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The following RULES OF COURT having been made since the Publication of those in Mr. COLEMAN'S CASES OF PRACTICE, the Reporter thought they might be acceptable to the Profession.
April Term, 1800. 5 THE court said to the clerk, that when the fee
bill says that in certain cases there shall be but one taration of costs, it means that in the case where plaintiff might consolidate, and yet proceeds separately, he shall have costs taxed but in one suit, and may elect the suit. Also decided, That the plaintiff is not entitled to charge entries on roll until the cause has progressed to an issue or judgment.
SUPREME COURT, 2
October Term, 1801. } Ordered, That henceforth non-enumerated motions shall be entitled to preference only on the first, second, third, and two last days of each term, and that on all other days, enumerated motions shall have the preference.
SUPREME COURT, Z
October Term, 1802. } Ordered, That when a plaintiff stipulates to bring his cause to trial on payment of costs, he shall have twenty days, after a demand made by the defendant, or any one on his behalf, accompanied with service of a certified copy of the rule to pay the costs, and of the tared bill, to pay the same ; and the defendant, on filing an affidavit of such demand and non-payment, may, at the expiration of the said twenty days, erter judgment, as in case of a nonsuit, as of the preceding term.
SUPREME COURT, Saturday, ?
January 29, 1803. Ordered, That every attorney, when he gives notice of the argument of any enumerated motion, shal, furnish the clerk residing in the city where the court shall next be held, with the date thereof; who shall, by the first day of the term, make a calendar of all causes which may be noticed, according to such dates. Causes of the same date, shall be placed on the calendar in the order in which they are received by the clerk. Each cause shall be argued according to its standing on the calendar, if the party entitled to bring it on be ready; otherwise it shall lose its preference, and not be called again until all the others are disposed of. The attorney of either party may give notice of the argument. If any cause be inserted on the calendar during the term, it shall not take place, whatever be its date, of any that are on it at the opening of the court.
Ordered further, That to every case there shall be added a note of the questions to be made, and to them the argument shall be confined. If, however, any facis in the case give rise to other questions, these also may be argued, unless the adverse party object that they are facts not appearing material to a dis" cussion of such new questions, in which case they shall be abandoned, or the case referred for amendo ment, if the court shall think it necessary.
ARGUED AND DETERMINED
SUPREME COURT OF JUDICATURE
STATE OF NEW-YORK,
In AUGUST TERM, in the TWENTY-SEVENTH YEAR of
L. and on being
Jotham Post against William Wright and Robert
Buchan. A N inquest had been taken in this cause, at the last August 1893. sitttings, in June, at New-York,
" Wright & Bumade by the plaintiff, which stated, that he verily believed chan. he had a good, substantial, and legal defence; the other by
If a cause has the counsel in the cause. This last set forth, that he was been duly set
down upon the counsel for the Humane Society of New-York, and, in that
day-calendar, capacity, obliged to visit the gaol on Monday in every week;
called, the dce that this cause being noticed for trial on a Monday, he came fendant does
not appear nor into court instantly after discharging his duty to the Society, his counsel who
is then in court, when he found an inquest had been taken in the suit; that he, the plaintiff on the same day, wrote to the attorney of the plaintiff, of
quest, which fering to pay all the costs of the inquest, and to engage to try
the court will
not set aside · the cause in the then sittings, if the plaintiff would abandon though merits
be sworn to, if his inquest, which he refused to do.
the absence of
much the defendant Hoffman also observed, the calendar had been gone through more than once, and that the plaintiff needed not to have lost ed fer. the sittings but for his own obstinacy.
ay take an in
be not account
ALBANY, Woods relied on the counter affidavit of the plaintiff's atAugust 1803.
torney, which stated, that the cause was duly set down in its
order, on the day-docket; that it was regularly called Wright & Bu- and tried; that when called on, 35
, esquire, was in court, and in the hearing of the deponent, said he was of counsel for the defendants, but as he did not see his clients; nor any of their witnesses, he would not appear; that on this the defendants were called, and an inquest taken:
Woods remarked, that, if after these facts the inquest should be set aside, there would be ng end to these applications. A defendant had only to keep himself and his witnesses, or even his counsel out of the way, and be sure to gain a term whenever he pleased.
Per curiam. All reasonable notice to attend and defend the suit, was given. The cause was on the đãy-docket; and there is no kind of excuse why the defendant was absent. He had a counsel in court, and might have been there himself, with his witnesses. The defendant therefore can take nothing by his motion. · N. B. Hoffman urged strongly the rigour of the práctice, that it would operate only against the attorney of the plaintiff, that this was the first instance of such. strictness. The court answered, there must be a first time in all proceedings, that they found it necessary to enforcé their rules, and had made a determination so to do, as the only mode of having them obeyed.
Radcliff and Livingston, justiceš, absent.
John P. Ryers against William Hillyer. If a notice of SPENCER moved, on the common affidavit, for judgment notion for nonsuit be ti
as in case of nonsuit for not proceeding to trial. tled versus in. Hoffman resisted the application, because the notice was stead of ad fec. tam, and the titled William Hillyer against John P. Ryers, instead of Wilaffidavit annexed rightly ti-* liam Hillyér, ad. sctm. John P. Ryers: this he said was fåtal, will be good there being no such suit in existence as the one in which the
notice was given, but he added, he would not have urged it except from its being one of Mr. Colden's causes, whose state of health the whole court knew.
Spencer, contra, observed, that there could be no force in the objection, unless it appeared that the party had been
misled:* The potice was for judgment as in case of nonsuit ALBANY,
August 1803. for not proceeding to trial, therefore it must have come from a defendant. In the next place, it was on an affidavit, a copy Ryers whereof was annexed, and that affidavit was rightly entituled. Hillyer. It is a mere question of who shall pay,costs. There has been
• On the same ao countermand, and the defendant kept all the circuit with principle
where a notice his witnesses.
of executing a
writ of enquiry Hoffman. As this is the first default, will the court oblige Kon Tuesday us to stipulate?
the 14th, of
Jan, inst,"was Per curiam. Stipulate to try at the next circuit for the given the court,
of C.B, refused city and county of New-York, and pay the costs of the pre- to set afide the sent application.
the writ be
+ cause the 14th, Radcliff and Livingston,justices, absent.
day, saying it James Brandt, on the demise.of William Rickets defendant
could not have Van Courtlandt, and Philip:Van Courtlandt, been miled.
Batten & Hare? · against
rison 3, Bus, &
Pull, I, Matthias Buckhout and Abraham Buckhout. THE issue in this cause had been joined in January 1801, If there be a
neglect in not and notice of trial given in the June following: it however proceeding to did not come on, in consequence of the defendants' applying ant muft avail
trial, defende i for a commission to obtain testimony from Virginia. On the bir arrival of the commission in that state, it was found the tunity; if he
do not it will witness had removed into Kentucky,whither he was followed, bea waiver and and his evidence to the interrogatories taken on a depositiori, colts if he ato made before two justices of the peace. A copy of this, accompanied with an affidavit of the facts, was served on the as in case of
nonsuit plaintiffs' attorney in August 1802, and communication at the same time made, that a regular 'commission would be sued out and sent into Kentucky. On this the plaintiff did not notice for trial; however-for not proceeding to which,
Woods now moved for judgment as in case of nonsuit.
Spencer opposed the application, as being too late, insisting it ought to have been made the very first term after, the aeglect.
Per curiam. The defendant has not accounted for his delay; if that be not done, and the application be not immedia ately, after the laches, the default is waived, and cannot now be taken advantage of.