THE STATE v. BIDLEMAN.

MATTER OF PRACTICE.

On Certiorari to Hunterdon Sessions.

An order of filiation and maintenance had been made on the defendant, who entered into recognizance to appear at the Sessions, and abide &c. and appealed to the Sessions, where the order was confirmed. A scire facias was then issued upon the recognizance, and the defendant brought a Certiorari removing the proceedings of the Sessions, to this Court.

Saxton for the defendant, moved for a rule of this Court, to stay proceedings on the scire facias.

BY THE COURT. Take a rule to stay the proceedings on the scire facias, until the further order of this Court.

WHITMORE v. COREY.

In assumpsit.

A. Whitehead moved for a rule to shew cause why the verdict should not be set aside and a new trial granted, because of the insufficiency of the plaintiff's evidence of the endorsement of a promissory note. The witness examined, stated that he saw a person, who said he was the endorser, write his name, for the purpose of enabling the witness to prove his hand writing.

Cases cited. 1 Esp. N. R. 14;2 Stark. 351, cites 2 B. & R. 147. Frelinghuysen, contra.

Rule granted.

OGDEN v. MIFFLIN.

On Certiorari returnable to February Term, 1837.

A. Whitehead moved for a dismissal of this writ for want of prosecution.

A rule to certify certain matters, was taken at May Term. And at September Term, a rule to take depositions was granted. None being taken, the Certiorari was now

Dismissed.

AUSTIN and MELVILLE v. BROWN.

Can an attaching creditor, come into Court and call in question, a judgment regularly entered against his debtor, by another plaintiff, quere?

S. R. Hamilton, in behalf of Hoy a plaintiff in attachment against Brown, applied for a rule to shew cause &c. or for an order for a feigned issue to try the fairness of the judgment entered by confession on bond and warrant of attorney, in favor of Austin and Melville, and read an affidavit of Hoy that he believed the judgment to be fraudulent.

H. W. Green contra, contended that no such application can be made except by a judgment creditor: that the affidavit did not disclose sufficient ground for such a rule, and that it was taken without notice.

He cited 5 Halst. R. 348, Worley and al. v. Scudder and al.

HORNBLOWER, C. J. I cannot conceive that a mere party litigant is entitled to come into Court and question a judgment regularly entered. The applicant has issued an attachment, the object of which is to compel the defendant's appearance. The effect of the levy is the additional security, in case of recovery, but there must be property legally attached. In this case it had been levied on under an execution.

TEN EYCK, APPELLANT V. FARLEE, ADMR. &c. APPELLEE.

The applicant has failed to lay before the Court such prima facie evidence of fraud as would justify any interference of the Court. Such facts should be disclosed, on which if true, the Court may open the judgment.

FORD, J. If it appear that a judgment is fraudulent, I am inclined to think a plaintiff in attachment may have a right to investigate it. But it must appear by facts sufficient to raise a belief in the Court, of the unfairness of the judgment. The affidavit in this case is defective.

RYERSON, J. The applicant's affidavit is only as to his belief. There is no fact or ground stated on which we can be authorised to interfere with the judgment.

I have doubts of the right of an attaching creditor to make such an application.

Rule refused.

TEN EYCK, APPELLANT v. FARLEE, ADMR. APPELLEE.

T. A. Hartwell moved for a mandamus to the Hunterdon Common Pleas, to reinstate an appeal from a judgment of a Justice of the peace upon a verdict. The appeal was entered at May term 1837. At August term, a jury trial was demanded by the appellant. At a special term in September, the appeal was dismissed for want of prosecution.

Mr. Hartwell insisted that if a suit is properly before the appellate Court, on the demand of a jury trial, no appeal can be dismissed; and that the appellee must proceed and substantiate his claim. That the verdict is set aside by operation of the statute, and consequently there is no verdict or judgment to be affirmed or reversed-no judgment can be entered or execution

CHESTER V. CHESTER.

issued. That a motion at a special term, to dismiss an appeal from a verdict, is illegal if a jury trial on the appeal be demanded. Har. Comp. 129, Ib. 5. The act of 1820, Rev. L. 797-is supplied by that in Harr. Comp. 5.

Hamilton, contra. Contended that the practice of the Courts in Hunterdon has been conformable to their decision in this case.

HORNBLOWER, C. J. The appeal if regular, supersedes the verdict; and the plaintiff must proceed and prove his right of action.

As to the power of the Court to dismiss an appeal, at a special term, when a jury trial is demanded, it has been decided otherwise.

FORD J. Concurs.

RYERSON J. At a special term, no jury trial can be had, notwithstanding any rule to the contrary.

Rule to shew cause, granted.

NOTE. The rule was argued at February term 1838, and then made absolute. Vide the report, post.

CHESTER v. CHESTER.

Matter of Practice.

A. Browning applied for a rule that the plaintiff have leave to enter a waiver of bail, upon the sheriff's return upon the capias, that the defendant upon this arrest, gave bond to appear, and apply for the benefit of the insolvent laws of this state &c.

Rule granted.

ANONYMOUS.

An allocatur not necessary on a writ of error.

S. R. Hamilton moved to quash the writ of error, because no allocatur is indorsed on it.

P. I. Clark contra. No allocatur is necessary, it is a writ of right.

HORNBLOWER, C. J. I had supposed an allocatur unneces

sary.

RYERSON, J. I have always considered it a writ of right, not of grace; and consequently no allocatur necessary.

FORD, J. I believe it to be customary but not necessary. Motion denied.

VANDERVEER v. CONOVER.

Mr. Hamilton, in behalf of Mr. Hartshorne, moved for a rule to shew cause why a mandamus be not issued to Monmouth Common Pleas, to vacate their rule setting aside an execution. And cited Rev. L. 676.

H. W. Green, contra, cited Penn. R. 431; 1 Green, 97, Jones v. Allen; 3 Halst. 205, State v. Halliday; 5 Ib. 58; 7 Ib. 179; 1 Ib. 157; 2 Halst. 160.

BY THE COURT. This is not a proper case for a mandamus.

Rule refused.