46. To change the venue in a tranfitory ac-
tion ipecial caufe must be fhewn.
Woods v. Van Rankin,
123
47. If feveral actions, turning on the same
point, be noticed for trial, and on the
hearing of the firft, 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 cafe of non-
fuit for not proceeding to trial on the
other caufes, nor be obliged to ftipulate,
and the cofts must abide the event of the
fuit. Campbell v. Munger,
129

149

48. 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 set
afide the report. Combs v. Wyckoff, 147
49. If an indictment be removed from the
fellions 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. Crosswell,
50. If a plaintiff notice his caufe for trial,
and afterwards countermand it, he must
pay the defendant the intermediate
cofts of fubpoenaing his witnesses.
Jackfon v. Mann,
51. Notice to refer muft contain the names of
the referees. Misapprehension of a rule,
or ignorance of a late determination may
be offered as excufes, for not noticing
for the first day of term. If the ground
of oppofing a reference be, that a point
of law will arife, it ought to be ex-
prefsly ftated what it is, and that it is as
advifed by counfel. Lufber v. Walton,
149

123

52. In order to be admitted as a defendant in
ejectment, a privity must be fhewn be-
tween the applicant and the tenant; it
is not enough that the party claims title
and has a real and fubftantial defence.
Fackfon, ex. dem. Winter v. M'Evoy, 151
53. Sudden indifpofition of counfel and at-

torney is an excufe for not proceeding to
trial, but will not exempt from costs.
Jackson, ex. dem. Rodman v. Brown, 153

54. Nine days notice is enough in Cayuga, to
produce papers in Albany, diftant 180
miles. Factfon, ex. dem. Watson v.
Marfe,

153
55. Whenever a plaintiff amends his decla-
ration, the defendant has an election to
plead de novo. Webb v. Wilkie, 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 cofts, with
a copy of his rule annexed, and if not
paid within twenty days, he may enter
judgment, and if he do not fo, the
plaintiff will be regular in noticing for
trial. Gilliland v. Merrell,

58.

154
57. When proceedings have been regular, a
mere affidavit of merits is not fufficient
to set them aside. In fuch cafe, if there
has been a mistake, on which the judg-
ment has been taken, the defendant will
be relieved only on cofts and terms.
Cogswell v. Vandenberg,
155
On a reference if a receipt given after
the rule made be offered in evidence on
the part of the defendant, and objected
to by the plaintiff, the special matter
and facts fhould not be returned to the
court; but the referees fhould admit the
evidence, and make the report on it, that
the party aggrieved may bring it fully
before the court. Query, if a fpecial
matter of fact, without a decifion, be in
any cafe a report within the meaning
of the rule. Hawkins v. Bradford, 160
When a plaintiff refifts a motion for judg-
ment, as in cafe of nonfuit for not pro-
ceeding to trial, if he infifts on not hav-
ing been able to try his caufe, and others
have been heard, he muft fhew they
were older iffues. Jackson, ex. dem. Wil-
liams v. Chamberlin,

59.

60.

171
If a witnefs has been in the power of a
plaintiff he must fhew endeavours to ob-
tain his teftimony, or he will not be al-
lowed to urge the want of it for not
proceeding to trial. Counter affidavits,
to thofe in oppofition are not admiffible.
If a fuit be called and paffed, the rea-
fons why fhould be made appear by the
counfel in the caufe. If an offer of a
compromise be made to the plaintiff and
refufed, on a motion for a nonfuit the
court will not order them to be impof-
ed, ut femb. Deas . Smith,
61. If an alien, on removing his fuit into the
federal court, file his petition at the
time of filing fpecial bail, he is in fea-
fon, though the bail have been excepted
to. Arjo. Monteiro,
248
62. After fervice of a declaration in eje&-
ment on a tenant, though it may be a

171

totally informal one, yet it is fufficient to fet him on enquiry, and if a rule to fhew cause 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 which a title has been awarded by the commiffioners for fettling difputes relating to lands in Onondaga, within three 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. Jackfon, ex. dem. Hogeboom v. Stiles, 209 63. A motion cannot be made to fet afide a writ of enquiry in the poffeffion 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 to the terms of a written agreement, the court will give leave to iffue a writ of inquiry de novo. Abeel v. Woolcot,

65. The defendant in error cannot nonprofs the plaintiff's writ before it is returned. Van Der Mark v. Jackson, ex. dem. Oftrander,

251 66. If a defendant move for judgment of nonfuit, contrary to good faith, the court will make him pay the cofts of oppofing. Phelps v. Eddy, 252 67. Service on the agent of an attorney plaintiff is as good as in any other fuit, and need not be on the plaintiff perfonally. Ruffel v. Ball,

252

68. If crofs fuits be referred to the fame referees, 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 which cannot legally be fet off. Lyle v. Clafon, 323 69. If a plaintiff give notice of motion to fet afide a judge's certificate to ftay proceedings, and do not attend to argue, the defendant will be allowed cofts. In no cafe will the court hear an argument to set aside a judge's certificate to ftay proceedings, ut femb. Brett & 342 70. Affidavit of service on a perfon in an attorney's office, muft fhew that there is a relation between him and the party ferved. Rathbone v. Blackford, 342 71. When the notice and all the papers are titled verfus inftead of ad fitam, it is fatal. Parkman v. Sherman,

Bunn. Hood.

344

73.

74.

Union

72. Amendments to a cafe made must be in the cafe ferved, or refer to the line and page in which it is propofed to amend. The party ferved cannot draw up a new cafe. Milward v. Hallett, 344 Where there are fome 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 arreft of judgment. Turnpike Company v. Jenkins. 384 If a defendant has been prevented by adverfe winds from fhewing caufe against a rule for a criminal information, and the fame has been made abfolute against him for want of caufe fhewn, it will be fet afide of courfe on an immediate application. The People v. Freer, 394 The regular mode of fhewing that evidence 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 affents to them, it will be fufficient. Union Turn. Com. v. Jenkins, (n.) 394 76. Though the act of God be the caufe of 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. Jackfon v. Brown, 484

75.

78.

77. 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. Kirby v. Cogswell, 484 On a rule to fhew caufe why an attachment fhould not go for a contempt in publishing matter reflecting on the court in a caule then pending, the defendant fhould appear in perfon on the day of fhewing caufe. The People v. Freer, 485 79. Caufes which have been noticed for ar

80.

81.

gument and duly entered in one term, are not, without a new notice to the clerk, carried over to the next. Livingflon v. Rogers, 487 On a feigned iffue from chancery, if an inqueft be improperly taken, relief must be fought here. If an inqueft 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. Den v. Fen, The action for a return of premium must be against the underwriter and not against the broker, though the affured be himfelf an underwriter, and the broker employed by both parties. Borone 7. 1. Nelfon Bunker,

487

489

495

82. In an action on a promiffory note, if in confequence of the plaintiff's attorney having no agent in Albany, the fuit be nonproffed there for want of declaring, and judgment by default be obtained in New-York, and the damages affeffed by the clerk, indorfed on the note, the court will, when the cofts of nonprofs have been paid, and the judgment in New-York vacated, order the damages affeffed and indorfed to be ftruck out, that the plaintiff may proceed in a fecond action without any embarrassment. from the former proceedings. Atterbu ry v. Teller, 83. A new nifi prius record allowed to be filed, and a poflea indorfed thereon, according to a judgment of fix years antecedent, and execution thereon upon affidavit, fhewing the probable lofs of the originals. Jackfon, v. Hammond, 496 84. In ejectment on a motion to fet afide the rule to appear and enter, &c. if the application be founded on irregularities to be fupported by infpection of the declaration, &c. on file, and the plaintiff produce affidavits of due fervice, &c. it will be prefumed that all was regular, the tenant not producing the declarations and notices ferved, efpecially if by granting the motion the ftatute of limitations would attach. Jackfon v. Stiles,

501 85. If a defendant obtain a rule for a commiflion, in which the plaintiff does 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 commiflion. On a commifhion to England, and eight months, without any return, the court will permit to go to trial, but this does not prevent fhewing cause on the trial, why it fhould not be put off. Kirby v. Wathies, 503 86. If the confent rule, &c. in ejectment have been actually forwarded in time to deliver to the attorney of the plaintiff, and be by mistake filed in the clerk's office inftead of being ferved, the court will fet afide a judgment on fuch a default, and if a writ of poffeffion has iffued, award restitution on payment of cofts. Fackfon v. Stiles, 503 87. A judge's certificate of probable caufe does not stay proceedings, unless accompanied with notice of motion. Kirby v. Cogfavell, 88. If a prifoner in cuftody on mefne procefs fign a warrant of attorney, the na

505

ture of which is explained to him by an attorney who does not witnefs it as his attorney, the court will not fet it aside, ut femb. Manbattan Company v. Brower, 511 Where it is neceffary only to indorfe an appearance on the writ, bail not being required, it is the duty of the clerk of the court to enter the appearance on record. If judgment be figned before it is fo entered, the court will order the appearance to be entered nunc pro tunc. Rofs and others v. Hubble et ux. 512 Where a fuit has been confolidated, and a commiflion fued out in the confolidated 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. Waterbury v. Delafield, 513 Where a plaintiff has neglected 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 will not give leave to file the capias and enter the appearance, nunc pro tunc, as of the third term paffed, efpecially if it ap pcar that it be afked with a view to prevent a fet-off of a note falling due fince the third and before the second term, but will order the capias &c. to be entered as of the fecond termi. Gordon v. Bezone, 513 If a defendant be discharged for want of being duly charged in execution, he can never be taken in execution on a ca, fa. iffued on the judgment in the fuit on which he was in cuftody. Mafters Edwards, 515 Three months are fufficient for executing and returning a commiffion arrived in London. If after a commiflion iffued the plaintiff do not ufe diligence, the defendant may apply for judgment as in cafe of nonfuit, which will be granted, unless the plaintiff ftipulate. Coles and others v. Thompfen, 517 After verdict and certificate of probable caufe granted, the court will not order the amount of the fum recovered to be brought into court. Sbuter. Hallett,

518