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. SUPREME April Term, 1800. HE court said to the clerk, that when the fee THE bill says that in certain cases there shall be but one taxation 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, 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. 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 taxed 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, enter judgment, as in case of a nonsuit, as of the preceding term. SUPREME COURT, Saturday, Ordered, That every attorney, when he gives notice of the argument of any enumerated motion, shalĮ 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 facts 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 amend ment, if the court shall think it necessary. ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-YORK, In AUGUST TERM, in the TWENTY-SEVENTH YEAR of our INDEPENDence. Jotham Post against William Wright and Robert A Buchan. N inquest had been taken in this cause, at the last sitttings, in June, at New-York, HOFFMAN moved to set it aside, on two affidavits; one made by the plaintiff, which stated, that he verily believed he had a good, substantial, and legal defence; the other by the counsel in the cause. This last set forth, that he was counsel for the Humane Society of New-York, and, in that capacity, obliged to visit the gaol on Monday in every week; that this cause being noticed for trial on a Monday, he came into court instantly after discharging his duty to the Society, when he found an inquest had been taken in the suit; that he, on the same day, wrote to the attorney of the plaintiff, offering to pay all the costs of the inquest, and to engage to try the cause in the then sittings, if the plaintiff would abandon his inquest, which he refused to do. Hoffman also observed, the calendar had been gone through more than once, and that the plaintiff needed not to have lost the sittings but for his own obstinacy. ALBANY, Auguft 1803. Poft V. Woods relied on the counter affidavit of the plaintiff's attorney, which stated, that the cause was duly set down in its order, on the day-docket; that it was regularly called esquire, Wright & Bu- and tried; that when called on, chan. If a notice of motion for nonfuit be titled verfus inftead of ad fectam, and the affidavit annexed rightly titled, the notice will be good. 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 no end to these applica tions. 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 day-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 prac tice, 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 enforce their rules, and had made a determination so to do, as the only mode of hav ing them obeyed. Radcliff and Livingston, justices, absent. John P. Ryers against William Hillyer. SPENCER moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial. Hoffman resisted the application, because the notice was titled William Hillyer against John P. Ryers, instead of William Hillyer, ad. sctm. John P. Ryers: this he said was fatal, 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 the objection, unless it appeared that the party had been ALBANY, Ryers V. misled: The notice was for judgment as in case of nonsuit Hillyer. • On the fame where a notice of executing a writ of enquiry Hoffman. As this is the first default, will the court oblige on Tuefday us to stipulate? Per curiam. Stipulate to try at the next circuit for the city and county of New-York, and pay the costs of the present application. the 14th, of Jan. inft."was given the court, of C.B. refufed to fet afide the execution of the writ be Radcliff and Livingston, justices, absent. caufe the 14th. was on a thurfday, faying it was clear the James Brandt, on the demise of William Rickets defendant Van Courtlandt, and Philip Van Courtlandt, against Matthias Buckhout and Abraham Buckhout. THE issue in this cause had been joined in January 1801, and notice of trial given in the June following: it however did not come on, in consequence of the defendants' applying for a commission to obtain testimony from Virginia. On the arrival of the commission in that state, it was found the witness had removed into Kentucky, whither he was followed, and his evidence to the interrogatories taken on a deposition, made before two justices of the peace. A copy of this, accompanied with an affidavit of the facts, was served on the 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 immediately after the laches, the default is waived, and cannot now be taken advantage of. could not have been mifled. Batten & Har- ' rifón 3, Bus. & Pull.I. If there be a proceeding to neglect in not trial, defend ant must avail himself of it the first oppor tunity; if he do not it wil} bea waiver and fubject him to coils if he af terwards move for judgment as in cafe of nonfuit. |