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Praftice.

See Action, a. Certiorari, I. Commif-
fion, I. Cognovit. Demurrer. Infol-
vent, I. Intrufion, i. Jufticcs Court, a.
Partners and Partnerfhip, a. Struck Ju-
ry. Trcfpafs, a. Venue.

I. If notice for applying for a commiflion
fpecify names of commiffioners, and the
party ferved do not then object he is

_ concluded. Town/endv. Neat-York In.
Com. 4

a. In an action on a note or bill, if, alter de-
fault, rules for interlocutory judgment
and alTefling damages be not entered, the
court will fct aflde the proceedings,
though if the default be regular, that
will ftand, with liberty to perfed the
judgment in the term, if the plaintiff
can fodo. Griftooldo. Stoughton, 6

j. Trial by record muft be brought on by
notice, as in cafes for argument. Man-
hattan Company v. Herbert, 6

4. After flipulation the court will on fpecial

circum fiances allow a fecond excufe
againfl a motion for judgment, as in
cafe of nonfuit. Livingfion v. Dela-
field, 6

5. Notice of motion to refer muft contain

names of referees ; the court only ap-
points and docs not nominate them.
Bedle v. Willett, 7

6. Notice of motion may be for fome other

than the firft day of term, but then it
muft fhew an excufe why not given for
the firft day, Hid.

7. In partition the rule to appear and plead,

muft be moved for, and is not of courfe.
Seaman v. Davenport, - 7

S. Mifpriflon of a clerk in drawing up a
rule of court will be amended; and if
notice of the error has been immediately
given to the adverfe party, the fame be-
nefit may be had as if the rule had been
right. /. B. Church v. United In.
Cen:p. 7

9. Peremptory mandamus will be fet afide

on motion, if unfairly obtained. Eve-
ritt adu 7he People, %

10. On moving for a new trial the court

will no? order the amount of the verdict
recovered to be brought into court
though admitted to be due, the fpecial
bail bankrupts, and the principal, on the
eve of infolvency. HaUettv. Cotton, 11

11. Cofts of a fine levied by the fheriff are
not payable by the party on whom le-
vied. CHocrtv. Brazier, Ij

I j. Liberty to turn a cafe into a fpecial ver-
dict, flays execution till the next term

after decifion given. Fan Djet *. K^
Bear en 13* Vefaitrg, \

13. In ejectment agauift fevexal defendant!,

though they fever in pleadings, aad en-
ter into feparateconfent rules, the notica
andpleadings muft be entitled againfl 1O.
yaci/an ex. arm. Jaueuey ». Slilei, 19

14. In partition only notice and affidavit of
fervice is read, not the petition. Belt
v. Rhinelander, jo

15. If the plaintiff in ejectment count upon
demifes by perfons who are dead, the
defendant after entering into the confent
rule may apply to hare their names
ftruck out of the declaration without
cofts. Jacijen ex. deuu Z*tl> v. Rey-
nolds, 20

16. Miftake by an attorney 0! a rule of prac-

tice may prevent judgment, asm cafe of
nonfuit, but will not prevent cofts.
Sheffield V. rValfon,

17. On producing the certified copy of an

original writ, the count in the declara-
tion may be amended by it. Fallow «.
Steele, la

18. On a non-enumerated motion for irregu-
larity, merits cannot be entered into,
but on merits, irregularity may be
fhewn. Remfenv. Ifaaa, 21

19. If a cafe made do not fet forth the me-

rits of the caufe as they appeared on the
trial, and the amendments propofed do
not reach the hands of the counfel em-
ployed within a time agreed on, and
within which they might, but foe
accident have arrived, the court will
grant a further day. Hum o. Bow, J J

20. Ail cafes intended for argument muft be

duly noticed before the term to the deck
that he may enter them, ^tnonymmm, 14
ai. The court will not g^rant a new trial when
there has been evidence on both fides.
Applications for new trials on fabfe-
quent difcovery of new and material
teftimony muft flaw it, that the court
may judge of its materiality. HeJfrf
v. Watftin, 14

aa. Entering into an agreement in the na-
ture of a rule to ftay proceedings on a
bail bond, and (after notice of bail) de-
claring in the original fuit, is a waiver
of a right to a plea in the bail bond fuit.
If the plaintiff proceed on the bail bond,
he will be entitled to cofts, only up to
the time of notice of fpecial bail, and
on payment of thofe all fubfequent pro-
ceedings will be flayed. Hngnet ». fl»'-
lett, Jj

23. Lafl proclamation of a fine made nunc

pro tunc Fan Nefi v. Gartner, $9

24. If after fuit brought, the Com be reduc-
ed by a partial payment, below ap
dok end a cognovit taken fur the rcfi-
duc, fupfeme court cofts cannot be tax-
ed. The plaintiff fhould have taken
his cognovit and entered his judgment
for a lum above 250 dols. M'Grrgor
v. Lwtland, 66

a> If a fuit be compromifed between the
parties without the knowledge of the at-
torney, and nothing faid about the colls,
each party pays his own. rVatfon v.
De PeyJIcr, 66

26. Notics of motion for judgment, as.in
cafe of nonfuit, fent by the mail, is not
good, though it might fave a default.
Hudfon v. Henry, 67

37. To an application for a fuperfedeas for
not having been charged in execution
within three months after judgment, it
is a good anfwer that the defendant has
lince been charged. Manhattan Comb,
v. Smith, 67

aS. Attornies on being retained Ihould ex-
amine the ftate of proceedings, though
it is but fair that on notice of retainer
the plaintiff's attorney fhould difclofe
them; for want of fo doing in a fuit
againll bail after default entered, writ of
inquiry and judgment thereon let afide.
Steels ads. Tenant, 68

1*9. The fuing out of the writ is the com-
mencement of the fuit, and if it appear
on the pleadings that the caufe of action
be fubfequent, it is .fatal on fpecial de-
murrer. Lvwry v. Lawrence, 69

30. The court will not pronounce judgment

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

31. Service of a notice of motion on a per-
fon in the houfe of the attorney is not
fufheiem. It ought to be on the clerk.
Anonymous, 73

31. Service of notice on an agent for non-
enumerated motions may be on the lirft
day of the term for the next non-cnu-
nn rated day ; but there mud be an cx-
cufe for not noticing for the firft.
Mcyle v. Gillingham, \,ti0JL4 73

33. A commiflion to examineasjtblbefore

iffuc joined. A rule for a cftmmiflion
fufpends the trial till the rule be vacated.
But if the defendant appear at the trial
and examine witneffes, it will be a wai-
ver of the rule to vacate. Brain v. J!o-
deikli C5* Shivers, 78

34. When there arc crofs caufes, and the

plaintiff ill each fuit has a verdict, if ma-
terial facts be omitted in the cafe made
by the defendant, and the papers from
whence they are to he afcertained, be in
the hands of the plaintiff, the court
will not order judgment to be antered
kecaufe cafes have not been delivered,

but will give leave to amend and per-
fect. Codivife v. Hacker, 74

35. A motion in arreft of judgment may be

after default, and the dclendint's com-
ing in and examining witneffes on the
execution of the writ -of inquiry, if it
appear on the face of the record that
the action is not maintainable. Catla-
gan v. HalUtt iff Bc-ame, 104

36. If a caufe has been duly fct down on the
day calendar, and on being called, the
defendant does not appear, nor his
counfsl, who is then in conrt, the
plaintiff may take an inqueft which the
court will not fet afide, though merits
be fworn to, if the abfence of the de-
fendant be not accounted for. PoJI v.
IVrigbt W Bueban, III

37. If a notice of motion for nonfuit be titled
verfus inftead oladseHam, and the affida-
vit rightly titled, the notice is good.
Ryfrs v. Hillyer, \\%

38. If there be a neglect in not proceeding

to trial, the defendant muft avail him-
felf of it the firft opportunity, or it will
be a waiver, and fubjeci him to colls if
he afterwards move for judgment as in
cafe of nonfuit. Brandt ex. da.t. Rirt-
etts v. Buckbout, \ \

39. The rule for confolidating applies only

to feveral actions on one policy, and
does not extend to feveral policies on
one rift, though the queftion be the
fame on all, for the contracts are feve-
ral. Camman v. Un. In. Conp. 114

40. If the defendant has joined in a commif-

Con, the court will not on the plaintiff's
application vacate the rule by which it
vas granted, but will grant one to pro-
ceed to trial, notwithstanding the com-
miflion. Shulrr v. HaUctt, 115'

41. The court will not discharge, on motion,

a pcrfon arretted, whilll attending a re-
ference under an order of the common
picas, if there l>e no notice of motion,
but will only grant a rule to fhew
caufe. Grwerv. Gre.n, 1 \e

42. When a defendant commits a crime, for

which he is fentenced to the State Pri-
fon the plaintiff may difcontinue with-
out payment of cofts. Lachy W Brin-s
v. M-L'onaU, ,,0

43. If a plaintiff get relieved from his own
Aipulation he reftores the defendant to
all rights as he ftnod when the ftipulu-
tion was entered into. Matin v. Kin-
*9< . 117

44. On fci. fa. notice of entry of the rule to

appear and plead need not he given, as
the fci. fa. is notice of itfelf, and the
default may be entered on the expira-
tion of the rule, but judgment cannot
be entered till four days alter. If it Lc,

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the judgment will be fet afide, and the
('.1 huil:, if regular, (land. No default
ever fet afidc when regular, except
when accounted for to the fatisfaction of
the court. Spencer v. Webb, 118

In partition, if the defendant does not
appear, the ccurt will, on motion, make
an order for partition as prayed for.
Neiljhn v. Cox and others, 121

To change the venue in a tranfitory ac-
tion l'pccial caufe muft be fhewn.
Woods -v. Fan RanUn, 123

If fcveral actions, turning on the fame
point, be noticed for trial, and on the
hearing of the firft, the judge direct a
nonfuit, exceptions to which is taken by
the counlti for the plaintiff, he will not
be liable to judgment as in cafe of non-
fuit for not proceeding to trial on the
other caufes, nor be obliged to ftipulate,
and the cofts muft abide the event of the
fuit. Campbell». iWungtr, 129

If a party to a fuit referred cannot pro-
duce his witnefs by the time of hearing,
a judge at chambers, or the court if
fitting, will ftay proceedings. The de-
fendant's attorney having nominated re-
ferees, and the party not having object-
ed, cannot on that ground move to fet
afide the report. Combs v. Wyeioff', 147
If an indictment be removed from the
feffioi.. 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. Tie People
v. Crofstvell, 149

If a plaintiff notice his caufe for trial,
and afterwards countermand it, he muft
pay the defendant the intermediate
tofts of fubpetnaing his witneffes.
Jack/on v. Mann, 123

Notice to refer muft contain the names of
the referees. Mifapprehenfion of a rule,
or ignorance of a late determination may
be offered as cxcufei, for not noticing
for the firft day of term. If the ground
of oppofing a reference be, that a point
of law will arife, it ought to be ex-
prcfsly ftated what it is, and that it is as
advifed by counfel. Lttjhxr v. Walton,

149
In order to be admitted as a defendant in
ejectment, a privity muft be fttewn be-
tween the applicant and the tenant; it
is not enough that the party claims title
and has a real and fubftantial defence.
Jacifin, ex.dem. Winter v. M'Evay, 151
Sudden indifpofitixn of counfel and at-
torney is an excufe for not proceeding to
trial, but will not exempt from colls.
Jaclfun, ttr. d* '.. Rodman v. Sro-wn, 15 1
totally informal one, yet it is fufficient 72.
to fet him on enquiry, and if a rule to
fticw caufe why the plaintiff fhould not
amend be granted,fixing it in the clerk's
office is good fervice on the tenant. If
proceedings be commenced for lands, to 73-
which a title has been awarded by the
commiffioners for fettling difputcs relat-
ing to lands in Onondaga, within three'
years after, it is fufficient, and though
they may be faulty, and require amend-
ment after the three years, is is fufficient
to entitle the plaintiff to proceed. 74-
Jackfon, ex. dem. liogeboom v. Stiles, 209
43. A motion cannot be made to fet afide a
writ of enquiry in the pofTeffion of the
plaintiff not returned, and on which no
inquifition has been taken, but if a jury
has been impannelled on it, and has
given a verdict on a hearing, contrary 75-
to the terms of a written agreement,
the court will give leave to iifue a writ
of inquiry de novo. Abeel v. IVoolcot,

ajo

64. After fix years fervice of a declaration

in ejectment, the court will, on terms,
give leave to amend, yackjln, ex. dem.
Fincbv.Kougb, 257 ?6-

65. The defendant in error cannot nonprofs

the plaintiff's writ before it is returned.
Van Der Mark v. Jack/on, ex. Jem. Of-
trander, 251

66. If a defendant move for judgment of non-
fuit, contrary to good faith, the court 77-
will make him pay the coils of oppof-

ing. Pbelpi v. Eddy, 2J2

67. Service on the agent of an attorney

plaintiff is as good as in any other fuit,

and need not be on the plaintiff perfon- '2.

ally. Rujplv. Ball, 2t»

68. If crofs funs be referred to the fame re-

ferees, and they make up their report
in each on the idea that the one fhall be
a fet-off to the other, the court will fet
afide both, if the fuits be for demands 79.
wliich cannot legally be let off. Lyle v.
Clajm, 323

69. If a plaintiff give notice of motion to

fet afide a judge's certificate to ftay pro-
ceedings, and do not attend to argue, 80.
the defendant will be allowed cofts. In
no cafe will the court hear an argu-
ment to fet afide a judge's certificate to
ftay proceedings, ut femb. Brett Es"
Bunn v. flood. 34^

70. Affidavit of fervice on a perfon in an at-

torney's office, muft (hew that there is 81.
a relation between him and the party
ferved. Ratbbone v. Blackford, 342

;t. When the notice and all the papers are
titled verfus in (lead of adftCtanr, it ja fa-
tal. Parbnanr'V.SbermAH, 244

Amendments to a cafe made muft be in
the cafe ferved, or refer to the line and
page in which it is propofed to amend.
I'hc party ferved cannot draw up a new
cafe. Milliardv. Hallett, 344

Where there are fome good counts and
fome bad, and a general verdict en the
whole, if the evidence has been on the
good counts only, the vcrdiift may be
amended from the judge's notes afier
notice in arreft of judgment. Union
Turnpike Company v. jfenkins. 381,

If a defendant has been prevented by ad-
vcrfe winds from fhewing caufe againft
a rule for a criminal information, and
the fame has been made abl'olute againft
him for want of caufe fhewn, it will be
fet afide of courfe on an immediate ap-
plication. Tbe People v. Frttt, 394

The regular mode of fhewing that evi-
dence applies to one count only, or to
any particular counts, is by certificate
from the judge, though if he be on the
bench, and an affidavit be made which
ftates the facts as they are, and he af-
fents to them, it will be fufficient.
Union Turn. Com. v. Jenkins, (n.) 394

Though the act of God be the caufe of
not proceeding to trial according to no-
tice, yet if there be time to counter-
mand, and the plaintiff negleets to do
fo, he muft pay cofts. Jaclfon 1: Bro-un,

484

On certificate of probable caufe both
parties may notice, but if not done by
the party obtaining the certificate, it is
no caufe for difcharging the order.
Kir by v. Cogswell, 484

On a rule to fhew caufe why an attach-
ment fhould not go for a contempt in
nublifhing matter reflecting on the court
in a caule then pending, the dcftiidant
fhould appear in perfon on the day of
fhewing caufe. Tbe People v, Freer, 485

Cauics which have been noticed for ar-
gument and duly entered in one term,
arc not, without a new notice to the
clerk, carried over to the next. Living-
Ban v. Rogers, 487

On a feigned ifiue from chancery, if an
inqueft be improperly taken, relief muft
be fought here. If an inqueft he taken
by default at a circuit, and notice of
trial has not been given, it will be fet
afide with cofts to be paid hy the plain-
tiff 's attorney. Dm v. Fen, 487

The action for a return of premium muft
be againft the underwriter and not a-
rainft the broker, though the. allured
be himfelf an underwriter, ant! die bro-
ker employed by both parties. Brum
•m. Kr'.Jon & Bunker, 4$Q^

8i. In an action on a promiCory note, if in
confequencc of the plaintiff 's attorney
having ti<> agent in Albany, the fuit be
nonnroffed there for want of declaring,
and judgment by default be obtained in
New-York, and the damages affeffid
by the clerk, indorfed on the note, the
court will, when the coils of nonprofs
have been paid, and the judgment in
New-York vacated, order the damages
affelTcd and indorfed to be (truck out,
that the plaintiff may proceed in a fc-
cond action without any cmbarralTment-
from the former proceedings. AtUrbu-
ry v. Tiller, 495

83. A new niii prius record allowed to be
filed, and a poflea indorfed thereon,
according to a judgment of fix years
antecedent, and execution thereon up-
on affidavit, (hewing the probable lofs
of the originals, jacifm, v. Ham-
mond, 496

84. In ejectment on a motion to fct afide
the rule to appear and enter, &c. if the
application be founded on irregularities
to be fupported by infpection of the de-
claration, &.c. on file, and the plaintiff
produce affidavits of due fcrvice, &c.
it will be prel'umcd that all was regular,
the tenant not producing the declara-
tions and notices ferved, efpccially if by
granting the motion the ftatute of limi-
tations would attach. 'Jaelfun v. Stiles,

85. If a defendant obtain a rule for a com-
miffion, in which the plaintiff docs not
join, and a term elapfe without notice
of any proceedings under it, the court
will fo far vacate the rule as to permit
to go to trial notwithstanding the corn-
minion. On a commillion to lingland,
and eight months, without any return,
the court will permit to go to trial, but
this docs nut prevent mewing caufe on
the trial, why it fuould not be put off.
Kirby v. Hrutliei, C03

86. If the confent rule, &c. in ejectment

have been actually forwarded in time to
deliver to the attorney of the phintiff,
and be by miftake filed in the clerk's of-
fice inftead of being ferved, the court
will fct afide a judgment on fuch a de-
fault, and it a writ of poffeflion has if-
futd, award reftitution on payment of
Cofls. Jaelfun v. Stiles, s°3

87. A judge's certificate of probable caufe

docs not flay proceedings, imlcfs accom-
panied with notice of motion. Kirby
v. CogpiveH, C05

88. If a pnfoner in cuflody rn mcfne pro-
cess fign a warrant of attorney, the na-

ture of which is explained to him by an
attorney who does not witnefs it as his
attorney, the court will not fet it afide,
Ut femb. Manhattan Company v. Brvwer,

511

89. Where it is necdTary only to iadorfe an

appearance on the writ, bail not beinj
required, it is- the duty of the clerk of
the court to enter the appearance on re-
cord. If judgment be ligned before it
is fo entered, the court will order the ap-
y pearance to be entered nunc pro tune
disd's and others v. Hubble it ux. 512

90. Where a fuit has been confolidaten, and

a commiffion fued out in the confolidat-
ed caufe in which the defendant has
joined, the court will allow the evidence
taken under it, to be read on the trial of
the principal fuit. Waf-rfcanj v. Deh-

field, 513

91. where a plaintiff has neglefled to file a
capias and enter an appearance for two
terms, though there be an affidavit,
fwearing to an agreement, that all the
proceedings fhould be confidered as of a
third term antecedent, the court w'3
not give leave to file the capias and en-
ter the appearance, nunc pro tunc, a d
the third term palled, efpccially if it ap-
pear that it be diked with a view to pre-
vent a fet-off of a note fallin)|<hie un«
the third and before the fecond term,but
will nrdcrthe capias &c. to beentereda'cf
the fecond term. Gordon v. Boiom, 50

92. If a defendant be difcharged for want or
being duly charged in execution, he can
never be taken in execution on a ca, fa-
iflucd on the judgment in the fuit on
which he was in cuftody. Mafers *
Edivards,

93. Three m»nth« are fufficient for executes

and returning a conimiifion arrived in
London. If after a commiffion iifueJ
the plaintiff do not ufe diligence, the
defendant may apply for judgment as in
cafe of nonfuit, which will be granted,
unlefs the plaintiff ftipulate. Celt'
and otherj v. Thompjcn, S*1

94. After verdict and certificate of probable

caufe granted, the court will not order
the amount of the fum recovered to be
brought into court. Shuter v. Sa!-
lett, S I8

95. If there be one good count, and the

others bad, and entire damages affeffed,
it may be amended. Livixrfion v. X«-
gn, J«3

96. If the declaration in a juflices court be
for ten dollars, and the judgment fee
fifteen, it is fatal on error. DtltmaOer
r. Borland, 593

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