Clarkson v. Gifford. Hamilton then argued against the application, because it was uncertain how long it would tie up the cause, and the defendants had not entered into any stipulation. Per Curiam. It is unnecessary, for they take the commission at their peril; let it issue.[1] Hamilton asked for the costs of the circuit. THE COURT ordered them, and seemed to think that in all cases of delay, costs should follow. On payment of costs of the circuit, motion granted. CLARKSON against GIFFORD. In covenant of seisin, the venue will be changed to where the lands lie. HARISON moved, on the usual affidavit, to change the venue. Evertson. This action is founded on a specialty: in suits of this sort, the court does not change the venue. Harison, in reply. The action is on a covenant of seisin, affecting, or, as the technical phrase is, savouring, of the realty.(a) Motion granted. [1] When party applying for commission must pay costs. La Farge v. Luce, 2 Wend. 242. Jones v. Ives, 1 Wend. 283. Burr v. Skinner, 1 J. C. 291. When a commission will stay proceedings, and when stay will be vacated. Beall v. Day, Wend. 513. Mc Vicar v. Woolcot, 3 Cai. R. 321. Nichol v. Col. Ins. Co., 1 Id. 345. Pell v. Bunker, 2 Id. 46. Ferris v. Smith, 2 Id. 253. Shuter v. Hallet, 1 Id. 115. Kirby v. Watkins, 1 Id. 503. Coles v. Thompson, 1 J. C. 391, Rush 1 Id. 517. Brain v. Rodelies, 1 Id. 73. Burr v. Skinner, v. Cobbet, 2 Id. 70. Guen, 2 J. R. 196. Maynard v. Chapin, 7 Wend. 520. Bourherean v. Le Rep. 128, S. C. Voss v. Fielden, 2 Sand. 690. (a) The common law principle is, that demands arising from privity of esVOL. I. 2 Griswold v. Stoughton. [*6] *GRISWOLD and another against STOUGHTON. If a default be regularly entered, and no excuse shown how it was incurred, though the subsequent proceedings be set aside for irregularity, the default will stand, and plaintiff may perfect his judgment. Though a default has been regularly entered, a rule for judgment is necessary, so that the clerk assess ASSUMPSIT on a promissory note. The plaintiffs had pro. ceeded under the statute, by filing common bail for the defendant, and had affixed the declaration with the demand of a plea in the clerk's office, without service on the defendant, who lives in the city of New York. Judgment by default having been obtained, Pendleton moved to set it aside, on an affidavit stating that no rules had been entered, either for interlocutory judgment, or for the clerk to assess damages on the note, offering at the same time to pay costs and put in special bail. Riggs, contra. The proceedings are regular to the default; the affidavit states no excuse for that; and though tate, are, in their nature, local, and must be sued for where the estate lies. Debt, therefore, for rent, as incident to the reversion, is local, (Thrale v. Cornwall, 1 Wils. 165,) if brought by the assignee of the lessor. So covenant if against the assignee of the lessee by the lessor, (Stevenson v. Lamboard, 2 East, 575,) or by the assignee of the reversion against the assignee of the lessee, or vice versa, the assignee of the lessee against the assignee of the rever sion. For the only chain which connects these parties is the estate. But where the debt springs from privity of contract, as debitum et contractus sunt nullius loci, the action is transitory. Therefore between lessor and lessee. (Bulwer's Case, 7 Term Rep. 2. a.) But as the statute (1 Rev. Laws, 105,) has transferred the privity of contract with respect to covenants which subsisted between lessor and lessee, to the assignee of the reversion and the lessee, those express covenants which run with the land, and were, by the common law, local, are now transitory. See Thursby v. Plant, 2 Saund. 237, notes (5) and (6). Case for a nuisance is local. Warren v. Webb, 1 Taun. 379. See New York Code of Procedure, secs. 123 to 126, as given ante, p. 4. Manhattan Company v. Herbert. the subsequent steps are not according to strict practice, the defendant being in default, and that default regularly entered, is not entitled to favor. The utmost, therefore, the court will do, is to vacate the proceedings from the default. Per Curiam. As the default is not accounted for by the affidavit, it is unimpeached, and therefore must stand: but as the subsequent proceedings are irregular, they must be set a side, with the usual liberty, however, for the plaintiffs to perfect their judgment this term, if they can. Proceedings subsequent to the default set aside.. MANHATTAN COMPANY against HERBERT. Trial by record to be on notice. See Knap v. Mead, Col. Cas. 122. HOPKINS moved for a rule to bring on a trial by record. Per Curiam. Trials by record are to be brought on by notice, in the same manner as cases for argument. [1] [1] The New York Code of Procedure (secs. 252 and 256) provides: An issue of law must be tried by the court, unless it be referred, as provided in sections 270 and 271. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section 266, or a reference be ordered as provided in sections 270 and 271. At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk at least four days before the court with a note of the issue containing the title of the action, the names of the attorneys and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue. Livingston v. Delafield. LIVINGSTON against DELAFIELD. After stipalation, the court will, on special circumstances, allow a second excuse, and not grant judgment as in case of non-suit. THIS cause had been put off on the usual affidavit of absence of a witness, in expectation of whose return the plain tiff had stipulated to try peremptorily. On his not doing so, the defendant had, on a. former day, moved for judg ment as in case of nonsuit, for not proceeding to trial; but not succeeding, and the cause not having been brought on according to the second stipulation, the motion was now repeated. On the part of the plaintiff, an affidavit was read, [*7] stating that the witness *was a seafaring man, and had never been within the state of New-York since the suit commenced, and that the stipulation to try was in expectation of his return. Per Curiam. The witness having been constantly out of the state ever since the suit was commenced, and being a seafearing man, some indulgence is due from his way of life. The defendant, therefore, can take nothing by his motion.(a) Motion denied. (a) A second stipulation is always allowed, if the motion for judgment as in case of nonsuit, for failing to try according to the first stipulation, be not made in the term next after the default. Haskins v. Sebor, Caines' Prac. 514. Or if the defendant be the cause of not trying. Coles v. Thompson, 2 Caines, 47. When witnesses are absent, and their return not immediately expected, a peremptory stipulation is not exacted. Gardner v. Moses, 1 Taun. 118. See also Farnham v. M'Clure, 7 Wend. Rep. 483; Jackson v. Wakeman, 2 Cowen Rep. 578; Nixon v. Hallet, 2 Johnson's Cases, 218; Haskins v. Sebor, 2 Johnson's Cases, 217. Bedle v. Willett. BEDLE et Ux. against WILLETT. Notice to refer a cause must contain the referees' names. See the act, 1 Rev. Laws of N. Y., 347, 348. THE COURT said, that notice of a motion to refer must contain the names of the referees. They are never nominated by the court. But the making the motion is not confined to the first day of term; notice may be given afterwards, on showing a reasonable cause for the omission. [1] SEAMAN against DAVENPORT and others, Tenants in Pos session. In partition, rule to appear and plead are not of course, but must be moved for. IN partition, after service of the petition and notice. Hopkins moved for a rule to appear and answer. The Court at first thought this a rule of course; but on the counsel's observing that proof of service was by the act required to be made to the satisfaction of the court, and that the manner of the service would, according to the act, vary in particular cases, the court seemed to coincide, but said that the rule must be drawn up as the party should be advised.[2] Motion granted. [1] The New York Code of Procedure (sec. 273) provides: In all cases of reference, the parties, except when an infant may be a party, may agree upon a suitable person, or persons, not exceeding three, and the reference shall be ordered accordingly; and, if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception. [2] The New York Code of Proceedure (secs. 69 and 448) provides: The |