£: - -
| Parol Evidence. Physician.
.i.a - -
| See Evidence, 6. Insurance, 15. 1. There is no fettled fee for # in
# the # N: for g a flu-
# - - dent. t v. Ho/ack, 2.5
Partners and Partnership. 'art v. Hof.
#: -
- See Promiffory Note, 2. Pilot.
2. 1. Facts from which a partnership may be See Affumpfit, 2.
inferred are matter for a jury, and -

fhould be rebutted by evidence. An
indorsement by one of a firm in his

* * name and company, is good to bind the
* | - other £ though the firm has al-
*: ways been known by the name of an-
* other partner and company, unless it
* be flewn that there is fuch a distinct
house as that by the file of which the
indorsement is made. Drake and*:
, Mö4

v. Elwyn and others,
2. An indorsement in the name of a firm by

| a partner, is good, and may be declared

on as the indorsement of the firm.
Manhattan Company v. Ledyard, 192

See Practice, 7. 14. 45.
See Insurance, 5.

See Pleas and Pleading, 1.

People, The.

: 1. The people can acquire feiffn orpoffeffion
of lands granted in fee for a breach of
condition, only by matter of record and
office found. The People v. Brown, 416

See Slander, r.

Perishable Articles.

See Insurance, 7.

Pleas and Pleading.

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Adjustment. Ave-

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See Action, 2. Certiorari, r. Commif-
fion, 1. Cognovit. Demurrer. Infol-
vent, I- Intrusion, is . Justices Court, 2.

Partners and Partnership, 2. Struck Ju-
ry. Trefpass, 2. Venue.

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T. B. Church v.
Comp. 7
9. Peremptory mandamus will be f* aside
on "ction, if unfairly obtained. Eve-
ritt ads. The People, 8
ro. On moving for a * trial the court
will not order the amount of the verdict
£ered to be brought into court
£ admitted to be due, the special
bail bankrupts, and the principal, on the
eve of infolvency. Hallett v. Cotton, 11
11. Coils of a fine levied by the sheriff are
not payable by the Party on whom le-
vied. Gilbert v. Brazier, 13
12. Liberty to turn a cafe into a fpecial ver-
dia, itays execution till the next "


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after decision given. Wan Dyck v. W."
Beuren & V%urg, 13
13. In ejeciment against feveral defendin"
though they £er in pleading: and in.
ter into separate consent rules,then"
and pleading: must beentitled againstall.
jatjan's d' jaunay v. Stiki, .1%
14 in partition only notic and #
service is read, " the petition. Bill
2. Rhinelander, 20
15. If the plaintiff in ejeciment "'
demises by £ who are dead."
defendant after enteringinto!' condent
rule may apply "...' their '
struck out o the declaration without
costs, jackfor " dam. low * *:

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dols and a cognovit taken for the refi-
due, fupreme court costs cannot be tax-
ed., The plaintiff should have taken
his cognovit and entered his judgment
for a sum above 250 dols. M'Gregor
v. Leveland, 66

* If a fuit be compromised between the

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31. Service of a notice of motion on a per-

32. Service of notice on an agent for non-

-33. A commiffion to examine

parties without the knowledge of the at-
torney, and nothing said about the cofts,
each party pays his own. Waffon v.
De Peyfer, 66
Notice of motion for judgment, as, in
case of nonfuit, fent by the mail, is not
good, though it might save a default.
Huffon v. Henry, 67
To an application for a fupersedeas for
not having been charged in execution
within three months after judgment, it
is a good answer that the defendant has
since been charged. Manhattan ":
v. Smith, 7
Attornies on being retained fhould ex-
amine the state of proceedings, though
it is but fair that on notice of retainer
the plaintiff's attorney should disclose
them; for want of fo doing in a fuit
against bail after default entered, writ of

inquiry and judgment thereon set afide.
Steele ads. Tenant, 68

29. The fuing out of the writ is the com-

mencement of the fuit, and if it appear
on the pleadings that the cause of action
be fubsequent, it is fatal on special de-
murrer. Lowry v. Lawrence, 69

"30. The court will not pronounce judgment

on a prisoner convicted at oyer and ter-
miner, if the record be not before them.
M'Neil's Cafe, 72

fon in the house of the attorney is not

fufficient. It ought to be on the clerk.
Anonymous, 73

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38. If there be a neglect in not proceeding


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enumerated motions may be on the first

day of the term for the next non-enu-
merated day; but there must be an ex-
cuse for not noticing for the first.
AMoyle v. Gillingham, 73

oy g bë before
iffue joined. A rule for a dbmmiffion
fuspends the trial till the rule be vacated.
But if the defendant appear at the trial
and examinc witnefes, it will be a wai-
wer of the rule to vacate. Brain v. Ro-
delicks & Shivers, - 78

34. When there are cross causes, and the

plaintiff in each suit has a verdict, if ma-
terial facts be omitted in the cafe made
by the defendant, and the papers from
whence they are to be ascertained, be in
the hands of the plaintiff, the court
will not order judgment to be entered
because cases have not been delivered,

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vit rightly titled, the notice is good.
Ryers v. Hillyer, II2,

to trial, the defendant must avail him-
self of it the first opportunity, or it will
be a waiver, and fübject him to costs if
he afterwards move for judgment as in
cafe of nonfuit. Brand ex. dem. Rick-
etts v. Buckbout, 113
The rule for consolidating applies only
to feveral actions on one policy, and
does not extend to several policies on
one risk, though the question be the
fame on all, for the contracts are feve-
ral. Camman v. Un. In. Comp. 114
lf the defendant has joined in a commif-
fion, the court will not on the plaintiff's
application vacate the rule by which is
was granted, but will grant one to pro-
ceed to trial, notwithstanding the com-
milion. Shuter v. Ha'lett, 115
The court will not discharge, on motion,
a perfon arrested, whilst attending a re-
ference under an order of the common
£ if there be no notice of motion,
ut will only grant a rule to shew
cause. Grover v. Green, 115
When a defendant commits a crime, for
which he is sentenced to the State Pri-
fon the plaintiff may discontinue with-
out payment of coffs. Lacky & Briggs
‘v. M'Ivonald, 116
If a plaintiff get relieved from his own
flipulation he restores the defendant to
all rights as he stood when the ftipula-
tion was entered into. Malin v. kin-
ney, 117
On fei fa. notice of entry of the rule to
#: and plead need not be given, as
the Ici fa is notice of itself, and the
default may be entered on the expira-
tion of the rule, but judgment cannot
be entered till four days after. If it.e.,


the judgment will be set aside, and the
default, if regular, fland. No default
ever set aside when regular, except
when accounted for to the fatisfaction of
the court. Spencer v. Webb, 118
45. In partition, if the defendant does not
appear, the court will, on motion, make
an order for partition as prayed for.
Neil/on v. Cox and others, I2, I
46. To change the venue in a tranfitory ac-
tion special cause must be shewn.
Woods v. Pan Rankin, 123
47. If feveral actions, turning on the fame
# be noticed for trial, and on the
earing of the first, the judge direct a
nonfuit, exceptions to which is taken by
the counsel for the plaintiff, he will not
be liable to judgment as in case of non-
fuit for not proceeding to trial on the
other causes, nor be obliged to stipulate,
and the costs must abide the event of the
fuit. Campbell v. Munger, 129
48. If a party to a fuit referred cannot pro-
duce his witness by the time of hearing,
a judge at chambers, or the court if
fitting, will stay proceedings. The de-
fendant's attorney having nominated re-
ferees, and the party not having object-
ed, cannot on that ground move to set
aside the report. Combs v. Wyckoff, 147
49. If an indictment be removed from the
feffions into the fupreme court, any ex-
ceptions may be taken to the charge of
the judge by making a cafe, and bring-
ing it before the court in the fame man-
ner as in civil proceedings. The People
v. Croft well, 149
50. If a plaintiff notice his cause for trial,
and afterwards countermand it, he must
pay the defendant the intermediate
costs of fubpoenaing his witnesfes.
Jackfon v. Mann, 123
51. Notice to refer must contain the names of
the referees. Misapprehension of a rule,
orignorance of a late determination may

be offered as excuses, for not noticin
for the first day of term. If the £i
of opposing a reference be, that a point
of law will arife, it ought to be ex-
pressly stated what it is, and that it is as
advised by counsel. Lyler v. Walton,

52. In order to be admitted as a defendant #
ejectment, a privity must be hewn be-
tween the applicant and the tenant; it
is not £ that the party claims title

and has a real and fubstantial defence. *

Jaclyn, ex. dam. Winter v. M. Evoy, 15 1
53. Sudden indisposition of counsel and at-
torney is an excuse for not proceeding to
trial, but will not exempt from coils.
Ja'fan, “.. dim. Rodman v. Brown, 152

54. Nine days notice is enough in Cayuga, to
£ papers in # £
miles. jackfan, ex. den. Walfon v.
Marff, -- 153
55. Whenever a plaintiff amends his decla-
ration, the defendant has an election to
plead de novo. Webb v. Willie, 153
56. All irregularities are waived by a de-
fendant if he appear on trial. On judg-
ment for nonfuit, nifi, the defendant
fhould make a demand of his coffs, with
a copy of his rule annexed, and if not
paid within twenty days, he : enter
judgment, and if he do not £, the
plaintiff will be regular in noticing for
trial. Gilliland v. Morrill, 154
57. When proceedings have been regular, 3.
mere affidavit of merits is not sufficient
to fet them afide. In such case, if there
has been a miffake, on which the judg:
ment has been taken, the defendant will
be relieved only on coils and terms.
Cogswell v. Pandenberg, . . 155
58. On a reference if a receipt given after
the rule made be offered in evidence."
the part of the defendant, and objected
to by the plaintiff, the special":
and facts hould not be returned"
court; but the referees shouldadmit:
evidence, and make the reporton", :
the party aggrieved may bring" #
before the court. Query, if a # -
matter of fact, without a decifion,'"
any case a report within the :
of the rule. Hawkins v. Braffirá*
59. When aplaintiff'refitsam" for judg-
ment, as in case of nonfuit for not pro-
ceeding to trial, if he infilt, on : :
ing been able to try his cause, and 0 the
have been heard, he must £
were olderiffles jailfin,” 171
liams v. Chamberlin,
60. If a witness has been in the "' :
plaintiff he must hew £ al-
tain his testimony, or he w: not
lowed to urge the want of #vits
proceeding to # c: £
to thofe in oppolition art -
If a fuit be £ and pated, : :
fons why should be made £ ' 3.

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refused, on a motion for "'.
court will not order them to be *:
cd, ut femb, Das 2.8:#: wi:
61. If an alien, on removing" fuit int.
federal court, file his R'
time of filing special bail,
fon, though the bail have
to. Arjov. Monteiro,
62. After service of a declar:
ment on a tenant, though

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totally informal one, yet it is sufficient to fet him on enquiry, and if a rule to fhew cause why the plaintiff should not amend be granted, fixing it in the clerk's office is good service on the tenant. If Proceedings be commenced for lands, to - which a title has been awarded by the commiffioners for fettling disputes relat

years after, it is fufficient, and though they may be faulty, and require amendment after the three years, is is fufficient to entitle the plaintiff' to proceed. £ ex- den. Hogeboom v. Stile, 209 motion cannot be made to fet aid: 3 Writ of enquiry in the poffeffion of the plaintiff not returned, and on which no inquisition has been taken, but ifa ju has been impannelled on it, and has £ a verdict on a hearing, contrary to the terms of a written a reement, the court will give leave to # a writ of inquiry de novo. Abeel v. Woolcot,

- 2.5o 64. After fix years fervice of a declaration

in ejectment, the court will, on terms, give leave to amend. Jack/on, ex. dem. Ainch v. Kough, 257 65. The defendant in error cannot nonprofs the plaintiff's writ before it is returned. - £r AMark v. Jack/on, ex- dem. 0/, trander, - 25 I 66. If a defendant move for judgment of ": fuit, contrary to good faith, the court will make him pay the coffs of opposing. Phelps v. Eddy, 252 7. Service on the agent of an attorney plaintiff is as : as in any other fuit, and need not be on the plaintiff personally. Ruff'l v. Ball, 2.52. 68. If cross fuits be referred to the fame : ferees, and they make up their report in each on the idea that '. one shall be a fet-off to the other, the court will fet afide both, if the fuits be for demands which cannot legally be fet off Lyle v. Clafon, . . 323 69. If # give notice of motion to fet aside a judge's certificate to stay proceedings, and do not attend to argue, the £ will be allowed costs. In no cafe will the court ' argument to set aside a judge's certificate to {tay proceedings, ut femb. Brett # Bunn v. # - perfon in s: idavit of fervice on a pe |70, £ office, must shew # #. is a relation between him and the Pa : ferved. Rathbone v. Blackford, # ... when the notice and all '. £, fa" titled werfus instead of ad//iant, ": tal. Puriman v. Sher",

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ing to lands in Onondag, within three.

72. Amendments to a case made must be in the cafe ferved, or refer to the line and page in which it is proposed to amend. The party ferved cannot draw up a new cafe. Milward v. Hallett, 344 73. Where there are some good counts and fome bad, and a general verdict on the whole, if the evidence has been on the good counts only, the verdict may be amended from the judge's notes after notice in arrest of judgment. Union Turnpike Company v. Jenkins. 381 74. If a defendant has been prevented by adverfe winds from shewing cause against a rule for a criminal information, and the fame has been made absolute against him for want of cause fhewn, it will be fetafide of course on an immediate application. The People v. Freer, 394 75. The regular mode of hewing that £ dence applies to one count only, or to iny Particular counts, is by certificate from the judge, though if he be on the bench, and an affidavit be made which flates the facts as they are, and he af. fents to them, it will be fufficient. Union Turn. Com. v. Jenkins, (n.) 394 76. Though the act of God be the cauf'f not proceeding to trial according to notice, yet if there be time to countermand, and the plaintiff neglects to do fo, he must pay costs. jacy. Bro.,

- 454 77. On certificate of probable cause both Parties may notice, but if not done by the party obtaining the certificate, it is no cause for £ the order. Čirby v. Cogswell, 484 78. On a rule to hew cause why an attach. ment hould not go for a contempt in publishing matter reflecting on the court in a cause then pending, the defendant £hould appear in perfon on the day of fhewing caufe. The People vs Freer, 485 79. Caufes which have been noticed for ar. gument and duly cntered in one term, are not, without a new notice to the clerk, carried over to the next. Livingflon v. Rogers, 487 80. On a feigned iffue from chancery, if an inquest be improperly taken, relief must be fought here. if an inquest be taken by default at a circuit, and notice of trial has not been given, it will be fet afide with costs to be paid by the plaintiff’s attorney. Pen v. Few, 487 81. The action for a return of premium must he against the underwriter and not aainst the broker, though the affured e himself an underwriter, and the broker employed by both parties. Bown•. Neign & Bunter, 482

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