Volume 1 — Howard's Practice Reports

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 defendant 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- 2d September, during his absence.

Motion to set aside the d fault of defendant Wheeler, for not rejoining to plaintiff’s replications, and directing the plaintiff’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 special pleas had been served, and after replications by plaintiff’s attorney to said pleas; giving the…

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, he entitled to priority, fyc.—Facts on the part of said Hallock: an alias fi. fa. was issued on the judgment in the above cause on or about the 3rd of September, 1844, and levied on personal property of defendant; the judgment record appears to be entered on a cognovit actionem signed by the defendant in…

Motion to set aside inquest, verdict, and subsequent proceedings.— 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 Morning Herald New-York (defendant’s attorneys residing in Kings county), on the 2d day of the circuit, not finding this cause among those published for the day calendar of that day; one of defendant’s…

Motion by defendant that the penalty of the replevin bond in this cause be increased, or for a new appraisement before the sheriff of Mew 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 plaintiff’s attorney, who valued the property at $300.

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 defendant, obtained in the state of Pennsylvania, and usual money counts and count on account stated, added. Defendant pleaded general issue, nul tie! record and four special pleas. Plaintiff replied, and joined issue to' two pleas, and demurred and assigned causes of de44] murrer to the other two.

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.

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 Em-pie, to secure part of the purchase money of a farm sold by said Lowell to said A. Empie; an installment became due on said bond and mortgage in the spring of 1839, which said Adam Empie was unable to pay, and Lowell applied to plaintiff to buy the bond and mortgage; plaintiff…

Motion by plaintiff to set aside judgment for costs against plaintiff for not replying to defendant’s special plea.—Plaintiff’s facts : Action on a promissory note ; plea the general isssue and statute of limitations. In June, 1844, the parties 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.

Motion by defendant for judgment of non pros, or discontinuance 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.

Motion by plaintiff in error to'set aside judgment of nonpros, and subsequent proceedings on the part of defendant in error.—This action was commenced in a Justice’s Court, and judgment rendered for defendant in error; an appeal was brought to the Court of Common Pleas of Delaware county, and judgment rendered for defendant in error, in January, 1843; a writ of error was brought by plaintiff in error on the last judgment to this court, 28th February, 1843.

Motion by Defendant to set aside default and subsequent proceedings for irregularity.—Declaration in covenant, served on defendant 28th September, 1844. On the 18th October, defendant’s attorney mailed pleas and notice of retainer to plaintiff’s attorney and paid postage. On the 19 th October they were received by plaintiff’s attorney.

Motion by defendant for judgment as in case of non-suit.—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.

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 54] this term for the same purpose. The counsel for the corporation 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.

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 swears that the suit is commenced on an open account which has been running some time between him and plaintiffs.

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.

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 bankrupt.—The action is brought on a promissory note signed by Defendant Wynkoop. Commenced on the 28th [57 January, 1843. Defendant did not appear and plead. Judgment perfected February 23, 1843.

Motion by Plaintiff for retaxation of costs.—Action replevin; verdict for Defendant. On taxation plaintiffs 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 cep it, 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.

<p>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 judgment of him (Cowenhoven). It did not appear whether this was before or after Onderdonk had purchased the judgment. The plaintiff also produced the affidavit qf Ullman that Onderdonk 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 Cowenhoven.</p>

Motion by defendant for liberty to malee 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 insufficiency of the evidence to sustain plaintiff’s cause of action.

<p> Motion.by-defendant to change venue. </p>

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 plaintiffs 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.

Motion by defendant to set aside verdict taken on an inquest.—Defendant ’s papers show that at the circuit an affidavit of merits was filed and served, which was sworn to by defendant’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 defendant. The circuit judge held the affidavit of merits insufficient and permitted an inquest.

Motion by defendant to set aside execution.—The defendent 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.

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 plaintiff as residing in New York. The action is stated to he on a promissory note given for a hill of merchandise.

Motion by defendant to set aside default, fyc., imth 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 defendant 21st November last.

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 justice of the peace, in favor of Noyes & Tracy, against the defendant Gates, for $99'30; which, on the same day, was docketed 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 $10T15.

Motion on behalf of Joseph A. Kent for a mandamus commanding 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 determine 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…

Motion by defendants for judgment as in case of non-suit.—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.

Motion by plaintiff for leave to amend the summons and declaration in this cause, by converting them in to a summons and declaration in assumpsit, upon the 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 plaintiff as a sealed instrument.

<p>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 appearing 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 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.</p>

Motion hy defendants to set aside default of Allen Comstock 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.

Motion by plaintiffs, that the plaintiffs have leave 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 certiorari in this cause was quashed by this court, by a rule, of 5 January, 1844. That the plaintiffs are desirous, and have been advised to bring a writ of errror to this court, to remove the cause to the Court of Errors; that no record has been made up and filed.

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 ejectment that the defendant was a tenant for one year of the premises; the landlord, William Forkson, received the declaration from defendant immediately after the service on defendant, and employed counsel to defend, and was considered and treated as the real defendant in the-cause; the defendant Parks never…

Motion by defendant for a perpetual stay of execution upon the judgment in this cause, or that the verdict and judgment 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…

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 December last all the referees met and had a discussion of the cause.

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 action was assumpsit for goods, wares and merchandise,) and a promissory note; commenced in August, 1844. Judgment obtained against defendant by default, December 2, 1844. The defendant was declared a bankrupt 23d December, 1842, on his own petition.

Motion by defendant that plaintiff file security for costs in twenty days, and, that sureties justify ; in the mean time all proceedings on the part of the plaintiff to be stayed.—The defendant procured an alternative order on the 30th 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 8, 1844, and prior to the commencement of this suit; and filed it on…

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 defendant’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.

Motion by defendant at last February special term to set aside the default entered by the plaintiff, and 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.

Motion by defendants to set aside a judgment against the Rossie Lead Mining Company, the summons therein and all proceedings thereon, for irregularity.—This is an action of debt, in which the plaintiff seeks to recover of the defendants, alleging that they were holders of stock in the Rossie 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…

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 report on the 30th day of January last, in favor of the plaintiffs.

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.— It appears that issue was joined in this cause on the 6th August last, and noticed for trial at the Dutchess circuit for the second Monday of October last: was not tried for want of time.

Motion by S. J. Penniman for a perpetual stay of the execution issued to the sheriff of the county of Wayne, upon a judgment in this cause recovered October 21, 1839.—Penniman swears, that he recovered a judgment in this court against Nichols and Bates, two of the defendants in this suit, for $346‘05, on the 15th November, 1839.

Motion by plaintiff to set aside the judgment, as in case of non-suit, in this cause, and all proceedings on the pari 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, 1839.

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 February last for a hearing.

<p>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.</p>

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.

Motion by plaintiff to set aside the execution issued in this cause, and all subsequent proceedings on the part of defendant 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 on to be tried at a circuit some months since in New York city. A non-suit was granted, on grounds not involving the merits of the cause.

<p>A notice must be served with a special plea in bankruptcy, requiring plaintiff to reply, <§-c., otherwise on a motion for judgment as in case of non-suit, the cause will be considered not at issue, through the neglect of defendant.</p>

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, fyc.—Judgment was recovered in the first cause above in the supreme 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.

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 October 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.

Motion by defendant Thompson to set aside default and subsequent proceedings.—This was a proceeding for the determination of a claim to real estate under Rev. Stat. 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.

<p>Motion by plaintiffs for retaxation of costs.—This cause, and another against the same defendant, were noticed for hearing the same day, before referees, both involving 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.</p>

Motion by R. M. and M. I. Townsend, as attorneys for Moses Warren, and in their own behalf, as purchasers, to vacate a judgment as against Warren.—Suit commenced on a promissory note against Moses Warren and others, September 21, 1842. Warren was endorser; venue Saratoga county; copy declaration and copy note attached was served on Warren on the 21st September, 1842.

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 plaintiffs 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…

Motion hy defendant to set aside judgment for irregularity.—Action brought against Peter Comstock as maker, and defendant as endorser, of a promissory note ; Gardner the defendant only, was served with a declaration.

Motion by defendant to set aside report of referee, judgment fyc., for irregularity.—Assumpsit, on a promissory note, cause referred to Ira Harris, sole referee, in Oct., 1843.

<p>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 can not succeed to set aside the default and judgment, on a motion afterwards, on the ground that the note was void under the statute ; he must avail himself of his defence by pleading.</p>

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…

Motion on the part of complainant, that Abraham D. Russell, Esq., deliver up to said Hoag a certain bill of exceptions and papers taken on the trial of Alexander Hoag.:—In this matter Russell was employed as counsel for Alexander 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 execution, and…

Motion by defendant to set aside default and subsequent proceedings,for irregularity.— Declaration was served on defendant on the 27th of February last.

Motion by defendants Sweet and Matthew C. Hoes, to change the venue from the county of Rensselaer to the city and county of JYew 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.

Motion on behalf of Passage, one of the' defendants, for 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.

<p>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 moneys 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 4, 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 consideration 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 of May, 1843, Samuel Kirkham died, leaving his last will and testament, and a codicil thereto, by which he appointed Sarah M. Kirkham, his wife, executrix, whereby she was directed to pay the debts of the deceased, and by which she became entitled to the care, custody and control of all the real and personal estate of the testator; 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 of moneys due on the mortgage to said commissioners in October, 1843, the land in said mortgage described, was sold, in pursuance 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 mortgage, and the costs of sale, by the sum of $'74’83, which remained 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 of February, 1844, and while the surplus 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 surplus 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.</p>

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 merchandize, 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 life time, and upon an account stated.

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…

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 the same from said deputy sheriff.

Motion by plaintiffs to refer this cause.—Plaintiffs 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.

Motion by defendants for judgment as in case of non-suit.—Issue was joined in this cause on the 31st day of 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 circuit.

<p>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 declaration ; both actions were in assumpsit and might be consolidated, 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 admitted 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.</p>

Motion by plaintiff for leave to amend his bill of particulars 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 dated “ May 5, 1844.” whereas the true date in the original note, was “ March 5, 1844. The cause was twice on the calendar and three times noticed for trial.

v3 motion for judgment as in case of non-suit 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 defendants’s counsel with plaintiff’s counsel that he would not probably attend the term until the 7th. The partner of defendant’s counsel with whom no arrangement was made, attended the term on the 5th, and took his motion by default.

Motion by defendant for judgment as in case of non-suit.—Issue was joined in this cause, Oct. 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.

<p>Motion by plaintiff to set aside the default of plaintiff entered 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, (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, (whoresided at Troy) served on defendant’s attorney an order of the circuit judge, dated May 1st, enlarging the time to reply twenty days, byjputting the same in thegpost 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 post marked at Troy on the 2d May; that from the post mark 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 insisted that the service was irregular, and cited Howard’s Special Term Reports, No. 3, p. 87 Maher vs. Comstock, et al. 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 1st, the postage paid, and was enclosed in an envelope, and there was nothing appeared to show when the mail closed.</p>

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 plaintiff of $5000.

<p>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.</p>

<p>Conditions and principles of relief on motion to stay proceedings on execution #e. until cause is decided in the court of errors.</p>

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.

Motion on behalf of Joseph Strong, one of the defendants, for a rule or order, setting aside two executions issued on the judgment, recoveredby the plaintiffs against the defendants; one in the hands of the sheriff of Livingston, and the other in the hands of the sheriff of Monroe; on the ground that the defendant had been discharged under the provisions of the late bankrupt act, since the recovery of the judgment.—The judgment was recovered on the 30th October, 1838, in…

Motion by defendant Tracy to quash an alternative mandamus.—On the 6th March, 1845, this court granted a rule 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…

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.

Motion by defendant to set aside declaration for irregularity.—The capias was issued against Joseph Joesbury and Samuel Lugard, for libel, and an order thereon endorsed 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 & Watson were served with p declaration against Joseph Joesbury alone.

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 sometime 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.

Motion by plaintiff to vacate order of circuit judge, requiring 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.

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., (naming his witnesses,) of the county of Delaware, are and each and every one of them is a material witness, &c.”

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.

A motion for a peremptory mandamus to issue, on a return to an alternative mandamus.—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.

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 between the plaintiff’s attorney and defendant’s counsel, put over for the first day of the circuit, on an informal call of the calendar, to the next morning. The plaintiff thereupon discharged his witnesses until the second day of the circuit, at the opening of the court.

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 conspicuous place therein, no person being in said Martin’s office at that time, to wit, by laying such notice upon a book…

<p>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.</p>

Motion by defendant to set aside inquest for irregularity.—This suit was commenced to recover the amount of a promissory note made hy defendant Baker, and endorsed 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 declaration was ever served on Peter Comstock.

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.

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 following, a stipulation was entered into by both parties, for a commission to examine such witnesses as either party might choose to designate, residing at Richmond, Virginia, or the vicinity.

April special term. Petition of James Finley and Thomas Faulkner, executors of the last will and testament of Robert Elliott, deceased, of the city of JVew 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 ; presented 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,…

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 that this was an action for assault and battery; was noticed for trial, and on the calendar at the Albany circuit, in April, 1845.

Motion by plaintiff to set aside and vacate a rule for costs entered in this cause on the 7th June, 1844, and all subsequent proceedings for the collection thereof.—The original motion papers in this… Held: were addressed to Wm. H. Greene, Esq., BuSalo.

This was an ex parte motion for a certiorari to issue to Joseph Conselyea, one of the judges of Kings county courts.

<p>Motion by defendant in error to require the court of common 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 Johnson 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 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 July, 1845 ; no order to stay proceedings was procured. After the exceptions were taken, 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 2Sih June, 1845, before the bill of exceptions was settled : assignment of error and joinder therein on the 23d July, 1845.</p>

Motion by defendants that an attachment issue against Roderick I. Emmons and Peter Van Woert, as assignees of the plaintiffs, for refusing to pay defendant’s costs in this suit.—The plaintiffs sued the defendants in the summer of 1843, on a hook account for $130.

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 traveling fees of a witness on the first day of the circuit, a similar charge for traveling 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.

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.) Wm. 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 law's of 1836, that this cause was a proper one to be carried to the supreme court.

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…

Motion by defendants to set aside declaration and subsequent proceedings for irregularity.—Backman and Miner, the defendants, entered into a recognizance, 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 residing, and having for many years resided in Schenectady county.

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 Washington, on eleven witnesses. The action was brought on a promissory note, and the cause of action arose in Washington county.

<p>Motion by defendants to set aside judgment and execution, fyc.—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 endorsement upon the execution was made, it being endorsed 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.</p>

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 was entered or notice served that declaration would be filed, on a particular day in term and rule entered. The notice endorsed on the declaration was the usual notice to plead in twenty days, after service, &c.

*Motion by defendant to change the venue.—An objection was taken to the affidavit upon which defendant 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 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…

Motion by defendant for judgment as in case of non-suit, 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 of Ames & Rood, 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.

Motion by defendant to set aside capias for irregularity.— This was a motion to set aside the capias issued in this cause, on the ground that it was tested in the name of Samuel Nelson, Esq., Chief Justice, the first Monday of May 1845; whereas, at that time, Greene C. Bronson, Esq., was chief justice.

<p>Motion by defendant in error to set aside judgment and subsequent proceedings with costs.—R. Manning, attorney for plaintiffs in error, brought a writ of error upon a judgment obtained against them in the superior court of the city of New-York, on the 2d October, 1843. On the 4th December following, E. W. Stoughton, attorney 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, M‘Dowell 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 error; and stipulated that no writ of error should thereafter be brought on the judgment, either by himself or the other plaintiff in error. On the 29th of the same December, Hunt, the other plaintiff in error, who was surety for M‘Dowell on the bond upon which the judgment was obtained, gave his consent in writing to the settlement made by M‘Dowell, and that no writ of error should thereafter be brought on the judgment, and requested a discontinuance of this writ of error : at the same time, Stoughton executed and delivered to him a satisfaction of the judgment against him and M'Dowell. On the 21st of the same December, 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 11th 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.</p>

Motion by Defendant Peck to set aside default and subsequent proceedings for irregularity.— The suit was brought 19th February 1845, on an acceptance, with notice that it was the sole cause of action.

Motion by plaintiff for relaxation 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 stockholders of the Turnpike Company.

Motion by defendants for relaxation of plaintiff’s bill of costs.—The bill of costs in this cause was taxed by William Seymour, Esq., Supreme Court Commissioner, Binghamton, N. Y., on written objections made by defendant’s attorneys to items marked and numbered on the copy bill. § 1st. Copy JYarr for Sheriff to return,__________________ 1‘25 § 2d. Counsel perusing and amending JYarr, (being special) 200 The suit was commenced by declaration in March 1843, and was insisted it…

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.

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.

Motion by defendant to stay perpetually all proceedings on the judgment and execution in this cause.—On the 19th Oct., 1842, defendant presented his petition as a bankrupt, and was discharged on the 20th Feb., 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.

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 30th April.

Motion by plaintiffs to quash appeal from the decision of circuit judge. 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 statute; the penalty was $150, the statute required it to be in the penalty of $200.

<p>Motion by plaintiff to set aside return of satisfaction onfi.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, residing at Gouverneur. In November following one Rhoades 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 probably 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 w,ith Waid the deputy sheriff, wrote a letter to Waid giving him the information in substance 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 submit all to your judgment and management, and will abide by 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 $4-62¡¡ per acre. Waid declined to receive it at that price, and Hunt agreed to reduce it to $4 per acre. Wraid 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 nominal value.</p> <p>The defendant showed that land in the vicinity was sold and valued from four to six dollars per acre; that the appraisers were fair men, and understood the valuation of property in that neighborhood, one of them having been an assessor for the town.</p>

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.

Motion by defendant to vacate an order to hold bail.—This was an action of trover; the affidavit to hold defendant to bail, is as follows: (title of the cause,) “ Cortland county, ss.

Motion by defendant for a commission.—It was objected that the affidavit of defendant was defective. The defendant swore, “ that Wm.

Motion by defendant to set aside writ of error.—The defendant moved on the ground that the writ was not served on the clerk of common pleas until after the return day. The writ was tested, first Monday of May, and returnable, first Monday in July; it was served and filed, July 30, 1845.

Motion by defendant to vacate an order of Supreme Court commissioner and to mitigate bail.—This was an action of slander, commenced by capias, on which was endorsed an order by a Supreme Court commissioner to hold defendant to bail.

Motion by defendants that security for costs be filed, fyc.—The motion in this case was on the part of the defendants; that Alanson Allen, the plaintiff in interest, file security for costs, and that all proceedings on the part of plaintiffs be stayed until such security be filed, &c. It appeared that the plaintiffs on the record had, prior to the commencement of the action, assigned the demand on which the suit was brought to Alanson Allen, a resident of the state of…