Volume 3 — Howard's Practice Reports

Where Plaintiff moved for a reference in an action of assumpsit, his bill of particulars containing four items, including a promissory note—and after motion papers served, Defendant’s attorneys… Held: that the stipulation was sufficient to preclude the Plaintiff a reference, without costs of the motion; costs would have been given Defendant, if his offer to stipulate had been made before the motion papers were served.

Motion by Plaintiffs for leave to amend declaration by adding a special count.—This suit was brought to recover the amount of a bill of exchange, drawn by JSTestell on Frost and Jacobus, and payable to the order of Flint, and endorsed by him. The Plaintiffs declared on the money counts only, and annexed a copy of the bill of exchange to the declaration accompanied with a notice that it was the only cause of action.

<p>Motion by Defendants to change the venue.—The Defendants in this cause moved to change the venue from the county of Oneida to the county of Lewis.</p> <p>Plaintiff’s counsel objected, that the papers on which the motion was founded, did not show that a default had been entered against Isaac .Crofoot, and therefore the other Defendants could not, without uniting with him, move to change the venue.</p> <p>■ Defendants’ counsel replied that he moved for all the Defendants."</p> <p>The notice of motion was entitled as above, and signed “E. & W; -Collins, .Defendants’ attorneys.”</p> <p>Plaintiff’s counsel insisted that to authorise the motion to be made in behalf of Isaac Crofoot, the word “ impleaded ” should have been omitted in the title of the cause, in the affidavit and notice of motion.</p>

Motion by Defendants to set aside the judgment entered against them in this cause, and also the proceedings on scire fados issued to obtain execution after two years.—The original judgment, and that on the sci. fa. were entered on defaults. The suit was founded on a joint and several promissory note against four makers, on three only of whom the declaration was served.

Motion by Defendant on appealfrom an order of the Circuit Judge of the first Circuit.—The original motion was made by Defendant to set aside the rule for default entered in the cause and all subsequent proceedings, for irregularity.

Motion by Plaintiffs for retaxation of Defendants bill of costs on judgment of discontinuance.—It appeared that issue was joined in this cause, but it had never been tried or noticed for trial. Defendant’s bill of costs was taxed by Darius Peck, Esq., of Hudson, Columbia county, on the 2nd of January, 1847.

<p>Motion by Defendant in error, that Plaintiff in error file security for costs.—On the part of the Defendant in error, it appeared that Kanouse, the Plaintiff in error, resided out of the jurisdiction of this court, to wit: in the state of New Jersey.</p> <p>That a motion had been previously made by the Plaintiff in error in this cause, which was denied with costs; that on service of a copy rule denying that motion, on the attorney for Plaintiff in error, (who was a resident of this state,) and a demand of the costs, the attorney refused to pay, and said he was unable to procure payment from the Plaintiff in error, although he had made application to him for that purpose. No security for costs had been filed by the Plaintiff in error. The pleadings to the special assignment of errors had already reached a surrejoinder.</p> <p>On the part of the Plaintiff in error, it appeared that this cause was originally commenced in the common pleas of the city and county of New York, and prosecuted to judgment in that court; upon which judgment a writ of error from the supreme court was issued to the common pleas, and the proper bond, according to the statute on bringing writs of error, executed and filed with the clerk of that court; which was approved by J. W. Edmonds, Esq., circuit judge.</p>

Mr. N. F. Waring, on behalf of the Mayor and Common Council of the city of Brooklyn, moved for the confirmation of the final report of the Commissioners of Estimate and Assessment in this matter.

This was a motion on the part of the Plaintiff, to release two referees, survivors of the third, from further service, and for the appointment of three other referees in their place. It appeared that the cause had been brought to a hearing before the three referees appointed, and a report made, after which one of the referees, (Nicholas Sickles, Esq.,) died.

Motion by Defendant to set aside capias ad respondendum and subsequent proceedings.—This suit was commenced by capias, to recover penalties under the statute for selling intoxicating liquors without license. The writ was personally served on Defendant on the 16th of January last; on the 19th of January, Defendant’s attorney served a general notice of retainer for the Defendant in the suit upon Plaintiff’s attorney, who thereupon entered Defendant’s appearance.

Motion by Defendant to set aside default and all subsequent proceedings.—It appeared from the affidavit of the Defendant, that he resided in Livingston county, and that a copy declaration in this cause, (in an action of assumpsit,) was served on him on the 5th of October, 1846, that within six or eight days thereafter, he retained Ms attorney to defend the suit, who also resided in Livingston county; about four or five days afterwards, his attorney called upon him, and…

A motion was made on behalf of the relators, for an amended return, to be made by the Defendants to their return made to a writ of alternative mandamus issued against them. The affidavit stated the additional facts, which it was alleged were ne-' cessary tobe returned, and as authority for a farther return, relators’ connsel cited 9 Wend., 429.

The Defendant was committed to the custody of the sheriff of Washington county, by virtue of a warrant of commitment issued by a justice of the peace of that county, on the 28th of July last, on the charge of -uttering as true a counterfeit two dollar bill, purporting to be issued by the Bank of Burlington. An application was made to Willard, Justice^ at his office in Saratoga Springs, for an allowance of a writ of habeas corpus, with a view to letting the prisoner to bail.

A writ of habeas corpus ad subjiciendum was allowed by Mr. Justice Harris, directed to the Defendant, commanding him to bring the relator before the said justice, to inquire into the cause of his detention.

Motion by Defendant for judgment as in case of non-suit—This was an action of replevin in the detinet. Plea, general issue, and notice special matter. The cause was tried in September, 1844, at Columbia circuit, and verdict rendered for Defendant, which was subsequently set aside. (See 1 Howard’s Pr. Bep., 72.) The cause was tried a second time at Columbia circuit, before J. W. Edmonds, circuit judge, and verdict rendered for Defendant.

Motion by Defendant to set aside verdict and subsequent proceedings.—TMs motion was made on the ground that the circuit judge before whom the cause was tried, erroneously refused to put off the trial for the circuit, upon the Defendant’s application; who alleged the absence of a material witness, which was necessary for him on the trial. The cause was noticed for trial, and put upon the calendar for the Dutchess circuit, held on the 16th of November last.

An order to hold the Defendant to bail was granted in this cause in June last, by a supreme court commissioner. This motion was made by Defendant to set aside that order, on the ground that the affidavit on which it was founded, was insufficient.

On the 28th day of July, 1847, a copy declaration in each of the causes was served on the Defendant, with a notice that the declaration would be filed in the Eensselaer clerk’s office on the next day, and the usual rule to plead in twenty days would be entered. On the day mentioned in the notice, the declaration, notice, and proof of service was filed, and a rule to plead entered in each cause.

The Defendant moved for judgment of discontinuance in an action of replevin. The Defendant having appeared within the time prescribed by law, excepted to the sufficiency of the sureties taken by the sheriff, upon the receipt of the writ. The sureties had not justified, nor had any new bond been executed. It appeared that the property described in the writ was taken hy the sheriff and delivered to the Plaintiff.

In December, 1845, an alternative mandamus was issued and served upon the Defendants, commanding them to do certain things specified in the writ, in relation to the alteration of a highway in the town of Schodack, or sh ow cause, &c. To this writ the Defendants, Sage & Mesick, in March, 1846, made a return, in which the other Defendant, Smith, re,fused to j oin. The relator pleaded to the return, taking issue upon some of the facts stated therein.

This was an action of trespass ou lands. The Plaintiff commenced a suit before a justice of the peace in the county of Schoharie, and declared in trespass; to which the Defendant interposed a plea of title, and executed the bond required in such cases. The justice thereupon discontinued the suit, and this action was commenced in the Schoharie common pleas, which was subsequently removed by certiorari into this court.

The Defendants were acceptors of a foreign bill of exchange, drawn in Hew York, and payable in Mobile. The declaration contained the common money counts, with a copy of the bill subjoined. The Defendant Boardman demurred to the declaration, and judgment having been rendered for the Plaintiffs on the demurrer; the damages were assessed by the clerk of Rensselaer, on the 27th day of July last.

This cause having been referred to a sole referee, he, on the 26th of July last, reported in favor of the Plaintiff, without serving a copy of the report; the Plaintiff’s attorney on the 2d day of August perfected a judgment upon the report. The Defendant moved to set aside the judgment for irregularity.

Motion by Defendant to set aside default and subsequent proceedings for irregularity.—Declaration was served on the 18th of May, 1847; on the Sd of June, Defendant’s attorney sent pleas and affidavit by mail to Plaintiff’s attorney, with a notice of retainer; on the afternoon of the 9th of June, the Plaintiff’s, attorney returned the pleas, &c., to Defendant’s attorney, on the ground of a defect in the affidavit.

<p>The supreme court in equity have power to restrain proceedings at law, where such pro-. ceeding-s must necessarily work injustice. (2 Story’s Com. on Equity, § 885.)</p> <p>A prior mortgagee will be restrained by injunction from proceeding with a statute foreclosure, instituted, after a foreclosure commenced in equity by a junior mortgagee, upon the same premises, where the prior mortgagee is made a party Defendant in the latter proceedings.</p> <p>It is no answer by the prior mortgagee, that he is apprehensive that the security will be insufficient, in consequence of delay. If he is injured by delay, he should move to dismiss the Plaintiff’s bill, and for leave to proceed at law, or for a decree directing a sale of the" • mortgaged premises and payment of his debts and cost.</p>

Motion to set aside default, and to change the venue from Dutchess to JSssex.—The declaration was served on the 16th of June. On the 5th of July, the Defendant’s attorney served a plea, by depositing it in the post-office at Elizabethtown, Essex county, directed to the Plaintiff’s attorney at Bedhook, Dutchess county. The plea did not reach the Plaintiff’s attorney until the 13th, and prior to that time the Defendant’s default had been entered, and judgment perfected.

Petition of Wm. A. Davies to be substituted as Plaintiff, in place of Sidley, and to enforce the decree heretofm'e made in this cause.—A decree of foreclosure and sale was made on the 12th of July, 1842, on bill taken as confessed by all the Defendants. On the 23d of September, 1843, the bond and mortgage and decree were assigned by Sidley to Davies. Sidley died 18th of February, 1846.

On the taxation of costs in this cause, the question was raised whether a justice of the supreme court was required to receive fees for taxing costs, &c., and pay them over to the treasurer.

<p>A decree in foreclosure should direct a sheriff to retain surplus moneys until the further order of the court, or to deposit them in some bank, not direct him to bring the moneys into court.</p>

<p>A special motion should be noticed for the special term, first to he held in the covmty where it cm he made, whether in the county where the proceedings are pending, or in an adjoining county.</p> <p>An order for stay of proceedings to be enabled to make a motion, will not extend beyond the special term, first to be held in the county where it can be made.</p>

The Defendants move to change the venue in this cause, from Albany to Erie.—The affidavit upon which the motion is founded, states that the cause is not yet at issue, and the notice is merely for a change of venue.

<p>The Defendant moved to change the place of trial in these causes from Albany to Monroe. He swore to the materiality of fourteen witnesses in Monroe in the usual form, without showing in any way how they could be material. The suit was against the Defendant as sheriff of Monroe, for not collecting or returning an execution. The notice of motion was “ to change the venue err for such other or further rule or order as the court may deem proper to grant. It was objected by the Plaintiff that the notice being for a change of vemíe, and not for a rule ordering the trial to be had in the county of Monroe was insufficient. The Defendant insisted that he was entitled to the rule he sought, under the general clause in his notice, asking for “ such other or further rule or order as the court may deem proper to grant.”</p>

This was a motion to change the venue from the county of Albany to the county of Washington. —The suit was commenced on the 17th of May last. Issue had not been j oined in the case. All the parties resided in the county of Washington.

This was a motion by Defendant in error, to quash the writ of error in this cause.—-On the 21st of June last, the attorney for Plaintiffs in error served on the attorney for Defendant in error, a copy of an order of a supreme court commissioner, entitled as above, in “Supreme Court,” staying proceedings of Defendant in error on the judgment rendered in the supreme court, until judgment should be rendered on the (within) writ of error; accompanied by a notice that a writ of…

<p>Where a defendant in close confinement, executed a bond and warrant of attorney to Plaintiffs to secure the value of the probable amount of goods which Defendant confessed he had purloined from Plaintiffs while in their employ, and for which he was then imprisoned by the Plaintiffs on criminal process, awaiting his examination—there being no attorney present for Defendant; held, that the judgment entered thereon should not be allowed to stand.</p> <p>It seems, that if it had appeared clearly that the Defendant was fairly indebted to the Plaintiffs in the sum for which the judgment was confessed, it would not have been set aside. The validity of the bond in such a case may be fairly tested by action; the setting aside the judgment being no bar to the Plaintiffs’ remedy in that way,</p>

<p>Where questions of fact arise in a cause before a justice of the peace, anti evidence is given upon both sides in relation thereto, which is conflicting, it is for the justice to decide such questions, and having done so, this court will not reverse the judgment, although it may seem, that the weight of evidence is against his decision.</p> <p>Thus, where Plaintiff let Defendant have his farm for two years, and with the farm a number of fowls, and at the end of one year an agreement was entered into between the parties that Defendant should give up the farm—which he did, but took away the fowls; and Plaintiff sued him in trover, and the evidence was conflicting on the trial whether the contract between the parties constituted a sale or bailment as to the fowls; held, that the justice having decided such question upon the evidence introduced on the trial, and given judgment thereon, it should be held conclusive.</p>

Motion to set aside Defendants bond, taken by the sheriff of Monroe county, on a writ of replevin.—In August last a writ of replevin was issued in this cause, upon which a portion only of the goods described in it were taken by the sheriff and delivered to the plaintiffs.

Motion to set aside judgment for irregularity.—This cause, which was an action .of slander, was tried at the Orleans circuit on the first Monday of February,‘1846, •and a verdict rendered for the Plaintiff for $3,000.

<p>A case having come before Judge Rose involving the questions whether a county judge can perform the duties of a judge of the supreme court at chambers, he referred the matter to Mr. Justice Strong by whom the following opinion was given. It will be seen that the conclusion arrived at upon the question involved, is adverse to that of Mr. Justice Willard, ante, page 32.</p>

<p>The hill in this cause was filed to close the business of an alleged partnership between the parties. After notice of a motion for the appointment of a receiver, and before the Defendants had put in an answer, the Plaintiff died. Ezra H. Smith having been appointed his administrator, applied by petition to have the suit revived in his name. And a notice had also been given by the Plaintiff’s solicitor, that in case the suit should be revived, he would also move for the appointment of a receiver. On the part of the Defendants, it was shown, that upon filing the bill an injunction was issued restraining the Defendants from inter-meddling with the partnership effects; that, upon the issuing of the injunction the Plaintiff gave his own bond as provided by the 21st rule of this court; and that at the time of giving the bond and also at the time of his death, he was worthless. The administrator was only required to give security in the penalty of $200.</p>

The Defendant was sued as the endorser of a note. Isaac Frink, the maker of the note, was joined with Van Alstyne as a Defendant, when the suit was commenced. The cause being at issue as to both Defendants, was referred on the 29th of June, 1847. The attorney for both Defendants, served on the Plaintiff’s attorney a notice requiring him to bring the cause to a hearing before the referee within forty days.

Calendar cause.—This was a suit commenced in a justice’s court by Frink, sheriff, against Britton & Hadley. Plaintiff declared for moneys had and received by the Defendants to the Plaintiff’s use, and also for moneys overpaid on a bill of costs produced. Defendants pleaded the general issue and gave notice of set-off for goods sold and delivered, work, labor and services, and on the usual money counts.

Defendant pleaded in abatement ne ungues administrator, but did not verify the plea in the form required by the statute, and the Plaintiff for this reason moved to set it aside. The defendant insisted, that by omitting to return the plea, Plaintiff waived the irregularity.

Motion ly Defendant to set aside the order pro confesso and subsequent proceedings in a foreclosure case.—The Defendant resided in the state of Georgia, and had been proceeded against as a non-resident. The order for his appearance was in the usual form, directing notice to be published in the state paper and Buffalo Courier. The order was published in the state paper and in the Buffalo Commercial Advertiser, but not in the Buffalo Courier.

Foreclosure case.—After a decree for sale in this canse, the Defendant Boole presented a petition, showing, that the mortgage covered several lots owned severally by different Defendants, and to protect their rights the sheriff should have directions as to the order of sale.

The Defendants moved for a rule granting the referees in this cause leave to hold a meeting in the city of Hew York or Brooklyn—the venue being in Albany. It appeared that in February, 1846, the Defendants moved to change the venue to Kings, upon an affidavit, in which they swore to the materiality of sixteen witnesses in or near Brooklyn.

The Plaintiff upon the usual papers moved for a reference to appoint a receiver upon a creditor’s bill. The Defendants in opposition read an affidavit, in which it was stated positively, that no execution upon the judgment upon which the bill was founded had ever been returned.

Before Ndmonds, Justice.—The Plaintiffs on the 1st Nov. 1847, applied to Edmonds, Justice, for a warrant against the Defendants, under the act of 1831, to abolish imprisonment for debt, &c., upon affidavits setting forth that they had obtained a judgment against the Defendants for $89,915.31 “ on contract, for which, pursuant to the provisions of said act, they could not be arrested or imprisonedthat after obtaining such judgment the Defendants had exhibited to the attorney,…

Defendant’s default in suit on promissory note having been taken; Plaintiff’s attorney gave notice of assessment of damages by the clerk of Westchester on the 25th August.

The Plaintiff had two judgments against Peter B. Winne, upon which, executions had been returned unsatisfied; he filed a creditor’s hill upon the judgments, and made the other Defendants, who were the sons of Peter B. Winne, parties, alleging that prior to the recovery of the judgments, Peter B. Winne had fraudulently conveyed to them his property, including certain real estate described in the bill.

<p>The Plaintiffs having recovered a judgment against the Defendant Stone, filed a creditor’s bill against him and the Defendant Allen, which, besides containing the usual allegations in respect to the recovery of the judgment, and the return of the execution unsatisfied, proceeded to set forth various facts and circumstances, tending to show that Allen was fraudulently aiding Stone in concealing his property and placing it beyond the reach of his creditors, and then stated and charged that Allen was then “in possession of, and had on hand a large amount of goods and merchandise, horses and carriages, and other property and choses in action, and assets owned by and belonging to the Defendant Stone.” At the conclusion of these allegations, the following clause is added: “ All the above facts aré stated upon the information and belief of your orators, and they believe them to be true.” The bill having been verified in the usual form, by the oath of one of the Plaintiffs, an injunction was issued ex parte, in the usual form, against the Defendant Stone, and also restraining both Defendants “from selling, assigning, or disposing of any of the goods, property, and choses in action, claimed in said bill to belong to or to be owned by said Stone.” Allen moved upon the bill to dissolve the injunction.</p>

This was an ordinary bill of foreclosure brought to a hearing upon the bill taken as confessed by the adult Defendants and upon a general answer of the guardian ad Etem of the infant Defendants. It was suggested upon the hearing, that several of the Defendants claimed an interest in separate portions of the mortgaged premises as grantees or mortgagees subsequent to the Plaintiff’s mortgage.

cause having been referred, a report of the referees in favor of the Plaintiff for $3288.24, was made on the 26th September, 1844. A case was made for the purpose of moving to set aside the report and an order staying proceedings until the motion was obtained by the Defendant.

Motion to vacate an order of the Court of Common Pleas, that the Plaintiff file security for costs, &c. It appeared from the affidavits that the Plaintiff, at the time of the commencement of the suit, was a resident of the county of Otsego, and that he subsequently removed to the county of Broome. That an order was duly obtained, requiring him to file security for costs, or show cause at the ensuing term of the court, to be held on the 3d Monday in June last.

Motions were made in several causes, commenced for violations of the act relating to excise, &c., passed in 1845, for leave to discontinue without costs.

This was a motion for judgment as in case of non-suit, for not noticing the cause for trial at the September circuit, Otsego county. It appeared that the circuit adjourned on the 2d day of October, and that on the 4th day of October the .Defendant served notice of this motion for the special term; 3d Tuesday in November, at Cooperstown, where the attorneys of the parties reside.

This suit was brought upon a promissory note, of which the Defendant, Adams, was maker, and the Defendant, Baker, was endorser. Both Defendants appeared by Hayner & Johnson as their attorneys; a separate plea and notice was put in for each Defendant. On the trial, a verdict was rendered in favor of Baker; Adams having been sworn as a witness in his favor, and having proved the payment of the note.

<p>This cause was upon the calendar, upon bill, answer, and replication, and noticed ¿or trial or reference.</p>

Motion by Defendants for judgment as in case of non-suit for not bringing causes to trial.— These suits were commenced in Orange county, under the provisions of the act in relation to excise, &c., passed May 14, 1845, to recover penalties for selling liquor without license. While the suits weré pending and before issue joined, the act in question was repealed, on the 12th of May, 1847.

. Motion by Defendant's counsel for judgment nunc pro tunc.—A stipulation was read by consent, in the following form: “ Supreme Court. Thomas L. Ogden and Josiah Fellows vs. Oliver Lee and Jeremiah Ellsworth. The same vs. Oliver Lee.

Motion on behalf of the Plaintiffs for a general reference of the cause to three referees; founded on an affidavit, stating that the cause was at issue by the filing and serving a replication to the answers, and that the trial “ would reguire the examination of long accounts on both sides.”

A motion was made in a mortgage foreclosure case, under the 91st equity rule, upon an affidavit merely stating that the bill had been taken as confessed, for an order of reference to compute the amount due to the complainant on the mortgage, &c.

<p>In this case a bill filed to foreclose a mortgage had been taken as confessed against several of the Defendants as “ absentees ” upon the usual proof of publication of the notice to appear.</p> <p>John H. Edmonds, Esq. moved for a decree of sale upon the affidavit required by the 91st rule, and the report of a referee made under an order to take proof of the facts cmd circumstances stated in the bill, and to report the same to the court. The report of the referee, however, did not set out the certificate of acknowledgment of the mortgagor of the execution of the mortgage, but merely referred to the mortgage by a brief statement of its date, consideration, and the names of the parties to it, with the additional fact, that it had been acknowledged by the mortgagor.</p>

Calendar Cause. Delamater sued Pierce before a justice of the peace and declared on an account for services rendered and an account stated —bill on file. The Defendant did not appear.

On the 16th day of October, 1846, the Court of Common Pleas of the County of Eensselaer granted to Daniel T. Wendell a license to keep and maintain a ferry from the foot of State-street, in the city of Troy, to the west shore of the Hudson river, for three years.

to set aside Execution.—By the affidavits read it appeared that a final decree was entered at the September special term in favor-of the Plaintiffs. Within the time required by the rules the Defendants prepared and served a copy of a petition for a rehearing with notice of an application therefor for the next general term.

<p>In a foreclosure suit, the solicitor is not entitled to costs for drawing the report of the referee on computing the amount due, &c. The referee is to perform that duty, for which he is paid a per diem allowance. Nor can the solicitor charge for drawing advertisement, conditions of sale, report of sale, or other papers relating to the sale. The services are to be performed by the sheriff, where he makes the sale, and are covered by the llth section of the Judiciary Act.</p>

This was an apjilication for a mandamus to be directed to the County Court of Dutchess county, requiring the court to admit William Brewer to practice as an attorney and counsellor of that court.

Petition by next friend to have bill dismissed with costs to be paid by the Defendant.—The bill was filed in July, 1846, to obtain a separation from bed and board. The Defendant put in his answer in November of the same year. In March, 1847, the wife returned to her husband, and from that time has continued to live' with him—a reconciliation having taken place. The next friend now prays for an order requiring the Defendant to pay 'his costs.

—This suit was commenced in the Court of Chancery, and at the last special term, on a regular hearing, the bill was dismissed with costs to the Defendants. Adriance, one of the Defendants, held a mortgage prior to that of Plaintiff, which he commenced foreclosing by advertisement, under the statute, during the pendency of the Chancery suit. The Plaintiff applied to this court for an injunction to restrain him from proceeding on his statute foreclosure, which was granted.

This was an action of trespass. The declaration was served May 9th, 1842. The canse was tried at the August circuit in Chenango county, 1844. One of the grounds upon which it was defended, was, that trespass would not lie, the possession of the property in question being in one Harris, under a lease from the Plaintiff, and the Defendant moved for a non-suit upon that ground; the Plaintiff claimed the declaration to be substantially in trover, and succeeded at the circuit.

Before Justices Maynard, Selden, and Sill.'—This was a demurrer tó a return to a writ of alternative mandamus directing the judges of Yates Common Pleas to revoke an order setting aside a demurrer to a plea of a Defendant in a suit wherein the relator was Plaintiff. Prosser, of counsel for the relator, commenced the argument. The ' ■court, stopping the counsel, asked if the suit in the Common Pleas was, by the constitution and Judiciary Act, transferred to this court.

P. Gr. Buchan, of the facts proved before him, and for leave to incorporate the same in the judgment record, or that an alternative mandamus issue to said P. Gr. Buchan, requiring him to make such report. The affidavit upon which the motion is founded, is not entitled.

A motion was made by the Defendant, Glass, to set aside a master’s sale, made under a decree of foreclosure in this cause, on the 13th of July last. The mortgage, upon which the decree of foreclosure was made, was executed by Grlass to one Boss, and by him assigned to the Plaintiffs. It was dated July 24, 1844, and executed to secure the sum of $800, payable in three annual instalments with interest. The first instalment was paid.

At the last Eensselaer circuit, held by Mr. Justice Watson, an order was made, on motion of the Plaintiff’s counsel, referring this cause, for hearing, to referees, on the ground that the trial required the examination of a long account. On that motion, affidavits were read on both sides. The Defendant now moves to vacate the order for reference so made by Justice Watson, claiming that the affidavits did not show a proper case for reference.

<p>Where creditors’ bills were filed in several causes against a judgment debtor to set aside as fraudulent, an assignment made by the debtor, of all his real and personal estate, and to compel the satisfaction of the judgments out of the equitable interests, &o. of the judgment debtor; and the assignment was declared fraudulent and void as to creditors, and was decreed to he set aside, with directions to the receiver to convert the real and per- • sonal estate assigned to him into money, for the purpose of satisfying the complainants ; Meld—on a motion that the court "prescribe a rule for the distribution of the funds recbivedy as proceeds of the personal and real estate in the hands of the receiver, there being insufficient to satisfy the whole—that the creditors were entitled to satisfaction of their judgments respectively, out of the funds derived from the read estate in the order of priority of their judgments; and out of the personal fu/nd in the order in which the hills were filed and the equitable Mens created.</p> <p>A judgment creditor having a prior outstanding judgment against such judgment debtor, and who is not made a party to any of the creditors’ bills filed, and is not a party to the motion for distribution, cannot be paid out of the fund in court. The sale of the real estate under the decree of this court does not subvert the lien of his judgment. The general scope and object of a creditors’ bill stated, per G-bidlbt, Justicb’.</p> <p>The assignee in the assignment decreed fraudulent, having advanced money on an outstanding mortgage to relieve the real estate conveyed to him in trust, it was directed that he he reimbursed such amount out of the proceeds of the land in the hands of the receiver.</p> <p>The party who obtained the first judgment having filed the first hill, was entitled to he first paid, having the oldest lien on both funds; and the personal fund was directed to be first applied to such hen.</p> <p>The creditors who had an interest to have this iien paid out of the real, instead of the personal fond, should have shown superior equity to the other creditors who had an interest to have it paid out out of the personal fond, in order to change the destination of such fund, under the general rule that personal property should he first applied to the payment of'debts.</p>

This was a motion to set aside for irregularity a decree of affirmance taken by the Plaintiff by default at the Erie general term, on the 6th December last. The cause had been commenced in the late Court of Chancery, and a decree made therein by the late Vice-Chancellor of the 8th circuit. An appeal from the decree was entered in this court since the first Monday of July last, by Hamilton Harris, one of the Defendants.

This was a motion by Defendant in error to strike out, as frivolous, the replication of Plaintiff in error to the plea of the Defendant in error.

Motion by Defendant to set aside declaration and proceedings in Ejectment.—The land in question lay in Niagara county, and the venue was laid there. The notice subjoined to the copy declaration served, stated that the declaration would be filed on the 6th day of Sept. 1847, and in other respects conformed to the statute.

This was amotion made by appellant to strike the cause from the calendar, with costs.—On the^-ground that the cause had been submitted to arbitration by an agreement in writing, signed by Joseph P. Mosher, one of the respondents, and Hiram Slocum for Joseph Slocum, the appellant.

—The suit was commenced against Lucas Elmendorf in his life-time, to recover moneys received by him, as Surrogate of Ulster county, belonging to the estate of John I. Lefevere, of which the Plaintiff was administrator; and which Elmendorf had neglected to pay to the creditors of the last named estate. The suit was commenced in 1842, and the default of the Defendant was entered in July, 1843.

Motion hy Defendant for costs of issues found in her favor—TMs was an action of ej ectment tried at the last Dutchess circuit. The declaration contained three counts. In each count the Plaintiff claimed an undivided interest in two separate and distinct lots of land. In the first count he claimed l-18th; in the second count l-9th; and in the third count he claim - ed the whole premises.

Motion to dismiss bill for want of prosecution.—The bill was filed on the 15th of April, 1847, and subpoena to appear and answer issued and served upon some of the Defendants. The Defendants, Cornelius Peters and John Martin, appeared and put in their answer in August. Philip E. Brill, another Defendant, appeared by a separate solicitor, and put in his answer in August. Benjamin Germond and wife appeared by a third solicitor, and put in their answer in August.

<p>A sale of mortgaged premises made in the county where the premises are situated, will not be set aside or opened, because it is made at a distance of 21 miles from the premises. If the sale is made in the county, the place where made, &c., is in the discretion of the officer malting it.</p> <p>Nor wiR a sale be opened for an alleged improper refusal of the sheriff to adjourn it, where the papers do not show facts clearly, that the sheriff abused his discretionary power to adjourn.</p> <p>The court will never set aside a sale without some pressing reason, and where the mortgagor has not been guilty of neglect.</p>

Motion to take the Defendant’s answer from off the files, on the ground of irregularity. The same having been put in on oath, although an answer on oath was waived in the bill

The issue joined in this cause was referred for trial to Hiram P. Hunt, Esq., of Troy, as sole re- feree. The Plaintiffs’ attorney resided at Troy, and the Defendant’s attorney at Whitehall, Washington county, about seventy miles distant. The cause was duly noticed for hearing before the referee at Troy, for 16th of December, 1847, at 10 A. M. The Defendant’s attorneys issued subpoenas which were served, and employed counsel at Troy, to try the cause.

<p>Where more than a year and a day elapse after the date of a warrant of attorney to confess judgment, the Plaintiff must procure an ex parte order of a judge at chambers, or of the court to authorize the entering up of judgment: after ten years the order can be made only by the court.</p> <p>To entitle the Plaintiff to such order, he must prove by affidavit the due execution of the warrant of attorney, that the debt, or some part of it, is still due, and that the parties are alive.</p> <p>Where the Plaintiffs’ attorney accidently omitted to obtain such order, but entered up judgment nearly two years after the date of the warrant of attorney, it appearing- that the Plaintiff was entitled to the order, and that the Defendant had not been prejudiced by the omission to obtain it, the court refused to set aside the judgment and execution, but allowed the Plaintiff to enter the order nvmpro.twnc, on paying costs of the motion.</p> <p>The power of the court to allow amendments will be liberally exercised, and will be extended to every case within the statute, where it is necessary to prevent a substantial right being sacrificed to a mere technicality.</p>

This was a motion made by the respondents to dismiss an appeal brought by the appellant, from an order made at a special term of the Supreme Court in Equity, held at the city of New York, on the 8th day of November, 1847—-J. W. Edmonds, Justice, presiding—the order was as follows:—• “ William R. Gracie v. Abraham G. Thompson et al. An order in the words and figures following, to wit: In the Supreme Court in Equity, held for the state of New York, on the 29th day of July, A.…

This was a motion by Defendant to vacate an order made by a county judge, to hold the Defendant to bail in an action for slander, and that the bail-bond executed to the sheriff under it be delivered up to be cancelled. The following are copies of the affidavits on which the order was made. Schoharie county, ss: Rufus Adams, being sworn, says, that Thos.

In these cases suits had been commenced before a justice of the peace of Oneida county. The Defendant interposed pleas showing that the title to land would come in question, and gave the bonds required by the statute to put in bail, &c., in the Common Pleas. In June, 1843, the Plaintiff commenced suits in the Common Pleas by capias; the Defendant appeared, put in bail, and pleaded, and the causes were at issue in that court, on the first Monday of July last.

<p>The facts are stated in the opinion of the court.</p>

Costs.—In this case the complainant’s solicitor inserted in his bill of costs for taxation, a charge for drawing points for hearing on pleadings and proofs, folio 80, at twenty-eight cents, and copy at seven cents; also one copy for court, and one copy for opposite solicitor, amounting in all to $39.20.

. Costs.-—This cause was noticed for trial at the last Essex circuit, and the trial was put over the circuit on the Defendant’s application, upon .payment of costs.

before Willard, Justice.—An application was made to Justice Willard, at chambers, for an order directing a commission to issue to the Bev. Justin Perkins, D. D., residing in the city of Oroomiah in Persia, to take the acknowledgment of a deed, to be executed by Dr. Wright and lady, residing in that city, of lands situate in this state, in pursuance of 2 B. S. 757, § 8, and a question arose whether this could be done at chambers, and as to the form of the caption of the order.

This cause was decided by tMs court at the last January term, in favor of the Defendant in error, and the judgment of the Supreme Court affirmed, and the usual order entered for a remittitur, and the Defendant in error being about to move for double costs in tMs court, it was stipulated by and between the attorneys, for the respective parties to admit and agree upon the following facts for the purpose of such motion, viz:. “ The Defendant, Luce, was a deputy sheriff of the…

Upon the sale of the mortgaged premises under a decree in this cause there was a surplus of $1074.35, which is the subject of the present application. On the 13th day of November, 1845, Cornelius L. Tracy recovered against John Clapp, the owner of the equity of redemption in the mortgaged premises, a judgment for $168.52. This judgment, on the 17th of September, 1847, was assigned by Tracy to Eichard Eose, who claims that it should be paid out of the surplus.

<p>The irregularity of the service of a paper is waived, if received and acted upon by the party upon whom it was served.</p> <p>Thus, where Defendant served an order that Plaintiff file security for costs, with stay until it should be filed, and the sureties should justify, if excepted to—and notice was given to Defendant of filing and name of surety, &c.—and subsequently the surety justified in the Sum of $250, of which notice was also given to Defendant, and at the expiration of twenty days, in which the Defendant was allowed to plead, Plaintiff entered his default, &c. Upon a motion to set aside the default, &c., as irregular, it did not appear that Defendant served his order to file security, &c., by sending by mail or paying postage. Held, that the Plaintiff, having received and acted under the order, he waived the regularity of service—and the order to stay washer se a suspension of the time to plead until the sureties justified, if excepted to—that the Plaintiff not having properly justified, (the penalty of the bond being $250, and the surety justified in the same sum, instead of double that amount,) as the statute required, the default, &c., was irregular.</p>

<p>This was a motion to dissolve an injunction upon the matter of the bill only, under the 24th rule of this court.</p> <p>In November, 1844, one William Myers formed a copartnership with the Defendant, Lane, in the retail crockery business, which was to be conducted in the name of Lane. Under their agreement Myers was to furnish Lane with goods which were to be paid for by Lane, from time to time, as he should make sales. On the first of February, William Myers formed a partnership with one John D. Myers, under the firm of Myers & Co. At this time Lane owned William Myers a balance of $166,28, on account of the goods he had previously furnished. Subsequently, the firm of Myers & Co., continued to furnish Lane with goods upon the same terms. The profits of the business were to be equally divided between Lane and Myers and Myers & Co.</p> <p>In November, 1846, Myers & Co., failed, and made an assignment of their property, including their interest in their copartnership with Lane, to the Plaintiffs. When the assignment was made, Lane had in his possession goods which had been furnished by Myers & Co., to the amount of about $500, and was largely indebted to them on account of such goods. These goods were replevied by the Plaintiffs and the action is now pending in the New York Common Pleas. On the 9th of February, 1847, Myers & Co. obtained a judgment against Lane for $1121.05, which was assigned to the Plaintiffs. On the 2d February, 1847, the Plaintiffs, as assignees of Myers & Co., recovered a judgment against Lane for $274.75. In December, 1846, Lane assigned the claim he had against the Plaintiffs on account of the goods taken upon the replevin to the Defendant Meeker, for the benefit of his creditors.</p> <p>The bill prays for an account and settlement of the copartnership affairs between Lane and Myers & Company.</p>

This was a motion on the part of the Defendant in error, to amend the. copy of the record sent to this court by the Hew York Common Pleas, with the writ of error issued in this cause, so as to make such copy correspond with the record as amended by the court below.

An application to let the prisoner to bail. Edmonds, Justice.—In a criminal case, where the offence is not capital, a writ of error is a writ of right, which no judge of this court can refuse to allow. To stay proceedings, however, on the conviction is a matter which, under the statute, is submitted to the discretion of the judge allowing the writ.

Justices Edmonds, Paine and Edwards.—On the 1st of April, 1848, a final decree of this cause was made at a special term. On the 22d of April, the Defendants served on the Plaintiff’s solicitor, and on the county clerk, a notice that they would move for a rehearing.

a rule was made by the Supreme Court in each of these causes as follows: “After hearing counsel for both parties, on Defendant’s motion, ordered that a writ of error issue in this cause unless the Plaintiff shall vacate the judgment within twenty days, in which case no writ is to issue and no costs are to be allowed to either party, but if the judgment be not vacated, and notice given within said twenty days, a writ of error may issue, and in that event costs are to abide…

Motion by a bona fide purchaser of real estate under a junior judgment for a perpetual stay of execwtion.■—The Plaintiffs in this cause obtained a judgment which was docketed January 16, 1838, on which an execution was issued January 18, 1838, to the sheriff of Montgomery county.

Scott, for the Defendant, made a motion to Willard, Justice, at chambers, in pursuance of section 360 of the code, to vacate the order which he had before made for the arrest of the Defendant. The motion was made on notice to the attorney for the adverse party. In support of the motion, he first read a copy of the affidavit of the Plaintiff, on which the judge had granted the order of arrest.

<p>By the 20th section of the Judiciary Act, (1847,) the right was given to either party, in an equity suit or proceeding, heard and determined at a special term, to apply at a general term for a re-hearing. But the time and manner of making the application, were left to he regulated by the rules and practices which the court might adopt, pursuant to the 24th section of the act.</p> <p>By the 78th rule of court, it is provided that “notice of an application for a re-hearing before the court at a general term may be served at any time within thirty days after service of the decree or order complained of; and, if not applied for within that time, process may issue to enforce the decree or order.”</p> <p>This provision is regarded as a limitation of the time within which a re-hearing may he applied for under the rule.</p> <p>It is not, however, intended that by allowing the thirty days to elapse, the right to a rehearing is absolutely lost. The court, upon a sufficient excuse, and for a good cause shown, has power to dispense with a rigid adherence to the requirements of the rule. (1 Paige, 391.)</p> <p>It seems that the contents of the petition on such application, required by the 79th rule, is rendered unimportant, since the decision of the Court of Appeals declaring the order for a rehearing a matter of course instead of discretion.</p> <p>Service of a copy of petition for re-hearing, and order to stay proceedings, unaccompanied •with a notice of motion, is a nullity. (1 Caines, 505; 5 Cow. 438.)</p> <p>Where the notice of the application for a re-hearing which the rule had prescribed as a condition precedent to the relief sought, was not only not served within the thirty days, hut not until more than a month after the supplemental code became a law, (no excuse being offered for the laches)—held, that no right having been secured to the applicant to have the motion entertained, and no effectual step having been" taken under the 78th rule—on the 12th day of April, the provisions of the supplemental code became directly applicable to the case.</p> <p>It seems that the motion being made after the 1st of July, 1848, the relief could not he granted under the Judiciary Act and rules of court. By the code of procedure, the practice of reviewing a decree made by a single justice upon a re-hearing was abolished, and an appeal was substituted in the place of a re-hearing. By the 388 and 389th sections of the code, all statutory provisions, and all rules and practice of the courts, inconsistent with that act, were abrogated; and by the 391st section this repeal took effect on the 1st of July, 1848.</p> <p>The applicant not having secured any vested rights, or even inchoate rights under the Judiciary Act and the rules of the court, held., that the provisions of the supplemental code must of necessity apply to the case; and the conditions therein upon which a re-hearing might be had not having been complied with, this court could grant no relief.</p> <p>The result of the opinion in the case of Schermerhorn et. al., v. The Mayor, &c. of New York, ante page 254, concurred in.</p>

<p>On motions made to a justice out of term, upon notice, under the 360th section of the code, the affidavits, &c., of the respective parties used on the motion, must be filed with the clerk of the county, where the venue is laid; or, in case the place of trial has been changed, in the county to which the other papers in the cause are transferred. •</p> <p>The order or decision made by the justice in such cases, must also be entered with the clerk of the same county where the papers are filed.</p> <p>It is the duty of the respective attorneys to file the papers used by them on such motion, and of the prevailing party, to see that the rule is entered conformably to the decision.</p> <p>Orders granted by a justice ex parte at chambers, under § 366, need not be entered with the clerk.</p> <p>Such order may be disregarded unless the affidavit, or a copy thereof, is served with a copy of the order.</p> <p>It seems there is no appeal to a general term from the decision of a judge, in granting or refusing an exporte order.</p>

The bill in this cause was filed to reach the rights in action and equitable interests of the three first-named defendants therein, setting out several trusts and assignments which were charged as fraudulent; and also seeking to have determined in the same suit a disputed question as to the ownership of certain shares of stock of the Jefferson County Bank, amounting to $15,000, which the bank had declared forfeited, and had sold to Adriel Ely, who had refused to complete the…

<p>An execution may be issued forthwith upon the entry of judgment in a suit commenced under the code of procedure.</p> <p>The fees and disbursements in such a suit paid to the proper officers for oaths, to clerks, sheriffs, and other officers, which are given by 2 R. S. 634, § 20, may be properly charged and embraced in the judgment.</p> <p>A judgment may be properly taken ibr the sum specified in the summons, with the interest in addition thereto, where the notice has thus been given.</p> <p>A demwrer can only be adopted in the particular cases prescribed by the code of procedure. However defective the complaint may be, or however far short it may come of complying with any or all of the general rules of pleading laid down in the fifth chapter of the title upon pleadings,” the Defendant cannot demur unless the objection falls within one or more of the six grounds enumerated in the 122d section of the act.</p> <p>Where a demurrer legitimately comes within this section (122d) the Plaintiff cannot treat it as a nullity, and enter judgment for want of an answer upon the ground that the demurer was clearly frivolous. That question the Defendant has a right to submit to the court for its judgment.</p> <p>Where the Defendant interposed a demurrer to the complaint, and assigned one ground of demurrer as follows: the complaint does not state a sufficient cause of action against the Defendant; held, that it was substantially the same, and equivalent to the ground stated in the 6th subdivision of the 122d section, and was a legitimate demurrer under the code. That the statement of the objection in this general form might be all that could be done in a large class of cases.</p> <p>An answer must be verified by oath, otherwise, it may be treated as a nullity in analogy to the case of pleas in abatement.</p>

In this suit a declaration was made out and filed on the 29th May, 1848, and copies of the same were handed to the deputy sheriff of Montgomery county on the 1st day of June, 1848, with the usual notices to plead endorsed, to be served on the Defendants, but they were not actually served until the 15th day of July last.

Motion on the part of the Defendant to set aside his default for not pleading, and all subsequent proceedings.—The declaration was served on the 6th day of June, 1848. Notice of retainer served by Defendant’s attorney on the 21st of June. On the 24th day of June, Mr. Justice Sellen made an order extending the time to plead to the 27th day of July, which was immediately served.

This was a motion to set aside the judgment and subsequent proceedings in this cause, for irregularity. The facts appear sufficiently in the opinion of the court.

Mr. Bulkley moved for an order entering the default of some of the Defendants on whom a summons and notice had been served in a partition cause. The proceedings were commenced after the 1st day of July last.

Held at Albany, before Justices Harris, Watson and Parker. In this cause a motion to dissolve the injunction on bill and answer had been made before a justice of the Supreme Court and the motion denied with costs. The Defendant’s counsel obtained from this court, at the last June term held at Kingston, an order for a rehearing of the motion, and the argument of the motion on the rehearing took place at Albany in September term, 1848.

F. L. Seely moved before Mr. Justice Hand, at his chambers, for an order of publication in case of an absent Defendant, The suit was commenced since the first day of July last for the adultery of the wife. The draft of the order asked for, included the complaint.

This was a motion on the part of the Plaintiff to amend the summons and complaint in this cause under the 149th section of the code of procedure. It appeared by the affidavits presented on the hearing of the motion, that the suit was commenced since the first day of July, and that an answer had been put in on the 11th August last, and that subsequently the testimony of a witness had been taken de bene esse on the part of the Plaintiff.

Sill, Justice.—Motion to set aside proceedings to obtain possession of personal property under the 182cZ section of the Code of Procedure. The facts set out in the complaint constitute a cause of action either in trespass or replevin, under the old practice, and prays for damages, and not for the possession or return of the property.

<p>This cause is at issue, and. an application is now made upon a petition under the Bevised Statutes, (2 E. S. 199-200,) for an order compelling the Defendants to discover certain books and papers in their possession, which are necessary to enable the Plaintiff to prepare for trial. It is conceded that, under the former practice, enough is shown to entitle the Plaintiff to the order, but it is insisted the Code of Procedure has substantiated a new remedy for this proceeding, and by implication repealed it.</p>

This is an action of debt, brought upon a guardian’s bond against the guardian and his sureties.

This action was commenced by the service of a summons and complaint on the 11th day of September last. The cause of action stated in the complaint is a promissory note made by the Defendants.

On the 11th of August, 1847, upon the application of Charles Anderson, as a creditor of Patrick Leonard, a warrant was issued by the county judge of Ulster to the sheriff of that county, commanding him to attach, &c., the property of Leonard as an absconding or concealed debtor.

The action in this case was commenced under the code by summons and complaint. The cause of action set forth in the complaint is an assault and battery committed by the Defendants upon the Plaintiff while in the discharge of his duty as a constable. The Defendants served upon the Plaintiff’s attorney an answer, but omitted to verify it. The Plaintiff now moves for the relief demanded in the complaint and for an order that his damages be assessed by a jury.

This was the trial of an issue of law arising on the facts alleged in the answer, and not controverted by the Plaintiff, under the second subdivision of § 204 of the Code of Procedure. The cause was argued before Mr. Justice Parker, at the Ulster circuit, October, 1848.

action was commenced on the 29th of August last, by the service of a summons and complaint pursuant to the code. The object of the proceedings is a partition of lands. A motion is made by the Defendant Thomas B. Stilwell, to set aside the Plaintiff’s proceedings for irregularity, and the ground upon which the Defendant relies, is that the proceedings should have been instituted in the manner prescribed by the Revised Statutes, and not by summons and complaint.

<p>Before Justice Barculo.</p>

<p>Before Justice Barculo.</p>

Before Harris, Justice.—The Plaintiff brought his action to recover for the transportation of a quantity of corn from Oswego to Albany. The suit was commenced in April, 1848. The Defendant pleaded the general issue, and the cause was referred and brought to a hearing before the referee on the 4th of August. Upon the hearing, it appeared that one Willham Benedict was jointly interested with the Plaintiff in the profits of the trip when the corn in question was transported.

Before Parker, Justice.—The complaint was for slander, and the venue laid in Ulster. The summons contained a notice to the Defendant, that the Plaintiff would apply at the next Albany circuit, to be held on the first Monday of December, for the relief demanded in the complaint. Twenty days having elapsed after service and no answer having been served, Plaintiff applied at the Albany circuit for judgment.

Before Parker, Justice.—This was an action commenced under the Code of Procedure. An answer had been put in and the cause was on the calendar for trial. Ho affidavit of merits having been filed, the Plaintiff at the opening of court on the second day of the circuit asked leave to take an inquest in the suit out of its order on the calendar.

<p>In an action for the foreclosure of a mortgage, “ the proper county” for the place of trial, (§ 105,) is where the mortgaged premises are situated, (§ 103,) although the money may he loaned and the mortgage executed and delivered to the mortgagee, in another county</p>

This was a motion to dissolve an injunction. Several questions of practice were discussed which are decided in the opinion of the court.

Before Parker, Justice. In this case an action was brought upon promises and an inquest was taken, the Defendant having neglected to file an affidavit of merits. Otis Allen, for Plaintiff, asked for an allowance of the per centage under the 263d section of the code.

This suit is brought to recover for the transportation of flour by the Plaintiffs for the Defendants. The venue is in Eensselaer. Held: to stay proceedings until the return of the commission, and also for leave to renew the motion to change the place of trial with a stay of proceedings.

Before Paige, Justice.—Motion by Defendant, Bentley, to set aside the judgment and execution in this cause as against him. The Plaintiff, Sterne, on the 8th day of Sept. 1848, caused a summons and complaint to be served on the Defendant, McLaughlin.

Argued at General Term, before Harris, Watson and Parker, Justices.—This was a motion to dissolve an injunction.

Before Strong, Justice.—A motion was made to allow the Defendant Wilson to answer, although more than twenty days had elapsed since the complaint and-summons had been served upon him. It appeared that there had been a misunderstanding between him and his attorney which had caused the delay. He swore to merits.

This was a proceeding for par- • tition of lands, commenced by petition according to the former practice, under the third title of chap. 5, part III. of the Revised Statutes. On proof of due service of the petition, the Plaintiffs move for the usual order to answer the petition, &c.

The complaint alleged that the Plaintiff held a promissory note against Da H. Sherman and Edward P. Barton—that Sherman assigned all his property to the Defendants, who, in consideration thereof, agreed with Sherman, by instrument in writing, to assume the payment of said note.

<p>Where a motion is noticed for a day out of an appointed term, it must be brought on on the day specified,; and, where the moving party does not appear on that day, he can not be entitled to his motion by default on a subsequent day.</p>

The Plaintiff declared for the breach of a contract, whereby the Defendants agreed to transport from Buffalo to the city of Mew York a quantity of pork and lard for the Plaintiff—and averred the delivery of the pork and lard to the Defendants to be transported pursuant to the contract, and that the Defendants delayed and neglected to ship and transport the same within the time agreed upon; whereby the Plaintiff had sustained damage, &c. The Defendants pleaded the general…

<p>Where an undertaking' was executed by the appellant and his sureties in pursuance of the 284th section of the code, upon bringing an appeal, agreeing to pay “ all damages,” &c., but no agreement to pay costs as .is required by the 283d section, held, that the appeal was not effectual for any purpose.</p> <p>The court cannot amend such an undertaking, without the consent of the parties to it. The 149th section of the code authorizes the court to amend pleadings and proceedings in certain specified cases, but such a case as this is.not among the number.</p>

Phillips sued Tilley in the Supreme Court, and was non-suited on the trial in November, 1846. The Plaintiff took a bill of exceptions, upon the argument of which, the Supreme Court granted a new trial in November last. From that decision the Defendant Tilley appealed to this court, by giving notice of the appeal and executing an undertaking pursuant to the Code of Procedure. (§§ 275, 284.) The undertaking was not a bond.

J. J. Tyler, for the respondent, moved to dismiss an appeal. Judgment for the Plaintiff Lawrence Clickman, 2d, was entered on the 22d of July last; and on the 19th of August following, the Defendant gave notice of an appeal. The appellant- had not caused the return to be filed, nor had he furnished copies of the case. N. Hill, Jr., for the appellant, objected, that the affidavit on which the motion was founded, and the notice of motion, both mentioned the wrong court.

A. B. Ketcham, for the respondent, moved to dismiss the appeal. Floyd sued Eice before a justice of the peace, in August, 1847, and judgment was rendered for the Defendant. On certiorari, the Common Pleas reversed the judgment. Eice then brought a writ of error, ■ and the Supreme Court, in May last, affirmed the judgment of the Common Pleas. Eice appealed to this court in November last, in the form and manner prescribed by the code.

<p>Upon an appeal under the code; the undertaking must conform to the 283d section, as well as to the 284th section, when execution is sought to be stayed, &c. And, in all cases, it must conform to the 283d section, to render the appeal effectual for any purpose. (See the case of Langley & Langley v. Warner, decided in the Court of Appeals, ante page 363.)</p> <p>Meld, that where an undertaking is defective, and conforms only to tile 284th section when it should conform to that and the 283d section likewise, it may be amended by the court under the general power conferred upon them by the 149th section of the code; that it is a proceeding in the cause, the amendment of which, in furtherance of justice, was manifestly intended by the language of that section. (This branch of the opinion is adverse to the decision on the same point in Langley & Langley v. Warner, above cited.)</p> <p>It seems, also, that the court have the power of amending such an undertaking, under § 34 of the Revised Statutes, relating to suits and proceedings in civil cases. Although such security is no longer called a hond, yet, in substance and legal effect, it does not, in any respect, differ from the appeal bond required by the Revised Statutes; and indeed, such a bond would be a sufficient undertaking under the code.</p> <p>It is not essential to the validity of an undertaking, that it should be proved or acknowledged; all that the code requires is, that it should be approved by a justice of the court, or county judge. It is a matter in the discretion of the officer, whether he will approve the undertaking without requiring it to be proved or acknowledged. Nor is it necessary, in the first instance, that the sureties should justify. It is enough, in that stage of the proceedings, that the approval required by the 290th section of the code, is indorsed on the undertaking.</p> <p>It is not necessary that a notice of appeal, should state the grounds upon which the appeal is brought. It is sufficient if it specifies what part of the judgment is appealed from, where a part only is intended to be reviewed.</p> <p>Where the Defendants gave notice (in time) that they excepted “ to the decision of the referee, whereby he decided that there was due from the Defendants to the Plaintiff the sum ofj &c.,” held, that it was equivalent to an exception to the conclusion of law derived</p> <p>by the referee from the facts found by him, (§§ 222, 223 and 22T,) and consequently was sufficient to entitle them to a review of the decision upon appeal.</p> <p>It seems that where a case is made for the purpose of obtaining a review upon the evidence under the provisions of § 223, it should be verified, as required by the 44th rule of this court.</p>

This was an action of assumpsit commenced in 1846, and referred in July last, to a sole referee, who on the 29th September last, made a report in favor of the Plaintiff for $117.33, and Defendants made and served a case in due time to set aside the report, and to which case the Plaintiff prepared and served amendments, and the Defendants noticed the case for settlement before the referee in due time and the ease was settled by the referee and the Defendants noticed the cause…

This cause commenced in 1846, was tried before Justice Mason at the Chenango circuit, in December last, and resulted in a verdict for the Defendant.

On the 23d of August, 1848, Plaintiffs commenced their action, alleging in their complaint an unjust detention of property, and demanded judgment for the value thereof. The summons contained a notice that on failure to answer, the Plaintiffs would take judgment against the Defendants for $1333.80.

Motion to set aside judgment for irregularity. The relator obtained an alternative mandamus in April, 1845, requiring the Defendants to audit and allow certain accounts for services performed by him as a Justice of the Peace under the act entitled “ of beggars and vagrants.” The Defendants made a return admitting that said accounts were presented to the board of supervisors at their annual meeting in 1844, with other accounts, and that a portion of the claim was disallowed…

This action was brought upon a note. The summons and complaint were served on the 20th December, 1848. On the 2d of January following, the Defendant tendered to the Plaintiff’s attorney the amount claimed upon the note, principal and interest, which he refused to receive, on the ground that he was also entitled to $7 costs.

The complaint in this case is founded on a trespass to lands by cutting wood, &c., and claims $300 damages. After the action was commenced the Plaintiff obtained a temporary injunction upon an affidavit setting forth that the Defendant continued the cutting, and which tended to render any judgment he might obtain, effectual, &c.

An action was commenced by the relator against William Herrick, for an assault. ■ Issue was joined, and, upon the trial, the Plaintiff recovered a verdict.

<p>An administrator of a deceased Plaintiff, in an action of assumpsit, may have leave to continue the action, under section 101 of the code, if he shows a cause of action which mrvives, notwithstanding it appears by the Defendant’s affidavits that the original Plaintiff in his life time, had assigned the demand before the commencement of the suit. The objection of the Defendant goes to the foundation of the action, and the court cannot try the merits of a cause upon affidavits.</p>

Before Willard, Justice.—This was an action of trespass, assault and battery, commenced in this court by capias on the 22d April, 1848, and was tried at the Herkimer circuit on the 5th Oct. 1848, when the Plaintiff obtained a verdict for sixty dollars. On the 13th October, the Plaintiff’s costs were taxed by a justice of this court at $43.67, and the judgment was docketed on the 17th of the same month.

Before WlLLARD, Justice.—This cause was placed upon the jury calendar for this circuit, and after the jury was empannelled, it was objected that no issue of fact had been taken in the cause, inasmuch as the Plaintiff had not put in a reply to the Defendant’s answer.

At chambers.—Motion to set aside the service of a summons and complaint, with the subsequent proceedings, under the following state of facts. The summons and complaint were served on the Defendant on the 27th day of December, 1848. These papers were signed “ Archibald Weir, by J. Q. Oramer, Agent, and the summons required the an- swer to be served in the following words, viz.: “ On me at Eussia Corners, Herkimer County.

<p>This action was commenced prior to July, 1848, and was an action of trover. It was tried on the 25th Oct. last, at the Washington circuit, before Mr. Justice Harris, when the Plaintiff obtained a verdict for $930. On the 26th October, the Plaintiff gave to the Defendants’ attorney a stipulation, giving him fifteen days within which to make and serve a case and staying the proceedings in the mean time. On the 30th October, the Defendants’ attorney applied to the judge ex parte, and without affidavit, for an enlargement of the time to prepare the case; and the judge granted an order extending the time forty days from that time, and staying the proceedings of the Plaintiff in the mean time, and in case of the service of such case, then continuing such stay till the decision of the Supreme Court thereon. The judge afterwards modified the order so as to allow the Plaintiff to perfect his judgment on the verdict, and judgment was accordingly entered up. The Plaintiff’s attorney, treating the order of Judge Harris, as not being operative to stay the proceedings beyond ten days from its date, issued his execution after the expiration of that time, which the Defendants’ attorney now moves to set aside for irregularity.</p>

This was an action to recover several instalments of the Defendant’s subscriptions of stock. And a question arose whether a stockholder who had assigned his stock to another stockholder who had given him his note for the par value of the stock, could be sworn as a witness upon the ground that he had assigned the stock for the purpose of being a witness.

<p>The 46th section of the amended Judiciary Act of 1841, (2 Vol., p. 641,) is unconstitutional. (See 8th section of the 6th article of the constitution.)</p> <p>It was held, that a special attorney who had not complied with the provisions of the constitution, as to his admission, was not authorized to conduct a suit for another, as his attorney ; and that if he did- so, no costs could he taxed in his favor for his services. (See ■ ante pages 169 and 391.)</p>

This action was brought to recover a promissory note dated 29th July, 1844, for five hundred dollars. The note was signed by the Defendant Wright, as surety for the other three Defendants, who were the’ principal debtors, and who made no defence.

<p>A guardian for an infant Plaintiff, must be appointed before the issuing of a summons and " complaint. (2 R. S., 446.) The code has not abrogated the former practice.</p> <p>Where such guardian was not appointed until the day of service of the summons and complaint, which were dated and sworn to one day previous, held, that the summons was irre- ■ guiar. (See 12 Wend., 191.)</p> <p>Where objection was taken to the entitling of the complaint, because the names of all the parties were not fully stated in the caption, but it appeared that they were given in the body of the complaint correctly—held, that the names appearing in the body of the com-</p> <p>■ plaint, in a maimer to be understood “ by a person of common understanding”—the requirements of the code were satisfied.</p> <p>It seems, where a guardian of an infant Plaintiff is properly appointed, he may verify the complaint, or it may be done by the attorney.</p>

<p>Under the code, a demurrer can Be interposed only to the entire complaint. A demurrer to a part of the complaint and an answer to the residue, where it appeared that the complaint contained allegations which were all connected together in the statement of one entire canse of action—held, that in joining both the issues of law and fact, there has been a mispleader—nor where a complaint contains two or more distinct causes of action, can a demurrer be interposed to a part of it.</p>

Before Hand, Justice.—The complaint in this cause was served on the 19th day of January last. An answer was served on the 8th day of February inst., and a reply and notice of trial on the 9th inst., at 8 P. M. The circuit commenced on Monday, the 19th of February. A motion was now made to strike the cause from the calendar, on the ground that the notice of trial was too short.

<p>Before Gridley, Justice, at chambers.</p>

Before Welles,Justice.—Complaint on a promissory note dated 4th Oct. 1848, given by Defendant to Lewis Wheélock or order, for $120, and endorsed by Wheelock to the Plaintiff. The answer of the Defendant admits the making of the note, and that Plaintiff is the owner of it, and that Defendant has not paid it, bnt sets up the following facts by way of avoidance.

Before Mr. Justice Hand, at his chambers in Elizabethtown.—E. A. Hubbell moved upon an affidavit, showing the existence of the claim and absence of the Defendant from the state, and that he had real estate in this state, for an order to publish a summons. The affidavit particularly set forth a cause of action, but did not state that a summons had been made out, nor that there had been an effort to serve one, nor did the draft of the order proposed recite this.

Action of assumpsit in the Supreme Court, commenced prior to July, 1848, and tried in October of that year before Judge Barculo, without a jury, pursuant to the 80th section of Judiciary Act. (Stat. 1847, p. 345.) The Judge decided in favor of the Defendants. The Plaintiff did not except to any decision of the judge, but made a case detailing the evidence on the trial, and upon that moved the Supreme Court in general term for a new trial in January last.

<p>This cause was brought on to argument, March 23, 1849.</p>

Assumpsit—The cause was referred to a sole referee, who reported in favor of the Plaintiff. The Defendant made a case containing the evidence before the referee, and moved the Supreme Court to set aside the report. The court denied the motion, and gave judgment for the Plaintiff.

Replevin, commenced in May, 1847 1847. On the trial in November, 1847, the Plaintiff was non-suited, but had to leave to make a case, with the privilege of turning the same into a bill of exceptions. He made a case, and moved the Supreme Court for a new trial. In September last the Supreme Court, in general term, denied a new trial, and tendered judgment for the Defendant.

This was a motion by respondent to dismiss the appeal in this cause. It appeared that the appeal was brought upon a judgment of the Superior Court of the city of Hew York, (the record of which was filed and docketed on the 22d day of December last, for the amount of a verdict and costs recovered in a suit between the parties, wherein the said Lake was Plaintiff, and the said Gibsons were Defendants, in favor of the Plaintiff.

<p>Where the Supreme Court made an order “denying a rehearing,” (of an order appealed from a special term) and subsequently allowed an amendment of the order, so that it appeared “that the merits of the cause, as well as the other questions presented, had hem considered by the court, and then ordered that a releecuring he denied.” Held, on appeal to this court from that order, that it must be reversed on the ground that the rehearing was a matter of right to the party, and not of discretion with the court. (Gracie v. Freeland, 1 Comst. 228, ante, page 218.)</p> <p>The Supreme Court should have granted the motion for a rehearing, and made an order reversing or affirming the order or decree of the special term.</p>

A bill in chancery was filed in 1846, and the cause was brought to a hearing on pleadings and proofs at a special term of the Supreme Court -held in August last, when the bill was dismissed. The complainants gave notice of a motion to the general term for a re-hearing. (Stat. 1847, p. 325, § 20,) but did not give any security until after more than ten days had elapsed from the time of receiving notice of the decree dismissing the bill.

The Sujrreme Court, in August last, made a decree in favor of the complainants in a suit in equity, but without requiring the Defendants to pay the general costs in the cause. The complainants appealed from so much of the decree as denied costs.