J. VAN EMBURG v. DORCAS PULLENGER. On attachment. Matter of Practice. Mr. Gifford, moves for leave to record the first default of the defendant, and for the appointment of auditors. A. Whitehead, objects. The defendant is a female, and moves for rule that she have leave to appear without filing bail; the statute, Rev. Laws, 652 s. 6, prohibiting the confinement of any female for debt. An attachment will not lie against a female. Gifford, contra. The question whether this attachment will lie, cannot be tried before the defendant's appearance, which cannot be under the statute, until after filing bail. BY THE COURT. Take a rule to shew cause why the defendant shall not appear, on filing common bail, or why the attachment shall not be quashed. THE STATE BANK AT MORRIS v. HEDENBERG. REMOVED BY HABEAS CORPUS FROM ESSEX PLEAS. Matter of Practice. Motion to change the venue. A. Whitehead, for the defendant, moves to change the venue from Morris, to Essex county. Scofield, contra. There is no affidavit of facts on which such motion can be supported. 3 Green 64, Bell v. Morris Canal Company. J. W. Miller, on same side. The plaintiff's location is in Morris county, there the venue is laid; there the cause of action arose. COOPER V. ROBERTS. Whitehead, in reply. The plaintiff is a corporation and has no residence. The cause of action arose in Essex. on which the suit is instituted, is dated at Newark. fendant resides there. The note The de HORNBLOWER, C. J. If the action originally had been commenced in this Court, the plaintiff might have laid the venue in Morris county. But for the defendant's convenience it was brought in the Essex Pleas.-He might have let it remain there and had it tried in that county. He has removed the cause from that Court into this. This Court ought not to interfere in the case without special cause shewn. FORD, J. This action was commenced in the Essex Pleasand removed into this Court by Habeas Corpus. Bail is waived and the cause remains in this Court. The proceedings are de novo, the same, as if originally commenced here. The residence of the plaintiff, is where their banking-house and place of business is. Their cause arose on the indorsement of the note, which may have been in Morris. If an affidavit were produced, of inconvenience in having the trial in Morris, it might make a difference. But for any thing before the Court, it will be more convenient to try the cause in Morris-I am opposed to the application. RYERSON, J. I concur in the opinions that the application should be refused. And that special cause should be shown for changing a venue. Rule refused. COOPER v. ROBERTS. On Certiorari to a Justice of the Peace. A constable's return to a summons, that he left a copy at defendant's house &c. without stating “the defendant not found,” is defective. DICKINSON ads. STATE BANK AT MORRIS. Mr. Chapman, moved for a reversal of the judgment of the justice. 1. Because, in the summons, the day of appearance, and the sum demanded, were in figures. 1 Harr. Rep. 23. Ross v. Ward. 2. Because the constable's return states the service of the summons by "leaving a copy" &c. without saying "the defendant was not found." Rev. Laws, 630 s. 6. BY THE COURT. This case differs from that of Ross v. Ward. In that, the summons was unmeaning and unintilligible. The use of figures is not fatal. But the second objection is well taken. On that ground let the judgment be. Reversed. DICKINSON ads. STATE BANK AT MORRIS. Matter of Practice. This case was brought into this Court from the Morris Pleas, by Habeas Corpus. But no bail being filed, nor waiver of it entered. H. W. Green for Mr. RYERSON, enquired of the Court whether it would be regular to take a judgment here by default. Rev. Laws, 424, 426, requiring bail before removal. BY THE COURT. The practice has been, for the plaintiff to have his option, either by proceeding here, or taking a procedendo. RYERSON, J. Habeas Corpus is a common law, not statutatory writ. The statute requires bail for the plaintiff's security, which he may waive and proceed here. So also in many cases of Certiorari, the act is equally imperative in requiring security. HULL v. LARZALERE. On Certiorari to Common Pleas, on appeal, returnable to next term. Mr. Sherrard, after reading an affidavit, moved for a rule upon the Common Pleas to stay their proceedings and not issue execution on their judgment. BY THE COURT. Such a rule might, as a precedent, lead to abuse. The correct course, if execution be issued, is to apply to a judge at Chambers, who will upon a proper affidavit, allow a supersedeas. Rule refused. ANONYMOUS. On Certiorari to a Justice of the Peace. Mr. Wilson moved for a rule upon the Justice, to certify what the witness testified to on the trial, and whether the subscribing witness to a paper read in evidence, was sworn on the trial, or his absence accounted for. ANONYMOUS. Rule granted. Matter of Practice. Mr. Ewing moved for a rule to substitute two auditors in an 16 355 52 300 DEWITT and DAVISON V. Vliet. attachment, in place of two who had been appointed, but who it appears are interested in the suit. Rule granted. DEWITT and DAVISON v. VLIET. Mr. Sherrard applied for a rule to shew cause why a new trial be not granted; because the verdict was contrary to the Judge's charge and to the evidence, and the case involved new important questions; and this statement being corroborated by the suggestions of the Judge who tried the case, the Court. Granted the rule. ROGERS v. GUIEREN. On Certiorari. MATTER OF PRACTICE. J. W. Miller for the defendant in Certiorari, confessed the errors assigned, and consented to a reversal of the judgment. Mr. Scofield, attorney of the plaintiff in Certiorari, declined moving for the reversal. BY THE COURT. Let the Clerk enter the reversal of the judgment, as on motion for the plaintiff. |