47

6. If a defendant's commiffioner has miflaid a commiflion, in confequence of which it has not arrived but is fhortly expected, the court will not grant judgment as in cafe of nonfuit, though there has been a former ftipulation, but will allow to ftipulate anew on paying cofts. Cotes and others v. Thompson, 7. When a ftipulation is offered before notice of motion, then cofts will be allowed up to the time of offer. When after notice and before actual application up to that time; but when not till the court is applied to, all cofts must be paid. Anonymous, 56 8. To take the effect of a motion for judgment on a frivolous demurrer, notice of bringing on the argument must be given. Anonymous, 56 9. A fi. fa. illuing into a different county than where the venue is laid is void. So is a fi. fa. tefted out of term. Si-' mands v. Catlin,

61

10. If a plaintiff examine his witnefs and deliver him over to the defendant to crofs examine, and before any opportunity offer to enable the plaintiff to afk him any questions in explanation, the witnefs fall down in a fit, and the plaintiff go on to examine other witneffes and try the cause, the court will not afterwards grant a new trial to give the plaintiff an opportunity of letting in the further teftimony of the fame witneffes. Depeyfter v. Columbian In. Comp. 11. If a judge mifdirect in one point which does not go to the merits of the cafe, according to which the jury decide, the court will not on that account order a

85

.

new trial. Depeyfer v. Columbian In. Comp. 85 12. Where a party has it in his power to enforce payment of cofts awarded him, by attachment, the court will not take the non-payment into confideration, in forming a fubfequent decifion on a collateral matter. An attachment in the first inftance is not granted against a witnefs for difobeying a fubpoena. The practice is to move for a rule to fhew caufe. Jackfon v. Mann, 92 13. Abfence of a witnefs is a good caufe for refufing judgment as in cafe of nonfuit and even to excufe ftipulating. Jackson v. Mann,

93

14. If a plaintiff be prevented from proceeding to trial for want of papers, which he had an honeft fair caufe to expect, it will be fufficient to prevent an application for judgment as in cafe of nonfuit, but not to excufe the cofts of the circuit. Jackson ex dem. Van Bergen v. Haight, 15. If it appear that the court would not have tried a caufe at the circuit had the plaintiff been ready, judgment as in cafe of nonfuit will not be granted, and cofts will be allowed only for the witnefs up to the time when the determination of the circuit judge was known. Jackfon ex dem. Van Bergen v. Haight,

93

16. If a number of caufes depend on the fame title, and a cafe is made in one, the plaintiffs need not continue to notice for trial, circuit after circuit. If they do, the nondecifion of the cafe will prevent judgment as in cafe of nonfuit but will not exonerate from cofts ut femb. 94 17. An application for a new trial on account of newly difcovered evidence is an enumerated motion. Chandler v. Trayard, 94

18. An affidavit of fervice ftating it to be by leaving the notice and copy on the table of the oppofite attorney, is not good unless it fet forth that there was not any one in the office. Jackfon ex dem. Norton v. Gardner, 95 19. No agreciment between attornies can be noticed unless reduced to writing. Bain

v. Green, 95 20. If two caufes turn on the fame point and

a verdict be given in one on which a cafe is made, it is fufficient to prevent judgment as in cafe of nonfuit for not proceeding to trial in the other, or a ftipulation, but will not excufe from cofts. Palmer and others v. Mulligan and others, 21. If a caufe be fubmitted to arbitrators before a circuit, and an application be afterwards made for judgment as in cafe of nonfuit, it will be refufed with cofts. Bradt v. Way,

96

22. Wherever it is fhewn on the face of the counter affidavits that the application noticed will be ineffectual, cofts of refifting will follow ut femb. 95 23. The affidavit for an attachment against judges of an inferior court for difobeying a mandamus ordering them to feal a Bill of exceptions, ought to fhew that the perfons ferved are thofe who ought to fign. People v. Judges of C. P. of Wafbington, 97 24. If fpecial bail be duly entered, but notice thereof and of juftification be not given till after the arreft of the bail, proceedings on the bail bond will be stayed on payment of cofts. Maflerton v. Benjamin, 98 25. If a prifoner be not brought up for his discharge under the infolvent Law till the last day of term, and his creditor oppofe him on an affidavit of fhewing probable caufe of impeaching the fairnefs of his inventory the court will remand till the next term. Marfcroft v. Butler, 26. Withdrawing, by permiflion of the court, a juror in a criminal cafe, is not of itself a caufe for arrefting the judgment on a subsequent trial for the fame offence. People v. Barrett and Ward,

99

100

27. An application for judgment on a frivolous demurrer is an enumerated motion, and has priority of other motions if the notice fpecify the application to be grounded on the frivolousness, and there be no oppofition. M'Cabe v. McKay,

100

28. When the court is divided judgment must go according to the verdict. But if an intimation for a special verdict has been given, and the bench be afterwards full, a fecond argument will be ordered if the special verdict be not agreed to. Van Dyck v. Van Beuren and Vofburg, 103 29. A notice to declare, plead, &c. need not fpecify" or that the default will be entered," but may fay generally " or judgment." Gardiner v. Buel, 103 30. Notice of motion may be only for the first day of term without specifying the place where. Bodwell v. Willcox, 104 31. If in a plea of fet-off in the common Pleas the fum for which judgment is rendered be under 25 dollars the plaintiff must pay cofts to the defendant. Van Antwerp v. Ingerfoll, 32. If there be a lis pendens in the common pleas, in which there has been no decifion, this court will not take up the point on a cafe made and fubmitted by confent. Strowell v. Vrooman, 107 33. If the names of two attornies appear on the writ, fubfequent proceedings may be in the name of one alone. Interlo

107

34.

35.

cutory judgment may be entered at any day after default, and before writ of inquiry executed. Gould ads. Spencer,

109

If a late decifion be made of which counsel is not apprifed, the court will in fome cafes allow of its being urged as an excufe for not making an earlier application. Schoonmaker v. Trans, 110 After a witness has been examined on interrogatories and cross-examined and his depofitions read, a new trial will not be granted on a supplemental affidavit ftating mistake or furprise. A new trial will not be granted because of the difcovery of new witnesses to the fame fact nor because a juror was challenged in the abfence from court of the defendant's counsel. Steinbach v. Columbian Ins. Comp.

129

36. An application for a new trial on account of a difcovery of teftimony muft fhew it to have been fince the trial. It is not fufficient to fay it has been received fince, for its not having been received might have been urged as a reason for not trying. Vandervoort and ano. v. Smith, 37. If on demand of oyer, that given be different from that fet out, the plaintiff cannot without rule or notice after

38.

39.

40.

41.

42.

155

fervice of a true oyer fign judgment by default. If it be done the court will fet it afide with cofts. Clinton v. Porter, 176 When a defendant cross-examines a plaintiff's witness he makes him his own; therefore parol evidence of a deed or will, disclosed by fuch witness, in the poffeffion of the plaintiff cannot be received without notice to produce it. Jackfon ex dem. Van Slyck and others v. Son, 178 Under the act concerning cofts, a plaintiff must recover above fifty dollars damages, exclufive of the fix cents or other cofts, to entitle him, in the fupreme court to cofts of increase. The word "recover" in the ftatute means what shall be affeffed as damages, e nomine. Van Horne v. Petrie, 213 So in the common pleas the damages, exclufive of cofts, must be above twentyfive dollars. Seaman v. Bailey, A count in affumpfit, and one on a warranty on a fale may be joined and not guilty pleaded to both. If not guilty be pleaded to the warranty, and non af fumpfit to the other count, and the plaintiff take judgment on the affumpfit, and enter a nolle profequi on the warranty, the misjoinder is not moveable in arrest of judgment. Hallock v. Powell, 216 If the plaintiff in trefpafs recover in this court under fifty dollars, he will not be entitled to cofts, unless the judge

214

222

44. On a motion to fet afide a verdict, as not warranted by the facts, the court will not receive teftimony or affidavits to fupply what was deficient at the trial, in order to prevent a new investigation, unless the teftimony be incontrovertible in its nature; fuch as a record or the like. If the teftimony be for the purpofe of affording further inquiry the court will receive it. Watfon v. Delafield, 45. Amendment allowed on payment of cofts, after demurrer argued and the judgment of the court pronounced, tho' an amendment had once before been granted. Halleck v. Robinfon, 233 46. Being a public officer affords no excufe for not going to trial, nor does his cause acquire any preference. Anonymous, 246 47. A ftipulation by a counsel in the cause is good. Wilcox v. Woodball, 250 48. The court will renew a rule for an attachment, if it has not been forwarded by the clerk in time to be duly ferved. Waddington v. Chamberlin and Clafon, 251

49. When the court confifts of only two, flight grounds will make them refuse vacating a rule granted on argument, in full court. Day v. Wilber, 50. Motion for judgment, as in cafe of nonfuit, must be in the next term after the neglect. Mumford v. Col. In. Comp.

251

251

51. If in crofs fuits one has been referred, in which all may be obtained that can be gained by a reference in the other, the court will not refer fuch other, efpecially if there be a poflibility that by fo doing, the report may be fo apportioned as to throw the costs of both fuits on one party, who by a decifion of the court feems to have a right to a verdict in his favor in one of the fuits. Codruife and an. v. Hacker, 251 52. If a plaintiff delay his own verdic, intereft will be taxed to him only down to the day when rendered. On granting a new trial cofts are allowed of course, unless when expreffed otherwise, or for a mifdirection. So if the application be denied, costs for refifting follow. W'illiams . P. N. Smith, 253 53. After a fecond commiffion has iffued

with leave to go to trial notwithstandthe court, on fpecial circumftances, fince difcovered, will vacate the rule as to going to trial, and allow a further time for the return. Ferris v. Smith, 253 54. If a judgment has been entered, and

execution fued out for the penalty of a bond, the court will fet afide the execution, and order fatisfaction to be entered on payment of the debt, and intereft due on the condition, with the cofts of the fuit, though the bond was given for a larger fum than that mentioned in the condition, and for the overplus, a promiffory note had been given, which is unpaid, and for which there was, at the time, a verbal agreement, execution fhould be taken out if it was not duly honored. No more can be levied by an execution on a judgment upon a bond, than the fum due on the condition. A notice figned with the Chriftian and furname of an attorney is good, though it have not the addition of "attorney for &c." A motion cannot be fupported by an affidavit not ferved, though the matter it contain be not known, till the day of application. A copy ought to be ferved, and the motion made on the next day. Bergen and Garritfon v. Bo

erum,

256 55. If judgment of reverfal has been pronounced, and on the next day the court improvidently order an amendment in the point on which it has proceeded, without notice of the application having been given, it will fo far vacate fuch order, as to grant a rule to fhew caufe against such amendment. Day v. Wilber, 258 To warrant iffuing a commiffion before iffue joined, there must be special circumftances difclofed. Anonymous, 259 Notice of a non-enumerated motion, may be for an enumerated day, if accompanied with an excufe for not being given for the first day. Jackfon cx dem.

56.

57.

274

is fufficient. Henshaw v. Marine In. Comp. 63. After a prifoner has pleaded to an indictment, the jury been fworn, and evidence offered, if the public profecut

or,

320

without the prisoner's confent, withdraw a juror merely because he is unprepared with his evidence, the prifoner cannot afterwards he tried on the fame indictment; if he be, it is good caufe for arrefting the judgment. The People v. Barrett & Ward, 304 64. On a venire tam quam, the plaintiff has it in his election to afleis contingent damages on the trial in facts, before arguing the demurrer, or argue the demurrer first and affefs his damages afterwards. Munro v. Alaire, 65. A fubpana ticket for a perfon to attend as a witnefs in this court, is good, though it does not fpecify the place where to be held. So if it be to testify in an indictment in this court when that against the party named is in the over and terminer. Caufe may be fhewn against a rule for an attachment by affidavit, the party not being bound to appcar in perfon, The People v. Van Wyck, 66. An opinion of a plaintiff's attorney that a caufe on the day docket will not be brought on, will not in future be a reafon for fetting afide an inquest taken in the abfence of the defendant's at

334

torney, though accompanied by a ftrong affidavit of merits. Sayer 9. Finck, 336

67. If a perfon be admitted defendant in ejectment, and keep out of the way to avoid fervice of the ca fa. against the cafual ejector, the court will grant a rule to fhew caufe why an attachment fhould not iffue, of which fervice at the house of the defendant will be fuf

ficient. Jackfon ex dem. Jackway v. Stiles, 368 68. To prevent a demurrer's being overruled as frivolous, there muft appear a color for oppofition; it is not enough for counsel to merely fay he will oppofe. When a reason for not noticing for the first day of term appears on the face of the record, there need not be any excufe fhewn by affidavit. Kane v. Scofield, 368 69. This court will on motion order a writ directing the judges of the common pleas to come in and acknowledge their feals to a bill of exceptions. Pomroy v. Prefton 373

90. In an action for ufe and occupation the court will change the venue to the county where the Houfe is, if all the defendant's witneffes refide there, and the plaintiff do not fhew he has any, as the action is founded on privity of con

74. If an inqueft be taken while the parties are endeavouring to compromife in confequence of a meeting appointed for that purpose it will be fet afide. Brevort v. Sayre & Hurd,

377

377 75. Motion on a frivolous plea, like that on a frivolous demurrer has a priority. Anonymous, 76. A cafe is not ready for argument if the points be not in writing, and if only orally ftated, the court will not fuffer it to be brought on. Steinbach v. Ogden,

378 77. If a defendant petition the mayor and corporation of New-York for relief in a fuit by them on a penal ordinance, during the pendency of which a default and judgment thereon be entered, they will be fet afide especially if any thing like merits appear. The Mayor and Corp. of N. Y.. Comfort Sands, 378 78. There may be judgment as in case of nonfuit for not proceeding to a fecond trial. A mifapprehenfion of the prac tice on a point not fettled will excufe from the ufual cofts on ftipulating.Patrick v. Hallett Bowne, 378 79. Though a caufe has been on the day docket in New-York, yet the non-attendance of counsel to try it may under circumftances, be an excufe for not allowing judgment as in cafe of nonfuit. Rogers v. Garrison,

379 80. If a defendant before his time to plead

be out, give notice of motion to change the venue, without obtaining an order to enlarge the time to plead or stay proceedings, and the plaintiff for want thereof enter a default and go on to execute his writ of inquiry, he is regular; but if he do not attend to oppofe the motion to fet afide the proceedings, he waives his own regularity, and the irregularity of the defendant and the court will fet afide the default and

fubfequent proceedings. Dearman,

Ekbart

V.

tion will not be allowed on either fide. Jackfon ex. dem. Kemp v. Parker and Brewfier,

385

Where three months advertising is required, a weekly notice is fufficient. Anonymous,

385

379

81. No motion can be made in a fecond term for cofts to which a party moving was entitled in a former. Palmer and others v. Mulligan,

ant.

ny v.

380 82. It is a good ground of oppofition to a motion for a ftruck jury, that the affidavit on which it is made does not fhew wherein it is intricate or importBut if no oppofition be made, it is then confessed. Manhattan CompaLydig, 380 83. If a defendant after pleading the general iffue, obtain his discharge under the infolvent law, and his attorney by miftake serve a notice of giving it in evidence at the trial, the court will in a ftale caufe, give leave on payment of cofts to strike out the notice and plead the special matter, as a plea puris darein continuance, but then the plaintiff will be at liberty to difcontinue without cofts. Shawe v. Wilmerden, 380 84. That a caufe was not on the day docket for the fittings in New-York is matter of excufe on a motion for judgment as in cafe of nonfuit, and muft come from the plaintiff on affidavit. Manhattan Company . Brower, 381 85. Motion for irregularity in a jury is a non-enumerated motion. Smith v. Cheet

bam, 381 86. If an attorney from fudden indifpofition cannot attend the execution of a writ of inquiry, the court will on terms fet it afide, efpecially if the damages be exceffive. Koy v. Clough, 381 87. The court will not allow an amendment in a juftice's return in a point contradicted by the affidavit of the justice himself, especially if notice for argument on the errors affigned has been given after joinder. Knapp v. Onderdonk, 383 88. If circumftances tend to fhew a paper ferved by being put under a door has been received, the court will, unless the contrary appear, prefume it has come to hand. Anonymous,

384

89. If a party has had an opportunity of examining a tranfient witnefs, want of his teftimony is no caufe for putting off a trial. Abfence of counfel is an excufe for not going to trial which the court discountenances. M'Kay v. Mar. In. Comp. 384 90. The court will order a juftice to amend his return by stating the evidence of a former trial for the fame caufe of action. Felter v. Mulliner,

384 91. After a verdict for the plaintiff, if he neglect to make up the record, the court will permit the defendant to do it; but if he apply to the court before request made to the plaintiff, cofts of the mo

92.

93. Trial by record is a non-enumerated motion. M'Kinzie v. Wilfon,

385 94. If it appear diligence has been used to obtain the tranfcript in error, during a reasonable expectation of which a default has been entered for not affigning errors, it will be set aside on payment of cofts. Mitchell v. Ingerfoll, 95. A plea fent by the poft will fave a default. Ludlow v. Heycraft,

385

386

96. No trial by provifo to be had without a previous rule to be obtained on motion. Codwife and others v. Hacker,

Premium.

See Action, I. Infurance, 20.

Prefumption.

386

1. If a maker of a note cannot be found when it is due, evidence of that is fufficient to fupport the general averment that the note was prefented, and payment refufed. If the indorfor of a note, dated in New-York, have a house there, and alfo one on York Ifland, notice of non-payment left at his houfe, in NewYork, is good. If a holder of a note release one of feveral joint makers, excepting from fuch liability as he may be under to the indorfors, thofe indorfors cannot in an action against them, by fuch holder, fet up fuch release in difcharge. If the indorfor of a note die before it fall due, and the holder, in an action against the executors, ftate the indorfor promised in his life-time to pay, it is fatal, and on fuch a count a recovery cannot be had. R. & H. Stewart v. Eden others, 2. A note given as a collateral fecurity for a judgment recovered, cannot, in the

121