66

dols. and a cognovit taken for the refidue, fupreme court cofts cannot be taxed. The plaintiff fhould have taken his cognovit and entered his judgment for a fum above 250 dols. M'Gregor v. Loveland, 25. If a fuit be compromised between the parties without the knowledge of the attorney, and nothing faid about the costs, each party pays his own. Watfon v. De Pefler,

66

26. Notice of motion for judgment, as in cafe of nonfuit, fent by the mail, is not good, though it might fave a default. Hudfon v. Henry,

67 27. To an application for a superfedeas for not having been charged in execution within three months after judgment, it is a good answer that the defendant has fince been charged. Manhattan Comp. v. Smith, 67

28. Attornies on being retained fhould examine the state of proceedings, though it is but fair that on notice of retainer the plaintiff's attorney fhould difclofe them; for want of fo doing in a fuit against bail after default entered, writ of inquiry and judgment thereon fet afide. Steele ads. Tenant,

68

29. The fuing out of the writ is the commencement of the fuit, and if it appear on the pleadings that the caufe of action be fubfequent, it is fatal on special demurrer. Lowry v. Lawrence, 69 30. The court will not pronounce judgment on a prifoner convicted at oyer and terminer, if the record be not before them. M'Neil's Cafe,

72

31. Service of a notice of motion on a perfon in the house of the attorney is not fufficient. It ought to be on the clerk. Anonymous,

73

73

32. Service of notice on an agent for nonenumerated motions may be on the first day of the term for the next non-enumerated day; but there must be an excufe for not noticing for the first. Moyle v. Gillingham, 33. A commiffion to examine must be before iffue joined. A rule for a commiftion fufpends the trial till the rule be vacated. But if the defendant appear at the trial and examine witneffes, it will be a waiver of the rule to vacate. Brain v. Rodelicks & Shivers,

78

34. When there are cross causes, and the plaintiff in each fuit has a verdict, if material facts be omitted in the cafe made by the defendant, and the papers from whence they are to be afcertained, be in the hands of the plaintiff, the court will not order judgment to be entered becaufe cafes have not been delivered,

35.

but will give leave to amend and perfect. Codrife v. Hacker,

74

Calla

104

A motion in arreft of judgment may be after default, and the defendant's coming in and examining witneffes on the execution of the writ of inquiry, if it appear on the face of the record that the action is not maintainable. gan v. Hallett Borne, 36. If a caufe has been duly fet down on the day calendar, and on being called, the defendant does not appear, nor his counfel, who is then in court, the plaintiff may take an inqueft which the court will not fet afide, though merits be fworn to, if the abfence of the defendant be not accounted for. Poft v. Wright Buchan,

37.

39.

III

If a notice of motion for nonfuit be titled verfus instead of ad sectam, and the affidavit rightly titled, the notice is good. Ryerso. Hillyer,

112

38. If there be a neglect in not proceeding to trial, the defendant muft avail him felf of it the first opportunity, or it will be a waiver, and fubject him to costs if he afterwards move for judgment as in cafe of nonfuit. Brandt ex. dem. Ricketts v. Buckhout, 113 The rule for confolidating applies only to feveral actions on one policy, and does not extend to feveral policies on one rifk, though the queftion be the fame on all, for the contracts are feveral. Camman v. Un. In. Comp. 114 40. If the defendant has joined in a commiffion, the court will not on the plaintiff's application vacate the rule by which it was granted, but will grant one to proceed to trial, notwithstanding the commiflion. Shuter . Hallett, 115 The court will not discharge, on motion, a perfon arrefted, whilft attending a re ference under an order of the common pleas, if there be no notice of motion, but will only grant a rule to fhew caufe. Grover v. Green,

the judgment will be fet afide, and the default, if regular, ftand. No default ever fet afide when regular, except when accounted for to the fatisfaction of the court. Spencer v. Webb, 118 45. In partition, if the defendant does not appear, the court will, on motion, make an order for partition as prayed for. Neilfon v. Cox and others,

121

46. To change the venue in a tranfitory action special caufe must be fhewn. Woods v. Van Rankin, 123 47. If feveral actions, turning on the fame point, be noticed for trial, and on the hearing of the firft, the judge direct a nonfuit, exceptions to which is taken by the counted for the plaintiff, he will not be liable to judgment as in cafe of nonfuit for not proceeding to trial on the other caufes, nor be obliged to ftipulate, and the cofts must abide the event of the fuit. Campbell v. Munger, 129 48. If a party to a fuit referred cannot produce his witness by the time of hearing, a judge at chambers, or the court if fitting, will stay proceedings. The defendant's attorney having nominated referees, and the party not having objected, cannot on that ground move to fet afide the report. Combs v. Wyckoff, 147 49. If an indictment be removed from the fellions into the fupreme court, any exceptions may be taken to the charge of the judge by making a cafe, and bringing it before the court in the fame manner as in civil proceedings. The People v. Crofstell, 149 50. If a plaintiff notice his cause for trial, and afterwards countermand it, he must pay the defendant the intermediate cofts of fubpoenaing his witneffes. Jackfon v. Mann, 51. Notice to refer muft contain the names of

123

the referees. Misapprehenfion of a rule, or ignorance of a late determination may be offered as excufes, for not noticing for the first day of term. If the ground of oppofing a reference be, that a point of law will arife, it ought to be exprefsly ftated what it is, and that it is as advifed by counfel. Lufber v. Walton,

54. Nine days notice is enough in Cayuga, to produce papers in Albany, diftant 180 miles. Jackfon, ex. dem. Watson v. Marfo,

57.

58.

153 55. Whenever a plaintiff amends his declaration, the defendant has an election to plead de novo. Webb v. Wilkie, 153 56. All irregularities are waived by a defendant if he appear on trial. On judgment for nonfuit, nifi, the defendant fhould make a demand of his cofts, with a copy of his rule annexed, and if not paid within twenty days, he may enter judgment, and, if he do not fo, the plaintiff will be regular in noticing for trial. Gilliland v. Morrell, 154 When proceedings have been regular, a mere affidavit of merits is not fufficient to fet them afide. In fuch cafe, if there has been a mistake, on which the judgment has been taken, the defendant will be relieved only on cofts and terms. Cogswell v. Vandenberg, 155 On a reference if a receipt given after the rule made be offered in evidence on the part of the defendant, and objected to by the plaintiff, the fpecial matter and facts fhould not be returned to the court; but the referees fhould admit the evidence, and make the report on it, that the party aggrieved may bring it fully before the court. Query, if a fpecial matter of fact, without a decifion, be in any cafe a report within the meaning of the rule. Hawkins v. Bradford, 160 When a plaintiff refifts a motion for judgment, as in cafe of nonfuit for not proceeding to trial, if he infifts on not having been able to try his cause, and others have been heard, he muft fhew they were older iffues. Jackson, ex. dem. Williams v. Chamberlin, 60. If a witness has been in the power of a plaintiff he must shew endeavours to obtain his teftimony, or he will not be allowed to urge the want of it for not proceeding to trial. Counter affidavits, to thofe in oppofition are not admissible. If a fuit be called and paffed, the reafons why should be made appear by the counfel in the caufe. If an offer of a compromise be made to the plaintiff and refused, on a motion for a nonfuit the court will not order them to be impofed, ut femb. Deas v. Smith, 171

59.

171

61. If an alien, on removing his fuit into the federal court, file his petition at the time of filing fpecial bail, he is in feafon, though the bail have been excepted to. Arjo v. Monteiro, 62. After fervice of a declaration in ejectment on a tenant, though it may be a

248

totally informal one, yet it is fufficient to fet him on enquiry, and if a rule to fhew cause why the plaintiff fhould not amend be granted, fixing it in the clerk's office is good fervice on the tenant. If proceedings be commenced for lands, to which a title has been awarded by the commiflioners for fettling difputes relating to lands in Onondaga, within three years after, it is fufficient, and though they may be faulty, and require amendment after the three years, is is fufficient to entitle the plaintiff to proceed. Fackfon, ex. dem. Hogeboom v. Stiles, 209 63. A motion cannot be made to set aside a writ of enquiry in the poffeffion of the plaintiff not returned, and on which no inquifition has been taken, but if a jury has been impannelled on it, and has given a verdict on a hearing, contrary to the terms of a written agreement, the court will give leave to iffue a writ of inquiry de novo. Abeel v. Woolcot,

73.

72. Amendments to a cafe made must be in the cafe ferved, or refer to the line and page in which it is proposed to amend. The party ferved cannot draw up a new cafe. Milward v. Hillett, 344 Where there are fome good counts and fome bad, and a general verdict on the whole, if the evidence has been on the good counts only, the verdict may be amended from the judge's notes after notice in arreft of judgment. Union Turnpike Company v. Jenkins. 381 74. If a defendant has been prevented by adverfe winds from fhewing caufe against a rule for a criminal information, and the fame has been made abfolute against him for want of caufe fhewn, it will be fet afide of courfe on an immediate application. The People v. Freer, 394 The regular mode of fhewing that evidence applies to one count only, or to any particular counts, is by certificate from the judge, though if he be on the bench, and an affidavit be made which ftates the facts as they are, and he affents to them, it will be fufficient. Union Turn. Com. v. Jenkins, (n.) 394 Though the act of God be the caufe of not proceeding to trial according to notice, yet if there be time to countermand, and the plaintiff negle&ts to do fo, he must pay cofts. Jackfon v. Brown,

75.

76.

484 77. On certificate of probable caufe both parties inay notice, but if not done by the party obtaining the certificate, it is no caufe for difcharging the order. Kirby v. Cogswell, 484 On a rule to fhew caufe why an attachment fhould not go for a contempt in publifhing matter reflecting on the court in a caufe then pending, the defendant fhould appear in perfon on the day of fhewing caufe. The People v. Freer, 485 79. Caufes which have been noticed for ar

78.

gument and duly entered in one term, are not, without a new notice to the clerk, carried over to the next. Livingfon v. Rogers, 487 80. On a feigned iffue from chancery, if an inqueft be improperly taken, relief must be fought here. If an inqueft be taken by default at a circuit, and notice of trial has not been given, it will be fet afide with cofts to be paid by the plaintiff's attorney. Den v. Fen, 487 81. The action for a return of premium muft

be against the underwriter and not against the broker, though the affured be himself an underwriter, and the broker employed by both parties. Bowne 7. Neilfon Bunker, 489

any

495

82. In an action on a promiffory note, if in confequence of the plaintiff's attorney having no agent in Albany, the fuit be nonproffed there for want of declaring, and judgment by default be obtained in New-York, and the damages affeffed by the clerk, indorfed on the note, the court will, when the cofts of nonprofs have been paid, and the judgment in New-York vacated, order the damages affeffed and indorsed to be ftruck out, that the plaintiff may proceed in a fecond action without embarraffment from the former proceedings. Atterbu ry v. Teller, 83. A new nifi prius record allowed to be filed, and a poftea indorfed thereon, according to a judgment of fix years antecedent, and execution thereon upon affidavit, fhewing the probable lofs of the originals. Jackson, v. Hammond, 496 84. In ejectment on a motion to fet afide the rule to appear and enter, &c. if the application be founded on irregularities to be fupported by inspection of the declaration, &c. on file, and the plaintiff produce affidavits of due fervice, &c. it will be prefumed that all was regular, the tenant not producing the declarations and notices ferved, efpecially if by granting the motion the ftatute of limitations would attach. Jackfon v. Stiles,

501

85. If a defendant obtain a rule for a commiffion, in which the plaintiff does not join, and a term elapfe without notice of any proceedings under it, the court will fo far vacate the rule as to permit to go to trial notwithstanding the commillion. On a commiffion to England, and eight months, without any return, the court will permit to go to trial, but this does not prevent fhewing caufe on the trial, why it fhould not be put off. Kirby v. Wathies, 503 86. If the confent rule, &c. in ejectment have been actually forwarded in time to deliver to the attorney of the plaintiff, and be by mistake filed in the clerk's office instead of being ferved, the court will fet afide a judgment on fuch a default, and if a writ of poffeffion has iffued, award reftitution on payment of colts. Fackfon v. Stiles, 87. A judge's certificate of probable caufe does not flay proceedings, unlefs accompanied with notice of motion. Kirby Cog fel!,

ค.

503

505

88. If a prifoner in cuftody on mefne procefs fign a warrant of attorney, the na

89.

ย.

ture of which is explained to him by an attorney who does not witnefs it as his attorney, the court will not fet it aside, ut femb. Manhattan Company v. Brower, 511 Where it is neceffary only to indorfe an appearance on the writ, bail not being required, it is the duty of the clerk of the court to enter the appearance on record. If judgment be figned before it is fo entered, the court will order the appearance to be entered nunc pro tunc. 512 Rofs and others v. Hubble et ux. 90. Where a fuit has been confolidated, and a commiffion fued out in the consolidated caufe in which the defendant has joined, the court will allow the evidence taken under it, to be read on the trial of the principal fuit. Waterbury v. Delafield, 513 91. Where a plaintiff has neglected to file a capias and enter an appearance for two terms, though there be an affidavit, fwearing to an agreement, that all the proceedings fhould be confidered as of a third term antecedent, the court will not give leave to file the capias and enter the appearance, nunc pro tunc, as of the third term paffed, efpecially if it ap pear that it be asked with a view to prevent a fet-off of a note falling due fince the third and before the fecond term, but will order the capias &c. to be entered as of the fecond term. Gordon v. Bowne, 513 92. If a defendant be discharged for want of being duly charged in execution, he can never be taken in execution on a ca. fa. iffued on the judgment in the fuit on which he was in cuftody. Maßters v. Edwards, Three months are fufficient for executing and returning a commiffion arrived in London. If after a commiffion iffued the plaintiff do not ufe diligence, the defendant may apply for judgment as in cafe of nonfuit, which will be granted, unlefs the plaintiff ftipulate. Coles and others v. Thompson, 517 After verdict and certificate of probable caufe granted, the court will not order the amount of the fum recovered to be brought into court. Shuter v. Hallett, 518 If there be one good count, and the others bad, and entire damages affeffed, it may be amended. Living fon v. Re583 gers,

93.

94.

95.

96.

515

If the declaration in a juftices court be for ten dollars, and the judgment for fifteen, it is fatal on error. Delamatter v. Borland, 593