Carpenter agt. Mills. and upon the conviction that greater expedition might be necessary to secure arrests in cases of felony than in cases of misdemeanor. The reason for allowing arrests without warrant, will not apply to an offence reduced by statute from the grade of felony to that of misdemeanor; and the reason failing, the rule falls with it. Our statutes have not changed the grade of petit larceny, which is a felony at common law. It is true that it is not one of the statute felonies defined in section 30, title 7, chapter 1, part 4, of the Revised Statutes, but there is no enactment which takes from it its common law character. The defendants, therefore, might legally arrest for petit larceny without warrant, upon the oral charge of a third person, provided they had reasonable ground to suspect that the petit larceny had been committed, and that the plaintiff was the guilty person. There was no conflict of evidence as to the fact that Mills made the charge against the plaintiff to the defendants, nor as to any of its important features; and as it afforded to them reasonable ground to suspect that the offence had been committed, and by the plaintiff, the motion for a dismissal of the complaint should have been granted. The judgment against the defendants Switzer and Powers, should be reversed and a new trial granted, costs to abide the event. Hankinson agt. Giles. SUPREME COURT. SAMUEL HANKINSON appellant agt. WILLIAM M. GILES, respondent. Where in an action for malicious prosecution, a stipulation identifying certain affidavits as the originals upon which the warrant for the arrest of the plaintiff was issued, and admitting that the plaintiff was arrested upon such warrant : Held, that it did not authorize the defendant to read such affidavits in evidence, though the stipulation was produced on the trial by plaintiff, but signed by the defendant's attorney only. And the case was not altered by plaintiff's first reading in evidence under such stipulation, defendant's affidavit made before the magistrate. New York General Term, February, 1864. Before LEONARD, P. J., CLERKE and SUTHERLAND, Justices. By the court, SUTHERLAND, J. It does not require any argument or authority to show that independent of the stipulation on page 8 of the case, it was error to permit Calvin Angier's affidavit to be read in evidence for the defendant under objection. In my opinion, the stipulation signed by the attorney for the defendant only, did not authorize him to read Angier's affidavit in evidence. Had the stipulation been signed by the attorney for the plaintiff also, I do not think it would have authorized the defendant to read it in evidence, although it might have authorized its production and identification as one of the affidavits or papers upon which Kelly, the magistrate, issued a warrant for the arrest of the plaintiff. The inference from the case on page 8, perhaps is, that the plaintiff produced the stipulation and read the defendant's affidavit in evidence, and if he did, in my opinion, this did not authorize the defendant to read Angier's affidavit in evidence, as evidence of the facts stated therein. It is plain that the reading of Angier's affidavit in evidence might materially have injured the plaintiff. Culver agt. Hollister. I think the order dismissing the complaint should be reversed, and a new trial ordered, with costs to abide the event. LEONARD, J. I concur. The stipulation gave the defendant no authority to read any affidavit. Nor did the read. ing of Giles' affidavit by the plaintiff, authorize the reading by defendant of another sworn by Angier, although annexed to the former, and forming part of the papers on which the magistrate issued his warrant. CLERKE, J., concurred. SUPREME COURT. JOHN P. CULVER, appellant agt. DAVID M. HOLLISTER, impleaded, &c., respondent. During the pendency of an appeal from an order directing the answer to be made more definite and certain, the defendant obtained an ex parte order extending his time to answer until ten days after the hearing and decision of the appeal. On appeal from an order denying a motion to vacate the latter order, the general term modified the order so as to direct a stay of proceedings on the part of tho plaintiff until the decision of the appeal from the first order. New York General Term, February, 1864. Before LEONARD, P. J., CLERKE and SUTHERLAND, Justices. By the court, LEONARD, J. This appeal is from an order denying a motion to vacate an ex parte order extending the time to answer after the appeal was taken, until ten days after the hearing and decision of an appeal from an order directing the defendant's answer herein to be made more definite and certain. Conceding that the order made ex parte extending the time to answer, after a decision at special term directing an answer to be made more definite and certain in ten days, and on expiration of that period, was irregular, it does not follow that the order denying the Culver agt. Hollister. motion at a special term, made on notice, when both parties were before the court, to vacate the ex parte order, was not properly made. The order denying the plaintiff's motion, amounted to a stay of proceedings merely, till the appeal was heard. This motion was heard and decided at special term, when both parties were before the court on notice, and the judge had jurisdiction to grant a stay of proceedings, which would have the same effect only as the order appealed from. If the order directing the answer to be made more definite and certain should be affirmed, the general term could, and on request would, regulate the further time (if any) which should be granted to the defendant within which to comply with the terms of the order. If the order should be reversed, then no further time to answer would be required, as the answer already served would put the cause at issue. I have looked into the answer referred to, and do not consider it clear, by any means, that it is insufficient, or requires to be made more definite. I think the order appealed from here should be modified so as to direct a stay of proceedings on the part of the plaintiff till the decision of the appeal from the order in relation to the answer. Ten dollars, costs of the appeal, to abide the final result of the action. CLERKE, J., Concurred. Van Dusen agt. Bissell. SUPREME COURT. CURTISS L. VAN DUSEN, respondent agt. JOHN BISSELL, appellant. Where a party attends the trial of his cause solely as a witness, and is sworn and examined as such, he is entitled to witnesses fees. It is appropriate and perhaps proper, that each judicial district should follow its own rulings and decisions upon this question, which seem to be nearly balanced, until some different general rule shall be established by the court of appeals or prescribed by the legislature. Erie General Term, September, 1865. Before GROVER, P. J., MARVIN and DANIELS, Justices. In the adjustment of the plaintiff's costs in this case, the clerk of Niagara county allowed him $27.92 for traveling and attendance fees, as a witness in his own behalf. His affidavit produced before the clerk showed him to be a necessary and material witness in his own behalf on the trial of this cause, and that he attended solely as a witness, and was sworn and examined as such. The defendant objected to the allowance of these fees, and appealed from the decision of the clerk, by which he permitted them to be adjusted. The special term affirmed the clerk's decision, and the defendant appealed to this court. FARWELL & BRAZEE, for appellant. DANIELS, J. This court in an unreported decision has already held that the party who attends the trial of his cause solely as a witness, and is sworn and examined as such, is entitled to witnesses fees. And the ruling has been acted upon by the legal profession for several years in this district. If a uniform rule could be secured by departing from that decision, so that the construction of the Code upon this subject would be the same throughout the state, VOL. XXIX. 31 |