publication, is good caufe for arrefting the judgment. Lyle v. Clafon,
1. A mandamus lies to the court of common pleas for not figning a bill of exceptions. The People v. the Judges of Wafbington County,
1. If a judge under the fixth section of the act incorporating this company, grant a warrant, for the appointing apprai- A free- fers, he cannot revoke it. holder of the city of New-York is under that fection incompetent to act as an appraiser of the damages done in the streets by laying the Manhattan pipes. Corporation v. Manhattan Company, 507
1. Under the Act of the 8th of January, 1794, for regiftering deeds of military lands, &c. a prior deed not depofited in the clerk's office, is void against a fub- fequent purchaser for a bona fide confi- deration, whose deed is deposited. Jackson, ex. dem. Potter v. Hubbard, 82
See Evidence, 6. Infurance, 15.
Partners and Partnership.
1. Facts from which a partnership may be 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 partners, though the firm has al- ways been known by the name of an- other partner and company, unless it be fhewn that there is fuch a diftinct house as that by the ftile of which the indorsement is made. Drake and another 184 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 indorfement of the firm. Manhattan Company v. Ledyard,
See Pleas and Pleading, I.
1. The people can acquire feifin or poffeffion of lands granted in fee for a breach of condition, only by matter of record and office found. The People v. Brown, 416
1. A fole poffeffion for 40 years, by one te- nant, in common amounts to an oufter. Van Dyck v. Van Beuren and Vof- burg, 2. An adverse pedis poffeffio for twenty years and upwards, with a claim of ti- tle in other lands in right of that pedis poffeffio, which lands are part of the lot on which the pedis poffeflio is taken, is a bar to a recovery in ejectment. Jackfon, ex. dem. Putnam v. Bowen, 358
See Action, 2. Certiorari, 1. Commif- fion, I. Cognovit. Demurrer. Infol- vent, I. Intrusion, I. Justices Court, 2. Partners and Partnership, 2. Struck Ju- Venue. ry. Trespass, 2.
1. If notice for applying for a commission fpecify names of commiffioners, and the party ferved do not then object he is concluded. Townsend v. New-York In. Com.
2. In an action on a note or bill, if, after de- fault, rules for interlocutory judgment and affefling damages be not entered, the court will fet afide the proceedings, though if the default be regular, that will ftand, with liberty to perfect the judgment in the term, if the plaintiff 6 can fo do. Grifwold v. Stoughton, 3. Trial by record must be brought on by 'notice, as in cafes for argument. Man- 6 batian Company v. Herbert, 4. After ftipulation the court will on special circumftances allow a fecond excufe against a motion for judgment, as in cafe of nonfuit. Livingfton v. Dela- 6 field, 5. Notice of motion to refer must contain names of referees; the court only ap- points and does not nominate them. Bedle v. Willett,
6. Notice of motion may be for some other than the first day of term, but then it muft fhew an excuse why not given for ibid. the first day, and plead, must be moved for, and is not of course. Seaman v. Davenport,
7. In partition the rule to appear
8. Mifprifion 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 adverse party, the fame be- nefit may be had as if the rule had been right. I. B. Church v. United In. Comp. 9. Peremptory mandamus will be fet afide on motion, if unfairly obtained. Eve- ritt ads. The People, 10. On moving for a new trial the court will not 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. Hallett v. Cotton, 11 11. Cofts 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- dict, ftays execution till the next term
18. On a non-enumerated motion for irregu- larity, merits cannot be entered into, but on merits, irregularity may be fhewn. Remfen. Ifaacs,
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 for accident have arrived, the court will grant a further day. Hun v. Bowns, 23 20. All cafes intended for argument must be duly noticed before the term to the clerk that he may enter them. Ansayout, 24 21. The court will not grant a new trial when there has been evidence on both fides. Applications for new trials on fubfe- quent difcovery of new and material teftimony muft ftate it, that the court may judge of its materiality. Halfey v. Watfon, 22. 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 those all subsequent pro- ceedings will be stayed. Huguet v. Hal- Lett, 55 23. Laft proclamation of a fine made nunc 59 pro tunc. Van Nefs v. Gardiner, 24. If after fuit brought, the fum be reduc ed by a partial payment, below 250
dols. and a cognovit taken for the refi- due, fupreme court cofts cannot be tax- ed. The plaintiff fhould have taken his cognovit and entered his judgment for a fum above 250 dols. M'Gregor 66 v. Loveland, 25. If a fuit be compromifed between the parties without the knowledge of the at- torney, and nothing said about the costs, each party pays his own. Watfon v. 66 De Peyfter,
26. Notice 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 27. To an application for a superfedeas for not having been charged in execution within three months after judgment, it is a good anfwer that the defendant has fince been charged. Manhattan Comp. v. Smith, 28. Attornies on being retained fhould ex- amine the ftate of proceedings, though it is but fair that on notice of retainer the plaintiff's attorney fhould disclofe them; for want of fo doing in a fuit against bail after default entered, writ of inquiry and judgment thereon set aside. 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 fubfequent, it is fatal on fpecial de- 69 murrer. Lowry v. Lawrence, 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's Cafe,
31. Service of a notice of motion on a per- fon in the house of the attorney is not fufficient. It ought to be on the clerk. 73 Anonymous, 32. Service of notice on an agent for non- enumerated motions may be on the first day of the term for the next non-enu- merated day; but there must be an ex- cufe for not noticing for the first. Moyle . Gillingham, 33. A commiflion to examine may
but will give leave to amend and per- fect. Codwife v. Hacker,
35. A motion in arreft of judgment may be after default, and the defendant'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. gan v. Hallett Borne, 36. If a caufe has been duly fet down on the day calendar, and on being called, the defendant does not appear, nor his counfel, who is then in court, the plaintiff may take an inquest which the court will not fet afide, though merits be fworn to, if the abfence of the de- fendant be not accounted for. Poft v. Wright Buchan,
73 be before iffue joined. A rule for a commiflion fufpends the trial till the rule be vacated. But if the defendant appear at the trial and examine witneffes, it will be a wai- Brain v. Ro- ver of the rule to vacate. 78 delicks Shivers, 34. When there are cross causes, and the plaintiff in 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 be ascertained, be in the hands of the plaintiff, the court will not order judgment to be entered because cafes have not been delivered,
If a notice of motion for nonfuit be titled verfus instead of ad sectam, and the affida- vit rightly titled, the notice is good. Ryers 2. Hillyer, If there be a neglect in not proceeding to trial, the defendant must avail him- felf of it the first opportunity, or it will be a waiver, and fubject him to costs if he afterwards move for judgment as in cafe of nonfuit. Brandt ex. dem. Rick- 113 etts v. Buckbout, 39. The rule for confolidating applies only to several actions on one policy, and does not extend to feveral policies on one risk, though the queftion be the fame on all, for the contracts are feve- 114 ral. Camman v. Un. In. Comp. 40. If the defendant has joined in a commif- fion, the court will not on the plaintiff's application vacate the rule by which it was granted, but will grant one to pro- ceed to trial, notwithstanding the com miffion. Shuter v. Hallett,
115 41. The court will not discharge, on motion, a perfon arrested, whilft attending a re- ference under an order of the common pleas, if there be no notice of motion, but will only grant a rule to fhew caufe. Grover v. Green,
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. Lackey & Briggs 116 v. MDonald, 43. If a plaintiff get relieved from his own ftipulation he restores the defendant to all rights as he stood when the ftipula- tion was entered into. Malin v. Kin- ney,
On fci. fa. notice of entry of the rule to appear and plead need not be given, as the fci. 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 be,
« ForrigeFortsett » |