declaration at the time of service ; told him to give it to a lawyer, or he would have judgment against him in twenty days. Plaintiffs are regular. HORACE DRESSER, defendants counsel. B. B. PHELPS, defendants attorney. N. HILL, JR., plaintiffs' counsel. L. C. CLARK, plaintiffs' attorney. '. Default opened on the ground that there being an open running account and disputed items, it would be well to let a jury pass upon it after hearing the defence. t Decision. Motion granted, on payment of costs of default and subsequent proceedings, and seven dollars costs of oppos- ing motion, judgment to stand as security. JOHN J. VAN PATTEN agt. JOHN AUSTIN. December Term, 1844, BRONSON, J., presiding. MOTION by defendant to change venue. Declaration served twentieth of August last, and issue joined fourth of September. NEW-YORK PRACTICE REPORTS. 56 Gilbert agt. Chapman. *S. F. SHEPARD, defendants counsel. [*56] A. GALLUP, defendants attorney. N. HILL, JR., plaintiff's counsel. S. W. JONES, plaintiffs attorney. Motion too late, might have moved at September term, and saved a circuit. Decision. Motion denied with costs. LEMUEL GILBERT agt. WILLIAM CHAPMAN. December Term, 1844, BRONSON, /"., presiding. MOTION by defendant to change venue. The plaintiff swears to the greatest number of witnesses; but his affidavit is defective in not stating that his witnesses are material on the trial of the cause : that part of the affidavit is as follows, " that he has fully and fairly stated the case to his said counsel in this cause, and disclosed to him the facts w^hich he expects to prove by each and every of his said witnesses above named, and that he cannot safely proceed to the trial of this cause, as he is also advised by his said counsel," &c. J. DAVIS, defendant's counsel. DAVIS & BANCROFT, defendants attorneys. A. TABER, plaintiff's counsel. EAYMOND & CLARK, plaintiff's attorneys. Decision.- Motion granted. VOL. L 6 56 NEW-YORK PRACTICE REPORTS. Wolfe agt. Wynkoop. HENRY BOUGHTON agt. GEORGE LOCKWQOD. December Term, 1844, BRONSON, Ji, presiding. MOTION by defendant for judgment as in case of nonsuit. The defendant has his papers entitled in the cause with the plaintiff's name Henry Boughton. The plaintiff has his en- titled Harvey Boughton. Plaintiff's attorney swears that the only cause pending against George Lockwood, in which he is attorney, is the one in favor of Harvey Boughton. S. P. NASH, defendant's counsel. PADDOCK & COOKE, defendant's attorneys. R. J. HILTON, plaintiff's counsel. A. BECKER, plaintiff's attorney. PER CURIAM. Defendant's papers appear to be entitled wrong. Decision. Motion denied with costs, without prejudice. JOEL WOLFE agt. EVERT WYNKOOP, Impleaded, &c. Where defendant filed his petition as a bankrupt, before suit commenced, bat discharged after judgment, the judgment waa opened on terms, with leave to defendant to plead hia discharge. December Term, 1844, BRONSON, J., presiding. MOTION by defendant Wynkoop for a perpetual stay of proceedings on the fieri facias issued in this cause, on the ground that said defendant has been discharged as a bank- rupt [*57] *The action is brought on a promissory note signed by defendant Wynkoop. Commenced on the 28th NEW-YORK PRACTICE REPORTS. 57 Travis agt. Hadden. January, 1843. Defendant did not appear and plead. Judgment perfected February 23, 184:3. On the 14th Janu- ary, 1843, defendant presented his petition as a bankrupt, including the note in this suit, and was discharged June 5th, 1843. No fraud alleged in the discharge. S. F. SHEPARD, defendants 1 counsel. FORBES & SHELDON, defendants' 1 attorneys. J. EDWARD, plaintiff's counsel. S. H. TERRY, plaintiff's attorney. PER CURIAM. The proper course seems to be in such a case, to open the judgment, and grant the defendant leave to plead his discharge on payment of costs. Decision. Ordered that said defendant be allowed to plead his discharge in bankruptcy, on payment of costs of judg- ment and seven dollars costs of opposing this motion. Plain- tiff to have leave, in twenty days thereafter, to discontinue without costs. GEORGE "W. TRAVIS agt. JOHN B. HADDEN. Terms upon which defendant was allowed to open default and amend a special plea, where his excuse was a misapprehension of the practice. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for leave to amend his second and amended plea of bankrupt's discharge, by setting out facts to show that the court had jurisdiction. Declaration served 9th April, 1844. On the 30th April, pleas were served. ' On the 3d July, a demurrer to defendant's second plea was filed, and on the 8th July served. On the 2d August, an amended plea was served, and on the 12th 57 NEW-YORK PRACTICE REPORTS. Starbuck agt Hall. August a demurrer to that was filed and served, and rule re- quiring defendant to join in demurrer. On the 8th October default was entered for not joining in demurrer, and cause noticed for trial on the issue of fact for November circuit. Defendant states until after the September special term, he was ignorant of the decision and rule of practice in this court in 5 Hill, 327 ; as soon as he had learned such practice, he prepared papers and served them for a motion at October special term, but they were served too late for said term, and he makes the motion at the next and present term. S. F. SHEPARD, defendant's counsel. BASHFORD & KETCHUM, defendants attorneys. A. TABER, plaintiffs counsel. WM. NELSON, plaintiffs attorney. Plaintiff's counsel insists the motion is too late, it should be denied on the ground of delay. Defendant's counsel insists, that under the state of facts as shown by defendant, his being unaware of the decision of this court and using due diligence after he ascertained such deci- sion, should be a sufficient excuse. [*58] * Decision. Motion granted on payment of costs of default, circuit and demurrer and costs of opposing motion. NATHANIEL STARBUCK et al. agt. JONATHAN HALL et al. Defendant was allowed a commission, without a stay, where the cause had once been put over a circuit by defendant, on account of the absence of the same witness. December Term, 1844, BRONSON, J., presiding. MOTION by defendants for a commission. Issue joined 9th February, 1844. Cause noticed for April NEW-YORK PRACTICE REPORTS. 58 Luyster agt. Hoag. circuit, and put over by defendants on account of the absence of the same witness, for which a commission is asked for. Cause noticed for November circuit, and a day or two pre- vious to the circuit, notice of this motion was served. De- fendants state they fully expected to be able to procure the attendance of the witness, until the notice of this motion was served, and that he is a material witness for defendants. Plaintiffs allege delay to be the object of the motion. S. P. NASH, defendants' counsel. BOCKES & NASH, defendants' attorneys. B. PEARSON, plaintiffs' counsel. J. P. ALBERTSON, plaintiffs' attorney. .'~ ;ui?>..ii- & <~,^T >" KWb&fea ^hfcffh sill ij y;.-: Decision. Motion granted, without stay, on payment of costs of preparing and attending the last Kensselaer circuit, and costs of opposing motion. JOHN P. LUYSTER et al agt. PETER HOAG. COSTS. December Term, 1844, BRONSON, */"., presiding. MOTION by plaintiff for retaxation of costs. Action replevin ; verdict for defendant. On taxation plain- tiffs objected, first to the charge of fifty cents for furnishing proof of service of the defendant's plea, on the ground that such plea was the general issue or non cepit, and no proof was necessary ; also objected to the charge for proof of the service of notice of trial, on the ground that no such proof was necessary. Second, objected to the allowance of sixteen copies of the subpoena and for serving the same on sixteen witnesses, on the ground that there was no evidence before the commis- sioner that the copies had been made or served, and also on 58 NEW-YORK PRACTICE REPORTS. Luyster agt. Hoag. the ground of the insufficiency of the affidavit of attendance of witnesses. Third, objected to the charge of $3 for copy of pleadings, on the ground that a copy was furnished to the court by the plaintiff. Fourth, objected to the allowance of $60 for travel and attendance of defendant's witnesses, on the following grounds : First, that the affidavits of travel and attendance did not state the place of residence of each witness, and the distance he had to travel to reach court ; second, that there was no evidence that such witnesses were ma- [*59] terial *to the trial of the issue joined in, or were sub- poenaed in said cause, and attended in good faith ; third, that more than three days were charged for some of the witnesses upon the ground that the cause was, on the first day of the circuit, set down for Tuesday of the second week, and was actually tried on Wednesday of the second week. Fifth, objected to fifty cents for sheriff summoning jury, on the ground that the cause was put upon the calendar by the plaintiff and tried on his motion. Sixth, objected to the al- lowance of more than one copy of the bill of costs. P. CAQGER, defendants counsel. S. BARCULO, defendants attorney. S. P. NASH, plaintiff's counsel. N. REEVE, plaintiff's attorney. i Decision. Ordered that the items one and six, mentioned in moving affidavit, be struck out, amounting to $1.50, and ordered relaxation as to two and four, because the affidavit must show the witnesses material and necessary ; and as to ob- jections three and five, ordered that they be taxed to the defendant on proof that defendant furnished copy pleadings and put cause on calendar. NEW-YORK PRACTICE REPORTS. Cooper agt. North. EBENEZER COOPER agt. JOHN NORTH el al. Interest taxed as costs on a verdict, under the act of May 7, 1847, applies onlv to verdicts and reports rendered and made after its passage. December Term, 1844, BRONSON, J., presiding. MOTION by plaintiff for retaxation of costs with instructions. This was a special action on the case, for diverting water from the plaintiff's mills. A verdict was rendered for the plaintiff in June, 1841 : proceedings on the verdict being stayed, on the making of a case, judgment was not rendered thereon until January, 1844. In June, 1844, the plaintiff's costs were duly taxed and the record signed, filed and dock- eted. And now the plaintiff moves for a retaxation of costr with instructions to the taxing officer to tax with them the interest on the verdict from the time the same was rendered. GK STOW, defendant's counsel and attorney. A. TABER, plaintiff's counsel. G. M. BECKWITH, plaintiff's attorney. **-'., PER CURIAM. The act of May 7th, 1844 (Session Laws, p. 508), is not retrospective in its operation. It applies only to verdicts and reports rendered and made after its passage. Decision. Motion denied with costs. 60 NEW-YORK PRACTICE REPORTS. Cowenhoven agt Ondordonk. |"*60] *In the matter of the application of TEUNIS T. COWENHOVEN agt. HORATIO G. ONDERDONK. Where 0. purchased of U. a judgment against C., and afterwards 0. told 0. ho purchased it for him (G), held, that C. could not compel an assignment December Term, 1844, BRONSON, /., presiding. MOTION by Cowenhoven for an order directing Onderdonk to transfer to said Cowenhoven a certain judgment. J. J. Ullman recovered a judgment against Cowenhoven for $62.51. Onderdonk recovered a judgment against said Cowenhoven in March last. Onderdonk subsequently became the purchaser of the Ullman judgment. Cowenhoven states Onderdonk had told him, that he had purchased the judg- ment of him (Cowenhoven). It did not appear whether this was before or after Ouderdonk had purchased the judgment. The plaintiff also produced the affidavit of Ullman that On- derdonk had represented himself as the agent of Cowenhoven and an affidavit proving a tender to Onderdonk of the amount he had purchased it for. Cowenhoven now applies, that Onderdonk assign the judgment to him or satisfy it, on the payment of the purchase money. Onderdonk produced an affidavit denying that he purchased it as the agent of Cowen- hoven. J. E. BURHILL, JR., defendant's counsel H. G. ONDERDONK, in propria, persona. A. TABER, plaintiffs counsel. WESTERN & EDWARDS, plaintiffs attorneys. The court denied the motion, on the ground, among others, that although Onderdonk had informed Cowenhoven, after he had bought the judgment, that he had purchased it for him, still he could not compel him to assign ; and also because Ull- man, the judgment creditor, was the party, if any, to complain. Decision. Motion denied, with costs NEW-YORK PRACTICE REPORTS. 60 Dutchess County Bank agt. Ibbotson. THE PRESIDENT, &c. OF THE DUTCHESS COUNTY BANK agt. HENRY IBBOTSON. Excuse and terms upon which defendant was allowed liberty to make a case or bill of exceptions, after four days had elapsed after inquest at the circuit. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for liberty to make and serve a case or bill of exceptions, notwithstanding more than four days have elapsed since the inquest was taken. Inquest taken on a promissory note at Dutchess circuit held in October last. Defendant appeared and cross examined plaintiff's witnesses, and took exceptions to the decisions of the circuit judge in admitting testimony, on the ground of in- sufficiency of the evidence to sustain plaintiff's cause of ac- tion. Defendant moved before inquest was taken, to put the cause over the circuit, on account of the absence of witnesses, which motion was denied. Defendant swears to merits, and alleges as an excuse for not procuring an order within four days, that his attorney residing in New- York did not get the letter written by defendant's counsel on the [*61] day of the inquest, in time to procure such order. J. E. BURRILL, Jr., defendants counsel. P. BURROWS, defendant's attorney. P. CAGGER, plaintiff" 1 s counsel. C. W. SWIFT, plaintiff's attorney. Decision. Ordered that on payment of plaintiff's costs of circuit and subsequent proceedings, and of opposing motion, defendant be allowed fifteen days from date of rule to make and serve a case or bill of exceptions. Plaintiffs to be at liberty to put cause on calendar for January term, without serving notice of argument. 61 NEW-YORK PRACTICE REPORTS. Mather agt WardwelL In the matter of WILLIAM WALSWORTH. December Term, 1844, BRONSON, /., presiding. MOTION to set aside the attachment against the estate of William Walsworth, an absconded or concealed debtor. N. EfiLL, JR., counsel for motion. FITCH & SHELDON, moving attorneys. E. W. PECKHAM, counsel opposed. 0. A. THORP, attorney opposed. Denied with costs, without prejudice, on the ground that the judge's report on the proceedings has not been filed. HENRY H. MATHER agt. CHARLES WARDWELL. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for judgment, as in case of nonsuit. G. B. KELLOGG, defendant's counsel. HENRY NICOLL, defendant's attorney. J. ROMEYN, plaintiff's counsel. JNO. B. BRITTON, plaintiff's attorney. Denied, with costs, without prejudice, on the ground that defendant does not state in his papers tJiat the cause was not tried. He states that the cause was called and passed, and the younger issues were tried, and that this cause might have been tried in its regular order on the calendar. 'j .' :> ' NEW-YORK PRACTICE REPORTS. 61 Warren agt. Campbell. JAMES WARREN, JR. et al. agt. HENRY CAMPBELL. Plaintiff allowed to add new counts to his declaration, upon terms, after issue joined, and defendant had examined a witness on commission. December Term, 1844, BRONSON, J., presiding. MOTION by plaintiffs for leave to amend their declaration by adding such new counts thereto, upon the same cause of action already stated in said declaration as may be necessary and proper, truly to set forth the plaintiff's cause of action, and to enable them to try the merits. This is a special action on the case for deceit in procuring goods of plaintiffs ; issue joined 18th May last. Defendant has examined a witness by commission. Cause noticed for trial at September Monroe circuit, for fourth *Tues- [*62] day. Plaintiffs discovered new and material evidence on the 28th of September, which they allege cannot be given on the trial under the counts as they now stand. D. CADY, defendants counsel. H. GAY, defendants attorney. J. EDWARDS, plaintiffs 1 counsel. MATTHEWS & HUSBANDS, plaintiffs' attorneys. Defendant objects on the grounds that it is too late after testimony has been taken, and alleges actions of this kind should be put upon the same ground, as to amendments, as penal actions, where it is not done except under very special circumstances. (Graham's Practice 654, and cases there cited.) Plaintiffs' papers show that the newly discovered evidence has no bearing upon defendant's testimony taken by commis- sion, and the application was not induced by that. Decision. Motion granted on payment of costs opposing motion and the costs of a new commission, if one shall become necessary, and the costs of the plea. NEW-YORK PRACTICE REPORTS. Mason agt. Bidleman. WILLIAM A. WHARTON agt. JOHN BARRY. December Term, 1844, BRONSON, J., presiding. MOTION by defendant to change venue. R. J. HILTON, defendants counsel. A. BECKER, defendant's attorney. J. DAVIS, plaintiff's counsel. 0. H. CHITTENDEN, plaintiff's attorney. Denied with costs, on a defective affidavit of merits. That part of the affidavit is as follows : " The defendant has a good substantial defence therein upon the merits, as he is advised by the counsel above named, and verily believed to be true." The word believed should be believes. Plaintiff 's counsel alleged the same point had before been decided by Judge Co WEN. ANTHONY MASON agt DANIEL BIDLEMAN. Defendant not allowed to set aside an inquest, where be appeared and cross-ex- amined witnesses, took exceptions, and made a case, which was settled by the circuit judge. An affidavit of merits, made by defendant's agent, defective, where there was no excuse why it was not made by defendant himself. December Term, 1844, BRONSON,e7"., presiding. MOTION by defendant to set aside verdict taken on an in- quest Defendant's papers show that at the circuit an affidavit of merits was filed and served, which was sworn to by defend- ant's general agent, stating that such agent signed the note on which the suit was brought, and knew the facts of the case, &c., but gave no excuse why the affidavit was not made by the de- NFW-YORK PRACTICE REPORTS. 63 Do Dewandelaer agt. Hager. fendant. The circuit judge held the affidavit of merits insuf- ficient and permitted an inquest. *Plaintiff 's papers show, that on the inquest, the de- [*63] fendant's counsel appeared, cross-examined the plain- tiff's witnesses, offered evidence which was overruled, took exceptions, and that since the trial a case has been made by defendant's attorney, and settled by the circuit judge. A. TABER, defendant's counsel. E. CARTER, defendant's attorney. C. M. JENKINS, plaintiff's counsel. B. L. BESSAC, plaintiff 's attorney. PER CTJRIAM. -The inquest was regular, and although the affidavit of merits produced on the motion is sufficient, yet the defendant having made a case, must rely upon it ; he cannot take the double chance of defeating his adversary. jnxfiJKi hove: 4 f;Vi;il jMj;-r-'ic-. .H.tr>: Decision. Motion denied without prejudice. GANSEVOORT DE DEWANDELAER agt. ADAM H. .HAGER et al. Motion to set aside default, etc., denied with costs, for the reason that the mo- tion should have been made before : too much delay. December Term, 1844, BRONSON, J"., presiding. MOTION by defendant Hager to set aside default and subse- quent proceedings. This suit was commenced early in April last, and judgment perfected therein by default on the 3d of May last. Defend- ant's agent, who resides in New- York, who has charge of the subject matter of this suit, did not get the declaration, which (J3 NEW-YORK PRACTICE REPORTS. Borst agt Bovee. was served on defendant, (who resides in Schoharie county,) until judgment had been perfected. That immediately on learning of a judgment, he took measures to make application at August term, to set same aside, but not being able to pro- cure the necessary papers, the motion was not made until Sep- tember special term, when the same was denied with costs, without prejudice, on the ground that no sufficient excuse was shown for not making the motion at the August term. After September term, lie took measures to procure the necessary papers for the motion, and did not succeed in getting them completed until the middle of-October. M. T. REYNOLDS, defendant 1 s counsel. JOHN W. EDMONDS, defendant's attorney. N. HILL, JR., plaintiff's counsel. B. H. CUSHNEY, plaintiff's attorney. PER CURIAM. Too late, should have moved before. Decision. Motion denied, with costs. PETER J. BORST et al. agt. PHILIP V. BOVEE. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for judgment as in case of nonsuit This is an action of replevin ; two circuits have passed, and the plaintiff has not noticed the cause at either. The defend- ant's papers do not show that the cause was not tried. [*64] *N. HILL, JR., defendant's counsel D. P. COREY, defendant's attorney. P. POTTER, plaintiff's counsel and attorney. NEW-YORK PRACTICE REPORTS. 64 Felt agt. Hydo. PER CURIAM. It is not necessary to state that the cause was not tried, where it is shown that it was not noticed for trial. Decision. Motion granted, unless plaintiffs stipulate and pay costs of this motion. HENRY FELT agt. HIRAM T. HYDE, MORTON FAIRCHILD and THOMAS KIRKPATRICK. December Term, 1844, BRONSON, J"., presiding. MOTION by defendant Kirkpatrick for judgment as in case of nonsuit. It appears this suit was severed and judgment taken against the first two defendants. Defendants' attorney appeared, and pleaded for Kirkpatrick alone, and now moves on papers en- titled with all the defendants. H. C. WHELPLEY, defendants 1 counsel and attorney. C. STEVENS, plaintiff's counsel. PRUYN & SOUTHWICK, plaintiff's attorneys. PER CURIAM. Defendant's papers are entitled wrong ; they should be entitled Kirkpatrick alone. Decision. Motion denied with costs, without prejudice. 64 NEW-YORK PRACTICE REPORTS. Gifford agt BabbotL EDWARD OVERTON agt. SANFORD STANLEY et al. Plaintiff baring entered defendants' default for not pleading, having forgotten the terms of stipulation between them, which defendants refused to show, it was set aside : costs to abide event December Term, 1844, BRONSON, J., presiding. MOTION by defendants to set aside default for not pleading, and subsequent proceedings for irregularity. The plaintiff having given time to plead by stipulation to 10th November, and forgotten the time thus given, entered default for want of plea, on the 8th November. Defendant served pleas on the 9th, which plaintiff returned by his clerk, saying the default was entered ; that he had forgotten the terms of stipulation, which defendant's attorney refused to show : Wherefore motion was granted without costs, but at plaintiff's election with cost, to abide the event. A. TABER, defendants' counsel. RAYMOND & CLARK, defendant^ attorneys. J. HOLMES, plaintiff's counsel. J. W. & J. E. WHITE, plaintiff's attorneys. Decision. Motion granted with costs of making and oppos- ing motion to abide event JOHN GIFFORD agt. MILLER BABBOTT. Plaintiff's excuse for leave to stipulate to try a second time. December Term, 1844, BRONSON, J., presiding. MOTION by defendant for judgment, as in case of nonsuit, after stipulation. NEW-YORK PRACTICE REPORTS. 65 Ingraham agt. Wheeler. Plaintiff's excuse for not trying is, that about four weeks previous *to the circuit one of his material wit- [*65] nesses left for Michigan and some others of the western states, and has not yet returned, but is expected to return this season. Soon after serving notice of trial in the cause, plain- tiff ascertained said witness had gone, and immediately coun- termanded the notice. E. W. PECKHAM, defendant's counsel. THOS. H. FLANDRAN, defendant's attorney. J. EDWARDS, plaintiff's counsel. W. & C. TRACEY, plaintiff's attorneys. PER CURIAM. The excuse is sufficient for plaintiff to renew his stipulation. Decision. Motion granted unless plaintiff renew his stipu- lation to try at the next Oneida circuit, and pay costs of circuit up to notice of countermand, and ten dollars costs of this motion. CURTICE INGRAHAM, Plaintiff in error, agt. ELIJAH WHEELER, Defendant in error. The sufficiency of a certificate of an associate judge of the common pleas to cany the cause to the supreme court. December Term, 1844, BRONSON, 7., presiding. MOTION by defendant in error to quash the writ of error, and to set aside all subsequent proceedings on the part of plaintiff in error, for the want of a sufficient certificate that the said cause is a proper one to be carried to the supreme court, in accordance with the statute. The facts appear to be that a certificate, according to the statute, was presented to an associate judge of the common VOL. I. 1 65 NEW-YORK PRACTICE REPORTS. Jennings agt. Holbert pleas for signature, dunng the absence of the first judge from the county ; before being signed by the associate judge the first judge returned, and a consultation was had between the judges on the subject (both having heard the argument of the cause on the certiorari in the common pleas). After such consultation, on production of the certificate signed by the associate judge, and on application, the first judge reiused to allow a writ of error, and gave as his opinion, that the cer- tificate had been unadvisedly given. The associate judge having signed the certificate on the day of the consultation with the first judge, as of the day when the same was received by him. S. H. HAMMOND, defendants counsel. RATHBUN & WALKER, defendant' a attorneys. N. HILL, JR., plaintiff's counsel. CLARK & THOMPSON, plaintiff's attorneys. The certificate held good, the associate judge having acquired jurisdiction. Decision. Motion denied with costs. [*66] *MARY JENNINGS et al agt. HEZEKIAH HOLBERT. Plaintiff bound to pay defendant's costs for preparing for trial, where plaintiff countermanded his notice of trial before the circuit, although issues of a later date were not tried. December Term, 1844, BRONSON, /"., presiding. MOTION by defendant that plaintiffs pay the defendant's costs of preparing for trial, after notice of trial and prior to countermand. Notice of trial was served for last September circuit, and subsequently (about four days before the circuit) counter- NEW-YORK PRACTICE REPORTS. 66 Parow agt. Gary. manded. Defendant had incurred expenses after notice and before countermand, in preparing for the trial, the costs taxed and served, and not paid by plaintiffs. Plaintiffs state that no issues of so late a date as the above were reached or tried in their regular order on the calendar. S. H. HAMMOND, defendant's counsel. B. F. DUNNING, defendants attorney. B. J. HILTON, plaintiffs 1 counsel. J. "W. GOTT, plaintiffs' attorney. Decision. Motion granted with costs. Two other causes between the same attorneys, on the same facts, decided the same. FRANCIS PAROW agt. JAMES GARY. The recognition of an individual as an attorney of the court, before his actual ad- mission, by receiving papers from him as such, waives the objection to his ad- mission at the time of such recognition. December Term, 1844, BRONSON, Ji, presiding. MOTION by plaintiff to set aside and vacate an order of su- preme court commissioner staying proceedings and extending defendant's time to put in special bail, for irregularity. The grounds relied on in this motion are, that the defend- ant's attorney was not an attorney of this court at the time he was retained by defendant in this cause, which was on the day of his arrest on the capias. Defendant's attorney states that since he was admitted as an attorney of this court, his acts have been recognized and sanctioned by the defendant's agent, and have been recognized by plaintiff's attorney, and are so recognized by his papers for this motion. 66 NEW-YORK PRACTICE REPORTS. Rose agt. Hogeboom. C. STEVENS, plaintiff's counsel. N. BENNETT, plaintiff's attorney. H. H. MARTIN, defendant's counsel. X. D. FREEMAN, defendant's attorney. Decision. Motion denied with costs. JAMES R. HOSE agt DAVID HOGEBOOM et at A supreme court commissioner has power to make a second order, extending time to reply. December Term, 1844, BRONSON, /., presiding. MOTION by plaintiff to set aside default for not replying and subsequent proceedings for irregularity. The plaintiff obtained a second order from a supreme court commissioner extending the time to reply in this cause. The last order was treated as a nullity by defendants attorneys and plaintiff's default entered. Defendants allege that under the 95th rule a supreme court commissioner cannot make a second order extending time to reply. [*67J *JAS. R. ROSE, counsel and attorney in pro. per. S. H. HAMMOND, defendants' counsel. HAMMOND & WEED, defendants' attorneys. Decision. The order was held good, and motion granted, with costs. NEW-YORK PRACTICE REPORTS. People agt. Brown. THE PEOPLE agt. LORENZO BROWN, Sheriff, &c. Where the proper proof is filed on issuing an attachment against a sheriff, it is not necessary, on issuing a second attachment, to file any other proof. December Term, 1844, BRONSON, J., presiding. MOTION by defendant to set aside a second attachment for irregularity. It appears that a former attachment was issued against the defendant as sheriff for not returning an execution. Upon entering the default on the first attachment the proper proof was filed, that the execution was delivered to the sheriff, and had not been returned, &c. A negotiation ensued by which the proceedings on the first attachment was settled condition- ally ; the conditions not having been complied with on the part of the sheriff, his default was again entered without any proof of the delivery and no return of the execution, &c. The defendant moves on the ground that the second attach- ment is irregular for the reason that no such proof was filed upon issuing the same. C. H. BRAMHALL, sheriff's counsel. THOS. J. DUDLEY, attorney for sheriff. J. A. MILLARD, relator's counsel and attorney. It was held that the proof filed on the issuing of the first attachment enured to the benefit of and was sufficient for the issuing of the second. Decision. Motion denied, without costs. NEW-YORK PRACTICE REPORTS. Billings agt Cook. ALBERT BILLINGS agt. OLIVER COOK. A plea may be withdrawn or stricken out by the party pleading, before issue joined, of course ; without leave of the court. December Term, 1844, BRONSON, 7., presiding. MOTION by plaintiff to set aside defendant's amended pleas and joinder in demurrer for irregularity. The declaration contained three counts ; defendant pleaded five pleas : the plea of general issue and four special pleas. The plaintiff demurred to each of the special pleas, with a no- tice to join in demurrer. The defendants joined in demurrer to the fifth plea, and amended the second, third and fourth pleas, by sinking out the second plea, and altering the third and fourth in point of form. The pleas as amended were filed, and copies served and noticed to plaintiff, giving information as to what the amendments consisted in. The plaintiff in- sisted that the defendant could not amend under the 23d rule by striking out or withdrawing a plea ; that it could not be done without leave of the court. F. H. HASTINGS, plaintiff's counsel. G. BAILEY, plaintiff's attorney. N. HILL, JR., defendant's counsel. L. J. HOWE, defendant's attorney. [*68] *It was held that the plea might be stricken out or withdrawn in that stage of the pleadings, it worked no jury to the opposite party. Decision. Motion denied, with costs. NEW-YORK PRACTICE REPORTS. 68 Sprague agt. Mumford. ASA SPRAGUE agt. WILLIAM W. MUMFORD, Impleaded, &c. Defendant's motion to set aside an inquest for irregularity was denied, because he had not used due diligence in finding out wherein plaintiff had amended his declaration (by changing the venue,) after being informed it had been amended. December Term, 1844, BRONSON, J n presiding. MOTION by defendant to set aside inquest for irregularity. This suit was commenced by writ of scire facias. The venue in the declaration was laid in Oneida county. After the de- fendant had appeared and pleaded, an application was made to the court by plaintiff to amend the writ, which was granted, and the venue in the declaration was changed to the county of Jefferson. After notice of trial was served for Jefferson circuit, the defendant on inquiry of plaintiff's attorneys to know whether the venue had been changed, was informed that the declaration had been amended and served, but in what particular the amendments consisted they were then unable tc state, as the papers were not before them. The plaintiff did not attend the circuit, and inquest was taken by default M. T. REYNOLDS, defendant's counsel. W. W. MUMFORD, defendant in pro. per. J. A. SPENCER, plaintiff's counsel. SPENCER & KERNAN, plaintiffs attorneys. PER CURIAM. The defendant did not use due diligence in ascertaining in what particular the declaration had been amended, after he was informed it was amended. Decision. Motion denied with costs. 63 NEW-YORK PRACTICE REPORTS. Howe agt Haabrouck. JAMES HOWE agt ISAAC L. HASBROUCK. An affidavit of merits filed at the circuit held defective, because it stated that the defendant had a good defence, etc., " to the plaintiff declaration filed in thu suit." December Term, 1844, BRONSON, J., presiding. MOTION by defendant to set aside inquest for irregularity.- The inquest was taken out of its order on the calendar. Defendant showed that an affidavit of merits was filed, and that the cause could not have been reached in its regular order on the calendar. Plaintiff produced a copy of the affidavit of merits, and insisted that it was defective. That part of the affidavit to which objection was made, reads as follows : " duly sworn, saith that he has fully and fairly stated his case and defence in said suit to A. B. of , his counsel, and is advised by his said counsel and verily "believes that he has a good, valid and sufficient defence upon the merits in the above entitled cause to the plaintiff's declaration filed in ttiis suit, and farther saith not." The defendant swears to merits on this motion. A. TABER, defendants counsel. ROMEYN & WESTBROOK. defendants attorneys. H. C. WHELPLEY, plaintiff's counsel and attorney. The affidavit of merits filed at the circuit was held bad. Defendant let in on terms. Decision. Motion granted on payment of costs of circuit and subsequent proceedings and costs of opposing this motion, and cause referred. NEW- YORK PRACTICE REPORTS. 69 Ogden agt. Betts. *THOMAS L. OGDEN et al agt. SETH BEEBE. [*69] In a number of causes between the same plaintiffs and different defendants, all involving the same questions of law, a part being noticed for trial, and part not, and a verdict rendered for defendant in one of them, and exceptions taken by plaintiffs, the defendants ara not entitled to judgment as in case of nonsuit in those not noticed for trial, until the questions excepted to in the one tried and decided. February Term, 1845. MOTION by defendant for judgment as in case of nonsuit. The defendant founded his motion upon the usual affidavit, that the cause was not noticed at the last November circuit, and that younger issues were tried at said circuit. The plain- tiffs show that there is twenty-one other causes of the same kind (being actions of trover), between the same plaintiffs and different defendants ; that fifteen of said causes were noticed for trial at said November circuit, one of which was tried and a verdict rendered for defendant. Exceptions were taken by plaintiffs for the purpose of naving the questions of law settled by this court or the court for the correction of errors, and the circuit judge refused to try at said circuit, either of the other causes which involved the same questions of law. The de- fendant now moves for judgment as in case of nonsuit in this and the six other causes involving the same question, which were not noticed at said November circuit. M. FILLMORE, defendant's counsel I. E. IRISH, defendants attorney. ROGERS, plaintiffs' counsel. C. R. LELAND, plaintiffs' attorney. *BEARDSLEY, Justice. Motion denied. Costs of [*70] opposing motion to abide event. 70 NEW-YORK PRACTICE REPORTS. Parent agt Kellogg. MARTIN HEMINGWAY agt FRANKLIN SPAULDING. A defendant moving to change the venue, most show in bis affidavit, that he has stated to hi* counsel what he expects to prove by hit witnesses, in addition to the statement of their materiality generally. February Term, 1845. MOTION by defendant to change the venue. The defendant's affidavit upon which he moves does not state that he has stated to his counsel what he expects to prove by his witnesses, which he swears are material on his defence. F. U. FENNO, defendants counsel and attorney. C. STEVENS, plaintiff's counsel. W. E. WEBSTER, plaintiff's attorney. BEARDSLEY, Justice. The affidavit is defective. Motion must be denied with costs. Kule accordingly. JOHN PARENT agt. AUGUSTIN KELLOGG et al. Where a party to a judgment in the common pleas moves to set aside an execu- tion issued on a judgment in this court, as conflicting with his interest, he must entitle his papers in both causes. February Term, 1845. MOTION by defendants and one John H. Tomlinson to set aside the execution issued in this cause. It appears that said Tomlinson obtained a judgment in the Onondaga common pleas, against two of the defendants in this suit, prior to the judgment in this cause, and got a stipulation NEW-YORK PRACTICE REPORTS. 70 Bell agt. BelL in writing from the plaintiff in this cause, not to issue his execution to the sheriff of Onondaga without giving him, Tomlinson, thirty days' notice of his intention to do so ; the judgment in this cause was subsequently assigned to one Pratt, who gave notice to defendants of the assignment, and there- after issued execution to Onondaga county sheriff, without giving notice to Tomlinson according to the stipulation. The defendant's papers are entitled in this cause only. SEDGWICK, defendants' counsel. GEO. A. STANSBURY, defendants' attorney. S. P. NASH, plaintiff's counsel J. L. B AGG, plaintiff" 's attorney. BEARDSLEY, Justice. The defendants' papers should be entitled in both causes. Motion denied with costs, without prejudice. *WILLIAM A. BELL, Administrator, &c. agt. CHARLES [*71] A. BELL. A release of errors in a warrant of attorney, does not authorize the issuing of a fi. fa. within thirty days from the entry of judgment ; but, if directions are given by the defendant as to the payment of the money collected or to be col- lected on the fi. fa., which is issued in less than thirty days from the entry ot judgment, the irregularity is waived. February Term, 1845. MOTION by defendant to set aside execution. The defendant moves to set aside execution issued on a judgment confessed on bond and warrant of attorney, on the grounds that it was issued before the expiration of thirty days after the entering of judgment. The plaintiff insists that the release of errors in the warrant of attorney authorized the issuing of the execution at any time, and releases all errors in the issuing, as well as the form of execution. 71 NEW-YORK PRACTICE REPORTS. Platt agt. Bodine. NELSON, Chief Justice. We have decided that point against you. The plaintiff then read affidavit, showing that after the fi. fa. was issued and a levy made by the deputy sheriff, the deputy sheriff told the defendant that he had received notice from plaintiff's attorney that some of the money to be col- lected must be paid to plaintiff's attorney, and not to the plaintiff. To this the defendant replied, that the deputy sheriff must not pay anything to plaintiff's attorney, but must pay all he collected on the fi. fa. to the plaintiff in person. NELSON, Chief Justice. That was a waiver of the irregu- larity. Decision. Motion denied, with costs. GEORGE W. PLATT et dl. agt. EICHARD D. LITTELL, JOHN TOTTEN and JACOB BODINE. Under the 84th rule, joint defendants in assumpsit appearing in good faith by different attorneys (except attorneys separately appearing who are partners in business), are each entitled to move for judgment as in case of nonsuit February Term, 1845 MOTION by each defendant for judgment as in case of non- suit. In this cause, which appears on the papers to be assumpsit against the defendants jointly, each of the defendants gave a separate notice of motion for judgment as in case of nonsuit. Affidavits were read in opposition to excuse the omission to try the cause at the circuit for which it was noticed, but which were held insufficient for that purpose. It was then objected, NEW-YORK PRACTICE REPORTS. fl Gale agt. Hoysradt. i that the defendants, Littell and Bodine, had appeared and moved separately by attorneys who were partners in business for the purpose of increasing costs, and the court granted the motions, unless plaintiffs stipulate, &c., but with costs of but one motion. *The third motion in behalf of defendant Totten no- [*72] ticed by a different attorney, was also granted, unless, &c., with costs of motion ; it being the opinion of the court that under the 84th standing rule, joint defendants in assumpsit appearing in good faith by different attorneys, were each entitled to move. ftiSJ Hi '<.' S. SHERWOOD, counsel for defendant Bodine. F. S. KINNEY, attorney for defendant Bodine. E. W. PECKHAM, counsel for defendant Littell. E. "W. TOWNSEND, attorney for defendant Littell. F. H. HASTINGS, counsel for defendant Totten. GIBBS & BECKWITH, attorneys for defendant Totten. A. TABER, counsel for plaintiff . E. W. CONE, attorney for plaintiff. Eules according to the above decisions. JOSEPH GALE agt. JOHN HOYSRADT. A plaintiff in replevin may suffer a nonsuit on the trial, as in ordinary actions. A verdict is irregular if the plaintiff is not called by the clerk on the coming in of the jury, before taking the verdict, and his appearance or default entered. February Term, 1845. MOTION by plaintiff to set aside verdict in replevin, on the ground of irregularity. The principal facts in this case are reported at page 19 of the Special Term Reports ; there is,- however, additional testi- 72 NEW-YORK PRACTICE REPORTS. Weed agt. Halladay. monj to the same point produced at this term, the point is, that the plaintiff was not called by the clerk on the coming in of the jury, that he did not appear and answer before the verdict was rendered. J. H. REYNOLDS, plaintiff's counsel and attorney. G. W. BUCKLEY, defendant's counsel and attorney. BEARDSLEY, Justice. The plaintiff in replevin may suffer a nonsuit on the trial, as in ordinary actions. (Tidd's Pr. Phil, ed. of 1840, p. 869 ; Ryan & M. 355 ; 2 C. & P. 358 ; 2 R. S. 531, 53, 56.) Without going over what appears in the affidavits pro and con, I am satisfied the plaintiff was not called on the return of the jury to the bar, before taking the verdict. That should have been done, and the appearance or default of the party entered by the clerk ; upon a fact so vital there should be no room to doubt. This verdict was irregu- lar, and must be set aside, but as it was a mistake of the clerk, no costs should be given to either party. Rule accordingly. [*73] *JAMES M. WEED agt. SMITH S. HALLADAY. The greatest number of witnesses in opposition to a motion to change venue, will not prevail to retain the venue under all circumstances. February Term, 1845. MOTION by defendant to change the venue from New- York to Niagara. Defendant swears to twelve witnesses in Niagara and five in Erie. And twenty-four are sworn to on the part of the plain- tiff as residing in New York. The action is stated to be on a promissory note given for a bill of merchandise. The defend- ant's affidavit states that if the plaintiff should claim to have NEW-YORK PRACTICE REPORTS. 73 McCartney agt. Betts. more than two witnesses in New-York, one his book-keeper or clerk, whose name is not remembered, and the other one Hasbrook, they can only be material for the purpose of prov- ing the handwriting of the defendant, which may as well be proved by witnesses residing in Niagara, where the defendant resides and has resided for several years. No answer is given by the plaintiff to this statement. S. P. NASH, defendants counsel. E. NEWTON, defendants attorney. C. P. KIRKLAND, plaintiffs counsel. E. W. WILLIAMS, plaintiff's attorney. BEARDSLEY, Justice. Upon these papers, we must intend that twenty-two of the plaintiff's witnesses are deemed to be necessary to prove the defendant's handwriting, a fact which can as well be heard by witnesses residing in Niagara, as those who reside in New- York. (Benedict agt. Hibbard, 5 Hill, 509.) The motion must be granted. Eule accordingly. MATTHEW MCCARTNEY agt. HENRY H. BETTS. The original affidavit accompanying a plea must be served, a copy served ia not a compliance with the rule. February Term, 1845. MOTION by defendant to set aside default, &c., with costs. Action, assumpsit, declaration contains a count for goods, wares, &c., sold and delivered and the usual money counts ; venue laid in Livingston county ; declaration served on de- fendant 21st November last. On the llth December last a plea and affidavit were drawn and sworn to by defendant, and copies were served on the clerk at Albany, (defendant's attor- Y3 NEW-YORK PRACTICE REPORTS. Hart agt. McGarry. ney residing at Troy,) for plaintiff's attorney residing in Livingston county. Plaintiff's attorney had entered default and judgment, before receiving the copy plea and affidavit. On their receipt (the 19th December, 1844), he immediately wrote defendant's attorney, and closed the copy plea and affi- davit, with objections to the affidavit, stating that the [*74] rule *required the original affidavit to be served, &c., and offered to open default on conditions, one of which was that judgment should stand as security, to which defend- ant's attorney refused to accede and insisted he was regular. It is not questioned that this was a case in which the plea should be sworn to under the rule. A. K. HADLEY, defendant's counsel and attorney. P. GANSEVOORT, plaintiff's counsel. S. HUBBARD, plaintiff's attorney. BEARDSLEY, Justice. If service of copy affidavit was not sufficient, then the default was regular, and defendant must be let in on terms, the judgment standing as security. The original affidavit should have been served, a copy was not a compliance with the rule (22 Wend. 644, note ; Laws 1840, p. 333, 7 ; 25 Wend. 699). On payment of the costs of enter- ing the default and all subsequent proceedings, including the costs of opposing this motion, the defendant may be let in to plead, the judgment standing as security. Eule accordingly. HENRY HART agt. DANIEL MCGARRY. The advice of an attorney is not the advice of counsel on an affidavit of merits within the meaning of the rule. February Term, 1845. MOTION to set aside default for not pleading and all subse- quent proceedings, including the execution issued on the judgment with costs, &c. NEW-YORK PRACTICE REPORTS. 74 The People agt. Perrin. The papers show that the proceedings are regular, and the only question is, whether the defendant can be let in on terms. The action is trespass ; the defendant's pecuniary circum- stances are questionable, &c. The defendant in his affidavit states, "that he has fully and fairly stated the case in the above entitled cause to Samuel W. Jackson, Esq., his counsel in said cause, of Gilboa, in said county of Schoharie, and that this deponent has a good and substantial defence upon the merits thereof as he is advised by his said counsel," &c. It is shown by an opposing affidavit that Jackson is not a counsel- lor of this court, although he is an attorney. S. P. NASH, defendants counsel. S. "W. JACKSON, defendant's attorney. B. L. JOICE, plaintiff's counsel. D. K. OLNEY, plaintiff's attorney. BEARDSLEY, Justice. The advice of an attorney is not the advice of counsel within the rule, and the motion must be denied. But the attorney may have been misled by what was said in 7 Wend. 513, and the denial is without prejudice to the right to renew the motion. Eule accordingly. *THE PEOPLE ex. rel. THE BANK OF MONROE agt. [*75] DARIUS PERRIN, late sheriff of Monroe county. A redemption of land may be made at any time before the close of the laat day allowed by law for the purpose, business hours are not regarded in this respect. One who seeks to redeem must comply fully and strictly with the statute, or he gains nothing ; an agent seeking to redeem for a mortgage creditor must swear to the fact of his agency, and his means of knowledge as to the sum due on the mortgage, and the sum stated on such knowledge. MOTION by relators for a mandamus on notice. Certain real estate of Abraham M. Schermerhorn had been sold on judgment and execution against him by said Perrin, then sheriff, &c., the time for redeeming which expired on the VOL. I. 8 75 NEW-YORK PRACTICE REPORTS. The People agt. Perrin. 15th May, 1842 (Sunday). On the previous day the bank of Monroe duly redeemed the said land, as a judgment creditor of said Schermerhorn. This was done in the afternoon of that day : and from eleven to twelve o'clock in the night fol- lowing, Blatchford, Graham & Curtis, applied to said sheriff to redeem said land, as assignees of a mortgage thereon given by said Schermerhorn to the North American Trust and Banking Company. They paid the proper amount, and the only questions made are whether a redemption at that hour in the night was in time, and whether the affidavit to prove the amount due was sufficient. F. M. HAIGHT, attorney for relators. , attorney for Blatchford & Go. BEARDSLEY, Justice. The practice has been to permit a redemption to be made at any time before the close of the last day allowed by law for the purpose. Business hours are not, in this respect, regarded. Whatever was done in this case, was therefore in season. It was conceded that the bank of Monroe duly redeemed, and the whole question comes down to this : whether the purchase sought to be made by Blatchford, Graham and Curtis, as assignees of the mortgage to the Trust and Banking Company, was in conformity with the statute ? If it was, they are entitled to a deed, otherwise the sheriff must convey to the Bank of Monroe. The exis- tence of the mortgage and its assignment are not disputed, but it is objected that the affidavit furnished to show what remained due on the mortgage was insufficient. Upon this point no affidavit was made by either of the assignees, the only proof furnished being the affidavit of Tilly Allen. This affidavit was made on the llth of May, 1842, prefixed to which is a statement setting forth the date of the [*76] ^mortgage, that the amount of principal remaining due thereon was, $180,000 00 And the balance of interest to the 14th May, 1842, 37,066 21 $217,066 21 NEW-YORK PRACTICE REPORTS. Y6 The People agt. Perrin. The deponent is named in the affidavit as agent, but it omits to state, on oath, that he was such agent Then follows a clause that said statement " exhibits a true and correct ac- count of the amount which will be due upon the said bond and mortgage on the 14th day of May instant, over and above all payments, as appears by the books of account of the said trustees, and as this deponent verily believes." The affidavit may be made by the " mortgage creditor, his assignee or rep- resentative, or by his attorney or agent," but whether made by one or the other, it must state the " true sum due or to be- come due," " over and above all payments." '(Laws 1836, p. 793, 2, sub. 4.) This affidavit is defective. It does not appear to have been made by the agent of the assignees, although the deponent is therein named as agent. But this is a mere descriptio personce, ; there is no oath to the fact of such agency. Nor is it shown that the person who made the affidavit had any knowledge of the true sum due or to become due ; he only speaks of what appears by the books, but of the correctness of which he does not profess to have any knowledge. To be sure he swears to his belief that the sum stated is correct, but that is not suffi- cient for the purpose. The affidavit should furnish the best and most satisfactory evidence of what is due ; another cred- itor may come to redeem, and he is entitled to correct infor- mation on the point. One who seeks to redeem must comply fully and strictly with the statute, or he gains nothing. This affidavit should have sworn to the fact that the deponent was agent. He should have disclosed his means of knowledge, as to the sum due, and the amount should have been stated on such knowledge. Here one of the assignees made an affidavit, but he has said nothing as to the amount due and unsatisfied on the mortgage. I think the assignees failed to effect a legal purchase of the right to these lands, and the Bank of Monroe is consequently entitled to a deed from the sheriff. Motion for mandamus granted, but no costs are to be al- lowed to either party. Eule accordingly. 77 NEW-YORK PRACTICE REPORTS. Barker agt. Gates. [*77] *LESTER BARKER agt. WILLIAM H. GATES JOSEPH THOMPSON agt. WILLIAM H. GATES. A sheriff, in advertising and selling real estate in separate parcels on a number of executions of different dates as to liens, must apply the bid on the first sale in satisfaction of the oldest lien. A prior judgment creditor as to the youngest execution cannot redeem all the pieces sold by paying only the amount of the judgments older than his ; he must pay the amounts bid. February Term, 1845. MOTION by Gates and Thompson to set aside a sheriff's sale, and for a mandamus. On the 6th May, 1842, a judgment was rendered by a jus- tice of the peace, in favor of Noyes & Tracy, against the de- fendant Gates, for $99.30 ; which, on the same day, was dock- eted in the office of the clerk of Oneida county. On that day two other judgments were, in like manner, rendered in favor of Tracy & Tracy against the said Gates, and duly docketed ; each being for $101.15. On the 7th May, 1842, judgment was rendered in the above cause of Thompson & Gates, for debt $37,000, and costs $11.92 ; which was duly docketed on that day. And on 6th August, 1842, judgment was rendered in favor of Barker in the above case, and docketed the same day, for $2,036.65. On 5th August, 1842, writs of/?. /a. were duly issued on the first three judgments before mentioned, to the sheriff of the county of Oneida ; and shortly thereafter, a like writ was issued to said sheriff on the judgment in favor of Barker. By virtue of these writs, the real estate of Gates was sold by said sheriff on the 14th October, 1842. The sheriff's advertisement stated he should sell said real estate by virtue of an execution from the supreme court (meaning the one in favor of Barker), and three from the clerk's office of the county of Oneida (meaning the aforesaid three judgments in favor of Noyes & Tracy) ; and that he should sell all the right which said Gates had on the 6th May, 1842. On the day of sale, the sheriff put up and sold the land as follows : First, the undivided half of one hundred and twenty acres, which NEW-YORK PRACTICE REPORTS. fT Barker agt. Gates. was put up and sold on the execution in favor of Barker, and one of the executions in favor of the Tracys : said land was sold to said Barker at $600. Second, the undivided half of two acres, which was sold on the Barker execution, and the other execution in favor of said Tracjs : it was sold to Barker at $5C. Third, about two acres of land, which were sold on the two executions last mentioned and the executions of Noyes & Tracy : Barker became the purchaser at $600. Barker thereupon advanced money to pay off the three judgments of the 6th May, 1842, and the sheriff's fees, and the residue was indorsed on the execution in his favor. Certificates for said ^pieces of land were duly made to him by [*78] the sheriff, &c. On the llth January, 1845, which was within the period for redemption, proper papers were prepared by Thompson, and served on the sheriff, to whom $401.30 were then paid, in order to redeem said three parcels of land from said sale ; the said Thompson making payment of said sum, for the purpose of redeeming said three pieces of land. The said sum of $401.30 was the amount of said three judgments of the 6th May, 1842, and interest and cost there- on ; and it was claimed that Thompson was entitled to redeem the same on payment of that sum, without regard to the resi- due of the amounts bid as aforesaid. Noxon & Comstock, on behalf of Thompson, now move for a mandamus to compel the sheriff to give him a deed for said three pieces ; and if that cannot be effected, then for such relief as he is entitled to on these facts. NOXON & COMSTOCK, counsel for motion. NOXON, LEAVENWORTH & COMSTOCK, attorneys for motion. J. A. SPENCER, counsel for Barker. SPENCER & KERN AN, attorneys for Barker. BEARDSLEY, Justice. Thompson is not entitled to a deed from the sheriff for the three pieces of land, or either of them. Barker had purchased these parcels of land at the sher- iff's sale, for twelve hundred and fifty dollars ; and Thomp- son now seeks to acquire his rights by paying about four Y8 NEW-YORK PRACTICE REPORTS. Barker agt. Gates. hundred dollars, the amount of three judgments of the 6th of May, with interest and such costs and charges as are allowed by the statute. But this can only be effected by paying the fall amount bid, and not the amount of any particular lien or incumbrance on the land (2 R. S. 370, 45, et seq.) The sheriff sold the first piece of land on one of three executions which had been issued on the judgments of the 6th of May, and on the execution in favor of Barker, issued on his judg- ment, which was junior to that of Thompson. This was the form of the sale ; but the sheriff was bound to apply the pro- ceeds of that sale, in the first instance, to satisfy the three exe- cutions on judgments of the 6th of May, before he could ap- ply any part thereof on the Barker execution. Had this been done, the first three executions would have been satisfied by the proceeds of the piece of land first sold, and the two re- maining parcels could only have been sold on the execution on the Barker judgment. The sale was conducted irregularly, but it is not now too late to correct what was amiss, and se- cure to the several parties what they were entitled to. For this purpose the sheriff should satisfy the first three executions out of the money received by him on the sale of the [*79] first piece of *land, and make return to said executions that they were so satisfied. And in the deeds or deed to be given for the last two pieces, the sheriff will recite a sale thereof on the Barker execution only, making no mention of or allusion to the first three executions or either of them. The deed for the first piece will show a sale on one or all of the executions of the 6th of May, so that the purchaser will have title to this piece under a lien of that date, although his title to the last two parcels will rest solely on the lien of the judgment of the 6th of August. This will give effect to the sale according to what was the duty of the sheriff and the rights of the respective parties. If the judgment of Thomp- son, as was suggested, is fraudulent, Barker can take proper steps to avoid it on that ground. If, on the other hand, it is an honest security, no undue advantage over it will have been gained by the manner in which the sale was conducted by tho NEW-YORK PRACTICE REPORTS. 79 Anderson agt. Osborn. sheriff. It may be that Barker would choose not to have the sale of the last two pieces stand, as made upon his judgment and execution alone, and on his filing a statement to that ef- fect, within twenty days after notice of this rule, an order may be entered vacating the sale of those pieces, and in that event the sheriff will correct his return to the Barker execution accordingly. An order entered according to what has been stated, no costs allowed to any one on this motion. LOYAL 0. ANDERSON agt. STEPHEN OSBORN. Where a rule absolute, is obtained by defendant on notice for plaintiff to file se- curity for costs within twenty, days from the entry of the order, he must serve a copy on plaintiff's attorney in order to put plaintiff in default for not filing such security. February Term, 1845. MOTION by defendant for judgment of non pros, by reason of plaintiff 's failing to file security for costs. An order was entered in this cause at the last December special term, that the plaintiff file security for costs in twenty days after the entry of the order, and that all proceeding on the part of the plaintiff be stayed until such security be filed. This motion was made on notice. The attorney for the de- fendant swears that he has not received any notice of plaintiff's filing such security, and that plaintiff's default for not filing the security according to the order in December, has been en- tered. Plaintiff shows that no copy of the order to file secu- rity, obtained in December, was served until the 20th January last, when the papers for this motion were served, and insists that the *plaintiff has twenty days to comply [*80] with the order from the time of the service. S. WILKESON, JR., defendants counsel DENNIS BOWEN, defendants attorney. LAWRENCE & FELLOWS, plaintiff's attorneys. 80 NEW-YORK PRACTICE REPORTS. Titus agt. Kent. NELSON, Chief Justice. The defendant ought to have served a copy of the order on attorney, in order to put the plaintiff in default for not filing security for costs within the twenty days. Let the plaintiff have twenty days to file security, and no costs. Kule accordingly. In the matter of the Attachment of PETER H. TITUS et al agt JOSEPH A. KENT and others. A non-resident debtor may compel trustees to appoint referees, under and in pur- suance of the 19th and several succeeding sections of the Revised Statutes, (p. 800, i.,) in order to contest the validity of the debts presented and claimed against him by attaching creditors. February Term, 1845. MOTION on behalf of Joseph A. Kent for a mandamus com- manding or requiring the trustees of the estate of "Walter P. Clark, Loomis Palmer, Silas Crane and Joseph A. Kent, non- resident debtors, to appoint or nominate and have appointed, in the manner prescribed by statute, referees to hear and de- termine the controversy which has arisen between the said Joseph A. Kent, whose property has been attached, and the said trustees as to the indebtedness of the said Kent to said Titus et al, on whose behalf said attachment was issued, or his liability for the debt claimed by the said attaching creditors, or any part thereof. It appears on the part of said Kent, that an attachment was issued by F. P. Stevens, Esq., a judge of Erie common pleas, on or about the 29th day of August, 1843, in favor of Peter II. Titus and Wm. H. Titus, of the city of New- York, against said Joseph A. Kent, a non-resident debtor, impleaded with Walter P. Clark, Loomis Palmer and Silas Crane. That the attachment was issued for a claim or pretended claim, as sworn to in the affidavits on which said attachments issued, of $7,482.20, against the defendants as partners. The sheriff on that attachment seized merchandise belonging to said Kent alone, at Buffalo, on its way to Michigan, which was appraised NEW-YORK PRACTICE REPORTS. 80 Titus agt. Kent. at $1,500. The said Kent denied that he was ever a partner of said Clark, Palmer & Crane, or in any way indebted to said attaching creditors, but was unable to obtain security to give a bond to double the amount of said alleged indebt- edness. On the 10th. July, 1844, said judge ^appointed three [*81] trustees in the said matter. Some time between the 26th day of July, and the 16th of August, 1844, the said judge made a report of his proceedings and filed same. Said Kent with an intention of trying the question of his liability for the alleged demand, on the 3d of October, 1844, caused notice to be served upon the attorney for said attaching credit- ors, and upon each of the trustees, denying his indebtedness to the attaching creditors, either individually or jointly with the aforesaid firm, and that he was ready to appoint referees, either amicably or otherwise, in the mode pointed out by statute. On the 14th December, 1844, the trustees declined to appoint referees, giving as a reason that this case was not one where the debtor had a right to contest his liability and have it tried by referees. It appears on the part of the trustees, that a few days after the said property was attached, the most of it was replevied from the sheriff by certain persons in New- York city other than the said non-resident debtors, who claim to own the same, and the replevin suits are now in course of litigation and undetermined. The creditors insist that the non resident debtor cannot avail himself of the following pro- vision (1 K S. p. 800, 19, 2d ed.) : "If any controversy shall arise between the trustees and any other person in the settle- ment of any demands against such debtor or of debts due to his estate, the same may be referred to three different persons, who may be agreed upon by the trustees and the party with whom such controversy shall exist, by a writing to that effect signed by them," because the trustees represent him and all his interests in the matter. It applies to third persons, the credit- ors of the non-resident debtor " who have a controversy with the trustees in the settlement of any demands against the debtor." The object of the motion is to allow the debtor him- 81 NET^YORK PRACTICE REPORTS. Goodenow agt. Butler. self to compel his trustees to refer it to referees to see whether he in fact owed the debt to the attaching creditors on which the attachment issued. It is insisted on behalf of said Kent that this court have jurisdiction. And that the trustees have power to adjudicate in this matter. M. FILLMORE, counsel for Kent. S. G. HAVEN," attorney for Kent. W. H. GREENE, counsel and attorney for attaching creditor. By the court, NELSON, Chief Justice. We are all inclined to think that the statute is broad enough to enable the non- resident debtor to contest the validity of the debts presented and claimed against him under and in pursuance of the 19th and several succeeding sections of the statute (1 R. S.p. 800, t.) The propriety and justice of such a construction, if fairly within the language, is manifest. The grossest frauds [*82J and impositions might be practiced, unless an oppor- tunity is, in some way, afforded to contest pretended claims before the trustees. The non-resident debtor is most deeply interested in the question. Mandamus allowed. Kule accordingly. ABRAHAM GOODENOW agt. HORACE BUTLER et al. A stipulation by plaintiff to try at the next circuit, operates to compel a trial at the succeeding circuit, where the cause was not reached at the first circuit after the stipulation. February Term, 1845. MOTION by defendants for judgment as in case of nonsuit. The plaintiff had stipulated to try at the next circuit. The cause was duly noticed at the next circuit, but was not reached on the calendar. At the next circuit thereafter cause was called and passed, and younger issues tried, defendants now move on the stipulation. It is answered that it applies only to the next circuit after it is entered into. NEW-YORK PRACTICE REPORTS. 81 Alston agt. The Mechanics' Mutual Insurance Company. MATTISON & DOOLITTLE, defendants' attorneys. A. BIRDSALL, plaintiff 's attorney. NELSON, Chief Justice. The true meaning of stipulation is, that plaintiff shall try his cause the first opportunity afforded him, and it cannot be tried at next circuit by reason of not having been reached, there is no default to be taken advan- tage of, nor is there complete fulfilment of the legal effect of the stipulation on the part of the plaintiff. It should be re- garded as operating to compel a trial at the succeeding circuit. Motion granted ; but with leave to stipulate. Kule accordingly. DAVID ALSTON agt. THE MECHANICS' MUTUAL INSURANCE COMPANY, in the city of Troy. A plaintiff may amend his process and declaration by changing the form of action, from covenant to assumpsit, upon payment of costs of opposing motion only, where it appears the defendant did not raise the objection until the cause had been through a long course of litigation, and the defendants in the first place erroneously issued the instrument declared on, by not affixing their seal. The terms, in these amendments, are always discretionary with the court each case depending upon its circumstances. February Tkrm, 1845. MOTION by plaintiff for leave to amend the summons and declaration in this cause, by converting them into a summons and declaration in *assumpsit, upon the [*83] same policy of insurance declared on in this cause. On the part of plaintiff, it appears this was an action brought upon a policy of insurance, as an instrument under seal ; the same being issued by the defendants, and delivered to the plain- tiff as a sealed instrument. The action was commenced in January, 1839 ; the defendants pleaded the 26th February, 1839 ; issue being joined, the cause was noticed for trial 1st March, 1839, for the circuit held on the 3d Monday of said March. The circuit judge, at said circuit, on motion of plain- 83 NEW-YORK PRACTICE REPORTS. Alston agt. The Mechanics' Mutual Insurance Company. tiff, made an order to refer said cause, which was opposed by defendants ; but reserving to said defendants the right to apply to this court to vacate such order of reference. In June, 1839, the defendants moved to vacate said order of reference, which was denied by this court; the circuit judge subsequently ap- pointed referees in the cause. The cause was tried before said referees on the 15th November, 1839. The referees reported specially in favor of the defendants, and in their report stated : " The plaintiff produced in evidence, a policy of insurance, under the seal of the defendants, which was admitted by the defendants' counsel to be their deed, and was read in evidence on the part of the plaintiff." Which said policy so referred to, is the same policy upon which this suit is brought. Upon said special report of the referees, the motion to set aside their report in favor of the defendants, was argued in this court and denied. Said decision appears in 1st vol. of Hill, 510, and turned entirely upon the questions raised and argued upon the reference. The cause was subsequently carried by the plain- tiff to the court of errors, where the previous decision of this court, and the finding of the referees in favor of the defend- ants were set aside and reversed. The cause came on again for a hearing before the referees, on the 21st April, 1843. On said hearing, the plaintiff's attorney produced and offered in evidence the aforesaid original policy of insurance ; whereupon the execution of the said policy was again admitted by the attorney and counsel for the defendants, without reservation or qualification ; and the same read in evidence as the deed of defendants, without objection, and without any other proof than the admission aforesaid. Plaintiff closed his evidence and rested his cause on the said 21st of April, 1843. The de- fendants opened on the part of the defence, and introduced evidence, when the further hearing was adjourned from time to time, until the 6th of May, 1843 ; on which day, the de- fendants' counsel, for the first time, insisted that the said policy was not under seal ; and upon that ground, with others, argued to the referees that said plaintiff could not main- [*84] tain his *action the evidence was closed on said 6th NEW-YORK PRACTICE REPORTS. 84 Alston agt. The Mechanics' Mutual Insurance Company. May, 1843. The referees reported in favor of the plain- tiff. The defendants moved this court to set aside said report, which was granted, entirely on the ground that said policy was not under seal. On the part of the defendants, it appears, that the plaintiff commenced this suit by original writ or summons in covenant. Defendants pleaded to the de- claration, that the policy of insurance upon which this suit was brought, was not the deed of the defendants. The defend- ants allege that said policy of insurance was obtained from defendants by a false and fraudulent representation, as to the manner in which the plaintiff would use and keep the base- ment of the house, upon which said policy was effected. The defendants' attorney on first hearing, mainly relied upon the defence arising upon the merits out of such false representa- tions, and principally directed his attention to that point in preparing for the trial ; and upon this point this court refused to set aside the report of the referees ; which decision and the report of the referees, was subsequently reversed and set aside by the court of errors. On the second hearing, defendants state, that their attorney and counsel did not admit that the said policy was the deed of the defendants, but on the contrary, before the testimony in said cause was closed, and before the summing up of the same, both the attorney and counsel for de- fendants, distinctly stated and claimed before said referees, that under the aforesaid plea they should claim that said policy was not their deed, as the defendants had pleaded. The defendants insist the plaintiff's claim is unjust and unconscionable, and if allowed to mend his process and pleadings in this cause, will avail himself of a technical rule of law, as established by the court of errors, to recover a loss, which in the judgment of said referees and of this court, has been occasioned by a breach of good faith. The plaintiff, on 6th May, 1843, if not before, discovered his error ; this was before the trial was closed, and he should then have applied for leave to amend. But having chose to go on and run the risk of the legal question raised, he cannot now call it a mere inadvertence or mistake. It was a question upon which he took issue with the defendants, and 84 NEW-YORK PRACTICE REPORTS. Alston agt. The Mechanics' Mutual Insurance Company. he should .not now be permitted to shift the responsibility of the result. Defendants cited the following cases in support of their position : Lynch agt. Mechanics' Sank, 13 J. R. 127 ; 5 Wend. 74 ; 1 Chitty's PI 284 ; 5 J. R. 402 ; Green et al agt. Milton, 24 Com. Law R. 75 ; 4 Barn. & Add. 369 ; 6 Taunt. 483 ; 6 Cow. 668 ; Miller agt. Watson, 6 Wend. ; Flowers, Executors, &c., agt. Garr, 20 Wend. The plaintiff insists the rule [*85] *to be well established that amendments will in all cases be allowed to promote equity between the par- ties ; and where the matter really in controversy between the parties has been fully tried upon the merits, the court uni- formly disregard objections not going to the merits, and allow amendments without costs. That in this case the merits have been tried, and found by the referees in favor of the plaintiff. He should be permitted to amend without costs, to avoid the formal objection taken by the defendants. The error in the form of action originated in a mistake which was occasioned by the fault of the defendants, and which they have, by their affidavits and admissions on the trial, and uniform conduct daring a six years' litigation, induced the plaintiff to over- look; and after having been fairly beaten upon the merits, they now seek, Toy a resort to this formal objection, to charge the plaintiff with the costs which they have occasioned. Plain- tiff cited the following cases ; 2 R. S. 2d ed. 343, 344 ; Aylwin agt. Todd, 27 Com. Law ; Billing &,. Flight, 6 Taunt. 419 ; Bil- ling agt. Pooley, 6 Taunt. 422; Avery agt. Merwin, 6 Cow. 366 ; Burlingame agt. Burlingame, 7 Cow. 92 ; Daley agt. At- wood, 7 Cow. 483 ; Borst agt. Griffin, 9 W. 309, 311 ; Carpen- ter agt. Payne, 10 W. 604 ; Oothout agt. Ledings, 15 W. 410 ; Weed agt, S. & S. R. R. Co., 19 W. 541, 542 ; Ryers agt. Wheekr, 22 W. 148; Gillet agt. Stanley, I Hill, 121 ; East Boston Timber Co. agt. Perry, 2 Hill, 126. M. T. EEYNOLDS, plaintiff' s counsel E. C. LITCHFIELD, plaintiff's attorney. S. STEVENS, defendants 1 counsel. D. L. SEYMOUR, defendants' 1 attorney. NEW-YORK PRACTICE REPORTS. 85 Alston agt. The Mechanics' Mutual Insurance Company. NELSON", Chief Justice. The cases referred to in -the plain- tiff's brief are full, to show that he is entitled to the amend- ment moved for ; and that upon payment of costs of opposing motion only (see the cases there referred to). The cases in 6 Taunton, 419, 422, are very much in point as to the amend- ment; also in 1 Bing.' N. 0. 170. When deciding this case on the motion to set aside the report, I felt that the objection to the form of action was, under the circumstances, an ungra- cious one, coming as it did for the first time at that stage of a very prolonged litigation ; and am glad to find we have authority for relieving the party from the slip. Indeed I am of opinion that the company are mainly chargeable with the mistake : they put forth the paper as under their seal ; and so all parties supposed, till late in the litigation, and acted ac- cordingly. Motion granted on payment of costs of opposing motion. After deciding this case, my attention has been called to the case of Downer agt. Thompson, since published in 6 Hill, 377 ; as conflicting with the decision in *this [*86] one, in respect to the terms on which the amendment is allowed. I have submitted the point to my brethren, and we are all of opinion that there is no conflict between the two cases, and that the disposition of this one is right. In Dow- ner agt. Thompson, the objection was taken the first opportu- nity by the defendant, thereby calling the attention of the plaintiff to it at once ; who, notwithstanding, proceeded with the cause. Here, the cause proceeded to trial, brought before this court upon other questions of law raised by the defend- ants, carried to the court for the correction of errors, the judgment reversed with venire de novo ; and then, on the new hearing, the objection started for the first time. An objection strictly technical, going merely to the form of the action : during the whole of this protracted litigation, all parties assumed, and conducted the trial accordingly, that the policy was under the seal of the defendants ; and I must say I think the defendants most in fault, having put forth the instrument as under seal in the first instance. Of course, I do not mean to intimate there was any intentional wrong in the case ; for 86 NEW-YORK PRACTICE REPORTS. Yan Valkenburgh agt. Van Alen. I have no such belief; but the course of the proceeding has been such, that I think, upon a fair and proper view of it, the defendants are not entitled to receive the heavy accumu- lation of costs that have accrued by reason of their own neglect in putting forth the objection. In all these cases of amendments, the terms are discretionary, depending upon the circumstances of each case. CATHARINE VAN VALKENBURGH agt. ISAAC P. VAN ALEN. Subpoena tickets made out in good faith for trial at circuit, are chargeable, al- though not served, where the cause by arrangement is referred. The act of 1844 is retrospective in its operation upon costs incurred under the act of 1840, if taxed since the act of 1844. February Term, 1845. MOTION by defendant for retaxation of costs. Defendant objected on taxation to $1 for attending judge to obtain order for bill of particulars ; one dollar, for appear- ing on the day to show cause ; twelve subpoena tickets, $3, upon the ground that said tickets had not been served, and because the attorneys for the respective parties mutually agreed to refer said cause on the morning of the first day of the circuit, and the same was referred by the circuit judge. $2.00, for counsel perusing and amending declaration : first, because there was no certificate of counsel produced, showing that the service had been performed, and said declaration was special ; second, because it was not a taxable item under the fee bill of 1840, under which the costs in this cause [*87J must be taxed, *as the suit was commenced before the amendments of 1844, and before said fee bill went into operation : and, third, that said declaration contained only the common counts. And $3 for counsel attending court to try, because the cause was referred before trial, and that no such fee was allowable under the act of 1840, the suit having been commenced before the act of 1844. NEW-YORK PRACTICE REPORTS. 87 Maher agt. Comstock. J. KOON, defendant's counsel. , C. P. ScHERMERHORN, defendant's attorney. M. T. KEYNOLDS, plaintiff's counsel. W. H. TOBEY, plaintiff's attorney. NELSON, Chief Justice. The charge of $1.00 for attending judge to obtain order for bill of particulars is not taxable. The charge of $1.00 for appearing on the day to show cause, is taxable. If subpoena tickets are actually made in good faith for the circuit and the cause is subsequently disposed of by arrangement between the attorneys to refer the same, the charge for the tickets is taxable, although not served. The charge for the subpoena tickets $3.00 is therefore allowed. The charge for perusing and amending declaration, and coun- sel attending prepared to try, are allowable, if actually ren- dered, although the suit were commenced prior to the act of 1844, if the costs were not taxed until after that act went into operation, which is the fact in this case. Kule accordingly. JAMES MAHER agt. ALLEN COMSTOCK and PETER COMSTOCK. A plea served by mail, on the last day for pleading, after the close and departure of the mail for its place of destination, the time of such departure being well known to the party serving, hdd bad. February Term, 1845. MOTION by defendants to set aside default of Allen Com- stock and all subsequent proceedings for irregularity. It appears on the part of defendants that the declaration was served 19th November last, on defendant A. Comstock. On the 9th December following and before six o'clock P. M., de- fendants' attorneys served on plaintiff's attorneys plea and notice, by inclosing same, together with another plea, in a wrapper, addressed to plaintiff's attorneys at Albany, and putting same in post-office at Troy, and paying the postage VOL. I. 9 87 NEW-YORK PRACTICE REPORTS. Maher agt. Comstock. (eighteen and three-quarter cents) thereon. On the llth December, defendants' attorneys were informed by plaintiff 's attorneys that A. Comstock's default was entered on the 10th December, which defendants' attorneys on examination found to be the fact. On the part of plaintiff it appears that the declaration was served on A. Comstock on the 18th [*88] November last. On the morning of the 10th *Decem- ber last, no plea having been received, his default was entered and judgment perfected. On the morning of the llth December plaintiff's attorneys received from the post-office a package from defendants' attorneys, postmarked at Troy, December 10th, containing a plea in this and another cause, with affidavits and notices of set-off. On the said llth De- cember, plaintiff's attorneys advised defendants' attorneys of the receipt of the plea, &c., and objected that it was served too late. Plaintiff's attorneys show that a daily mail from Troy to Albany closes at Troy at four o'clock P. M., and departs at five o'clock P. M. ; that a letter deposited in the post-office at Troy, after the closing of said mail, would not leave the city of Troy until five o'clock in the afternoon of the succeed- ing day. Also that the hour of closing said mail and its de- parture for Albany is publicly known to all business men in Troy. E. CLARK, defendants' counsel. CLARK & PATTISON, defendants' attorneys. P. CAGGER, plaintiff's counsel. CAGGER & STEVENS, plaintiff's attorneys. NELSON, Chief Justice. The service of the plea must be held bad, being served on the last day after the hour for closing the mail. The default being regular, defendants must come in, if at all, on terms. Decision. That on payment of costs of default and sub- sequent proceedings, and costs of opposing motion, the cause be referred. Judgment and execution to stand as security. NEW-YORK PRACTICE REPORTS. 88 Butts agt. Campbell. SAMUEL L. BUTTS agt. MAJOR A. CAMPBELL. Where the plaintiff noticed his cause for trial, on information that the certiorari had been returned and filed, which was brought by defendant, and it appeared it had not been filed, through neglect of defendant. Motion for judgment as in case of nonsuit was denied with costs. February Term, 1845. MOTION by defendant for judgment as in case of nonsuit. It appears on the part of defendant that the action in this cause was commenced in the Erie common pleas, and after issue joined, the defendant brought a certiorari to remove the same into this court. On the 4th November last, plaintiff's attorney noticed the cause for trial at the circuit held on the third Tuesday of November last. Defendant prepared for trial, the cause was not brought on to trial by plaintiff, and younger issues were tried. It appears on the part of plaintiff that his attorney resides about twenty miles from Buffalo, and that when the attorney sent a notice of trial in the cause to his agent at Buffalo, on the 4th November last, he requested said agent to ascertain, before serving said notice of trial on defendant's ^attorney, if the certiorari and return [*89] had been filed in this cause : if it had, to serve the notice ; he afterwards received an answer from his agent that the return was made and that he had served the notice of trial. On the 17th November he received a letter from the clerk of Erie county that the return had not been filed. It further ap- pears on the part of plaintiff that the county clerk had informed defendant's attorney previous to and on the th November last, that said certiorari and return were ready to be filed, and that he would file them as soon as the fees and postages were paid ; that defendant's attorney never had paid or offered to pay the same. C. H. BRAMHALL, defendants counsel. ELI COOK, defendants attorney. 89 NEW-YORK PRACTICE REPORTS. Birdsall agt. Taylor. M. FILLMORE, plaintiffs counsel. I. E. IRISH, plaintiff's attorney. BEARDSLEY, Justice. The motion must be denied with costs. Eule accordingly. AUSBURN BIRDSALL, Assignee, &c. agt. NATHAN TAYLOR et al. Where service of papers is made by mail, no part of the writing, composing any part of the papers served, must be written on the wrapper. February Term, 1845. MOTION by the defendants to set aside the proceedings in this cause. The plaintiff showed that the papers for this motion were not duly served according to the 101st rule of this'court ; be- cause they were not inclosed in a wrapper ; that the copy or- der staying proceedings, and the notice of motion are written upon the inside of the outside covering of the letter or pack- age containing the affidavit. So that upon the inside of said covering, appears the copy order and notice of motion, and upon the outside, the direction and postmarks. S. P. NASH, defendants' counsel. H. BENNETT, defendants 1 attorney. P. CAGGER, plaintiff' 1 s counsel. A. BIRDSALL, plaintiff's attorney. NELSON, Chief Justice. The service does not appear to come within the rule. Decision. Motion denied with costs, without prejudice. NEW-YORK PRACTICE REPORTS. 89 Robinson agt. Merritt. HENRY HERRING agt. MATTHIAS A. HALLENBECK et al. It is not necessary to move the court for a precept to collect the amount of costs, which are given for appearing prepared to oppose a motion, which is not made pursuant to notice. The precept issues under the statute. February Term, 1845. MOTION by plaintiff ex parte, at the last December special term, for *leave to issue a precept to collect [*90] costs of a motion. Defendant's attorney served affidavits and notice of motion to change the venue in thjs cause, for the September special term, but failed to make the motion ; and on the last day of the term, plaintiff took a rule for seven dollars costs, for pre- paring and appearing to oppose the motion, not made pursu- ant to notice. No copy of the rule has been served on defend- ant, or demand made for payment of costs. And plaintiff asked leave at this term, to issue a precept. C. STEVENS, plaintiffs counsel. H. L. PALMER, plaintiff's attorney. BRONSON, Justice. It is not necessary to make a motion for a precept ; it issues under the statute as in the ordinary way, where a motion is denied with seven dollars costs. JOSEPH KOBINSON agt. WILLIAM W. MCCLELLAN and ED- WARD MERRITT. Where a party changes his attorney in the course of the progress of a suit, substi- tution of attorneys must be duly entered, and notice thereof given to the op- posing attorney, otherwise the attorney substituted cannot legally move in the cause. February Term, 1845. MOTION by defendants for judgment as in case of nonsuit 90 NEW-YORK PRACTICE REPORTS. The People agt. The Mayor, &c., of New- York. It appears oil the part of plaintiff, that defendants appeared and pleaded separately, by the defendant McClellan, who is an attorney of this court ; that the notice for this motion is signed by George Case, as attorney for both defendants. That plain- tiff's attorney has never received any notice of substitution of attorneys for defendants, iu the place of McClellan ; and be- lieves no rule of substitution has been entered. J. L. TILLINGHAST, defendants' counsel. GEO. CASE, defendants' 1 attorney. P. CAGGER, plaintiff's counsel. J. W. MILLS, plaintiff's attorney. NELSON, Chief Justice. Held that substitution of defend- ants' attorney should have been duly entered, and notice there- of served on plaintiff's attorney, before making motion. Decision. Motion denied with costs. THE PEOPLE ex rel. ANDREW SMITH et al. agt. THE MAY- OR, ALDERMEN, &c., OF THE CITY OF NEW-YORK. An application for leave to make up a record, with a view to remove the cause to the court of errors ; upon a decision of this court quashing a certiorari for er- rors appearing upon the face of the writ, and not upon the merits, will not be allowed. February Term, 1815. MOTION by plaintiffs, that the plaintiffs have leave [*91] to make up and file a *record of the judgment of this court on the certiorari in this cause. It appears on the part of plaintiffs, that the writ of certio- rari in this cause was quashed by this court, by a rule of 6 January, 1844. That the plaintiffs are desirous, and have been advised to bring a writ of error to this court, to remove the cause to the court of errors; that no record has been made up and filed. On the part of the defendants, it appears, NEW-YORK PRACTICE REPORTS. 91 Sherman agt. Chittenden. that the certiorari in this cause was allowed for the purpose of bringing before this court an assessment, relative to the extension of a sewer, in the Sixth Avenue, in the city of New- York, that although a return had been filed to said certiorari previous to the said motion, such return was not before the court on the argument of the said motion, nor considered in the decision thereof; that the return has never been before the court on argument in any shape. That the motion was founded solely on the face of the certiorari itself, and of the affidavit of the relators, upon which it had been allowed. And the grounds urged for quashing the writ, were, that it would not lie to review proceedings of such a character as an assessment for a sewer ; not being judicial in their nature ; and alleged it had been improvidently allowed. J. RHOADES, counsel for relators. S. B. H. JUDAH, relators' attorney. P. C AGGER, counsel for defendants. R. EMMET, defendants' attorney. NELSON, Chief Justice. Held that the proceedings could not be reviewed by writ of error, the certiorari being quashed upon error appearing upon the face of the writ, and not upon the merits which the return was intended to bring before the court ; there was nothing to be brought up on a record. WILLIAM L. SHERMAN agt. VIRGIL CHITTENDEN. A motion to set aside an inquisition taken before a sheriff's jury, on the ground that improper evidence was admitted, cannot be made at special torm. It is a calendar cause. February Term, 1845. MOTION by plaintiff to set aside the inquisition executed in this cause, on the ground of irregularity in the admission of improper evidence ; and also that the plaintiff be permitted 91 NEW-YORK PRACTICE REPORTS. Gregory agt. Travis. to issue a new writ of inquiry, to be executed, and the dam- ages assessed before the circuit judge at the circuit. It appears this is an action brought for libel ; that an in- quisition was taken before a sheriff's jury ; the defendant per- mitting a default to be taken against him for not pleading. On the execution of the writ of inquiry before the deputy sheriff, it appears witnesses were examined for both [*92] *parties, and the testimony given at length in the papers for this motion. The plaintiff alleging that improper evidence was admitted by the deputy sheriff. M. T. REYNOLDS, plaintiff's counsel. WM. L. SHERMAN, attorney in pro. per. A. TABER, defendant's counsel. SKINNER & ROGERS, defendant's attorneys. NELSON, Chief Justice. Held that this is a calendar cause, and cannot be decided on motion at special term. Motion denied, with costs, without prejudice. LYMAN GREGORY agt. JOHN TRAVIS. MARIA L. GREGORY, by her next friend LYMAN GREGORY agt. JOHN TRAVIS. On motions for judgment as in case of nonsuit in two causes between the same parties, and being alike in all respects ; defendant is entitled to costs of each motion on a tender of stipulation to try: February Term, 1845. MOTION by defendant for judgment as in case of nonsuit, in each cause, with costs. The motions in these causes were made upon affidavits, showing that the issues were joined in September last, and that the plaintiff did not notice the same for trial at the last January circuit, in the county where the venue in each is laid. The plaintiff shows that he did not bring the same to NEW-YORK PRACTICE REPORTS. 92 Archer agt. Douglass. trial, for the reason that an important witness was absent, without whose testimony he could not safely proceed to trial ; that when he received the papers for the motions in these causes, he served on defendant's attorney a stipulation to try at the next circuit, and offered to pay the actual costs made, up to the time of tendering the stipulation. Defendant's at- torney required ten dollars costs in each cause for preparing to make the motions, which plaintiff's attorney refused to pay. It was insisted by plaintiff's counsel that both causes were really between the same parties, and alike in all respects ; and that plaintiff ought to pay the costs of only one motion. BEARDSLEY, Justice. Held that defendant was entitled to costs of motion in each case. Decision. Motion granted unless plaintiff stipulate and pay costs, and the costs of the motion in each suit. *MICHAEL ARCHER agt. JAMES B. DOUGLASS et dl. [*93] On a motion by defendant for leave to plead a release under seal in full, in bar of the action of plaintiff after the cause has been noticed for trial at three cir- cuits, and it appears the defence sought to be interposed by such release is merely technical ; it will be denied with costs. February Term, 1845. MOTION by defendants for leave to amend the plea of said defendants, interposed in this cause, by pleading a release (executed by plaintiff to the defendant Douglass), in bar of the action. It appears on the part of defendant Douglass, that he has a full release under seal from plaintiff for the demand in this suit, which was executed in June, 1842 ; it was in his posses- sion until a few days before the October circuit, 1844, at which this cause was to be tried, when he inclosed it to his attorneys at Albany, to produce and prove on the trial. The attorneys for defendants were ignorant of such release until 93 NEW- YORK PRACTICE REPORTS. Archer agt. Douglass. they received it from defendant. They had pleaded to the action (which was debt on bond) the general issue, and given notice of special matter. They now move to be permitted to plead the release in bar of the action as to defendant Douglass. Plaintiff shows that this action is brought on a bond of indem- nity, given by defendants to plaintiff, as sheriff of Albany, for levying on certain goods. In a former suit against plaintiff, and a partner of one of the present defendants, for levying on said goods, the release mentioned by defendant Douglass at the request of said partner, was executed on the trial, for the purpose of using Douglass as a witness ; and he was accord- ingly used as a witness on that trial, which resulted in a ver- dict and judgment against plaintiff and the other defendant, whose name is Van Yliet. Plaintiff has since settled the same. The issue was joined in this cause in November, 1843, and has been noticed at three different circuits for trial, and put over each time by defendants. Plaintiff also shows that de- fendant Douglass was not at the time of executing the release by plaintiff, to him as aforesaid, a person of any pecuniary re- sponsibility ; and is not at the present time. I. HARRIS, defendants' counsel. HARRIS & SHEPARD, defendants' attorneys. S. STEVENS, plaintiff's counsel. CAGGER & STEVENS, plaintiff's attorneys. NELSON, Chief Justice. Held that the defence was merely technical, and after such a lapse of time he should refuse to let in the amended plea. Decision. Motion denied with costs of opposing motion, and of the last circuit. NEW-YORK PRACTICE REPORTS. 94 Payn agt. Parks. *AMAZIAH PAYN agt. TABER PARKS. [*94] A landlord has a right to defend in the name of the tenant in an action of eject- ment. A settlement by the tenant with the plaintiff, without the consent of the landlord or his attorney, stipulating to discontinue the suit without costs, operates as a fraud upon defendant's attorney ; where it appears the tenant has never acted at all in the suit ; the defence being carried on altogether by the landlord. The papers showing the tenant and landlord to be insolvent. February Term, 1845. MOTION by defendant to set aside a rule entered in common rule book, discontinuing this suit without costs. It appears from defendant's papers, this is an action of eject- ment, that the defendant was a tenant for one year of the premises ; the landlord, William Forkson, received the decla- ration from defendant immediately after the service on defend- ant, and employed counsel to defend, and was considered and treated as the real defendant in the cause; the defendant Parks never having anything to do with the suit, and left the premises after one year's occupation ; the declaration was served in the year 1839. Plaintiff being a non-resident, was required to file security for costs ; that two other suits were commenced the same time against one Simmons and one Beal by the same plaintiff, being actions of ejectment, and all three suits brought for the recovery of the same piece of land. The same attorney was employed to defend said actions, by said Forkson, as landlord for the three tenants named, who were made defendants ; and that the three suits, together with two others brought by said plaintiff against said Forkson, for the same and other premises, were all carried on together. At the last April circuit, the cause against Beal was tried, and plaintiff nonsuited. Plaintiff then refused to try the other two. A bill of exceptions was made and settled in the cause tried, and was noticed for argument at the last July and Oc- tober terms. Shortly before the January term last, defend- ant's attorney was served with a copy rule discontinuing this cause (and the two others against Simmons and Beal), without 94 NEW-YORK PRACTICE REPORTS. Payn agt. Parks. costs. Defendant shows that a stipulation was signed by the defendant Parks at the instigation of one Smith Griffith, the surety of plaintiff for costs, some time last December, on Griffith giving him a bond of indemnity, which was the first act the defendant Parks had ever undertaken to do about the suit. Defendant's attorney had before cautioned said defend- ant Parks not to meddle in any manner in this suit. At the June special term last, defendant made a motion in this cause for judgment as in case of nonsuit, for not trying at the April circuit. A rule was granted by the court directing this cause to abide the event of the suit of Payn agt. Beal, and that plaintiff should pay the costs of circuit and of motion ; [*95] a *copy of which rule was served on plaintiff's attor- ney. The defendant's counsel insisted that the effect of such rule to discontinue without costs would be to deprive defendant's attorney of his costs in the suit, as defendant Parks was irresponsible. Plaintiff shows that a mortgage was executed by one Has- kin and wife, and said William Forkson and his wife, to one Miles Beach, in the year 1836, of about two hundred acres of land, commonly called the Payn farm (formerly owned by said plaintiff) ; and including the premises for which this ac- tion was brought. Subsequently Smith Griffith became the assigneee of said mortgage and accompanying bond, and in September, 1844, he sold said mortgaged premises, which were bid off and purchased by said Griffith. That said Grif- fith represented these facts to said defendant Parks, and pro- cured the stipulation above mentioned, to discontinue this suit without costs. Plaintiff also shows that said Forkson is wholly and utterly insolvent ; and that defendant Parks had stated to said Griffith he had never authorized or employed any person to appear or defend for him in this suit. Plaintiff's counsel insisted that Forkson could not defend in the name of the tenant and have control of the suit. S. STEVENS, defendants counsel. J. KOON, defendant's attorney. NEW-YORK PRACTICE REPORTS. 95 Merritt agt. Seacord. D. CADY, plaintiff's counsel. S. G. HUNTINGTON, plaintiff's attorney. NELSON, Chief Justice. Held, that Forkson had a right to defend in the name of the tenant, and that the settlement with the tenant operated as a fraud upon the attorney. Decision. Motion granted with costs. The same decision in the cases of Payn agt. Simmons, and Payn agt. Beat. EDWARD MERRITT agt. JAMES SEACORD. A parol settlement of a suit between the parties, held good, to defeat a motion for judgment as in case of nonsuit. February Term, 1845. MOTION by defendant for judgment as in case of nonsuit. This is an action of ejectment ; issue joined May, 1842. The cause has never been noticed for trial. A circuit court was held in November last, in "Westchester county, where the venue is laid ; and younger issues at said circuit were tried. Defendant's attorney states that the cause has never been set- tled or arranged in any manner to his knowledge or belief, between the parties ; and that he has never consented to any settlement or arrangement of said cause, as attorney for the defendant. On the part *of the plaintiff it ap- [*96] pears that this suit, together with all other matters in difference between the plaintiff and defendant, were submitted by agreement to one Tonlice and Purdy for settlement, and Tonlice and Purdy agreed how the parties ought to settle ; and named to them the terms, to which they agreed ; the plaintiff then stated that this suit was abandoned ; this was in the fall of 1842. It appears the settlement aforesaid be- tween the parties was all done by parol. And the defendant's 96 NEW-YORK PRACTICE REPORTS. Hunter agt. Schuyler counsel insisted that a parol settlement or agreement to settle was not binding. J. W. TOMPKINS, defendants attorney. M. MITCHELL, plaintiff's attorney. NELSON, Chief Justice. Held the settlement good, and denied the motion with costs, and ordered the suit to be discontinued. Eule accordingly. DAVID HUNTER agt. CORNELIUS SCHUYLER, late Sheriff. A motion for a perpetual stay of execution, or to permit .the defendant to come in and plead his bankrupt discharge is a matter of discretion with the court. February Term, 1845. MOTION by defendant for a perpetual stay of execution upon the judgment in this cause, or that the verdict and judg- ment be opened and the defendant be permitted to plead his discharge (in bankruptcy) and certificate of discharge, puis darien continuance, on such terms as the court shall deem proper. It appears that this suit was commenced in August, 1842, against the defendant for money received by him as sheriff, for the redemption of property, which plaintiff had previously purchased at sheriff's sale. The cause was tried at the circuit in Albany county, in January, 1843 ; and the only question on the trial was, whether the defendant was liable in his offi- cial capacity, or individually ; the declaration was against the defendant as late sheriff of the county of Kensselaer. On the trial the defendant produced a receipt from plaintiff, which went to prove that plaintiff had loaned defendant the money, which he claimed. The jury found a verdict for plaintiff for the whole amount claimed, being over $1,100. The defend- ant brought the cause before this court for the purpose of ob- taining their decision on the question, whether he was offi- NEW-YORK PRACTICE REPORTS. 96 Campbell agt. Spencer. cially or individually liable. This court denied the motion for a new trial, on the ground that the defendant was liable individually and not officially; that the declaration was merely descriptive of the person. The defendant now moves for a perpetual stay of execution *on the judg- [*97] ment, &c., as he shows, on the 7th November, 1842, he presented his petition for a discharge ; that among the list of debts made out as owing by him, the claim for which the plaintiff was then prosecuting him for, was mentioned as one. On the 10th of April, 1843, defendant received his discharge. A. TABER, defendants counsel. HAYNER & JOHNSON, defendants attorneys. D. WRIGHT, plaintiff's counsel. H. C. WHELPLEY, plaintiff" 1 s attorney. NELSON, Chief Justice. The circumstances are very strong against the defendant ; he received the money as a public officer, and is not entitled to any equity from the court. It is a matter of discretion with the court entirely ; andt aking all the circumstances of this case into consideration, the motion must be denied with costs. Kule accordingly. DRYDEN H. CAMPBELL agt. ELIZA SPENCER. When service of papers is made by leaving them in a conspicuous place in the office, the affidavit must state, that there was no person in the office at the time. % February Term, 1845. MOTION by defendant to vacate a stipulation referring this cause. This motion was denied on the ground of defective service of the papers for the motion. The affidavit of service reads as follows: "being duly sworn, says, that on the 27th day of January instant, at about 5 o'clock in the afternoon of that day, he served on L. H. Card, the plaintiff 's attorney, a copy 9 7 NEW-YORK PRACTICE REPORTS. Spencer agt. Stevens. of the foregoing affidavit and notice, by leaving the same in a conspicuous place in his office at the time above mentioned, the said L. H. Card being then absent therefrom." 0. ALLEN, defendant's counsel. E. H. MARTIN, defendant's attorney. M. T. EEYNOLDS, plaintiff's counsel. L. H. CARD, plaintiff's attorney. NELSON, Chief Justice. The affidavit does not come within the rule. It should state that no person was in the office at the time of such service. Motion denied with costs, without prejudice. MARK SPENCER agt. HENRY P. STEVENS et al. A motion to change venue is too late where a circuit is lost. February Term, 1845. MOTION by defendant Stevens to change the venue from the city and county of New-York, to the city and county of Albany ; on the usual affidavit, for nine witnesses. Plaintiff shows that the action is assumpsit brought [*98] *upon a promissory note ; declaration served on Ste- vens, October 14, 1844, issue joined November 4. On the 6th December, the default of the other defendant was en- tered, and on the 7th December this cause was noticed for trial for the circuit on the 4th Monday of December. On the 17th December, plaintiff's attorney received the papers for this motion. Plaintiff alleges delay to be the object of the motion. W. "W. FROTHINGHAM, defendants' counsel LANSING & PRUYN, defendants' attorneys. L. HOYT, plaintiff's attorney. NEW-YORK PRACTICE REPORTS. 98 Clark agt. Fraser. NELSON, Chief justice. The plaintiff has lost a circuit ; the motion comes too late. Motion denied with costs. GEORGE W. CLARK agt. ALEXANDER FRASER et al. Where two referees agree to a report, and the other dissents, saying to the two, who agree, that they can sign the report without his being present ; and it is so done the next day, the cause being considered as determined ; held, that the report is good. February Term, 1845. MOTION by plaintiff to set aside report of referees in this cause for irregularity. This cause was referred by consent, in September last, to three referees. In December last it was submitted to said referees after an extended investigation. On the 25th Decem- ber last all the referees met and had a disscussion of the cause. All the referees again met pursuant to agreement on the 26th December last ; and one of the referees had written out an opinion in the cause, which was then read ; which opinion came to the conclusion that there was nothing due from the defendants to the plaintiff. Two of the referees agreed with the opinion, and the other dissented. The subject was dis- cussed at some length ; when the referee who dissented from the opinion, remarked that two had agreed, and they could sign the report without him. The next day the report was signed by the two who had agreed ; and it was understood by all the referees at the time, that the cause was determined on the day previous to signing the report, when all the referees were together. Plaintiff's counsel cited 11 J. R. 402 ; SJ.R. 39 ; 2 John. Cases, 346 ; 7 Cow. R. 410, 526 and note 730 ; 2 Maul & Sel. 141 ; 2 R. S. 306, 46 ; 3 R. S. 732, 56, 57 ; 2 R. S. 458, 27; 3 R. S. 780, 44. R. W. PECKHAM, plaintiff's counsel. H. P. HASTINGS, plaintiffs attorney. VOL. I. 10 99 NEW-YORK PRACTICE REPORTS. Colvin agt. Alvord. F. H. HASTINGS, defendants' counsel. H. W. BECKWITH, defendants' attorney. [*99] *It was insisted on the part of the plaintiff, that the signing the report when all the referees were not to- gether was irregular. NELSON, Chief Justice. Held, that the report having been agreed upon the day previous by the two who signed it, and the other having agreed to dissent from their conclusion, the conclusion and determination of the cause was made by the referees on that day, and that the fact of all not having been present when the report was signed the next day, was im- material. Decision. Motion denied with costs. HIRAM COLVIN agt. AUGUSTUS ALVORD et al A notice of assessment of damages given before default entered, is irregular. Plaintiff will not be allowed to amend nunc pro tune. February Term, 1845. MOTION by defendants to set asi(Je the judgment in this cause, and any assessment of damages that may have been made therein prior to said judgment. On the 25th day of November, 1844, defendants' attorney served on plaintiff's attorneys notice of retainer in this cause. On the 26th November, defendants' attorney received from plaintiff's attorneys notice of assessment of damages. The de- fault was entered as to both defendants on the 27th November. Judgment docketed on the llth day of December, 1844, no clerk's report having been filed, or rule for final judgment entered. It was insisted by defendants' counsel that notice of assessment of damages before default was entered was irregular. Plaintiff's counsel insisted notice of assessment might be given. de bene esse. NEW-YORK PRACTICE REPORTS. 99 Hall agt. Gordon. B. W. PECKHAM, defendants' counsel. I. DORR, defendants' attorney. M. T. BEYNOLDS, plaintiff 's counsel. HAIGHT & CHASE, plaintiff' 1 s attorneys. NELSON, Chief Justice. Held, that the notice of assessment of damages before the default was entered, was clearly irregu- lar ; and refused to allow the assessment to stand nuncpro tune. Decision. Motion denied, with costs. JOHNSON HALL et al. agt. JOHN J. GORDON. A defendant in a proper case, is allowed to plead his bankrupt discharge, not- withstanding judgment may be entered and execution issued, where it appears he did not receive his discharge in time to plead it before judgment. He must move at the first opportunity for such leave. February Term, 1845. MOTION by defendant to set aside the execution issued in this cause, and for a perpetual stay of execution therein. This was an action on a justice's ^judgment (which [*100] action was assumpsit for goods, wares and merchan- dise), and a promissory note ; commenced in August, 1844. Judgment obtained against defendant by default, December 2d, 1844. The defendant was declared a bankrupt 23d De- cember, 1842, on his own petition. And was discharged as a bankrupt December 24th, 1844, from all his debts, among which was inventoried the debt due to plaintiffs, for which this suit was brought. The judgment in this cause having been obtained before defendant's discharge, he could not plead it. P. CAGGER, defendant's counsel. J. A. GATES, defendant's attorney. A. TABER, plaintiffs' counsel. SEDGWICK & CUTWATER, plaintiffs' attorneys. 100 NEW- YORK PRACTICE REPORTS. Tallmadge agt. Wallis. NELSON, Chief Justice. Held, that defendant having moved first opportunity, he was entitled to relief. Decision. Judgment, execution and subsequent proceedings set aside on payment of costs of opposing motion, with leave to plaintiffs to discontinue without costs. NATHANIEL P. TALLMADGE agt. JOSEPH WALLIS. In the condition of a bond for security for costs, where plaintiff is a non-resident, the obligors should be bound to pay on demand all costs, &c. February Term, 1845. MOTION by defendant that plaintiff file security for costs in twenty days, and that sureties justify ; in the meantime all proceedings on the part of the plaintiff to be stayed. The defendant procured an alternative order on the 30th of November, 1844, for plaintiff to file security for costs in this cause, or show cause, &c. It appears that plaintiff had given a bond for security for costs, dated November 8th, 1844, and prior to the commencement of this suit ; and filed it on the llth December last, together with an affidavit of justification. The suit was commenced by declaration, which was filed 9th November, 1844, and served on defendant the 12th of said No- vember. The bond filed is executed by two sureties only and not by plaintiff, with a condition that plaintiff shall pay on de- mand all costs, &c. ; which bond defendant insists is not in conformity to the statute. (See 5 Hill, 43.) P. CAGGER, defendant's counsel. A. S. GrARR, defendant's attorney. A. TABER, plaintiff's counsel. JAS. MONCRIEF, plaintiff's attorney. NELSON, Chief Justice. Held, that the condition of the bond should have required the obligors to pay on demand all costs, NEW-YORK PRACTICE REPORTS. 101 Gillespie agt. Stanless. &c. The plaintiff being a non-resident, the defendants were not bound to seek him out to demand the costs of him. Decision. Motion granted. *LouiSA GILLESPIE, by her next friend ANN GILL- [*101] ESPIE agt. MICAJAH M. STANLESS. A plaintiff 's attorney is liable for costs under the statute, (no security having been filed,) where the plaintiff, an infant, prosecutes by her next friend, and the plaintiff and next friend become non-residents before judgment for costs is en- tered; a delay of three years in proceeding against him is not sufficient to ex- empt him. March Special Term, 1845. MOTION by defendant at last February special term, for an order that John B. Manchester, Esq., the attorney for the plaintiff in this cause, pay to the defendant's attorney the de- fendant's costs, as taxed in said cause, and the costs of this motion, on demand ; or that an attachment issue. It appears on the part of defendant, that this was an action of slander, commenced in the New- York common pleas, in April, 1841, by capias. At the time of the commence- ment of such suit, the said plaintiff, Louisa C. Gillespie, was an infant under the age of twenty-one years ; the suit was com- menced and prosecuted by her next friend, Ann Gillespie. No security for costs has ever been given by said next friend. Defendant appeared by his attorney and perfected special bail therein ; and afterwards and before said cause was at issue, and on or about the 6th July, 1841, removed said cause by certiorari to this court ; after such removal, the cause was no- ticed for trial by plaintiff 's attorney for the September and December circuits, 1841 ; not having been brought to trial, defendant's attorney moved for and obtained judgment as in case of nonsuit, at the December special term, 1841 ; had his costs taxed on notice to plaintiff's attorney ; the costs not hs7> 101 NEW-YORK PRACTICE REPORTS. Gillespie agt. Stanless. ing been paid, defendant filed his judgment record for said costs on the 4th June, 1842. In October, 1842, defendant's attorney issued afi.fa. on said judgment, which was returned unsatisfied in Januar}', 1843. The plaintiff and her next friend were residents of the city of New- York at the time of the com- mencement of this suit, but before judgment wasper- [*102] fected, they both ^removed from the state of New- York, and have not since returned. No part of the costs have ever been paid. It appears on the part of plaintiff's attorney, the appointment of next friend was duly made and filed before this suit was commenced; that he, plaintiff's at- torney, in November, 1841, left the city of New York and did not return until the spring of 1842 ; that when he left New- York, he placed this suit with others in the hands of R Scott, Esq., with a written consent to be substituted in his place as attorney in this cause ; that since that time up to the day he re- ceived the papers for this motion, he had known nothing of the proceedings in the cause ; that no bill of costs was ever served on him in this suit no notice was ever given him that any costs existed against the plaintiff. No demand for the payment of any costs in this cause was ever made of him by defendant's attorney or any other person. He has never re- ceived any compensation for costs from plaintiff or any one else, and is informed said Scott has never received any. Plain- tiff's attorney cited 3 Mass. R. 561 ; 2 It. S. 286; 2 Wend. 293. M. T. REYNOLDS, defendant's counsel. F. SAYRE, defendant's attorney. A. TABER, plaintiff's counsel. 3. B. MANCHESTER, plaintiff's attorney. NELSON, Chief Justice. Held, that the attorney was liable under the statute, he acted for a non-resident plaintiff and an infant ; no substitution having ever been made ; the delay is not a sufficient excuse. Decision Motion granted without costs. NEW-YORK PRACTICE REPORTS. 102 Mills agt. Chapman. SILAS H. MILLS, Assignee, &c., agt. ALPHEUS CHAPMAN. "Where the defendant's order requiring plaintiff to file security for costs, or show cause, &c., and staying his proceedings, beyond the time for noticing the cause for trial ; motion for judgment as in case of nonsuit will be denied, with costs. March Special Term, 1845. MOTION by defendant for judgment as in case of nonsuit. On the ground that the plaintiff did not notice the cause at the last January Essex circuit. It appears on the part of the plaintiff, that issue was joined in this cause, on the 20th De- cember last. On the 30th December last, an order by a su- preme court commissioner, was served on plaintiff's attorney, requiring plaintiff to file security for costs in twenty days af- ter service of same, or show cause at the next special term of this court why he had not done so, and that in the meantime all proceedings on the part of plaintiff be stayed. At the time this order was served, the cause was not noticed for trial ; plaintiff appeared at the February special term, (at which he was required by said order,) to show cause ; the de- fendant *not appearing, plaintiff took a rule for costs [*103] against him. The circuit was held 28th January last. 0. ALLEN, defendant's counsel. J. F. HAVENS, defendant's attorney. A. C. HAND, plaintiff's counsel. JONA. K TARBELL, plaintiff's attorney. BEARDSLEY, Justice. Held, that the order to stay pro- ceedings, served on plaintiff's attorney, prevented plaintiff from preceding to trial, as he had elected to show cause. Mo- tion denied with costs. 103 NEW-YORK PRACTICE REPORTS. Harris agt. Ensign. CHARLES HARRIS agt. JOHN ENSIGN. An agreement in writing, extended by parol between the parties, as to the set- tlement of the cause, is conclusive against the defendant, on motion for judg- ment as in case of nonsuit ; where the conditions of the agreement is deemed not to be fulfilled by defendant before the circuit. March Special Term, 1845. MOTION by defendant for judgment, as in case of nonsuit, on the ground that the plaintiff did not notice the cause at the last January Essex circuit. It appears on the part of the plaintiff, that a stipulation in writing was entered into between plaintiff and defendant, in January, 1844 ; that this cause should go over the (then Jan- uary) circuit, and that it should not be brought to trial until one Phelps and Spencer should ascertain the amount of dam- ages which plaintiff claimed from defendant on account of cutting and carrying away certain trees belonging to plaintiff, for which this action was brought ; which amount of damages was ascertained in May, 1844, and reported to both parties, who were then present. And at this time defendant ex- pressly agreed to pay the sum so reported due to the plaintiff, and the plaintiff's costs also. And further that this suit should remain as it then was, and no further costs should be made therein, until defendant should have time to pay, and should pay the sum so reported due to the plaintiff; under the agreement plaintiff did not notice the cause for trial at the last January circuit. O. ALLEN, defendant's counsel. HAVENS & TARBELL, defendants attorneys. 0. CLARK, plaintiff's counsel. CLARK & MILLIMAN, plaintiff's attorneys. BEARDSLEY, Justice. Held, that the agreement made by defendant with the plaintiff, was binding, and denied the motion with costs. NEW-YORK PRACTICE REPORTS. 103 Pike agt. Power. SOLOMON M. PIKE agt. JOHN H. POWER. Under the rule to declare before the end of the next term, &c., the declaration must be served before the actual adjournment of the court. It is a rule sedente March Special Term, 1845. MOTION by defendant at last February special term to set aside the default *entered by the plaintiff, and [*104] all subsequent proceedings with costs for irregularity. It appears this is a special action of assumpsit, commenced against defendant as an attorney ; by capias. On the 8th July last, defendant served plaintiff's attorney with a notice to declare in the cause before the end of the next succeeding term of this court, which was October term. The plaintiff did not declare, until the 13th November last. On the 6th November last, defendant entered plaintiff's default for not declaring, and on the 8th November defendant served person- ally on plaintiff's attorney a copy, costs and notice of taxation in this cause ; the costs were taxed and judgment entered on the 12th November. It also appears that the October term of this court, 1844, adjourned sine die on the 4th November last. On the 13th November, the day that plaintiff served his declaration, he also served defendant's attorney with a no- tice of motion to set aside the default, &c., entered against him. The plaintiff 's attorney proceeded on the ground that he was in time to serve his declaration until the expiration of four weeks from the commencement of the term. The motion was heard at the last December special term, and denied with- out prejudice, solely on the ground that plaintiff did not show in his papers, that a default had been entered against him. Plaintiff entered defendant's default for not pleading to the declaration on the 24th December last. Defendant's attorney having on the 10th December returned the declaration served on him, to plaintiff's attorney, with notice it would not be ac- cepted, on the ground of not having been- served in time. The plaintiff's motion to set aside the default entered for not 104 NEW-YORK PRACTICE REPORTS. Howell agt. Kinney. declaring, and the defendant's motion to set aside the default entered for not pleading, are brought on at this term, and both depend upon the same question ; to wit : whether a declara- tion served within four weeks from the commencement of the term, and after, the actual adjournment of the court, is good. A. TABER, defendant's counsel. J. H. POWER, defendant in pro. per. J. EDWARDS, plaintiffs counsel. J. H. STEWART, plaintiff's attorney. NELSON, Chief Justice. Held, that the rule to declare be- fore the end of the next term, is a rule sedente curia, and that a declaration served after the actual adjournment of the court, although within four weeks from the first day of term, is not in time. Defendant's motion granted with costs; plaintiff's motion denied with costs. [*105] *WILLIAM E. HOWELL agt. WILLIAM H. KINNEY. An attorney, in a cause tried by referees, is not liable for referees' fees. March Special Term, 1845 MOTION on behalf of the referees in this cause, at February- special term, that William S. Sears, Esq., the attorney for the plaintiff, pay the referees' fees in said cause, and the costs of this motion, or in default, that an attachment issue against him. It appears that three referees were appointed in this cause by a rule of court ; the referees proceeded and heard the mat- ters in controversy between the parties, and made their report on the 19th July, 1844 ; that there was due to plaintiff from the defendant $395.52, besides costs ; on the same day they gave notice thereof to plaintiff's attorney and counsel, Wm. S. Sears, Esq., and of the amount of the referees' fees, to wit : $90, and requested said Sears to pay the same, which he re- NEW-YORK PRACTICE REPORTS. 105 Jones agt. Van Epps. fused to do; and several times subsequently Sears was requested to pay the same, which he declined doing. It ap- pears the bill was not taxed, and the amount never presented to Sears in the form of a bill, and he insists the amount is not correct, it being too much. The plaintiff was informed by Sears of the amount of the fees, but did not furnish any funds to pay the same. "W. W. CAMPBELL, counsel for referees. E. SEELEY, attorney for referees. J. EDWARDS, plaintiff's counsel. WM. S. SEARS, plaintiffs attorney. NELSON, Chief Justice. Held, that an attorney is not lia- ble for the fees of referees. Motion denied, with costs. JOHN H. JONES, Administrator, &c. of HENRY JONES, de- ceased agt. HARPERD V. D. VAN EPPS. A delay of three years in moving the court to compel payment of a bill of costs, is considered too great ; the motion will be denied on that ground. March Special Term, 1845. MOTION by plaintiff for a rule or order requiring the de- fendant to pay a taxed bill of costs. A judgment was perfected in favor of Henry Jones against the defendant Yan Epps, on the 9th July, 1836, in this court, on a report of referees for $157.29 damages and costs. Yan Epps moved to set aside the report of the referees, which mo- tion was denied at July term, 1838. On the 19th July, 1838, plaintiff's attorney had his costs taxed at $76.67, for opposing that motion, on due notice. On the 23d July, 1838, Yan Epps was served personally with a copy of the rule denying the motion to set aside the report of the referees, and a copy of the taxed bill of costs. Yan Epps refused to pay the same 106 XEW-YORK PRACTICE REPORTS. Robinson agt. Sinclair. on demand, and ever since has refused to pay the [*106] same ; and the plaintiff alleges the *bill to be still due and unpaid. In September, 1838, Henry Jones, the plaintiff, died intestate. In October term, 1841, the original judgment against Van Epps was revived by scire facias, in favor of and in the name of John H. Jones, his administrator ; no part of the costs in the taxed bill before mentioned, was included in the judgment of revival. The plaintiff alleges he has no remedy except by the interposition and order of this court. M. T. REYNOLDS, plaintiff 's counsel. J. KOON, plaintiff's attorney. H. V. D. VAN EPPS, counsel and attorney in propria persona. BEARDSLEY, Justice. Held that the delay was too great to open the matter now, the motion on that ground must be denied. Decision. Motion denied without costs. E. DE"WITT ROBINSON agt. ROBERT SINCLAIR. The original affidavit accompanying a plea must be served, a copy is not a com- pliance with the rule. A general affidavit of merits must be made by defend- ant on moving to set aside default, Ac. An original affidavit of merits made, to annex to a plea, will not answer. March Special Term, 1845. MOTION by defendant to set aside default and subsequent proceedings for irregularity with costs. This suit was commenced 25th December last, by declara- tion containing indebitatus, money and merchandise counts, only, with copy note annexed and notice that it was the only demand for which the suit was brought. On the 14th Janu- ary last, defendant's attorney prepared plea of general issue NEW-YORK PRACTICE REPORTS. 106 Robinson agt. Sinclair. affidavit of merits, and notice of set-off, and served copies thereof on plaintiff's attorney by putting same in post-office at New- York, directed to plaintiff's attorney at Albany, and paying postage. On the 18th of January last, defendant's at- torney received from plaintiff's attorney through the post-office, the copy plea, affidavit of merits, &c., which he had served, with a notice from plaintiff 's attorney that he could not ac- cept them, inasmuch as the plea was not accompanied by the original affidavit required by the rules and practice of this court. The same day they were received, defendant's attor- ney annexed the original affidavit to the copy plea, and re- turned same by mail to plaintiff 's attorney. On the 24th of January last, plaintiff's attorney returned the same to defend- ant's attorney, with a notice that they came too late ; the defendant's default was entered previous to the 18th of Janu- ary, the day on which defendant's plea, &c., were mailed at New-York. The defendant has annexed to his mov- ing papers, *the original affidavit of merits to annex [*107] to his plea, sworn to on the 14th January last, and has no other affidavit of merits for this motion. S. STEVENS, defendants counsel. R SAYRE, defendant's attorney. M. T. EEYNOLDS, plaintiff' 1 s counsel. J. KoON, plaintiff's attorney. BEARDSLEY, Justice. Held, that the original affidavit should have accompanied the plea served, and that a general affidavit of merits must be made on the motion. Decision. Motion denied with costs, without prejudice. 10*7 NEW-YORK PRACTICE REPORTS. How agt. Gilbert. HORACE How et a?., plaintiffs in error agt. TILLY GILBERT et a?., defendants in error. A motion to set aside a writ of error, and order staying proceedings, made after two years from the issuing of the writ, will be denied with costs, unless suffi- cient excuse is offered for the delay. March Special Term, 1845. ^ MOTION by defendants in error to set aside the writ of er- ror, issued in this cause, and to set aside all orders to stay proceedings, and to recover the costs of settling the bill of ex- ceptions therein to be taxed. This cause originated in a justice's court. An appeal was tried at the Cattaraugus common pleas in June term, 1841, and a judgment rendered for the plaintiffs, Gilbert et a, against the defendants, How et aZ., for $48.98 damages, which was perfected for the damages mentioned and $52.99 costs, on the 10th July, 1841. A bill of exceptions was subsequently in January term, 1842, settled, as of the October term of said court previous. No further proceedings were had in the cause until October, 1843, when an execution was issued on the judgment to the sheriff of Cattaraugus county, to enforce its collection. In January, 1848, the defendants got an order staying proceedings and brought a writ of error to remove the cause to this court, and gave notice thereof to the attorneys for defendants in error. The writ of error was filed on the 9th January, 1843. No further proceedings have been had in said cause since. The defendants in error swear that they never received any notice of the issuing of any writ of error, and the judgment is still due and unpaid. WELLS, defendants' counsel. J. BURT, defendants' attorney. A. TABER, plaintiffs' counsel. Fox & WHEELER, plaintiffs' attorneys. NEW-YORK PRACTICE REPORTS. 108 Martin agt. Odel). BEARDSLEY, Justice. Denied the motion on the ground of delay, no excuse shown for not moving sooner. Decision. Motion denied with costs. *NATHANIEL P. MARTIN agt. BENJAMIN ODELL. [*108] A motion for an order to restrain defendant from committing waste on premises, will be denied, on the defendant's fully denying the commission of waste. March Special Term, 1845. MOTION by plaintiff for an order restraining the defendant in this cause from the commission of waste, upon the land or premises for the recovery of which this suit is brought. This is an action of ejectment for about fifty -three acres of land. Issue was joined on the 21st January, 1845. The plaintiff states that the timber on the premises is of great value that the defendant since this suit has been commenced, has been and still is committing waste upon the premises, by cutting and felling the standing timber thereon ; and that the defendant has frequently told plaintiff he should go on and cut down what timber he pleased upon the premises. The defendant states that he has been in the occupation and pos- session of the premises for twenty-seven years last past, under claim of title ; within that time no other person has exercised or claimed to exercise any acts of ownership over the premises, until within a year past, when plaintiff claimed the same un- der a title from some person. The defendant states he is the owner of the premises, and believes no one else has any right or title therein. And also that since the commencement of this suit, defendant has committed no waste on the premises ; he has cut down and carried away such timber as was neces- sary for his firewood only. And fully denies that he has com- mitted waste on the premises at all. 108 NEW-YORK PRACTICE REPORT& Harker agt. McBride. J. A. SPENCER, plaintiff's counsel. DAVIS, WOODCOCK & DAVIS, plaintiff's attorneys. A. TABER, defendant's counsel. HAYNER & JOHNSON, defendant's attorneys. BEARDSLEY, Justice. Denied the motion, on the ground that the defendant had fully denied the commission of waste. ABEL HARKER, plaintiff in error, agt. ELIZA MCBRIDE, Ad- ministratrix, &c., defendant in error, and one other cause. A motion denied on the merits without any leave given to renew, cannot be heard at a subsequent term. The party moving in such cases, should first move to open or vacate the former rule. March Special MOTION by plaintiff in error to set aside the judgments en- tered up in these causes, and to permit the plaintiff in error to be let in to an argument of the causes upon their merits. On the 10th February last, at the February special term, the plaintiff in error made a motion in these causes for the same purpose, for which he now moves ; which motion [*109] *was denied with costs. The rule entered upon the decision of the motion reads as follows : " After hear- ing counsel for both parties on motion of plaintiff in error to set aside the judgments entered in the above entitled causes, ordered that same be denied with seven dollars costs." M. T. REYNOLDS, plaintiff's counsel. MARTIN & STRONG, plaintiff's attorneys. S. STEVENS, defendant's counsel. "W. H. TAGGARD, defendant's attorney. BEARDSLEY, Justice. Denied the motion on the ground that a final rule was entered at the last special term, without any leave given to renew. NEW-YORK PRACTICE REPORTS. 109 The People agt. The Judges of Rensselaer Common Pleas. THE PEOPLE ex rel HENRY W. KOON agt. THE JUDGES OF THE COURT OF COMMON PLEAS OF THE COUNTY OF RENSSELAER. An alternative mandamus allowed to the court of common pleas, to bring up the question, whether a party to a suit in the common pleas can recover taxed costs on demurrer, in addition to twenty dollars costs allowed by statute, on a certiorari brought up from a justice's court. March /Special Term, 1845. THIS was an ex parte motion for an alternative mandamus against the defendants, to require them to vacate an order, de- nying a motion of the relator as defendant in error, for a re- taxation of a bill of costs on certiorari, from justice's court, to the common pleas. The facts in this case appear to be that one Facks, plaintiff in error, removed a cause from a justice's court wherein said Henrj TV. Koon was defendant in error, by certiorari to the court of common pleas of Rensselaer county ; and assigned er- ror in fact, to which Koon, defendant in error, demurred ; the demurrer was brought to argument and overruled by the court. The plaintiff in error made out his bill of costs, and inserted in it twenty dollars costs upon certiorari by statute, and also made out a bill of costs on the demurrer in addition, and had the same taxed, including the twenty dollars by stat- ute. The facts in the case were admitted before the taxing- officer. The defendant in error objected before the taxing offi- cer to all of the bill, except the gross sum of $20. The tax- ing officer overruled the objection and taxed the bill at $83.08. The defendant in error moved for a retaxation of the costs be- fore the court of common pleas, which was denied with costs, on the 15th February, 1845. The defendant in error and re- lator insists that no more than $20 costs can be taxed under the statute on certiorari, from justice's court, and cites Laws of 1840, p. 332, 12 ; 4 Hill, 541 ; 19 Wend. 56 and 68 ; also, 18 and 20 Wend BEARDSLEY, Justice. Allowed an alternative mandamus. YOL. I. 11 NEW-YORK PRACTICE REPORTS. Moss agt. Raynor. [*110] *JOSEPH Moss agt. JOHN EAYNOR and CHARLES H. POND. An attorney appearing for a corporation, defendant, and who is treated as such through all the stages of the cause, without any proof of a revocation of his powers, held sufficient to deny a motion to set aside the judgment, for irregu- larity in the service of the process on the corporation. March Special Term, 1845. MOTION by defendants to set aside a judgment against the Eossie Lead Mining Company, the summons therein and all proceedings thereon, for irregularity. This is an action of debt, in which the plaintiff seeks to re- cover of the defendants, alleging that they were holders of stock in the Eossie Lead Mining Company, a demand alleged to be due by the said company, under the provisions of the act incorporating the same ; by which stockholders are made liable for debts of the company after judgment has been ob- tained against said company therefor, and an execution re- turned unsatisfied. The suit against the company on which the judgment mentioned in the declaration in this suit was obtained, was commenced by summons, returnable January term, 1844, and was served on Nathan S. Pitkin, who defend- ants allege, had ceased to be an officer and director of said company, and held no official relation to the company what- ever, by which service of a summons on him became legal, and that he had no authority to act for said company. Pitkin handed the summons to an attorney, who appeared in the suit for the company. The defendants allege that the attorney was not authorized by the company to appear in the suit. The defendants state that they had no notice or knowledge of the judgment or of the suit until served with the declaration in this cause, on or about the 28th December last, and allege that this suit is carried on for the benefit of one Averell, former president of said company. The plaintiff shows that the suit against the company in his favor, was commenced on a prom- issory note given by the company ; that the summons was NEW- YORK PRACTICE REPORTS. 110 Moss agt. Raynor. sent to the sheriff of St. Lawrence county, with directions to serve it on some of the officers of said company, according to statute. The sheriff informed plaintiff 's attorney, that Pitkin was a director of said corporation, and the only one upon whom service could be made, and the only one who had not sold out his stock therein. The plaintiff's attorney thereupon moved this court at the December special term, 1843, for a rule granting leave to serve the summons on a director of said company, which was granted ; and the summons was subse- quently served by the sheriff on said Pitkin, in accordance with said rule. On the 19th January, 1844, plaintiff's attor- ney received a notice from Eansom H. Gillett, Esq., that he was retained to defend said suit, and was treated as such attorney in the subsequent ^stages thereof. At [*1H] the following July circuit of St. Lawrence county, a verdict on an inquest was taken against the corporation and judgment thereupon entered ; there were five suits commenced against the corporation, three of which were de- fended ; in the other two, judgments by default were taken against the company ; the process in each of the suits were served on said Pitkin, and said Gillet appeared as attorney for said corporation in each of them. A. TARER,defendants' counsel. (r. C. GODDARD, defendants' attorney. J. A. SPENCER, plaintiff's counsel. SPENCER & KERN AN, plaintiff's attorneys. iiEARDSLEY, Justice. Denied the motion, on the ground tlA?,t the Kossie Lead Mining Company had appeared by at- torney, and there was no evidence to show that his powers had teen revoked. Decision. Motion denied with seven dollars costs to plain- tiff's attorneys, in this suit, and with seven dollars costs to plaintiff's attorneys, in the suit against the company. Ill NEW-YORK PRACTICE REPORTS. The People agt. Judges of Dutchess Common Pleaa. THE PEOPLE ex rel JOSEPH E. JONES agt. THE JUDGES OF THE DUTCHESS COMMON PLEAS. An alternative mandamus allowed to bring up the question, whether the com- mon pleas have jurisdiction, to make an order for costs against an appellant where they decide to dismiss the appeal from a justice's judgment, on the ground they have no jurisdiction ; because the justice's judgment is void. March /Special Term, 1845. Motion ex parte by relator for a mandamus, to require the defendants to vacate an order for costs made by them at the last February term, against the relator. The facts are as follows : On the 30th July, 1843, one Peter A. Stickle commenced a suit before a justice of the peace of the county of Dutchess, by summons against said Joseph E. Jones ; the cause was tried on the 9th day of August, 1843 ; the justice, five days thereafter, to wit, on the 14th of August, rendered judgment in favor of said Stickle against said Jones, for ninety-eight dollars damages and the costs of suit. Jones procured the cause to be removed to the Dutchess common pleas by an appeal, and at the last February term of said court, on the 3d day of February, 1845 ; the cause was moved for trial by the plaintiff Stickle ; the defendant moved that the appeal be dismissed because the court had no jurisdiction ; the original judgment as rendered by the justice being void ; which motion prevailed, and the court refused to hear the trial of the cause on that ground. At a subsequent day of said court during the same term, the plaintiff's attor- [*112] uey moved for an order, that *defendant Jones pay the costs of the appeal, which was opposed by de- fendant's attorney, on the ground that the court had no juris- diction of the parties, for any purpose, except the motion to discontinue the appeal. The court granted the motion, and ordered defendant to pay the appellee's cost of the appeal, and also the appellee's costs of opposing the motion to dismiss the appeal, and the appellee's costs of making the motion for costs. NEW-YORK PRACTICE REPORTS. 112 Tinker agfc. Irvin. S. STEVENS, relator's counsel. G. DEAN, relator's attorney. BEARDSLEY, Justice. Ordered, that an. alternative manda- mus issue. ELIPHALET TINKER and BENJAMIN F. CRAFT agt. GUY C. IRVIN. A sheriff's sale was set aside, and newfi. fa. allowed to issue, where a general agent of the receiver of the plaintiffs' estate, bid off the premises at sheriff 's sale for the benefit of the receiver, on an execution in favor of the plaintiffs against the defendant, whose premises were sold ; the agent having been in- correctly informed as to prior incumbrances, by the sheriff, at the day of sale, on whom he relied for information. March Special Term, 1845. MOTION at the last October term to set aside sheriff's sale and subsequent proceedings, and for new execution on the fol- lowing facts : The plaintiffs, on the 30th July, 1841, recovered a judg- ment against the defendant for $206.95. Execution was issued to the sheriff of Chautauque county August 30th, following : Craft was nominal plaintiff only ; Tinker became insolvent on or about the 23d day of May, 1840, and made an assignment of all his property for the benefit of his creditors. A bill was filed, and Henry Keep was appointed receiver of the property and effects, on or about the 31st day of March, 1842. The said receiver took possession of said property as such receiver, and of the said judgment and execution. Chancey Tucker was ap- pointed the receiver's agent, and took charge of said judgment and execution and had the whole control of it ; said agent di- rected the sheriff to proceed on the execution and close it up by sale of the defendant's property, if any could be found, if not, to return it ; on the 19th day of August, 1842, said sheriff in- formed said agent that the sale of certain real estate of de- fendant's was to take place on said execution immediately 112 NEW-YORK PRACTICE REPORTS. Tinker; agt. Irvin. on that day, and desired the agent to attend and bid upon the same, for the receiver. Said agent knew nothing of the sale till so informed on the day of sale ; when said agent arrived at the place of sale, which was at Maysville, in said county, a few rods from the clerk's office of said county, where said [* 1 1 3] agent was ^attending court, the hour of sale had passed, and the sheriff had actually opened the sale, said agent then inquired of the sheriff whether the property was incum- bered, the sheriff replied, the only incumbrance was a balance due upon a mortgage to John Jacob Astor, of about $2,000. Said agent told the sheriff he wished to know exactly about the incumbrances before bidding, and suggested a postponement of the sale until the necessary examination, as to incumbrances, could be made; the sheriff replied that he had made a full ex- amination as to incumbrances, and knew all about it, and that agent could not get as much information, as to the incum- brances, by examining the records, as he the sheriff had ; for the reason that the records would not show what incumbrances had been paid, and that he, the sheriff, had obtained his in- formation by inquiry from the proper sources that all the incumbrances had been paid except the balance above men- tioned. Said sheriff also said to said agent that said balance would undoubtedly be paid by the defendant, before the time of redemption on the sheriff 's sale would expire; the agent knew that the land was worth more than the said balance and the execution ; the receiver knew nothing of the property, and the agent had the sole direction of the execution, and he knew nothing of the incumbrances, except what the sheriff told him ; the sheriff knew of no other incumbrances except the said mortgage ; the said agent gave up any further attempt at postponement, and bid off the land for the amount of the execution, and took the sheriff's certificate to the said receiver. Said agent supposed the land would be redeemed. At Oc- tober term of Chautauque common pleas, the sheriff told said agent that the defendant had not redeemed, and the said agent then learned for the first time that there was another mortgage on said premises of over $13,000, prior to said judgment and NEW-YORK PRACTICE REPORTS. 113 The People agt. Judges of Essex Common Pleas. execution, and the land was then advertised for sale on said mortgage, for the 4th day of November, 1843. And the mortgaged premises were not worth over $8,000. Said agent bid off the land in good faith, and as he believed, for the best interests of his principal. Irvin was a man of property, and said agent supposed for that reason the land was not incum- bered, and that said defendant would redeem ; and he also supposed the sheriff knew all about the property from his hav- ing for some time been sheriff or deputy, and his having done business with defendant; said mortgages were recorded in said clerk's office, and said premises were sold on said mort- gages for $8,000. Now unless said sale is set aside the judgment and execution will be lost. The papers *for the motion were served on defendant in Fenn- [*114] sylvania, where he resides. C. TUCKER, plaintiffs 1 attorney. A. HAZELTINE, defendant's attorney. NELSON, Chief Justice. Granted the motion on payment of costs of opposing motion. THE PEOPLE ex rel. ALEXANDER D. CLARK agt. THE JUDGES OF ESSEX COMMON PLEAS. * March Special Term, 1845. MOTION by the relator on filing alternative mandamus, &c., for peremptory mandamus to compel the defendants to try- cause. E. PEARSON, relator's counsel. M. T. CLOUTH, relator j s attorney. A. C. HAND, defendants' counsel. BEARDSLEY, Justice. Denied the motion because the alter- native writ was served in vacation, without prejudice or costs. Rule accordingly. 114 NEW-YORK PRACTICE REPORTS. Wilder agt. Wheeler. GEORGE G. WILDER et al agt. BENJAMIN WHEELER. Under the 39th rule, a recorder has no power to grant an order enlarging time to serve papers, &c., upon which to move to set aside a report of referees, and staying proceedings, within four days from the signing and filing the report A circuit judge has no power to grant such an order after four days from tho signing and filing the report. March Special Term, 1845. MOTION by defendant to set aside the judgment entered upon the report of the referees in this cause, or that the defendant have leave to move at the next term, to set aside the said report of referees made and filed therein. This cause was referred by stipulation, to three referees, who after having heard the testimony, &c., therein, made their re-port on the 30th day of January last, in favor of the plain- tiffs. On the same day, 30th January last, the report was filed and rule for final judgment thereon entered. And on the 31st January last, judgment record therein was filed. On the 1st day of February last, defendant's attorney procured an order from A. B. Olin, Esq., recorder of the city of Troy, giving the defendant thirty days to prepare and serve affidavits and papers for a motion to set aside the report of the referees, and staying plaintiff's proceedings in the meantime ; a [*115] copy of which order was served on plaintiff's *attor- neys, on the 1st day of February last. On the 5th day of February last, defendant's attorney obtained an order in this cause and one other, from A. J. Parker, Esq., circuit judge, giving defendant thirty days in which to make and serve affidavits and other papers for a motion to set aside the report of the referees in this cause, and staying plaintiff's pro- ceedings in the meantime. A copy of said last order was served on the plaintiff's attorneys on the 5th February last. Defendant's attorney prepared the affidavits and papers for the purpose of moving this court to set aside the report of the referees aforesaid ; and on the 24th February last, served same on plaintiffs attorneys, together with a notice of motion for NEW-YORK PRACTICE REPORTS. 115 Coffing agt. Tripp. the next May term of this court. Defendant's attorney gives as an excuse for not serving the affidavit and papers to set aside tht report of the referees within four days from the signing and filing the same, that the testimony was voluminous, and there was not sufficient time ; and he therefore procured the first order, of the recorder, extending the time ; and, for greater precaution, subsequently obtained and served the order of the circuit judge as before stated. S. STEVENS, defendants counsel. C. D. SHELDON, defendants attorney. E. PEARSON, plaintiffs counsel. PEARSON & CHURCH, plaintiffs attorneys. BEARDSLEY, Justice. Held that under the 39th rule, both orders were a nullity. The recorder had no power to make an order for that purpose within four days ; and after the four days had expired, the circuit judge had no power to grant a similar order ; but allowed the service of defendant's papers for the motion to set aside the report to be deemed good ser- vice on payment of $7 costs of opposing this motion in twenty days, and that plaintiffs have twenty days thereafter to serve counter affidavits. Judgment to stand as security. Eule accordingly. JOHN CHURCHILL COFFING, President of the Salisbury Iron Company agt. ANTHONY I. TRIPP. A plaintiff will not be allowed to amend his declaration substantially changing the plaintiffs, after issue joined, and the cause has been noticed for trial: his proper course is to discontinue the suit, and commence anew. March Special Term, 1845. MOTION by plaintiff for leave to amend his declaration in this cause in this particular, to wit : that the name of " John Churchill Coffing, president of the," be stricken out of the same. 116 NEW-YORK PRACTICE REPORTS. The People agt. The Board of Supervisors of the County of "Warren. It appears that issue was joined in this cause on the 6th August last, and noticed for trial at the Dutchess cir- [*116] cuit *for the second Monday of October last : was not tried for want of time. Some time in January last, plaintiff's attorney applied to defendant's attorney for leave to amend his declaration as to the name of the plaintiff ; to which defendant's attorney refused to consent. M. T. REYNOLDS, plaintiff's counsel. R. PECK, plaintiff's attorney. S. STEVENS, defendant's counsel. WILLIAM ENO, defendant's attorney. BEARDSLEY, Justice. Thought there could no precedent be found for allowing the plaintiff to amend, by substantially changing a party to the suit, under such circumstances. The proper way for plaintiff would be, to discontinue the suit and commence anew. Motion denied with costs. THE PEOPLE ex rel. LEMON THOMSON agt. THE BOARD OF SUPERVISORS OF THE COUNTY OF WARREN. An alternative mandamus will not be allowed, to require the board of supervi- sors to audit and allow a county superintendent of common schools, for his time in attending a state convention of county superintendents, or county con- vention of town superintendents and teachers of common schools. It is a question where the board of supervisors have full jurisdiction. March Special Term, 1845. THIS was a motion by the relator for a mandamus to the board of supervisors of Warren county, on the following facts : It appears the relator, Thomson, was appointed by said board of supervisors, superintendent of common schools in and for said county of Warren, on the 16th November, 1843. At the regular meeting of the board in November last, Thom- son presented his account for services as such superintendent NEW-YORK PRACTICE REPORTS. 116 The People agt. The Board of Supervisors of the County of Warren. rendered during the year previous. In the account were the two following items, to wit : " Twelve days occupied in going to, attending, and returning from the state convention of county superintendents of common schools, holden at the city of Eochester in the month of May last, at $2 per day, $24.00 ; two days in attending a county convention of town superin- tendents and teachers of common schools, holden at Warrens- burgh in the county of Warren, in the month of October last, at $2 per day, $4.00." The board of supervisors rejected the two charges, amounting to $28, as illegal, and refused to audit and allow the same. Thomson states that his actual disburse- ments were over $25 ; and on rejection by the board of said accounts, he immediately wrote to the superintendent of com- mon schools, S. Young, Esq., in relation to them, who re- turned an answer that he was clearly of opinion that the charges should be allowed by the board of supervi- sors ; they were duties recommended *and approved [*117] by the official instructions of the department : and in attendance upon these conventions, he was engaged in the strict performance of the duties prescribed by law. At an adjourned meeting of the board, held in December last, Thom- son presented the letter from the superintendent, and renewed his claim ; which was again rejected and disallowed by the board. M. T. EEYNOLDS, counsel. H. E. WING, relator's attorney. BEARDSLEY, Justice. Thought this court should not inter- fere ; it was a question of which the board of supervisors had full jurisdiction. Motion denied. 11 Y NEW-YORK PRACTICE REPORTS. Elder agt. Bogardus. CHARLES H. ANTHONY agt. COLL IN DUNBAR. A plaintiff on application to the court, was permitted to issue a new ca. sa. otfi. fa. against defendant ; after a suit had been brought against the sheriff, for the escape of defendant from the jail limits, on the first fi. fa. ; in which suit the sheriff succeeded. March Special Term, 1845. MOTION by plaintiff at last October term for leave to issue a new ca. sa. or ft. fa., in this cause, on the following facts: An execution was issued to sheriff of Rensselaer about the 1st day of November, 1842. Said sheriff arrested the defend- ant in that month, and had him on the jail liberties ; on the 20th day of June, 1843, supposing that defendant was off the limits, a suit was commenced against tlie sheriff for such es- cape ; which suit was tried and the sheriff succeeded on two grounds only. 1. That there was no proof of escape such as would charge the said sheriff. 2. That said Dunbar had re- turned to the limits before suit brought. Said judgment is in full force and unpaid. WILLARD & KAYMOND, plaintiff's attorneys. A. B. OLIN, defendants' attorney. NELSON, Chief Justice. Granted the motion for a new ca. sa. orfi. fa. Eule accordingly. EGBERT ELDER agt. MARIA S. BOGARDUS, Executrix, &c. A circuit judge has no jurisdiction hi making an order for the discovery of books, papers, &c., during the session of the supreme court. March Special Term, 1845. MOTION by defendant to vacate or qualify an absolute order requiring defendant to produce and deposit books, papers, NEW-YORK PRACTICE REPORTS. 118 Bell agt. Robinson. &c., for inspection, on a "^petition made by plaintiff [*118] under the statute. It appears that an alternative order was made in this cause by Win.' Kent, circuit judge, on the 22d January, 1845 ; re- quiring defendant to deposit books, papers, &c., mentioned in the plaintiff's petition, or show cause before the circuit judge, &c. On the 31st of January, 1845, an absolute order was made by said circuit judge, making the same requisition of defendant as in the alternative. It was insisted by defend- ant's counsel that the circuit judge had no jurisdiction this court was in session at the date of both orders ; and cited 2 E. S. 199, 23 ; 18 Wend. 529. N. B. BLUNT, defendant's counsel. CHAS. PAGET, defendant's attorney. N. HILL, JR., plaintiff's counsel. McCouN & CLARK, plaintiff's attorneys. BEARDSLEY, Justice. The authorities are full to the point, that the circuit judge had no jurisdiction. The motion must be granted. Decision. Motion granted to vacate tibe order of 31st Jan- uary, 1845. WILLIAM A. BELL agt. WILLIAM KOBINSON. Under the act, in session laws, 1841, giving parties in causes leave to move for judgment as in case of nonsuit, before the circuit judge of the first circuit, where the parties and attorneys all reside in the city and county of New- York ; held, that the act does not conclude the moving party, he may make such motion at special term. March Special Term, 1845. MOTION by defendant for judgment as in case of nonsuit. This motion was ordered to stand over to the next special term, with liberty to serve additional papers. 118 NEW-YORK PRACTICE REPORTS. Van Ness agt. Nichols. It appears by the papers in this cause, that the parties and attorneys in the cause all reside in the city and county of New- York, and the question was raised, whether the defendant was not bound to make his motion before the circuit judge of the first circuit in such a case, under the act in session laws, 1841. H. DRESSER, defendant's -counsel. A. G. EANSOM, defendant's attorney. MR. BELL, plaintiff's counsel. BELL & COE, plaintiff's attorneys. BEARDSLEY, Justice. Held, that although the motion might have been made before the circuit judge, under the act referred to, yet it did not conclude the moving party ; he might make it at the special term. [*119] JOHN VAN NESS, JR., agt. HENRY NICHOLS, HORACE BATES and JAMES MAY. A motion for -a perpetual stay of execution on the ground the judgment has been paid, will be denied with costs, where the grounds are fully met or ex- plained by the opposing papers. March Special Term, 1845. MOTION by S. J. Penniman for a perpetual stay of the exe- cution issued to the sheriff of the county of "Wayne, upon a judgment in this cause recovered October 21, 1839. Penniman swears, that Jie recovered a judgment in this court against Nichols and Sates, two of the defendants in this suit, for $346.05, on the 15th November, 1839. Execution was issued thereon 26th November, 1842, and delivered to the sheriff of Wayne county, who levied on and sold three lots of land in the village of Palmyra, which belonged to de- fendant Nichols, and they were purchased by said Peoniman. The time of redemption has expired and no one has redeemed. About three weeks since, Penniman learned that the present NEW-YORK PRACTICE REPORTS. 119 Yan Ness agt. Nichols. sheriff of Wayne county had advertised for sale the said lots above mentioned (purchased by him as aforesaid), by virtue of an execution in this cause, issued on the judgment which was recovered 21st October, 1839. The plaintiff in this cause informed said Penniman that Nichols, the defendant, had paid him a large sum on the judgment soon after it was recovered, and subsequently the defendant James May paid the balance of the judgment, and to whom plaintiff gave a satisfaction thereof in full. That some time in the latter part of the year 1844, plaintiff sold the judgment in this cause to Geo. W. Cuyler, Esq., for $20. Henry Nichols, one of the defendants, swears that the draft upon which this judgment was obtained, was given by him, as a loan to J. B. Parsons & Co., of whose firm James May, one of the above-named defendants, was a member, with the understanding that said J. B. Parsons & Co. should pay the same, before the draft became due. Par- sons & Co. failed, and on the 1st November, 1839, soon after the judgment in this cause was recovered, Nichols entered into a written agreement with the plaintiff to pay the amount of the judgment by instalments, and if the amount was col- lected by the plaintiff out of either of the other defendants, Nichols should be credited the amount collected. Nichols states that he paid to plaintiff on the agreement the whole amount except about $100. In opposition to the motion, Yan Ness, the plaintiff, swears, that he never said to Penniman that he had executed and delivered to James May a satisfac- tion in full of the judgment in this cause ; that he never ex- ecuted and delivered to James May or any other person a satisfaction of said judgment. On or about the 6th June, 1842, he. in consideration of $30 *received [*120] from said May, executed and delivered to him a re- lease of his individual liability on said judgment under the statute as a joint partner. On the 1st November, 1839. he made an arrangement with said Nichols as above stated, that he took property of said Nichols under said agreement for $150, which did not turn out to be worth over $90 ; he was induced to take the property at that rate in consideration that 120 NEW-YORK PRACTICE REPORTS. Hugenin agt. Granger. Nichols would pay the balance in cash. He afterwards re- ceived from Nichols cheese and pork of the value of about $26.50, which is all he ever received from said Nichols; that he sold the judgment to Geo. W. Cuyler about the 26th November, 1844, with the consent and advice of said Nichols. Since this motion has been noticed, plaintiff states he called on said Nichols, who was unable to show any evidence of any pay- ments beyond the amount he (plaintiff) has stated. A copy of the execution issued on this judgment was produced, and by the levy indorsed, the sheriff is directed to collect $353.30 with interest from the 21st October, 1839, deducting $150 paid by the defendant Nichols, 1st May, 1840, and $30 paid by defendant James May, 6th June, 1842. IRA HARRIS, Penniman's counsel. HARRIS & SHEPARD, attorneys for J. P. K. "W. PECKHAM, Cuyler 's counsel. GEO. W. CUYLER, attorney in pro. per. BEARDSLEY, Justice. The grounds on which the motion was made are fully met by the opposing affidavits, and dis- proved or explained so as to show that they are without any substantial foundation. The arrangement with Nichols was not performed on his part, and, therefore has not cancelled the judgment. As far as I see, the judgment is in force for the amount directed to be made by the execution, and the motion must be denied with costs. Eule accordingly. PETER D. HUGENIN agt. HENRY F. GRANGER. A delay of ten months from the entry of judgment as in case of nonsuit, is fatal to plaintiff who seeks on motion to be let in to try the cause on the merits. March Special Term, 1845. MOTION by plaintiff to set aside the judgment, as in case NEW-YORK PRACTICE REPORTS. 120 Hugenin agt. Granger. of nonsuit, in this cause, and all proceedings on the part of the defendant subsequent to a stipulation of February 4, 1844. This action was commenced in assumpsit, 29th March, 1839 ; venue laid in Albany county ; issue joined 30th April, 1830. The cause was several times noticed for trial by plain- tiff's attorneys, for the circuit courts held in and for the county of *Albany, but not brought on to trial, for [*121] the reason of the absence of material witnesses for plaintiff, and sometimes put over by consent and arrangement with defendant's attorneys, and for the reason of the delay in getting return to a commission issued by plaintiff to take the testimony of a witness residing in Illinois. On the 4th Feb- ruary, 1844 (the cause then never having been brought to trial), plaintiff's attorneys gave to defendant's attorneys a stipulation to try the cause at the April circuit, 1844, or of default thereof defendant's attorneys might enter up judgment as in case of nonsuit. The cause was not brought to trial at said April circuit, plaintiff's attorneys not having received a return to said commission ; and in April, 1844, after the circuit, defend- ant's attorneys entered up judgment, as in case of nonsuit, in pursuance of the stipulation aforesaid, and on the 15th April served on plaintiff's attorneys a copy of the bill of costs, with notice of retaxation. In December, 1844, plaintiff's attorneys received the commission and testimony therewith from Illi- nois, and immediately applied to defendant's attorneys to waive the judgment and permit them to try the cause, which the defendant's attorneys declined doing. Plaintiff states the testimony is important and material for him on the trial of the cause ; papers for this motion were served 10th February last. S. M. WOODRUFF, plaintiff's counsel. WOODRUFF & HAWLEY, plaintiff's attorneys. P. CAGGER, defendants counsel. CAGGER & STEVENS, defendants attorneys. YOL. I. 12 121 NEW-YORK PRACTICE REPORTS. Kennedy agt. Newsom. BEARDSLEY, Justice. Judgment as in case of nonsuit was perfected in April, 1844, of which the plaintiff's attorneys then had notice. They took no step to get rid of that judg- ment until February, 1845 ; this delay, to say nothing of other difficulties in the way of the motion, is fatal. Motion denied, with costs. LINU P. KENNEDY agt. JOSEPH NEWSOM. A certiorari brought to remove a cause from the common pleas to this court must be filed eight days before the first term at which the issue could be tried, after issue joined, otherwise defendant must pay costs. March Special Term, 1845. MOTION by plaintiff to quash the certiorari issued in this cause. The action is covenant; brought in the common pleas. Issue joined October 20, 1844, in time to have been noticed for the last December term of the Steuben common pleas. By a written stipulation the cause was referred to a sole referee, on the 7th December last. The referee appointed the 19th of Feb- ruary last for a hearing. On the 24th January last [*122] *plaintiff's attorney served defendant's attorney with notice of said hearing. About 1st February last, notice was served on plaintiffs attorney by defendant's attor- ney that the cause was removed by certiorari into this court. Costs had been made in noticing and preparing for hearing, before notice of the certiorari was served, which had not been paid by defendant, or offered. WM. M. HAWLEY, plaintiffs counsel and attorney. O. ALLEN, defendant's counsel. J. K. HALE, defendant's attorney. BEARDSLEY, Justice. Decided the motion upon the case in 19 Wend. 647, which is precisely parallel. That a certiorari NEW-YORK PRACTICE REPORTS. 122 Smith agt. Skinner. must be filed eight days before the first time at which the issue could be tried, after issue joined ; otherwise defendant must pay all the costs incurred in preparing for trial or hearing. Motion granted, with costs. SHEPARD GARBUTT agt. LESTER BRADNER. In a common action of assumpsit, where the defendant swears to seventy-eight witnesses as material to his defence, on motion to change the venue ; it will be considered a fraud upon the court, unless the nature of the action is fully explained, to satisfy the court that the number of witnesses are necessary. March Special Term, 1845. MOTION by defendant to change the venue. The action is assumpsit. Defendant swears to the mate- teriality in his defence of seventy-eight witnesses, residing in the county to which he proposes to change the venue. BEARDSLEY, Justice. Said he should order the motion to stand over to the next special term, that the defendant might show the nature of the action, in order to satisfy the court that he required the number of witnesses which he had sworn to. Unless an explanation was made, he should consider it a fraud upon the court, in swearing to the materiality of sev- enty-eight witnesses on a defence in a common action of as- sumpsit. Rule accordingly. JAMES A. SMITH agt. EDWIN SKINNER and SARDIS ALLEN. A plaintiff will be permitted to discontinue, without costs, where it appears he had no notice of the defendant's application or discharge in bankruptcy, and was ignorant thereof until after suit was commenced. March Special Term, 1845. MOTION by plaintiff for liberty to discontinue this suit, without costs. 123 NEW-YORK PRACTICE REPORTS. Holmes agt. Poeey. [*123] *Suit brought to recover the amount of a bill of oil sold to defendants in 1842. In the fall of 1844, plaintiff commenced this suit. The defendants pleaded their bankrupt discharge under the United States bankrupt law, passed 1841. Plaintiff had never received any notice of de- fendants' application for a dischage in bankruptcy, and never had any information they had been discharged, until after they had pleaded in this suit. F. S. KlNNEY, plaintiff's counsel. KINNEY & TOWNSEND, plaintiff's attorneys. N. HILL. JR., defendants' counsel. N. BENNETT, defendants' attorney. BEARDSLEY, Justice. Granted the motion, on the ground that plaintiff had not received any notice of defendants' ap- plication or discharge in bankruptcy, and was ignorant thereof until after the suit was commenced. Motion granted. ANDREW JORDAN and LEWIS W. HOLMES agt. SEBASTIAN K. POSEY. A warrant of attorney omitted by accident to be filed with the judgment record, which was entered up on bond and warrant of attorney, may be filed nunc pro time, as of the day judgment was filed and docketed. A stipulation in a warrant of attorney, signed by defendant, that an execution may issue imme- diately and be made returnable forthwith, is conclusive upon the defendant, where the execution is made returnable in twenty days. March Special Term, 1845. MOTION by defendant to vacate and set aside the judgment and execution in this cause ; or in case that is not granted, that the amount directed to be levied by said execution be reduced $490.00. From the defendant's affidavit it appears the parties in this cause are merchants, and reside in the city of New- York. NEW-YORK PRACTICE REPORTS. 123 Holmes agt. Posey. The defendant in October last for the first purchased a bill of goods of plaintiffs, having first been solicited by one of the plaintiffs' clerks (who was an acquaintance of defendant's) ; that subsequently, during the months of October and Novem- ber, he purchased of /plaintiffs five more bills of goods, amounting in all to over $700. Defendant supposed he pur- chased all except the first bill on ninety days' credit ; the first was sixty days. Shortly after the 23d January last, defend- ant and Jordan, one of the plaintiffs, had a conversation about their matters, when Jordan proposed to defendant to give plaintiffs a guaranty (as defendant understood), and they would sell him more goods, that he might increase his stock and do a better business ; that they would sell him cheaper than he could buy anywhere else : and on the 27th January last defendant called at plaintiffs' store, when Jordan handed defendant *two papers to sign, saying they [*124] were the guaranty (as the defendant understood). Jordan read a part of the papers to defendant, which stated it was to secure the sum of $589 due, and such further sums as should become due to plaintiffs. Defendant did not read the papers, but signed them upon the representation of said Jordan that it was a guaranty to secure them up to the amount of $2,000 ; and if his account got up to $2,000, addi- tional papers would be required. Defendant, on the same day and day following, purchased two additional bills of goods, amounting to about $116, on the same length of credit as before. On the 31st January last, one of the deputy sheriffs of the city and county of New- York levied upon defendant's stock of goods, under an execution in favor of plaintiffs, and still retains possession of them. Defendant learned that a judgment was docketed in this cause on the 31st day of Jan- uary last, for $2,000 debt and $14.00 damages and costs ; that on the same day a writ of fieri facias was issued and delivered to the sheriff, by which he was directed to levy $719.49, be- sides interest and fees. Defendant alleges that he was igno- rant of the nature of the papers which he gave plaintiffs, and was not aware that they authorized the entering up of a juc 1 ^ 124 NEW-YORK PRACTICE REPORTS. Holmes agt Posey. ment and the issuing of an execution against him; Defend- ant also alleges that the credit for some of the bills had not expired at the time of such levy. That the papers signed by defendant, and called by plaintiffs a guaranty, were so signed upon the express understanding and agreement on the part of plaintiffs that they were to go on and furnish defendant with, goods upon credit, to such amount as he should require, not exceeding $2,000. That the judgment has been procured by fraud and misrepresentation, and the execution issued in vio- lation of good faith. Smith Barker, the attorney for defend- ant, states in his affidavit that he has examined the record of judgment in this cause, and it appears it was docketed on the 31st January, 1845, upon a bond executed by the defendant to the plaintiffs, bearing date January 27th, 1845, in the penal sum of $2,000, conditioned for the payment of $589, and such other sums as may become due. That there is no warrant of attorney filed with said record. Ttiat on examination of the writ of fi. fa. issued in this cause, the name of A. Warner is signed thereto as clerk of this court : no other name appears on said writ as clerk. That on examination, he finds there, is no transcript of the judgment filed with the clerk of the city and county of New- York. Defendant Posey swears in addition, that after the order to stay proceedings under the writ of fi. fa. in this cause was granted ; and before the service of the notice of this motion, plaintiffs' [*125] ^attorney countermanded said writ and issued an- other fi.fa., by virtue of which the sheriff has levied upon the same property. By the copy annexed of the second fi.fa. it appears that it is made returnable in twenty days from the receipt thereof by the sheriff, and is signed with the names of the clerks of this court. William J. Masterton, of the firm of Bates & Masterton, in said city of New York, in an affidavit made by him, for another motion in his behalf, states that Bates & Masterton recovered a judgment in this court against the above defendant for $1,092 debt, and $17.25 damages and costs, on the 6th February last ; they issued a writ of fi. fa t same day and delivered it to the sheriff of the city and county NEW-YORK PRACTICE REPORTS. 125 Jordan agt. Posey. of New-York ; by said writ he was directed to levy the sum of $557.25. He has been informed that shortly prior to the delivery of said fi. fa. to the sheriff and on the same day, a writ of fi. fa. was delivered to the sheriff in this cause ; by virtue of said writ of fi. fa. a stock of dry goods belonging to the defendant, valued at about $800 has been levied upon, which amount, if applied on the fi.fa. in this cause, will be the means of a loss to Bates & Masterton of their debt. Mas- terton alleges as grounds for this motion the same facts in re- gard to the judgment and execution in this cause as is stated in the affidavits used by defendant on his motion above men- tioned, to wit, that there is no warrant of attorney filed with the judgment record, authorizing the entry of said judgment, or has yet been filed ; and that the fi. fa. issued upon said judgment is made returnable in twenty days, and that the judgment was obtained by false and fraudulent representations. Bates & Masterton by Smith Barker their attorney move to vacate and set aside thefi.fa. in this cause; and in case that is not granted, then, that the sheriff be directed to satisfy their execution first out of the defendant's property. And they gave plaintiffs notice they should read the defendant's moving papers in addition, in support of their motion. Jordan & Holmes, the plaintiffs in the above cause, first move for leave to file the warrant of attorney in this cause, as of the day judgment was entered nuncpro tune. On an affidavit of Jared Sparks, who states that he is an attorney at law, and is in the office of W. W. Campbell, Esq., the attorney for plaintiffs, he on behalf of plaintiffs' attorney on the 31st January last, en- tered up a judgment on bond and warrant of attorney against the above defendant, and accidentally omitted to file the war- rant of attorney in this cause ; he did not discover the omis- sion until a few days after judgment was entered. Plaintiffs cited 2 R S. p. 344, 7 ; 3 Cow. 39 ; 2 Cow. 410; 14 T. R. 219; 3J.R 526; Clerke's Digest of Reports, 94, 5 andG; 1 R. Laws, 118, 6, 416, 3 ; 2 R. S. 283, 10, sub. 1 *and 2. And submits that under these authorities [*126] the amendment should be allowed, and the judgment 126 NEW-YORK PRACTICE REPORTS. Jordan agt. Posey. should not be disturbed, and a priority to later judgment cred- itors given, unless the judgment was procured by fraud. On that point the plaintiffs produce an affidavit of Andrew Jordan, one of the plaintiffs, who states, that the several bills of goods were not sold on a credit of ninety days ; no time of credit was mentioned in relation to any, except the bills of October 8th and 10th, which were sold on a credit of sixty days ; no time was mentioned in relation to the others, but plaintiffs sup- posed the credit would in no case extend beyond sixty days. At the times of the several sales, the defendant represented himself as being solvent, that his stock and money were fully adequate to meet all his liabilities. Some time in January last defendant was desirous to enlarge his stock, and plaintiffs were disposed to aid him, if they could be secured for the past and the future sums, he might become indebted, and would sell him goods at a small profit, provided they were so secured. It was then agreed that plaintiffs should have the necessary papers prepared, which was done, to wit, a bond in the penal sum of $2,000, conditioned for the sum of $589, and for such other sums as might become due, which was accompanied with a warrant of attorney in due form, authorizing in addition to the usual authority, that an execution might be issued and re- turned forthwith. Plaintiffs submitted the papers to defend- ant, read the bond to him, and fully and particularly explained the nature and object of the warrant of attorney ; defendant then signed them, after stating that he perfectly understood them. Plaintiff denies using the word " guaranty " at all in conversation with defendant about security. It was partic- ularly stated to defendant that the object of the bond was to give plaintiffs a security for present and future indebtedness. Defendant observed to plaintiff at the time the papers were executed, he hoped plaintiffs would not close him up immedi- ately ; plaintiff in reply stated, that from defendant's repre- sentations he did not suppose it would be necessary, otherwise, he would have nothing to do with it. Defendant understood and consented the bills should be due at any time after de- livery, and that plaintiffs had a right to close up the judgment NEW-YORK PRACTICE REPORTS. 126 Jordan agt. Posey. as their security. Two other bills of goods were sold to de- fendant after the security was taken. Soon after the delivery thereof plaintiffs ascertained from examination that defendant's stock and means of payment were insufficient to pay his lia- bilities already incurred, by several hundred dollars. In con- sequence of defendant's misrepresentation plaintiffs became alarmed for the safety of their claim, and on the 31st January last, had judgment entered, execution issued and levied as *before stated. Plaintiff has been informed [*127] that the amount of property levied upon, is estimated at about $1,000, and the amount of defendant's indebtedness is over $2,300. Defendant on the 6th February last executed another bond and warrant of attorney to Bates & Masterton, and judgment was entered and execution issued as before mentioned, with a full knowledge of the proceedings of plain- tiffs. Jordan's affidavit is sustained in all the material facts, by the affidavits of three different individuals. A copy of the warrant of attorney is annexed to plaintiffs' papers by which it appears that there is a clause inserted authorizing the issu- ing of an execution immediately after entering judgment, and that the same be made returnable forthwith. P. GANSEVOORT, counsel for defendant and for Bates & Masterton. SMITH BARKER, attorney for defendant and for Bates & Masterton. W. "W. CAMPBELL, plaintiffs counsel and attorney. BEARDSLEY, Justice. Had no doubt about allowing the warrant of attorney to be filed nunc pro tune, the authorities are full on that point ; his only hesitation was, as to the re- turn of the execution in twenty days ; but on examining the copy of the warrant of attorney produced, it appeared that the stipulation therein, signed by defendant, was full and suffi- cient on that point ; it allowed the execution to be issued im- mediately after entering judgment, and that the same be made returnable forthwith. The question of fraud is fully met and explained by the opposing affidavits. 127 NEW-YORK PRACTICE REPORTS. Hay agt. Fowler. Decision. Defendant's motion denied without costs. Bates & Masterton's motion denied without costs; and plaintiffs' motion granted without costs. Eules accordingly. JAMES HAY agt. JAMES FOWLER, Survivor of James Fowler and James E. E. Fowler. An execution issued after the death of a party, without any change in the orig- inal title, and tested previous to his death ; held regular. March Special Term, 1845. MOTION by plaintiff to set aside the execution issued in this cause, and all subsequent proceedings on the part of defend- ant for irregularity, the execution having been issued since the death of the defendant. Plaintiff's papers show, that this was an action of covenant on a lease or agreement under seal. The cause came [*128] on to be tried at a circuit some *months since in New-York city. A nonsuit was granted on grounds not involving the merits of the cause. Defendant afterwards entered up judgment for his taxed costs. Subsequently he brought an action on that judgment for said costs ; this action has abated by his decease, which occurred in December last. On the 4th of January last, defendant's attorney issued an execution in this suit entitled as if the said defendant were still surviving ; no proceedings in this suit having been had since the decease of said Fowler, except the issuing of such execution. Elisha Morrill, the attorney for above defendants, states in his affidavit, that judgment for costs against plaintiff was entered up in this cause for $75.43 on the 23d July last. On the 10th December last, the defendant died. On the 4th of January last, and prior to the commencement of the Janu- ary term an execution was issued on said judgment, tested on the third Monday of October, 1844, returnable in sixty days. NEW-YORK PEACTICE REPORTS. 128 Clarke agt. Gray. The entire amount of said costs belongs to the attorney. The attorney for defendant cites 1 Cow. 33, 34, 178 and 741 ; 4 Cow. 423 ; 10 Wend. 206; 2 Tidd, 915 ; 9 Wend. 53 and 452; 2 Cow. Treat. 1042. N. B. BLUNT, plaintiff's counsel JOHJST N. STONE, plaintiff's attorney. H. P. BARBER, defendant's counsel. ELISHA MORRILL, defendant's attorney. BEARDSLEY, Justice. The law appears to be well settled that an execution tested before the death of the party, although issued afterwards, is regular. Here the defendant died in vacation of October term, and execution was issued before January term, and tested of October term, which was prior to his death. It must be held regular. Decision. Motion denied with costs. JOHN CLARKE agt. GEORGE I. GRAY and five others. An attorney who is employed by one defendant to appear for several defendants in a cause, and who is recognized as the attorney for all the defendants, and gives a cognovit as attorney for all the defendants therein on the settlement of the cause ; held that defendants are all bound by it. March Special Term, 1845. MOTION by Daniel Babcock, James Cosgrove, Albert H. Davis and Josiah Smith, four of the defendants above named, to set aside the cognovit in this cause, and all subsequent pro- ceedings ; and that the defendants, except Gray and Curtis, be permitted to come in and defend. This is an action of trover, commenced by capias, on which all the defendants were held to bail ; the suit was commenced August 12, 1843. Gray (who appears to be the principal de- 129 NEW-YORK PRACTICE REPORTS. Clarke, v. Gray fendant in the cause) swears that after the suit was [*129] *commenced he employed B. Bagley, Esq., as his counsel to defend this suit, and exhibited to his coun- sel the capias and told him he was not authorized to employ counsel for the other defendants, that he did not intend to, nor did he employ said Bagley for any other person except himself; that he should have to defend the cause himself. The cause was noticed for trial at the June Jefferson circuit, 1844. Gray and the other defendants were in attendance ; the cause was called on the second day of the circuit, and Bagley informed the judge there was a probability of a settle- ment of the cause, and it was passed : soon afterwards Bagley told Gray the plaintiff proposed to settle said cause ; Gray re- plied he would not settle it. The next day the cause was again called, and the plaintiff informed the judge that there was a prospect of its being settled, and it was again passed ; thereupon, Bagley requested Gray to go into one of the jury rooms with him ; Gray went, accompanied by Babcock, Cur- tis, and Cosgrove and G. C. Sherman, Esq., who attended as counsel for defendants, except Gray. Bagley again repeated that there were offers of settlement from the plaintiff. Gray told him he would not have anything to do with settling it unless the others were willing ; that as they said, he (Gray) would do. The defendants Babcock, Cosgrove and Curtis re- fused to settle. After they had dispersed, Gray, at the re- quest of the three last-named defendants, went to Bagley and told him the defendants would not settle, that they were ready for trial, and he must go on with the cause. Bagley then told Gray go to home, that he would never hear anything more from it ; thereupon, Gray and the other defendants left, supposing the cause finally disposed of, and that they were discharged. Gray states, he never knew or heard anything more of the cause, until he was informed an execution was issued against all the defendants for $228.40 damages and costs, the judg- ment docketed July 2, 1844. Daniel Babcock, James Cos- grove, Josiah Smith and Albert H. Davis, each in a separate affidavit, swear substantially to the facts as mentioned above ; NEW-YORK PRACTICE REPORTS. 129 Clarke agt. Gray. and each swear that they never employed, or authorized to be employed, B. Bagley, Esq., or any other person, to defend this cause for them, and never authorized said Bagley or any other person to settle the suit. Each were under the impression that if Gray defended the suit, his defence would enure to their benefit, and all swear to a defence on the merits. On the part of plaintiff, Bernard Bagley swears, that soon after the service of the capias in this cause, the defendant George J. Gray came to his office and requested him, Bagley, to de- fend the suit for all the defendants, and stated that all the other defendants were employed by him in the affair concerning which the suit was ^brought, and that he [*130] had agreed to indemnify them in case they were prosecuted. Bagley directed Charles D. Wright, his law partner, the attorney of record for the defendants (in whose name as attorney the business of their office is done), to ap- pear and plead for all the defendants, which was done. The cause was noticed for trial at the December Jefferson circuit, 1843, and put over on defendants' motion for a commission, on an affidavit made by defendant Gray, in which he stated that the defendants had a good and substantial defence, &c., as advised by their counsel, Bernard Bagley, Esq., and that the witness was material as advised by their said counsel. At the June Jefferson circuit, 1844, both parties and their wit- nesses attended for trial, at which time defendant Gray was anxious that Bagley, the attorney, should bring about a settle- ment with the plaintiff. Bagley, after some delay, succeeded in getting plaintiff to agree to take a cognovit for $100, besides costs, and discharge another action of trespass which he had commenced against said Gray and one Hollenbeck. Bagley then informed George C. Sherman, Esq., who was counsel for defendants, of this proposition, and asked his opinion about it. Sherman thought defendants ought to accept it. Bagley then directed Gray to get all the defendants together, into a room, which was done. Bagley and Sherman there talked the matter over with them, and they all agreed that it AY as best to accept the proposition, in case the plaintiff woul L 130 NEW-YORK PRACTICE REPORTS. Clarke agt Gray. give until the then next winter for Gray to pay the judgment, without having to call on the other defendants until that time, to which plaintiff agreed. Bagley then gave the cognovit on the spot in the court room, in the name of Mr. Wright, the attorney of record, for the defendants, and received a discharge of the other suit. After the cognovit was given, Daniel Bab- cock came to Bagley and said he would not agree to the set- tlement unless plaintiff would discharge him. Bagley replied, it was too late then, the cognovit was given, that he should have made his objections when defendants were all together at the time of the settlement. Bagley states that the cognovit was given in good faith, and, as he believes, with a full knowledge and consent of all the defendants. The plaintiff swears that all the notices, papers and pleadings received in the cause from defendants were from Charles D. Wright, attorney for all the defendants; also the notice of retainer; said Wright being the law partner of B. Bagley, Esq. And corroborates the affidavit of B. Bagley, in the matter of the settlement at the circuit and of the giving the cognovit. He also goes into a lengthy detail of the whole matters in controversy, which has no direct bearing upon the main points in this motion. [*131] *M. T. REYNOLDS, defendants' counsel J. MULLIN, defendants' attorney. J. A. SPENCER, plaintiffs counsel. J. CLARKE, plaintiff in pro. per. BEARDSLEY, Justice. Held, that the attorney for the de- fendants had authority to give the cognovit for all the defend- ants, and having given it, the defendants were all bound by it. Decision. Motion denied, with costs. NEW-YORK PRACTICE REPORTS. Freeland agt. Marvin. JAMES FREELAND et al agt. THOMAS J. MARVIN, SAMUEL 0. WEST and JOHN FORD. A notice must be served with a special plea in bankruptcy, requiring a plaintiff to reply, &c., otherwise on a motion for judgment as in case of nonsuit, the cause will be considered not at issue, through the neglect of defendant. March Special Term, 1845. MOTION by defendants for judgment, as in case of nonsuit. On the part of the defendants it is shown, that each defend- ant appears by a different attorney, and each join in this motion. Issue was joined as to defendants Marvin and Ford, on the 24th June, 1843, and as to West on the 20th June, 1843. The venue is laid in the city and county of New-York. A circuit court was held in and for the city and county of New- York on the fourth Monday of December last past. The plaintiffs did not notice the cause for trial at said circuit ; and issues of a later date than the above were tried at said circuit. On the part of the plaintiffs, it appears that this suit was brought to recover the amount of a check given by one of the defendants in their copartnership name of Marvin, West & Co. On the 22d of June, 1843, plaintiffs' attorney received a plea of the general issue from defendant West separately, by Bockes & Nash, his attorneys. On the 26th of June, 1843, he received a plea of the general issue from the defendant Marvin sepa- rately, by W. A. Beach, his attorney. And also, on the same day a plea of the general issue and a special plea of a bank- rupt's discharge, concluding with a verification from the de- fendant John Ford separately, by J. C. Hulbert, his attorney. There was no notice accompanying the said special plea of bankruptcy requiring plaintiffs' attorney to reply to same. Since the receipt of the pleas no proceedings have been had in the cause until this notice of motion. The delay on the part of plaintiffs is sought to be excused and explained by some ne- gotiations for the settlement of the cause; the result of which was not known until this notice of motion was given. Plain- 131 NEW-YORK PRACTICE REPORTS. Cole agt. "Wright. tiff submits, that this cause is not at issue within the 27th rule of this court, and not ready to be noticed for trial. And that the omission to serve plaintiff's attorney with notice to reply to said special plea, together with the negotiation for settle- ment, has been the cause thereof. [*132] *S. P. NASH, defendants 1 counsel. W. A. BEACH, attorney for Marvin. BOCKES & NASH, attorneys for West. JNO. C. HULBERT, attorney for Ford. P. CAGGER, plaintiffs' counsel. GEO. BOWMAN, plaintiffs' attorney. BEARDSLEY, Justice. The cause is not at issue, through neglect of defendants in omitting to serve plaintiffs' attorney with a notice to reply to the special plea in bankruptcy ; that, together with the negotiations which appears on the part of the plaintiffs to have been going on for a settlement, is fatal to defendants on this motion. Decision. Motion denied with costs. BENJAMIN COLE agt. GEORGE C. WRIGHT. II the real defendant in a cause (not a party to the record) ia instrumental in keeping away plaintiff 's witnesses from the circuit, motion for judgment as in case of nonsuit will be denied with costs. March Special Term, 1845. MOTION by defendant for judgment as in case of nonsuit. Defendant's attorney swears, that issue was joined in this cause on the 15th May, 1843, and notice of trial given for the circuit court held at Kochester, on the llth February last. Plaintiff did not proceed to the trial, and issues of a later date were tried in their regular order on the calendar. On the part of the plaintiff it is stated that one Moses Cook is the real defendant in this cause, and that said Cook secreted himself to avoid the service of a subpoena, by and on the part of the NEW-YORK PRACTICE REPORTS. 132 Smith agt. Caswell. plaintiff, and kept so secreted during the circuit, so that the sheriff was unable to serve an attachment upon him. And also that through the agency and instrumentality of the said Cook and of the defendant, one Hiram L. Collins, an im- portant and indispensable witness for plaintiff, was induced to secrete himself, (after having been duly subpoenaed by and on behalf of plaintiff,) so that the sheriff was unable to serve an attachment upon him, although two attachments had been is- sued during the circuit, and the sheriff, his officers and other persons had been in search of him. The said Hiram L. Col- lins promised plaintiff, when he was subpoenaed and his fees paid, that he would attend the circuit as a witness for him. Plaintiff alleges that he has at every circuit since issue joined, been ready and desirous on his part to try the cause. O. ALLEN, defendant's counsel. IEA BELLOWS, defendant's attorney. A. TABER, plaintiff's counsel. ALFRED ELY, plaintiff's attorney. BEARDSLEY, Justice. Held, that the answer to the motion was conclusive against the defendant, but as defendant's coun- sel desired an opportunity to explain, he would deny it with- out prejudice. Decision. Motion denied with costs, without prejudice. *GERRIT SMITH agt. PELEG CASWELL and ISAAC I. [*133] FORBES. CHARLES STROUD, Supervisor of the town of Lenox, agt. CHRISTIAN HARP, SIMON HARP and ISAAC I. FORBES. A purchaser of a sheriff's certificate, made on a sale of lands, under a judgment which \vas satisfied by such sale, cannot afterwards obtain surplus moneys in the sheriffs hands, which have arisen on the sale of the same land on an older judgment, or have the same applied to the judgment under which he holds his certificate. VOL. I. 13 133 NEW-YORK PRACTICE REPORTS. Smith agt. CaswelL April Term, 1845. MOTION made at March special term by Daniel B. Moot for an order that the sheriff of the county of Madison, pay over to Daniel B. Moot such surplus moneys as were received by him, arising out of the sale of the real estate of Isaac I. Forbes, &c. Judgment was recovered in the first cause above in the su- preme court on the 13th December, 1842, and which was duly docketed in the county clerk's office, (Madison county,) on the 30th of said December ; the amount being $685.08. A fi. fa. was issued on this judgment, and on 14th November, 1844, a piece of land, the property of the defendant Forbes, was sold by the sheriff of Madison county, which was purchased by said Smith, the plaintiff, at $818.26, the amount of said judgment with costs, &c. The usual certificate was made by the sheriff, &c., and the execution was returned satisfied. On the 15th January, 1845, Daniel B. Moot purchased said cer- tificate of Smith, and took an assignment thereof from him, and which he still holds and owns. The judgment in the second cause above was junior to the judgment lien of the first judgment, but it was recovered on a collector's bond of the town of Lenox, the amount of damages and costs in said suit was $1,112.67 at the rendition of said judgment: said judgment was docketed in Madison county the 25th [*1S4] November, 1844, but the bond on which it *had been rendered was filed in the office of the clerk of said county, the 12th day of December, 1842. (1 Rev. Slat. 339, 29.) . On the 30th January, 1845, said land was sold on a fi.fa. issued on this judgment, and purchased by said Moot at $1,600. This sum was about $436 above the amount required to satisfy the judgment last aforesaid, and Moot claimed he was entitled to retain and apply said balance on the certificate aforesaid, then owned by him ; this the sheriff refused and Moot paid the whole amount of his bid, and the sheriff gave him a certificate of sale. The following other judgments have been rendered against NEW-YORK PRACTICE REPORTS. 134 Smith agt. Caswell. Forbes, and executions thereon issued to the sheriff of Madi- son : James Grouse agt. Isaac I. Forbes and Silas Sayles. August 6th, 1844, judgment $86.66. September 11, 1844, fi.fa. re- ceived by sheriff. Duane Brown agt. Isaac I. Forbes, Jasper Near and Silas Sayles. August 23, 1844, judgment $403.40. January 14, 18i5,fi.fa. received by sheriff. Isaac Bartktt agt. Same. September 28th, 1844, judgment $278.33. January 31, 1845, fi.fa. received by sheriff. Moot now moves to compel the sheriff to pay the balance of said $1,600, after satisfying Stroud's judgment, to him. D. B. NOXEN, counsel for motion. NOXEN, LEAVENWORTH & COMSTOCK, attorneys for motion. A. TABER, counsel opposed. D. BROWN", attorney in opposition. BEARDSLEY, Justice. By the sale of Forbes' land and its purchase by Smith, the judgment in favor of the latter was satisfied. That sale has not been set aside, but stands in full force ; the judgment must therefore still be regarded as ex- tinguished. Smith acquired by that sale all the interest of Forbes in the land, subject to prior liens. Moot has taken the place of Smith as such purchaser, and has acquired all the right which Smith had. The land has now been sold under a judgment lien prior to *that in favor of [*135] Smith, and Moot became the purchaser at this sale. After satisfying the execution on which this sale was made, several hundred dollars of the sum bid by Moot remain in the sheriff's hands, and Moot now asks to have this surplus paid to him towards satisfying the certificate he holds, or the judgment in favor of Smith upon which the land was first sold. This cannot be done : the Smith judgment was extin- guished by a sale of Forbes' interest in the land, and there is no principle upon which a cent of this money can now be applied on it. Moot chose to purchase of Smith, what Smith. 135 NEW-YORK PRACTICE REPORTS. The Troy City Bank agt. Grant. took in satisfaction of his judgment, and he is entitled to all the r^ght thus acquired. What it may amount to, the court cannot say ; but be it more or less, it lays no foundation for such an application as this. The statute authorizing lands to be redeemed from sale on execution, has no application to this question. The motion must be denied with costs. Eule accordingly. THE TROY CITY BANK agt. GURDON GRANT et al. Where a verdict for plaintiffs for less than $250 was stayed on a bill of excep- tions by the defendants, until the interest carried the amount over $250 at the final determination of the suit in favor of plaintiffs, and the taxing officer al- lowed full supreme court costs for attorney and counsel fees under the act of 1840 ; a retaxation was ordered and one-third of the amount directed to be deducted. Interest is no part of the recovery for damages ; it must be taxed as costs, when allowed after verdict. April Term, 1845. MOTION by defendants for retaxation of costs. This was an action of assumpsit. The cause was tried in November, 1843, and a verdict rendered for plaintiff for $233.60. The defendants stayed plaintiffs' proceedings and made a bill of exceptions, which was argued at the last Octo- ber term, and at the last January term was decided against the defendants. The plaintiffs then made out their costs, and procured the same to be taxed. At the time of the taxa- tion, the plaintiffs' demand for which the verdict was rendered with interest exceeded two hundred and fifty dollars ; and the taxing officer allowed full supreme court costs for attorney and counsel fees. Defendants now move for retaxation on the ground that full supreme court costs should not have been allowed. J. D. WILLARD, defendants' counsel. WILLARD, EAYMOND & WOODBURY, defendants' at- torneys. NEW-YORK PRACTICE REPORTS. 136 "Wilder agt. Wheeler. N. HILL, JR., plaintiffs' counsel. DAVID BUEL, JR., plaintiff's attorney. BRONSON, Chief Justice. One-third the amount of attorney and counsel *fees as taxed must be deducted. [*136] We have always held that the " recovery " within the meaning of the act regulating costs, is the recovery for damages. If the plaintiff gets interest on his verdict, it is by taxation as costs. The verdict must govern, and the circum- stance that proceedings have been stayed by case or bill of exceptions makes no difference. Eule deducting one-third attorney and counsel fee. GrEORGE Gr. WILDER and BENJAMIN SNOW, JR. agt. BENJA- MIN WHEELER. Principles upon relaxation of costs. April Term, 1845. MOTION by plaintifis for retaxation of costs. This cause and another against the same defendant, were noticed for hearing the same day, before referees, both involv- ing the same question ; witnesses were sworn in the other cause, in which plaintiffs obtained a judgment for damages and costs. It was afterwards agreed that the same testimony should be used in this cause. It appeared that the witnesses were subpoenaed in this cause also. Plaintiffs recovered less than $50. E. PEARSON, plaintiffs' counsel. PEARSON & CHURCH, plaintiffs' attorneys. C. D. SHELDON, defendant's counsel and attorney. BRONSON, Chief Justice. Notice on order for bill of par- ticulars affidavit to procure absolute order for bill of partic- ulars proof of service of subpoena proof of service of notice 136 NEW-YORK PRACTICE REPORTS. Stevens agt. Thompson. to produce books and papers, and docketing transcripts, are not taxable items, and must be stricken out. The witnesses' fees are taxable in this cause, although sworn in the other and not in this. Affidavit for relaxation, as to items not provided for in the bill, need only show that such items were objected to before the taxing officer. As to the other items, it should state the grounds of the objections to such items. JAMES D. STEVENS agt. JESSE THOMPSON. A defendant will be let in to plead and defend, after default and judgment, having merits which he asserts he wishes and intends to interpose ; where he has evidently been misled by plaintiff in taking his default, although uninten- tionally. April Term, 1845. MOTION by defendant Thompson to set aside default and subsequent proceedings. This was a proceeding for the determination of a [*137] claim to real *estate under Rev. Slat. part. 3, Ch. 5, tit. 2. The ordinary notice was served personally on said Thompson, October 29, 1844, and the usual rule to appear and plead was entered November 1, 1844. The default was taken on the 9th January, 1845, and judgment perfected 22d January, 1845. About twenty-five days after the service, Thompson the defendant sent the notice to Kirkland & Bacon, his attorneys at Utica, with a request not to do anything in the matter until it became necessary, as he hoped to be able to settle it. On the 25th of December, Thompson called on Kirkland & Bacon, and Kirkland told him he had seen O. S. Williams, Stebbins' attorney, and Williams told him, that no rule had been entered in the matter, and that he did not know when he should enter one. On the 27th December, Thomp- son sent to Williams a letter as follows : "I saw Mr. Kirk- land on the 25th inst., and he wished me to ask you if you NEW-YORK PRACTICE REPORTS. 137 Stevens agt. Thompson. had entered any rule in the Stebbins land suit yet : if so, when ? If no rule is yet entered, will you apprise him or me when you do enter such rule ? Please say on this paper, and oblige yours." In answer, O. S. Williams, Esq., wrote the following : "In reply to above I would say, that no rule has been entered in the Stebbins matter, and when any will, is more than I can tell. I have not looked into the matter much, but shall do so before long." This letter, containing both communications, was sent by Thompson to Kirkland & Bacon. A few days after this communication was had, Thompson called at Williams' office, and Williams informed him that he would inform him, Thompson, or Kirkland & Bacon, when any rule was entered. Kirkland & Bacon, rely- ing upon what had transpired between them and Williams, and also between Thompson and Williams, took no farther means of ascertaining that a rule had been entered, and heard nothing farther from it until the last January term of this court : Kirkland, while in attendance upon the court, hap- pened to discover a rule for default entered in the clerk's minutes against Thompson for not pleading, bearing date January 9, 1845. Thompson swears to merits and a good cause of action. Williams explained by saying, that on or about the 9th of December, he met Kirkland in the cars, when a conversation was had respecting this suit, and Kirkland in- quired of Williams in these words : " You have not entered any default, I suppose ?" to which Williams answered he had not, as the time to plead had not expired. Kirkland then asked when the time to plead would expire ; to which Wil- liams replied, he did not recollect precisely, but thought it would be some time in the next week. Kirkland then asked if it was necessary to serve a notice of the rule to appear and plead, on Thompson ; to which Williams replied it was not, as he understood the *practice. Kirkland said he must [*138] look into the matter, and Williams said he must do the same, as the practice was not familiar to him. In the last expres- sion Williams said he had particular reference to the practice in regard to entering default and perfecting judgment in such 138 NEW-YORK PRACTICE REPORTS. Stevens agt. Thompson. cases. Williams said that it was possible that Kirkland, in his first inquiry, used the word rule instead of default, as the cars were going, and there being considerable noise ; but thinks not : and as to the rest of the conversation at that time, he had a distinct recollection of its being correct. Williams said that he had in mind the conversation with Kirkland when Thomp- son sent him a letter, and supposed that the rule inquired about was a rule for default ; and so in the subsequent con- versation with Thompson, he supposed he was to give Kirk- land & Bacon notice when he had entered the rule for default, as Thompson requested ; which he called on Kirkland and Bacon to do the next time he was in Utica after the default was entered. A. TABER, defendant's counsel. KIRKLAND & BACON", defendants attorneys. R. W. PECKHAM, plaintiff's counsel. O. S. WILLIAMS, plaintiff's attorney. BRONSON, Chief Justice. Stebbins has been regular in his proceedings. Most of the questions mentioned at the bar, have already been decided. (Plait agt. Torry, 18 Wend. 572 ; and a case decided within the last year not yet published.) But Thompson swears to merits and a good cause of action ; and there has been a very great misunderstanding in relation to this matter between him and his attorney on the one side, and the attorney for Stebbins on the other. I do not think there was any intention to mislead on the part of Mr. Wil- liams, either in what he said or in what he wrote ; but still it is difficult to deny, on these papers, that the opposite attor- neys have been misled. True, I do not see why Thompson should have been waiting for a rule ; he might have brought his action to recover the land. But as he swears to a good title, and the intention to assert it, I think he should be al- lowed an opportunity to do so. Decision. Ordered that Thompson be at liberty at any time, within twenty days to appear, and either to plead or declare NEW-YORK PRACTICE REPORTS 139 Harris agt "Warren. pursuant to the statute. And in case he shall do so, then the default and judgment which have been entered by Steb- bins, shall be set aside as of this day. *LUCRETIA HARRIS et al agt. MOSES WARREN, [*139] Impleaded, &c. V ' ', 01. An irregular judgment will be set aside, if motion is not nA^.^^^ '^one year, where it appears the irregularity is not merely technical, but a uu n ^of sub- stance. April Term, 1845. MOTION by R M. and M. I. Townsend, as attorneys for Mo- ses Warren, and in their own behalf, as purchasers, to vacate a judgment as against Warren. Suit commenced on a promissory note against Moses War ren and others, September 21, 1842. Warren was indorser ; venue Saratoga county ; copy declaration and copy note at- tached was served on Warren on the 21st September, 1842. On the 8th October, 1842, Warren procured an order to ex- tend his time to plead twenty days, and served same, together with a notice of retainer, by E. M. Townsend, his attorney, on B. I\ Agan, plaintiffs' attorney, same day, to wit, 8th Octo- ber, 1842. On the 27th October, Warren's attorney served plaintiff's attorney with a plea duly verified, which was re- ceived by plaintiff's attorney, Agan, before Warren's time to plead had expired. Plaintiff's attorney noticed cause for trial 15th November, 1842, for first Monday of December follow- ing. The cause was then not tried ; and plaintiff's attorney stipulated to try it at the December circuit, 1843. The cause was not then tried ; and plaintiffs' attorney again noticed it for trial for the June circuit, 1844. The cause has never been tried. Warren died 6th February, 1845, and the cause was then pending and undetermined as against Warren. On the 22d April, 1843, R. M. and M. I. Townsend purchased of said Warren certain real estate in the county of Eensselaer, which 139 NEW-YORK PRACTICE REPORTS. Harris agt. "Warren. was conveyed to them by deed from said Warren, for a valu- able consideration, paid. On the 6th of March, 1845, Towns- ends first learned that plaintiffs' attorney had on the llth October, 1842, entered a judgment in favor of the plaintiffs, against Warren and the other defendants, for $1,036.45 dam- ages and costs ; and a transcript thereof, on the same day was filed in the Eensselaer county clerk's ofiice, which became a lien upon the property purchased by Townsends. The plaintiffs alleged that the sale made by Warren to the Townseivi fi*x without any adequate consideration, and was inten^ *. *. M cover the property of Warren, and avoid the pay- iiient of the aforesaid judgment. One Chandler swears he informed Warren, about four weeks after the entry of the judgment and filing transcript, that the same was done. TOWNSEND & HILL, counsel for motion. B. M. & M. I. TOWNSEND, in propria persona. M. T. REYNOLDS, counsel opposed. B. F. AGAN, plaintiffs' attorney. BRONSON, Chief Justice. The plaintiffs entered an irregu- lar judgment against Warren before his time for [*140] pleading had expired. Finding *themselves in the wrong, the plaintiffs waived the judgment, and no- ticed the cause for trial several times ; and it remained pend- ing and undetermined when Warren died in February last. This irregular and abandoned judgment cannot be allowed to stand, either against Warren, or those claiming under him, whether as heirs, devisees, or purchasers. The Townsends stand in the latter character. If Warren knew that a judg- ment had been entered, he knew also that it had been waived. This is not a mere technical irregularity, as to which a party must move within a year after judgment. The motion is founded on matter of substance. The plaintiffs have a judg- ment without the shadow of legal foundation to support it. Decision. Ordered, That the judgment entered against the defendants in this cause, so far as relates to the defendant NEW-YORK PEACTICE REPORTS. 140 Gurney agt. Parks. Moses Warren, be vacated and set aside ; so that the said judgment shall not affect any property eld under said Warren. WILLIAM H. GURNEY agt. DAVID PARKS. Where a verdict was rendered for defendant at the circuit, and plaintiff moved ibr a new trial on a bill of exceptions, which was decided in favor of the de- fendant; and pending the motion for a new trial the defendant died; the defendant, on application, was permitted to enter judgment as of the next suc- ceeding term, after verdict, during the lifetime of defendant. April Term, 1845. MOTION by defendant for leave to enter up judgment on the verdict rendered in this cause, as of May term, 1841. Eeplevin, tried at the Dutchess circuit, 1840 ; verdict for defendant for rent, $179, and the value of the goods were as- sessed at $260. Proceedings were stayed, and bill of excep- tions brought by plaintiff's attorney. On the 12th December last, defendant's attorney served a notice of argument on plaintiff's attorney, for January term last ; at which term judgment of affirmance was rendered for defendant. David Parks, the defendant, died on the 10th March, 1843, pending the motion for a new trial. Plaintiff's attorney states he never received any notice of argument in the cause for January term last. M. T. KEYNOLDS, defendants counsel. D. PECK, defendants attorney. S. STEVENS, plaintiffs counsel. WILLIAM ENO, plaintiff' 's attorney. BRONSON, Chief Justice. This question is decided by the case of Spalding agt. Congdon, (18 Wendell, 543.) Decision. Motion granted. 141 NEW-YORK PRACTICE REPORTS. Brown agt. "Wesson. [*141] *NELSON BROWN and HIAL FITCH, plaintiffs in error agt. DAVID WESSON and ANDREW WESSON, defend- ants in error. An action in trover before a justice of the peace, in which a promissory note was introduced and proved as the amount of damages claimed, and was delivered up and cancelled on the trial, and judgment in trover was rendered for that amount against the defendants, they not appearing to defend ; the defendants on an ex parie application, procured a common law certiorari to remove the proceedings into this court : And on a motion by defendants in error to quash the certiorari on the ground that it appeared the principal ground of the plain- tifls hi error, was, that the proof before the justice was not sufficient to war- rant a judgment in trover, and that the action should have been assumpsit ; it was held that such a question could not be reached by a common law cer- tiorari ; and motion was granted with costs. April Term, 1845. MOTION by defendants in error to quash a common law certiorari. On the 7th March last, this court granted a common law certiorari in this cause, on the ex parte application of plain- tiffs in error; said certiorari was directed to the common pleas of Chenango county ; the motion was founded on the affidavit of Nelson Brown, one of the plaintiffs in error : to which was annexed the papers used in the common pleas on motion to set aside the execution issued by the clerk of Che- nango county, and for a perpetual stay of proceedings on said execution. The papers on which said motion in the common pleas was founded, showed that the plaintiffs in error were sued by the defendants in error in justice's court in Oxford, and that the declaration in the justice's court was in trover for boots and shoes, obtained by false pretences ; a note was given by defendants for the boots and shoes, which note was deliv- ered to the justice to be cancelled on the trial. The defend- ants did not appear in the justice's court, and judgment for plaintiffs for damages and costs, $66.76, on the 9th October, 1843, was rendered against them, a transcript filed and exe- cution issued by the clerk of Chenango county. The evidence NEW-YORK PRACTICE REPORTS. 141 Brown agt. "Wesson. before the justice appeared with the papers. The affidavit of Nelson Brown, upon which the certiorari was granted, stated " that he believed an improper and fraudulent attempt was made in said cause to convert a contract debt into a tort, and that the defendants (plaintiffs in error) applied to the common pleas for relief by motion, and they grated an order staying proceedings to enable the defendants (plaintiffs in error) to bring these proceedings before this court by a common law certiorari." This motion to quash said certiorari was founded upon the papers on which the said certiorari was allowed, and also upon the affidavits of Henry E. My- gatt (attorney), and Austin Hyde (judge of common pleas), and thereto are annexed the affidavit? of said attorney, and TJri Tracy (justice), used in common pleas to resist said motion and orders of court below. The ^justices' [*142] affidavit used to resist the motion in the common pleas stated, that the judgment was rendered in trover ; and that the plaintiffs' attorney brought to court a declaration part printed and part written in trover ; and the affidavit of the attorney stated an admission made by defendants in justice's court. The common pleas denied the motion with costs, and directed an alias execution to issue ; after the mo- tion was decided, they granted time to move for a certiorari or mandamus. The affidavits of the attorney (Mygatt) and the judge (Hyde), upon this motion, showed that the motion in the common pleas was resisted upon two affidavits above stated, and that said two orders were entered. Hyde was one of the judges who presided on the motion, and he stated that " the counsel of said Brown and Fitch assumed among other grounds, that the evidence before the justice was not sufficient to sustain trover, and that the action should have been in assumpsit and not in trover." The affidavit of attorney (Mygatt) stated that no notice was given for said motion for certiorari, and that he expected notice, and that the costs ($7), in the common pleas directed to be paid on denying the mo- tion, had not been paid. 142 NEW-YORK PRACTICE REPORTS. Cagger agt. Gardner. H. H. MARTIN, counsel for defendants in error. N. HILL, JR., counsel for plaintiffs in error. H. R. MYGATT, attorney for defendants in error. H. BENNETT, attorney for plaintiffs in error. BRONSON, Chief Justice. There can be little doubt that the writ was allowed at the March special term, on the sup- position that the action before the justice was assumpsit on a promissory note, and the judgment in trover for boots and shoes. If such had been the fact, there would have been error in those parts of the proceedings, which are in the nature of a record, and a common law certiorari might have been an available remedy. But it now clearly appears that the action was trover from beginning to end ; and the only question which can be made, is, whether there was suf- ficient evidence to support the judgment Such a question cannot be reached by a common law certiorari, and it would be worse than useless to go on with the litigation. Motion granted. PETER CAGGER agt. WILLIAM S. GARDNER. Whore a party moves on a mere irregularity, he must be held to the rule strictly, and move the first opportunity, or he will be too late. April Term, 1845. MOTION by defendant to set aside judgment for irregularity. Action brought against Peter Comstock as maker, [*143] and defendant as indorser, *of a promissory note ; Gardner the defendant only, was served with a de- claration. At the last January (Albany) circuit, the cause entitled "Peter Cagger agt. Peter Comstock and William S. Gardner" was noticed for trial ; Gardner only appeared on the trial ; a verdict was taken against him for $2,454.04, and the damages assessed against Peter Comstock for the same amount. E. Clark, Esq., one of defendant's attorneys, being NEW-YORK PRACTICE REPORTS. 143 Wilcox agt. Moses. present at the trial. Cagger, the plaintiff, and one of plain- tiff's attorneys, supposed that Comstock had been served with a declaration, and his default entered when he procured the assessment of damages against him ; he afterwards, on the llth of February, informed defendant's attorney, Clark, that he waived the verdict as against Comstock ; and at the same time served Clark with a copy of the bill of costs and notice of retaxation entitled against Gardner separately. Judgment was entered against Gardner only, and execution issued on the 14th March last. E. CLARK, defendants counsel. CLARK & PATTISON, defendant's attorneys. C. STEVENS, plaintiffs counsel. CAGGER & STEVENS, plaintiff's attorneys. BRONSON, Chief Justice. The defendant has no merits ; but moves on the sole ground of irregularity. In such cases, the rule is, that the party must move at the first opportunity, or he will be too late. Here the defendant's attorneys knew of the irregularity on the llth of February, three full weeks before the March special term, at which time he should have moved. Decision. Motion denied with $7 costs of opposing. FORTIS M. WILCOX agt. AUGUSTUS MOSES. Where a motion is denied without prejudice to the right to renew it, and on the second motion no part of the moving papers show that it is a renewal of a mo- tion ; and objection is made to the motion on the ground that it has been decided ; the rule entered granting such leave to renew, is then offered to be read, and that is objected to, on the ground that the moving papers do not refer to it. The court will allow the motion to stand over to next without costs, with leave to serve further papers. 143 NEW-YORK PRACTICE REPORTS. The "Watervliet Bank agt. Clark. April Term, 1845. MOTION by plaintiff for costs of the last Essex circuit, held January 28, 1845. It was opposed on the ground that it was too late. (2 Wend. 286.) Chief justice said that rule did not apply to substantial matters of this kind. It was replied that the motion was made last term and denied, without prejudice. It was then objected that it did not appear from any of the papers that it was a renewal of a former motion. The rule of last term was then offered to be read, and was objected to. Chief [*144] justice *said he did not see why it might not be read, and farther said that if he did not grant the motion, he should let it stand over without costs to serve further pa- pers; on the objection being insisted on, the motion was directed to stand over for that purpose. E. PEARSON, plaintiff 's counsel. G. E. ANDREWS, plaintiff' 1 s attorney. N. HILL, JR., defendant 's counsel. A. C. HAND, defendant's attorney. Kale entered according to the above decision. THE WATERVLIET BANK agt. EBENEZER CLARK, Imp'd &c. On a motion to set aside a report of referee and subsequent proceedings for ir- regularity, and the decision turns on a question of fact about which there is nearly equal conflicting evidence, and the defendant who seeks to set aside the report, and to be let hi to defend, swears to merits, the report, &c., will be set aside without costs to either party. April Term, 1845. MOTION by defendant to set aside report of referee, judg- ment, &c., for irregularity. Assumpsit, on a promissory note, cause referred to Ira Harris, sole referee, in October, 1843. Cause was adjourned from time to time, until the 21st February, 1845 ; when Harris, NEW-YORK PRACTICE REPORTS. 144 The Watervliet Bank agt. Clark. referee, appointed the 8th day of March, 1845, for a further hearing before him, at his office in Albany ; Anthony Ten Eyck, who was a clerk in the office of E. C. Litchfield, plain- tiff's attorney, made a copy of the said notice of hearing and compared it with John B. Frisbee, who was also a clerk in said Litchfield's office, with the original, signed by said Har- ris, and both said clerks swore that the copy notice was a true copy of the original, and that the copy notice as well as the original designated the 8th day of March, as the day of hear- ing before the referee ; and Ten Eyck swore that he served the same copy, so compared, on a person being in the office of Clark & Pattison, defendant's attorneys, residing in Troy, in office hours, on the 20th of February, 1845 ; said Clark & Pattison being then absent from their office. Ten Eyck also swore that at the time of the service, the notice of hearing was for the 8th of March. On the back of the copy notice of hearing served as aforesaid, was an indorsement, as follows : " Copy appointment of hearing for 10th day of March, at 10 A. M.," which indorsement Frisbee swore he made by mistake, confounding it with other notices of hearing in other causes for the 10th of March, between the same attorneys. The same copy served was produced and filed on this motion ; and which appears to have been altered in the body of the notice from 8th to 10th, the figure 10 written over the fig- ure 8. Clark & Pattison in their moving papers gave a copy of the notice served, for "*the 10th, and both [*145] swore that it was a correct copy of the only one served by plaintiff 's attorney, in February last, in said cause ; and was a copy of the same as served. On the 1C th March, Clark attended with his witnesses, and found that the hearing was had on the 8th, and learned a judgment had been entered on the report of the referee for plaintiff, for $309.43 damages, and $138.40 cost; which judgment plaintiff's attorney refused to waive, on defendant's application; defendant swore to merits. VOL. I. 14 145 NEW-YORK PRACTICE REPORTS. Cowton agt. Anderson. E. CLARK, defendants counsel. CLARK & PATTISON, defendant's attorneys. E. C. LITCHFIELD, plaintiff's counsel and attorney. BRONSON, Chief Justice. This is one of those cases in which both of the parties think themselves right on a question of fact, and where it is impossible on the papers presented to say with any great degree of certainty, which is in the wrong. The defendant swears to merits, and on the whole I think the report of the referee and subsequent proceedings on the part of the plaintiffs should be set aside, without costs to either party. Eule accordingly. ARTHUR COWTON agt. ISAAC ANDERSON, JR. Where a defendant suffers judgment to be taken against him by default, on a promissory note, which defendant alleges was given for money won at play, and consequently void under the statute against gaming ; he cannot succeed to set aside the default and judgment, on a motion afterwards, on the ground that the note was yoid under the statute ; he must avail himself of his defence by pleading. April Term., 1845. MOTION by defendant to set aside default and all subsequent proceedings, or for a perpetual stay of execution thereon. Assumpsit on a promissory note ; judgment entered by de- fault against defendant January 2d, 1845, for $557.24 damages and costs ; 4th February, execution was issued to sheriff of Westchester, and defendant's real estate advertised for sale. The ground of the application was, that the note on which the judgment in this cause was recovered was given by defendant for money won at play, and was therefore void under the stat- ute against gaming. No excuse was shown by the defendant for not having pleaded the statute in bar of a recovery, or having put in his defence in proper time. NEW-YORK PRACTICE REPORTS. 145 Northrop agt. Wright. N. B. BLUNT, defendant's counsel. A. L. BROWN, defendant's attorney. J. NEWLAND, plaintiff's counsel. A. B. BELKNAP, plaintiff's attorney. BRONSON, Chief Justice. The fact that the note was given for money won at play, does not take it out of the general rule, that a party must *put in his defence at [*146] the proper time of pleading, and not suffer a default to be taken against him. The defendant shows no excuse for not having availed himself of his defence by pleading. The motion must be denied with costs. Rule accordingly. RODOLPHUS E. NORTHROP agt. WILLIAM WRIGHT. On a motion that plaintiff file security for costs, the defendant will not be allowed as a general rule to have the amount increased over $250, where it appears the cause has been through a long course of litigation, and the amount of costs is large. A plaintiff non-resident, although compelled to bring an action of ejectment, by reason of a claim of title instituted under the statute by defend- ant is nevertheless required to file security for costs. April Term, 1845. MOTION by defendant that plaintiff file security for costs in this cause. The defendant, William Wright, served on plaintiff, Ro- clolphus E. Northrop, a claim under the act entitled, " Pro- ceedings to compel the determination of claims to real property in certain cases," part 3, chapter 5, title 2, of the Revised Stat- utes, on the 24th December, 1833. On the 9th August, 1843, an order was made by this court as follows : " William Wright, demandant agt. Rodolphus E. Northrop, claimant. On motion on the part of the demandant, ordered that the default of said Rodolphus be and the same is hereby entered, with leave to claimant to commence an action of 146 NEW-YORK PRACTICE REPORTS. Northrop agt "Wright. ejectment under the statute within twenty days after service of notice of this rule." In pursuance of said rule a declaration was filed on the 8th September, 1834, and a copy served. On the 23d of Sep- tember aforesaid, a plea was served. The cause was several nes noticed, and finally tried at the circuit on the 27th darch, 1837, and a verdict rendered for the claimant, Rodol- phus E. Northrop, for an undivided part of the premises as claimed in the declaration. Wright, the demandant, made a case and brought it before this court, which was decided at July term, 1841 : new trial denied. Judgment was docketed against Wright for the amount of the verdict and costs, which was by Wright, on the bill of exceptions, carried to the court of errors, and was decided in that court on the 26th December, 1844: judgment re versed and venire de novo directed to issue, costs to abide event. Northrop insisted he should not be re- quired to file security for costs, for the reason that he had acted on the defensive ; that all the proceedings on [*147] his part *had arisen out of the demand made by Wright. Wright showed that the plaintiff, Northrop, at the time of the commencement of this suit and ever since, had been and then was a non-resident of this state, and a resi- dent of the state of Connecticut ; and insisted that under the circumstances of this case, the costs having accumulated to a large amount, a bond for more than $250 should be required of plaintiff. The plaintiff, in reply, insisted that the practice had been uniform, and no more than what the statute required, had ever been ordered to be given. N. B. BLUNT, defendant's counsel JONATHAN MILLER, defendant's attorney. J. EDWARDS, plaintiff's counsel. WILLIAM S. SEARS, plaintiff's attorney. BRONSON, Chief Justice. Considered it the ordinary case for security for costs, and refused to increase the amount. The usual order entered for plaintiff to file security for costs, absolute. NEW-YORK PRACTICE REPORTS. 147 Schennerhorn agt. Jones. ALFRED SCHERMERHORN and EDWIN DELANO agt. LOREN JONES. JOEL N". HAYES and JOHN S. HEYER agt. SAME. Where the defendant bought goods of plaintiflfe on credit, and soon after the credit expired, defendant requested a compromise with the plaintiffs and other creditors, and the plaintiffs sued the defendant in trover, and held him to bail, on the ground that defendant obtained possession of plaintiffs' property by fraud and without right, these facts sufficiently appearing. On a motion by defendant to be discharged on common bail, on the ground that the cause of action was contract, it was held that the fraud destroyed the contract, and bail was ordered. April Term, 1845. MOTION by defendant to vacate the orders of John "W. Ed- monds, Esq., circuit judge of the first circuit, granted in the above entitled causes severally, on the 26th February, 1845 ; one of which was, to discharge the order requiring plaintiffs to show cause of action, and the other, to mitigate defendant's bail, and requiring him to give bail in the sum of $1,400. These suits were commenced by capias, in trover, and an order indorsed, requiring defendant to be held to bail in each cause in the sum of $1,600. On the 24th February, Edmonds, circuit judge of first circuit, granted an order in each cause, requiring plaintiffs to show cause why defendant should not be discharged on common bail, and if cause of action shown, then why the amount of bail should not be mitigated. Cause of action having been shown in pursuance of said orders, said circuit judge, on the 26th February, granted an order vacating and discharging the orders made on the 24th February, and granted another order, mitigating and reducing the amount of defendant's bail to $1,400. Said Edmonds, circuit judge, upon granting the last-mentioned orders, gave the following opinion in writing : ^(Titles of the causes.) " In September last, the [*148] defendant, who resided at Buffalo, purchased of the plaintiffs in this city, (New-York,) sundry bills of goods ^n 148 NEW-YORK PRACTICE REPORTS. Schermerhorn agt. Jones. time, upon representations that he was solvent. When the bills became due, it was found that he was utterly bankrupt, and it is alleged that his purchases were a fraud upon the plaintiffs, and that fact is, by the affidavits and admissions of the defendant, clearly made out. Under these circumstances, the plaintiffs disaffirmed the contract of sale, and brought suits against him in trover, held him to bail and he was arrested by the sheriff of New-York, from whose custody he now seeks to be dis- charged. The circuit judge rules that the fraud vitiates the contract of sale entirely, and that the defendant having ob- tained possession of the property of the plaintiffs without right, and having refused to return it, or to make compensa- tion for it, he was guilty of a wrong for which he might be held to bail. That the claim of the plaintiffs is in no respect founded upon the contract, but upon the fraud by means of which he obtained the plaintiffs' goods, and in that respect is materially different from the case of Brown agt. Treat & Car- ter, in 1 Hill In that case the form of the count only was changed, the nature of the contract remaining the same ; but in this case the whole matter is changed from a contract to a fraud, not in form only, but in fact. The order to show cause of action, is therefore discharged." K B. BLUNT, defendants counsel. A. L. BROWN, defendants attorney M. GK HARRINGTON, plaintiffs' attorney. BRONSON, Chief Justice. Held that the fraud destroyed the contract, and being a proper case for bail, denied the mo- tion with costs. Rule accordingly. NEW-YORK PRACTICE REPORTS. 148 Smith agt. Frizell. GERRIT SMITH agt. HENRY FRIZELL et al A writ of replevin will be amended on terms, by changing it from cepii and de- tinet to detinet alone, after the execution and appearance by defendant, where it appeared the attorney issued it, misapprehending the state of facts in the case. April Term, 1845. MOTION by plaintiff" for leave to amend the -writ of replevin, which was issued and executed in this cause, by striking out the words imputing an unlawful taking, to wit, " hath taken and," changing it from cepit and detinet to detinet alone. Plaintiff's attorney issued the writ of replevin for cepit and detinet, upon information which he supposed warranted it, but subsequently ascertained that it should have been issued for detinet alone, in order to meet the facts of the case. Defendant's counsel *supposed that a writ issued [*149] intentionally cepit and detinet could not be amended under the rule; that the decisions went to show that such amendments would be allowed only where it was shown to be a clerical mistake in drawing the writ. It was shown that the defendants had appeared, bat the plaintiff had not de- clared. A. C. HAND, plaintiffs counsel ana attorney. M. T. REYNOLDS, defendants' counsel. C. F. TABOR, defendants' attorney. BRONSON, Chief Justice. Thought the amendment should be allowed under the general rule ; and granted the motion on payment of $7 costs of opposing the motion, and giving a new replevin bond nunc pro tune, and the sureties therein justify- ing, provided the form of the existing bond be such that it will not be adapted to the amended writ. 149 NEW-YORK PRACTICE REPORTS. Rusk agt. Van Benschoten. EMMET RUSK agt. GEORGE Van BENSCHOTEN, Impleaded with HEODORE CAINE. The court do not inquire into parts of day on filing and service of a declaration. Service before filing on the same day held good. April Term, 1845. MOTION by defendant Van Benschoten to set aside judg- ment and execution in this cause, so far as relates to property of Van Benschoten. The defendants were partners in business in the city of New-York. On the morning of the 24th January last, dec- laration was served on defendant Caine, who thereupon gave a cognovit for the amount of plaintiff's claim against defend- ants, with a consent that execution might issue forthwith. On the same day, and at the same time, a declaration was filed, judgment was entered up, filed and docketed, and execution issued and levy made upon the joint property of both defend- ants. The declaration was served before it was filed; but the service and filing occurred on the same day. The main question was, whether the suit could be said to have been commenced in this way. N. B. BLUNT, defendants' counsel. A. L. BROWN, defendants' attorney. N. HILL, JR., plaintiff's counsel. A. U. LYON, plaintiff's attoi-ney. BRONSON, Chief Justice. Said they did not inquire into the parts of a day on service and filing a declaration. The motion must be denied. Rule accordingly. NEW-YORK PRACTICE REPORTS. 149 In the matter of Russell. In the matter of ABRAHAM D. RUSSELL on complaint of GRAHAM B. HOAG. An attorney has a lien upon the papers in his client's cause, until all his costs are paid. Where there is a dispute about the amount of such costs, it is a proper subject of reference, which must be decided before the attorney is bound to deliver up the papers. *MoTioisr on the part of complainant, that Abra- [*150] ham D. Russell, Esq., deliver up to said Hoag a cer- tain bill of exceptions and papers taken on the trial of Alex- ander Hoag. In this matter Russell was employed as counsel for Alex- ander Hoag, who was committed for felony ; a trial was had before the general sessions of the peace in the city of New- York, on the 15th December, 1843 ; defendant was convicted ; Russell took exceptions, and procured a certificate to stay ex- ecution, and removed the cause into this court by writ of error. At the May term, 1844, of this court, the bill of ex- ceptions was argued before this court, and a decision made reversing the judgment of the general sessions of the peace. On the 5th August, 1844, a second trial was had before said general sessions, which resulted in a verdict of conviction of said defendant Hoag ; upon which trial exceptions were again taken by said Russell, which were settled and sealed. In consequence of the escape of said Hoag from prison, the ex- ceptions were not filed, but were then in possession of said Russell. After Hoag was retaken and confined in prison, Russell took no further steps in the matter, in consequence of information received from said defendant, Hoag, that he did not wish it. Hoag was sentenced to state's prison for five years. In January last, Graham B. Hoag requested the exceptions delivered to him, which was refused, unless he paid a balance of costs which Russell claimed, of $50. Graham B. Hoag alleged he had paid said Russell, and David Graham, the associate counsel, subsequent to the first trial, $687.50, excepting $40, which was paid previously ; and that William 150 NEW-YORK PRACTICE REPORTS. Rathbun agt. "Woodworth. Hoag, another brother, paid to said Russell and Graham, $200, for services on the first trial, not included in the above amount. JR. F. WINSLOW, complainants counsel and attorney. A. D. RUSSELL, counsel and attorney in pro. per. BRONSON, Chief Justice. This is a proper matter for refer- ence, to ascertain what amount ol costs, if any, are due to Mr. Russell. He has a lien, as attorney, upon the papers, until all his costs are paid. Decision. Ordered, That the complaint be referred to "Wil- liam P. Hallett, Esq., clerk of this court, to ascertain if any, and what amount is due said Russell for his costs and fees, for his services in defending Alexander Hoag ; and if said Hallett shall be of opinion that there is nothing due to said Russell for his said services, then, that said Russell be, and he is hereby ordered to deliver to said Graham B. Hoag, or to Robert F. Winslow, the counsel employed by him, the said bill of exceptions ; and if said Hallett shall be of opinion that any costs or fees tire due to said Russell, then [*151] *that said Russell deliver to said Graham B. Hoag, or to said counsel employed by him, the said bill of exceptions, on payment to him of the amount so in the opinion of said Hallett due to said Russell. WELLS RATHBUN agt. JOHN R. WOODWORTH et al FREDERICK J. BARNARD et al. agt. THE SAME. It seems where a sheriff has two executions on two different judgments, bearing different dates, against the same defendants, both owned by the same plain- tiffs, and the sale of all the available property of defendants is applied on the second execution by order of plaintiffs, that the sheriff is not entitled to any fees on the first execution, nothing having been done under it. NEW-YORK PRACTICE REPORTS. 151 Rathbun agt. Woodworth. April Term, 1845. MOTION by plaintiffs, in the second suit, for a retaxation of costs. On the 12th of July, 1843, the plaintiffs in the second judg- ment purchased the first judgment, upon which an execution had previously been issued, and was then in the hands of the sheriff of Oneida county. On the 21st of August an execu- tion was issued on the judgment in the second above entitled cause, and delivered to a deputy sheriff of Oneida county. On the 1st of September following, all the defendant's personal property was sold ; and the proceeds, after deducting the sheriff's fees thereon, were applied to the payment of the second execution, at the request and by the direction of the Barnards, plaintiffs in the second suit, they being the owners of both judgments. The defendant's real estate was not sold, in consequence of prior incumb ranees upon it, which the Bar- nards deemed more in amount than what said real estate would sell for. The whole amount of the first judgment was claimed by the Barnards to be due and unpaid. On the 14th of May, 1844, F. J. Barnard, one of the plaintiffs in the second suit, was served with copy bill of costs and notice of taxation by Matteson & Doolittle, attorneys for the sheriff of Oneida, on whose behalf said costs were to be taxed. The attorneys for the Barnards did not oppose the taxation, for various ex- cuses given, which they stated : one was, the delay in pro- curing the affidavit of F. J. Barnard ; and in February last they applied to Matteson & Doolittle to allow them to oppose the taxation, which they refused on the ground of the length of time which had elapsed from the taxation. The costs, as made out in the bill, were for sheriff 's fees and poundage on the^./a issued in the first cause for $5,000 debt and $16.17 damages, and costs amounting to $77.43. The counsel for the Barnards insisted that the claim of the sheriff was illegal and unjust ; he having received all the fees to which he was entitled *on the second execution, there hav- [*152] ing been nothing done with the first, for want of prop- erty of defendants to collect any part of it. 152 NEW-YORK PRACTICE REPORTS. Brown agt. Brings. I. HARRIS, counsel for Barnard. HARRIS & SHEPHARD, attorneys for Barnard. MR. TALCOTT, counsel for sheriff. MATTESON & DOOLITTLE, attorneys for sheriff. BRONSON, Chief Justice. Ordered a relaxation, on pay- ment of costs of opposing this motion ($7.00) and costs of re- taxation. Rule accordingly. ELIJAH H. BROWN agt. WILLARD H. BRIGGS, Sheriff of "Westchester county. A demurrer served within twenty days, by putting the same in the post-office according to the rule, and paying postage thereon, is good service, notwith- standing it is not received by the attorney to whom it is directed until the twenty days have expired. April Term, 1845. MOTION by defendant to set aside default and subsequent proceedings, for irregularity. Declaration was served on defendant on the 27th of Feb- ruary last. Defendant interposed a special demurrer to the declaration, and served a copy thereof on plaintiff's attorney, by inclosing the same in an envelope, and directing it to William D. Craft, Esq., plaintiff's attorney, at the city of New- York ; paying the postage thereon, and mailing the same at the post-office in the town of White Plains, on the 18th March last, being within twenty days from the time of service of said declaration. On the 20th of March aforesaid, plain- tiff's attorney entered defendant's default for not pleading, and a rule for a writ of inquiry to issue. In the afternoon of the said 20th of March, and after the entry of the said default and rule, plaintiff's attorney received through the mail a copy demurrer ; and supposing that such service was NEW-YORK PRACTICE REPORTS. 152 Davis agt. "Weyburn. not sufficient according to the rules and practice of this court, and that such pleading was frivolous and intended for delay, he inclosed the same to defendant's attorney on the same day, stating that it came too late, with other objections : not hav- ing accepted the demurrer of defendant, he did not give him notice of executing a writ of inquiry. M. T. KEYNOLDS, defendants counsel M. MITCHELL, defendants attorney. A. TABER, plaintiff's counsel. W. D. CRAFT, plaintiff's attorney. BRONSON, Chief Justice. The plaintiff's attorney supposed he must have received the demurrer within the twenty days, in order to have the service good : in that he was mistaken. The demurrer having been properly served, the default must be set aside. Motion granted with costs. *ABNER DAVIS et al agt. ALFRED W. WEYBURN [*153~ and GEORGE WEYBURN. Where a sheriff makes an evasive return on an execution, so that the plaintiffs cannot safely proceed against him in an action for a false return, he will be required to perfect his return according to the facts of the case, even though the time for bringing an action by statute has expired since the date of the return. The execution itself having been returned and filed within a few months. April Term, 1845. MOTION by plaintiffs for an order requiring a late sheriff to make a farther return to an execution, according to the truth of the case. Judgment was recovered in this cause October 16, 1837, for $1,976.88, damages and costs. On or about the same day, a testatum fi.fa. was issued thereon to the sheriff of Chemung, where defendants then resided. The plaintiffs received from 153 NEW-YORK PRACTICE REPORTS. Davis agt. "Weyburn. said sheriff, for moneys collected on said fi. fa., $550 only, leaving the balance of the judgment unpaid. Plaintiff's at- torney ruled the sheriff to return the ft. fa., and on the 14th of December last the sheriff returned the same, with a return indorsed thereon as follows : " (Title of the cause), fi. fa. Duteher & Harris, attorneys. Levy $1,976.88 and interest from the 16th of October, 1837. Sheriff fees, &c. Levied October 22d, 1837 : one brown mare, one sorrel horse, and two-horse harness and wagon, and three cows, now in posses- sion of George Weyburn ; also one pleasure buggy -wagon and harness, and two-horse wagon and harness, now in posses- sion of A. W. Weyburn : and two cast iron plows, and two iron tooth drags, and on all their right and interest of both the defendants in and to all their real estate in the town of Southport; levied October the 22d, 1837. John Jackson, sheriff, by E. B. Tuthill, deputy. A general levy on all the defendant's personal property that is liable to execution. I sold the personal property specified in the annexed levy, and made the sum of six hundred and twenty-eight dollars and eighty-three cents, deposited the money in the Chemung Canal Bank, and sent the plaintiff a certificate of the deposit of the same July the 27th, 1838. The real estate of the defendants I advertised for sale, notified the plaintiffs of the day of sale, they did not attend, and offered the same for sale on the day and hour appointed, but could not get any bidders, the said real estate being incumbered by an older judgment for more than its value. Dated September the 10th, 1838. John Jack- son, sheriff, by E. B. Tuthill, deputy." The plaintiffs alleged that they were desirous of bringing, and intended to bring, an action against the sheriff for a false return, for not levying and collecting the full amount of the execution; and that they could not safely proceed against him on the return made by him to said execution, on account of the evasive and uncertain character of said return ; and they moved that the sheriff make a further return, that the defendants had no [*154] goods or chattels, lands or tenements in his *bailiwick, whereof he could levy or collect the balance of the NEW-YORK PRACTICE REPORTS. 154 Wiles agt. Jones. said execution, or any part thereof; or otherwise, according to the truth of the case. The sheriff opposed the motion on the ground, that the plaintiffs ought not to compel a return after the time of bringing an action had expired. IRA HARRIS, plaintiffs', counsel and attorney. C. STEVENS, sheriffs counsel. A. K. GREGG, sheriff's attorney. BRONSON, Chief Justice. Held that the sheriff, having un- dertaken to make a returm, must perfect it. Decision. Motion granted. JOHN I. WILES, Assignee, &c., of LYNDS JONES, Sheriff of Montgomery county agt. WILLIAM M. HILL and three others. A plaintiff cannot maintain a suit on a bond given to the sheriff on the arrest of a defendant, where it appears that defendant's attorney gave notice to plain- tiff's attorney before the commencement of the suit, and before special bail was actually filed, that special bail was put in and filed in the original action, al- though filed after the twenty days conditioned by the bond; and plaintiff 'a attorney gave defendants' attorney notice that he should disregard the notice of bail for those reasons, and also for information in the notice. April Term, 1845. MOTION by defendants that the bond assigned by said sher- iff, on which a suit was depending between the above parties, and all the proceedings thereon, be vacated and set aside with costs. This suit was commenced on the 30th January, 1845, on the bond given to the sheriff aforesaid, on or about the 8th January, 1844, executed by two of the defendants ; on the ar- rest of the other two of the said defendants by virtue of a capias ad respondendum, returnable on the 9th January, 1844 ; conditioned that said defendants arrested, should appear and put in special bail in twenty days. On the 2d February, 1844, 154 NEW-YORK PRACTICE REPORTS. Haight agt. Rodgers. D. Holt, Esq., attorney for defendant, served plaintiff's attor- neys with, notice in writing of the filing special bail therein, supposing the same was then filed ; plaintiff's attorneys wrote to the clerk to ascertain when the bail was filed, and received answer that none had been filed. On the 26th February, said Holt showed plaintiff's attorney a letter from the clerk that the bail piece was filed on the 6th February, 1844 : and at the same time served a notice in writing giving plaintiff ten days to except to the bail, without indorsing the exception on the bail piece. Plaintiff's attorneys informed defendants' attorney that they should disregard the notice, as bail was not put in within the twenty days and the notice served was ir- [*155] regular, and they had already taken steps to *prose- cute the sheriff; afterwards plaintiff's attorneys con- cluded to abandon the prosecution of the sheriff and proceed on the bail bond in the original action, which was assigned to plaintiff. S. P. NASH, defendant's counsel. D. HOLT, defendant's attorney. D. WRIGHT, plaintiff's counsel. SACIA & DAVIS, plaintiff's attorneys. BRONSON, Chief Justice. Held, that the notice of special bail, although given by mistake, before the bail piece was filed, was, under the circumstances sufficient, and that the plaintiff was irregular in suing the bail to the sheriff after being in- formed that the bail piece had in fact been filed. STEPHEN HAIGHT, plaintiff in error agt. DANIEL EODGERS, defendant in error. In a case from a justice's court, brought up and tried in a common pleas on appeal, and intended to be brought to this court by writ of error ; the certificate of the presiding judge, certifying that it is a proper cause to be removed into this court, must be obtained within the time specified by statute. A writ of error brought upon a certificate obtained after that time has expired, will be quashed with costs. NEW-YORK PRACTICE REPORTS. 155 Haight agt. Rodgers. April Term, 1845. MOTION by defendant in error to quash the writ of error issued in this cause. On the ground that no certificate had been obtained in due time, according to statute from the judge who tried said cause, or from any other judge of the court of the degree of counsel- lor at law of the supreme court, who was present at the trial of said cause ; that in his opinion said cause was a proper one to be carried to the supreme court. This cause originated in a justice's court. Action trespass ; was tried in October, 1843, and a verdict rendered for Rodgers, defendant in error. An appeal was brought and the case removed to the Dutchess common pleas. On the 17th February, 1844, the cause was tried and a verdict rendered for Rodgers. On the same day, on motion of C. \>'. Swift, Esq., attorney for Haight, an order to stay proceedings for sixty days, to prepare a case or bill of exceptions, was entered on the minutes. R. Barnard, attorney for Rodgers, went on and perfected judgment ; on the 2d of March, 1844, and on the 28th March, served a copy bill of costs on attorney for Rodgers with notice of retaxation for the 3d April, 1844, regarding the order to stay aforesaid, as only staying execution. On the 18th of April, Swift, attorney for Haight, requested of Barnard a stipulation to allow him to procure a certificate of the presiding judge, as none had then been obtained ; which Barnard refused to give; and on the same day Swift served Barnard with papers and no- tice of motion to set aside the judgment, * which was [*156] heard on the 18th June, and an order entered that Haight have sixty days to prepare and serve a bill of excep- tions or case, and staying proceedings for that purpose, and also giving thirty days' time to procure a certificate of the first or presiding judge, nunc pro tune as of the 17th February, 1844, and dated on that day ; judgment not be set aside. On the 10th December, 1844, Barnard was served with a certificate of probable cause ; copy bond and affidavit of justification of bail on the allowance of a writ of error. Barnard moved on the VOL. L 15 156 NEW-YORK PRACTICE REPORTS. Welling agt Sweet. ground that the certificate required of the presiding judge, was not obtained within the time required by the statute. EOBT. BARNARD, counsel and attorney for defendant in error. P. CAGGER, counsel for plaintiff in error. C. W. SWIFT, attorney for plaintiff in error. BRONSON, Chief Justice. The certificate should have been obtained within the time prescribed by statute ; the motion must be granted on that ground. Decision. Motion granted with costs. JAMES WELLING et al. agt. ALLEN S. SWEET and MATTHEW C. HOES, Impleaded with KICHARD H. HOES. All the defendants must jein in a motion to change the venue, otherwise they must show a reason why all do not join. April Term, 1845. MOTION by defendants Sweet and Matthew C. Hoes, to change the venue from the county of Eensselaer to the city and county of New- York. The affidavit upon which the motion was founded was signed and sworn to by two defendants, to wit : Allen S. Sweet and Matthew C. Hoes. There was no reason stated in it why the other defendant did not join in making the motion. H. C. YAN YoRST, defendants' counsel. ALEXANDER S. KOWLEY, defendants' attorney. C. M. JENKINS, plaintiffs' counsel. I. W. FAIRFIELD, plaintiffs' attorney. BRONSON, Chief Justice. Denied the motion on the ground that no reason was shown by the papers, why all the defend- ants did not join in the motion. By the practice of this court, a motion to change the venue can only be made by all the de- NEW-YORK PRACTICE REPORTS. 156 Cragin agt. Travis. fendants, unless a good reason is shown for their not joining in the motion, such as one of them has suffered a default, &c. Decision. Motion denied with costs. *BENJAMIN F. CRAGIN agt. JOSEPH I. TRAVIS. [*157] JOSEPH I. TRAVIS agt. MOSES CRAGIN, AARON CRAGIN, and BENJAMIN F. CRAGIN. An attorney cannot enforce the payment first of his taxed costs against defend- ant, on a judgment in favor of plaintiff, his client, who is compelled to set off the judgment against one in favor of the defendant against plaintiff. He must look to his client for costs in such cases, where the amount of the judgment is satisfied by the set-off. April Term, 1845. MOTION by Joseph I. Travis, plaintiff in the second cause, to set off the judgment in the first cause, or so much thereof as would be sufficient to satisfy the judgment in the second cause. Travis recovered judgment in the second cause on the 4th of May, 1840, in assumpsit, for $517.03 damages and costs ; upon which there was due on the 20th of March, 1845, $676.27, principal and interest. Benjamin F. Cragin, one of the defendants in the second cause, recovered a judgment on the 20th March, 1845, against said Travis, in slander, for $604.17 damages and costs, which was unsatisfied, both judg- ments obtained in this court. Benjamin F. Cragin signed a consent to D. Brush, attorney for Travis, that the set-off might be made as was asked in the notice of motion, which consent was dated 31st March, 1845. This motion was opposed by A. Williams, Esq., attorney for Benjamin F. Cragin, on the ground that he claimed the amount of his costs, to be first paid out of the judgment in the first suit before set-off; that he had given written notice to Travis, on the 17th February, 157 NEW-YORK: PRACTICE REPORTS. Bross agt. Nicholson. 1845, not to settle, arrange in any manner, or pay the amount of his taxable costs in said first cause, as he (Williams) looked to him (Travis) personally therefor. On the 20th March, 1845, Williams served another notice on Travis, stating that the costs had been taxed at $204.17, and that they belonged to him personally, and not to the plaintiff, and forbid said Travis to pay the same, or any part thereof, to the plaintiff (Cragin), or to settle the same with Cragin or any other per- son other than with him (Williams). Williams offered to set off the amount of the verdict in the first cause, against the judgment in the second cause ; but Brush, attorney for Tra- vis, refused to do it. Williams alleged Brush had procured Cragin's consent to the set-off, with a view to defeat his claim for costs, knowing that Cragin was poor and unable to pay. N. HILL, JR., counsel for motion, cited 4 Hill, 559. D. BRUSH, attorney for motion. C. STEVENS, counsel opposed. A. WILLIAMS, attorney opposed. BRONSON, Chief Justice. Decided that the claim of the attorney for costs had nothing to do with the set-off between the parties. He must look to his client for them. Decision. Motion granted. [*158] ^STEPHEN D. BROSS agt, JAMES B. NICHOLSON. Where a plea is served by mail, the whole postage must be paid. If it appears that part is paid and part is due, the service is bad. April Term, 1845. MOTION by defendant to set aside default for not pleading in this cause, and subsequent proceedings for irregularity. Declaration was served 28th January, 1845 ; plea and no- tice served on the 8th February ; and default entered on the NEW-YORK PRACTICE REPORTS. 1 5 g 27th February last. On the said 27th February, E. S. Deny, defendant's attorney, received through the mail from plaintiff's attorney, notice of the execution of a writ of inquiry in the cause, addressed to him as defendant's attorney. Defendant's attorney filed the plea and notice on the said 8th February, 1845, and served a copy thereof by depositing it in the post- office, in an envelope, in the city of New- York, directed to plaintiff's attorney, at Goshen, Orange county, and paying the postage thereon. George Yan Inwegen, plaintiff's attorney, states, that he refused to take the letter from the post-office, inclosing the plea, for the reason that the postage had not been fully paid. There was postmarked on the letter, " Paid 10 ; due 10." C. STEVENS, defendant's counsel. E. S. DERBY, defendants attorney. A. TABER, plaintiff' 1 s counsel. GEO. VAN INWEGEN, plaintiffs attorney. BRONSON, Chief Justice. Denied the motion, on the ground that the postage was not paid; part payment did not come within the rule. Decision. Motion denied with costs. JARED . DODGE agt. JOHN PASSAGE and ELISHA WHIFFLE. "Where judgment was obtained against two defendants on a joint note, given for the benefit of one of them, and execution was issued against both, and the defendant who had no interest in the note' moved to compel the sheriff to col- lect it of his co-defendant, and it appeared that the defendant moving had received from his co-defendant at the time of giving the note property for security ; and it also appearing that the plaintiff offered to assign the judg- ment to any person the defendant moving should designate upon payment of the amount, which defendant declined doing ; the motion was denied, with costs. April Term, 1845. MOTION on behalf of Passage, one of the defendants, for 158 NEW-YORK PRACTICE REPORTS. Dodge agt. Passage. an order directing the sheriff of Allegany county to raise the money due upon the fi. fa. in his hands issued to said cause, out of the property of the defendant Whipple, or so much thereof as the personal property of said Whipple would bring. This judgment was obtained on a promissory note made by the defendants for the sole benefit of Whipple. It appeared from the papers for the motion, that Whipple resided [*159J in Allegany county, *and the defendant Passage in Livingston county ; that two fi. fa.s were issued on the judgment, one to each of said counties, and the deputy sheriff had levied upon personal property of Whipple's suf- ficient to satisfy the judgment, and the plaintiff had notified the sheriff not to collect any more than his fees from the property of Whipple. On the part of Dodge, the plaintiff, it appeared that when Passage signed the note upon which this judgment was ob- tained, he took from Whipple property to secure him for signing the note, and had sufficient in his hands to pay the judgment, and that the property of Whipple levied upon, was incumbered, and plaintiff did not wish to involve himself in difficulty with other persons, and declined to have the sheriff go on and sell the property of Whipple upon his (plaintiff's) responsibility. It also appeared that Dodge, the plaintiff, offered to assign the judgment to any person Passage should designate, upon his receiving his pay for the amount of it. Judgment perfected Nov. 1, 18M. P. GANSEVOORT, counsel for motion. E. P. WlSNER, attorney for motion. E. W. PECKHAM, opposed. HASTINGS & WILLIAMS, plaintiff's attorneys. BRONSON, Chief Justice. Denied the motion, on the ground that as appeared from the papers, Passage had received prop- erty of Whipple as security for the demand ; and besides, the plaintiff, Dodge, had offered to assign the judgment to any NEW-YORK PRACTICE REPORTS. 159 Davis agt. "Wiggins. person Passage might designate upon paying the amount of it. Decision. Motion denied with costs. EDWIN DAVIS agt. JOHN WIGGINS, JR. Where a defendant was discharged under the bankrupt law, and the plaintiffs assignee issued a ca. sa. on a judgment against defendant, obtained previous to his discharge, the assignee not knowing of the defendant's discharge : a motion to set aside the ca. sa. was granted with costs, on defendant's stipulating not to bring a suit against plaintiff's attorney. April Term, 1845. Motion by defendant to set aside ca. sa. with costs. Judgment was obtained in the fall of 1836 : execution was issued and returned nulla bona in October, 1838 : ca. sa. was issued and defendant arrested on or about 21st March, 1845 : the judgment was assigned to one William Wright : on the llth August, 1843, the defendant was discharged under the bankrupt law, passed August 19th, 1841 ; a copy of his dis- charge was set forth in the papers for the motion. The assignee Wright alleged he did not know of the defendant's discharge in bankruptcy, when the ca. sa. *was issued, [*160] and that he had never received any notice as a cred- itor of defendant, on his application to be discharged. F. H. HASTINGS, defendants counsel. IRA BELLOWS, defendants attorney. N. HILL. JR., plaintiff 'a counsel. C. B. GAY, plaintiff J s attorney. BRONSON, Chief Justice. Granted the motion, on condition that the defendant would not bring an action against the at- torney, who issued the ca. sa. Decision. Motion granted with costs, on defendant's stipu- lating not to bring an action against plaintiff's attorney. 160 NEW-YORK PRACTICE REPORTS. The People agt. Cotes. THE PEOPLE ex rel. SARAH M. KIRKHAM, executrix, &c., of SAMUEL KIRKHAM, deceased agt. JOHN COTES and EARL KIDDER, the commissioners for loaning certain moneys of the United States, of the county of Genesee. Where commissioners for loaning certain moneys of the United States, deposited with the state of New- York for safe keeping, under the act of 4th April, 1837, sold land on a mortgage to them, and on the sale there was a surplus, and the executrix of the mortgagor's assignee demanded said surplus : the commis- sioners refused to pay the surplus to such executrix ; it appearing that the commissioners had no actual notice of the conveyance by the mortgagor before the sale, but had such notice while the surplus was in their hands after the sale. An alternative mandamus was allowed against said commissioners, to pay over the surplus to the executrix, or show cause, &c. April Term, 1845. THIS was a motion ex parte, on behalf of Sarah M. Kirkham, executrix of Samuel Kirkham, deceased, for a mandamus, to compel the said commissioners to pay over certain surplus monej'S in their hands, or which they had received, on the sale of property, mortgaged by the assignor of said Kirkham, deceased, to said commissioners, upon the following facts : Chauncey Kirkham mortgaged to said commissioners, on the 21st of July, 1837, a certain piece of land in Batavia village, to secure the payment of $220 and interest, pursuant to the provisions of the act of the legislature, entitled "An act authorizing a loan of certain moneys belonging to the United States, deposited with the state of New-York for safe keeping," passed April 4th, 1837. On the 18th of October, 1837, Chauncey Kirkham and his wife, conveyed the same land, so mortgaged (together with other lands), to' Samuel Kirkham, then of the city of New York, by warranty deed, for the con- sideration of $750, which deed was duly recorded in the clerk's office of Genesee county, on the 23d of October, 1837. On or about the 10th May, 1843, Samuel Kirkham died, leaving his last will and testament, and a codicil thereto, by which he ap- pointed Sarah M. Kirkham, his wife, executrix, whereby NEW-YORK PRACTICE REPORTS. The People agt. Cotes. r _.i . . __ . she was directed to *pay the debts, of the deceased, [*161] and by which she became entitled to the care, cus- tody and control of all -the real and personal estate of the tes- tator; which will and the codicil thereto was duly proved before the surrogate of the county of New- York, on the 2d day of June, 1843. Letters testamentary were granted and issued by the surrogate to said Sarah M. Kirkham, as such executrix. Default having been made in the payment ol moneys due on the mortgage to. said commissioners in October, 1843, the land in said mortgage described, was sold, in pur- suance of the act aforesaid, on the first Tuesday of February, 1844, and bid off by one Levi Otis, for a sum exceeding the whole amount of principal and interest due upon said mort- gage, and the costs of sale, by the sum of $74.83, which re- mained in the hands of the said commissioners as surplus. The commissioners, at or about the time of such sale, were informed that said land had been conveyed as aforesaid, by said Chauncey Kirkham, and that his grantee was dead, and had left a will, and that Sarah M. Kirkham, was the lawful executrix. On the 26th February, 1844, and while the sur- plus money was in the hands of the commissioners, Samuel C. .Holden, for and on behalf of said executrix, presented to said commissioners an order for such surplus money, made and signed by said executrix, and demanded of them the said sur- plus in the name and on behalf of the said executrix, which they refused to pay over ; and that while such surplus money was in the hands of the said commissioners, they had actual notice of such conveyance and one of them saw and examined the record thereof; they also had actual notice of the fact of the decease of said Samuel Kirkham, and of the appointment of his wife, Sarah M. Kirkham, as executrix, &c. On the 23d of March, 1844, the commissioners paid over said surplus money to Chauncey Kirkham, on his giving them a bond of indemnity. A. TABER, counsel for relator. J. L. BROWN, attorney for relator. The main question arose under the 3Qth section of the act NEW-YORK PRACTICE REPORTS. Chemung Canal Bank agt. the Supervisors of Chemung. of the 4th of April, 1837. No notice was served, as required by that section ; but while the surplus was in the hands of the commissioners, they had actual notice of all the facts, and an order for the surplus was presented, and the money demanded. BRONSON, Chief Justice. Allowed an alternative man- damus. [*162] *THE PRESIDENT, &c., of the Chemung Canal Bank agt. THE BOARD OF SUPERVISORS of the county of Chemung. A statement in an affidavit made for a motion to change the venue, that the defendant has a good and substantial defence upon the merits to the whole or some part of plaintiffs' demand, is bad. Motion will be denied with costs. April Term, 1845. MOTION by defendants to change the venue in this cause from the county of Oneida to the county of Chemung. John W. "Wisner, chairman of the board of supervisors, made the affidavit upon which the motion was founded, and that part which stated the merits of the defendants, read as follows : " That the defendants have a good and substantial defence upon the merits in this cause, to the whole or some part of said plaintiffs' demand upon which this action is brought as he is advised by said counsel and verily believes." N. HILL, JR., defendants 1 counsel. GRAY & HATHAWAY, defendants' attorney. E. W. PECKHAM, plaintiffs' counsel. SPENCER & KERNAN, plaintiffs' attorney. BRONSON, Chief Justice. Denied the motion upon the defect in defendants' affidavit ; which stated that he had a good and substantial defence upon the merits to the whole or NEW-YORK PRACTICE REPORTS. 162 Miller agt. Miller. some part of plaintiffs' demand it did not come within the rule. Decision Motion denied with costs, without prejudice. KEUBEN MILLER agt. STEPHEN MILLER and WM. MILLER, Exrs., &c. of JACOB P. MILLER, deceased. A motion by plaintiff to strike out a plea of defendant as false, will be denied with costs, where the defendant fully swears to the truth of said plea. April Term, 1845. MOTION by plaintiff to strike out the plea of payment or third plea by the defendants pleaded ; on the ground that the same was false. Plaintiff declared in assumpsit for work, labor and services, goods, wares and merchandise, money lent and advanced, paid, laid out and expended, money had and received, and also for board, washing and lodging, provided by plaintiff for the said Jacob P. Miller in his lifetime, and upon an account stated. The defendants pleaded, First, that the said -Jacob P. Miller, in his lifetime, did not undertake and promise in manner and form as the plaintiff in his declaration com- plained : /Second, the statute of limitations, and Third, that after the making of the said several promises and undertakings in the said declaration mentioned, to wit : on the 2d day of February, 1843, during the lifetime of the said Jacob P. Mil- ler, deceased, he, the said Jacob P. Miller, fully paid and satisfied the *said plaintiff all and singular the [*163] said several sums of money in the said declaration specified and set forth. The plaintiff alleged the third plea to be wholly and entirely false, and that no part of the claims of plaintiff for which the suit was brought was ever paid by said Jacob P. Miller in his lifetime, or by any other person, and that he had a good cause of action, &c. The defendants 163 XEW-YORE. PRACTICE REPORTS. The People agt. The Board of Supervisors of the County of Dutchess. stated in the affidavit, in opposition to the motion, that the plea of payment interposed by defendants to plaintiff's decla- ration, was true in substance and matter of fact ; that it was pleaded in good faith, and that the. whole of plaintiff's de- mand in said cause had been fully paid and satisfied by Jacob P. Miller in his life time, which defendants expected to be able to show on the trial, and swore to merits generally. J. KOON, plaintiffs' counsel and attorney. M. T. REYNOLDS, defendants' counsel and attorney. . BRONSON, Chief Justice. Denied the motion on the ground that the defendants had fully sworn to the truth of the plea. ON the 10th April, 1845, being the second Tuesday of April, the election for charter officers of the city of Albany was held ; and it having been suggested by counsel, whether the court could be legally held on that day, under the act of 1842 ; the chief justice examined the act referred to, and was of opinion that it applied to general and special elections for state officers only, that a charter election did not come within the spirit of the law. THE PEOPLE ex rel. JOHN COLLER agt. THE BOARD OF SU- PERVISORS OF THE COUNTY OF DUTCHESS. An alternative mandamus allowed to bring up the question of the legality of the charges of a justice of die peace against a county, for services performed under the law, entitled "of beggars and vagrants." (Revised Statutes, part 10, title 2, chap. 20.) April Term, 1845. MOTION by relator for a mandamus. This was a motion by John Coller, a justice of the peace of NEW-YORK PRACTICE REPORTS. 163 Pike agt. Power. Poughkeepsie, Dutchess county, for a mandamus to require the board of supervisors of the county of Dutchess, to audit and allow his account presented to said board at their last an- nual meeting-; for services performed by said justice, for the year preceding the meeting of said board, under and in pursuance of part first, title ^second, chapter twen- [*164] tieth of the Revised Statutes, entitled, " Of beggars and vagrants." Said board having refused to audit and allow such account. The following is taken from said account, to show the items charged in one case : " Warrant to arrest "Wm. B. Dennis, vagrant, . $0 25 Commit, before Ex., 19, order, 199 Sub. 54, " 92 6 Wit. sworn, 36 Commit, after Ex., 25, . " 61 Record of conviction 75, examination, ? , : RO ^ 1 75." ROBERT BARNARD, relator's counsel and attorney. ' BRONSON, Chief Justice. Allowed an -alternative manda- mus, to give an opportunity to bring up the question. Rule accordingly. SOLOMON M. PIKE agt. JOHN H. POWER. Where a motion is denied and no leave given to renew, the motion cannot be made again without first obtaining such leave. April Term, 1845. MOTION by plaintiff to set aside default, &c., entered against him by defendant for irregularity. A preliminary objection was taken by defendant to this motion on the following ground, to wit : " That a motion was made at the last December special term in this cause of the same purport and of a like nature as this motion, and de- nied with costs, without prejudice, and the costs on denying said motion, were not then paid. At the February special term, a similar motion was made, and none of the facts on 164: NEW-YORK PRACTICE REPORTS. Robinson agt. Merritt. which said motion was founded were denied by defendant ; the last motion was denied with costs, and was heard on the merits, and the costs on such denial had not then been paid." J. H. STEWART, plaintiffs attorney. J. H. POWER, defendant's attorney. BRONSON, Chief Justice. Denied the motion with costs, on the ground that no leave was granted to renew the motion. (See 5 Hill, 493.) [*165] * JOSEPH KOBINSON agt. EDWARD MERRITT. A defendant must state in his affidavit of merits, on motion to change the venue, that he has disclosed to his counsel what he expects to prove by his vrii- nesses. June Term, 1845. MOTION by defendant to have the venue declared by the court to be laid in the county of Westchester, or in case it should be considered already laid in the city and county of New York, then, that it be changed to the county of "West- Chester. This was an action of slander, the declaration in the margin laid the venue in the city and county of New- York, and throughout the body of the declaration, the venue was re- ferred to as follows : " to wit, at the town of New-Rochette, in the said county of Westchester. 1 ' 1 Defendant's counsel moved that the court decide where the venue was laid by the declara- tion. The judge replied, that the counsel must decide where the venue was, and whether he wished to change it or not. The counsel then moved that the venue be changed from the city and county of New-York to the county of Westchester. An objection was taken to defendant's affidavit of merits ; that part of the affidavit objected to, read as follows : " That this deponent has a large number of witnesses residing in the NEW-YORK PRACTICE REPORTS. 165 Popham agt. Baker. said county, whose testimony will be material to him on the trial of this cause, who will speak to the character of the plain- tiff, and without the testimony of each and every of whom this deponent could not safely go to trial in this cause, as he is advised by his counsel and verily believes." There was no statement in the affidavit that defendant had disclosed to his counsel what he expected to prove by his witnesses. GrEO. CASE, defendants counsel and attorney. J. "W. TOMPKINS, plaintiff's counsel. J. W. MILLS, plaintiffs attorney. *JEWETT, Justice. Denied the motion, on the [*166] ground that the affidavit did not conform to the rule, in not stating that defendant had disclosed to his counsel what he expected to prove by his witnesses. Decision. Motion denied with costs. WILLIAM T. POPHAM, Impleaded, &c., ads. ELIPHALET BAKER and others. An affidavit of merits must be served for the purpose of a motion, otherwise defend- ant cannot be let in to defend on terms, where an inquest has been taken against him, and where he moves to set it aside for irregularity. June Term, 1845. MOTION by defendant to set aside inquest for irregularity. This was an action of assumpsit ; the defendant pleaded the general issue accompanied with the usual affidavit of merits under the 98th rule. At the last May circuit in New- York, plaintiff took an inquest against the defendant, for $710.94. Defendant did not file any affidavit of merits, supposing the one served with the plea was sufficient to prevent an inquest. Defendant moved on papers having no affidavit of merits for the motion, supposing the affidavit which accompanied the plea was sufficient for the purpose of the motion also. NEW-YORK PRACTICE REPORTS. Watson agt. Morton. D. EGAN, defendants 1 counsel. G. CLARKE, defendants' attorney. BELL & COE, plaintiff's attorneys. JEWETT, Justice. Denied the motion, on the ground that there was no affidavit of merits served for this motion. Decision. Motion denied with costs. WILLIAM: WATSON agt. PETER MORTON et al Under the rules, no notice of signing and filing a report of referees is necessary to be given to the opposite party or his attorney. June Term, 1845. MOTION by defendants to set aside judgment on report of referees and for leave to serve papers for motion to set aside said report. This cause was referred to referees, and argued on the 21st of April last. On the 10th May last the report of referees was signed, and the defendants' papers on that day together w'ith the referees' report handed over to plaintiff by one of the re- ferees, with a request that plaintiff would deliver defendants' papers to their attorney, E. Terry, Esq., which he promised to do. On the 15th May, Terry received a note as follows " W. "Watson has called three times to see Mr. Terry, [*167] referees in Watson agt. *Morton, report $223.56 due plaintiff, (signed) W. Watson." On the 10th May, rule for judgment was entered for plaintiff, and on 15th May, judgment was filed and docketed. Defendants moved on an affidavit of merits, &c., on the ground that no notice had ever been given them or their attorney, of the signing and filing said report, before judgment was entered. E. TERRY, defendants 1 attorney. W. WATSON, plaintiff's attorney. NEW-YORK PRACTICE REPORTS. Henry agt. Henry. JEWETT, Justice. Denied the motion, on the ground that ander the rules no notice to the opposite party or his attorne} r was necessary, of signing and filing a report of referees. De- fendants' attorney mistook the practice. Decision. Motion denied with costs. WILLIAM HENRY agt. JAMES HENRY. On service of a copy of a writ of sci. fa., the copy must le certified by the officer serving the same, the word " copy" merely, is not sufficient; it should have the name of the sheriff or deputy, or other officer serving the same, subscribed thereto. The teste of a writ, in the name of Greene C. Bronson, chief justice, of the first Monday of January, 1845, is amendable. June Term, 1845. MOTION by defendant to set aside the writ of sci. fa., and subsequent proceedings for irregularity. On the 5th April, 1845, Alexander "Welton, a deputy sheriff of Madison county, served on the defendant a writ of scire facias, by delivering to said defendant what purported to be a copy of said writ. Defendant stated that he was in the town of Sherburne and county of Chenango, when he received tlie same from said deputy sheriff. The writ was tested in the name of Greene C. Bronson, chief justice, at the Capitol, in the city of Albany, the first Monday of January, A. D. 1845, and return- able the 1st Monday of May, 1845. There was no certificate signed by said Welton to said copy delivered to defendant, the word " copy" was all that appeared upon it, and that was in the handwriting of one of plaintiff's attorneys. The deputy sheriff stated, that he served the writ on the defendant, by de- livering him a copy, with the word " copy" inscribed thereon, and at the same tune showing him the original. And at the time of the service the defendant was in the highway on the top of a load of manure ; that the county line between Madi- ison and Chenango counties was in the centre of said highway ; VOL. I. 16 168 NEW-YORK PRACTICE REPORTS. Ived agt. Vandewater. the defendant was precisely in the centre of the high- [*168] way as *near as he could judge, and he fully believed that one-half at least of the defendant was in Madison county. DODGE & BIRDSEYE, defendant's counsel. J. P. WHITTEMORE. defendant's attorney. N. HILL, JR., plaintiff's counsel. SHERWOOD & NEY, plaintiff's attorneys. JEWETT, Justice. The teste in the name of the present chief justice is amenable ; he thought the weight of evidence, as gathered from the papers, showed that defendant was in the county of Chenango ; without, however, deciding that point, he was clearly of opinion that the copy of the writ de- livered to the defendant at the time of service, was not such a copy as was contemplated by the statute. Service is made by delivering a copy thereof, certified by the officer serving the same to the party required to be summoned, or by leaving such copy, &c. (2 R. , 579, 16.) The copy served in this case was not certified by either the sheriff or his deputy ; the word " copy" appeared upon it, but that could not be considered a certified copy by the ofiicer within the meaning of the statute. Motion granted with costs. EDWIN E. IVES et al. agt. EGBERT J. VANDEWATER et al. A motion for reference will be denied, where it clearly appears that substantial questions of law will arise on the trial, although plaintifls show it will require the examination of a long account on their part. June Term, 1845. MOTION by plaintifis to refer this cause. Plaintifis stated that this was an action of assumpsit, and the trial would require the examination of a long account on the part of the plaintiffs. The defendants stated that the ac- tion was founded on certain articles of agreement, entered into NEW-YORK PRACTICE REPORTS. 168 Dresser agt. Brooks. in writing by an association of forwarders on the Erie canal, called " The Canal Association," and the whole ground of the defence interposed was, the illegality of the said association, and specified. 1. That the said association and the articles thereof, were contrary to the provisions of the 2 R. S. 691, 8. 2. That the same was a conspiracy for purposes injurious to trade and commerce, and was a misdemeanor by statute. 3. That no action can be sustained upon said articles of as- sociation, they being illegal and void. They also stated that two causes involving the same questions were *tried at the last circuit court [*169] in and for the county of Albany, and the plaintiffs in each case were nonsuited upon said grounds. J. NEWLAND, plaintiffs' counsel. DEAN & NEWLAND, plaintiffs' attorneys. H. HARRIS, defendants' counsel. HARRIS & SHEPARD, defendants' attorneys. JEWETT, Justice. Was clearly of opinion this was not a proper case for reference ; that it ought to be tried at the cir- cuit. Defendants' papers show, and it is obvious from the nature of the defence that substantial questions of law will arise on the trial. The motion must be denied. Decision. Motion denied with costs. HORACE DRESSER agt. BENJAMIN F. BROOKS. Plaintiff may have leave (on terms) to substitute a special plea for a notice sub- joined to a replication, where he wishes to introduce testimony to show fraud in the discharge and certificate of the defendant, which has been pleaded spe- cially to plaintiff 's declaration. It seems that testimony going to show fraud, etc., in a defendant's discharge and certificate in bankruptcy cannot be given under a notice : it must be pleaded specially. 169 NEW-YORK PRACTICE REPORTS. Stinnard agt The New York Fire Insurance Company. June Term, 1845. MOTION by plaintiff for leave to amend his pleadings. Issue was joined in this cause, May 27, 1844 : the action, debt on judgment. Defendant pleaded nul tiel record, and two special pleas of discharge and certificate under the bank- rupt law. Eeplications to said pleas were put in, to which was subjoined a notice, setting forth the matters to be given in evidence on the trial of the cause to impeach the discharge and certificate. The plaintiff moved to interpose a special plea of the matters alleging fraud, instead of the notice subjoined to the replication, on the ground that it was doubtful whether the testimony intended to be offered to sustain the allegation of fraud, &c., could be introduced under the notice. H. DRESSER, counsel and attorney in propria persona. ~W. McCALL, defendant's counsel MATTISON & DOOLITTLE, defendants attorneys. JEWETT, Justice. Granted the motion, on payment of costs of opposing motion. Eule accordingly. AUGUSTUS STINNARD, JR., agt. THE NEW YORK FIRE IN- SURANCE COMPANY. A verbal arrangement between the attorneys that the cause shall go over the circuit, held good, although the defendant disavows it, and attends the court prepared for triaL A motion for judgment as in case of nonsuit under such circumstances, will be denied with costs. June Term, 1845. MOTION by defendants for judgment as in case of nonsuit. Issue was joined in this cause on the 31st day of [*170] * August, 1844; was noticed for trial on the 7th April, 1845, for the April circuit in Westchester county, which commenced April 21, 1845. The cause was not brought to trial ; and younger issues were tried at said NEW-YORK PRACTICE REPORTS. 1YO Stinnard agt. The New York Fire Insurance Company. circuit. "William Nelson, Esq., of Peekskill, was substituted attorney for the defendants on the 18th April, 1845, in the place of S. F. Cowdrey, Esq., of New- York, the former at- torney of defendants ; and notice of such substitution was, on the 29th April, 1845, served on Minot Mitchell, Esq., plain- tiff's attorney. On the 15th of April, Minot Mitchell, plain- tiff's attorney, wrote to his son William M. Mitchell, Esq., of the city of New-York, that he should not be able to prepare and try the cause at the April circuit, on account of his ab- sence from the county ; and requested said William M. Mitchell to call on S. F. Cowdrey, Esq., defendants' attorney, and get his counsel to let the cause go over to the fall circuit, which would be held at White Plains, and would be much more convenient for parties and witnesses than the April cir- cuit held at Bedford. William M. Mitchell swore that on or about the 16th April he called on S. F. Cowdrey, Esq., de- fendants' attorney, and delivered to him the letter of said Mi- not Mitchell. Cowdrey replied that it would be more con- venient for the defendants to have the cause tried at the fall circuit held at White Plains, and he would consent that it should go off for the April circuit according to the request of said Minot Mitchell ; that Cowdrey further said no further notice nor any stipulation would be necessary, but that the case should go off without costs and without prejudice to either party. This arrangement William M. Mitchell, Esq., immediately communicated to Minot Mitchell, Esq., plaintiff's attorney ; and which was not substantially denied in the affi- davit of S. F. Cowdrey, Esq., on the motion. Between the 18th and 21st of April, 0. H. Jones, president of the defend- ants, and who had the management of the cause, in an inter- view with S. F. Cowdrey, Esq., stated to him, after learning of the arrangement, that he preferred to have the cause tried at the April circuit : to which Cowdrey replied he had better see William M. Mitchell, Esq., and inform him as to that fact immediately. On the same day Jones called on said W. M. Mitchell, and told him he would not consent to put the cause off until the fall circuit : to which Mitchell replied, that Mr. Cow- NEW-YORK PRACTICE REPORTS. Post agt. Haight. drey had already consented, and it was then out of the ques- tion for plaintiff to prepare for trial at the April circuit, and the cause would not be tried. Plaintiff stated- he should get ready with his witnesses and go to the circuit at all events, and the plaintiff would have to pay the expenses of it ; and did accordingly attend the circuit, prepared to try the said cause. [*171] *THOS. NELSON, defendant's counsel. WM. NELSON, defendants attorney. ALBERT LOCKWOOD, plaintiff's counsel. M. MITCHELL, plaintiff's attorney. JEWETT, Justice. This motion 'ought not to have been made ; the defendant Jones instead of complying with the agreement which had been made by his attorney and young Mitchell who was authorized to act by plaintiff 's attorney, at- tended the circuit in violation of it, and as appears in bad faith. Decision. Motion denied with costs. ISRAEL POST, JR. agt OBADIAH S. HAIGHT. ISRAEL POST, JR. agt OBADIAH S. HAIGHT. The court on motion will not look beyond the record and papers to ascertain who the attorney in fact is to the suit ; it is sufficient if any attorney of the court appears upon the record and papers. An attorney who lends his name to his clerk to defend a suit, and refuses in the progress of the cause to have anything to do with it, never having been retained, but refers all matters in relation to it to his clerk, who has used his name as attorney in the suit under the stat- ute, is held to be the proper attorney to make a motion in the cause. June Term, 1845. MOTION by defendant to consolidate the above two causes into one. Defendant's affidavit stated that the first-mentioned suit was commenced by declaration on the 14th of March, 1845 ; the second suit was commenced on the 24th of March, 1845, by NEW-YORK PRACTICE REPORTS. 1*71 Mather agt. "Wardell. declaration ; both actions were in assumpsit and might be con- solidated, there was substantially the same defence in each. The plaintiff objected to the motion on the ground that George G. Scott, Esq., the defendant's attorney, who appeared upon record, was not the attorney in fact, and had no right to make this motion. Scott having merely allowed his name to be used under the statute as defendant's attorney by one A. S. Haight, a clerk in his office at the time of the commencement of the suit. Haight having since, (in May term last,) been ad- mitted an attorney of this court ; that Scott refused to do any- thing about the suits with plaintiff's attorney, saying he had never been retained and knew nothing about them ; that Haight had the management of them altogether. A. HILL, JR., defendant's counsel. GEO. G. SCOTT, defendant's attorney. W. B. LITCH, plaintiff's counsel and attorney. JEWETT, Justice. Said he could not look beyond the papers, and the records in the suit, to ascertain who the attorney was in fact ; it was enough for him to know that an attorney of this court appeared upon the records and in the papers for the motion ; without inquiring by what *means or in [*172] what manner he came to be the attorney, The mo- tion must be granted. Decision. Motion granted with costs. HENRY H. MATHER agt. CHARLES WARDELL. A default taken at a special term will not be opened at the same term, where it appears the opposing counsel did not attend the term at all, until late in the session, and then come in and found a default had been taken against him, and moved to open it on the ground that he and the counsel moving had an under- standing not to attend until about the close of the term, he must attend the term and watch his motions, otherwise he must give notice and move at the next term to open the defaults. . 172 ' NEW-YORK PRACTICE REPORTS. Dresser agt. Smith. June Term, 1845. A motion for judgment as in case of nonsuit in this cause was made and granted by default on the 5th of June. On the 7th of June, plaintiff's counsel moved to open the default, on the ground that there was an understanding with one of defendant's counsel with plaintiff 's counsel that he would not probably attend the term until the 7th. The part- ner of defendant's counsel with whom no arrangement was made, attended the term on the- 5th, and took his motion by default. JEWETT, Justice. The default cannot be opened at this term ; if plaintiff 's counsel had been in attendance upon the court, it might be proper to open it ; where counsel are in at- tendance watching their motions, and by mistake a default is taken against them, it is usual to open the default. Here the defendant's counsel has made his motion and gone home, and his opponent does not appear at court or any other counsel for him, until nearly the close of the term. Notice must be given defendant's attorney to open the motion at the next special term. HORACE DRESSER agt. JEREMIAH SMITH, JR. A variation of the month in a copy of a note, in declaration filed and served hi the suit, the original being March and the copy May, held to be an immaterial va- riation, and will be disregarded on the trial A motion to amend is unneces- sary. June Term, 1845. MOTION by plaintiff for leave to amend his bill of particu- lars in this cause. This was an action of assumpsit upon a promissory note as the plaintiff's bill of particulars and only cause of action ; the copy note in the declaration filed and in the one served was NEW-YORK PRACTICE REPORTS. Baldwin agt. Tillson. dated " May 5, 1844," whereas the true date in the original note was, " March 5, 1844." The cause was twice on the cal- endar and three times noticed for trial. r f-?.' eril . .' *H. DRESSER, counsel and attorney in propria persona. [*173] WM. NORTON", defendant's counsel and attorney. JEWETT, Justice. This motion seems entirely unnecessary, the variance is immaterial, and would be disregarded on the trial. The counsel can withdraw his motion on payment of $7 costs of opposing if he prefers to do so. The motion was withdrawn on the terms mentioned. TRUMAN BALDWIN agt. ALVIN H. TILLSON. The rule that.^aj-ty ,cannot stipulate a sepond time, does not apply where the first stipulation has been performed. June Term, 1845. MOTION by defendant for judgment as in case of nonsuit. Issue was joined in this cause, October 28, 1842. The cause was tried at the circuit in and for Otsego county, in September, 1843, the plaintiff having previously stipulated to try at that circuit. A case was made for a new trial, which was argued at July term, 1844, and decided by this court at a subsequent term (not stated by the papers), motion for a new trial granted. A circuit was held in Otsego county in April last, (being the first after the decision,) at which plain- tiff did not notice' the cause for trial, but served defendant's attorney with a stipulation to try at the next circuit. It was insisted by defendant's counsel, that the plaintiff could not stipulate a second time under the rule as a matter of course. S. S. BOWNE, defendant's counsel L. S. CHATFIELD, defendant's attorney. 173 NEW- YORK PRACTICE REPORTS. Johnson agt. Anthony. N". HILL, JR., plaintiff's counsel. H. BENNETT, plaintiff's attorney. JEWETT, Justice. The rule that a party cannot stipulate a second time as a matter of course, does not apply to a case of this kind ; here the first stipulation had been fully performed, the cause was tried under it. The plaintiff, therefore, had a right to stipulate again. Decision. Motion denied with costs. CHESTER JOHNSON agt. DANIEL ANTHONY. June Term, 1845. MOTION by plaintiff to set aside the default of plaintiff en- tered by defendant for not replying. The plaintiff obtained an order from the circuit judge to extend his time to reply to defendant's special pleas, until the 2d May, 1845. On the 30th April, plaintiff's attorney [*174] (who resided *at Union village. Washington county) sent his affidavits and papers to his agent at Albany, to have plaintiff 's default entered for not replying, on the 2d May, which was done accordingly. On the 1st May, plaintiff's attorney (who resided at Troy) served on defendant's attorney an order of the circuit judge, dated May 1st, enlarging the time to reply twenty days, by putting the same in the post- office, directed to defendant's attorney, and paying postage thereon, which was received by defendant's attorney in the afternoon of the 2d May, and appeared postmarked at Troy on the 2d May ; that from the postmark it would appear that the letter was put in the post-office on the 2d of May, or that it was put in on the 1st of May after the mail had closed for the place of destination of the letter. Defendant's counsel in- sisted that the service was irregular, and cited Howard's Spe- cial Term Reports, No. 3, p. 87, (Maker agt. Comstock et al.) NEW-YORK PRACTICE REPORTS. 174 Hull agt. Halsted. Plaintiff 's counsel insisted that the service was regular, that it was sworn to positively that the letter was put into the post- office on the first, the postage paid, and was inclosed in an envelope, and there was nothing appeared to show when the mail closed. J. A. MILLARD, plaintiff's counsel and attorney. N. HILL, JR., defendant's counsel. C. F. INGALLS, defendant's attorney. JEWETT, Justice. This case does not come within the deci- sion cited by defendant's counsel. In that case it was shown at what hour the mail closed, and that the service was made after that hour, &c. The plaintiff seems to be regular, and the motion must be granted. Decision. Motion granted with $10 costs. ABEL A. HULL agt. GEORGE P. HALSTED. Wliere both parties recover a portion of the property in an action of replevin, and the value of each portion is assessed, each party is entitled to costs, pro- vided the amounts are sufficient to carry costs. June Term, 1845. MOTION by plaintiff that the defendant pay plaintiff's costs to be taxed in this cause, &c. This was an action of replevin, brought to recover a quan- tity of brick and other property which was distrained by de- fendant as a constable for rent. The jury found for the plain- tiff six cents damages, and assessed the value of the property at $1,000. They also found for the defendant and assessed the value of the property at $352, besides an amount of rent found to be due from plaintiff to defendant. 174 NEW-YORK PRACTICE REPORTS. Seacord agt Burling. M. T. KEYNOLDS, plaintiff'' s counsel. M. MITCHELL, plaintiff's attorney. GEO. P. NELSON, defendant's counsel. WM. NELSON, defendant's attorney. [*175] JEWETT, Justice. I shall decide that both parties have costs, without any costs of this motion. Kule accordingly. BENJAMIN SEACORD agt. JAMES BURLING. An objection to a juror must be made at the time he is called upon the panel If a trial is had and verdict rendered, without any objection to any of the jury, the verdict will not be set aside, because one of the jurors on the panel had on a previous day of the same circuit been tried on a challenge and found to be over sixty years of age. June Term, 1845. MOTION by defendant to set aside the verdict rendered in this cause, and judgment entered thereupon. This was a motion by defendant to set aside the verdict, &c., on the ground that an improper juror sat upon the panel who tried the cause. The cause was tried at the Westchester circuit, in April, 1845 ; one Nathaniel Hyatt was drawn by the clerk as a juror of the regular panel, without any objection being made to him. The jury brought in a verdict for plain- tiff of $5,000. The affidavits alleged Hyatt used an improper influence with the jury, and that he was noted for his cunning and artful management in such cases ; the defendant pro- duced a certificate of the county clerk of Westchester county, showing that Hyatt had been challenged a few days previous, at the circuit, as a juror, and upon his trial he admitted he was sixty-four years of age ; on that ground he was rejected as a juror ; but the clerk not having received any directions from the court to destroy the ballot, kept the name in the jury box, arid ne* was drawn upon this cause. NEW-YORK PRACTICE REPORTS. 175 Maher agt. Comstock. J. EDWARDS, defendants counsel. GEORGE CASE, defendants attorney. J. W. TOMPKINS, plaintiff 's counsel and attorney. JEWETT, Justice. The objection to the juror's age, if taken in time would have been a good one, but after he was drawn upon the panel heard the cause tried, and had with the rest rendered a verdict, it is too late to interpose the objection. The motion must be denied Decision. Motion denied, with costs. JAMES MAHER agt. ALLEN COMSTOCK. JOHN C. VAN SCHOONHOVEN agt. THE SAME. Papers on a motion for an allowance of a writ of error coram nobis, to reverse a judgment, should not regularly be entitled in any suit. June Term, 1845. MOTION on the part of the defendant in each of the above causes for *an allowance of a writ of error, [*176] coram nobis to reverse the judgment in each cause for errqr in fact. The defendant being an infant at the time of the rendition of the judgment as is alleged ; notice of the motions entitled in the suits has been given to the attorneys for the plaintiff in each suit, and a copy of the affidavits and papers on which the same is founded duly served on the plaintiff's attorneys. The following are the affidavits, &c. : 1st, An affidavit of Laura D. Baker, not entitled in any suit, matter or proceeding, showing that Allen Comstock was twenty-one years of age on the 26th day of April, 1845. 2d, A petition of Comstock. dated 26th Feb., 1845, showing the recovery of the judg- ment his infancy at the time that no guardian had been appointed for him that he was about to prosecute a writ of error, &c., and praying the appointment of zprochein ami for IT 6 NEW-YORK PRACTICE REPORTS. Maher agt. Comstock. him. 3d, The consent of the person proposed as such, and his affidavit showing his qualifications. (At the March spe- cial term, on these papers, this court ordered the appointment of a prochein ami ex parte.) 4th, An affidavit not entitled, made bj Allen Comstock, 29th March, 1845, showing that he was born 26th April, 1824. 5th, An affidavit of Mary Dewey not entitled, made the 27th March, 1845, also showing that Allen Comstock was born the 26th of April, 1824. 6th, An affidavit of E. Clark, entitled " Supreme Court," " Allen Comstock ads. James Malier" " Allen Comstock ads. John 0. Van Schoonhoven" proving that a judgment in each suit, in an action of assumpsit had been recovered against the defendant, and that an execution thereon had been issued and was then in the hands of the sheriff, &c. 7th, An affidavit entitled as the last mentioned, made by said Clark, on the 3d of April last, showing an excuse why the motion was not sooner made, &c. 8th, Notice of this motion entitled as the two last affi- davits, dated 3d of April. E. CLARK, defendant's counsel and attorney. CAGGER & STEVENS, plaintiff's counsel and attorneys. JEWETT, Justice. A writ of error coram nobis cannot prop- erly issue only by order of this court upon cause shown . by affidavit, and after notice to the opposite party or his attorney, (Ferris agt. Douglass, 20 Wend. 626 ; Smith and others agt. Kingsbury, 19 Wend. 620.) It is insisted by the counsel for the plaintiffs, that only one set of papers can be read on these motions, either the set entitled or the set not entitled is irrre- gular, and that using one or the other, enough is not shown to authorize the allowance of the writ. It may be seen that the papers on which these motions are founded, are very [*177] slovenly got up ; a portion without any title, the Re- sidue entitled in the causes in which judgments have been recovered. That portion of the papers which are not entitled, are affidavits proving that Comstock was twenty -one years of age on the 26th day of April last and his petition for NEW-YORK PRACTICE REPORTS. 177 "Willoughby agt. Comstock. an appointment of a prochein ami, in which the further fact showing a judgment to have been recovered is set forth ; as- suming that the papers on which these motions are founded should not regularly be entitled in any suit, which I think is the correct practice, (Haiglit agt. Turner, 2 John Rep. 317,) then there has been no regular notice of these motions given, to the party or his attorney, and the motions should be denied on that ground. On the other hand, assuming that the papers should be entitled in the suits in which judgment has been recovered, we have only the affidavits of Clark and the notice of motion so entitled, in neither of which is it stated that Comstock was under twenty -one years of age at the time of the recovery of the judgments ; it follows that using either set of papers without the aid of the other set, the motions can- not be sustained. Motion in each case must be denied with $7 costs, but without prejudice. Kule accordingly. SAMUEL A. WILLOUGHBY, plaintiff in error agt. ELENTHEROS D. COMSTOCK, defendant in error. Conditions and principles of relief on motion to stay proceedings- on execution, &c., until cause is decided in the court of errors. June Term, 1845. MOTION by plaintiff in error for an order staying all pro- ceedings on the execution issued on the judgment recovered in this court, by the defendant in error against the plaintiff in error. It appears that on the 16th day of September, 1844, a writ of error from the court for the correction of errors, was issued upon the judgment, returnable on that day, allowed, and order granted to make it a stay of execution, by A. Gr. Hammond, a commissioner, and on the same day notice of the same was duly served on the attorney for the defendant in error. The 177 NEW-YORK PRACTICE REPORTS. Willoughby agt. Comstock. writ was duly returned. Subsequently the defendant in error being dissatisfied with the bond filed on issuing the said writ, moved this court for a rule vacating said order to stay. On the 10th of January, 1845, this court granted an order allow- ing the defendant in error to proceed with his execution, unless the plaintiff in error should within twenty days exe- cute a new bond in the penalty of at least double the sum of $16,505.74 and the sureties should justify. On the 20th of January, 1845, the above order, by an order granted [*178] *of the latter date, was extended for ten days beyond .the time allowed by the first order ; pursuant to these orders the plaintiff in error on the 8th day of February, 1845, filed a new bond with the justification of the sureties therein; the bond was in a penalty of $33,012 bearing date the 29th of January, 1845, executed by the plaintiff in error with four sureties, annexed to which were the affidavits of the sureties ; one of whom made an affidavit before a commissioner of deeds in Troy, 29th January, 1845, in which he swore he was a householder and worth $13,000 over and above all debts, &c. ; another made an affidavit before the first judge of Bens- selaer on the 1st day of February, in which he swore he was a householder and worth $10,000 above all debts, &c. ; another made an affidavit before said commissioner on the 6th February, in which he swore he was a householder and worth $100,000 over and above all debts, &c. ; the other made an affidavit before the commissioner who allowed the writ. &c., on the 8th day of February, in which he swore he was a householder and worth $10,000 over and above all debts, &c. ; the bond was in the usual form, in which the judgments were recited at $16,505.74, but which in fact ap- pears was for a sum over one hundred thousand dollars. On the 8th day of February the attorney for the plaintiff in error served a notice on the attorney for the defendant in error (entitled in this court) of the making and filing said bond pur- suant to the order of the 10th of January, giving the names and additions, &c., of the sureties, and that they had justified, &c., and before whom the justification was had. On the llth NEW-YORK PRACTICE REPORTS. Willoughby agt. Comstock. day of February the attorney for defendant in error, served on the attorney for the plaintiff 'in error a notice of exception to the sufficiency or the sureties. S. STEVENS, plaintiff's counsel. F. ANTHON, plaintiff's attorney. M. T. REYNOLDS, defendant's counsel. R. E. MOUNT, defendant's attorney. JEWETT, Justice. If the order of the 10th of January con- templated that the sureties in the bond should justify without any notice of exception by the attorney for the defendant in error, before it should be deemed a compliance with the order, it is clear that the plaintiff in error did not comply with that order. In order to justify pursuant to the Revised Statutes as amended by the act of 1844, ( 2 E. S. 597, 598 ; Sess. Laws, 1844, 466,) the sureties should have justified before the officer who allowed the writ of error, under oath or by affirmation, that each of them was a householder or freeholder worth double the amount of the penalty of the bond over and above all demands, on notice of six days given by the attorney for the plaintiff in error to the attorney for the defendant in error ; but perhaps the true reading of the rule is that the sureties *should justify in case of exception ; and so [*179] it seems the attorney for the defendant in error understood the rule, as he gave notice of exception on the llth February, three days after he had received notice of bail being filed, &c. On the 15th day of February, the attorney for the plaintiff in error, deeming his notice which had prev- iously been served, irregular, inasmuch as it was entitled in this court, served a new notice with copy of the bond filed with the affidavits of justification by said sureties ; and on the 19th day of February, fearing that the bond filed was defect- ive, the plaintiff in error, with three of the sureties, executed a new bond unexceptionable in form, on the 1st day of March, and filed it in the clerk's office, together with affidavits made by said sureties justifying, one in the sum of $10,012, one in VOL. I. 17 179 NEW-YORK PRACTICE REPORTS. Willoughby agt Comstock. $13,000, and the other in $10,000, and served a notice on the attorney for defendant in error of the names, additions, &c., of the sureties, that they had justified and that the same was filed with the affidavits, &c. The plaintiff in error has failed to comply with the requirements of the orders of the 10th and 20th of January, his sureties should have justified after notice as provided by the Revised Statutes as amended by the act of 1844. It is insisted that the justification by the three sureties in the new bond executed on the 19th February, is sufficient and regular, pursuant to the Revised Statutes as amended by the act of the 12th of February, 1845 ; but on recurring to the dates of the several steps taken by the parties, it may be seen that the plaintiff in error has failed to complete his bail under the statute as last amended ; the attorney for the plaintiff in error received notice of exception on the llth February ; the act of the 12th February, 1845, requires the party within ten days after notice of exception to procure his sureties to justify by affidavit, or within said ten days to ex- ecute a new bond with new sureties, who shall justify, &c., and serve a copy of such affidavits of justification on the attorney of the defendant in error within the ten days. The new bond was executed within the ten days, but the sureties did not make their affidavits of justification until the 21st and 24th days of February, and the bond was not filed till the first day of March ; copies of the affidavits, as required by the act of 1845, have not been served at all ; but I am inclined to relieve the plaintiff in error once more in this matter. The plaintiff in error must pay to the defendant in error $10 costs for opposing this motion, and the defendant in error must be allowed to proceed with his execution unless the plaintiff in error shall within thirty days execute a new error bond in the penalty at least double the sum of $16,505.74, with two or more sureties, who shall justify pursuant to the re- [*180] quirement of the statute *relating to writs of error and appeals. And in case the executing such bond and filing the same as aforesaid, the execution to stay until NEW-YORK PRACTICE REPORTS. 180 Dunckel agt. Farley. the decision of the cause in the court for the correction of errors and until the further order of this court. Eule accordingly. ADAM DUNCKEL agt. GEORGE FARLEY. In an action of trespass quare clausum fregit upon wild unoccupied and uninclosed lands, where the circuit judge certifies that title to land came in question on the trial, although the plaintiff's title was admitted by the defendant, the plaintiff is entitled to full single costs, though the verdict for plaintiff should be for six cents damages and six cents costs. June Term, 1845. MOTION by plaintiff for the allowance of full single costs according to the statute. This was an action of trespass quare clausum fregit upon wild unoccupied and uninclosed lands, and for cutting down, &c., the wood, trees and timber, then growing and being, &c. Plea, not guilty. Tried at the last Montgomery circuit, in which the plaintiff had a verdict for six cents damages and six cents costs. The circuit judge gave a certificate that the title to land came in question on the trial of the cause on the part of the plaintiff. A motion is now made in behalf of the plaintiff for full single costs. H. ADAMS, plaintiff's counsel and attorney. N. HILL, JR., defendant's counsel. J. C. ALLEN, defendants attorney. JEWETT, Justice. It is enacted, (2 R S. 613, 3,) that " In the following cases, if the plaintiff recover judgment by de- fault, upon confession, verdict, demurrer, or otherwise, in any action or proceeding at law, he shall recover the costs allowed for services in the court in which the action shall be brought. 1st. In all the actions relating to real estate enumerated in the fifth chapter of this act, and in all proceedings to recover tli possession of land forcibly entered or forcibly detaine } . 180 NEW-YORK PRACTICE REPORTS. Dunckel agt. Farley. In all actions in which the title to lands or tenements, or a right of way or a right by prescription or otherwise, to any ease- ment in any lands or to overflow the same, or to do any other injury thereto, shall have been put in issue by the pleadings or shall have come in question on the trial of the cause." Was the title to lands put in issue by the pleadings ? The plea of not guilty in trespass to real property, not only puts in issue the fact of the trespass, &c., but also the title, whether freehold or possessory, &c. (1 Chitty's PL, 2 Am. Ed. 491 ; 7 Term Rep. 350 ; Hubbell agt. Rochester, 7 Cow. Rep. 35 ; Babcock [*181] agt. Lamb and *Doty, 8 Cow. Rep. 115, 1 Cow. Rep. 238.) The defendant's counsel has cited the case of Wiclcham agt. /Seely, (18 Wend, 649,) as an authority to show that the plaintiff is not entitled to costs, but should pay costs to the defendant ; the pleadings in that case did not put in issue the title to lands ; the plea was leave and license, on which issue was joined ; it admitted the title to the lands to be in the plaintiff. I cannot see any analogy between that case and the one under consideration ; upon the ground then, that the title to land was put in issue by the pleadings, I am of the opinion the plaintiff is entitled to costs. But again, the plain- tiff obtained the certificate of the circuit judge, that the title to land, in fact, came in question on the trial ; showing by it that he is entitled to costs under that alternative of the provision of the statute ; but it is said it is not true that the title did actually come in question on the trial, inasmuch as, that the defendant's counsel when the plaintiff was proceeding to give evidence of his title, admitted the title to the land in question to be in the plaintiff. This course could not and ought not to affect the question of costs, (8 Cow. Rep. 115 ;) the plaintiff was bound to be ready to prove his title under the pleadings ; and it appears from the affidavits read on this motion, that the plaintiff was ready to prove his title, and was only pre- vented by the defendant's counsel admitting it ; and upon the suggestion of the circuit judge, that it should make no differ- ence in the result, as he would certify that the title to land came in question. The motion of the plaintiff must be granted NEW-YORK PRACTICE REPORTS. 181 Bangs agt. Strong. for full single costs to be taxed, with $10 costs o.' motion. Rule accordingly. ISAIAH BANGS and WILLIAM "W. OLCOTT agt. JOSEPH STRONG and MALTBY STRONG. On a motion by defendant to set aside or perpetually stay execution, on the ground that he has been discharged from all his debts under the bankrupt law, and the debt upon which execution was issued was included therein : the plaintiff may have an opportunity to contest the validity of the discharge, by bringing an action on the judgment, where his papers in opposition to the mo- tion, show strong evidence that the defendant was guilty of fraud and wilful concealment of his property, &c., in his proceedings to obtain his discharge. The execution and levy in such case, will be permitted to stand as security, uutil the decision of such trial. June Term, 1845. MOTION on behalf of Joseph Strong, one of the defendants, for a rule or order, setting aside two executions issued on the judgment, recovered by the plaintiffs against the de- fendants ; one in the hands of the sheriff of ^Living- [*182] ston, and the other in the hands of the sheriff of Monroe ; on the ground that the defendant had been dis- charged under the provisions of the late bankrupt act, since the recovery of the judgment. The judgment was recovered on the 30th October, 1838, in debt for $50,000, and for damages and costs $63.97 ; on which several executions had been issued and regularly returned, not being satisfied previous to the issuing the executions now in the hands of the sheriffs ; there is now remaining due and unpaid of the judgment $9,862.29, with interest from 12th August, 1839. It appears that Joseph Strong, on the 9th May, 1842, presented his petition in the district court for the northern district of New-York, praying to be declared a bank- rupt, pursuant to the act of congress of the United States, entitled " An act to establish a uniform system of bankruptcy 182 NEW-YORK PRACTICE REPORTS. Bangs agt. Strong. throughout the United States," passed August 19th, 1841 ; and pursuant to proceedings had in that court, was, by a de- cree of that court, made the 13th day of September, 1842, discharged from his debts, owing by him at the time of the presentation of his petition ; and a certificate of such dis- charge was granted to said defendant, by said court ; the ex- edutions were issued in April last, by virtue of which certain personal property alleged to have been acquired by the de- fendant, Joseph Strong, since the presentation of his petition, has been levied on, and is now held by the sheriffs. E. P. SMITH, defendants' counsel. J. W. GILBERT, defendants' attorney. N. HILL, JR., plaintiffs' counsel. SMITH & THOMPSON, plaintiffs' attorneys. JEWETT, Justice. It is insisted that the discharge and certi- ficate should be deemed a full and complete discharge of the defendants from this debt, and that therefore the executions should be set aside. This motion is resisted by the plaintiffs on the ground that the defendant was guilty of gross fraud and wilful concealment of his property, or rights of property, in his proceedings to obtain such discharge ; that he preferred some of his creditors, contrary to the provisions of the act, and that he admitted false and fictitious debts against his estate. Several affidavits have been read, tending very strongly to prove the truth of the allegations so made, and unless such facts can and shall be satisfactorily explained or rebutted, it cannot be denied but that such discharge and certificate may be impeached suc- cessfully for fraud or wilful concealment by the defendant, of his property or rights of property in" his proceedings to obtain such discharge. It is true, as is contended by the counsel for the defendant, that prima facie the discharge and certificate must be deemed a full discharge of all the debts of the defend- ant; but the act expressly provides that they may be im- peached for fraud or wilful concealment, c. Several [*183] *cases have been cited to show, that this court will NEW-YORK PRACTICE REPORTa 183 Bangs agt. Strong. not on motion of this kind inquire into the regularity of the proceedings, nor try the validity of an insolvent dis- charge on affidavit. (Cole agt. Stafford, 1 Caines, 249 ; Reed agt. Gordon el al., 1 Cow. 50 ; Noble agt. Johnson, 9 John. 259 ; Russell and Hall agt. Packard, 9 Wend. 431.) These were cases in which the defendant was in custody either upon a ca. sa. or on surrender by his bail, except the case of Reed agt. Gordon et al., in that the defendants were arrested on a capias ad respondendum. The English courts do not discharge on common bail, on arrest after the defendant has been discharged under the bankrupt law, where it appears from the affidavits that the certificate was obtained by fraud. (Vincent agt. Bradky, 2 H. Bl 1 j Stacy agt. Freda-id, 2 B. & P. 390.) It is said that the difference between the practice of the English courts, and our own, arises from the conclusiveness of dis- charges under our insolvent laws as evidence, which the English legislature have not extended to their insolvent laws. The affidavit of Olcott, one of the plaintiffs, shows that the defendant has no real property upon which the judgment is a lien, that he has reason to apprehend ; if the execution are set aside or absolutely stayed till the termination of a suit brought upon the judgment, the defendant will have made way with any property he may have, and the only chance the plaintiffs have of realizing any part of their judgment under said exe- cution, is, by having the same remain in the hands of said sheriffs, with power to levy on any property of the defendant that may be found ; retaining the same as security till the de- termination of an issue to be made upon the validity of said discharge. I do not question the principle decided by the cases referred to, nor do I think that a denial of the motion in this case in the least conflicts with it. But while this court will not and ought not to try the validity of such discharge on affidavits, I think it should do what it may to protect each party, from the unjust and wrongful acts of the other ; enough is shown by the affidavits produced in opposition to this motion, to induce a belief that upon an issue involving the validity of the discharge, it may be successfully impeached for 183 NEW-YORK PRACTICE REPORTS. Bull agt. Babbitt. causes, the existence of which the act declares shall avoid it. " Eeason and equity unite in this " that the plaintiffs should have an opportunity to try the legality of it, without losing such security as they have by virtue of any levy they may have had made on the personal property of the defendant J. Strong, in case they should be successful on such trial. How shall it be done ? My opinion is that the motion should be granted, unless the plaintiffs shall bring an action upon the judgment within sixty days, and in that case the de- [*184] fendants have to plead any matter of *defence they may have, except that they shall not be permitted to plead the issuing and levy of the executions or either of them, now in the hands of the sheriffs of Livingston and Monroe, mentioned in the affidavits, on which this motion is founded ; that the said executions (in case such action shall be brought), with the levy made thereon, remain as security for the final result, and in the meantime all further proceedings on said executions be stayed. Should the defendant J. Strong plead his discharge, the plaintiffs will have an opportunity to put in issue and test its validit}'. No costs to be allowed either party as against the other on this motion, in case such action shall be commenced. (1 Cowen Rep. 42 ; do. 165.) AAROK BULL agt. JOSEPH F. BABBITT et al An affidavit for a motion to change venue must show where the venue is laid. June Term, 1845. MOTION by defendants to change venue. This was an action of trover, commenced by declaration 16th April, 1845 ; no issue had been joined ; defendants swore to merits, and the facts they expected to prove by each and every of the witnesses named. Defendants' papers did not show where the venue was laid. NEW-YORK PRACTICE REPORTS. 184 Hall agt. Miller. R. J. HILTON, defendants' counsel. E. QuiN, defendants' attorney. JOHNSON & SCHUYLER, plaintiff's counsels and attorneys. JEWETT Justice. Denied the motion on the ground that defendants' affidavits did not show were the venue was laid. Motion denied with costs. EDWARD HALL agt. ABNER MILLER. A verbal agreement between parties to arbitrate a cause, before the sitting of the circuit, is a good ground of opposition to a motion for judgment as in case of nonsuit, for not noticing and trying the cause at the circuit. June Term, 1845. MOTION by defendant for judgment as in case of nonsuit. The defendant's affidavit and certificate of the clerk of the circuit showed that issue was joined on the 14th January, 1845 ; the cause was not noticed for trial at the Otsego circuit, held on the 14th April, 1845, and issues of a younger date were tried in their regular order on the calendar. The plain- tiff's attorney swore that the reason the cause was not noticed for trial was, that he made an agreement with the defendant to take the cause out of court and submit it to arbi- trators, and that he had full authority from the *plain- [*185] tiff to make the agreement. The defendant, as the only condition upon which he would arbitrate was, that he would name three men and would leave it to them or either of them. And plaintiff's attorney finally consented to leave it to Mark Gill, one of the three men named by defendant, as sole arbitrator, which was agreed to by defendant. The agreement was made a few days before the April circuit. . K. J. HILTON, defendant's counsel. A. L. PRITCHARD, defendant's attorney. N. HILL, JR., plaintiff's counsel. H. BENNETT, plaintiff's attorney. 185 NEW-YORK PRACTICE REPORTS. Otman agt. Fish. JEWETT, Justice. Denied the motion, on the ground that the defendant had agreed to arbitrate. Motion denied with costs, without prejudice. PHILIP OTMAN agt. WILLIAM B. FISH and three others. A defendant who is sued in trespass, assault and battery, as a public officer, and before the trial makes a parol settlement with the plaintiff, each party agree- ing to pay his own costs ; cannot disregard such a settlement and go on and subpo3na witnesses to the circuit, and afterwards move for double costs. June Term, 1845. MOTION by defendant Fish, that he be allowed to proceed to judgment for double costs of defence, to be taxed, &c. This suit was commenced by capias, against all the defend- ants jointly ; the action trespass, assault and battery. Fish was a constable in the discharge of official duty at the time the cause of action arose ; he pleaded separately, the other defend- ants jointly. The cause was noticed for trial at the April cir- cuit, in Onondaga, which commenced on the 14th of April, 1845. On the 15th of April, an agreement in writing for a consideration mentioned, was entered into signed by plaintiffs attorneys, by which the suit was settled as to the three last- mentioned defendants. Fish was not present at the settlement, and swore in his affidavit that the settlement was without his knowledge or consent ; that he had not at any time made any settlement or arrangement in relation to the cause, with plain- tiff or any other person. Defendant showed that the cause was not brought to trial at the circuit for which it was noticed, and that younger issues were tried in their regular order on the calendar. Plaintiff showed that after the settlement with the three defendants as before stated, Fish requested John Ot- rnan, plaintiff 's son, to tell plaintiff that if he was willing to drop the suit, he (Fish) was willing to do so, but could not pay anything, for he had nothing to pay with ; but if he (plaintiff) would drop it, they each could send their witnesses home, and NEW-YORK PRACTICE REPORTS. 186 The People agt. Tracy. make no more costs, and wanted John Otman to get plaintiff 's answer ; plaintiff told John Otman to *tell [*186] Fish that he consented to do so. John Otman in his affidavit swore that he informed Fish, the defendant, that the other defendants had agreed to pay $15, and had settled with plaintiff on their part, and that if he (Fish) paid $10 the suit could be settled on his part. Fish said he was glad the other defendants had settled, and he wished it was settled on his part also, but that he was unable to pay anything ; he told John Otman to tell plaintiff if he was a mind to settle it and drop it as it was, he would settle it so, but could not pay any- thing, because he was unable. John Otman then saw plaintiff and stated to him the proposition of Fish, to which plaintiff re- plied, he would consent to it and drop the suit, and each pay his own cost, and let the witnesses go home. John Otman then went immediately to Fish, and told him plaintiff agreed to it, and the suit might be considered settled in that way, and Fish replied, very well then, I suppose it is settled. Plaintiff alleges that Fish afterwards subpoenaed a large number of wit- nesses, and employed other counsel, with an intention of going on with the cause, and making a large bill of costs. SPOONER & LE EOT, defendants 1 attorneys. N. HlLL, JR., plaintiffs counsel. LAWRENCE & BROSNAN, plaintiff's attorneys. JEWETT, Justice. It appears that the suit was settled with Fish, after the settlement with the other defendants, the mo- tion must be denied. Motion denied with costs. THE PEOPLE ex rel JOHN BLACKSMITH agt. PHINEAS L. TRACY, First Judge of Genesee county courts. A mandamus is not the proper remedy to correct a decision of a judge who re- fuses to issue a warrant to remove certain persons other than Indians from 186 NEW-YORK PRACTICE REPORTS. The People agt. Tracy. lands belonging to or occupied by any nation or tribe of Indians within this state, under the act of the 31st March, 1821. The judge in such a case acts judicially. On an application under that act, the district attorney should be the relator. In a matter of public right, any citizen of the state may be relator in an application for a mandamus, to enforce the execution of the common law or of auy act of the legislature, (when that is the proper remedy ;) but it is other- wise in cases of private or corporate rights, there the title to relief at the suit of the relator must appear. A motion to quash an alternative mandamus, to compel a judge to issue his war- rant under the above-mentioned act, will be granted where it appears there was not due proof upon the original application made before the judge for the warrant. And also where it appears the premises in the alternative writ are not properly designated and described, and that it varies materially from the rule allowing it. June Term, 1845. MOTION by defendant Tracy, to quash an alternative man- damus. On the 6th March, 1845, this court granted a rule [*187] in this case, that an alternative *mandamus issue to be directed to the defendant, requiring him to issue a warrant to remove certain intruders other than Indians from the Tonawanda reservation ; on the application made by the relator, as one of the chiefs of the Seneca nation of Indians residing on said reservation ; or that said judge show cause to this court on the first day of the then next May term of this court, why a peremptory mandamus should not issue. An alternative writ of mandamus was issued, tested the first Mon- day of January, 1845, by Yerplank & Martindale, as attorneys for the relator , neither of whom being district attorney of Genesee county, which was served on the judge the 25th day of March last ; it recited that on the 8th day of January, 1845, John H. Martindale, then district attorney of the county of Genesee, made complaint to said judge, that certain persons thereinafter named, other than Indians, were then intruders upon and had settled or resided on lands belonging to or oc- cupied by the Tonawanda Indians, within the limits of the county of Genesee, and that the said district attorney applied to said judge to issue his warrant under his hand and seal, directed to the sheriff of the county of Genesee, commanding NEW-YORK PRACTICE REPORTS. 18*7 The People agt. Tracy. him within ten days after the receipt thereof, to remove such persons from such lands ; and that on the llth day of January, 1845, upon examination of the matters stated in the com- plaint, due proof was made before and testified to him by Ely S. Parker, of the fact of such settlement or residence on such lands of certain persons named in said complaint other than Indians, to wit: (naming certain persons ;) nevertheless that said judge unjustly refused to issue his warrant as aforesaid, wherebj r the said Tonawanda Indians had been greatly inter- rupted in the occupation and enjoyment of the said lands, &c., as informed from the relation of John Blacksmith, a chief of the said Tonawanda Indians. The writ then commanded said judge to issue his warrant under his hand and seal, directed to the sheriff of the county of Genesee, commanding him, within ten days from the. receipt thereof to remove said per- sons other than Indians, so as aforesaid settling or residing on said lands, belonging to or occupied by the said Tona- wanda Indians, from such lands, or show cause, &c. The time for making the return to this writ was enlarged by an order of the chief justice, on the 19th April, to the 1st Tues- day in June then next. A motion is now made on the part of Judge Tracy, for an order that the writ of alternative mandamus thus issued, be superseded or quashed on several grounds, viz : 1st, that the writ does not allege the existence of any nation or tribe of Indians except the Tonawanda In- dians, and alleges that they are a nation or tribe only argu- mentatively, so that uo direct issue can be formed therein. *2d, that the writ varies from, and is not [*188] authorized by the rule allowing a writ to issue, among other things in this ; that said rule designates the relator as one of the chiefs of the Seneca nation of Indians," whereas in said writ he is alleged to be " a chief of the said Tonawanda Indians." 3d, that said writ is defective in form and sub- stance, containing no allegations upon which a peremptory writ could be issued if admitted, or on which a material issue of fact could be tendered. 4th, that said writ is signed and prosecuted by attorneys other than the district attorney or 188 NEW-YORK PRACTICE REPORTS. The People agt. Tracy other attorney legally authorized to represent any tribe or na- tion of Indians. 5th, that it is not alleged in said writ except by inference, that there are any lands within the county of Genesee belonging to the said Tonawanda Indians, or to any nation or tribe of Indians, or that the Tonawanda Indians or any nation or tribe of Indians occupy any lands within the county of Genesee. 6th, that said wri^ does not designate or describe with sufficient certainty the lands therein mentioned or intended, or any lands whatever, and that a warrant could not, if issued in pursuance of the command of said writ, be executed. A. TABER, defendants counsel. J. L. BROWN, defendants attorney. J. VAN BUREN, attorney-general, relator's counsel. VERPLANK & MARTINDALE, relator's attorneys. JEWETT, Justice. The Tonawanda reservation, is a tract of land situate in the county of Genesee, well known as such, and as well defined in its location and boundaries by that de- - scription as any tract or lot of land in any other part of the stats, is known by the number of lots, &c., from which tract by the terms of the rule of the 6th of March, the writ of alter- native mandamus should have commanded the judge to issue his warrant to remove the intruders therein complained of. The writ foils to designate that reservation as the premises upon which the persons complained of had intruded. It commands the judge to issue his warrant to the sheriff of Genesee county, commanding him, &c., to remove the persons complained of (not from the Tonawanda reservation but) from lands belonging to or occupied by the Tonawanda Indians within the limits of tfa county of Genesee ; a clear departure from the terms of the rule in the description of the premises upon which the intrusion complained of had been made, and upon which the judge was required to issue his warrant to remove such intruders ; the writ in this respect is clearly bad, not only as unau- thorized by the rule, but if the command of the writ should NEW-YORK PRACTICE REPORTS. 189 The People agt. Tracy. be complied with by the judge, his warrant could not be executed, unless indeed it could be supposed that the sheriff knew the particular lands belonging to or occupied by the Tonawanda Indians within his county. The Avrit *should have commanded the judge to issue his [*189] warrant, &c., to remove the intruders from the lands known and described as the " Tonawanda reserva- tion" within the county of Genesee. This proceeding is sup- posed to be authorized by the provisions of the statute passed 31st March, 1821. (See Session Laws 1821, p. 183.) The 1st section of the act declares that " it shall be unlawful for any person or persons other than Indians, to settle or reside upon any lands belonging to or occupied by any nation or tribe of Indians within this state ; and that all leases, contracts and agreements made by any Indians, whereby any person or per- sons other than Indians shall be permitted to reside upon such lands, shall be absolutely void ; and if any person or persons shall settle or reside on any lands contrary to this act, it shall be the duty of any judge of any court of common pleas of the county within which such lands shall be situated, on com- plaint made to him, and on due proof of the fact of such settle- ment or residence, to issue his warrant under his hand and seal, directed to the sheriff of such county, commanding him, within ten days after the receipt thereof, to remove such per- son or persons so settling or residing, with his, her or their families, from such lands." It is made the duty of the sheriff to execute such warrant. By the 5th and 6th sections of the act, it is provided " that it shall be the duty of the district attorneys respectively of the several counties in this state in which any lands belonging to any Indian tribe shall be situ- ated, (among other things) to make complaint of all intrusions upon Indian lands, forbidden by the act ; and from time to time to make inquiries whether any persons other than Indians are settled upon such lands, and to cause them to be removed in the manner therein prescribed." It is objected that the relator, John Blacksmith, described in the rule as " one of the chiefs of the Seneca nation of Indians, residing on the Tonawanda 189 NEW-YORK PRACTICE REPORTS. The People agt. Tracy. reservation," and in the writ " a chief of the Tonawanda In- dians," shows no title either to appear as relator, or to claim the relief prayed for. In a matter of public right, any citizen of the state may be a relator in an application for a mandamus (when that is the appropriate remedy), to enforce the execu- tion of the common law, or of an act of the legislature. It is otherwise in cases of private or corporate rights : there the title to relief at the suit of the relator must appear, or the application will not be heard. (The People agt. Collins and others, 19 Wend. 56.) I am of opinion that by the terms and spirit of the statute under which this proceeding has been had, no other than the district attorney of the county of Genesee (in which the lands intruded upon are situated) could regu- larly be a relator. The remedy for the act complained [*190] of is provided by the *statute, as well as the officers to carry it into execution. It is made the duty of the district attorney to make complaint of all intrusions upon Indian lands forbidden by the act, and from time to time to make inquiries whether any persons other than Indians are settled upon such lands, and to cause them to be removed in the manner therein prescribed. Without the act, John Blacksmith or any other person could not claim such summary proceed- ings to remove intruders upon Indian lands ; and with the act, no other person is authorized by its provisions to make com- plaint of such intrusions, or to cause the intruders to be removed, but the district attorney of the county in which the lands are situated. It is also insisted that the writ has been improvidently issued, on the ground that it is not the appro- priate remedy to correct the error of Judge Tracy in refusing to issue his warrant, having heard the proof offered of the fact of settlement or residence, by the persons complained of, upon lands belonging to or occupied by the Tonawanda Indians. It will be seen by the provisions of the act, that the following facts must be duly proved to or before the judge, before he is ever authorized to issue his warrant. That there were lands situated in the county of Genesee, belonging to or occupied by a nation or tribe of Indians ; that some person or persons other than NEW-YORK PRACTICE REPORTS. 190 The People agt. Tracy. Indians had settled on or resided on some part of such lands. The proof made to or before the judge, consisted of the affi- davit of one Parker, in which he swore " that the following persons other than Indians are settled or reside on the Tona- wanda reservation, on lands owned and occupied by the Tona- wanda Indians, in the county of Genesee, to wit : (naming several persons ;) and that the following aforenamed persons are settled upon said lands by consent of such Indians, to wit : (naming several of such persons ;) that he is informed and believes that (naming five persons) claim under contracts or agreements or lease from third persons, and not said In- dians, as this deponent is informed and believes." This is the substance of the proof made before the judge, upon the com- plaint made by the district attorney. The judge refused to issue his warrant to remove the persons complained of. Can it be said that this affidavit furnished to the judge " due proof of the fact of such settlement or residence ?" The de- ponent Parker does not profess to have any knowledge of the fact : he swore to nothing beyond information and belief. In my opinion the judge evinced a sound judgment, in deciding against the application founded upon that proof, as falling far short of the proof required by the statute. And besides I am constrained to say, that from the best consideration of the case that I am able to give. I am of opinion that the de- cision of the judge in this case, if erroneous, cannot be ^corrected by mandamus, the judge in his refusal [*191] acted judicially. ( The People ex rel. Doughty agt. The judges of Dutchess common pleas, 20 Wend. 658, and the cases there cited.) Several other questions have been raised on the argument of this motion, but which I forbear to consider, as unnecessary, having come to the conclusion upon the exam- ination of the question already considered, that the rule of the 6th of March last and all subsequent proceedings therein, should be vacated and set aside, and that the writ of alter- native mandamus should be quashed ; but without costs to either party as against the other. Kule accordingly. VOL. I. 18 191 NEW-YORK PRACTICE REPORTS. "Wagner agt. Adams. ELIZABETH CRANE agt. DAVID CROFOOT. A notice of motion must specify one certain time only, when the motion will be brought on, it cannot be made in the alternative. June Term, 1845. MOTION by defendant to have a statement of facts drawn up under the direction of the chief justice, or one of the jus- tices of this court, to be incorporated in the record, to enable the defendant to prosecute a writ of error. The notice of motion was given for " the second Monday of the next May term," provided the court would entertain and hear the motion at said term ; if not, that then the motion would be made on the first Tuesday of June next, &c. C. STEVENS, defendant's counsel. E. C. REED, defendants attorney. J. NEWLAND, plaintiff's counsel. T. P. GROSVENOR, plaintiff's attorney. JEWETT, Justice. The notice is in improper form. It cannot be in the alternative, but must be for one certain time. Motion denied with costs. JOHN I. WAGNER agt. HENRY ADAMS. It is not necessary that the plaintiff should himself execute a bond for security for costs, two sufficient sureties will do. June Term, 1845. MOTION by defendant to set aside or vacate the bond filed in this cause for security for costs. The plaintiff was a non-resident, and the bond filed was executed by two persons without the plaintiff". H. ADAMS, defendant's counsel. LOBDELL & ADAMS, defendant's attorneys. XEW-YORK PRACTICE REPORTS. 192 Spooner agt. Frost. J. NEWLAND, plaintiffs counsel. HAMMOND & BATES, plaintiff's attorneys. H. Adams, for defendant, persisted that the statute on this subject should be construed as requiring the plaintiff himself to execute the bond *with one or more [*192] sureties. J. Newland, for plaintiff, cited 2 R. S. 575, 4 ; 4 Paige, 273, showing that the plaintiff need not join in the bond. JEWETT, Justice. It is not necessary that the plaintiff should himself execute the bond, when he does not, two suffi- cient sureties must do so. The motion was disposed of on other points. ADIN M. SPOONER agt. DAVID FROST A charge of one dollar for a precept issued to collect costs, given on decision of a motion, cannot be allowed ; all the costs are covered by the amount given on the decision of the motion. The teste of a precept in the name of Greene C. Bronson, chief justice, as of January term, 1845, is amendable. June Term, 1845. MOTION to set aside a precept for irregularity. A motion was made by plaintiffs to set aside a report of referees ; and was denied with seven dollars costs on the 9th of April, 1845. The costs remaining unpaid, a precept was issued some time thereafter, and directed the sheriff to collect the seven dollars costs and one dollar for the costs of the precept, besides his fees. The precept was tested of January term, 1845, and in the name of Greene C. Bronson, as chief justice. E. W. PECKHAM, plaintiff's counsel. D. C. LE ROY, plaintiff's attorney. D. BROWN, defendant's counsel. M. TEMPLE, defendant's attorney. JEWETT, Justice. The charge of one dollar for the precept 192 NEW-YORK PRACTICE REPORTS. Hull agt Joesbuiy. is not proper, all the costs are covered by the seven dollars, which must include the issuing of the precept. The teste of the precept is amendable. Motion granted with ten dollars costs, with leave to defend- ant to amend, &c. CHESTER HULL, JR. agt. JOSEPH JOESBURY. The defendant sued by capias in tort, one appears and puts in special bail and the other returned non est invenlus, and the declaration is drawn and served only against the defendant appearing. A motion to set aside the declaration on the ground that it does not conform to the capias and that one defendant in an action of tort in such a case cannot be declared against alone, will be denied with coats. June Term, 1845. MOTION by defendant to set aside declaration for ir- regularity. The capias was issued against Joseph Joesbury and Samuel Dugard, for libel, and an order thereon indorsed requiring the defendants to be held to bail. Joesbury appeared by Adams & Watson, his attorneys, and put in special bail in the cause, "Joseph Joesbury impleaded with Samuel Dugard ads. ^Chester Hull, Jr." On the 8th May, 1845, Adams [*193] & Watson were served with a declaration against Joseph Joesbury alone. The capias was not served on Dugard E. W. PECKHAM, defendants counsel. ADAMS & WATSON, defendants attorneys. H. H. MARTIN, plaintiff's counsel. WM. DUER, plaintiff's attorney. The defendant moved on the ground that the declaration must conform to the capias. That one defendant only could not be declared against in tort, where the capias was returned NEW-YORK PRACTICE REPORTS. 193 McDermott agt. Davison. tion for reference, and was bound to know what the decision was. The motion must be denied, with costs. Eule accordingly. [*194] * JAMES MCDERMOTT and SAMUEL OWEN agt. SAM- UEL DAVISON. An attorney commencing a suit in ejectment must first get the written authority of plaintiff to commence it. Term, 1845. MOTION by defendant to strike out the name of Samuel Owen from the declaration and the counts therein. This was an action of ejectment ; declaration and notice served on the llth February, 1845. The motion was made on the ground that plaintiff's attorney had no authority from plaintiff Owen to commence the suit. It appeared that Owen and two other plaintiffs gave a written authority to plaintiff's attorney, in the year 1837, to commence a suit in ejectment for the same premises, which suit terminated in favor of the defendant; and Owen in an affidavit read on this motion swore, that he had revoked the former authority given by him to his attorney, and that the present suit was commenced and carried on against his consent. It appeared on the part of plaintiff McDermott, that notwithstanding Owen had made such an affidavit, he (Owen) admitted that it was procured under improper influences, and he was willing and desirous the suit should go on, and gave a written consent to plain- tiffs' attorney to that effect, after notice of thismotion had been given. M. T. EEYNOLDS, defendants counsel. L. FARRAR, defendants attorney. J. A. COLLIER, plaintiffs' 1 counsel. L. M. DRURY, plaintiff's 1 attorney. JEWETT, Justice. Denied the motion, on the ground, that Owen's authority had been procured since the notice of the 193 NEW-YORK PRACTICE REPORTS. Moffat agt. Judd. personally served on him > and a return of non est inventus as to the other. JEWETT, Justice. Thought differently and denied tb motion, with costs. WILLIAM B. MOFFAT agt. JOHN M. JUDD. On a motion for judgment as in case of nonsuit, and it appearing the cause was referred, before the circuit, by an order entered at the special term, but no copy of such order of reference served until after notice of the former motion given ; the motion will be denied with costs, on the ground that it was not necessary to serve a copy of the order the defendant had notice of it when the motion for reference was made. June Term, 1845. MOTION by defendant for judgment as in case of nonsuit. Defendant showed that issue was joined on the 2d October, 1844, and two circuits had passed and the plaintiff had not noticed the cause for trial at either ; that younger issues were tried, &c. ; the first-mentioned circuit was third Monday in March last, and the second on the first Monday of May last, venue in the city and county of New- York. Plaintiff showed that on the 5th February, 1845, this cause was referred by an order entered at the February special term, that his attorney did not receive a copy of such order until 29th March follow- ing. Defendant stated that a copy of the order of reference was not served on his attorney until two days after the notice of this motion had been given. D. WRIGHT, defendants counsel. GEO. B. WOOD, defendants attorney. J. EDWARDS, plaintiff's counsel. C. W. CAMPBELL, plaintiff' 1 s attorney. JEWETT, Justice. It was not necessary to serve a copy of the order of reference. The defendant had notice of the mo- NEW-YORK PRACTICE REPORTS. 194 Snyder agt. Olmstead. motion had been given, but ordered the plaintiffs to pay ten dollars costs of the motion. Eule accordingly. ALEXANDER SNYDER agt. CHARLES A. OLMSTEAD. An order for depositing books, &c., with county clerk for the benefit of a party, must be strictly complied with. Leave given to the party seeking discovery, to examine the books, &c., at the store of the owner, will not answer as a sub- stitute. A motion to vacate an order for depositing books, &c., should first be made before the officer granting it. June Term, 1845. MOTION by plaintiff to vacate order of circuit judge, re- quiring books to be deposited with county clerk. This motion was made by plaintiff, to vacate the order of the circuit judge, requiring plaintiff to deposit books, &c., with the county clerk, on the ground that the plaintiff had given defendant's attorney leave to examine the books and papers. &c., which related only to the suit in controversy, at the store of .the plaintiff. ,,. E. PEARSON, plaintiffs counsel and attorney. M. T. EEYNOLDS, defendants counsel. L. J. LANSING, defendant's attorney. *JEWETT, Justice. The plaintiff cannot substitute [*195] that mode of examination, as a compliance with the order ; he should have deposited his books, &c., according to the order. The motion to vacate the order should have been made before the officer granting it in the first place. Motion denied with costs. 195 NEW-YORK PRACTICE REPORTS. The People agt. Oakes. THE PEOPLE agt. ANDREW OAKES. THE SAME agt. ANDREW OAKES, Coroner of Kings County. On an appeal from the taxation of a bill of costs, the appellant must show by affidavit that the taxation was opposed and the items objected to in the bill were taxed by the officer under objection. It will not answer to state in the notice of motion on the appeal, merely the items objected to, and the grounds of objection. June Term, 1845. MOTION by defendant for retaxation of costs. The defendant appealed from the taxation of a bill of costs in each cause, by J. W. Edmonds, circuit judge of the 1st circuit. Defendant's attorney set forth in his notice that he appealed from the taxation of the bills of costs in each cause (a bill of costs in each cause being annexed), by J. W. Edmonds, Esq., to this court, and went on in his notice and gave the items and grounds of objection ; but did not produce any affidavit showing that any person appeared before the taxing officer, or that any items in the bill were objected to, or that the officer taxed the objectionable items specified in the notice. P. CAGGER, defendants counsel. N. F. WARING, defendant's attorney. MR. BOWDOIN, counsel for the people. WM. WHITNEY, attorney for the people. JEWETT, Justice. Defendant's attorney seems to have omit- ted a material part of his case ; he should show by affidavit that the taxation was opposed, and the items objected to were taxed under objection by the taxing officer. Denied with costs, without prejudice. NEW-YORK PRACTICE REPORTS. 195 The People agt Judges of Court of Common Pleas of Niagara County. JOSEPH A. WESTBROOK and wife agt. ISAAC A. MERRITT. An affidavit for a motion to change the venue, must state the town, village or particular place of residence of the witnesses, in addition to the county. Stat- ing the county only is not sufficient. June Term, 1845. MOTION by defendant to change the venue. This was a motion to change the venue from the county of Ulster to the county of Delaware, on the usual printed form of affidavit. The defendant stated " A. B., *&c., [*196] (naming his witnesses,) of the county of Delaware, are and each and every one of them is a material witness, &c." A. TABER, defendants counsel. PARKER & PALMER, defendant's attorneys. J. EDWARDS, plaintiffs' counsel M. SCHOONMAKER, plaintiffs 1 attorney. The point taken in opposition to this motion was, that the affidavit was defective, in not stating the town, village or partic- ular place of residence of the witnesses, in addition to "the county, i-"'* '* JEWETT, Justice. Held the objection a good one, and de- nied the motion with costs, without prejudice. THE PEOPLE ex. rel WILLIAM E. COOK and JOHN STAHL, JR., agt. THE JUDGES OF THE COURT OF COMMON PLEAS OF NIAGARA COUNTY. A peremptory mandamus will be allowed to compel a court of common pleas to approve a new appeal bond, where the bond returned by the justice is not ap- proved by him, or is approved by an officer who is not authorized, under the law " of appeals to the court of common pleas." June Term, 1845. A MOTION for a peremptory mandamus to issue, on a return to an alternative mandamus. 196 NEW-YORK PRACTICE REPORTS. The People agt. Judges of Court of Common Pleas of Niagara County. This was an appeal cause from a justice's court, to the Niagara common pleas; wherein one Edwin Pichard was appellee, and the relators, William E. Cook and John Stahl, Jr., appellants. On the 3d day of January, 1845, an affidavit with allowance of an appeal thereon, together with a bond ex- ecuted by the appellants and one William Wood, as surety, was served on the justice of the peace before whom the judg- ment was rendered, and the fees paid. The justice refused to approve the bond, on the ground that he was unacquainted with the surety. The bond was then taken to the officer allowing the appeal, (a supreme court commissioner,) and ap- proved by him, and returned to the justice the same day. The justice made and filed his return 25th January, 1845, never having approved of the bond, but filed it with the approval only of the supreme court commissioner indorsed thereon. At the February term of the court of common pleas of Niagara county, Pichard, the appellee, moved to quash the appeal; which motion was granted with costs ; on the ground that the appellants did not at the time they served upon the justice the affidavit and allowance of appeal, or at any other time, serve upon or deliver to the said justice a bond with sureties, the sufficiency of which was certified or approved at any time, or in any manner by the justice or by any other officer authorized to certify or approve of the sufficiency of sureties in cases " of appeals to the court of common pleas." [*197] *S. P. NASH, relators 1 counsel HIRAM C. CLARK, relators 1 attorney. J. A. COLLIER, yules' counsel. C. E. PARKER, attorney for judges. / . On the granting of the motion to quash the appeal, by the common pleas, the appellants moved the court to approve of the sureties to the bond so delivered and filed by the justice, which the court refused to do, on the ground that the statute had not conferred jurisdiction upon them. The appellants then asked leave and offered to file a new bond with sureties NEW-YORK PRACTICE REPORTS. Gale agt. Hoysradt. to be approved by the court, which the court refused to allow, on the ground that there was not any informality or other im- perfection in the bond then on file, and nothing therein to be amended ; the bond was formal and perfect upon its face, but that the defect in the proceedings sought to be supplied by the appellants, was the omission or neglect of the appellants to give the sureties required by law in appeal cases, which omission or neglect the court of common pleas had no right or authority and could not amend and supply. The relator's counsel cited 2 Revised Statutes, 2d ed. 189, 204, and 11 Wend. 174. JEWETT, Justice. The return of the justice having been made, the court of common pleas thereby acquired jurisdiction, and were by the authorities above cited, bound to approve a new bond. A peremptory mandamus must be allowed. Eule accordingly. JOSEPH GALE agt. JOHN HOYSRADT. Where a cause is put over the circuit by plaintiff for one day on payment of costs, and is not again reached and called at the circuit, the defendant cannot get th'e costs of the circuit even if younger issues were tried and the costs of the day not paid by plaintiff, for the reason that defendant had not procured them to be taxed. He will be allowed the costs of the day only. June Term, 1845. MOTION by defendant that plaintiff pay defendant's costs of circuit. This was an action of replevin, noticed for trial at the last March Columbia circuit. The cause was by agreement be- tween the plaintiff's attorney and defendant's counsel, put over for the first day of the circuit, on an informal call of the calen- dar, to the next morning. The plaintiff thereupon discharged his witnesses until the second day of the circuit, at the open- ing of the court. The circuit judge called the calendar through 19 7 NEW-YORK PRACTICE REPORTS. Gale agt. Hoysradt. and tried two or three short causes ; and then gave notice that he should commence a peremptory call of the calendar. When this cause was called the second time, plaintiff's counsel stated to the court the arrangement that had been made to [*198] put the cause over until the next morning ; *in con- sequence of which plaintiff's witnesses had gone, and he was not ready for trial. The defendant's attorney insisted that the trial should then proceed. Plaintiff then prepared an affidavit and made a formal application to put the cause over until the next morning, which was granted on payment of costs of the day. Both parties were ready for trial after the first day ; but the cause was not again called, and on Thurs- day the circuit judge announced that he should not try any more civil causes. E. "W. PECKHAM, defendants counsel. Gr. "W. BULKLEY, defendant 's attorney. M. T. REYNOLDS, plaintiff's counsel. J. H. REYNOLDS, plaintiff's attorney. The defendant stated that immediately after the decision was made, allowing the cause to go over until the second day of the circuit on payment of costs, his attorney made an affidavit of the attendance of his witnesses and presented it to plaintiff's counsel, who read it and made no objection to it, and was then told by defendant's attorney, if he would pay the amount of witnesses' fees, $6.50, it would be satisfactory; plaintiff's counsel said he would see plaintiff and get the money and pay them ; defendant also stated that the witnesses' fees had never been paid. Also, that younger issues were tried in their regu- lar order on the calendar. Plaintiff stated that there was no litigated cause tried at said circuit, except those having a pref- erence on the calendar to this cause. And after the first day there was no opportunity to try this cause. On Thursday after the civil calendar had been disposed of, plaintiff's attor- ney offered to pay defendant's attorney the costs of the day on their being regularly taxed. Defendant's attorney refused to receive them, and claimed the costs of the circuit. NEW-YORK PRACTICE REPORTS. 198 Finch agt. Graves. JEWETT, Justice. The costs of the circuit cannot be al- lowed ; it seems the cause was put over for one day on pay- ment of costs, and after that, was not again reached ; plaintiff was ready to try at any time after the first day, and offered to pay the costs of the day on their being regularly taxed. Plain- tiff must pay the costs of the day, $6.50, without any costs of this motion to either party. Kule accordingly. JONAS FINCH agt. THOMAS S. GRAVES. An execution will be set aside with costs if issued within thirty days after judg. ment is perfected, there being no consent by defendant that it may issue. June Term, 1845. MOTION by defendant to set aside an execution and subse- quent proceedings. Judgment was perfected against defendant 29th April, 1845. *An execution was issued thereon, and [*199] delivered to the sheriff on the 3d day of May, follow- ing. The sheriff 's deputy had proceeded and levied on the property of defendant. Defendant denied ever having given consent that execution might issue. Plaintiff stated that be- fore and after the judgment was perfected in the cause, the de- fendant had incumbered his personal property by mortgages, in order to avoid the payment of the judgment ; and his real estate being incumbered for near its value, there was no pros- pect of plaintiff's realizing anything only by means of defend- ant's personal property ; that after the execution had been issued, and about the middle of May, plaintiff's attorney learn- ing that the property on which he had ordered the sheriff to levy was mortgaged, he directed the sheriff to return the exe- cution to him, which was done, and alleged that the defendant had not been put to any inconvenience by reason of it. De- fendant's attorney offered plaintiff's attorney on the 24th of May, to withdraw the motion on plaintiff's paying five dol- 199 NEW-YORK PRACTICE REPORTS. Campbell agt. Spencer. lars for preparing the papers. Plaintiff's attorney declined doing so, but offered to indorse five dollars on the judgment, provided the defendant had been put to any expense or incon- venience, in consequence of the issuing of the execution, which defendant's attorney declined to do. E. W. PECKHAM, defendant 's counsel. CHAS. C. NOBLE, defendant's attorney. J. A. COLLIER, plaintiff 's counsel. WM. B. HAWES, plaintiff' 1 s attorney. JEWETT, Justice. The execution was issued too soon, and I see nothing in the case to take it out of the rule. The statute directs the time of issuing executions, and in this case it was issued sooner than the statute authorizes. Motion must be granted with costs. 1 Rule accordingly. DRYDEN H. CAMPBELL agt. ELIZA SPENCER. It is bad service to unlock a door of an office and leave the papers therein, no person at the time being in the office ; under such, circumstances, service should be made in some other way. June Term, 1845. MOTION by defendant to set aside report of referees. The notice that this cause would be brought to a hearing before the referees, was served on defendant's attorney by plaintiff's attorney, on the 14th day of March, 1845, and stated in the affidavit of plaintiff's attorney, to be as follows : "By leaving such notice in the office of said Martin, in a conspi- cuous place therein, no person being in said Martin's office at that time, to wit, by laying such notice upon a book lying upon the table of said Robert H. Martin, defendant's [*200] attorney, being the same table at which said *Martin usually sits ; that at the tune of such service he found PRACTICE REPORTS. 200 Campbell agt. Spencer. the key of the said Martin's office in the door thereof." De- fendant's attorney stated he never saw or knew of, or in any manner received any notice of hearing in this cause, and knew nothing of it until the morning of the 28th March, the day the cause was to be tried before the referees, when he accidentally found the cause was to be tried. It appeared by defendant's affidavits that Robert H. Martin, Esq., defendant's attorney, was taken suddenly sick on the 12th March, aforesaid, and so continued for a number of weeks ; that Lewis A. Cole, Esq., kept an office of his own in the same office and room with said Martin, and was requested by Martin to watch for any papers left for or served upon him, Martin, and if any, to let him know immediately. On the 12th and 13th March, Cole was in the office, and when he left, he locked the office and hung the key under a sign. Cole swore that on Thursday, the 13th March, he left the office in the afternoon and locked the door, and hung the key in the usual place, under the sign, that he was taken unwell that day, and did not go to the office again until Wednesday, the 19th March, when he went and found the key hanging where he left it, under the sign, and the office locked. Martin was at that time sick, and unable to leave his house. E. "W. PECKHAM, defendants counsel. E. H. MARTIN, defendants attorney. M. T. REYNOLDS, plaintiff's counsel. L. A. CARD, plaintiffs attorney. JEWETT, Justice. Where the door of an office is found locked, and it is unlocked, and service made by leaving the paper in the office, no person being therein, it is bad service ; no service made in that way can be considered good ; it should be made, under such circumstances, in some other manner. Motion must be granted with costs. Rule accordingly. 200 NEW-YORK PRACTICE REPORTS. In the matter of the Justices of the Superior Court, IN THE MATTER OF THE APPLICATION FOR A WRIT OF MAN- DAMUS TO THE JUSTICES OF THE SUPERIOR COURT OF THE CITY OF NEW-YORK. Executors must sue in their representative character, to exonerate them from the payment of costs, where defendant obtains judgment for costs. Merely describing themselves as executors at the commencement, and the declaration throughout showing that the cause of action accrued to themselves and not to the testator, is not sufficient. June Term, 1845. MOTION ex parte for alternative mandamus. This was a suit commenced in the superior court of the city of New- York, by Edward Ferris and Adeline Pool, executor and executrix of the last will and testament of John Pool, deceased, plaintiffs, against Kobert Hogan, defendant. The declaration was in assumpsit in the ordinary form of [*201] money counts at ^length, alleging the defendant to be indebted to the plaintiffs in the sum of five hun- dred dollars, &c. The plaintiffs were not described as execu- tor and executrix only at the commencement of the declara- tion, and were there described as above mentioned. The defendant pleaded non-assumpsit, with notice of set-off. The cause was tried October 25th, 1844, and a verdict rendered for plaintiffs for $21.25. On the 19th December following, defendant's attorneys made out the defendant's costs and had them taxed, and requested plaintiffs' attorney to insert a sug- gestion in the plaintiffs' record of the amount of costs due de- fendant, which plaintiffs' attorney declined doing. On the 27th May, 1845, defendant procured an order to show cause, from one of the judges of said court, why plaintiff should not amend his judgment record which was then entered in the cause, by inserting the amount of defendant's costs, which were taxed at $69.37, or that the defendant be permitted to enter up his judgment for the costs, which motion was denied with seven dollars costs by the judge of said court who heard the NEW-YORK PRACTICE REPORTS. 201 McKnight agt. Baker. application. Defendant's attorneys showed that on the trial the plaintiffs' claim was not reduced by set-off. E. W. PECKHAM, relator's counsel. J. "W. & J. E. WHITE, relator's attorneys. It was insisted by relator's counsel that the cause of action as stated in plaintiffs' declaration, showed that it accrued to themselves and not to the testator ; their stating themselves to be executors was not sufficient to exonerate them from the payment of costs; that to exonerate from costs they must necessarily sue in their representative character. JEWETT, Justice. Took the same view of the subject, and allowed an alternative mandamus to require the superior court to vacate their order denying defendant's motion, and to com- pel plaintiff to make up and file a record of judgment, insert- ing therein the amount of defendant's costs, &c. JOHN MCKNIGHT agt. ISAAC Y. BAKER. A defendant cannot appear and plead in a cause as a matter of course, never having been served with process. A motion to set aside an inquest against a defendant on the ground that a co-defendant was declared against in the de- claration filed, and that both defendants had appeared and pleaded, although but one was served with process, and that the plaintiff could not sever in such a case and take an inquest against the defendant who had been served, will be denied with costs, for the reason that the defendant who has not been served with process has no right to appear and plead. June Term, 1845. MOTION by defendant to set aside inquest for irregu- larity. This suit *was commenced to recover the amount [*202] of a promissory note made by defendant Baker, and indorsed by one Peter Comstock. The declaration filed was against Baker and Comstock. A copy of the declaration was served on the defendant Baker, 26th November last ; no de- YOL. L 19 202 NEW-YORK PRACTICE REPORTS. Robbins agt. Lewis. claration was ever served on Peter Comstock. On the 3d of December last, defendant Baker appeared and pleaded ; on the same day plaintiff's attorneys served defendant's attorneys with notice of trial for January circuit ; the cause was not reached at the January circuit, and on the 15th January Eb- enezer Clark, Esq., one of defendant's attorneys, undertook to appear and plead for Peter Comstock, without any process having been served upon him. Plaintiff's attorneys on the 16th January served on said Clark a notice, stating that as no suit had been commenced against Peter Comstock by them in favor of John McKnight, the plea and notice served by said Clark for Comstock would be entirely disregarded. In March following, plaintiff's attorneys served another notice of trial in this cause on defendant's attorneys for the April circuit. At the April circuit the cause was reached in its regular order on the calendar, and an inquest and verdict taken therein upon which a judgment was subsequently entered up. De- fendants moved on the ground that the plaintiff could not sever and take an inquest against one defendant, where both had appeared and pleaded in the cause. E. CLARK, defendant's counsel. CLARK & PATTISON, defendants attorneys. C. STEVENS, plaintiff's counsel. CAGGER & STEVENS, plaintiff's attorneys. JEWETT, Justice. Denied the motion on the ground that Peter Comstock had no right to appear and plead ; he never having been served with process. Plaintiff had a perfect right to disregard the appearance and plea, and go on and take his inquest against Baker. Motion denied with costs. HENRY C. BOBBINS agt. GRAUDUS LEWIS. A feigned iseue is the appropriate remedy, and will be ordered, to try the con- sideration of a judgment given on bond and warrant of attorney, and sought NEW-YORK PRACTICE REPORTS. 202 Robbins agt. Lewis. to be set aside on the ground of usury or duress, where the facts in the pa- pers on the motion are conflicting. June T&rm, 1845. MOTION by defendant to set aside the judgment perfected in this cause, and the execution issued thereon for usury and duress. Graudus Lewis, the defendant, stated that on or about the 10th January last he confessed a judgment in this court on bond and warrant of attorney, to plaintiff for $400 debt ; the penalty in the bond was conditioned for the payment of *$200. The judgment was given on three notes [*203] made by defendant to plaintiff, one for forty dollars and interest, dated on or about 1st December, 1844, and due on or about the 15th February, 1845. One other note for forty dollars and interest, due on or about the 15th June, 1845, and one other note for fifty dollars and interest, due in about two months from the date thereof, both of which last- mentioned notes were dated on or about the same day that the first was dated. At the time of giving the judgment, defend- ant gave a consent that execution might issue thereon imme- diately, with the understanding between the defendant and the plaintiff that a levy might be made upon certain property then and there turned out by defendant in writing to the sheriff of Steuben. And that levy should remain without further proceedings until the expiration of one year from the time of giving the judgment. And that if at the expiration of one year, the defendant should have paid to the plaintiff the sum of one hundred dollars, then the levy should remain with- out further proceedings until the expiration of two years from the time of giving the judgment, when the defendant agreed to pay the balance of one hundred dollars and satisfy the exe- cution. The two forty dollar notes were given for a buggy wagon purchased of plaintiff; the fifty dollar note was for a set of harness purchased of plaintiff at forty-five dollars, and the balance of five dollars was for tavern bill, one dollar and fifty cents of which was for liquor had at the bar of plaintiff. 203 NEW-YORK PRACTICE REPORTS. Robbing agt. Lewis. On the 6th of January last defendant was arrested upon a war- rant issued by a justice of the peace of Penn Yan, Yates coun- ty, upon complaint of the plaintiff in this cause, for getting goods under false pretences. Defendant was conveyed to Penn Yan, and the plaintiff agreed not to appear before the justice against defendant if he would confess a judgment of two hundred dollars ; and turn out property to be levied upon by the sheriff of Steuben. Defendant asserted that while under such arrest, without counsel and entirely ignorant of his right?, he confessed the judgment before stated consented to the im- mediate issue of an execution and turned out the property as stated. Defendant then appeared before the justice who had issued the warrant, and no complainant appearing he was dis- charged. Defendant alleged he did not owe the plaintiff only the amount of the three notes, amounting to one hundred and thirty dollars and interest ; that the plaintiff had ordered the sheriff of Steuben to sell the property which was turned out and levied upon, immediately, and satisfy the execution. William H. Lewis and Moses H. Lyon, in separate affidavits, stated, that plaintiff, on or about the 10th January last, in- formed them he had made complaint before a justice [*204] against the defendant, and *had caused him to be ar- rested ; that for the purpose of settling the matter the defendant had confessed a judgment to plaintiff for two hun- dred dollars ; that defendant owed to plaintiff only about one hundred and thirty dollars ; that plaintiff had agreed not to appear against defendant upon the charge of obtaining goods under false pretences, provided the defendant should confess the judgment before mentioned ; and that he had not appeared before the justice, and the defendant had consequently been discharged. Plaintiff further informed them that he had agreed to wait on defendant for one hundred dollars of the judgment one year, and for the balance two years, if defendant would by writing turn out sufficient property to the sheriff to be levied upon to secure the judgment of two hundred dollars. And plaintiff also informed them that defendant had agreed to the immediate issuing of the execution upon the judgment, and NEW-YORK PRACTICE REPORTS. 204 Robbins agt. Lewis. had turned out sufficient property to secure the judgment. Henry 0. Bobbins, the plaintiff, stated that the defendant was justly indebted to him in the sum of two hundred and five dollars, as follows : a buggy wagon, eighty dollars, new two- horse harness, forty-five dollars, an account for transient board and lodging and horse keeping at the tavern of plaintiff, twenty dollars, and an account for the use and expenses of plaintiff's double team, and a man to drive the same, for twelve days, at five dollars per day. On the 10th January last, plaintiff and defendant liquidated and agreed upon the sun at two hundred dollars as the sum justly due plaintiff, and fot which defendant confessed judgment as before stated. Plaintiff stated he never had any note for fifty dollars againac defend- ant, but had two notes of forty dollars each, as 'tefore men- tioned. Plaintiff denied that he agreed to wait irpon defend- ant for any particular time, without further proceedings after the issuing of the execution, but the defendant promised plain- tiff that as soon as the levy should be made, \o would get his brother, William H. Lewis, to purchase thu judgment of plaintiff or in some other manner arrange the matter so that plaintiff could obtain the amount of the judgment in a few days. Plaintiff waited several weeks, and hearing nothing of defendant, he directed the sheriff to proceed with the execu- tion. Plaintiff stated that at the time of the confession of said judgment, the defendant was under no arrest or duress, nor did plaintiff then agree not to prosecute defendant for false pretences or any other crime, nor was it upon any such con- dition that the judgment was confessed. Plaintiff also stated that soon after the purchase by defendant of said wagon and harness, defendant absconded, or went away from his home with the wagon and harness, and sold them for less than one-third their value, as plaintiff was informed, *at which time the family and friends of the de- [*205] fendant reported defendant as worthless, and that he had no property, and did not own the farm where he re- sided ; which was contrary to the representations made by defendant to plaintiff at the time of the purchase of said wagon 205 NEW-YORK PRACTICE REPORTS. Robbins agt. Lewis. and harness, and upon which representations plaintiff was in- duced to sell the same on a short credit to defendant. Plain- tiff believing the reports, caused the defendant to be arrested as before stated ; after which plaintiff became convinced that no prosecution for any offence could be sustained, and that defendant's family and friends had circulated such reports merely to prevent defendant from obtaining credit ; plaintiff then abandoned the complaint and so informed defendant be- fore the confession of judgment. Plaintiff denied that he ever gave William H. Lewis and Moses H. Lyon the information which they stated in their affidavits as communicated to them respectively by plaintiff, or any words to the effect thereof. Plaintiff also stated that there was no part of the consideration of the judgment, for liquor sold to defendant at plaintiff's bar. Cornelius B. Ackerman, who was a bar keeper of plaintiff, stated he knew all about plaintiff's accounts and business, that there was no charge or claim for liquor sold to defendant in the account due plaintiff from defendant. Ackerman also corroborated the statement of plaintiff as to the amount of the account, the items composing the consideration and the amount liquidated and settled upon at the time of giving the judg- ment, to wit : two hundred dollars ; the whole claim was two hundred and five dollars. Samuel Chissam, the constable who arrested defendant, stated that he arrested defendant on the 6th of January, and he was discharged on the 7th January, from the custody of the constable, and was not afterwards in his custody. S. H. HAMMOND, defendant's counsel. E. B. VAN VALKENBURGH, defendants attorney. A. TABER, plaintiffs counsel. J. S. GLOVER, plaintiffs attorney. JEWETT, Justice. Order a feigned issue to try the consid- eration of the judgment entered on the bond and warrant of attorney, and drew up the order for the parties, as follows : " It is ordered that a feigned issue be granted to try the va- lidity of the said judgment, and that all further proceedings, NEW-YORK PRACTICE REPORTS. 205 Bosher agt. Harris. on said judgment or upon any execution which may have been issued thereon be stayed until the further order of this court ; that the attorney of the said defendant prepare the record for the trial of said issue, laying the venue in the county of Yates, and furnish a copy thereof to the attorney for the plaintiff, and the said defendant to be the plaintiff therein ; and if the said attorney for the plaintiff in this suit shall object to the form thereof, he shall signify it by a notice in writing to the attorney *for the defendant in this suit [*206] who gave notice of this motion in behalf of said defend' ant, in ten days after said copy shall be so furnished ; and in that event the same shall be settled by a judge of this court on notice given to the attorney for the plaintiff in this suit within ten days thereafter. It is further ordered that said issue may be tried at the next circuit court, to be held in the county of Yates, after said issue shall be made and settled, and that on such trial the said Eobbins be in the first instance required to prove the several items of his demand which made up the sum of the condition of the bond upon which the judg- ment was confessed, with the particular time and times when and also how such indebtedness accrued, and shall also be re- quired to produce on such trial the said bond upon which said judgment was so confessed. The costs to abide the event of of this suit." JAMES BOSHER agt. WILLIAM M. HARRIS and JOHN H. BOSHER. Facts and circumstances for relief on an application to set aside an inquest ; which -was granted upon terms. June Term, 1845. MOTION by defendant Harris to set aside inquest. This cause was commenced March, 1842. Issue joined therein on the 10th May, 1842. On the 10th December fol- lowing, a stipulation was entered into by both parties, for a 206 NEW-YORK PRACTICE REPORTS. Bosher agt. Harrss. commission to examine such witnesses as either party might choose to designate, residing at Eichmond, Virginia, or the vicinity. Such commission was sent to be executed on the part of the plaintiff only, and defendant alleged without his knowledge, although he had witnesses there which he in- tended to have examined, and had interrogatories prepared for the purpose. The commission was returned with the ex- amination of two of plaintiff's witnesses only. An inquest was taken by plaintiff on the llth of April last before Judge EDMONDS of the first circuit, and judgment entered up for $1,322.10, on the following day ; which was done in the ab- sence of both of defendant's attorneys on public business ; the management of the cause during such absence was in- trusted to John Vanderbilt, Esq., who stated that the inquest was taken by surprise upon him, from the fact that notice had been published in the public papers that Judge WILLARD, of the fourth circuit would, in consequence of Judge EDMONDS being engaged in the oyer and terminer in the case of Mary Bodine, hold the circuit for the trial of the causes on the civil calendar, upon which public notice he relied ; the inquest was taken while the jury in the case of Mary Bodine were [*207J out consulting "* about their verdict ; he had no notice of any intention of Judge EDMONDS taking up the civil calendar, or of the inquest being taken until after it was done, to wit : on the 12th April last ; that he should have de- fended the cause had he known of the intention of Judge ED- MONDS to take up the civil calendar ; he was led into the belief by the public notice that the cause would not be tried until Judge WILLARD'S arrival, which was on the 14th April, and for that reason alone the cause was not defended. As soon as he discovered an inquest had been taken he requested plaintiff 's attorney to consent to set the same aside, and offered to pay the costs thereof, and to allow the judgment to stand as secu- rity, which request plaintiff's attorney declined to accede to, for the reason that he had written to his client the fact of an inquest having been taken. Defendant' Harris swore to merits generally, and for this motion. NEW-YORK PRACTICE REPORTS. 20T In the matter of Faulkner. R. W. PECKHAM, defendant's counsel. LOTT & MURPHY, defendant's attorneys. J. W. HAMMERSLEY, plaintiff's counsel and attorney. JEWETT, Justice. Concluded he would relieve the defendant on terms, and ordered the inquest to be set aside on payment of the costs of the circuit and all subsequent proceedings, and seven dollars costs of opposing motion. Judgment to stand as security, and defendant to accept eight days' notice of trial. In the matter of THOMAS FAULKNER, an absconding or con- cealed debtor. A debt against an absconding or concealed debtor as executor wDl have preference over other debts due from him to other creditors, and must be paid by the trustees first. An executor who receives moneys of the estate of a testator before he has qualified as such executor, is bound as an executor for such moneys if he subsequently qualify ; his authority in such a case relates back and legalizes the payments made to him. April Special Term, 1845. Petition of James Finley and Thomas Faulkner, executors of the last will and testament of Eobert Elliott, deceased, of the city of New-York, and William D. Green, of the county of Oneida, in behalf of themselves and the other creditors of Thomas Faulkner, an absconding or concealed debtor ; pre- sented to this court for direction to the trustees of Thomas Faulkner in regard to paying over moneys in their hands, as such trustees. On the 12th July, 1842, Jonathan Miller, Frederick A. Guion and Julius Hitchcock were appointed trustees for all the creditors of Thomas Faulkner, an absconding or concealed debtor. The trustees entered upon their duties and became possessed of about eight ^hundred dollars in [*208] money, and the right to a promissory note of about two hundred dollars. The trustees stated on the 28th Feb- ruary, 1845, that they had men received in all of the estate of said debtor nine hundred and fifty-three dollars. Thomas 208 NEW-YORK PRACTICE REPORTS. In the matter of Faulkner. Faulkner, the debtor, and James Finley were appointed ex- ecutors of the will of Bobert Elliott. Finley proved the will and obtained letters testamentary before Faulkner had quali- fied as executor. Faulkner received several sums of money, amounting in the whole to the sum of two hundred and thirty- six dollars and fifty cents, belonging to the estate of the tes- tator. Faulkner subsequently qualified as executor. At a general meeting of the creditors of Faulkner called by the trustees, the executors of Elliott presented a claim for the moneys so received by Faulkner, which was allowed by the trustees. The executors claimed a preference over the other creditors of Faulkner, but their right to it was denied by the trustees. And the executors moved that the trustees allow their claim a preference to other creditors. R. "W. PECKHAM, counsel for petitioners. S. B. H. JUDAH, attorney for petitioners. G. R. J. BOWDOIN, counsel for trustees. JAS. SMITH, attorney for trustees. BRONSON, Chief Justice. The statute directs that the trus- tees in making a distribution of the moneys in their hands " shall first pay all debts that may be owing by the debtor as guardian, executor, administrator or trustee." (2 R. S. 47, 34.) The objection urged against this claim is, that as Faulk- ner had not been qualified he was not executor at the time the money was received. (2 R. S. 71, 15, 16 ; Thomas agt. Cameron, 16 Wend. 579 ; In tthe matter of Stevenson, 3 Paige, 420.) But the answer is, that when Faulkner qualified as ex- ecutor, his authority related back, and legalized the payments which had previously been made to him. (Priest agt. Watkinsi 2 Hill, 225.) He afterwards held the money, and it was a debt against him as executor. The claim to preference must be allowed. NEW-YORK PRACTICE REPORTS. 208 Morrell agt. Gibson. FRANCIS MORRELL agt. JAMES GIBSON. Facts and circumstances upon which a defendant will be let in to defend on terms, where a verdict has been taken against him. Where terms are im- posed, of payment of costs and judgment to stand as security, &c., no costs for entering judgment will be included, where judgment has not already been entered, plaintiff must enter the judgment at his own expense in such a case. June Term, 1845. MOTION by defendant to set aside the verdict taken in this cause, and allowing defendant to come in and defend. Edwin C. Litchfield, defendant's attorney, stated this was an action for assault and battery ; *was no- [*209] ticed for trial, and on the calendar at the Albany circuit in April, 1845. It was on the day calendar for the 23d April ; on the adjournment of the court at noon, the court was engaged in the trial of an ejectment suit ; the court adjourned to meet at three o'clock, P. M. ; after the adjourn- ment he saw the plaintiff's attorney in the ejectment suit on the trial, and inquired of him how long the trial of said cause would occupy, and was informed by the attorney, three or four hours longer. Litchfield thereupon went to attend upon another legal engagement previously made, and was engaged therein until about half-past five or six o'clock, P. M., and on going to the circuit, he found this cause had been called on for trial, and concluded ; and the jury were then out and soon returned and rendered a verdict for plaintiff of one hun- dred dollars, no one having appeared on the part of* the de- fence. Before the adjournment of the court at noon, on the 2 Jd, Litchfield stated he inquired of George W. Peckham, Esq., plaintiff's counsel, whether three different causes in which Peckham was engaged, and standing before this on the calendar, would be tried, and was informed by Peckham that they would ; and that they would occupy at least, two or three hours. Litchfield believed in consequence thereof, and of the information received in regard to the ejectment suit, that this cause could not be reached on the 23d April, he 209 NEW-YORK PRACTICE REPORTS. Morrell agt. Gibson. therefore left to attend to his engagement, as before men- tioned. Gibson, the defendant, swore to merits, and that he was in attendance at the circuit aforesaid with his witnesses prepared for trial that he left court with one of his wit- nesses about four or five o'clock in the afternoon of the 23d April, (another cause was then occupying the court ;) he sup- posed that the trial then on, would occupy the remainder of the afternoon ; when he returned to court, in an hour or two, he found a verdict had been taken in this cause. George W. Peckham, one of the attorneys and of counsel for plaintiff, stated that he frequently and repeatedly urged defendant's attorney after the 15th of April, during the circuit, to have this cause set down for some particular day of the circuit, as it was at considerable expense, that the plaintiff, who was a poor colored man, had to attend with his witnesses daily at the circuit, and the circuit judge was very liberal in setting down causes for the accommodation of parties and witnesses ; but the defendant's attorney refused to do so, giving as a rea- son that his client would not consent to it. Peckham also stated that he did not recollect distinctly the language he used, but he thought it impossible that he could have told defend- ant's attorney, that certain other causes he inquired about, would take at least two or three hours, as he had an impression that the causes would occupy about the time which it [*210] turned *out they did on the trial; and which was pre- viously supposed. He thinks he told defendant's at- torney that they might not occupy near as much time as sup- posed, and but a little time, or words to that effect. Defend- ant's attorney said nothing to him about leaving court the 23d until he returned ; and from the course pursued by defend- ant's attorney under the instructions of his client, he was satisfied that the design was to have this cause passed when the plaintiff was not ready, and thus get rid of its trial, from the inability of plaintiff to pay the costs which would thereby be incurred. N. HILL, Jr., defendant's counsel. E. C. LITCHFIELD, defendants attorney. NEW-YORK PRACTICE REPORTS. 210 Center agt. Gosling. K. W. PECKHAM, plaintiff's counsel. PECKHAMS & COLT, plaintiff' 1 s attorneys. JEWETT, Justice. Granted the motion, on payment of costs of opposing motion and of the circuit. Plaintiff to be permit- ted to enter judgment to stand as security. It was also de- cided by the court that no costs of the judgment should be allowed, as it was not then entered up : it must be entered up at the plaintiff's expense ASA H. CENTER et al agt. LEONARD GOSLING, Impleaded, &c. A motion by defendant for leave to plead his bankrupt discharge will be granted on terms, notwithstanding a delay of about two years has intervened after suit commenced, the plaintiffs not having proceeded against him in the mean- time. June Term, 1845. MOTION by defendant Gosling to set aside an inquest, judg- ment, and all subsequent proceedings, for irregularity, with costs ; and that the plea puis of the defendant Gosling be al- lowed to stand, &c. This suit was commenced on two promissory notes against defendant, Gosling, on the 6th March, 1841 , who then resided in the county of Montgomery, New- York. Mitchell and Sacia appeared for defendant, and pleaded general issue, 20th March, 1841. The cause was noticed for trial and inquest for the first Monday of May, 1841, at the New-York circuit, where the venue was laid, and where the plaintiff and the defendant then resided : the cause not having been tried, was again noticed for the July circuit thereafter. The defendant, Gosling, supposed that the cause was abandoned as to him, until it was subsequently again noticed for trial for the last May circuit in New- York, by notice of trial served on Mitchell and Sacia, defendant's attorneys, and received by them on the 14th April last. This notice of trial, Mitchell & Sacia sent to defendant, who resided then in the city of New- York, 211 NEW-YORK PRACTICE REPORTS. Center agt. Gosling. stating that they supposed the cause was settled or abandoned as to him, and advised him to employ another attorney. The defendant Gosling was discharged under the bankrupt [*211] *law, September 19th, 1843. Wm. Mulock, Esq., who was substituted as attorney for defendant, stated that he called on plaintiff's attorney and stated to him that if plaintiff persevered in the suit, the defendant must plead his discharge that if plaintiff 's attorney had any wish to test the discharge he would pay what costs plaintiff claimed, put in a plea of the discharge and try it upon the present notice before Judge EDMONDS ; plaintiff's attorney replied that it was too late to plead the discharge, and he could not agree to the pro- position. Defendant's attorney thereupon prepared a plea of discharge puis, &c., filed it in bank and served a copy on plaintiffs' attorney on the first day of the last May term, the circuit commencing at that time ; when the cause was called, defendant's attorney stated the facts to the judge, of the plea being filed and served, and exhibited to him the certificate of discharge, which plaintiff's attorney admitted, but insisted that the matter of defence arose two years ago. Defendant's attorney urged before the judge that the pleadings presented were not in fact the pleadings in the case, and that if they were irregular by being pleaded late, it was then a matter before the supreme court, and not within his control. The judge decided he would be governed by the pleadings which were presented, at the risk of plaintiff's attorney, and all the ques- tions as -to the sufficiency or the making sufficient as to time of the plea, could be settled by the supreme court on motion ; whereupon an inquest was taken by plaintiff for three hundred and ninety-two dollars and forty-two cents, judgment record filed for four hundred and sixty seven dollars and three cent.?, on the 9th May, 1845. Plaintiffs' attorney stated that he nor the plaintiffs, as he believed, ever had any knowledge of de- fendant's discharge, until about the time the cause was noticed for trial last April. On the fourth day of the circuit, when the cause was called on for trial in its order, the defendant's counsel offered to and did plead and tender the plea puts, &c., NEW-YORK PRACTICE REPORTS. 211 Anderson agt. Vandenburgh. to the circuit judge, the plaintiffs' counsel objected to the pleas being received or evidence of the discharge admitted ; that after hearing counsel on both sides, the circuit judge de- cided that the defendant had been guilty of unwarrantable laches in not pleading his discharge earlier, especially as all parties were living in the city of New- York, and he should not receive the pleas nor admit evidence of the discharge, to which decision the counsel for defendant excepted. Plain- tiffs' attorney stated that these pleas were pleaded at the cir- cuit, and not in bank as he believed, and to this end were verified in the usual manner required when pleaded at the cir cuit ; and he affirmed that the question was distinctly argued before and passed upon by the circuit judge who ruled out the pleas and defence *under them, on the ground [*212] of delay. Plaintiff's attorney also stated that the cause had never been abandoned as to defendant Gosling. N. HILL, JR., defendant^ counsel. W. MuLOCK, defendants' attorney. DANIEL EGAN, plaintiffs' counsel. M. M. DAVIDSON, plaintiffs' attorney. JEWETT, Justice. Granted the motion on payment of costs of circuit and subsequent proceedings and seven dollars costs of opposing this motion, with leave to defendant to plead his discharge puis, &c., as of October term, 1843. GEORGE W. ANDERSON agt. JOHN VANDENBURGH and four others. Original motion papers should be addressed to all the attorneys opposed, other- wise those to whom they are not addressed may appear and take a rule for costs for not moving, even where the motion has been made. June Term, 1845. MOTION by plaintiff to set aside and vacate a rule for costs 212 NEW-YORK PRACTICE REPORTS. Anderson agt. Vandenburgh entered in this cause on the 7th June, 1844, and all subse- quent proceedings for the collection thereof. The original motion papers in this cause for reference at June special term, 1844, were addressed to Wm. H. Greene, Esq., Buffalo, as attorney for four of the defendants. Clark and Pattison, attorneys for the defendant Yandenburgh, were served with notice of same motion by plaintiff's attorneys, and appeared and offered to oppose the motion, when it was made by plaintiff's counsel. Plaintiff's counsel said he had no papers addressed to Clark & Pattison in the cause, the pa- pers he held were addressed to Wm. H. Greene, Esq., Buffalo. Clark, who appeared as counsel for Vandenburgh, supposing there might be two causes between the same parties, waited for another motion to be made until the close of the term, and no other being made, he took a rule for costs against plaintiff for not moving which was sought to be set aside by plain- tiff's attorneys on this motion, on the ground that the original motion has been made and opposed. M. T. EEYNOLDS, plaintiff's counsel. TUCKER & CRAPO, plaintiff's attorneys. E. CLARK, defendants' counsel. CLARK & PATTISON", defendants' attorneys. JEWETT, Justice. Denied the motion with costs on the ground that Clark & Pattison attended the term in good faith, with an intention to oppose the motion, as they were bound to do by the notice served on them, and in consequence of the omission of plaintiff's attorneys in addressing their original papers to Clark & Pattison, they had good reason to suppose there might be two causes between the same parties, and took a rule for costs regularly. NEW-YORK PRACTICE REPORTS. 213 In the matter of Robinson. *In the matter of the application of PETER B. GLENN [*213] and MOSES CLEMENTS. A summons to dispossess a tenant under the statute, should be served on the original lessees of the premises, as well as the under tenant in possession ; service upon the under tenant in possession only, is not sufficient where it ap- pears the summons was issued directed to the original lessees. September Term, 1845. THIS was an ex parte motion, for a certiorari to issue to Joseph Hoxie, Esq., one of the assistant justices of the city of New-York, to remove into this court proceedings had before him in the matter of James Horn. The applicants, Glenn and Clements, hired premises in New- York from James Horn, and subsequently underlet them to one Mrs. Tilford ; upon the non-payment of rent, Horn applied to Justice Hoxie under the statute for a dispossessory summons. The return showed that the summons which was directed to Glenn and Clements was returned served upon Mrs. Tilford only, and upon the return judgment was given by default against Glenn and Clements, who had not been served with summons. / EGBERT F. WINSLOW, counsel. H. HUNT, attorney. The applicants claimed that the service was not according to the statute that they had no notice of the proceedings. BEARDSLEY, Justice. Allowed a certiorari on that ground. In the matter of the application of JAMES F. EOBINSON, for a certiorari. An affidavit made by a landlord for a summons to dispossess his tenant, should aver positively the relation of landlord and tenant, and sufficiently describe the premises. VOL. I. 20 214 NEW-YORK PRACTICE REPORTS. Williams agt. Field. September Term, 1845. THIS was an ex parte motion for a certiorari to issue to Joseph Conselyea, one of the judges of King's county [*214] courts. It was a proceeding under the *statute authorizing summary proceedings by landlord against his tenant for non-payment of rent. Eobinson's affidavit showed that the affidavit of Ebenezer Hanford upon which the justice issued his summons did not contain sufficient to give him jurisdiction ; not showing by positive averment the relation of landlord and tenant between the parties, and and not sufficiently describing the premises, the possession of which was sought to be recovered. KOBERT F. WlNSLOW, attorney and counsel for applicant. BEARDSLEY, Justice. Allowed the certiorari upon the grounds mentioned. NOTE. The affidavits of the applicants in the above cases showed that the justices refused to furnish copies of the affidavits and papers upon which the proceedings were had, or to allow copies to be taken. The judge remarked that if this was so, such conduct was extremely reprehensible. MARTIN WILLIAMS agt. DAVID FIELD. Where an affidavit is made by an agent under the statute authorizing summary proceedings to recover possession of land, motion papers made subsequently in the matter should be entitled with the name of the principal, and not of the agent. September Term, 1845. MOTION by Field to quash a writ of certiorari for irregu- larity. The counsel for plaintiff objected that the moving papers showed that the proceedings in the justice's court were be- tween Isaac Merritt and said Martin "Williams ; and that David Field was only the agent for Merritt, and as such, made the affidavit under the statute authorizing summary proceedings to recover possession of land. NEW-YORK PRACTICE REPORTS. 214 Baker agt. The Long Island Railroad Company. N. B. HoxiE, defendants counsel and attorney. R. H. SHANNON", plaintiff' 1 s counsel and attorney. BEARDSLEY, Justice. The defendant's papers are therefore wrongly entitled. Motion denied with costs, without prejudice. ASA BAKER agt. THE LONG ISLAND RAILROAD COMPANY. The statute regulating the commencement of the action of ejectment does not apply to corporations. A rule to plead and notice thereof indorsed on the declaration in the usual manner, and served on the defendants, who were a corporation sued by summons in the ejectment, held regular. September Term, 1845. MOTION by defendants to set aside a rule to plead entered in the common rule book, in the clerk's office in New-York, July 31, 1845, for irregularity. *The suit was ejectment ; commenced by sum- [*215] mons, upon the return of which the defendants ap- peared by McCoun & Clark, their attorneys. The plaintiff 's attorney entered the ordinary rule to plead in the common rule book, and served the declaration with notice of such rule indorsed ; instead of serving the declaration with the notice indorsed thereupon, that the same would be filed upon some day in the same or the next term, and that a rule to plead would be thereupon entered as required by the 12th section of the statute, regulating " the action of ejectment," (2 E. S. p. 231.) In opposition to the motion, it was insisted that the statute regulating the action of ejectment applied only to suits against natural persons, and that the section (12) did not ap- ply to an action against a corporation which could only be commenced by summons. (2 R. S. p. 374, 4 ; Brown agt. The Syracuse and Utica Railroad Company, 5 Hill, 554.) In support of the motion, it was insisted that the repugnance of the two statutes should be reconciled by requiring the action of ejectment against a corporation to be commenced by sum- 215 NEW-YORK PRACTICE REPORTS. Johnson agt. Johnson. mons, and that all the proceedings subsequently to the return of the summons should be had according to the statute. H. F. CLARK, defendant's counsel. McCotJN & CLARK, defendants attorneys. N. HILL, JR., plaintiff's counsel. JOHN VANDERBILT, plaintiff's attorney. BEARDSLEY, Justice. Held, that the statute regulating the commeD cement of the action of ejectment did not apply to cor- porations, and that the plaintiff's proceedings were regular. Motion denied with costs. MARVIN JOHNSON, plaintiff in error agt. WESLEY JOHNSON, defendant in error. After assignment of error and joinder therein to a writ of error to the common pleas, an additional return will not be allowed. September Term, 1845. MOTION by defendant in error to require the court of com- mon pleas of Franklin county to amend their return to the writ of error in this cause, by returning a bill of exceptions filed in the cause. This suit was commenced before a justice of the peace, by Wesley Johnson against Marvin Johnson, and Marvin John- son obtained judgment before the justice for $3.61 against Wesley. Wesley Johnson removed the judgment to the court of common pleas of Franklin county. On the return 'of the certiorari an issue of fact was joined, which was tried before the common pleas at the April term, 1845, upon which [*216] trial Marvin Johnson ^obtained a verdict in his favor. On the trial, Wesley Johnson took exceptions, which was sealed by a majority of the court who were present at the trial, and filed on the 12th of July, 1845 ; no order to stay proceedings was procured. After the exceptions were taken, NEW-YORK PRACTICE REPORTS. 216 Johnson agt. Johnson. and at the same April term of the common pleas the cause was argued on the justice's return, and the judgment of the justice was reversed, and the record of reversal filed on the 6th May, 1845, and on the 7th June, 1845, an execution was issued thereon. Afterwards, on the 28th June last, Marvin Johnson brought a writ of error to remove the judgment of reversal to this court ; the return was made on the 28th June, 1845, before the bill of exceptions was settled : assignment of error and joinder therein on the 23d July, 1845. S. H. HAMMOND, defendants counsel. JOHN HUTTON, defendants attorney. GJ ALLEN, plaintiffs counsel. W. A. WHEELER, plaintiffs attorney. Defendant in error moved on the ground that it was im- portant and necessary for him that the bill of exceptions should be returned to this court as a part of the record, in order that the whole merits and the right of the matter might appear on the record. Plaintiff in error insisted that the party making the motion prevailed on the whole record in the common pleas, but took exceptions on the trial of the issue in fact ; perfected his judgment and issued execution before the bill of excep- tions was settled ; that now he co.uld not send up a bill of ex- ceptions for sustaining his own judgment ; the defendant in error admitted the return to be perfect by joining in error. (2 Cow. 408.) BEARDSLEY, Justice. The necessity for this motion is very loosely presented from the papers ; although an error of fact may have been, yet after assignment of error and joinder there- in, it has never been allowed to have an additional return put in. The motion is entirely without authority, and must be de- nied with costs. Rule accordingly. 216 NEW-YORK PRACTICE REPORTS. Snow agt. Greea WILLIAM W. SNOW and JACOB P. VAN WOERT agt. JAMES GREEN and JOHN C. FISH. Assignees for the benefit of creditors are not liable for costs on a suit commenced before the assignment, and carried on afterwards by the assignor as plaintiff, without the knowledge or control of the assignees : although the assignor was a general agent of the assignees to settle the assigned property ; judgment for costs being obtained against him after the assignment. September Term, 1845. MOTION by defendants that an attachment issue against Boderick I. Emmons and Peter Yan Woert, as as- [*217] signees of the plaintiffs, for refusing *to pay defend- ants' costs in this suit. The plaintiffs sued the defendants in the summer of 1843, on a book account for $130. On the 16th October, 1843, the plaintiffs being insolvent, made a general assignment of all their effects to Eoderick I. Emmons and Peter Van Woert, for the benefit of all their creditors, and made Jacob F. Van Woert their agent, to settle up the assigned accounts, he act- ing under the specific direction of the assignees. The demand against the defendants, which was then in suit, was assigned with the other effects, &c., of plaintiffe. On the 3d May, 1845, a judgment of nonsuit for $185.55 cost was rendered against the plaintiffs in favor of the defendants, the cause not having been tried on the merits. A demand was subsequently made of the assignees for the amount of the costs, and payment refused. Fish swore in his affidavit that during the pendency of the suit, he told Emmons, one of the assignees, that unless the assignees interfered and stopped the suit, the defendants should look to them for costs. Emmons stated in his affidavit that in the winter previous to the judgment of nonsuit, Fish, inquired of him, how it would be about costs in the case of Snow and Van Woert, provided the defendants succeeded ; he replied that he knew nothing about it ; it was a matter be- tween themselves. Fish did not inform him anything about the nature of the action, and he did not know but it was an action of trespass or ejectment from anything which he learned NEW-YORK PRACTICE REPORTS. 21 Y Snow agt. Green. from Fish. Jacob P. Tan "Woert, swore that he carried on the suit with his own funds ; the assignees never had any con- trol of the suit, and did not, directly or indirectly, countenance the same, and he believed the assignees knew nothing about it ; both the assignees swore to the same effect. E. W. PECKHAM, defendants' counsel. J. B. STEELE, defendants' attorney. N. HILL, JR., counsel for assignees. W. H. OLIN, attorney for assignees. The defendants insisted that Jacob P. Yan "Woert was a general agent of the assignees, and had carried on the suit with their knowledge, and that the assignees under Van Woert's general authority from them were liable for costs. On the part of the assignees, it was insisted that the assignees were such solely for the benefit of all the creditors of the plain- tiffs, that the assignees knew nothing of the suit being com- menced or carried on against the defendants, who were both in- solvent ; that the demand for which the suit was brought is a valid and subsisting claim against defendants, and js still unpaid. BEARDSLEY, Justice. There is plausible ground for the motion. It is however positively sworn to by the assignees and agent, that the assignees never knew anything about this suit. All the affidavits go to show that at the time of pros- ecution the defendants were insolvent. Some of the *affidavits show that there was a general authority of [*218] the agent. The agent swears whatever he did in this suit he did in his own right, and advanced his own money. The court does not feel at liberty to disbelieve the two assign- ees, that they had never interfered and carried on the suit. Although the agent was authorized to do some things for the assignees, yet it appears he never had any express authority from them to carry on this suit. The assignees expressly deny ever having any knowledge of the cause. The case does not appeal very strongly to the equity powers of the court, and must be denied, but without costs. 217 NEW-YOKE: PRACTICE REPORTS. Miller agt. Huntington. EBENEZER G. BELKNAP agt. EDWIN E. IVES and THOMAS S. CARGILL. Notice of motion given for the first Tuesday of August, held bad, a new notice should have been given for the September term. The new rules having abol- ished the August term. September Term, 1845. H. WILKES, defendants' attorney for motion. THE court refused to allow this motion to be taken by de- fault, because the notice of motion was for the first Tuesday of August. A new notice should have been given for the Sep- tember term. JOHN S. MILLER agt. SAMUEL G. HUNTINGTON. Proof of service of subpoena is not taxable where it is made only for the purpose of "being prepared to move for an attachment, in case the witness does not at- tend. Where on the first day of the circuit the cause was set down for a subsequent day, and the witness in the meantime returned home, held, that two charges for mileage were taxable. In addition to the charge of fifty cents, for serving costs with notice of taxation, a charge of twenty-five cents is also taxable for the notice of taxation itself. September Term, 1845. MOTION by plaintiff for retaxation of defendant's costs. The bill contained a charge for proof of service of subpoena on witnesses ; a charge for the travelling fees of a witness on the first day of the circuit, a similar charge for travelling fees of the same witness on a subsequent day in the same circuit, for which the cause was set down, the witness having in the meantime returned home. And a charge of twenty-five cents for notice of taxation of costs, in addition to the charge of fifty cents for serving: the costs with notice of taxation. NEW-YORK PRACTICE REPORTS. 218 Thompson agt. Smith. J. KOON, plaintiff's counsel and attorney. C. R. RICHARDS, defendant's counsel and attorney. BEARDSLEY, Justice. Held, that the proof of service of subpoena, was not taxable, it being only necessary in case of the default of the witness, *and there being a [*219] proper charge against him ; but, that both charges for travelling fees, and the charge of twenty-five cents for notice of taxation, were properly allowed by the taxing officer. JONATHAN THOMPSON et al agt. HENRY B. SMITH, late supervisor, &c. A side judge of the court of common pleas, if present at the trial, has authority to give a certificate under the act of 1836, that the cause is a proper one to be carried to the supreme court, where the first judge is a party to the suit, although he is in the county at the time the certificate is given, and was present at the trial. September Term, 1845. MOTION by defendant to quash a writ of error. The defendant in error in this cause, Smith, was first judge of Franklin county, was present on the trial of the cause in the common pleas (but took no part therein). Win. King, one of the side judges who was present on the trial, made a certificate, within thirty days from the filing the record, under the laws of 1836, that this cause was a proper one to be carried to the supreme court. A writ of error was issued to the com- mon pleas. At the time of giving the certificate, Smith, the first judge, was in the county, and also Asa Hascall a supreme court commissioner, who was, by an act of 1840, authorized and might do all such acts and duties in relation to any suit depending in the court of common pleas, as the first judge being of the degree of counsellor of the supreme court, might do out of court. Smith, the first judge, was not of the degree of counsellor &c. 219 NEW-YORK PEACTICE REPORTS. Hale agt. Heyser. S. HAMMOND, defendant's counsel A. B. PARMELEE defendants attorney. P. GANSEVOORT, plaintiffs' counsel. JOHN HUTTON, plaintiffs' attorney. The defendant insisted that the side judge could not prop- erly grant the certificate under the statute, when the first judge was in the county, or, if the first judge could not act in this case, then Asa flascall, the supreme court commissioner, should have given the certificate. BEARDSLEY, Justice. The certificate was lawfully granted, unless the supreme court commissioner, by the act of 1840, had exclusive authority ; within the equity of the case the first judge should not be regarded as first judge of the county. The act of 1840 provides that the supreme court commissioner of Franklin county may do all such acts, &c., as the first judge, being of the degree of counsellor of the supreme court, might do out of court. A first judge not of the degree of counsellor of the supreme court, might under the act of 1836, grant the certifi- cate, if present at the trial. Whatever power the supreme court commissioner might have exercised in this case under the act of 1840, 1 think the side judge had authority, he being present at the trial, and the certificate was properly granted. [*220] *WILLIAM C. HALE agt. EDWARD HEYSER et al Irregular service of a writ of nuisance is of no effect. A motion to set it aside will be denied, where it appears there has been no subsequent proceedings ; for the reason that the service does not affect anything. September Term, 1845. MOTION by defendants to set aside writ of nuisance for irregular service of the writ. It appeared by the copy return, that the copy served on defendants was not certified according to the provisions of 2 R. S. 2d ed. 257, 4. NEW-YORK PRACTICE REPORTS. 220 Adams agt. Elliott. J. VAN BUREN, defendants' 1 counsel. J. L. BOOKSTAVER, defendants' attorney. E. COOKE, plaintiffs counsel and attorney. It appeared that no subsequent proceedings had been had in the cause. BEARDSLEY, Justice. Denied the motion without costs, on the ground that the service being irregular, it was of no effect. There was no subsequent proceedings had to be affected by it. PLATT ADAMS, Executor, &c. agt. JAMES Gr. ELLIOTT, JR. Where personal property has been sold on execution, and the funds arising from the sale have been kept together, and on an objection made to the actual and sufficient levy on a portion of the property sold, it was held that the extent and sufficiency of the levy was a fair-question for a jury. And a motion for the payment over of the money on the sale will be denied without prejudice to claimant's right to bring an action against the sheriff September Term, 1845. MOTION by Edward J. Jaques, landlord, that the sheriff of the city and county of New- York pay over to him, as landlord, the proceeds of the sales of the defendant's goods and chattels. The sheriff, by virtue of an execution against Elliott, claimed to have levied upon the furniture, &c., in the Park Place House, New- York ; but the officer did not view the whole of the property alleged to have been levied upon ; nor did he enter the rooms in which the principal portion of the prop- erty was contained. He took a receiptor's bond, the schedule attached to which, was insisted, embraced all the property in the house, whether the same had come under the view of the sheriff or not, under the claim, " lot of all other sundries on said premises." The property was sold 18th June ; the alleged levy took place on the 12th April. The rent for which the landlord claimed to be paid out of the proceeds of sale accrued on the first day of May. HORACE F. CLARK, com. for landlord. C. F. GRIM, attorney for landlord. 220 NEW-YORK PRACTICE REPORTS. The People agt. Backman. JOHN N". TAYLOR, plaintiffs counsel. L. BENTON, plaintiff's attorney. In support of the motion, it was insisted that there [*221] was no actual and *sufficient levy upon the property as against the landlord, prior to the accruing of the rent ; that to constitute a valid and effectual levy as against third parties, it is essential that the property levied upon should come under the view of the officer. ( Van Wyck agt. Pine, 2 Hill, 666.) BEARDSLEY, Justice. Held, that the extent and sufficiency of the levy were fair questions to be submitted to a jury, but that as the levy upon some portion of the property seemed to be sufficient, (some portion of the property having come under the view of the officer,) and inasmuch as the proceeds of the sale had been mingled by the sheriff, so that the court had not the power of discriminating ; the motion should be denied, but without prejudice to the landlord's action against the sheriff. Kule accordingly. THE PEOPLE agt. ISAAC BACKMAN and JAMES H. MINER. Actions on recognizances should be brought in the original court in which the same were taken, where the bail all reside in the county. This court has jurisdiction, but it is more fit and proper that the original court should exercise its equitable powers which are expressly given to it. September Term, 1845. MOTION by defendants to set aside declaration and subse- quent proceedings for irregularity. Backman and Miner, the defendants, entered into a recog- nizance, as bail for one Allen, at the Schenectady general sessions in March last. Subsequently the district attorney of Schenectady commenced an action of debt, in this court, against the defendants, as bail on their recognizance ; both defendants NEW-YORK PRACTICE REPORTS. 221 The People agt. Backman. residing, and having for many years resided in Schenectady county. JAMES FULLER, defendants' counsel and attorney. P. POTTER, district attorney, counsel for people. It was insisted on the part of defendants, that the action of debt against bail must be brought in the same court in which the original suit was commenced, unless the bail, or one of them, resides out of the county ; in which case they may be sued in this court, although the original suit was in the court of com- mon pleas ; (9 Johns. Rep. 80 ; 7 do. 318 ;) and that the defend- ants' remedy was by motion. (13 Wend. 33 ; 1 Hill, 604 ; 3 Hill, 558 ; 13 Johns. 424.) That the common pleas have equity powers in the matter of recognizances given to them by stat- ute, (2 R. S., p. 399, 37,) which do not belong to this court, and are therefore best qualified to decide the matter or to dic- tate terms. (1 Hill, 604 ; 3 Hill, 558.) On the part of the peo- ple it was insisted that the 2 R. S. 398, 29, provides that the district attorney of the county shall prosecute the *same by action of debt for the penalty, and the pro- [*222] ceedings and pleadings shall in all respects be as in personal actions, for the recovery of any debt. This statute changed the law of 1818, (Session Laws, p. 307, 7,) which authorized the collection of fines and recognizances. Execu- tion cannot now be issued upon recognizances, they must be sued, in an action of debt, (12 Wend. 475 ;) and the supreme court have jurisdiction. (4 Wend. 387 ; People agt. Blackman, 17 Wend. 252.) If this court have jurisdiction there is no ap- parent irregularity. BEARDSLEY, Justice. Both the defendants reside in Sche- nectady county. The original court has equitable powers expressly given to it by statute, which is expressly prohibited by any other. I do not deny but what this court has juris- diction, but it will not exercise it because it is inconvenient ; it is more fit and proper that the original court should exer- cise the equitable power thrown upon it ; it is inconvenient 222 NEW-YORK PRACTICE REPORTS. Pease agt. Blossom. for this court, and there is no special reason why it should, as where the party lives out of the county. Motion must be granted. THE PEOPLE ex rel. DANIEL GRIFFIN agt. THE JUDGES OF THE NEW-YORK COMMON PLEAS. Notice of motion for a mandamus, should not ask for costs. September Term, 1845. MOTION for a mandamus to the defendants. This motion was on affidavits and notice ; the notice asked for costs. After argument on the merits, it was denied ; and costs given against the relator, for the reason that he asked costs in his notice. A. THOMPSON, relator 's counsel. A. M. BURT, relator's attorney. WM. H. BELL, defendants' counsel. BELL & COE, defendants' attorney. WILLIAM PEASE agt. HIRAM S. BLOSSOM and LEE T. EOWLEY. The venue will be changed to the county whore it appears the cause of action arose and the witnesses are required, although the opposite party may swear to a greater number of witnesses to retain the venue. September Term, 1845. MOTION by defendants to change the venue. This was a motion by defendants to change the venue from the city and county of New-York to the county of Washing- ton, on eleven witnesses. The action was brought on a prom- issory note, and the cause of action arose in Washington NEW-YORK PRACTICE REPORTS. 223 Barnard agt. Darling. county. The defendants alleged that there was no consideration for *part of the amount of the note, [*223] and gave the facts and circumstances upon which they should rely to prove a failure of consideration, and for which they should want the witnesses. On the part of the plaintiff, it appeared that one John Abbott, of the city of New- York, was the real plaintiff in the cause ; that Pease was his agent, and took the note in his own name, but it was the property of Abbott ; that Pease had informed him, Abbott, that the facts and circumstances mentioned by defendants as having made a part of the consideration of the note, did not enter into the consideration, and formed no part thereof ; that issue was joined, and the cause noticed for trial at the New- York September circuit ; and if the venue should be changed, there would be no opportunity to try it before June next. Plaintiff Abbott swore to fourteen witnesses residing in New- York and Kings counties, as material for him on the trial, &c. 0. F. THOMPSON, defendants' counsel. J. .W. & 0. F. THOMPSON, defendants' attorneys. R. H. SHANNON, plaintiff's counsel and attorney. BEARDSLEY, Justice. Thought the motion should be granted. The cause of action arose in "Washington county, and the defendants allege a failure of part of the consideration of the note, and state that their witnesses will be necessary to prove that. I am unable to see the materiality of the wit- nesses on the part of the plaintiff, residing in New-York and Kings ; the note was given in Washington county, and it ap- pears that the proof required will be in "Washington county. Motion granted, and cause referred. FREDERICK J. BARNARD et al. agt. CHARLES A. DARLING. The affidavit of the amount due by the condition of a bond, on judgment by confession, need not be filed. 223 NEW-YORK PRACTICE REPORTS. Livingston agt. Hicks. A wrong indorsement on an execution is not ground for setting aside proceed- ings where the execution has been returned nuUa lona. September Term, 1845. MOTION by defendant to set aside judgment and execu- tion, &c. This was a judgment on bond and warrant of attorney : the motion was made on the ground, that no affidavit of amount due by the condition of the bond was filed, and that a wrong indorsement upon the execution was made, it being indorsed for a larger sum to be collected, than was due by the condition of the bond. It appeared that the execution was returned nulla bona. C. P. COLLIER, defendants counsel. COLLIER & ELMENDORF, defendant's attorneys. OTIS ALLEN, plaintiffs 1 counsel. ALLEN & HASTINGS, plaintiff's' attorneys. [*224] *BEARDSLEY, Justice. It is not necessary that the affidavit of the amount due by the condition of the bond, should be filed. The execution is returned nulla bona, and the wrong indorsement on it is not a sufficient ground to set aside the proceedings now. , , ; Motion denied with costs. MORTIMER LIVINGSTON et al. agt. GEORGE S. HICKS. A declaration in ejectment served with the ordinary notice to plead in twenty days after service is not sufficient. The statute must be strictly complied with in commencing actions of ejectment. The irregularity being a matter of substance, the objection of laches (one term having passed) will not lie. September Term, 1845. MOTION by defendant to set aside default and subsequent proceedings in action of ejectment, for irregularity. This motion was made upon the ground that no rule to plead NEW-YORK PRACTICE REPORTS. 224 Clark agt. Jewett. was entered or notice served that declaration would be filed, on a particular day in term and rule entered. t The notice indorsed on the declaration was the usual notice to plead in twenty days, after service, &c. T. SMITH, defendants counsel. SMITH & TAYLOR, defendants attorneys. A. TABER, plaintiffs' counsel. A. WAGER, plaintiffs' attorney. t Plaintiffs' counsel insisted that as the party had notice of the irregularity on the papers when declaration was served, April 5, 1845, he had been guilty of laches in not making his motion at June special term. BEARDSLEY, Justice. The statute prescribes the mode of commencing actions of ejectment, which has not been com- plied with. The defendant was not bound to presume plain- tiffs would go on and take judgment. The proceedings were clearly irregular and must be set aside with costs. Eule accordingly. EDWARD CLARK agt. JOHN JEWETT et al. Where a party makes a case and gives notice of argument before the circuit judge, but serves no copy case before argument, the opposite party appearing for the argument, and decision being made in his favor, no one appearing on behalf of the party moving, an appeal from the circuit judge subsequently, by the mov- ing party, will be set aside. September Term, 1845. MOTION by plaintiff to set aside defendants' appeal from circuit judge. The plaintiff moved on the ground that no copy case made by defendant was served before the day of argument, before the circuit judge, and that *no one appeared [*225] at the time of the argument on the part of the defend- ants, according to the notice. The plaintiff having taken judg- VOL. I. 21 225 NEW-YORK PRACTICE REPORTS. Dunham agt Van Arnum. ment by default on filing decision of circuit judge. The plain- tiff also gave notice that inasmuch as the object of this motion was to bring the cause to a close, the court would be asked that the costs of the motion abide the event of the suit. JOHN VAN BUREN, plaintiff's counsel. VAN BUREN & OSTRANDER, plaintiff" 1 s attorneys. A. CRIST, defendants' counsel and attorney. BEARDSLEY Justice. Granted the motion, without costs. ALBERT T. DUNHAM agt. JOHN VAN ARNUM. A defendant will be let in to plead and defend on terms, after judgment, where it appears he made a mistake in the number of days he had to plead in, he swearing to merits. September Term, 1845. MOTION by defendant to set aside default and subsequent proceedings. The defendant alleged that in consequence of the word " twenty" in the notice to plead, indorsed on the copy decla- ration served, being obliterated, he mistook it for " thirty," and supposed he had thirty days to plead, not being ac- quainted with the rules and practice of the court. It was his intention to defend the suit, being an action of assault and battery, wherein the plaintiff had executed a writ of inquiry by default, and perfected judgment for $500 damages, besides costs had employed an attorney, who had applied to plain- tiff's attorney to waive the default on payment of his taxable costs, and pleading issuably, which plaintiff's attorney de- clined doing on consulting his client, as he said the plaintiff was unwilling to open the default. Defendant swore to merits. Plaintiff showed, that his attorney saw defendant a few days after judgment, and defendant told him the reason he did not plead was, that he omitted to make a memorandum NE"W-YORS. PRACTICE REPORTS. 225 Lynes agt. Noble. of the time when the declaration was served on him ; he knew he had twenty days' time to plead, but thought only fifteen had expired. J. HOLMES, defendants counsel. C. E. MATHER, defendants attorney. H. L. PALMER, plaintiff's counsel and attorney. BEARDSLEY, Justice. Granted the motion, the defendant to plead issuably in five days and pay costs of default and subsequent proceedings including $7 cost of opposing motion within ten days after retaxation on notice. ^STEPHEN C. LYNES et al. agt. ALPHEUS NOBLE et al. [*226] An amendment to a bill of exceptions will be allowed on terms, where the cause has been submitted and decided : it appearing by such decision that the true state of the cause could not be ascertained by the bill of exceptions as submitted. September Term, 1845. MOTION by plaintiffs to vacate a rule denying a new trial in this cause and for leave to add the pleadings therein to the bill of exceptions. The circuit judge on the trial nonsuited the plaintiffs, they took exceptions, which were settled by agreement between the attorneys for the respective parties. At the last January term the cause was submitted, and a new trial denied : no opinion was given by the court, but the following indor ment was made upon the papers by Mr. Justice JEWETT, to wit, " It does not appear by the bill of exceptions what the issue was, nor what the parties tried," a similar entry was made in the rule denying a new trial. The plaintiff moved that the pleadings be added to the bill of exceptions, to remedy the defect. The defendant insisted that the pleadings never form any part of a bill of exceptions, but the objection should be s-> 226 NEW-YORK PRACTICE REPORTS. Platt agt. Burckle. stated and the exception so taken as to show what the ques- tion is, that the plaintiffs' course would be new practice, that it is too late after argument and decision ; when the bill of exceptions is sealed, both parties are concluded by it. (3 Dal- las, 38 ; Bui N. P. 316 ; Graham's Practice, 2d. ed. 328.) W. F. ALLEN, plaintiffs 1 counsel. E. H. MARTIN, plaintiffs 1 attorney. A. TABER, defendants' counsel. N. BENNETT, defendants' attorney. BEARDSLEY, Justice. Granted the motion on payment of costs of bill of exceptions and subsequent proceedings, and seven dollars costs of opposing motion. JAMES PLATT et al. agt. CHRISTIAN I. BURCKLE. THE COMMERCIAL BANK OF OSWEGO agt. THE SAME. A delay of five years in the collection or return of an execution by a sheriff who has levied upon personal property, and left it in possession of defendant, held fatal, on a motion for payment over of the proceeds of the same property, sold on an execution issued within a few months. Such a case is a proper one for a jury. /September Term, 1845. MOTION by plaintifls in the first cause for an order direct- ing the sheriff of Oswego, to pay over to them, on their ex- ecution, the moneys in his hands, collected in the second cause. Judgment in the first cause was docketed January [*227] 13, 1840, on bond and warrant of attorney. On *the 23d January, 1840, an execution was issued to the sheriff of Oswego county, who levied the same within a few days thereafter on defendant's personal property, and took a schedule, and informed plaintiff's attorney thereof, and also that the property was claimed by one Seitz on a mortgage. NEW-YORK PRACTICE REPORTS. 22 Y Young agt. Arndt. One Luce had previously levied on a portion of the same property, which was also claimed by Seitz ; a writ of replevin was brought by Seitz against Luce, for the property, which is yet undetermined ; which the sheriff gave as a reason why he left the property in the defendant's possession, supposing that when the replevin suit was decided, it would determine in whom the title of the property belonged. In June, 1845, one James Brown, who had become assignee of the plaintiff to the judgment in the second cause, issued an execution and levied upon a portion of the same property levied upon in the first execution, which was sold at sheriff's sale in July, 1845. The plaintiffs in the first cause elected to make an applica- tion to this court to have the proceeds applied on their execu- tion instead of seizing the property in the sheriff's hands and selling. It was admitted by the papers that the property had always remained in the possession and use of the defendant, and was fully denied by the plaintiffs in the first cause, and also the sheriff who levied their execution, that any instruc- tion or direction was given to delay the collection of the exe- cution, or any consent that the property might remain in pos- session of the defendant, either directly or indirectly. "W. F. ALLEN", counsel moving. DUER & BABCOCK, attorneys moving. M. T. REYNOLDS, counsel opposed. J. BROWN, attorney opposed. BEARDSLEY, Justice. Denied the motion on the ground that a delay of five years was too much ; it was a proper case, undoubtedly, for a jury. Motion denied, with costs. JOHN P. YOUNG agt. PETER ARNDT. An affidavit for motion to change the venue, should state that each and every of the witnesses are material, &c., and also that, without whose testimony and the testimony of each and every of them he cannot safely proceed, &c. 22*7 NEW-YORK PRACTICE REPORTS. Sabin agt. Ames. September Term, 1845. MOTION by defendant to change the venue. An objection was taken to the affidavit upon which defend- ant moved, that it was not repeated in the affidavit that " each, and every" of the witnesses were material to his defence, &c. That part of the affidavit to which objection was made, read as follows (after naming the witnesses), " are each and [*228] every of *them material witnesses for this deponent on the trial of said cause as he is advised by his said counsel, and believes, without whose testimony and the testi- mony of each of them he cannot safely proceed, &c." L. BENEDICT, JR., defendants counsel. H. K. & L. W. JEROME, defendants attorneys. M. T. REYNOLDS, plaintiff's counsel. SACIA & DAVIS, plaintiff's attorneys. Plaintiff 's counsel insisted that the affidavit should have read ; " without whose testimony and the testimony of each. and every of them, &c." 3 Wend., 19 Wend. BEARDSLEY, Justice. The affidavit does not seem to come within the rule, in that respect. Motion denied, with costs, without prejudice. TIMOTHY SABIN agt. WILLYS AMES. Where there is reason to believe there has been collusion on the part of a de- fendant to keep back important testimony of the plaintiff at the circuit, motion for judgment as in case oi nonsuit for not trying the cause, will be denied, with costs. September Term, 1845. MOTION by defendant for judgment as in case of nonsuit, after stipulation to try at the Delaware circuit. This was an action for libel, the letter containing the libel, was written by Ames, the defendant, in the name of the firm NEW-YOBK PRACTICE REPORTS. 228 Cluts. agt. Parker. of Ames & Eood, to one Gilbert ; the plaintiff procured a copy of the letter from Gilbert, and several weeks before the circuit subpoenaed Gilbert with a subpoena duces tecum to produce the original letter on the trial. Gilbert informed plaintiff that the letter had been delivered to defendant Ames. The plaintiff immediately notified defendant and his attorney to produce the letter on the trial, or that parol evidence would be given of its contents. Plaintiff then subpoenaed his witnesses and attended the circuit intending to try the cause. The defend- ant Ames, at the circuit, informed plaintiff that previous to his receiving notice to produce the letter on the trial, his part- ner Eood took the letter and refused to give it up to him, and that Eood was then in the city of New- York. P. CAGGER, defendant's counsel. HORACE DRESSER, defendant's attorney. E. W. PECKHAM, plaintiff 1 's counsel. BOWNE & CRIPPEN, plaintiff's attorneys. Plaintiff insisted that the change of possession of the origi- nal letter was a trick to avoid its production on the trial at the circuit, and in consequence thereof, it was too late for him to procure the testimony of Eood at the circuit, or his refusal to attend, so that parol evidence could be given of its contents. BEARDSLEY, Justice. Denied the motion, with costs, for that reason. *JOHN D. CLUTE agt. HIRAM PARKER. [*229] A motion made under the new rules, on an irregularity which occurred under the old ruleg, costs of the motion according to the old rules will be allowed. The 61st new rule does not apply in such a case. September Term, 1845. MOTION by defendant to set aside capias for irregularity. This was a motion to set aside the cauias issued in this cause 229 NEW-YORK PRACTICE REPORTS. McDowell agt. Appleby. on the ground that it was tested in the name of Samuel Nel- son, Esq., chief justice, the first Monday of May, 1845 ; where- as, at that time, Greene C. Bronson, Esq., was chief justice, L. BENEDICT, JR., defendant's counsel. T. J. GLOVER, defendants attorney. D. WRIGHT, plaintiff's counsel. G. A. HALSEY, plaintiff's attorney. It was objected by plaintiff's counsel, to payment of costs of this motion, that it was made since the new rules went into operation, and was made merely for the costs. It was answered that the writ was issued under the old rules ; and the error having occurred under them, they should govern as to costs : that the 61st new rule did not apply. BEARDSLEY, Justice. Decided that the old rules must con- trol the costs, and allowed the writ to be amended nunc pro tune, by inserting the name of the chief justice; the plaintiff to pay ten dollars costs of the motion. THOMAS MCDOWELL et al, plaintiffs in error agt. LEONARD APPLEBY, defendant in error. Am attorney has no lien for costs, for bringing a writ of error where, in the pro- gress of the writ of error, the plaintiffs in error settle the suit with the attorney for the defendant in error, and discharge the proceedings ; the attorney subse- quently goes on and enters judgment for costs on the writ of error, having had otice of the settlement at the time it was made. Judgment on the writ of er- ror will be set aside with costs. September Term, 1845. MOTION by defendant in error to set aside judgment and subsequent proceedings with costs. B. Manning, attorney for plaintiffs in error, brought a writ of error upon a judgment obtained against them in the supe- rior court of the city of New- York, on the 2d of October, 1843. On the 4th of December following, E. "W. Stoughton, attorney NEW-YORK PRACTICE REPORTS. 229 McDowell agt. Appleby. for defendant in error, received notice of the bringing the writ and filing the bond, &c., from Manning. On the 6th of the same December, McDowell paid the judgment upon which the writ of error was brought to Appleby, the defendant in error, and executed an agreement to pay all costs on the writ of er- ror ; and stipulated that no writ of error should thereafter be brought on the judgment, either by himself or the other plain- tiff in error. On the 29th of the same December, Hunt, the other plaintiff in error, who was surety *for [*230] McDowell on the bond upon which the judgment was obtained, gave his consent in writing to the settlement made by McDowell, and that no writ of error should thereaf- ter be brought on the judgment, and requested a discontinu- ance of this writ of error ; at the same time, Stoughton exe- cuted and delivered to him a satisfaction of the judgment against him and McDowell. On the 21st of the same Decen- ber, Stoughton served on Manning copies of the stipulation, and requested Manning to enter a rule to discontinue the suit on the writ of error, which Manning declined doing unless his costs were paid ; and Manning, on the llth of June, 1845, served on Appleby, defendant in error, a notice not to pay the costs to the plaintiff in error, as he had a lien thereon to the full amount. Manning went on and entered judgment on the writ of error in May, 1845, reversing the former judgment with costs. JOHN N. TAYLOR, defendant's counsel. E. W. STOUGHTON, defendants attorney. Gr. J. E. BOWDOIN, plaintiffs' counsel. E. MANNING, plaintiffs' attorney. Manning, attorney for plaintiffs, alleged that McDowell was insolvent, and that it was a collusion between plaintiffs in er- ror and Stoughton, to defraud him of his costs ; but insisted that their agreement to discontinue the writ of error did not render the transaction valid as against their attorney's claim ; that he had notified Stoughton he should disregard any settle- ment, unless his costs were paid. 230 NEW-YORK PRACTICE REPORTS. Albert! agt Peck. BEARDSLEY, Justice. The attorney had no lien for costs : he had nothing to have a lien upon ; there was no lien. The motion must be granted with costs. Eule accordingly. EDWIN E. ALBERTI et al agt. DANIEL E. PECK, Impleaded, &c. A proper affidavit of merits must be made for the motion, where defendant seeks to be relieved on terms from a default September Term, 1845. MOTION by defendant Peck, to set aside default and subse- quent proceedings for irregularity. The suit was brought 19th February, 1845, on an accept- ance, with notice that it was the sole cause of action. Plain- tiffs were non-residents. 8th of March, defendant served order requiring plaintiff to file security for costs, with stay of pro- ceedings ; and that defendant have thirty days from the receipt of notice of the filing security for costs, to plead. 26th of March, security for costs filed, and notice thereof mailed at New-York, directed to defendant's attorney, at Clarkson, Mon- roe county ; which defendant's attorney did not receive until 30th of April, by reason of his being absent from [*231] home. 3d of May, default was entered. Onthe*6th of May, plea was served without any affidavit of merits. On the 9th, an affidavit of merits was offered, which was refused by plaintiffs' attorney, unless the defendant would disclose the real defence by which he would abide. M. T. EEYNOLDS, defendant's counsel, S. B. JEWETT, defendants attorney. J. V. L. PRUYN, plaintiffs 1 counsel. T. SEDGWICK, plaintiffs' attorney. There was no affidavit of merits made for the motion, ac- companying the moving papers. Defendant relied upon the NEW-YORK PRACTICE REPORTS. 231 Medbury agt. The Butternuts and Sherbourne Turnpike Company. affidavit of merits made by the attorney, which was served with the plea. BEARDSLEY, Justice. Denied the motion, on the ground that there was not proper affidavit of merits, nor any excuse shown why one was not made by Peck, the defendant. The default was regular, and he would have let in the defendant, on terms, if proper affidavit had been made. Motion denied with costs. CHARLES MEDBURY agt. THE BUTTERNUTS AND SHERBOURNE TURNPIKE COMPANY. Costs of witnesses' fees attending the circuit in good faith, will be taxed and allowed notwithstanding the objection that they are interested as parties to the suit. Where a party moving for relaxation of costs, asks costs in his notice, he must pay costs for that reason. September Term, 1845. MOTION by plaintiff for retaxation of defendants' costs. This was a motion made in March last for a retaxation of defendants' bill of costs, and was referred back to the taxing officer to retax it as to witnesses' fees, and to report to the next special term. The objections were, that the persons charged as witnesses, were interested in the suit, being stock- holders of the turnpike company. It was answered that the witnesses were material and neces- sary, and attended the circuit in good faith, and would have been released on the trial if objection had been made to them on the -ground of interest. The affidavit of their attendance in good faith was produced to the taxing officer, who allowed the fees of all except one, $3.28, which was struck out for the reason that no affidavit of his travel and attendance was produced. The plaintiff in his original notice of motion asked for costs. 231 NEW-YORK PRACTICE REPORTS. Goodenow agt. Livingston. S. STEVENS, plaintiff ' counsel. H. 0. SOUTHWORTH, plaintiff's attorney. N. HILL, JR., defendants' counsel. H. BENNETT, defendants' attorney. BEARDSLEY, Justice. Ordered that $3.28 men- [*232] tioned in the report of *the taxing officer be stricken from the bill as originally taxed, and as the plaintiff in his notice of motion asked for costs, ordered that he pay seven dollars costs for opposing the motion. Rule accordingly. ABRAM GOODENOW agt. VAN YECHTEN LIVINGSTON et al TAXATION OF COSTS. On a motion to change the venue, where the usual rule is entered, denied : the costs of opposing the motion abides the event, and are taxable in the general costs of the cause. Witnesses' fees for attendance before a commissioner to take foreign testimony are not allowed ; the commissioner is not a court or officer within the mean- ing of the statute. Services rendered under the act of 1840, and not taxable under that act, may be allowed and taxed under the amendatory act of 1844, if the same services are provided for in the act of 1844, and the costs are taxed since the act of 1844 was passed. (See the following case appended in a note.) September Term, 1845. MOTION by defendants for retaxation of plaintiff's bill of costs. The bill of costs in this cause was taxed fey "William Sey- mour, Esq., supreme court commissioner, Binghamton, N. Y., on written objections made by defendants' attorneys to items marked and numbered on the copy bill. 1st. Copy narr for sheriff to return, . . . $1.25 2d. Counsel perusing and amending narr, (being special) 2.00 The suit was commenced by declaration in March, 1843, and was insisted it was therefore not taxable. 3d. Draft interrogatories under second order, . . $2.50 It was objected there was but one order. It was answered, that in consequence of defendants' attorneys not settling the NEW-YORK PRACTICE REPORTS. 232 Goodenow agt. Livingston. first interrogatories according to agreement, the foreign wit- nesses were procured at the circuit personally. Afterwards other witnesses were included in the commission, and other and different interrogatories prepared and settled. 4th. Copy int. to serve, $1. Do. to attach to commission, $1, $2.00 Same objections as last. 5th. Counsel perusing and amending 2d interrogatories, $2.00 It was objected that there was one charge in the bill for the same thing ; that only one could be allowed ; that there was but one set of interrogatories used, and only one commission issued. The answer same as in the 3d. 6th. Obtaining order and stipulation for 2d commission, $2.00 It was objected it was not taxable, and there was no such service rendered. Same answer as in 3d. * 7th. The whole costs of November circuit, 1844, (a few [*233] items were struck out by the taxing officer) $31.37 It was objected that they were not chargeable to defend- ants : the defendants were compelled to go to the circuit by plaintiffs, and the cause was not tried because plaintiff did not move it on, and the defendants subsequently moved for judg- ment as in case of nonsuit, which was granted, with leave to stipulate, &c. 8th. Clerk's fees entering default ..... $0.25 It was objected, if there was any such service it was irre- gular, and was opened. It was entered after plea served, and opened on motion without costs. 9th. Costs of defending motion to change venue . . $7.00 It was objected, that the motion was denied without costs. It was answered, that the rule merely said denied, without say- ing anything about costs ; that the costs abide the event. 10th. Attendance of fourwitnesses before commissioner two days each . . . $4.00 Travel of same in New- York sixty miles each . 9.60 $13.60 It was objected that the witnesses were examined on com- mission and of course could not have been examined in this state. There could be no charge for travel, and if there could 233 NEW-YORK PRACTICE REPORTS. Goodenow agt. Livingston. be, there would be no charge after the rates prescribed by the laws of this state. The papers showed that the commission was executed and the witnesses examined in the city of Troy (without mention- ing the state.) R. W. PECKHAM, defendants' counsel. MATTISON" & DOOLITTLE, defendants' attorneys. P. CAGGER, plaintiff's counsel. A. BIRDSALL, plaintiff's attorney. BEARDSLEY, Justice. Allowed all the items objected to, except Nos. 7, 8. and 10, which were stricken out under the objections. The 2d item, counsel perusing and amending narr, was allowed upon the former decisions of. this court (one of which is appended in a note). In No. 10, it was decided that witnesses attending before a commissioner to take foreign testimony could not be allowed fees, as the commissioner was not a court or officer within the meaning of the statute. Note. THOMPSON agt. CRIPPEN AND ANOTHER. Where a suit was commenced in 1843, and determined shortly previous to the amendatory act concerning costs, passed May 4, 1844 (Session Laws of 1844, p. 402) but the prevailing party did not tax his costs until after the act had taken effect ; held, that its provisions were to control the taxation, though items not allowed by the act of 1840 were thus rendered taxable [*234] *Cosis. This suit was commenced in 1843, and was determined in favor of the defendants a short time previous to the act of May 4th, 1844 (Sess. L. of 1844, p. 402,) but their costs were taxed afterwards. The bill contained a charge for " Counsel attending prepared to try," Ac., $3 ; which was objected to, but allowed by the taxing officer. J. W. Thompson, for the plaintiff, now moved for a relaxation, insisting that no counsel fee was allowable for a circuit at which the cause was not tried. He cited Iltick, agt. Whitney (4 Hill, 54.) N. Hill, Jr., for the defendants, relied upon the second section of the act of May 4th, 1844, which expressly allows a counsel fee for attending prepared to try, &c. He contended that as the taxation in the present case took place since the passage of the act mentioned, its provisions were applicable, notwithstanding the suit was determined before. NELSON, Chief Justice. Decided that the charge in question was taxable. Motion denied. NEW-YORK PRACTICE REPORTS. 234 Fish agt. Lyon. PHINEAS C. FISH agt. GEORGE LYON. A motion to amend declaration by changing the venue (where the action is local) will be granted on terms, after issue joined and there has been circuits passed at which the cause might have been tried. September Term, 1845. MOTION by plaintiff for leave to amend his declaration by changing the venue. This was a local action (assault and battery) which arose in the city and county of New- York. The plaintiff laid the venue in the county of Otsego. Plea general issue. B. W. PECKHAM, plaintiff's counsel. W. H. OLIN, plaintiff's attorney. N". HILL, JR., defendant's counsel. J. E. FLANAGAN, defendant's attorney. The plaintiff's attorney supposed the cause might be tried in Otsego county, and there being one important witness there, he laid his venue in that county, and expected that if defend- ant's attorney desired to change the venue, he would move for that purpose. And also supposed that he was bound to demur to the declaration, as it appeared upon its face, that the action was local. The plaintiff not having done either he concluded the defendant intended to take advantage of it, by nonsuit at the trial. Defendant insisted that the plaintiff kaew the action was local when he commenced it : he should have amended in twenty days. The defendant could not move to change venue in local action. The plaintiff should have moved in June, there had been three opportunities to try. BEARDSLEY, Justice. Granted the motion, as follows : de- fendant's plea to stand, but if he elect to withdraw it, he may do so and then plaintiff to pay costs of that plea, or he may plead any other or additional plea, on verifying the necessity of such plea to his defence by affidavit. Rule accordingly. 235 NEW-YORK PRACTICE REPORTS. Parce agt. Halbert. [*235] *ELBRIDGE Gr. COBB agt. THOMAS ROBINSON. Plaintifif 's attorney liable for costs, where the plaintiff is a non-resident and no security filed. September Term, 1845. MOTION by defendant for an attachment against plaintiff's attorney for non-payment of defendant's costs in this cause. This was an action commenced by bailable capias, for assault and battery on board of a vessel in 1844. The defendant was captain, and the plaintiff a seaman ; plaintiff was a resident of the state of Maine. An order was obtained that plaintiff file security for costs, which was served on plaintiff's attorney, and not complied with. At a special term of this court sub- sequently, an absolute order for security for costs was granted, of which a copy was served on plaintiff's attorney, and not complied with. At a subsequent special term defendant moved for judgment of non pros, which was granted, unless plaintiff filed security for costs in twenty days, and paid costs of mo- tion : the conditions of which plaintiff did not comply with, and judgment of non pros, was entered up ; costs taxed, served and demanded of plaintiff's attorney, who refused to pay. CYRUS P. SMITH, defendant's counsel and attorney. J. F. ROBINSON plaintiff's counsel and attorney. BEARDSLEY, Justice. Granted the motion that plaintiff's attorney pay defendant's cost on demand, or that an attach- ment issue. NATHAN PARCE agt. ENOS S. HALBERT, (late) sheriff of Che- nango county. An action brought against a sheriff, under sections 34, 35, 36 and 37, of title fifth, chapter 6, part 3 of the Revised Statutes, (being penalty for irregular sale NEW-YORK PRACTICE REPORTS. 235 Parce agt. Halbert. of real estate,) the declaration also combining counts for goods, wares and mer chandise and money counts, and the defendant obtains judgment for costs ; the plaintiff is liable to imprisonment on a ca. sa. upon the judgment September Term, 1845. MOTION by plaintiff to set aside ca. sa. for irregularity and to be discharged from imprisonment. The plaintiff moved on the ground that the ca. sa. purported to have been rendered in an action of assumpsit, and in an ac- tion founded upon contract, and therefore he was not liable to imprisonment. The plaintiff declared against the defendant, " that defendant was indebted to the said plaintiff in the sum of one thousand dollars, according to the provisions of sections 34, 35, 36 and 37 of title 5, chapter 6 and part 3 of the Eevised Statutes, &c.," together with a count for goods, wares and merchandise, and money counts. The defendant succeeded on the trial and obtained judgment for costs : upon which a ca. sa. was issued, and plaintiff imprisoned. The ca. sa. recited *the sections of the statute referred to, and [*236] also that the plaintiff on the trial introduced proof under that count, in the declaration, (being the penalty for irregular sale of real estate.) M. T. KEYNOLDS, plaintiff 's counsel. JOHN WAIT, plaintiffs attorney. D. WRIGHT, defendant's counsel. CHARLES A. THORP, defendant's attorney. BEARDSLEY, Justice. Decided the proceedings to be regular, and the plaintiff liable to imprisonment, under the sections of the statute upon which the action was brought. Motion de- nied with costs. VOL. I. 22 236 NEW-YORK PRACTICE REPORTS. Day agt. Beach. ELIJAH Y. DAY et al agt. EZRA BEACH, and another cause. An appeal from taxation of costs should be made before the costs, as taxed, are paid and settled. September Term, 1845. MOTION by plaintiffs' attorney for retaxation of costs in each cause. An agreement was made between the respective parties to settle these causes, and one of these conditions was to pay plain- tiffs' attorney his taxed costs therein. On the taxation before the taxing officer, it was objected that the costs of November cir- cuit, 1844, should not be allowed, for the reason that plaintiffs' attorney served his note of issue on the clerk too late, and the causes were put at the foot of the calendar and not reached. Plaintiffs' attorney answered the objection by showing that although such was the fact, the clerk had agreed to put the causes in their place on the calendar, and informed the circuit judge he should have done so, if he had not accidentally left the notes of issue where they were not discovered by his clerk, who made the calendar, until it was finished. The circuit judge on motion of defendant refused to strike the causes from the calendar ; and on plaintiffs' motion refused to put them in their proper place, according to the dates. The taxing officer struck out the costs of the November circuit. Plaintiffs' at- torney moved for a retaxation or to be allowed the costs of November circuit. The defendants showed that after the tax- ation they paid and settled t he costs, as taxed, with plaintiffs' attorney, and it was then understood that it was a full and final settlement between them. Plaintiffs' attorney at that time not having said anything about an appeal from the taxa- tion of the costs. P. CAGGER, plaintiffs' counsel J. B. LATHROP, plain tiffs' attorney. E. S. WARREN, defendants counsel and attorney. BEARDSLEY, Justice. Denied the motion on the ground that the costs were settled and paid previous to the appeal from taxation. NEW-YORK PRACTICE REPORTS. 23? Ballou agt. Vandemark. *THEODORE P. BALLOU agt. ORSON VANDEMARK, [*237] Impleaded, &c. A defendant in offering to pay oosts to have the privilege of pleading, must offer to pay all the costs plaintiff is entitled to. September Term, 1845. MOTION by defendant to require plaintiff to accept amended pleas served. Action brought on a promissory note, with notice it was the only cause of action, &c. Defendant served plea of non- assumpsit, verified by affidavit, and two special pleas in bar, concluding with a verification without any affidavit. The two last-mentioned pleas were returned by plaintiff's attorney for the reason they were not verified by affidavit, that they were true in substance and matter of fact. Afterwards, and after the time for pleading had expired, defendant's attorneys offered to serve amended pleas in bar as before, duly verified, which plaintiff 's attorney declined to receive unless his costs of pre- paring for trial were paid and defendant's attorneys should take short notice of trial. Defendant's attorneys agreed to accept the proposition but disagreed as to the amount of costs plaintiff's attorney was entitled to. Plaintiff's attorney claim- ing the costs of serving notice of trial and inquest, and proof of such service, subpoena and two subpoena tickets, copy plead- ings and brief, as having been performed before the offer of the amended pleas. Defendant's attorney offered to pay notice of trial and inquest only. P. CAGGER, defendant's counsel. SMITH & HOBBY, defendant's attorneys. E. "W. PECKHAM, plaintiff's counsel. E. J. KICHARDSON, plaintiff's attorney. BEARDSLEY, Justice. Ordered, that on payment of the costs of preparing for trial at the next Oneida circuit, includ- ing brief and copy pleadings and costs of opposing motion, 23Y NEW-YORK PRACTICE REPORTS. Goff agt. Anderson. the last pleas stand as well served as of this day, and the plain- tiffs notice of trial to stand as served, at his election, notice of such election to be given on the payment of the costs. AMAZIAH W. GOFF agt. PETER B. ANDERSON. The conditions of a rule for judgment as in case of nonsuit, unless the plaintiff stipulate and pay costs, &c., should be strictly complied with by plaintiff with- in twenty days : he can be relieved afterwards, only on terms. September Term, 1845. MOTION by plaintiff to set aside judgment entered by de- fendant for judgment as in case of nonsuit. A motion was made by defendant and an order obtained at special term for judgment as in case of nonsuit unless plaintiff stipulated and paid costs. The costs were noticed for taxa- tion and taxed on the last day for complying with the rule, (twenty days) both parties by their attorneys appeared on the taxation. The next day after taxation, the defend- [*238] ant's attorneys had the general costs *of the cause taxed, and judgment as in case of nonsuit perfected. The plaintiff had not then offered to pay the interlocutory costs, nor stipulated to try, or given notice of appeal from taxation. On the same day of entering judgment, and in the evening after the same had been entered at noon, plaintiff served notice of motion for retaxation of the interlocutory costs, without any stay of proceedings; about a week after- wards an order to stay was served. Plaintiff alleged he in- tended in good faith to try the cause. N. F. WARING, plaintiff 's counsel and attorney. N. HILL, JR., defendant's counsel. GREENE & COOPER, defendants attorneys. BEARDSLEY, Justice. Granted the motion on payment of seven dollars costs of opposing. NEW-YORK PRACTICE REPORTS. 288 Chamberlain agt. Gurney. JOHN BAKER, JR. agt. GEORGE MOUNT. Proceedings on a judgment and execution will be perpetually stayed, against a defendant, who has been discharged from the debt under the bankrupt law. September Term, 1845. MOTION by defendant to stay perpetually all proceedings on the judgment and execution in this cause. On the 19th October, 1842, defendant presented his petition as a bankrupt, and was discharged on the 20th February, 1843. The judgment in this cause was obtained against him previous to his discharge, and was included in his petition as a debt owing by him at the time of presenting his petition. The plaintiff issued an execution upon the judgment, last July, which was levied upon defendant's personal property N". HILL, JR., defendant's counsel J. T. HUDSON, defendants attorney. R. W. PECKHAM, plaintiff's counsel. F. S. KINNEY, plaintiff's attorney. BEARDSLEY, Justice. Ordered that all proceedings on the judgment and execution be perpetually stayed, so far as it re- lated to all of defendant's personal property, and also as to all real estate acquired by him, since the presentation of his peti- tion for a discharge under the bankrupt law. ELIJAH CHAMBERLAIN et al agt. ABRAHAM G-. GURNEY et al. Execution will be perpetually stayed, on motion, where defendant has been dis- charged from the debt under the bankrupt law. September Term, 1845. MOTION by defendant Abraham G. Gurney, for a perpetual stay of execution. The defendant Abraham G. Gurney, was discharged under 239 NEW-YORK PRACTICE REPORTS. Carter agt. Goodrich. the bankrupt law, after the judgment in this cause [*239] was obtained ; the plaintiffs *were notified of his pro- ceedings at the time. In August last, (after his dis- charge,) an execution was issued and levied upon his personal property, acquired after his discharge. The plaintiff's attorney stated that he had no notice at the time of issuing the execu- tion, that Abraham G. Gurney had been discharged. P. CAGGER, defendants' counsel* TALLMAN & DEAN, defendants 1 attorneys. S. STEVENS, plaintiffs' counsel. "WM. MULOCK, plaintiffs' attorney. BEARDSLET, Justice. Granted the motion on payment of costs of opposing. JOHN B. CARTER agt. FRANCIS GOODRICH. A defendant will be allowed to plead his bankrupt discharge, on terms, after de- fault, where he delayed to plead it previous to default September Term, 1845. MOTION by defendant to set aside default and for permission to plead his bankrupt discharge. This was an action of debt on judgment, commenced after defendant had filed his petition and pending the proceedings for his discharge. Defendant's attorneys served on plaintiff's attorney a notice, that in case defendant's default was entered, a motion would be made on the defendant obtaining his dis- charge, to open the default and set aside all subsequent pro- ceedings on the part of the plaintiff therein ; this notice was served on the 23d of September, 1843, Defendant got his dis- charge on the 14th of December, 1844 ; his default was en- tered on the 3d of March, 1845, and notice of assessment of damages served for 26th April, 1845. P. CAGGER, defendant's counsel. BENEDICT & BOARDMAN, defendants attorneys. NEW-YORK PRACTICE REPORTS. 239 Johnson agt. Davis. H. HARRIS, plaintiffs counsel. K SAYRE, plaintiff's attorney. Plaintiff insisted that defendant having obtained his dis- charge more than two months previous to the default, he should have pleaded it. BEARDSLEY, Justice. Granted the motion on payment of the costs of default and subsequent proceedings, and costs of opposing the motion. NAPOLEON B. JOHNSON agt. HIRAM DAVIS, Impleaded, &c. An affidavit for the purpose of moving for judgment, as in case of nonsuit, should state where the venue is laid, that the cause was noticed for trial, or that it was not noticed, and that a circuit was held at which it might have been tried. September Term, 1845. MOTION by defendant Davis, for judgment as in case of non- suit The affidavit upon which the defendant moved, did not state where the venue *was laid, nor that it had [*240] been noticed for trial, nor that any circuit had been held at which it might have been tried. E. W. PECKHAM, defendant's counsel. JOHN CLARK, defendant's attorney. J. H. COLLIER, plaintiff's counsel. G. M. BUCKLIN, plaintiff's attorney. BEARDSLEY, Justice. Denied the motion with costs, on the ground of the defects in the affidavit. 240 NEW-YORK PRACTICE REPORTS. Wright agt. Forbes. JAMES WRIGHT agt. ENOCH FORBES. An objection to receiving a plea and notice should be immediately communicated to the opposing attorney, after it is received, or should be returned immediately ; a delay of two months without any objection being made will be constructed as an acceptance. September Term, 1845. MOTION by defendant requiring plaintiff's attorney to accept amended plea and notice. The last day for pleading expired on the 1st of May, under an order procured by defendant extending the time to plead, and for a bill of particulars from plaintiff. Plaintiff served bill of particulars on the 37th of April. Defendant's attorney had not time to advise with his client, (who was then absent,) nor time to procure another order extending time to plead ; he, however, drew up a plea and notice according to the knowledge of the facts in the case which, he possessed, and served them on the last day for pleading ; subsequently on ad- vising with his client, he discovered a necessity for amending his plea and notice, he thereupon prepared an amended plea and notice, and sent it to plaintiff's attorney, on the 31st May, with a request that he would waive any irregularity and re- ceive it, and that if he had any objections to doing so would write him before taking any farther steps. Defendant's attor- ney received no communication from plaintiff 's attorney on the subject until the 14th of August thereafter, when he was served with notice of trial and inquest, with a note accompany- ing it, that plaintiff's attorney could not accept the last plea and notice sent him. A. TABER, defendants counsel M. TAGGART, defendants attorney. J. H. COLLIER, plaintiff's counsel. N. FOOTE, plaintiff's attorney. BEARDSLEY, Justice. Granted the motion with costs, on the ground that plaintiff 's attorney did not inform defendant's at- NEW-YORK PRACTICE REPORTS. 240 The People agt. Stevens. torney, that he had objections to receiving the amended plea and notice, until more than two months after he had received it, and in the meantime retained it. *THE PEOPLE agt. NORMAN D. STEVENS, Adm'r, et al. [*241] A motion to quash an appeal, from the decision of a circuit judge for defects in the appeal bond, should show upon the papers the defects and particularly pecify the objections relied on. September Term, 1845. MOTION by plaintiffs to quash appeal from the decision of circuit judge. THE SAME agt THE SAME. MOTION by plaintiffs for general costs in the cause. The plaintiffs' counsel stated that he moved in the first cause to quash the appeal, upon the ground that the bond given was defective, and not according to the statute ; the penalty was $150, the statute required it to be in the penalty of $200. Defendants' counsel objected to the motion for the reason that it was not specified in the moving papers, or notice of motion, what the objection was, on which plaintiff relied, and died 1 Hill, 216. The motion in the second cause followed the decision in the first. If there was no appeal, then it was insisted plaintiffs were entitled to costs. J. NEWLAND, plaintiffs' counsel. R. B. MONELL, plaintiffs' attorney. J. H. COLLIER, defendants' counsel. W. M. PATTERSON, defendants' 1 attorney. BEARDSLEY, Justice. Denied the first motion without costs, and without prejudice, with leave to defendant to amend his bond within twenty days. The second was denied without costs and without prejudice. 241 NEW-YORK PRACTICE REPORTS. Smith agt. Hunt. , In the first case it was held that the moving papers should specify the objections relied on, and inasmuch as the first mo- tion was irregular, and the second regular, the judge balanced the decisions as stated. WILLIAM SMITH agt. ASA HUNT, JR. "Where plaintiff directed a deputy sheriff to settle an execution with defendant, by taking certain property, if he could not do any better, and saying to him, " I submit all to your judgment and management, and will abide by what you do, only do not let them deceive you," and afterwards moved to set aside the return of satisfaction on the execution, on the ground of collusion between the deputy sheriff and defendant, and that the property was valueless : Held, that the deputy sheriff had authority, and in the absence of fraud shown, the settle- ment was valid. September Term, 1845. MOTION by plaintiff to set aside return of satisfaction on fi. fa., and for leave to issue another. The judgment in this cause was obtained against defendant in September, 1844, for $212.47. Plaintiff resided at Water- town, Jefferson county ; the defendant at Gouverneur, in the same county, about thirty miles distant. Execution was issued and put into the hands of Josiah Waid, deputy sheriff, [*242] residing at Gouverneur. In November *following, one Khoades called upon plaintiff and represented to him that Hunt, the defendant, was probably insolvent ; that Hunt owned a lot of land near Gouverneur (about six or seven miles distant), of about fifty-four acres, which he would prob- ably give in payment of the judgment, and advised plaintiff to take it. Plaintiff, being ignorant of the state of his affairs, and being personally acquainted with Waid, the deputy sher- iff, wrote a letter to Waid, giving him the information in sub- stance he had received from Rhoades, and requested he would take the land (if he could not do any better), at the appraisal of Messrs. Dodge and Anthony, and closed by saying, " I sub- mit all to your judgment and management^ and will abide by NEW-YORK PRACTICE REPORTS. 242 Smith agt. Hunt. what you do, only do not let them deceive you." Dodge and Anthony declined being appraisers ; Waid and the defendant Hunt then agreed upon John Bolton and Peleg Chamberlain, who appraised the land at $4.62f per acre. Waid declined to receive it at that price, and Hunt agreed to reduce it to $4 per acre. Waid accepted the land at that price, took a deed of it for plaintiff, discharged the execution, and so informed plaintiff. Plaintiff afterwards learned from reports that it was doubtful whether the land was of any value, more than merely nominal, and procured an investigation by individuals, who stated that they considered the land valueless, except a nomi- nal value. The defendant showed that land in the vicinity was sold and valued from four to six dollars per acre ; that the ap- praisers were fair men, and understood the valuation of prop- erty in that neighborhood, one of them having been an asses- sor for the town. K. W. PECKHAM, plaintiff's counsel, JOHN CLARKE, plaintiff's attorney. J. H. COLLIER, defendant's counsel. CHARLES ANTHONY, defendant's attorney. Plaintiff insisted that there was collusion between Waid, the deputy sheriff, and Hunt, the defendant, to have the property satisfy the judgment ; that Ehoades, the man who called on plaintiff first in relation to it, was sent there by Waid and Hunt for that purpose, and denied that Waid had sufficient authority from plaintiff to bind him to the arrangement made. Defendant insisted that Waid had full authority from the letter written by plaintiff to him, to make the arrangement, and that it was done in good faith. BEARDSLEY, Justice. Held, that Waid's authority was suf- ficient to settle the judgment in that way, and there was noth- ing appeared in the papers to show fraud in the transaction. Motion denied, with costs. 243 NEW-YORK PRACTICE REPORTS. The People agt. Crosby. [*243] *THE PEOPLE ex rel GEORGE GEORNER, JR. agt. ELISHA 0. CROSBY, one of the attorneys, &c. Where an attorney of this court collected several demands before a justice of the peace, each demand being less than $50, and on motion for an attachment to compel the attorney to pay over about $140, claimed to be due from the ' demands thus collected by him : Jidd, that the separate demands being less than $50, this court had not jurisdiction. September Term, 1845. MOTION for attachment. This was a motion by relator for an attachment to issue against the defendant, as an attorney of this court, for not paying over moneys alleged to have been collected by him for relator after demand made. It appeared that the demands left with the defendant by the relator for collection, were small, and were sued before a justice of the peace ; no one of them exceeded $50 ; the relator claimed about $140 due him from defendant. The defendant showed that when he collected money for relator from the demands left with him, he also paid out the amount in settling bills against the relator, which relator had given defendant authority and requested him to do, as relator had left the place where he had been doing business, and was then engaged in business in another part of the state. J. H. COLLIER, relator j s counsel. THURSTON & WISNER, relator 's attorneys. S. STEVENS, defendant's counsel. E. O. CROSBY, attorney in person. BEARDSLEY, Justice. Without going fully into the merits of the case, denied the motien with costs, on the ground that the demands separately, being under $50, this court had not jurisdiction, although in the aggregate they may have ex- ceeded that sum. NEW-YORK PEACTICE REPORTS. 243 Stillman agt. "Whitney. ROBINS STILLMAN agt. JOSEPH L. WHITNEY, administrator, &c. Plaintiff's attorney cannot disregard a plea and notice which is defective, after he has admitted service of it for a week or more, although he told defendant's attorney at the tune it was served he thought it bad : he should have imme- diately returned it, or given notice it would be disregarded. i September Term, 1845. MOTION to set aside default and subsequent proceedings for irregularity with costs. The time to plead expired on the 7th May. Defendant sent a plea and notice to an individual residing at the same place with plaintiff's attorney two days previous to the 7th, but in consequence of the individual being absent from home it was not served until the 10th May. Default was entered on the 7th. Defendant's attorney then called on plaintiff's attorney and requested him to waive the default and receive the plea and notice on payment of costs ; which plaintiff's attorney *agreed to. The amount of costs was paid, [*244j and plaintiff's attorney signed a stipulation by which he agreed to open and set aside the default and subsequent proceedings, and give defendant two days to plead ; defend- ant's attorney in the meantime got the original plea and notice he had before sent, and served it on plaintiff's attorney, and requested him to admit service ; plaintiff's attorney hesitated for the reason that the plea was not sworn to, but an affidavit accompanied the notice, that it was true in substance and mat- ter of fact. Defendant's attorney also served a general affida- vit of merits, and told plaintiff's attorney he thought it would be his duty to return the plea and notice immediately, if he had any objection to it. Plaintiff's attorney, finally duly ad- mitted service of the plea and notice on the 24th May. De- fendant's attorney heard nothing farther from plaintiff's attorney until the 31st May, when he told defendant's attor- ney he had treated his plea and notice as a nullity, and had on the 29th May entered defendant's default again. 244 NEW-YORK PRACTICE REPORTS. Smith agt Bradley. "W. BROOKS, defendants counsel and attorney. A . B. HAMILTON, plaintiffs counsel and attorney. BEARDSLEY, Justice. Granted the motion on the ground, that plaintiff's attorney had admitted the service of the plea, and did not return it, although he had informed defendant's attorney, when it was served, he thought it bad, but gave him no notice that he should disregard it until he had entered his default some six or seven days afterwards. Motion granted, costs to abide the event. ERASTUS SMITH agt. ORRIN BRADLEY. A declaration should conform strictly to the ac etiam clause of the capias. September Term, 1845. MOTION to set aside declaration and subsequent proceedings for irregularity. This suit was commenced by capias ; the ac etiam clause was trespass. The plaintiff in his declaration declared in tres- pass on the case. The action, was an action on the case, for the seduction of the plaintiff's daughter. Plaintiff 's attorney supposed that by omitting to state in the ac etiam of the writ, that the action was intended to be trespass, and by not alleg- ing the acts to have been done " vi et armis" or " contra pa- cem" that both the form and substance of the writ would be in an action on the case, and not in trespass ; and that the declaration might be drawn accordingly, he intended to in- clude in the declaration the identical cause of action set forth in the writ and no other. After the motion papers were served, plaintiff's attorney offered to pay defendant's attorney costs of preparing [*245] for the motion, if he would *permit him to amend the ac etiam clause of the capias to conform to the declaration. Defendant's attorney declined to do it, and in- sisted plaintiff's attorney should discontinue the suit. NEW-YORK PRACTICE REPORTS. 245 Bliss agt. Treadway. P. CAGGER, defendant 's counsel. E. G. LAPHAM, defendant's attorney. S. STEVENS, plaintiff's counsel. S. Y. E. MALLORY, plaintiffs attorney. BEARDSLEY, Justice. Granted the motion, unless the plain- tiff amend his declaration in twenty days, by declaring in tres- pass, and that plaintiff pay costs of the motion. LUTHER BLISS agt. HOSEA TREADWAY, Impleaded, &c. Diligence is required of a defendant who moves to be let in to defend on the merits a delay of two years is too much. September Term, 1845. MOTION by defendant to set aside default and subsequent proceedings, and for leave to be let in to defend. The declaration in this cause was drawn by the name of Horace Treadway instead of Hosea Treadway. It was served on Hosea Treadway, as one of the firm of H. & T. J. Tread- way, in December, 1842, and also served on Thomas J. Tread- way, the other member of the firm. Hosea Treadway did not plead in the suit, for the reason that he supposed a declaration served on him by the name of Horace Treadway, and judg- ment obtained thereon, would not bind his property. He al- leged that the note upon which the suit was brought, was in- dorsed in the name of the firm by his partner, without his knowledge, and for the sole benefit of one Joseph "Weed, the maker, and swore to merits generally. He first learned in July last, that the property of the firm of H. & T. J. Treadway had been levied on and advertised for sale. E. PEARSON, defendants counsel. G. E. ANDREWS, defendants attorney. P. CAGGER, plaintiff's counsel. C. L. TRACY, plaintiff's attorney. BEARDSLEY, Justice. Denied the motion with costs, on the ground of delay. 245 NEW-YORK PRACTICE REPORTS. Doty agt. Brown. WILLIAM E. DOTY agt. EOSWELL S. BROWN. A new or additional bond for security for costs in an action of replevin, will not be allowed where it appears the bond required by statute has been given, al- though the costs already incurred, exceed the penalty of the replevin bond. September Term, 1845. MOTION by defendant that plaintiff give a bond with sureties in the penal sum of $200, conditioned to pay all costs which should be adjudged against him on his motion for a new trial. This was an action of replevin, tried at Chenango [*246] circuit, in August last ; the jury found for the *de- fendant, and assessed the value of the property re- plevied at $150, and the damages for detention at $16.62. The defendant was sued as a public officer, of which fact the circuit judge gave a certificate. The replevin bond executed to the sheriff was in the penalty of $300. Defendant's attorney stated that the taxable costs already amounted to over $150. On the 9th August, an order was obtained by plaintiff from circuit judge, which granted ninety days to make a bill of exceptions, and the same time to pro- pose amendments, and that the cause be carried directly to this court, without being first argued before the circuit judge. J. H. COLLIER, defendant's counsel. E. BALCOM, defendant 's attorney. P. CAGGER, plaintiff's counsel. DANIEL GRAY, plaintiff's attorney. BEARDSLEY, Justice. Denied the motion with costs, on the ground that the plaintiff had already given the bond which the statute required ; if it did not secure defendant's costs, it must be his misfortune. NEW-YORK PRACTICE REPORTS. 246 Arnold agt. Thomas. OLIVER ARNOLD agt. BENJAMIN THOMAS. An affidavit to hold to bail in an action of trover, should state facts which show a conversion. But an affidavit to hold to bail in an action of trover is not necessary ; the plain- tiff can hold to bail of course, and defendant must apply to mitigate the amount or discharge on common baiL September Term, 1845. MOTION by defendant to vacate an order to hold bail. This was an action of trover ; the affidavit to hold defend- ant to bail, is as follows : (title of the cause,) " Cortland county, ss. Oliver Arnold of Homer, being duly sworn, says, that Benjamin Thomas, the above named defendant, has posses- sed himself of divers goods, wares and chattels of the deponent, of the value of five hundred dollars, which he has refused to deliver to this deponent, and has converted the same to his own use." Upon this affidavit, the defendant was held to bail by a su- preme court commissioner. M. T. REYNOLDS, defendant's counsel. J. H. THOMAS, defendants attorney. S. STEVENS, plaintiffs counsel. I. A. GATES, plaintiff 's attorney. It was insisted by defendant, that the affidavit was insuffi- cient, for the reason that theyocte stated in it did not show a conversion ; the defendant might have hired the property from plaintiff. BEARDSLEY, Justice. Held the affidavit insufficient, for the reason mentioned, and decided that no order was ne- cessary ; that plaintiff could hold to bail of course, and de- fendant must apply to mitigate the amount or discharge on common bail. Order to hold bail vacated, without costs. YOL. I. 23 247 NEW-YORK PRACTICE REPORTS. Tomlinson agt. Willey. [*247] *JOHN H. TOMLINSON et al agt. ETHAN A. WILLEY, JR. et al. There can be no recovery under the money counts against a surety where his character appears on the face of the note. The surety must be declared against specially. (See decision at May term, 1845, in the case of Sutler agt. Sawson, impkaded with Butler.) September Term, 1845. MOTION by plaintiff to be allowed to amend the declaration in this cause by adding to the common money counts, a special count upon the note, a copy of which was subjoined to the declaration. This suit was commenced by declaration, containing the common money counts, with copy note subjoined, signed " Ethan A. Willey, Jr.," " B. B. Willey for security," with a notice that it was the only cause of action ; declaration served on both defendants. B. B. Willey appeared by at- torney and pleaded. After plaintiff's attorney had received the plea, he learned for the first time, that this court in May term last, made a decision to the effect, that there can be no recovery under the money counts against a surety, where his character appears on the face of the note, that in such case it is necessary to declare specially. S. WILKESON, JR., plaintiffs 1 counsel. D. C. LE ROY, plaintiffs' attorney. N. HILL, JR., defendants' counsel. P. Gr. CLARK, defendants' attorney. BEARDSLEY, Justice. Granted the motion, on payment of defendants' costs and seven dollars costs of opposing the motion. NEW-YORK PRACTICE REPORTS. 247 Lansing agt. Mickles. THE PEOPLE ex. rel HORATIO G. ONDERDONK agt. EGBERT W. MOTT. A director or corporator has a right at all reasonable times, to examine the books, records and papers of the company. September Term, 1845. MOTION for a mandamus, on notice. This was a motion by relator, for a mandamus to the de- fendant as secretary of the North Hempstead and Flushing Turnpike Road and Bridge Company, to require him to ex- hibit to the relator, the books and papers belonging to the company. The relator was a director of the company, and on the 14th June last, demanded by notice in writing and person- ally, of defendant an examination of certain books and papers belonging to the company, which defendant refused, by reply- ing he preferred not to do so at present, he thought he had good reasons for refusing. On further request of relator, de- fendant said he would see the president of the company and confer with him, and produce the books and papers on the following Thursday, at a meeting of the board of directors, until which time, he gave relator distinctly to understand they could not be seen, and he would not exhibit them. *M. T. REYNOLDS, relator's counsel [*248] H. G. ONDERDONK, attorney in person. D. GRAHAM, JR., defendants counsel R. W. MOTT, attorney in person. BEARDSLEY, Justice. Decided, that^a director, or a corpor- ator, had a right at all reasonable times, to examine the books, records and papers of the company. Mandamus granted. JACOB S. LANSING agt. PHILO MICKLES. An affidavit on which a motion is founded for a commission, should state that the witness is material, as he is advised by his counsel, after stating his case, .; 191, 212, 218 Affidavit on appeal from taxation of costs 195 Affidavit on motion for judgment as in case of nonsuit 239 Papers on appeal from circuit judge 241 Affidavit to hold to bail 246, 251 Affidavit for commission 248 DECLARATION. Must be served, before the actual adjournment of court, under a rule to declare 103 To amend, by striking out president's name and title 115 To set aside for irregularity 192, 221, 244 To strike out the name of one of plaintiffs in action of ejectment. . 194 To amend by changing venue 5, 234 To amend, &c. (see Amendment) Should conform strictly to the ac etiam clause of the capias 244 DELAY. In setting aside default and subsequent proceedings 63, 245 In moving to change venue 54, 55, 97 In moving to amend plea 93 In moving to compel payment of costs 105 In moving to set aside writ of error 107 In moving to set aside judgment as in case of nonsuit 120 "Will not be regarded where irregularity is a matter of substance 139, 143, 224 In moving to set aside judgment for irregularity merely 142 In proceeding to collect execution 226 DEMURRER. To set aside joinder in, &c 67 DISCONTINUANCE, to discontinue suit 12 For judgment of, &c 48 For leave to discontinue without costs 122 E [JECTMENT. Landlord has a right to defend in name of tenant 94 An attorney commencing must first get a written authority 194 The statute regulating the commencement of does not apply to corporation 214 the statute must be complied with strictly in commencing action of 224 ELECTIONS. In regard to holding court on election days 163 NEW-YORK PRACTICE REPORTS. 259 Index. PAGE EXECUTION. To vacate 10 To set aside, &c 21, 123 To set aside for irregularity 28, 44, 71, 127, 198, 202, 223 For a perpetual stay, &c 56, 119, 181, 238 For leave to issue a new ca. sa. or fi. fa 117 For an order, to collect moneys of co-defendant 158 "Wrong indorsement on 223 Delay in collecting 226 To set aside return on and for leave to issue another EXECUTOR. Proceedings against as an abscondiang or concealed debtor Moneys received as executor must first be paid EIGNED ISSUE. On motion to set aside judgment for usury and duress . 202 I NQUEST. To set aside, &c 23 To set aside 26, 40, 45, 62, 206 To set aside for irregularity 68, 106, 201 IRREGULARITY. In entering default, &c 5, 50, 152 In holding defendant to bail 8 For not assigning errors and in entering judgment of non pros. ... 49 In entering default for not replying 66 In moving for judgment as in case of nonsuit 39 In not calling plaintiff on return of a jury in action of replevin. . . 72 In assessment of damages 99 In entering judgment 139 In moving for, merely 142 In suing bail to sheriff i 154 Teste of a writ in the name of Greene C. Bronson, January, 1845, is amenable 167 In service of a writ of nuisance . 222 J UDGMENT. To discharge, &c 10 To vacate rule setting aside judgment of non pros 12 260 NEW-YORK PRACTICE REPORTS. _-^ Index. PAGE JUDGMENT- As in case of nonsuit after stipulation 20, 51, 64, 228 As in case of nonsuit. .10, 23, 40, 42, 33, 56, 64, 69, 71, 82, 88, 90, 92, 95, 102, 103, 118, 131, 132, 169, 172, 173, 184, 193, 252 For costs against plaintiff to set aside, &c 46 To set aside, and execution 46, 123, 149, 202 Of non pros, for 48, 79 Of non pros. &c., to set aside 49 For an order to transfer 60 To set aside 99, 120, 128, 166, 237 To set aside, for irregularity 110, 139, 142, 144, 175, 202, 223, 229, 249 Allowed to enter, as of next succeeding term after death of de- fendant 140 To set off, &c 157 LANDLORD AND TENANT. Landlord has a right to defend hi the name of the tenant in an action of ejectment 94 For payment over from sheriff to landlord question of levy 220 I ANDAMUS. For a peremptory 75, 77, 80, 106, 114, 196, 247 Alternative 109, 111, 114, 116, 160, 163, 200 Notice of motion for, should not ask for costs 222 RDERS. To vacate of supreme court com'r 7, 66 to stay proceedings beyond time for noticing, &c 102 Of recorder enlarging time, &c 102 Circuit judge has no jurisdiction to grant in certain cases during session of supreme court 117 To vacate of circuit judge 117, 147, 194 NEW-YORK PRACTICE REPORTS. 260 Index. PAGE A ERPETUAL STAY OF PROCEEDINGS. On the part of plaintiff 7 On the part of defendant 7 On execution, &c 56, 96, 119, 181, 238 Until security for costs are filed 100 Until cause is decided in court of errors 177 PLEAS. To set aside amended and joinder in demurrer for irregularity. . . 67 For leave to amend, &c 93, 169 Original affidavit accompanying, must be served 73, 106 In bankruptcy, notice to reply necessary 131 To strike out as false 162 Evidence of fraud in discharge in bankruptcy, cannot be given un- der a notice, it should be pleaded specially 169 To require plaintiff to accept 237, /V) PRACTICE. Defendant has double time, after admission of service made through the post-office o Costs ordered to be paid by rule as conditions, need not be person ally demanded 9 In relation to opening defaults during term i7 Defendant moving for judgment of nonsuit or non pros, whert plaintiff has not filed security for costs, under an alternative order, held irregular, should first move for an absolute order. 39 "Where defendant asks costs on motion to change venue, he must pay costs 4] * In an action against three defendants, and the suit was severed as to two, and judgment entered : the third pleaded, and subse- quently moved for judgment as in case of nonsuit, with his papers entitled with all three defendants : held, that the pa- pers were entitled wrong. The defendant moving, should have moved alone 64 An original affidavit to a plea must be served, a copy will not answer 73, 106 The advice of an attorney is not the advice of counsel within the meaning of the rule 74 Substitution of attorneys should be entered and notice given 90 A motion denied with costs, is conclusive against another motion on the merits 108 An alternative writ of mandamus cannot be served in vacation. . . 114 "Where parties and attorneys all reside in the city of New- York, mo- tion for judgment as in case of nonsuit may be made before circuit judge under laws of 1841. It also may be made at special term 118 A motion denied, cannot again be renewed without first obtain- ing leave 164 261 NEW-YORK PRACTICE REPORTS. Index. PAGE PRACTICE. No notice of signing and filing report of referees is necessary to be given to opposite party 156 Counsel must be in attendance upon the term, and watch their motion, otherwise a default taken against them will not be opened 112 A party may stipulate a second time as a matter of course where the first has been performed 173 Where both parties recover a portion of the property hi action of replevin both are entitled to costs 174 A notice of motion cannot be in the alternative 191 Two sureties (without the principal) held sufficient in a bond for security for costs 191 A defendant cannot appear and plead as a matter of course, not having been served with process 201 The affidavit of amount due by the condition of bond on judgment entered on bond and warrant of attorney need not be filed. . 223 An irregularity occurring under the old rules, and motion made since the adoption of the new rules, the old rules govern as to costs of motion 229 A declaration should conform strictly to the ac etiam clause of the capias 244 Recovery against a surety cannot be had under the money counts where his character of surety appears on the face of the note, a special count is necessary 247 A director or corporator has a right at all reasonable times, to ex- amine the books, records and papers of the company 247 Defendant may have leave to renew motion to change venue, where he is answered that a default has been entered 248 A foreign corporation cannot be sued by original writ of summons, only by attachment 250 PRECEPT. To collect costs specified in the rulo, issues under the statute without motion 89 To set aside for irregularity, not allowed $1 costs for issuing 192 R EFERENCE. Will be denied where it appears substantial questions of law will arise 168 REPLEVIN. To set writ of irregularity 15 To increase amount of bond, &c 43, 245 For leave to amend writ ... 149 NEW-YORK PRACTICE REPORTS. 262 Index. PAGE REPORT OF REFEREES. To set aside for irregularity 9S, 144 For leave to move to set aside, report of 114, 1G6 RULE. To set aside, granting judgment as in case of nonsuit 6 For leave to defendant to avail himself of 9 To vacate, setting aside judgment of nonpros 12 To set aside, discontinuing suit 64 Where entered denied, motion must be made for leave to renew. . 164 To set aside for irregularity to plead 214 To vacate, denying a new trial 226 UCI HE FACIAS. To set aside writ and subsequent proceedings for irreg- ularity. 167 SERVICE. Absolute order for security for costs, should be served in 20 days 79 Of papers after mail hours 87, 173 Of papers made by mail 89, 158 On the same daytf filing, good 149 By putting in the post-office within the time, although not received until after the time, &c., good 152 Of papers in office by unlocking office door 199, 2 53 SETTLEMENT OR AGREEMENT. Parol, between parties, held good 95 103, 184, 185 Of costs, before appeal 236 Between sheriff and defendant, held good as against plaintiff, sheriff having authority 241 SHERIFFS. To set aside sale 77, 112 To set aside, inquisition, &c 91 Pay over surplus moneys, &c 133 Evasive return on execution 153 Suit on a bond on the arrest of defendant 154 For an order directing the collection of co-defendant 158 Pay over moneys to landlord, &c., question of levy 220 Pay over moneys. . . , 226 An action against for irregular sale 235 SUPREME COURT COMMISSIONER. To vacate order of. 66, 251 Recorder's powers under 39th rule 114 263 NEW-YORK PRACTICE REPORTS. 1 Index. PAGE 1 ERMS. On setting aside judgment as in case of nonsuit, &c 6, 237 On striking cause from calendar and stay of proceedings 7 On leave to comply with a former order 9 To come in and defend 9 On leave to amend plea of bankrupt's discharge, &c 57 On which writ of error may be amended 10, 250 On which defendant may plead bankrupt discharge, 10, 66, 99, 210 239 On which default may be opened, &c 11, 14, 17, 26, 136 On which default, &c., will be set aside 15, 55, 73, 87, 136, 225 On which inquest, verdict and subsequent proceedings, &c, will be set aside 23, 26, 35, 40, 45, 68, 74, 206, 208 On which writ of replevin may be amended 148 On granting a commission 30, 68 On which default may be opened taken at general term 41, 43, 52, 53 On which judgment for costs against plaintiff set aside 46 On which judgment set aside, &c 53 On leave to make and serve a case or bill of exceptions 7, 60 On leave to amend declaration, &c 5, 61, 82, 234 On allowing papers to be served to set aside report of referees 114 On staying proceedings until case is decided in the court of errors 176 On requiring attorney to accept pleas . . . . 237 TROVER. An amdavit to hold to bail in, not necessary 246 TIME. To plead, after admission of service through the post-office 5 V ENUE. To change, 41, 54, 55, 56, 62, 70, 73, 97, 122, 156, 162, 165, 184 195, 222, 227, 234, 248, 254. VERDICT. To set aside for irregularity, &c 19, 72, 175 To set aside 20, 62, 208 To set aside rule for judgment, &c 35 For leave to enter judgment on 140 W RIT OF ERROR. To quash or supersede 10, 155, 219 To set aside, &c 17, 107, 250 To quash and subsequent proceedings 65 To amend return to 215 WASTE. For an order to restrain from 103 University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. UC SOUTHERN REGIONAL LIBRARY FACILITY III II III II Mil A 001 167031 2