appear, nor his counsel, who is then 45. In partition, if the defendant
in court, the plaintiff may take an in- does not appear, the court will, on
quest which the court will not set motion, make an order for partition
aside, though merits be sworn to, if as prayed for. Neilson v. Cox et al,
the absence of the defendant's coun-
sel be not accounted for. Post v. 46. To change the venue in a transi-
Wright & Buchan,
111 tory action special cause must be
37. If a notice of motion for non-shown. Woods v. Van Rankin, 123
suit be titled versus instead of ad sec- 47. If several actions, turning on
tum, and the affidavit rightly titled, the same point, be noticed for trial,
the notice is good. Ryers v. Hillyer, and on the hearing of the first, the
112 judge direct a nonsuit, exceptions to
38. If there be a neglect in not pro- which is taken by the counsel for the
ceeding to trial, the defendant must plaintiff, he will not be liable to judg
avail himself of it the first opportuni- ment, as in case of nonsuit, for not
ty, or it will be a waiver, and subject proceeding to trial on the other causes,
him to costs if he afterwards move nor be obliged to stipulate, and costs
for judgment, as in case of nonsuit. must abide the event, of the suit.
Brandt, ex dem. Ricketts, v. Buckhout, Campbell v. Munger,
113 48. If a party to a suit referred
39. The rule for consolidating ap- cannot produce his witness by the
plies only to several actions on one time of hearing, a judge at chambers,
policy, and does not extend to several or the court, if sitting, will stay pro-
policies on one risk, though the ques-ceedings. The defendant's attorney
tion be the same on all, for the con- having nominated referees, and the
tracts are several. Camman v. Unit. party not having objected, cannot, on
Ins. Co.,
114 that ground, move to set aside the re-
40. If the defendant has joined in port. Combs v. Wyckoff,
147
a commission, the court will not, on 49. If an indictment be removed from
the plaintiff's application, vacate the the sessions into the supreme court,
rule by which it was granted, but any exceptions may be taken to the
will grant one to proceed to trial, not-charge of the judge by making a case,
withstanding the commission. Shuter and bringing it before the court in the
v. Hallett,
same manner as in civil proceedings.
The People v. Croswell,
41. The court will not discharge, on
motion, a person arrested, whilst at- 50. If a plaintiff notice his cause
tending a reference under an order of for trial, and afterwards countermand
the common pleas, if there be no no- it, he must pay the defendant the in-
tice of motion, but will only grant a termediate costs of subpoenaing his
rule to show cause. Grover v. Green, witnesses. Jackson v. Mann, 123
115 51. Notice to refer must contain
42. When a defendant commits a the names of the referees. Misappre-
crime for which he is sentenced to hension of a rule, or ignorance of a
the state prison, the plaintiff may dis- late determination, may be offered as
continue without payment of costs. excuses for not noticing for the first
Lackey & Briggs v. M'Donald, 116 day of term. If the ground of opposing
43. If a plaintiff get relieved from a reference be that a point of law will
his own stipulation, he restores the
defendant to all rights as he stood
when the stipulation was entered into.
Malin v. Kinney,
arise, it ought to be expressly stated
what it is, and that it is as advised by
counsel. Lusher v. Walton, 149
117 52. In order to be admitted as a
defendant in ejectment, a privity must
be shown between the applicant and
the tenant; it is not enough that the
party claims title and has a real and
substantial defence. Jackson, ex dem.
Winter, v. M'Evoy,
151
44. On sci. fa., notice of entry of
the rule to appear and plead need not
be given, as the sci. fa. is notice of
itself, and the default may be entered
on the expiration of the rule, but
judgment cannot be entered till four
days after. If it be, judgment will be 53. Sudden indisposition of counsel
set aside, and the default, if regular, and attorney, is an excuse for not pro-
stand. No default ever set aside when coeding to trial, but will not exempt
regular, except when accounted for to from costs. Jackson, ex dem. Rodman,
the satisfaction of the court. Spencer v. Brown,
▼. Webb,
152
118 53a. A motion cannot be extended
to objects not specified in the notice.
Alexander v. Esten,
152
54. Nine days' notice is enough in
Cayuga, to produce papers in Albany,
distant 180 miles. Jackson, ex dem.
Watson, v. Marsh,
153
55. Whenever a plaintiff amends
his declaration, the defendant has an
election to plead de novo. Webb v.
Wilkie,
court will not order hem to be im-
posed, ut emb. Deas v. Smith, 171
61. If an alien, on removing his
suit into the federal court, file his pe
tition at the time of filing special bail,
he is in season, though the bail have
been excepted to. Arjo v. Monterio,
62 After service of a declaration
153 in ejectment on a tenant, though it
56. All irregularities are waived by may be a totally informal one, yet it
a defendant if he appear on trial. On is sufficient to set him on inquiry;
judgment for nonsuit, nisi, the defend- and if a rule to show cause why the
ant should make a demand of his plaintiff should not amend be granted,
costs, with a copy of his rule annexed, fixing it in the clerk's office is good
and if not paid within twenty days, service on the tenant. If proceed-
he may enter judgment, and if he do ings be commenced for lands, to which
not so, the plaintiff will be regular in a title has been awarded by the com-
noticing for trial. Gilliland v. Mor-missioners for settling disputes re-
rell,
154 lating to lands in Onondaga within
57. When proceedings have been three years after, it is sufficient, and
regular, a mere affidavit of merits is though they may be faulty, and re-
not sufficient to set them aside. In quire amendment after the three years,
such case, if there has been a mistake, it is sufficient to entitle the plaintiff
on which the judgment has been to proceed. Jackson, ex dem. Hoge
taken, the defendant will be relieved boom v. Stiles,
only on costs and terms. Cogswell v.
Vanderberg,
155
63. A motion cannot be made to
set aside a writ of inquiry in the pos-
58. On a reference, if a receipt given session of the plaintiff not returned,
after the rule made be offered in evi- and on which no inquistion has been
dence on the part of the defendant, taken; but if a jury has been empan-
and objected to by the plaintiff, the nelled on it, and has given a verdict
special matter and facts should not on a hearing, contrary to the terms
be returned to the court; but the of a written agreement, the court will
referees should admit the evidence, give leave to issue a writ of inquiry
and make the report on it, that the do novo. Abeel v. Walcott,
250
party aggrieved may bring it fully be- 64. After six years' service of a
fore the court. Quære, if a special declaration in ejectment, the court
matter of fact, without a decision, be will. on terms, give leave to amend.
in any case a report within the mean-Jackson, ex dem. Finch, v. Kough, 257
ing of the rule. Hawkins v. Bradford, 65. The defendant in error cannot
160 nonpros the plaintiff's writ before it is
59. When a plaintiff resists a mo- returned. Van Der Mark v. Jackson,
tion for judgment, as in case of non-ex dem. Ostrander,
suit, for not proceeding to trial, if he 66. If a defendant move for judg
insists on not having been able to try ment of nonsuit, contrary to good
his cause, and others have been heard, faith, the court will make him pay
he must show they were older issues. the costs of opposing. Phelps v. Eddy,
Jackson, ex dem. Williams, v. Cham-
berlin,
171 67. Service on the agent of an at-
60. If a witness has been in the torney plaintiff is as good as in any
power of a plaintiff, he must show other suit, and need not be on the
endeavors to obtain his testimony, or plaintiff personally. Russell v. Ball,
he will not be allowed to urge the
want of it for not proceeding to trial. 68. If cross suits be referred to the
Counter affidavits to those in opposi- same referees, and they make up
tion are not admissible. If a suit be their report in each on the idea that
called and passed, the reasons why the one shall be a set-off to the other,
should be made appear by the coun- the court will set aside both, if the
sel in the cause. If an offer of a com- suits be for demands which cannot
promise be made to the plaintiff and legally be set off. Lyle v. Clason, 323
refused, on a motion for a nonsuit, the
69. If a plaintiff give notice of mo-
Ition to set agi le a judge's certificate
to stay proceedings, and do not at-person on the day of showing cause.
tend to argue, the defendant will be The People v. Freer,
485
allowed costs. In no case will the 79. Causes which have been noticed
court hear an argument to set aside a for argument, and duly entered in one
judge's certificate to stay proceed-term, are not, without a new notice
ings, ut semb. Brett & Bunn v. Hood, to the clerk, carried over to the next.
342 Livingston v. Rogers,
487
70. Affidavit of service on a person 80. On a feigned issue from chan-
in an attorney's office, must show that cery, if an inquest be improperly taken,
there is a relation between him and relief must be sought here. If an in-
the party served. Rathbone v. Black- quest be taken by default at a circuit,
ford,
342 and notice of trial has not been given,
71. When the notice and all the it will be set aside with costs to be
papers are titled versus instead of ad paid by the plaintiff's attorney. Den
sectam, it is fatal. Parkman v. Sher- v. Fen,
487
man,
344 81. The action for a return of pre-
72. Amendments to a case made mium must be against the underwriter
must be in the case served, or refer to and not against the broker, though
the line and page in which it is pro- the assured be himself an underwriter,
posed to amend. The party served and the broker employed by both
cannot draw up a new case. Milward parties. Bowne v. Neilson & Bunker,
v. Hallett,
344
489
73. Where there are some good 82. In an action on a promissory
counts and some bad, and a general note, if, in consequence of the plain-
verdict on the whole, if the evidence tiff's attorney having no agent in Al-
has been on the good counts only, the bany, the suit be nonprossed there for
verdicts may be amended from the want of declaring, and judgment by
judge's notes after notice in arrest of default be obtained in New York, and
judgment. Union Turnpike Company the damages assessed by the clerk,
v. Jenkins,
381 endorsed on a note, the court will,
74. If a defendant has been pre- when the costs of nonpros have been
vented by adverse winds from show- paid, and the judgment in New York
ing cause against a rule for a criminal vacated, order the damages assessed
information, and the same has been and endorsed to be struck out, that
made absolute against him for want the plaintiff may proceed in a second
of cause shown, it will be set aside action without any embarrassment
of course on an immediate application. from the former proceedings. Atter-
The People v. Freer,
394 bury v. Teller,
75. The regular mode of showing 83. A new nisi prius record allowed
that evidence applies to one count to be filed, and a postea endorsed
only, or to any particular counts, is thereon, according to a judgment of
by certificate from the judge; though, six years antecedent, and execution
if he be on the bench, and an affida- thereon upon affidavit, showing the
vit be made which states the facts as probable loss of the originals. Jack-
they are, and he assents to them, it son v. Hammond,
496
will be sufficient. Union Turnpike | 84. In ejectment, on a motion to
Company v. Jenkins, n.,
394 set aside the rule to appear and enter,
76. Though the act of God be the &c., if the application be founded on
cause of not proceeding to trial ac- irregularities, to be supported by in-
cording to notice, yet if there be time spection of the declaration, &c., on
to countermand, and the plaintiff ne-
glects to do so, he must pay costs.
Jackson v. Brown,
file, and the plaintiff produce affida-
vits of due service, &c., it will be pre-
484 sumed that all was regular, the ten-
77. On certificate of probable cause, ant not producing the declarations and
both parties may notice, but if not notices served, especially if, by grant-
done by the party obtaining the cer- ing the motion, the statute of limita-
tificate, it is no cause for discharging tions would attach. Jackson v. Stiles,
the order. Kirby v. Cogswell, 484
78. On a rule to show cause why 85. If a defendant obtain a rule for
an attachment should not go for a a commission, in which the plaintiff
contempt in publishing matter reflect- does not join, and a term elapse with-
ing on the court in a cause then pend- out notice of any proceedings under
ing, the defendant should appear in it, the court will so far vacate the
rule as to permit to go to trial not- for want of being duly el arged in exe-
withstanding the commission. On a cution, he can never be taken in exe-
commission to England, and eight cution on a ca, sa, issued on the judg
months without any return, the court ment in the suit on which he was in
will permit to go to trial; but this custody. Masters v. Edwards,
does not prevent showing cause on 93. Three months are sufficient for
the trial why it should not be put off. executing and returning a commis-
Kirby v. Watkies,
503 sion arrived in London. If, after a
86. If the consent rule, &c., in commission issued, the plaintiff do not
ejectment, have been actually for- use diligence, the defendant may ap
warded in time to deliver to the at- ply for judgment as in case of nonsuit,
torney of the plaintiff, and be by mis- which will be granted, unless the
take filed in the clerk's office instead plaintiff stipulate. Coles et al. v. Thomp
of being served, the court will set son,
517
aside a judgment on such a default, 94. After verdict and certificate of
and if a writ of possession has issued, probable cause granted, the court will
award restitution on payment of costs. not order the amount of the sum re-
Jackson v. Stiles,
503 covered to be brought into court.
87. A judge's certificate of probable Shuter v. Hallett,
cause does not stay proceedings, un- 95. If there be one good count, and
less accompanied with notice of mo- the others bad, and entire damages
tion. Kirby v. Cogswell,
505 assessed, it may be amended. Liv-
88. If a prisoner in custody on ingston v. Rogers,
583
mesne process sign a warrant of at- 96. If the declaration in a justice's
torney, the nature of which is ex-court be for ten dollars, and the judg-
plained to him by an attorney who ment for fifteen, it is fatal on error.
does not witness it as his attorney, Delameter v. Borland,
the court will not set it aside, ut
semb. Manhattan Company v. Brower,
90 Where a suit has been consoli-
dated, and a commission sued out in
the consolidated cause, in which the
defendant has joined, the court will
allow the evidence taken under it to
See ACTION, 2; CERTIORARI, 1; COM-
MISSION, 1; COGNOVIT; DEMURRER;
INSOLVENT, 1; INTRUSION, 1; Jus-
TICES' COURT, 2; PARTNERS AND
PARTNERSHIP, 2; STRUCK JURY;
TRESPASS, 2; Venue.
be read on the trial of the principal 1. A conveyance will be presumed
suit. Waterbury v. Delafield, 513 after fifty years, where there has been
91. Where a plaintiff has neglected a right to claim a deed, and the pos-
to file a capias and enter an appear- session has for that time gone with
ance for two terms, though there be the right. Van Dyck v. Van Bueren
an affidavit, swearing to an agreement
& Vosburg,
that all the proceedings should be
considered as of a third term antece- See PARTNERS AND PARTNERSHIP, 2·
dent, the court will not give leave to
file the capias and enter the appear-
ance, nunc pro tunc, as of the third
term passed, especially if it appear
that it be asked with a view to pre-
vent a set-off of a note falling due
since the third and before the second
term, but will order the capias, &c.,
to be entered as of the second term
513
92. If a detendant be discharged | 1. No intetest is allowed to run on
CHANGE; CORPORATION, 1; Evi- See CONCEALMENT; INSURANCE, 10.
|