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V. That the practice of entering a rule, assigning a day, Jan. Term, or setting down a cause for argument, shall, in future, be discontinued, and instead thereof, an argument shall always be brought on to be heard in consequence of a notice for that purpose; and every notice of a motion or argument, shall be for the first day in term, or for as early a day in term thereafter, as the circumstances of the case will reasonably permit; and whenever a motion or argument shall go off from day to day, it shall still be entitled to be heard on the notice, without the necessity of a rule for enlarging the time to hear it.

VI. That whenever it shall be intended to move to set aside a nonsuit or verdict, there shall, in future, instead of the report of the judge, where the same would heretofore have been requisite, be a case, to be prepared by the party intending the motion, and a copy thereof to be served on the opposite party within two days after the trial, and which opposite party may, within four days thereafter, propose amendments thereto, and serve a copy on the party who prepared the case, and who may then, within four days thereafter, serve the opposite party with a notice to appear within convenient time, not less than four days, nor beyond

peal to the court for such order; but if no order be obtained, and judg. ment be entered at the time the motion is made to set aside the verdict, &c. the motion then comes too late.

In Rathbone v. Comstock, February, 1806, it was decided, that a motion to set aside a report of referees, must be made at the next term after the report is made. 1 Johnson, 138. It is so as to all other motions to set aside proceedings, &c. unless some sufficient excuse be shown for the delay.

In January term, 1803, it was decided, that a judge who grants an order in vacation, may revoke it in the same vacation; but the court will not take it into consideration, whether the order was or was not fitly obtained. It must stand until the main question be disposed of. A judge's certificate of probable cause does not stay the proceedings unless it be accompanied with a notice of the motion. 1 Caines, 506.

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Jan. Term, the first day of the then next ensuing term, before the judge who tried the cause, to have the case and amendments corrected, and the judge shall thereupon correct the same, as he shall deem to consist with the truth of the facts; but if the parties shall omit within the several times. above limited, unless the same shall be enlarged by a judge, or the recorder of New-York, the one party to propose amendments, and the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the case as prepared, and the latter to have agreed to the amendments as proposed.

VII. That where there shall be a rule to show cause, or a notice of a motion or argument, if the party on whom the rule or notice shall have been served, shall not appear to show cause, or to oppose the motion, or to argue on his part, he shall be deemed to have renounced his right against the rule, motion, or judgment, claimed by the party having served the rule, or given the notice, and such latter party shall thereupon be entitled to his rule, motion, or judgment equally, as if the other party had appeared, and consented thereto,*

VIII. That every attorney residing in the city of NewYork, shall have an agent residing in the city of Albany; and every attorney residing in the city of Albany, shall have an agent residing in the city of New-York; and all

In April term, 1799, it was decided, that the consent, mentioned in the 7th rule, meant only the admission to be presumed against the party declining to oppose or argue. In such cases the judgment is entered in the usual form, and the form of the rule entered by the clerk in his minutes is, “on reading and filing the affidavit of service, &c. &c. and no counsel appearing, &c. Ordered, that the plaintiff (or defendant) take his rule (or judgment) as of course."

As to the practice, on which the 7th rule is founded, see 1 Salk. 309, 310. 1 Lord Raym. 554. 1 Lutwych, 308. 481. 2 Lutwych, 1300. 3 Dallas, 353. Dean v. Sicard, in the court of errors, February, 1800.

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attornies residing elsewhere, shall have two agents, the Jan. Term, one residing in the city of New-York, and the other residing in the city of Albany. That no person shall be an agent, unless he shall also be an attorney of this court, and every appointment of an agent shall be in writing, signed by the attorney, and filed in the office of the clerk in the city of New-York or Albany, wherever the agent shall reside; and the clerk shall have constantly the names of the several agents, and of the respective attornies appointing them, and the latter in alphabetical order, entered in a book to be kept in their offices for the purpose. That, except services during a vacation in suits where the attornies for the respective opposite parties shall reside within forty miles of each other, services on the agent shall be as valid, in all cases, as if made on the attorney himself; and if there shall be no agent, the service of the notice may then be, by affixing the same in some conspicuous place in the clerk's office. That where the service shall be on the agent, or by affixing the notice in the clerk's office, it shall be double the time of service* which would be requisite, if the service was on the attorney himself, and that all services on agents, or in the clerk's office, shall, during a term, be in the city where the term shall be held. This rule, however, not to take effect, until after the first day of the ensuing term of April.

IX. That notices or rules of two days shall be abolished, and instead thereof, such notices or rules shall be of four days.

* In April term, 1800, it was decided, that this rule requiring double time, &c. applied only where an attorney was employed for the defendant and has no agent appointed. It was also decided, that notice of motion for term, though served in the vacation, was within the reson of this rule, and must be served on the agent in the city, where the court is held.

Service on the agent of an attorney who is plaintiff, is equally good as in other suits, and need not be on the plaintiff in person. 1 Caines

252.

Jan. Term, 1799.

X. That the practice requiring a term's notice of, trial or inquiry, shall be abolished.

XI. That in future no costs to counsel for perusing pleadings or entries shall be taxable against the opposite party, unless there shall be a certificate, signed by the counsel, certifying that he perused the pleadings or entry charged in the bill as special, and that in his opinion they were special.

XII. In order to provide a remedy against the grievance of having useless counts in the declaration taxed against the defendant, ordered, that except where the cause of action shall be for goods sold and delivered, or services performed, there shall not be more than one count in the declaration taxed against the defendant for each distinct cause of action, and where there shall be more than one count for the same cause of action, the attorney for the plaintiff may, in such case, elect the count to be taxedThat where the attorney for the plaintiff shall claim to have more than one count taxed against the defendant, he must then produce an affidavit to the judge or clerk, taxing the costs, that the suit was brought for several causes of action to be specified in the affidavit, and he shall then be entitled to have as many counts taxed as there shall be causes of action specified in the affidavit. And further, if there shall have been a trial, and the defendant shall procure a certificate from the judge, certifying the counts on which the plaintiff recovered, or if there shall have been an inquiry, and the defendant shall procure a certificate from the sheriff or clerk, certifying the counts on which the damages were assessed, that then only the counts specified in the certificate shall be taxed against the defendant, the affidavit of the plaintiff's attorney notwithstanding; otherwise, that is to say, for want of such affidavit or of such certificate, such one count in the declaration, as the plaintiff's attorney shall elect, and no more, shall be taxed: Provided, that in the above excepted cases of goods sold

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and delivered, or services performed, the plaintiff shall be Jan. Term, entitled to have a count in an indebitatus assumpsit, and a count on a quantum meruit or quantum valebat, taxed for each of these respective causes of action, the above restriction of one count only for each distinct cause of action notwithstanding.

XIII. In order to provide for a case omitted in the rules of April term, 1796, ordered, that in future where a notice of the rule to plead shall be affixed in the clerk's office, if the attorney for the plaintiff shall, before entering the default of the defendant, receive a notice from an attorney that he is retained to defend the suit, he shall be held to serve the attorney for the defendant with a notice of the rule to plead, and with a copy of the declaration, and the rule for pleading shall be from the time of such service, so that the time, for which the notice of the rule to plead, may have been affixed in the office, shall not be taken into computation.

XIV. That where a suit shall be commenced for a nonresident plaintiff, before security for costs, by a sufficient householder of the state in the sum of one hundred dollars, in the usual form, shall be given, the attorney shall be deemed to have become security for costs; and where, at any time pending the suit, the plaintiff shall remove out of the state, and the attorney shall thereafter proceed in the cause before such security shall be given, he shall in such case also be deemed to have become security for costs; but he shall not, in any case, be liable to an amount exceeding one hundred dollars, or where, if there shall be a plurality of plaintiffs, one of them shall be resident within the state.