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publication, is good caufe for arrefting
the judgment. Lyle v. Clafon,

M

Mandamus.

See Practice, 9.

581

A

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,

Manhattan Company.

511

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

Map.

See Grant, 1.

Mafters of Ships.

See Breach of Orders, 1.

Memorandum in a Policy.

See Infurance, 7.

Merits.

See Practice, 18. 57.

Military Lands.

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

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Parol Evidence.

See Evidence, 6. Infurance, 15.

Partners and Partnership.

See Promiffory Note, 2.

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,

Partition.

See Practice, 7. 14. 45.

Paffport.

See Infurance, 5.

Performance.

See Pleas and Pleading, I.

People, The.

192

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

Perjury.

See Slander, I.

Perishable Articles.

See Infurance, 7.

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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

Poftea.

See Practice, 63.

Poundage.

See Sheriff, 3.

Practice.

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.

4

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,

7

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

7

7

8

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

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

22

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

24

INDE X.

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

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,

72

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,

74

Calla-

104

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,

37.

38.

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112

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,

42.

115

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,

44.

с

117

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,

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